OPINION AND LAW.

New Zealand Mail, Issue 25, 15 July 1871, Page 11

OPINION AND LAW.

There appears to be some danger of under-estimating the efficacy of enlightened opinion, and of over-estimating the force of law. Ojnnions are more powerful than laws. Laws cannot enforce opinions, but opinions can give force to laws. Southey, in his “ Colloquies on Society,” disclaims against public opinion, which, he says, is usurping supreme power. Formerly, according to him, the laws governed ; now public opinion governs. Without stopping to enquire here how the case stood formerly, we think it will be admitted at the present day laws which are unsupported by public opinion are practically a dead letter. There are hundreds of such laws on the statute books of both England and her colonies. The severe laws whch were formerly in operation against heresy and “witchcraft were but the expression of public opinion. They were the penalties inflicted by the majority on the minority for a difference in opinion or practice. The laws on these subjects remained unrepealed *ong after a change in public opinion or practice had rendered them inoperative. It may be urged that this was owing to a change in ihe opinions of the educated classes only; but ordinary men, owing to their daily avocations and the circumstances in which they are placed, generally take their opinions upon trust from those whom they suppose have better means of judging than themselves; and the opinions of the educated classes, when widely diffused by means of the press, become the opinions of the people. Just as in former times, before the existence of the press, the opinions of the clergy were the opinions of the laity also. The laws against heresy were the embodiment of the opinions, and the expression of the will, of the majority The great revolution in public opinion with reference both to heresy and witchcraft, which was the consequence of the diffusion of knowledge, prevented the execution of the sanguinary laws which had previously been rigidly enforced. Nobody will now maintain that such laws were desirable, though they were the expression of the opinions and will of the majority. On the contrary, it is now generally held that those' laws were none the less, but all the more, inhuman, odious, tyrannical, and oppressive, on that account. The law did not abolish heresy and witchcraft ; but the prevalence of a more enlightened opinion secured the virtual abolition of the law. These offences, lik© many others, were made by the laws; and now that the laws are repealed, the offences have either disappeared or are considered no longer noxious. With reference to some matters, it is necessary that the laws should enforce what public opinion approves, and punish what it condemns. But there are other matters which are best regulated by public opinion, with which the law should not interfere, and which, being beyond its proper duties and province, it is more likely to mar than to mend. The Puritans, says a high authority, were so ignorant of the real principles of government as to direct penal laws against private vices, and to suppose that immorality could he stemmed by legislation. This, he describes, as a serious error, and there are few thinkers in the present day who will not agree with him in opinion. But are there not American, English, and colonial legislators who hold and endorse similar errors ? And are not these errors the natural offspring of puritanical ideas and sentiments ?

Everybody knows that the New England States were settled by English Puritans. These Puritans made numerous laws against what they considered

public and private vices —against heresy and witchcraft, and against all kinds of recreations and amusements. Under the practice, or rather under the conviction, that they ought to favor the practice of virtue and maintain the purity of society, they made laws affecting the ordinary pursuit and conduct of their fellow-settlers with regard to the commonest occurrences of life. They enacted penal laws against even harmless opinions and harmless practices; and they firmly believed that not only crimes could be checked, but that immorality could be stemmed by legislation. May we not trace to this error the laws which have been passed by their descendants in Maine, Massachussets, and Ohio, with reference to the liquor traffic? Were not the excessive drunkenness and debauchery of the reign ofCharles 11. theconsequencesofasimilar error ? “It may,” says Macaulay, “be laid down as a universal rule that a Government which attempts more than it ought will perform less ; and that while attempting to perform an impossible service to the cause of virtue, it has, in truth, only promoted vice.” The same authority also observes :—“ We are by no no means unmindful of the great debt which mankind owes to the Puritans. But in the daj r s of their power they committed one great fault, which left deep and lasting traces on the national character and manners. They mistook the end, and over-rated the force of Government.” They tried to make the people moral by act of Parliament. They were ignorant of the truth, which subsequent events verified, that Governments which attempt things beyond their reach are likely not merely to fail, but to produce an effect directly the opposite of that which they contemplated as desirable. We referred to Ohio, as being a State that was settled by the descendants of New England Puritans. This was really the case ; and hence, probably, the legislation on the subject of the liquor traffic to which Mr Fox recently approvingly alluded. The legislators of that State are evidenty bent on putting down the liquor traffic ; not by rendering it illegal, it is true, but by making the trafficers liable to heavy penalties, which the unbelievers, in the principles of total abstinence will think they can neither foresee nor avert. Finding, from the experience of other States on the subject, that the consumption of intoxicating drinks could not be prevented by imposing the most stringent legal restrictions,' and the heaviest penalties on their sale, they have made the seller personally responsible for the results which sometimes follow from the excessive and habitual use of alcoholic liquors. But until the opinion had become pretty general as to the criminality of the liquor traffic, no popularly constituted legislature would pass such a law, or would any jury be found to award damages under it. And why should the distiller, the importer, and the wholesale dealer escape, and the retailer alone be punished ? It appears to us that the Ohio is a less logical and comprehensive act than the Maine Liquor Law. The members of the legislatures of both States, possessed with the same ideas which animated their Pilgrim Fathers, seek to effect by law that which can be better, though perhaps more slowly, accomplished by a change in the opinions, habits, customs, and usages of society. According to Leiber there can be no individual liberty where every citizen is not subjected to the law, and where he is subjected to aught else than the law; but then he defines law to be public opinion organically passed over into public will. Be this as it may, there is less individual liberty in America than in Austrian society; because both law and opinion are more exacting and intolerant in the one than in the other. The spirit and. sentiments which prompted the persecution of heretics, and the burning of witches, are not yet extinct ; and hence force is used where reason, information, persuasion, and example should alone be employed. The only security for enlightened laws, or enlightened practice, is enlightened opinion; and the best means of securing the latter is the diffusion of knowledge.