Lecture opinion that it comes to pervade a whole field of

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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

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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?

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1

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.

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landed interest, was extended in 1832 so as to Lecture give predominant power to the middle classes and to the manufacturers. In 1867 the artisans of the towns acquired the parliamentary suffrage. Subsequent legislation, ending with the Reform Acts1 of 1884-1885, admitted householders in counties to the same rights as the artisans, and finally established the system of so-called household suffrage, under which England is, in theory at least, governed by a democracy of householders. Of the real extent

and the true nature of this advance towards democracy it is hardly necessary here to speak. All that need be noted is that alterations in parliamentary and other institutions have corresponded with an even more remarkable change, in a democratic direction, of public sentiment. Paley was a Whig, and an acute and liberal thinker, but the whole tenour of his speculations concerning the English constitution, with their defence of rotten boroughs, and their apology for "influence," or, in plain terms, for the moderate use of corruption, is not more remarkable for its opposition to the political doctrines, than for its contrast with the whole tone of political thought prevalent at and indeed before the close of the nineteenth century. The transition, then, from an aristocracy to a democracy is undeniable. May we not, then, find in this transition the main and simple cause of all the principal changes in the law of the land?

The true and general answer to this question is that the expression "advance of democracy," or

1 The Representation of the People Act, 1884, 48 Vict. c. 3 the Redistribution of Seats Act, 1885, 48 & 49 Vict. c. 23.

E

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Lecture rather the idea which this and similar phrases embody, is vague and ambiguous, and that, whatever be the sense in which the term is used, the advance of democracy affords much less help than might have been expected, in the attempt to account for the growth and evolution of the modern law of England. This reply, however, both needs and repays explanation.

The word "democracy" has, owing in great measure to the popularity and influence of Tocqueville's Democracy in America, acquired a new ambiguity. It may mean either a social condition or a form of government.

In the writings of Alexis de Tocqueville, " democracy" often means, not a form of government or a particular kind of constitution, but a special condition of society-namely, the state of things under which there exists a general equality of rights, and a similarity of conditions, of thoughts, of sentiments, and of ideals. Democracy in this sense of the word has no necessary connection either with individual freedom or even with popular government. It is indeed opposed to every kind of aristocratic authority, since aristocracy or oligarchy involves the existence of unequal rights and of class privileges, and has for its intellectual or moral foundation the conviction that the inequalities or differences which distinguish one body of men from another are of essential and permanent importance. But democracy in this sense, though opposed to privilege, is, as Tocqueville insists, as compatible with despotism or imperialism as with popular government or republicanism. Now, if democracy be thus used