The sun. [volume] (New York [N.Y.]) 1833-1916, 1905-07-09

Law, OF course, Is not always, as hume
paradoxically said it was. the condensed
product Of active public opinion. 1t may
he, and often ia. the result Of custom, which
with sufficient accuracy, might he described
as arrested or stagnant opinion. IT is only
under the peculiar conditions of an adj
vanced civilization that the movement
OF opinion dictates legislative changes.
In many Eastern countries public opinion,
or perhaps we should letter say tradi-
tional or instructive feeling, has for ages
teen usually hostile to change and favor
able to the maintenance Of inherited HABITS.
There, as in the West public opinion. or
public sentiment, in very vide sense
Of the word. may lie said to rule but such
aversion to change as for ages keeps
society within the limits of traditional
action is very different thing from the
shifting and growing public opinion which.
in the England of the nineteenth century,
demanded incessant improvement in the
law Of the land. u is also manifestly
possible that the opinion giving firth to
law may not he -putlic" opinion in any
proper sense of the adjective. The author
ship of legislation may he due to the in
Gividual opinion of r person who happens
to lie placed in a position Of commanding
authority. Illus it may he asserted with
substantial truth that Peter the Great
laid The foundation Of Russian power with
out much Difference to the then prevailing
opinions of his SUBJECTS ami that modern
Prussia was created by frederick the
Great, who certainly drew his ideas OF
good government from other than Prussan
sources In each Of these cases it was the
convictions Of a single man which nodded
the laws and institutions Of powerful
country. So, too, at this moment, legis-
lation in British India is the work Of body
OF English specialists, who. though they
may have considerable practical knowledge
Of the country for which they legislate,
otey, nevertheless to great extent, the
current of English opinion or sentiment.
Equally plain is it that at a given epoch
a country's laws may fail temporarily to
reflect the actual public opinion of that
country. owing to the lack O. any legisla
tive organ which adequately responds to
the sentiment OF the age, part, at least,
of that accumulation q! abuses which
was the cause or the occasion OF
the French Revolution niny fairly lie
ascrhed TO the want under to ancient
system of any legislative body possessing
both the power and the will TO carry out
reforms which long had been demanded
by the intelligence OF the French nation
Nor can it be denied that ev"n in England
defective legislative machinery has at
times, and especially during the ten or
twenty years preceding the first Reform act,
inpeded the immediate influence Of public |
opinion. Prof. Dicey recognizes, indeed. that |
the arrest Of almost every kind Of reform in |
Great Britain during the latest years of the |
eighteenth and the earlier part OF the nine
teenth century was a state of popular |
feeling 40 hostile to revolution that it for |
babe even the most salutary innovations, |
The Legislative stagnation." as it has
teen termed, lasted, however, in England |
for at least ten or twenty years beyond !
the date when it ought naturally to have
come to an end; and II can hardly he dis
puted that the delay in the Improvement
of English social. political and economical
institutions was due in part to the defects
Of the UNIFORMED Parliament-thst is, TO
the non-existcnce OF satisfactory egs-
lative organ.
Our grandfathers used to he told that,
while France was the land OF revolution,
England was the bulwark of conservatism
end it was customary to draw an antithesis
hc.ween French mutabilty and English
Unchanged hleness. As a matter Of fact
t,e close and immediate connection which
az been displayed in England during the
last hundred years between public opinion
tNd legislation is phenomenon to which
'7nce has exhibited no parallel since the
= At and cataclysmal decade of the egh-
tenth century n spite Of the trans
formations which have been effected at
Paris in the political framework OF the
ranch Government. the f>inda mental
provisions of the Code Napoleon have
stood to a great extent unaltered since it's
publication in lso4 whereas there is now
hardly a part of the English statute book
which. between the year named and the
present day, has not been changed in form
or in substance. Neither should we over
look the fact that the alterations enacted
by the British Parliament have been equaled
or exceeded by innovations due to the Judge
made law Of the British courts Indeed
70 far as the nineteenth century is con-
cerned the responsiveness Of law to public