Legislative public opinion generally changes in England with unexpected slowness. Adam Smith's Wealth of Nations was published in 1776; the policy of free exchange was not completely accepted by England till 1846. All the strongest reasons in favor of Catholic emancipation were laid before the English world by Burke between 1760 and 1797; the Roman Catholic Relief Act was not carried till 1829.
The opinion which changes the law is in one sense the opinion of the time when the law is actually altered; in another sense it has often been in England the opinion prevalent some twenty or thirty years before that time; it has been as often as not in reality the opinion, not of today, but of yesterday.
Legislative opinion must be the opinion of the day, because, when laws are altered, the alteration is of necessity carried into effect by legislators who act under the belief that the change is an amendment; but this law-making opinion is also the opinion of yesterday, because the beliefs which have at last gained such hold on the legislature as to produce an alteration in the law have generally been created by thinkers or writers who exerted their influence long before the change in the law took place. Thus it may well happen that an innovation is carried through at a time when the teachers who supplied the arguments in its favor are in their graves, or even—and this is well worth noting—when in the world of speculation a movement has already set in against ideas which are exerting their full effect in the world of action and of legislation.
Law-making in England is the work of men well advanced in life; the politicians who guide the House of Commons, to say nothing of the peers who lead the House of Lords, are few of them below thirty, and most of them are above forty, years of age. They have formed or picked up their convictions, and, what is of more consequence, their prepossessions, in early manhood, which is the one period of life when men are easily impressed with new ideas. Hence English legislators retain the prejudices or modes of thinking which they acquired in their youth; and when, late in life, they take a share in actual legislation, they legislate in accordance with the doctrines which were current, either generally or in the society to which the law-givers belonged, in the days of their early manhood. The law-makers, therefore, of 1850 may give effect to the opinions of 1830, whilst the legislators of 1880 are likely enough to impress upon the statute book the beliefs of 1860, or rather the ideas which in the one case attracted the young men of 1830 and in the other the youth of 1860. We need not therefore be surprised to find that a current of opinion may exert its greatest legislative influence just when its force is beginning to decline. The tide turns when at its height; a school of thought or feeling which still governs law-makers has begun to lose its authority among men of a younger generation who are not yet able to influence legislation.
Fourth, the reigning legislative opinion of the day has never, at any rate during the nineteenth century, exerted absolute or despotic authority. Its power has always been diminished by the existence of counter-currents or cross-currents of opinion which were not in harmony with the prevalent opinion of the time.
A counter-current here means a body of opinion, belief, or sentiment more or less directly opposed to the dominant opinion of a particular era. Counter-currents of this kind have generally been supplied by the survival of ideas or convictions which are gradually losing their hold upon a given generation, and particularly the youthful part thereof. This kind of "conservatism" which prompts men to retain convictions which are losing their hold upon the mass of the world is found, it should be remarked, as much among the adherents of one religious or political creed as of another. Any Frenchman who clung to Protestantism during the reign of Louis the Fourteenth; any north-country squire who in the England of the eighteenth century adhered to the Roman Catholicism of his fathers; Samuel Johnson, standing forth as a Tory and a High Churchman amongst Whigs and Free Thinkers; the Abbé Gregoire, retaining in 1830 the attitude and the beliefs of a bishop of that constitutional church of France whereof the claims have been repudiated at once by the Church and by the State; James Mill, who, though the leader in 1832 of philosophic Radicals, the pioneers as they deemed themselves of democratic progress, was in truth the last "of the eighteenth century"—these are each and all of them examples of that intellectual and moral conservatism which everywhere, and especially in England, has always been a strong force. The past controls the present.
Counter-currents, again, may be supplied by new ideals which are beginning to influence the young. The hopes or dreams of the generation just coming into the field of public life undermine the energy of a dominant creed.
Counter-currents of opinion, whatever their source, have one certain and one possible effect. The certain effect is that a check is imposed upon the action of the dominant faith.
Fifth, laws foster or create law-making opinion. This assertion may sound, to one who has learned that laws are the outcome of public opinion, like a paradox; when properly understood, it is nothing but an undeniable, though sometimes neglected, truth.