Académique Documents
Professionnel Documents
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759790
doi:10.1093/ojls/gqu015
Published Advance Access July 16, 2014
Ben Pontin*
AbstractIt is increasingly clear that law and its enforcement in Victorian Britain
were quite effective in tackling formative industrial problems concerning pollution
and broader threats to nature. What is unclear is the political philosophy, if any,
underlying this historic achievement. A prevalent view is that early environmental
law lacked any philosophical underpinning (being instead a piecemeal reaction to
the various problems of industrialization as and when these presented themselves).
The article revisits this issue with reference to Diceys analysis of 19th century lawmaking public opinion. Dicey identified three broad streams of seminal opinion
that, he argued, shaped laws as the century unfolded. The early part of the century
was dominated by Old Toryism, including the romantic conservatism associated
with Samuel Taylor Coleridge. This then gave ground to Benthamism (or
individualism) which in turn ceded dominance to collectivism (also influenced
by Benthams ideas). Whilst Dicey ignored laws relating to the environment, I
argue that this is not because these presented a particular difficulty for his thesis.
Indeed, all three seams of law-making opinion converged around the legal
protection of nature to offer a rich and diverse philosophical foundation for
environmental law.
Keywords: Dicey, Coleridge, Bentham, environmental law, history, young
England
1. Introduction
In recent years it has been argued that industrial pollution and associated
threats to nature were broadly adequately remedied through various laws in
* Bristol Law School, University of the West of England. Email: Benjamin.Pontin@uwe.ac.uk. The article is
adapted from a paper the author presented at the GNHRE conference on Human Rights and the Environment at
UWE in June 2011. I am grateful to the anonymous reviewer who offered very extensive and insightful comments
on an earlier draft.
The Author 2014. Published by Oxford University Press. All rights reserved. For permissions,
please e-mail: journals.permissions@oup.com
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1
Eg B Pontin, Integrated Pollution Control in Victorian Britain: Rethinking Progress within the History of
Environmental Law (2007) 19 JEL 173; Nuisance Law and the Industrial Revolution: A Reinterpretation of
Doctrine and Institutional Competence (2012) 75 MLR 1010; and The Common Law Clean Up of the First
Industrial Nation: More Realism about Nuisance Laws Historic Environmental Achievements (2013) 40 J Law
& Society 173. From a humanities perspective, see Pierre Desrochers, Victorian Pioneers of Corporate
Sustainability (2009) 83 Business History Rev 703 and Does the Invisible Hand Have a Green Thumb?
Incentives, Linkages, and the Creation of Wealth out of Industrial Waste in Victorian England (2009) 175
Geographical Journal 3.
2
These wealthy landed claimants have been likened to Marc Galanters haves, who used law to protect a
prior social and economic advantage. M Galanter, Why the Haves come out Ahead: Speculations on the Limits
of Legal Change (1974) 9 Law & Society Rev 95, applied in Pontin, Nuisance Law (n 1).
3
For examples of pollution control statutes, see the Alkali Acts 1863, 1868, 1874 and 1881, and the Rivers
Pollution Prevention Act 1876. For a general overview, see D Vogel, National Styles of Regulation: Environmental
Policy in Great Britain and the United States (Ithaca 1986). For nature conservation statutes, see the Sea Birds
Preservation Act 1869 and Wild Birds Protection Act 1880. For a history, see C Reid, Nature Conservation Law
(3rd edn, W Green 2009). On laws protecting animals generally, see B Harrison, Animals and the State in
Nineteenth Century England (1973) 88 English Historical Rev 786.
4
AV Dicey, Lectures on the Relationship between Law and Public Opinion in England in the Nineteenth Century
(2nd edn, Macmillan 1905).
5
ibid 2223.
6
Dicey labels this period the age of Blackstone (70, 81), and also the era of Blackstonian optimism (62).
However, elsewhere (114) there is mention of the age of Coleridge in connection with this romantic sage
heading a list of distinguished writers, including Walter Scott, William Wordsworth, Jane Austen and Percy
Shelley. Later, Coleridge is acknowledged by Dicey to figure in his own right (separate from other literary
counterparts) in two important settings: as an extra-Parliamentary contributor to early factory legislation (224)
and as the philosopher who was the principal influence on youthful JS Mill (see 42627). In recognizing this
singular importance, Dicey had to overcome his antipathy towards Coleridge as a person ruined by weakness.
AV Dicey, The Statesmanship of Wordsworth (OUP 1917) 4.
Victorian Britain.1 The achievement was, the argument goes, in part a result of
the robust enforcement of property rights by dynastic proprietors seeking
protection of the health of the countryside on which the wealth of estates
heavily depended.2 It also rested on parliamentary enactments that laid down
public interest standards for the control of pollution affecting air, water and
land, as well as the protection of wild (and indeed domesticated) animals.3 In
these ways, the first industrial nation established itself as the pioneer of a
comprehensive range of laws bearing on what is today known as the
environment. However, what is unclear is the nature of the political
philosophical thought underpinning these laws, if indeed there is any. Were
formative laws in this field a reaction to events on a case by case basis, or a
product of a broader intellectual design?
The question of the existence of an intellectual underpinning to 19th-century
law in Britain was first raised by AV Dicey in a study of law-making public
opinion.4 According to Dicey, it is in the nature of both common law and
statute law that each is shaped by intellectual opinion that arises from
individuals; generally at first from some individual.5 Three broad seams of
opinion were identified as predominant at various points in the 19th century.
Laws of the initial third of the century (180030) were largely Old Tory in
influence, Dicey claims. Specifically, the organic, natural law theory of William
Blackstone is seen as the guiding idea here, with mention also of the age of
Samuel Taylor Coleridge and other romantics.6 The period 182570 is
considered to have been characterized by the ascendancy of what Dicey called
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7
Benthamism as individualism is defined by Dicey in Law and Public Opinion (n 4) 6364. Dicey made
infrequent references to specific texts of Bentham, eg Fragment of Government (1891) 126 and Collected Works, vol
I (183843) 66.
8
ibid. Dicey did not see collectivism as having a single author, Law and Public Opinion (n 4) 232, 6465.
Collectivism is depicted in part by Dicey as an authoritarian variation on Benthamism, in which the state is seen
as doing things in the civil sphere (eg education, pensions) that are better not left to individual initiative. For a
helpful analysis of the ambivalence of Benthams thought as regards individualism and collectivism, see James E
Crimmins, Contending Interpretations of Benthams Utilitarianism (1996) 29 Can J Pol Sci 751.
9
By contrast, factory legislation protecting workforces is addressed in detail: Dicey, Law and Public Opinion
(n 4) 22040. The closest reference to the present legal subject matter is the briefest of allusions to the Public
Health Act 1875 (291), and a reference to animal cruelty legislation of 18221900 (189).
10
OOG MacDonagh The Nineteenth Century Revolution in Government: A Reappraisal (1958) 1 History J
52; R McLeod, The Alkali Act Administration, 186384: The Emergence of the Civil Scientist (1965) 9
Victorian Studies 85; R McLeod, Government and Resource Conservation: The Salmon Acts Administration,
18601886 (1968) 7 J British Studies 114; KT Hoppen, The Mid-Victorian Generation 18461886 (Clarendon
Press 1998) 95.
11
R Burnett Hall, Environmental Law (Sweet and Maxwell 1995) vvi.
12
ibid.
13
D Hughes, Environmental Law (Butterworths 1986) 3.
14
ibid. The same point was made by James McLoughlin in the first law textbook devoted to pollution. J
McLoughlin, Law Relating to Pollution (Manchester University Press 1972).
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15
16
17
UKELA, Environmental Law 2011/2012: Is there a Case for Statutory Reform? (UKELA 2012).
S Coyle and K Morrow, The Philosophical Foundations of Environmental Law (Hart 2004).
ibid 215. See further n 69 and associated text on the limits to Lockes environmentalism.
laws lack of rational design at its outset has frustrated the quest for coherence
up to now.15
An important exception to this scepticism towards the existence of a
coherent intellectual basis to environmental law historically is provided by Sean
Coyle and Karen Morrow in their book The Philosophical Foundations of
Environmental Law.16 Without explicitly engaging with Diceys historiography,
this book nevertheless promotes a broadly similar intellectual approach to the
importance of ideas in the history of relevant law. They argue that environmental law of the 19th century reflects two broadly contrasting philosophical
conceptions of property in land. First, a natural law philosophy in which
property law is shaped by a moral view of the limits on the human entitlement
to exploit natures bounty (considered to be developed most fully in the writing
of John Locke).17 Second, a more instrumentalist philosophy, in which
property law protects the environment insofar as it is in the public interest
(rather than a matter of private right). This the authors associate with
Benthams utilitarianism.
In the analysis that follows I propose the substitution of Coleridge for Locke
in respect of the natural law influence on the development of environmental
law, thus bringing the discussion closer to Diceys analysis of the Old Tory
tradition. The examination of Coleridgean and Benthamite influence begins
with an outline of the relevant common law and statutory provisions relating to
pollution control and nature conservation. Particular attention is given to the
period of judicial and parliamentary interventions of the 1840s through to the
early 1880s, which is one of the most fertile periods in the history of
environmental law. Attention in this section is also given to the current
academic critique of Diceys intellectual approach.
Consideration is then given to the evidence that ideas shaped law in this
field. Beginning with the ideas of Bentham, a distinction is drawn between the
law-making process and the substance of the law. Regarding law-making
process, Benthams science of legislation is argued to have justified the
voluminous social inquiry data generated prior to the enactment of almost
every relevant statute at this time, and on which basis the legislation was
enacted. In terms of the substantive content of the law, both statute and the
common law in this field are sufficiently (if not completely) reflective of the
utility calculus espoused by Bentham for the thesis that utilitarianism was a
dominant influence to be credible. The utilitarianism at work is a little difficult
to classify in terms of Diceys distinction between individualism and
collectivism, for it contained elements of each.
The remainder of the article is given over to an introduction to, and analysis
of, Coleridges contribution to the Old Tory tradition as it impacted on the
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18
This is Coleridges self-description in correspondence with Gilman, quoted in R Holmes, Coleridge: Early
Visions (Hodder 1989) 2.
19
AN Wilson, The Victorians (Random House 2003) 65.
20
See eg ET Raymond, The Alien Patriot (Richard West 1925) and Wilson, ibid. See further n 169 and
associated text.
21
Notably Edwin Chadwick and Thomas Southwood Smith: see MacDonagh (n 10).
22
David Lloyd Smith, Young EnglandA Medieval Spirit in an Industrial Age, 18421850 (MA thesis,
University of British Columbia 1984) <https://circle.ubc.ca/handle/2429/25231> accessed 27 May 2014.
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The law affecting the question was exceedingly simple. If the defendants works had
done damage to the plaintiffs property and estate . . . as well as his comfort and
23
Legal remedies for pollution and threats to nature have a very long history. The
specific concern in this article is with the laws of the Victorian era and, more
specifically still, the early-to-mid Victorian period (comprising the 1840s through
to the 1880s). It was not until then that problems arising from steam-powered
industrialization and demographic changes became noticeable on a national scale.
Prior to this, revolutionary factories of the late 18th and early 19th centuries were
largely benign in terms of their impact on the natural environment. This is
exemplified by early cotton mills, which were certainly sometimes dark and
satanic in their workforce discipline, but they were powered by water and were not
dark at all in terms of environmental pollution. Indeed, it was not until the 19th
century was quite advanced that cotton mills and other factoriesand wider
infrastructure developmentsbecame a major strain on the environment for
which a legal remedy was sought, and obtained.23
For example, this period encompassed the enactment of Private Acts which
authorized a vast and invasive24 private railway infrastructure. Private Bills in
this field were sometimes drafted by the lawyers of sponsoring enterprises in a
way that showed little sympathy with the cherished features of the country
estates they traversed.25 Lawyers representing the landed interest were typically
able to secure amendments to the route of proposed railways that best
safeguarded prized natural habitats and landscapes. That was an important
achievement, for the landed aristocracy was not opposed in principle to this or
other pioneering industrial ventures. Rather, the aristocracy sought to dictate
the pace and character of industrialization, in order to secure progress
without loss of ancestral natural amenities that it was the familys duty (or so it
was perceived) to conserve in the interest of the nation.
As to factory pollution, an early example of the aristocracy using the
common law to remedy harm to nature is the chemical works and acid gas
emissions complaint in Gerard v Muspratt,26 where it was ruled by Cresswell J
that:
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convenience [the defendant is liable]. The law did not tolerate that any person should
erect a works and carry them on to the injury of the health and property of another.
27
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age of large private estates, which frequently included beautiful scenery, [where]
destructive development was often effectively prevented by the pride of owners in
their possessions and their frequent refusal to part with or lease their land even when
this would have been extremely profitable.32
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33
T Raleigh, Review (1906) 16 Economic J 83. Raleigh considered that Dicey overstated the influence of
Bentham, who is certainly to be counted among our great men, but Diceys championing is considered overstrained.
34
J Drake, Review [1906] Mich L Rev 328, 330.
35
KB Smellie, One Hundred Years of English Government (2nd edn, Duckworth 1950) 331.
36
MacDonagh (n 10) 55.
37
D Roberts, Tory Paternalism and Social Reform in Early Victorian England (1958) 63 American Hist Rev
323. See more generally D Roberts, Jeremy Bentham and the Making of the Victorian Administrative State
(1959) 2 Victorian Studies 193. See also G Kitson Clark, The Making of Victorian England (London 1962) and n
10.
38
Roberts, Tory Paternalism (n 37) 324.
39
See too WC Lubenow, The Politics of Government Growth: Early Victorian Attitudes Towards State Intervention,
18331848 (Archon Books 1971) 148 in which it is argued that attempts to present laws of this period as
polarized initiatives orchestrated by industrialists on the one hand or aristocrats on the other, must fail. The ideas
were too varied and far too rich to fit into these neat categories or indeed any categories.
40
G Winter, Perspectives for Environmental LawEntering the Fourth Phase (1989) 1 JEL 38, 40.
reviewer described the book as a legal classic concerning the rise, the triumph
and the decline of Benthamite liberalism.33 Another reviewer (writing from a
more Tory standpoint) praised it for elucidating the revolutionary politics
hidden behind the spiteful treatment (by Bentham, amongst others) of
Blackstone.34 Early postwar celebration of the work was led by LSE professor
Kingsley Smellie, who described it as the best introduction to the interplay
between thought and political action [through law].35
Subsequently, however, some of the laws addressed above have been cited as
evidence that Dicey exaggerated the extent of interplay between law and
intellectual ideas. Whilst conceding that Law and Public Opinion is a great
book which (it was accurate to say at the time) has dominated ever since,
MacDonagh was among the first to emphasize the chaotic character of
Victorian-era interventions.36 A particularly important contribution to the
critique of Diceys notion of law-making opinion is to be found in the work of
David Roberts.37 Roberts distinguished the indubitable existence of seminal
ideas on the one hand, from that of the dubious influence of such ideas on the
development of the law on the other. Looking specifically at a variety of 18thand 19th-century Tory theorists, for example, Roberts identifies Coleridge
(who is key to my analysis, later) as the most profound and influential of these
theorists.38 But Roberts does not consider that Coleridge was in any way
influential in terms of law. Rather, Roberts portrays law as being shaped by
numerous different ad hoc alliances of individuals interested in practical
matters, without any discernible coherent intellectual influence.39 High
philosophical ideas and laws inhabit different worlds, on Roberts account.
This scepticism towards the influence of a consistent body (or bodies) of
intellectual ideas is perpetuated in the environmental law literature. To the
comments mentioned near the outset of the article can be added the much
cited analysis of Gerd Winter, who argues that laws emerged in reactive fashion
where a broad tolerance limit [regarding pollution/threats to nature] was
exceeded.40 A similar view is apparent in the claim of the Royal Commission
on Environmental Pollution that the piecemeal nature of 19th-century law
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reflected the fact that the populace had no great expectations of environmental
improvement and were no doubt grateful for anything that was done to reduce
pollution.41 The remainder of the analysis looks critically at the argument that
law of this period lacked coherent intellectual focus, which it is argued is
mistaken. The evidence suggests that seminal ideas were in fact crucial to the
development of the law, with Bentham and Coleridges contrasting ideas
converging to provide a strong and rich intellectual underpinning to the law.
References here to the beauty of the landscape are returned to later, with
respect to Coleridges nature-oriented spin on Old Toryism.
As noted at the outset, Dicey recognized the fluidity of Benthams influence,
such that it allegedly influenced individualist and collectivist laws. The Alkali
Acts are an excellent example of this fluidity. In the specialist Alkali industry
press Chief Inspector of Alkali Works, Dr Angus Smith, earned respect for his
41
Royal Commission on Environmental Pollution, Air Pollution: An Integrated Approach, 5th Report (Cmnd
6371, 1975) 33.
42
McLeod, The Alkali Act Administration (n 10) 111.
43
ibid 102 n 49, regarding an article of 2 September 1878.
44
The Times, 22 November 1878. Lord Stanley sponsored the 1863 Act, which the 1862 House of Lords
Select Committee, chaired by his father (Lord Derby) had recommended.
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45
Dr Smith, in addition to his extensive knowledge as a chemist, has brought with him from the other side of
the Tweed a stock of the well known plant called Scottish hard-headedness, which has thriven and borne
abundant fruit in spite of all the noxious vapours of Widnes. . . . (Chemical News, 27 September 1878, 159).
46
J Bentham, Introduction to the Principles of Morals and Legislation (first published 1789, JH Burns and HLA
Hart eds, Athlone Press 1970). See further D Lieberman, The Province of Legislation Determined (CUP 1989).
47
House of Lords Select Committee on Noxious Vapours, British Parliamentary Papers XIV (1863). These
evidence sessions were held between 16 May and 4 July 1862. Witnesses included one of the top 100 wealthiest
rural proprietors (Gerard of New Hall), some of the wealthiest industrialists (eg David Gamble) and the leading
chemist (Dr Lyon Playfair).
48
Royal Commission on Noxious Vapours, British Parliamentary Papers XLIV (1878). Witnesses included
not only landowners, industrialists and scientists, but also religious leaders, notably the Archbishop of
Canterbury (Q 9543ff).
49
A-G v Birmingham Corporation (n 27).
50
S Tromans, Nuisance Prevention or Payment? (1982) 41 CLJ 87, 91.
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51
Through the use of periodic suspensions to the injunction, the defendant corporation was given a window
of 37 years to invent a satisfactory means of providing a service for townsfolk without destroying property in the
countryside. Pontin, The Common Law Clean Up (n 1). See also R Carnwath, The Common Laws of the
Environment, at Home and Abroad (2014) 26 JEL (forthcoming).
52
Three from the Rivers Pollution Commissions (eg Rivers Commissioners of 1868, First Report, British
Parliamentary Papers XXXX (1870)) and two from the Royal Sanitary Commission (eg Royal Sanitary
Commission, Second Report, British Parliamentary Papers XXV (1871).
53
Pontin, Integrated Pollution Control (n 1).
54
See n 163 and associated text. Subsequent legislation in this field was based on more detailed
parliamentary inquiry: see for example, the Report of the Select Committee on Wild Birds Protection, British
Parliamentary Papers XIII (1873) on which the Wild Birds Protection Act 1880 was based.
55
HC Deb 5 March 1896, vol 194, col 775, O Stanley (navigation), C Sykes (fisheries).
56
Report of the Select Committee on Wild Birds Protection (n 54) Evidence, Cordeaux, Q 242934.
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Coyle and Morrow, The Philosophical Foundations of Environmental Law (n 16) 109.
ibid 64.
ibid 109.
60
ibid 2078. The classification of Locke as pro-development is compelling, for Locke is quoted as
understanding that man is commanded by God to subdue the earth, that is improve it for the benefit of life 51.
61
Coyle and Morrow define deep green as a laudable but politically unrealistic steady state economic
policy leading to a sustainable society in which resources are recycled and a state of equilibrium, designed to echo
an ecological equilibrium of nature ibid 209.
58
59
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66
biology, n, first used by Beddoes in 1799 (OED Online, OUP March 2014) <www.oed.com/view/Entry/
19228> accessed 19 May 2014.
67
Seth Watson (ed), Collected Works: Hints Towards a More Comprehensive Theory of Life (J Churchill 1868). In
developing these ideas, Coleridge worked alongside German Idealists, notably Max Schelling: see G Orsini,
Coleridge and German Idealism (Southern University Illinois 1969).
68
Coleridges scientific writing demonstrated exceptional competence according to at least one eminent
German scientist (Von Hinuber), see Katritzsky (n 65) 263.
69
Eg T Hobbes, Leviathan (first published 1651, Yale University Press 2010); J Locke, Second Treatise on Civil
Government (first published 1690, Prometheus Books 1986); J-J Rousseau, The First and Second Discourses:
Discourse on Sciences and Arts and Discourse on the Origins and Foundations of Inequality (first published 1750, 1755,
St Martins Press 1964).
70
Orsini (n 67) 231.
71
ibid 233; Jim McKusick, Coleridge and the Economy of Nature (1996) 35 Studies in Romanticism 375.
72
ST Coleridge, The Friend, Collected Works, vol 4 (first published 180910, B Rooke ed, Princeton University
Press 1969) 351.
73
GT Shedd (ed), Aids to Reflection (New York 1858) vol I, 338; Orsini (n 67) 233.
74
K Mobius, The Oyster and Oyster Farming (1877, tr 1880, US Commission Fish and Fisheries Report
1880).
75
See CUM Smith, Coleridges Theory of Life (1999) 32 J History of Biology 31 (in which it is asserted
that Coleridge was almost alone in understanding the full depth of the connection between physical sciences
and humanities and his rejection of specialization in science, 32).
could the totality of science teach us about the meaning of life on earth? In that
endeavour he combined an interest in biology (Beddoes was later to coin the
term),66 zoology, botany, geology, physics, chemistry and religion.
Coleridges main work in this respect is Hints Towards a More Comprehensive
Theory of Life, completed in 1816 but published decades later, posthumously.67
This work is understood to have combined the insights he had gained from his
Clifton experience with lessons from a later and extended sabbatical in
Germany (when he collaborated with leading continental philosophers of
nature).68 A distinctive feature of Coleridges thought in this work is its
rejection of any appeal to a primordial state of nature popular throughout
parts of Europe at the time.69 According to Coleridge, humankind does not
rise from, or lead into, a natural state; rather, it evolves, and continually so. Life
is the moment-to-moment fruit of perpetual change, within complex parameters provided by the earth as a whole. Life arises from interactions among
organisms, chemicals, minerals and magnetic forces.70
Coleridges theory of evolution has been plausibly considered an early
contribution to ecological theory avant la lettre.71 That is because humans are
depicted in nascent ecological fashion as part of a multeity characterizing a
union of opposites.72 Vegetables, insects and animals are classes of living
being whose identity is defined by a process of individuation, in an oppositional
dynamic that is applicable to all organisms, from molluscs to man.73 The
mollusc is prominent in the work of Karl Mobius, whose Biocoenose
(depicting evolution of oysters in response to habitat) is considered by some as
providing the modern origins of the science of ecology.74 Whatever the
connection here, Coleridges theory of evolution was built upon by two quite
contrasting Victorian-era scientists, Charles Darwin (the son of Erasmus) and
Richard Owen (interpreter of fossils and inventor of the name dinosaur).75
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love poem in which Coleridge situated his feelings for a woman (Sara Fricker,
whom he was to marry, have four children with and later desert) in relation to
his feelings towards the earth. Specifically, the lover and the loved are a facet of
one Life.83 This is reflected in the sounds of the eponymous wind instrument
playing in the background of the lovers embrace:
Oswald Doughty aptly describes these difficult lines as expressing a rare fusion
of reflective thought and sensitivity to peaceful nature beauty.85 Nature
beauty is a concept that brings together various strands of Coleridges
liberalism.
For example, Coleridges The Nightingale (1798) approaches the significance
of nature beauty as an alternative to seeing nature as hostile to human
comfort, as to some extent it was seen as being at the time of the black death
and the mini ice age, when humans appeared to be in a state of hopeless battle
with brutal nature.86 The poem redefines the song of the nightingale,
traditionally treated as melancholy, as a source of joy (which gladdens green
earth).87 The optimistic message is that everywhere in natureeven in
seemingly inhospitable placesthere is something positive for the individual.
This is repeated in Frost at Midnight (1798). The poem tells the story of the
poets wakeful infant son, Hartley. His restlessness is eased by the looking up at
the moon and its lunar light cast over the land. Coleridge depicts himself as a
child of nature who can empathize with his son, and expresses the hope that
his son will be retain this affinity for nature when he matures into adulthood.88
Beyond the family unit, nature beauty is understood by Coleridge as being
inextricably linked with political liberty and the institutions of a free society.
France: An Ode (1798) contrasts the political architecture created to liberate a
(French) people with the protagonists experience of liberty within a Swiss
alpine mountainscape. The liberty aspired to by French revolutionaries (in
revolt against monarchy) is realized as superficial in comparison with the
authentic liberty the protagonist derived from communing with nature. Oh
Liberty, my spirit felt thee there! is the extremely romantic alpine denouement
83
Line 26.
Lines 4448.
O Doughty, Perturbed Spirit (Farleigh Dickinson University Press 1981) 81. Elsewhere it is pointed out that
the poem is a unique attempt to capture environmental form as part of a groundbreaking environmental art.
See T Morton, Of Matter and Meter (2008) 5 Literature Compass 310, 311.
86
On the origins of nature as a threat to human kind in enlightenment thought, see C Merchant, The Death of
Nature (Harper Collins 1983).
87
Line 10.
88
Holmes, Coleridge: Early Visions (n 18).
84
85
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89
Line 195.
Newlyn (n 77) 4.
91
Edwards (n 63) 2. See further n 104 and associated text.
92
In 1794. See Pantisocracy, letter to Southey, in Holmes, Coleridge: Early Visions (n 18) 299).
93
Holmes, Coleridge: Early Visions (n 18) 82. Dicey recognized this aspect of Benthams thought and its
influence on statute, Law and Public Opinion (n 4) 122.
94
See generally R Garner, Animal Ethics (Polity 2005) 1213.
95
He did not stop, as did Bentham, at extending the fraternity to all sentient beings (capable of feeling pain.
96
S Hartley, Anima Poetae from the Unpublished Notebooks of Samuel Taylor Coleridge (William Heinemann
1895) 94.
97
See n 58.
98
Line 80, Why lookst thou so? With my crossbow I shot the albatross. In a similar vein is The
Raven (1798) in which an oak tree that is home to a raven family is felled by a woodsman to make a warship.
99
Line 115.
100
Line 119120.
90
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107
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to preserve the stores, to guard the treasures, of past civilization, and thus to bind the
present with the past; to perfect and add to the same, and thus to connect the present
with the future; but especially to diffuse through the whole community, and to every
native entitled to its laws and rights, that quantity and quality of knowledge which is
indispensible both for the understanding of those rights, and for the performance of
the duties correspondent.120
an estate for the time being was steward of a trust for unborn generations and
a temporary recipient of the fruits of his forbears endeavours.114
The competing interest in progress is associated with commerce, industry
and the professions. Representatives from this interest grouping are seen as
suitably contained in a second, elected legislative chamber.115 Within the
context of the British constitution, Coleridge sees an ideal House of Commons
as comprising minor hereditary landed interests alongside a multiplicity of
personal intereststhe [elected] representatives of the commercial, manufacturing, distributive, and professional classes.116 Radical critics of Coleridge
are possibly mistaken in missing that Coleridge did not rule out a wide
franchise in respect of this chamber. However, he substantially departed from
Bentham (who advocated universal adult suffrage on a yearly electoral cycle) in
his advocacy of a broader bicameralism in which an unelected chamber limits
what the elected chamber can achieve.117 Bentham, on Coleridges scheme,
lacked adequate respect for the interest in permanence; he was too eager for
progress and not sufficiently mindful of the price of change.
There is in Coleridges scheme a third institution, for which he coined the
name Clerisy.118 The role of this institution, whose members comprise
scholars and church people, is to act as the beam of the scales.119 In one of
the most famous passages of Church and State, its function is expressed as
follows:
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This was largely a briefing paper, clarifying and summarizing the medical conditions
in the cotton factories, much of it hidden away in a Commons Select Committee
report of 1816 . . . It is not literary, but it is impressive in its detail, covering the
specifics of shop floor temperatures (up to 85 degrees), air pollution, and recorded
diseases among children (debility, rickets, scrofula, mesentic obstruction). It is
notable for the eminent medical authorities it cites, including several doctors that
Coleridge knew personally . . . 126
An early benefactor of his was the Wedgwood family of midlands industrialists. See Newlyn (n 77).
ST Coleridge, Bibliographia Literaria, Collected Works vol 7 (first published 1817, Princeton University
Press 1985) 413.
123
Quoted in Williams (n 120) 58.
124
R Holmes, Coleridge: Darker Reflections (Harper Collins 1996).
125
ibid. Two of these were published posthumously not long after Coleridges death (the other has been lost).
126
ibid.
127
Dicey, Law and Public Opinion (n 4) 224 n 2, referring to Coleridges role as interesting.
122
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The idea of a revolt against Bentham is apt to exaggeration, for the primacy
of material wealth found its chief expression in the ideas of Adam Smith and
128
J Zaring, The Romantic Face of Wales (1977) 67 Annals of American Geographers 397, 409.
Pontin, Nuisance Law (n 23).
Lord John Manners (by then the 7th Duke of Rutland) was born in Belvoir Castle, Leicester, to Lady
Elizabeth Howard (daughter of the 5th Earl of Carlisle) and John Henry (5th Duke of Rutland).
131
Later 7th Viscount Strangeford.
132
Later First Baron Lamington.
133
R Blake, Disraeli (St Martins Press 1967) 210; Roberts, Tory Paternalism (n 37) 333. Wordsworth, who
outlived Coleridge, saw Coleridges mind to have been a widely fertilizing, and the seed for the ideas of the
more educated within Victorian Britain, J Vigus and J Wright, Coleridges Afterlives (Palgrave 2008). In Law and
Public Opinion Dicey recognized Coleridges influence on JS Mill, except that he considered this influence
childish (n 4) 423.
129
130
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the Manchester School. However, the point is that Young England led a
transformation in which
the idealization of material growth and technical innovation that had been emerging
received a check, and was more and more pushed back by contrary ideals of stability,
tranquility, closeness to the past, and nonmaterialism.134
134
M Wiener, English Culture and the Decline of the Industrial Spirit (CUP 1981) 6. The Great Exhibition of
1851 is depicted not as the beginning of the dominance of the industrial spirit, but its end, when the romantic
counter-revolution became dominant.
135
Ridley comments on how Disraeli was not as deeply committed to factory reform as other founding
members of Young England, for whom it was the defining cause. J Ridley, Young Disraeli (Sinclair
Stevenson1995) 287.
136
Anthony Wohl, Endangered Lives (Methuen 1983) 144. Disraeli was less interested than Manners and
Smythe in factory reform, Ridley, ibid 287. Chadwick and Southwood Smith were utilitarnian sympathizers at
the centre of the Association.
137
See Roberts, Tory Paternalism (n 37) 333.
138
Conservative MP for North Staffordshire between 1841 and 1878, after which he was raised to a peerage
as Lord Norton. On the Young England connection, see JEG de Montmorency, Charles Bowyer Adderley
Oxford Dictionary of National Biography (online edition, March 2006) 5. Adderley was made President of the
Board of Health in 1858.
139
N Jones, The Plimsoll Sensation: The Great Campaign to Save Lives at Sea (Abacus 2006), 157, quoting
Henry Lucy, the political journalist.
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140
CB Adderley, Europe Incapable of American Democracy: An Outline Tracing of the Irreversible Course of
Constitutional History (Edward Stanford 1867).
141
Lord Selborne penned a lyrical ballad about the Tame, depicting Birmingham invading a consecrated
riparian space, quoted in Childe Pemberton (n 28) 143.
142
A-G v Birmingham Corporation (n 27) (see further B Pontin, Attorney-General v Birmingham Corporation:
The Secret Achievements of Nineteenth Century Nuisance Law (2007) 19 ELM 158. 500,000 was invested by
the defendant over 37 years of suspensions to the injunction aimed at facilitating the invention of a sewage
purification infrastructure.
143
Dicey, Law and Public Opinion (n 4) 243, industrious mills offended the aesthetic taste.
144
Henry Lucy, quoted in Jones (n 139).
145
M Pearce and G Stewart, British Political History, 18672001 Democracy and Decline (3rd edn, Routledge
2002) 79. Adderley was perceived by some contemporaries to have mishandled the Merchant Shipping Bill
(concerning what came to be known as the Plimsoll line) as a result of which his political reputation was
damaged.
146
E Beasley, Empire as a Triumph of Theory (Routledge 2005) 11231.
147
Montmorency (n 138).
148
ibid.
149
RCK Ensor, England, 18701914 (OUP 1966) 12425.
150
Montmorency (n 138).
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151
Pure air and pure water were aspirations which accorded with the increasingly
romantic spirit of the age (whilst also according with concerns with utility).
Disraeli and Adderleys leadership on these matters was thus politically astute,
winning the Tory Party election victory in 1874, according to Weintraub.152
The main legislative fruit of the collaboration between Adderley and Disraeli
during this administration (187480) was the Rivers Pollution Prevention Act
1876. That was based on the recommendation of the Royal Sanitary
Commission, which Disraeli had appointed (under Adderleys chairmanship)
in his first administration (in 1868).153 The House of Lords Bill of 1875 on
this subject was withdrawn in the face of industry opposition in the House of
Commons,154 but it was soon enacted with amendment, as a flagship measure
of Disraelis administration.
The 1876 Act has been dismissed by historians of environmental law as a
legislative failure.155 This is a reference to the concessions made to industry
needed to secure enactment, but Disraelis biographer (Buckle) is right to
describe it as an innovative measure having the object of preserving the bounty
of nature free and uncontaminated for the peoples enjoyment.156 Blake, for
the same reason, describes the Act as important.157 Crucially, Disraeli himself
saw it as a major test of his Young England political philosophy, and prioritized
its enforcement.158 For example, a government circular was issued to local
authority enforcement bodies drawing attention to their new responsibilities
under the Act. A number of prosecutions were authorized by Disraelis
Attorney-General (Sir John Holker QC). Perhaps most important of all, a
collateral policy of not authorizing expenditure on sewage infrastructure
without satisfactory pollution mitigation measures was adopted.159
In other fields of relevant law, Disraeli found different aristocratic allies. In
the arena of Alkali legislation, he principally collaborated with the dynastic
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The sanitary and the economical consequences of this state of things are frightful
enough, but most people will agree with Lord Derby that as to the moral effect there
is also something to be said. When it can be asserted by a sober man that the whole
natural beauty of the country is destroyed and that it is disfigured to a hideous
degree we cannot refuse to agree with him that a man who can neither grow a flower
in his garden nor keep a foul stench out of his house is not in circumstances to
increase that civilization which one would like the see among the poorest classes of
this country.162
This link between flower power and civilization is one of the clearest
expressions of the influence of Coleridges idea of nature beauty as a moral
(as well as aesthetic etc) construct.
Clearest of all in its expression of the Coleridgean idea of nature beauty is
the legislative history of the Sea Birds Protection Act 1869. The background to
this Act is that in the 1860s fashionable womens hats were adorned with
160
161
162
Eric Ashby and Mary Anderson, The Politics of Clean Air (CUP 1981) 39.
ibid.
The Times 22 November 1878.
Stanley family. Edward Smith-Stanley (14th Earl of Derby) and his son
Edward Henry Stanley (Lord Stanley, later the 15th Earl) were the catalysts for
initial statutory intervention and subsequent statutory reform in this field.
Specifically, the first Alkali Act of 1863 was sponsored by Lord Stanley,
following recommendations of his fathers House of Lords Select Committee
(the 14th Earl was its chair). It was an unprecedented measure in reflecting
Parliaments recognition of the intrinsic value of protection of rural vegetation
(in ways that are discussed below). But the Act was also tentative in that it was
time-limited (for five years) and confined to pollution of one environmental
medium (air) from one polluting industry (utilizing the Leblanc chemical
process). Disraelis crucial contribution wasin his first administration of less
than a yearto have found enough space to secure the Alkali Renewal
Act 1868, which put this intervention on a permanent footing. And within
months of Disraelis second administration, the Act was extended to encompass a broader range of air pollutants and industrial processes (the Alkali Act
1874).
Towards the middle of this second administration Disraeli appointed the
Royal Commission on Noxious Vapours to consider the case for a radical
extension of the Acts coverage.160 The Royal Commission provided the
recommendations on which basis the Alkali Works etc Act 1881 was enacted by
Gladstones Liberal Party administration, with cross-party support.161 The
term intrinsic is used above in relation to the nature conservation dimension
to these enactments, which applied to a thousand of the countrys most
polluting large factories. Its meaning is conveyed by a comment in The Times
relating to the 15th Earl of Derbys justification for these measures:
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Wilton justified statutory regulation for the birds sake165 and for Gods
sake,166 contrasting the inauthentic beauty of plumage couture with that of
plumage in its god-given avian setting. That distinctly Coleridgean synthesis of
aesthetics, morality and spirituality lay behind the masterly167 Sea Birds
Preservation Act which, in time, was added to by other nature conservation
enactments.
The portrayal of the Young England movement as a major influence on the
law in these numerous respects departs from the prevailing view in the
literature. Raymond set the dismissive mould of the orthodox interpretation of
the law-making impact of the movement in his claim that Young England left
no mark on the statute book. It produced no definitive effect on the course of
social development.168 Blake conceded that the movement influenced Disraeli,
but was caustic in his comment on the way in which it was mixed up with a
good deal of ecclesiastical flummery, medieval bric-a-brac and gothic rubbish.169 Others have cursorily disposed of the movement as nonsense170 or
plain silly.171 The history of environmental law provides a major problem for
that analysis.
More realistic is the appraisal of Asa Briggs. Young England is seen by him
as a formative part of a pervasive revolt against commercialization in which the
163
164
165
166
167
168
169
170
171
incredible plumage from wild birds, which placed a strain on the migratory
bird population. An even greater threat came from the male pastime of taking
weekend summer train excursions from the cities to the coast to shoot sea
birds.163 Dozens of species of at-risk birds found an ally in naturalists,
clergymen and landowners who formed the Sea Birds Preservation Association
in 1868, from which the Royal Society for the Protection of the Birds later
emerged.
The tone of moral outrage is captured most powerfully in a early poem
written by Reverend Richard Wilton, entitled A Plea for the Sea Birds:
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We can go further and say that in the field of law protecting nature beauty, the
Young England approach to property exerted a very substantial influence.
The figure who is most emblematic of the impact of Young England property
theory in this setting is Algernon George Percy (181099). He was the 6th
Duke of Northumberland from 1867.175 That was the top rank176 within the
aristocracy, but until now, this member of the House of Percy has been
considered by historians to have left no mark on the statute book. That view
requires revision in the field at hand. As regards the innovative system of
integrated pollution control under the Alkali Act 1881, this was the fruit of a
campaign by the Northumberland and Durham Association for the Prevention
of Noxious Vapours, of which the Duke was president.177 The Dukes holding
of 180,000 acres was double the extent of the five other regional peers
combined, who were Vice-Presidents of the organization.178 In 1872 the Duke
sponsored a precursor to the Rivers Pollution Prevention Act 1876.179 Beyond
pollution control, the Duke sponsored the Sea Birds Preservation Act 1869,180
which set in train a broad body of nature conservation law.
172
Young England recognized that the supreme possessor of property is the state [crown]
to which all owe obedience. This concept, common both to the Middle Ages and the
[nineteenth] century, never completely disappeared, though, for a century, it only just
survived, a small and spluttering flame, fed by the Romantic and Medievalist
tradition, of which Young England was in many ways the apotheosis.174
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Further, the Dukes estate was managed within a common law framework in
keeping with Coleridgean ideas about nature. Like many aristocrats at this
time, the Duke inherited an estate (Alnwick Castle) that was landscaped in
neo-gothic style in the 18th century to inspire among its inhabitants a cooperative relationship with nature. The first Duke had spared no expense in
commissioning Lancelot Capability Brown to transform parts of the wilderness into a more pastoral countryside believed to be reminiscent of the middle
ages.181 The estate was lucrative as well as beautiful, but how the Duke (and a
small number of other top aristocrats) invested great rental income is also
rather Coleridgean in its concern with economic stability above economic
growth. THS Escott is much quoted for his comment that the Duke (and a few
approximate equals) took pride in keeping a standing balance [in West End
banks] for which they never received six pence.182 One possible interpretation
of this is that the Duke was ostentatiously flaunting wealth. But when situated
in context of his interest in nature, it is arguable that the Duke was seeking
security, protection and steady state.
To claim as I do that the law relating to industrial pollution and nature
conservation was the product of a resurgent aristocracy awaking from its
Georgian complacence to grasp a new (or rather old) broadly romantic
ideology is not to ignore the potential complicity of the industrial bourgeoisie
and the Manchester School underpinning it. However, JB Priestley makes a
very important point that fits in well with this analysis in his comment that the
influence of the Manchester School and the pursuit of profit was weakened by
allure of the romance of the land:
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6. Conclusions
It is fascinating to reflect on the significant extent to which intellectual ideas
within the first industrial nation placed value on pollution control and nature
conservation. The foregoing examination of 19th-century law in this field offers
a defence of Diceys core thesis that legal interventions were shaped by ideas,
rather than by the immediate exigencies arising from problems presented by
industrialization (as many have suggested). Dicey neglected to mention any of
the relevant common law and statutory provisions discussed in this article. Yet
that was not because there is anything fundamentally difficult about these laws
in terms of his thesis. On the contrary, as Coyle and Morrow have recognized,
behind the veneer of a seemingly chaotic response to challenges arising from
industrialization lies a body of law with firm philosophical foundations. And
like Dicey, these scholars attach influence to the diverse ideas of utilitarianism
and natural law theory.
If there is a criticism to be made of Diceys analysis and later work of
environmental law historians, it is that it downplays the influence of romantic
conservatism, which finds its fullest expression in the work of Coleridge.
Without detracting from Benthams utilitarianism, which supplied the rationale
for evidence-based law promoting happiness as far as it is connected with
nature, Coleridgean ideas were equally influential in different ways. They
provided the justification for intuitive laws concerned with safeguarding nature
beauty, revolving around notions of trust, inter-generational responsibility and,
overall, balance. This discovery adds to the subtlety and richness of Diceys
analysis, because it illustrates the cross-currents of opinion that Dicey
184
185
186
the possibility that Victorian Britain was respectful of nature because of the
scope for understanding the invisible hand to have a green thumb.184
Desrochers cites the Liberal Party MP Dr Lyon Playfair, who assertedin
Lockeian parlancethat nothing in nature [should be regarded by the
manufacturer] as worthless, and that as competition becomes keen . . . waste
products may become the largest source of profit.185 However, Desrocher
ultimately rejects an explanation of clean technologies and low waste practices
as the product of market forces alone. They were not only based on price
signals and resulting profits and losses, but also on private property rights and
the rule of law.186 Desrocher sees rule of law best reflected in the common law
(of nuisance), but that is not inconsistent with the emphasis in this article on
both common law and statute, working alongside one another, underpinned by
the seminal ideas of Bentham and Coleridge.
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187
188
189