II.

Lecture statutes which obviously give effect, even though it may be imperfectly, to some wide principle, but holds at least equally true of laws passed to meet in the readiest and often most offhand manner some pressing want or popular demand. People often, indeed, fancy that such random legislation, because it is called "practical," is not based on any principle, and therefore does not affect legislative opinion. But this is a delusion. Every law must of necessity be based on some general idea, whether wise or foolish, sound or unsound, and to this principle or idea it inevitably gives more or less of prestige. A member of Parliament is garotted1; a demand is made that garotters shall be flogged; a law is passed to meet this wish. The Act, whether wise or not, rests upon and countenances the notion, combated by the wisest philanthropists of an earlier generation, that severity rather than certainty of punishment is the best check on crime. It also strengthens the belief, as to the truth whereof moralists are not agreed, that a main object of punishment is the satisfaction of the feeling which, according to one's point of view, may be described as either the natural sentiment of justice or the natural sentiment of vindictiveness. The Garotters Act, 1863, therefore clearly did affect legislative opinion. The Money-lenders Act, 1900, again, may well be called an Act for the suppression of Isaac Gordon, since it was to a great extent the outcome of indignation against the rapacity and cruelty of that particular usurer. But this Act, though produced by temporary feeling, not only revives the usury laws, but gives expression and 1 See Hansard, vol. clxix. p. 1305.

authority to beliefs supposed to have been confuted Lecture by reason.

It is far, indeed, from being true that laws passed to meet a particular emergency, or to satisfy a particular demand, do not affect public opinion; the assertion is at least plausible, and possibly well founded, that such laws of emergency produce, in the long run, more effect on legislative opinion than a law which openly embodies a wide principle. Laws of emergency often surreptitiously introduce or reintroduce into legislation, ideas which would not be accepted if brought before the attention of Parliament or of the nation. Is it certain that the legislators who passed the Money-lenders Act, 1900, might not have hesitated formally to re-enact the usury laws which Parliament deliberately repealed in 1854? Laws, indeed, passed for a limited or practical purpose-described as they are by the far too complimentary term of "tentative" legislation-exert the greater moral influence because they fall in with our English preference for dealing only with the special matter actually in hand, and with `our profound reverence for precedent. Yet this apparent prudence is, in reality, often no better than the height of rashness. A principle carelessly introduced

into an Act of Parliament intended to have a limited effect may gradually so affect legislative

1 The word "tentative" is too complimentary. Parliament favours gradual legislation not from the desire, which would often be wise, to try an experiment in legislation by applying a wide principle to a very limited extent, e.g. within a small area, but from failure to perceive that a law which produces at the moment a very limited effect may involve the recognition of a principle of unlimited application. Indolence and ignorance, rather than any desire for scientific experiment, are the causes of hand-to-mouth legislation.

II.

Lecture opinion that it comes to pervade a whole field of

II.

law.

In 1833 the House of Commons made for the first time a grant of something less than £20,000 to promote the education of the people of England. The money, for want of any thought-out scheme based on any intelligible principle, was spent on a sort of subscription to two societies which, supported by voluntary contributions and representing, the one the Church of England and the other, in effect, the Dissenters, did what they could in the way of affording to the English poor elementary education, combined with religious instruction. This niggardly,' haphazard subscription has proved to contain within it all the anomalies of the system which, now costing the country some £18,000,000 a year, is embodied in the Education Acts 1870-1902, with their universal, State-supported, and compulsory, yet to a great extent denominational, scheme of national education.°

So much as to the influence of law on opinion, which, after all, is merely one example of the way in which the development of political ideas is influenced by their connection with political facts. Of such facts laws are among the most important; they are therefore the cause, at least, as much as the effect of legislative opinion.

3

1 The whole parliamentary grant for education in the United Kingdom in 1834 was less than a third of what was granted annually by the single State of Massachusetts with a population of less than a mil ion. See Life of Sir William Molesworth, pp 55, 56.

2 In dealing with laws as the creators of opinion, I have, for the sake of clearness, referred only to laws enacted by Parliament, but it is certain that judicial legislation affects opinion quite as strongly as does parliamentary legislation. See "Judicial Legislation," Lecture XI., post.

3 "The development of political ideas is influenced in a different "way by their connection with political facts. The ideas are related

II.

It is a plausible theory, though one which is Lecture perhaps oftener entertained than explicitly stated, that the growth of English law has been governed by a tendency towards democracy. Our best plan therefore will be to examine the relation between the advance of democracy and the course of legislation during the nineteenth century,' and then to consider what have been the main currents of predominant opinion during that period, and trace the influence of each of these on the history of the law.

2

"to the facts of political history, not only as effect to cause, but also as cause to effect."-H. Sidgwick, Development of European Polity, p. 346.

1 See Lecture III. post.

2 See Lectures IV. to IX. post.

LECTURE III

DEMOCRACY AND LEGISLATION

Lecture DOES not the advance of democracy afford the clue to the development of English law since 1800?

III.

This inquiry is suggested by some indisputable facts. In England, as in other European countries, society has, during the last century, advanced in a democratic direction. The most ordinary knowledge of the commonest events shows us that in 1800 the government of England was essentially aristocratic,' and that the class which, though never despotic, was decidedly dominant, was the class of landowners and of large merchants; and that the social condition, the feelings and convictions of Englishmen in 1800, were even more aristocratic than were English political institutions. No one, again, can doubt that by 1900, and, indeed, considerably before 1900, the English constitution had been transformed into something like a democracy. The supremacy of the landowners had passed away; the destruction by the great Reform Act of rotten boroughs had been the cause and the sign of a thorough change in the system of government. The electorate, which had in the main represented the

1 See this stated forcibly, though with great exaggeration, Ostrogorski, Democracy and Organization of Political Parties, chap. i.