XI. Lecture England. A time, in the second place, inevitably arrived when judicial legislation had reached its final limits, and the reform accomplished by the Court of Chancery was thus marked by incompleteness. Before 1870 judicial legislation, it was clear, could do no more than had been already achieved to secure for married women their full property rights; and this necessary arrest of judicial power was the more to be lamented, because the operation of the common law combined with the modification thereof introduced by the Court of Chancery, had in fact established one law for the daughters of the rich, and another, but far less just law, for the daughters of the poor. Parliamentary legislation from the time when it began to operate produced its effect with great rapidity. For within twelve years (1870-1882), or at most twenty-three years (1870-1893), Parliament reformed the law as to married women's property, and thus revolutionised an important part of the family law of England; and neither twelve nor twenty-three years can be considered as more than a moment in the history of a nation. Add too that the reform carried out by Parliament was, when once accomplished, thorough-going, and can at any moment, if it needs extension, be carried further under the authority of a sovereign legislature. The Court of Chancery, it may be said, took centuries to work out incompletely a reform which Parliament at last carried out with more or less completeness in little less than a quarter of a century; but in fairness we must remember that parliamentary reformers borrowed the ideas on which they acted from the Courts of Equity, and that during the centuries when the Court of Chancery was XI. gradually but systematically removing for the benefit Lecture of married women the injustice of the common law, Parliament did little or nothing to save any woman from rules under which marriage might and sometimes did deprive her of the whole of her property. The four Married Women's Property Acts are, further, a record of the hesitation and the dulness of members of Parliament. Want of support by popular opinion probably made it necessary to proceed step by step, but it is difficult to believe that enlightened reformers who had understood the actual state of the law could not in 1870 have gone much further than they did towards establishing the principles now embodied in the Married Women's Property Acts, 1882-1893. It is in any case certain that the necessity for the Married Women's Property Act, 1874, was caused by a gross blunder or oversight on the part of the Legislature, and that the Married Women's Property Act, 1893, proves that Parliament, whilst wishing in 1882 to put the law on a sound basis, had not understood how to attain its object. The plain truth is that Parliament tried, whether wisely or not, to reform the law in accordance with ideas borrowed from equity, and some even of the lawyers by whom Parliament was guided did not fully understand the principles of equity which they meant to follow. Hence recurring blunders which one may hope, though without any great confidence, have been at last corrected. Parliamentary legislation, in short, if it is sometimes rapid and thorough-going, exhibits in this instance, as in others, characteristic faults. It is the work of legislators who are much influenced by the immediate opinion of the moment, who make XI. Lecture laws with little regard either to general principles or to logical consistency, and who are deficient in the skill and knowledge of experts. For our own purpose, however, the most important matter to note is after all neither the merits nor the defects of the Married Women's Property Acts, but the evidence which they give of the way in which judicial may tell upon parliamentary legislation. Nor ought the care devoted to the examination of the connection between judgemade law and Acts of Parliament in the case of the Married Women's Property Acts to lead any student to suppose that the same connection is not traceable in many other departments of law. It may be illustrated by the laws governing the right of association,' by the law with reference to an employer's liability for damage done by the negligence of his servants, or by provisions of the Judicature Acts which substitute rules of equity for the rules of common law. In studying the development of the law we must allow at every turn for the effect exercised by the cross-current of judicial opinion which may sometimes stimulate, which may often retard, and which constantly moulds or affects, the action of that general legislative opinion which tells immediately on the course of parliamentary legislation. 2 LECTURE XII RELATION BETWEEN LEGISLATIVE OPINION AND GENERAL PUBLIC OPINION XII. LAW-MAKING opinion is merely one part of the whole Lecture body of ideas and beliefs which prevail at a given time. We therefore naturally expect, first, that alterations in the opinion which governs the province of legislation will reappear in other spheres of thought and action and be traceable in the lives of individuals, and, next, that the changes of legislative opinion will turn out to be the result of the general tendencies of English or indeed of European thought during a particular age. This lecture is an attempt to show that these anticipations hold good in a very special manner of that transition from individualistic liberalism to unsystematic collectivism or socialism, which has characterised the development of English law during the later part of the nineteenth century. I. As to analogous changes of opinion in different spheres and also in the lives of individuals. Let us here consider rather more fully a matter several times touched upon in the foregoing lectures, namely, the relation between legislative and theological opinion. The partial coincidence in point of time between XII. Lecture the reign of Benthamism in the field of legislation and of Evangelicalism in the religious world is obvious. The influence of each was on the increase from the beginning of the nineteenth century, and reached its height about 1834-35. From that date until about 1860 utilitarian philosophy and Evangelical theology were each dominant in England. By 1870, however, it was manifest that Benthamism and Evangelicalism had each lost much of their hold upon Englishmen. This decline of authority, when once it became noticeable, was rapid. In the England of to-day the very names of Benthamites and of Evangelicals are forgotten. Their watchwords are out of date. Many ideas, it is true, which we really owe to Bentham and his followers, or to Simeon and his predecessors, exert more power than would be suspected from the current language of the time. But as living movements Benthamism and Evangelicalism are things of the past. Have they no real inter-connection or similarity? To this question many critics will reply with a decided negative. It appears at first sight a hopeless paradox to contend that the doctrines of Jeremy Bentham and James Mill had any affinity with the faith of Simeon, of Wilberforce, and of Zachary Macaulay. The political reformers were Radicals, or, in the language of their day, democrats; they were certainly freethinkers, and must sometimes in the eyes of Evangelicals have appeared infidels, if not atheists; they assuredly attached no value to any theological creed whatever; their only conception of church reform' was to make the Church of England a fit instrument for the propagation of utilitarian 1 See pp. 320-322, ante. |