5 Environmental Law-Making Public Opinion in Victorian Britain: The Cross-Currents of Bentham's and Coleridge's Ideas

Oxford Journal of Legal Studies, Vol. 34, No. 4 (2014), pp.
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
Downloaded from http://ojls.oxfordjournals.org/ at University of Toronto Library on November 21, 2014
Environmental Law-Making Public

Opinion in Victorian Britain: The
Cross-Currents of Benthams and
Coleridges Ideas
760
Oxford Journal of Legal Studies
VOL. 34
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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Environmental Law-Making Public Opinion in Victorian Britain 761
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).
Benthamism or individualism.7 This then gave way to collectivism during

the period 18651900 (to which Benthams influence was also attributed).8
Though Dicey describes distinct periods of thought, his analysis acknowledges
that there are always counter-currents and cross-currents of opinion, and that
no opinion is dominant to the exclusion of others.
Pollution and nature conservation laws of the Victorian period under focus
in this article are not touched on in Diceys analysis.9 This is an oversight to
which some commentators who are critical of Diceys fundamentally intellectual approach have attached great significance. In particular, those writing
specifically within the discipline of 19th century government growth have
argued that laws addressed to industrial pollution and other threats to nature
were palpably not influenced by the ideas of Bentham or indeed any seminal
theoretician. Rather, they were the spontaneous and necessarily piecemeal
response to various unforeseen problems arising from steam-powered industrialization.10 For this reason Dicey is considered by some to have overintellectualized the law, and underestimated its banality.
This view of relevant law as lacking intellectual rationale is widely shared by
modern environmental lawyers. In his book Environmental Law, Richard
Burnett-Hall qualifies his suggestion that Britain can be rightly proud of the
pioneering legislation it introduced in the mid-19th century11 by pointing to a
legacy of uncoordinated regulation [which] persisted right up to the 1980s.12
Similarly, in the first textbook devoted to the topic of environmental law, David
Hughes placed the discipline (environmental law) in inverted commas by
virtue of what he considered the fragmented, disparate character of early law
and its consequential lack of intellectual coherence.13 His powerful comment is
that 19th-century law relating to the environment was not a coherent, logical
body of principles and rules.14 A recent study commissioned by the United
Kingdom Environmental Law Association echoes Hughes sentiment that the
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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.
development of environmental law. This self-styled terrae fillius (son of the

Earth)18 articulated a theory of life, of liberalism, and of constitutionalism, that
supplies a broadly natural law justification for legal protection of nature, which
is quite different from the market-oriented tradition of Locke. Unlike Locke,
Coleridge emphasized a trust-based conception of property in land, which
placed land above the market in order to better contribute to its conservation.
And Coleridge pioneered an approach to nature as the basis of mental, as well
as material, wealth. This he achieved through the concept of nature beauty,
which is a moral, aesthetic, social and spiritual concept whose character is
elucidated, and whose influence is then explored.
The law-making influence of Coleridges philosophy is examined (in the final
section) with reference to what is identified as the chief conduit of his ideas
during the Victorian era, namely the Young England movement. Historians
have tended to dismiss this silly ass19 group of privileged young men, who
advocated neo-Chaucerian values of chivalry and country rituals as a way of
checking the vulgarity of capitalism, as of little importance to the development
of any area of law.20 Yet it is evident that the movement shaped common law
and statutory interventions in the field in at least as great degree as the
purveyors of Benthams ideas.21 This part of the discussion connects with the
revisionist thesis of David Lloyd Smith,22 where it is suggested that Young
Englanders deployed medieval notions of hierarchy descending from the crown
to produce a uniquely centralized (Smith does not go so far as to suggest
environmentally attuned) brand of property theory geared around the
paternalistic country estate.
It is concluded that 19th-century environmental law is grounded in a
powerful alliance of Bentham and Coleridges ideas. These ideas converged
around the protection of nature from polluting industrial enterprise (and other
human threats) to provide a pluralistic and resilient philosophical foundation
for various relevant laws, in a vindication of Diceys broad thesis that ideas
mattered and his specific thesis that Toryism and Benthamism enjoyed a
substantial share of influence. That is not to say that these philosophical
streams have proved enduring, for they have not. A comparison of past and
present is beyond the scope of this article, save to say that it is clear that the
romance of law is at best a counter-current today, whilst the same can be said
to a greater or lesser extent of utilitarian ideas. Indeed, it is not at all apparent
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that present day environmental law has a philosophical underpinning of any

kind, in contrast to the past.
2. Pollution and Nature Conservation Law in the 19th Century
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
Pontin, Nuisance Law (n 1) 101718.

W Kostal, Law and English Railway Capitalism, 18251875 (Clarendon Press 1994) 363; FML Thompson,
English Landed Society in the Nineteenth Century (Routledge 1963).
25
Kostal ibid.
26
Gerard v Muspratt (Liverpool Assizes, 4 September 1946) Liverpool Mercury Supplement, cited in AWB
Simpson, Victorian Judges and the Problem of Social Costs: Tipping v St Helens Smelting Ltd in Leading Cases in
the Common Law (Clarendon Press 1995) 187.
24
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.
Should the convenience of one man be considered before that of millions,

exclaimed the Corporations advocate at the first trial. Yes shouted counsel for the
opposition [Adderleys counsel]; for the grandeur of English law is, that millions
may not interfere with the comfort and well-being of a single individual.28
This reasoning benefits from contextualization, for it is increasingly apparent

that the notion of the single individual in relation to the nuisance claimants of
this period was a convenient myth. This and other nuisance claims were
orchestrated by patrician proprietors of country estatesie the same people
who were controlling the details of the location of railways and injuncting
factory pollution. These were not individuals as much as family dynasties,
whose landholdings supported substantial communities (Adderleys Hams Hall
estate was home to more than 20,000 people).
Dicey recognized the centrality of the common law to the analysis of lawmaking opinion,29 yet he addressed neither nuisance law, nor the statutes
which, as it were, codified the clean technologies invented by polluting
enterprises to comply with the common law. For example, the Alkali Act 1863
and subsequent measures of 1868, 1874 and 1881 were criminal administrative
laws that were premised on the technological practicability of the condensation of acid gas which ingenious enterprises had proofed in order to be
released from nuisance injunctions or the threat thereof. The minimum
standards of practicable industrial performance for the benefit of the public
which these statutory interventions required of regulated enterprises cohabited
with more specific, and potentially higher, standards enforceable by proprietors
using nuisance law.30
27
A-G v Birmingham Corporation (1858) 70 ER 220, 4 Kay & J 528.

WS Childe-Pemberton, Life of Lord Norton (John Murray 1909) 14. This is a quotation from the claimants
diarized report of the action.
29
Diceys analysis in Law and Public Opinion (n 4) 36061 encompassed both common law and statute law:
As all lawyers are aware, a large part, and many would say the best part of the law of England is judge-made
lawthat is to say, consists of rules to be collected from the judgments of Courts . . . The amount of such judgemade law is in England far more extensive than a student easily imagines.
30
As explicitly acknowledged by the Alkali Inspectorate, eg in Alkali Inspectorate, Intermediate Report
(1875) 8.
28
Injunctions were granted to aristocrats virtually as of right in this setting.

Likewise, rivers were similarly protected by nuisance remedies. In the now
well-known Adderleys case (A-G v Birmingham Corporation),27 a sewage
undertaking responsible for draining one of Britains largest provincial towns
was held liable for pollution of the River Tame notwithstanding the
overwhelming public interest (the defendant argued) in towns being able to
freely dispose of noxious raw sewage in the countryside:
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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
This patrician estate stewardship paradigm unfolded within a largely common

law framework of land law, including landlord and tenant law. For instance,
tenant farmers were under leasehold obligations to conserve hedges and
woodland, while tenant manufacturers were under no-nuisance clauses in
their tenancies so as to ensure vegetation was not damaged by economizing on
pollution control.
In the relatively limited number of cases where nature could not easily be
compartmentalized into enclosed tracts of real estate and thus protected
through existing land law, Parliament intervened to fill in the gaps. The Salmon
Fisheries Act 1861 was addressed to the careful management of a migratory
fish species, while the Sea Birds Preservation Act 1869 was addressed to the
protection of migratory birds in coastal areas. The Wild Birds Protection Act
1880 contained wide-ranging statutory protection of wild species of all kinds.
None of these replaced common law property rights with respect to
management of flora and fauna within a country estate. Rather, statute law
extended the protection afforded under the common law in respect of problems
that did not readily lend themselves to a common law solution, in a
heterogeneous arrangement.
Diceys neglect of these areas of law was not an issue that initially occupied
the commentary on Law and Public Opinion. Commentators immediately
embraced with enthusiasm Diceys notion of ideas shaping laws. One early
31
Pontin, The Common Law Clean Up (n 1) 19197.

Anon, Report of the Committee, Nature Conservation and Nature Reserves (1944) 32 J Ecology
45, 49.
32
The same dynamic is apparent in relation to the Rivers Pollution Prevention

Act 1876. The criminaladministrative prohibition on the discharge of
poisonous, noxious or polluting matter into watercourses was based on a
political acceptance that a technological remedy for pollution existed in most
instances and that legislation outlawing pollution would not so much halt
industrial development as ensure responsible adoption of pollution control
techniques. Corporations spent hundreds of thousands of pounds employing
clean technology that was invented with a view to complying with injunctions
protecting riparian rights to purity of watercourses, notably the various forms
of sewage purification that enabled town drainage authorities to comply with
the 1876 Act (and the common law).31
Nature conservation law (beyond law directed at pollution prevention and
control) also had complementary common law and statutory foundations. The
common law (assisted by enclosure legislation) facilitated an
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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.
Critics of Diceys argument that Bentham influenced the development of mid

to late 19th-century law have sought support from areas of environmental law,
as evidencing the laws banality intellectually speaking. The leading critique of
Diceys analysis in relation to the Alkali Acts is that of McLeod. His argument
is that the Alkali Acts 186381 owed little or nothing to the ideological
discussions of the Benthamites,42 nor indeed was this important area of law
influenced by any other stream of philosophical opinion. To that end McLeod
cites an article in The Times, where it is reported that Chadwickiansand by
implication Benthamites generallywere hostile to this area of statutory
intervention.43
One problem with McLeods reasoning here is that Benthams philosophy
was not the same as Chadwicks. Dicey is concerned with the age of Bentham,
and what Chadwickians thought of the Alkali Acts is not quite the point.
Indeed, it is telling that McLeod does not mention a more pertinent article in
The Times where it is reported that the main campaigner for this legislation, the
15th Earl of Derby, was inclined to the side of what is commonly called
utilitarianism and laissez faire:44
[Lord Derby] takes by preference the economic and common sense view of public
questions and he is, perhaps, the man in all England who is least likely to propose any
measures which would embarrass our manufacturers for the sake of preserving or
restoring the beauty of the landscape in Lancashire and Cheshire.
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.
3. Benthamism in Relation to 19th-Century Environmental Law
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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.
scientific, hard-headed approach, which recognized the primacy of free trade,

subject to strictly exceptional criminal administrative law aimed at control of
pollution in the public interest.45 However, hard-headed Smiths knowledgeable centralized governmental inspection funded out of general taxation is
more than a little collectivist in character. It is not necessary to resolve this
issueif indeed there is a resolutionfor what matters most is that there is
more substance in the claim that Benthams ideas (of one kind or the other)
supported this area of law than McLeod countenances.
Looking specifically at the legislative process, Benthams support for public
interest laws based on social inquiry data evidencing utility is well illustrated by
alkali and many other areas of environmental legislation.46 For example, the
1862 House of Lords Select Committee on Noxious Vapours derived its
recommendations for alkali legislation from 10 sessions of oral testimony given
by 48 witnesses drawn from landowning, manufacturing and scientific ranks.47
That produced 240 pages of transcribed testimony which was made open to
the public to assure everyone interested that law reform protecting the
countryside from industrial acid gases was conducive to utility. The 1878 Royal
Commission on Noxious Vapours was even more painstaking in its coverage of
data. This heard evidence over a period of 15 months, during which 198
witnesses answered a total of 14,205 questions, generating 561 pages of
transcribed oral testimony.48
I have mentioned above that alkali law was not exclusively a statutory affair,
for it combined statute and common law. Bentham (as is well known)
disapproved of the common law as a matter of form, but the content of the
common law at pivotal junctures is reconcilable with the utility calculus in a
least one important respect, concerning remedies. Specifically, the injunction
awarded to Sir Charles Bowyer Adderley in AG v Birmingham,49 which
required Birmingham Corporation to cease the disposal of raw sewage into the
River Tame, appeared on its surface a drastic measure which was indifferent
to public misery.50 Yet the use of suspensions to the injunction over a period
of 37 years enabled the court to reconcile the welfare of Adderley and the
thousands of residents of his estate with that of the town and its need for
770
VOL. 34
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.
drainage to cater for a quarter of a million citizens.51 Bentham had difficulty

with the idea that property (as anything) was protected as of right as opposed
to interest, but the conscious judicial balancing of interests in the award of an
injunction on a suspended basis was pointedly utilitarian in character.
Benthams influence can also be seen in respect of the Rivers Pollution
Prevention Act 1876, which critics of Diceys historiography have not
mentioned. As with the Alkali Acts, this was a measured response to an
issue of a threat to the environment insofar as it was based on five major public
inquiries.52 The preponderance of the evidence of these inquiries indicated that
clean rivers were a valuable resource worth protecting in the public interest.
Polluted rivers could foul industrial machinery that depended on clean water,
kill fish (a source of sustenance) and spread disease. There were also nonutilitarian justifications of a spiritual and aesthetic character which are
returned to later. But the point to stress at this juncture is that based
on these inquiries utilitarianism courses through the Rivers Pollution Act
1876. Indeed, one can go further and note a consistency across statutory
controls here as lying in the unified the terms of reference of the Chief
Inspector of Alkali Works, which evolved to cover pollution of air, water and
land.53
Not all relevant statutes conform to the model of measured legislation based
on evidence about what is conducive to utility. The Sea Birds Protection Act
1869 was the product of moral outrage arising from a scandal, rather than
sober social inquirybut that was exceptional.54 And in terms of substance,
the passage through Parliament of the Sea Birds Preservation Bill was eased by
utilitarian arguments concerning the human interest in a healthy sea bird
population in order to sustain fisheries for human consumption and also to
protect shipping interests (assisting with coastal navigation).55 Later extensions
of this legislation emphasized the utility of wild birds as controllers of insect
populations (and thus useful as pest control).56
The unresolved issue of whether the relevant Benthamite ideas are to be
classed as individualistic or collectivist is less important to the present analysis
than the extent to which, as Coyle and Morrow point out, Benthamism (of
whatever hue) is an instrumental philosophy that does not treat environmental
WINTER 2014
4. Coleridges Conservatism in Relation to Nature

Coyle and Morrow are interested in natural law theory as supplying the
normative foundation for those instances where relevant law sometimes
exceeded a purely instrumental approach.59 Modern terminology is used by
these scholars to explain Lockes position as follows. Locke is understood as
advancing a nascent idea of sustainable development which embraces
economic growth within environmental constraints or, put differently, which
encourages markets that are structured by law to respect the finite character of
natures bounty.60 By contrast Coleridge, who is not mentioned by Coyle and
Morrow, resisted an approach to property law in terms of its core function
being to service markets. One specific contrast is that Coleridge viewed the
land as ideally held on trust across generations. A second is that he departed
from Lockes rationalization of lands value in terms of its capacity to sustain a
basic physical existence for humans. Coleridge identified higher needsfor
beauty, for virtue, for psychological well-being, to which healthy land was
considered central. Coyle and Morrow use modern language to contrast
Lockes idea of sustainable development with a more radical deep green
philosophy,61 and it is a purpose of this section to introduce Coleridges
thought in deep green terms.
My suggestion that Coleridge is a thinker of philosophical stature pertinent
to the environment is by no means novel in general terms. It is to be situated in
the context of a line of 20th- and 21st-century revisionist literature, beginning
(in the 1920s) with the study of Coleridge by the idealist philosopher John
57
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
protection as of intrinsic value.57 By this is meant that it supports legal

interventions to protect the environment only insofar as these are useful to
humans. In contrast, John Locke (16321704) is portrayed by these scholars as
developing intrinsic environmental law in which there is a higher order of law
beyond a preoccupation with the satisfying of human interests. Particular
significance in that regard is attached to Lockes assault on waste, as expressed
in the aphorism that nothing was made by God for man to spoil or destroy.58
The remainder of my analysis examines a higher order natural law theory that
potentially offersand is indeed argued to offera more sustained and
influential engagement with nature conservation than is to be found in the
work of Locke.
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VOL. 34
A. Coleridges Scientific Theory of Life

The subject matter of this article involvesif not indeed revolves around
some understanding of the relationship between humans and what would today
be called the physical sciences (but in the past would have been generally
classed as philosophy or perhaps one of the arts). Some of Coleridges most
important scientific ideas were formulated at the turn of the 19th century
during his stay at the Pneumatical Institution in Clifton (Bristol).65 For about
a year in 179798 he lived under the roof of medic-landlord (and founder of
the Institute) Thomas Beddoes. Beddoes hosted Coleridge and a wider group
of what Mike Jay has evocatively described as Britains sons of genius,
including Erasmus Darwin (17311802), Humphry Davy (17781829) and
James Watt (17361819). Coleridge was recognized by his peers as the most
energetic, informed and inspirational member of the collaborators, and indeed
the scientific question he posed was the most ambitious imaginable. What
62
JH Muirhead, Coleridge as Philosopher (Allen and Unwin 1930) preface.

P Edwards, The Statesmans Science: History, Nature and Law in the Political Thought of Samuel Taylor
Coleridge (Columbia University Press 2004). See also Douglas Headley, Coleridge, Philosophy and Religion (CUP
2000) 21.
64
FR Leavis, Mill on Bentham and Coleridge (Chatto and Windus 1950).
65
M Jay, Atmosphere of Heaven: The Unusual Experiments of Dr Beddoes and his Sons of Genius (Yale University
Press 2011) 11421. The pneumaticals were based at 3 Rodney Place, Clifton, with a library of over a thousand
books (which suited Coleridge qua library cormorant (117)). See further L Katritzky, Coleridges Links with
Leading Men of Science (1995) 49 Notes and Records of the Royal Society of London 261.
63
Henry Muirhead.62 Muirhead praised the multifarious and miraculous writing

of Coleridge on the meaning of life and of humankinds place on earth. Most
recently, Pamela Edwards depicts Coleridge as a natural law theorist of a more
organic character than Locke, who has been unnecessarily and undeservedly
overshadowed by Lockes private contractualist approach.63 By organic
Edwards does not necessarily mean environmental, but in my analysis
below it is argued that working in harmony with the natural environment is a
fundamental imperative articulated within Coleridges philosophy, the influence
of which is explored later.
Three aspects of Coleridges organic natural law theory merit particular
attention. First, Coleridges scientific idea of one life in which all life on earth
is understood as the product of evolution in response to habitat. Second,
Coleridges conceptualization of the various ways in which a liberal society is
dependent on a co-operative relationship with nature. Third, Coleridges neoterritorial constitutional idea of a steady state directed at balance or
equilibrium. These interlocking ideas, though quite different from those of
Bentham, need not be understood as inconsistent with them. Rather, as JS Mill
explained, it is feasible to understand Coleridge and Bentham as covering a
spectrum of ideas, the interplay of which contributed to a diverse and resilient
body of ideas for tackling the contemporary (and imminent) challenges.64
WINTER 2014
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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VOL. 34
B. Coleridges liberalism in relation to Nature

Notions of stewardship contain politicalmoral value judgement(s) pertaining
to the relationship between humans and wider nature. Coleridge articulated his
idea of these values through poetry, because he did not consider it was possible
to express the interrelationship between human beings and wider nature as well
in any other literary form. Poetry, Coleridge wrote, is the best words in the
best order.81 His belief was that poetry gave access to truths about nature that
were beyond prose. As Percy Shelley later observed in connection with
romantic poets more generally, the perceived epistemological force of poetry
was bound up with that of reverie:
Those who are subject to a state called reverie, feel as if their nature were dissolving
into the surrounding universe, or as if the surrounding universe were absorbed into
their being. They are conscious of no distinction.82
Indeed, it was through romantic poetry that Coleridge developed an idea of

liberal society as grounded in a co-operative relationship with nature.
A starting point in elaborating on Coleridges nature-oriented liberalism is
the extraordinary poem Eolian Harp (an early composition of 1795). This is a
76
M Hale, The Primitive Organisation of Mankind (William Shrowsbury 1677).

For Erasmus Darwins view on Coleridges redundant references to God, see Mary Anne Perkins, The
Religious Thinker in L Newlyn (ed), Cambridge Companion to Coleridge (CUP 2002).
78
Jay (n 65) 194 captures this well in his description of the social chemistry between Coleridge and Davy.
By creating space for an ineffable vital force behind the visible world, they enabled science to shake off the taint
of godless materialism that had become so damaging to it.
79
Newlyn (n 77) Introduction.
80
Albeit a different place, with Coleridges evolutionary theory appealing to the radical Christian movements
of the Victorian era, notably the Oxford Movement and Christian socialism. J Cromer, Editors Introduction in
Coleridge, Church and State, Collected Works, vol 10 (Princeton University Press 1976).
81
HN Coleridge (ed), Specimens of the Table Talk of the Late Samuel Taylor Coleridge (1901) 76.
82
PB Shelley, On Life in J Shawcross (ed), Shelleys Literary and Philosophical Criticism (Froude 1909) 56,
quoted in RA Forsyth, The Myth of Nature and the Victorian Compromise of Imagination (1964) 31 ELH
213, 215.
77
Religion and natural science are closely connected in much of Coleridges

writing, and thus the extent to which Coleridges theory is to be understood as
a break from the Christian stewardship doctrine of Matthew Hale (160976) is
uncertain.76 Erasmus Darwin considered that Coleridges Christian beliefs
obscured a brilliantly radical, secular view of evolution which was quite distinct
from anything that would have occurred to Hale.77 However, Coleridge did not
see God as a superstition (as did Darwin). Rather, he embraced what Davy
called the meta-metaphysical idea that there is a divine order within natural
life.78 This brought Coleridge close to Hales view, and distanced him from
Darwins humanistic approach. Coleridge shared Hales view of humans as
having a God-given nobility,79 encompassing a care for others and a wider
stewardship of the earth. Coleridge and Hale thus occupy a place on the
spectrum of Christian stewardship thought.80
WINTER 2014
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
And what if all of animated nature

Be but organic Harps diversely framed,
That tremble into thought, as oer them sweeps
Plastic and vast, one intellectual breeze,
At once the Soul of each, and God of all?84
776
VOL. 34
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
of this work,89 which Lucy Newlyn convincingly interprets as re-defin[ing]

liberty in terms of the minds harmonious interaction with the natural world.90
Edwards makes a broader point when she describes Coleridges idea of the
state as modelled on the principles of organic nature.91
Interspecies relations are addressed in the poem To a Young Ass (1794, a very
early composition). This is a comic composition, which purports to treat the
equine subject as the poets equal (Poor little foal of an oppressed race . . . I hail
thee BROTHER!). Nevertheless, it is an illustration of the quite serious
political scheme Coleridge and Robert Southey hatched of communal living
embracing all the beings within the world. They named it pantisocracy92
meaning rule by everything or all. I call even my Cat Sister in the Fraternity of
universal Nature wrote Coleridge, to convey the meaning of pantisocracy and
its comedy.93 Clearly, Bentham and Coleridge shared some common ground
here, for they each embraced the idea of animal suffering, in a dismissal of
Cartesian materialism.94 Yet Coleridge went deeper in positing the idea of a
universal community of species.95
Coleridge viewed predation as fundamental to lifes cycles and as benign, so
long, that is, that all creatures obey the great game-laws of Nature, and fish
with nets of such meshes as permit many to escape, and preclude the taking
of many.96 There are elements of Lockes zero waste theory in this97not
taking more than one needs so as to create excess. But to repeat, Coleridge is
concerned with nature as food for thought, as well as material sustenance. This
is illustrated well by The Rime of the Ancient Mariner (yet another of Coleridges
1798 opus). The poem begins with a sailor shooting a sea bird (an albatross) in
a gratuitous, impulsive act of nature harm.98 That is followed by an imagined
marine catastrophe. The ship is beset by foul mist, wind changes and scorching
heat. Mutant animals (slimy things did crawl with legs)99 emerged from
polluted water (The water, like a witchs oils/ Burnt green, and blue, then
white).100
WINTER 2014
C. Coleridges Territorial Constitutional Theory

Coleridges vision of the ideal constitutional arrangement for a society that cooperates with nature is contained in a late work, On the Constitution of Church
and State.104 The work is a defence of a mixed constitutional settlement in
which legislative power (the book does not explicitly touch on the role of the
courts) is shared between the trustees of leading family estates, the capitalists
who leased land from these estates, mercantilists, intellectuals who worked in
universities, ecclesiastical institutions, and the population at large (through a
degree of electoral representation). Old Toryism finds some expression, but it
is not a facsimile of Blackstone and Burkes conservatism, either in substance
or method. As regards method, Coleridge foreshadows the principled
approach that Dicey was to attempt a generation later, in Introduction to the
Study of the Law of the Constitution.105 Like Dicey, Coleridge constructs an idea
of constitution with reference to first principles.106 Coleridge approached the
constitution as existing as an idea, comprising principles which are comprehensible to actors, and which are reflected in laws.
101
Alexis de Toqueville, Journeys to England and Ireland (first published 1833, 1835, Yale University Press
1958) 105.
102
See a helpful comparison with Mary Shelleys Frankenstein, considered partly inspired by this composition
of Coleridge: Beth Lau, Ancient Mariner and Frankenstein in N Roe (ed), Samuel Taylor Coleridge: The Sciences
of Life (OUP 2001) 210. Each work is understood to be addressed to the devastating emotional consequences of
neglect of the importance of a loving, harmonious co-existence with people and other living things.
103
D Vallins, Coleridge and the Psychology of Romanticism: Feeling and Thought (Palgrave Macmillan 1999) 1.
Coleridge is unique . . . in his fascination with psychology; and unique, we may add, in psychologizing the price
of harm to nature.
104
ST Coleridge, On the Constitution of the Church and State, According to the Idea of Each (Hurst, Chance and
Co 1830).
105
Dicey, Law and Public Opinion (n 4) ch 1.
106
Coleridge, Church and State (n 104) 19, [A] constitution is an idea arising out of the idea of a state . . . We
speak . . . of the idea existing . . . as a principle . . . existing in the only way in which a principle can exist in the
minds and consciences of the persons, whose duties it prescribes, and whose rights it determines (Coleridges
emphasis). The quotation from Shakespeares Troilus and Cressida regarding mystery in the soul of the state
which prefaces the work creates an expectation of mysticism which is soon dispelled through the attempt to build
a constitution from first principles. On the place of ideas, and the idealist philosophical method of Coleridge, see
Newlyn (n 77) ch 11. This is in contrast with Burkes emphasis on expedience, see Newlyn, ch 10.
Though redolent of the terrible scenes of rivers pollution de Tocqueville and

Engels were to separately to evoke in relation to 1830s Manchester (the former
referred to fetid, muddy waters, stained with a thousand colours),101 the key
point is that Coleridge is not describing a real environmental catastrophe, or
for that matter a prophesy of one in future. The pollution referred to in the
poem is a reflection of mental breakdown occasioned by the mariners neglect
of nature beauty. The moral is that injury to nature is a bad idea, and wanton
injury is gravely wrong. A person who casually harms nature may end up in a
state of despair (like Coleridges mariner).102 This is a psychological conceptualization of a link between physical and mental well-being in nature that is
quite distinctive to Coleridges writing.103
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VOL. 34
The central principle identified by Coleridge is that of equipoise or

equilibrium. This is with respect to the balancing of the two most
fundamental competing interests within any modern civilization, namely,
those associated with permanence and those with progression:
Now, in every country of civilized men, acknowledging the rights of property, and by
means of determined boundaries and common laws united into one people or nation,
the two antagonist powers or opposite interests of the state, under which all other
state interests are comprized, are those of PERMENANCE and PROGRESSION.107
107
Coleridge, Church and State (n 104) 24.

See n 72 and associated text.
109
These social orders occupy a similar role to rationalities in the work of Weber a century later: see M
Weber, Economy and Society (G Roth and C Wittich eds, University of California Press 1978).
110
Coleridges rationale for associating permanence with reference to land stems from the idea of land as
something which makes everything possible: see generally Newlyn (n 77) ch 10; W Walsh, Coleridge: The Work
and its Relevance (Chatto and Windus 1969) 14853. Coleridge held to the view that the protection of hereditable
estates in land was the chief object for why men formed themselves into a state. The Friend, 199, as reiterated in
Church and State (n 104) (8283). On the scientific foundations of the claim to the privilege of land, geologically
and botanically, see Katritzky (n 66).
111
Coleridge, Church and State (n 104) 29.
112
ibid 29. On estates as public trusts, see Church and State (n 104) 51, quoting Leviticus XXV 23.
113
Coleridge was in his young adult life sympathetic with the idea of the Hebrew jubilee by which land was to
be restored to its original owners every 49th year (Leviticus XXV 817). See further B Bracewell-Milnes, Land
and Heritage (IEA 1982) 32ff.
108
With respect to the comparison with Bentham, Coleridge is here speaking of

both interests (language that Bentham shared) and rights (a concept
Bentham rejected). And though Bentham tended to view the past as something
to improve on through reform rather than a store of wisdom, there is nothing
in utilitarianism that can object to Coleridges idea of a constitution mediating
between the evils of too much progress (which is a threat in an industrialising
society), and too little of it (which is a threat in an agrarian society).108
Coleridge conceives of the opposing interests in permanence and progression
as having their institutional reflection within an ideal bicameral legislature,
which is broadly illustrated by Parliament at Westminster.109 Permanence is an
interest that is promoted through a hereditary chamber consisting of substantial, ancestral proprietors of land.110 Under the exemplary British constitution,
peers within the House of Lords occupy the position Coleridge referred to
evocatively as permanent hereditary senators.111 This is by virtue of their
connection with landed estates that are regarded by Coleridge as offices of
trust.112 Land as trust is a constant theme in Coleridges constitutional
writing, except that youthful Coleridge advocated trust-based conceptions of
property in land of a different kind, inspired by the levelling ethos within
Hebrew constitutionalism.113 Later Coleridge thus departed in promoting a
trust-based conception of property of a hierarchical nature. It is now famously
the case that his radical friends were dismayed by the shift from equality to
aristocracy, as expressed in a broader context by Thompson, that the owner of
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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
Raymond Williams places emphasis on guarding the treasures of the past in

what he interprets as a critique of a world increasingly dominated by the
dehumanising claims of capital. However, for our purposes what is equally
important to note is that Coleridges clerisy is concerned with avoiding too
114
Thompson (n 24) 6. Because of the trust-based character of an aristocratic landholding, Coleridge
opposed a tax on landed property. Tax should be confined to capitalists and other personal interests in order to
secure some redistributed public benefit from an otherwise self-serving enterprise. See Coleridge, Table Talk, (n
81).
115
Coleridge identified four classes, viz the mercantile, the manufacturing, the distributive, and the
professional. Church and State (n 104) 25.
116
ibid.
117
cf J Bentham, Rights, Representation and Reform: Nonsense upon Stilts and Other Writings on the French
Revolution (OUP 2002).
118
Coleridge, Church and State (n 104) 77ff. Coleridge uses this neologism interchangeably with others,
notably National Trust (77), National Church (78) and National Clergy (74).
119
ibid 30. The King, in whom executive power vests, shares this role (29), and is at one point described as
the Head of the Clerisy, or the Supreme Trustee of the NATIONALITY (83).
120
ibid 4344. See the discussion in Raymond Williams, Culture and Society, from Coleridge to Orwell (Chatto
and Windus 1958).
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
Dicey showed some awareness of this role of Coleridge.127

The above passage is possibly the only occasion on which Coleridge
explicitly mentioned industrial pollution. Even here, the issue is touched on in
121
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
little progress. To reiterate, it is not reactionary, in the sense of anti-industry, or

in opposition to material advancement. Rather, it is about striking a balance,
guarding against dominance of the materialism of capitalist industry without
denying the palpable importance of material things in life and the value of the
market place as a means of satisfying material needs.
Coleridges commitment to the balance between permanence and progress is
well illustrated by his writing on the subject of the legal regulation of working
conditions in factories. Coleridge did not consider that there was anything
intrinsically wrong with producing goods in factories on a larger scale than the
cottage industries of antiquity.121 What he objected to was an overly
commercial approach to the management of factories in which the pursuit of
material self-interest was assumed to be inherently conducive to public welfare.
Adam Smith was the principal object of Coleridges ire. According to
Coleridge, by look[ing] at all things through the medium of the market . . . to
estimate the worth of all pursuits and attainments by their marketable
value,122 society would become poorer and less equal. Coleridge resisted a
contemptible democratical oligarchy of glib economists123 which he saw Adam
Smith and the wider Manchester School espousing.
Coleridge thus disagreed with extreme laissez faire objections to factory
legislation and was so articulate in his support of statutory intervention that
Robert Peel looked to him to rescue the Factory Bill of 1818 from Smiths
Manchester School criticisms. Coleridges pivotal extra-parliamentary contribution is discussed by biographer Richard Holmes.124 Coleridges intervention
consisted of three polemics in defence of the principle of criminal-administration regulation of factory conditions.125 The Grounds of Peels Bill
Vindicated, the third of the trilogy, is summarized by Holmes as follows:
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5. The Dissemination of Coleridgean Ideas: The Role of Young

England
This section identifies and examines the Young England movement as the chief
conduit through which Coleridges ideas were disseminated with respect to
pollution and nature conservation laws. The movement was founded in the
1840s by three young aristocrats, Lord John Manners (18181906),130 George
Smythe (181857)131 and Alexander Baillie-Cochrane (181690).132 They
were led by Benjamin Disraeli (180481), the litterateur-politician who hailed
from a family of intellectuals who moved in Coleridges circles. Robert Blake
describes Disraelis philosophy as Coleridgean:
Though superficial in comparison, Disraeli belongs to the same strand of nineteenth
century thought as Coleridge . . . romantic, conservative, organic . . . who revolted
against Bentham.133
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
passing, and not as of intrinsic importance. That has been interpreted as a

symbol of Coleridges complacence towards his societys destruction of the
environment.128 But that is anachronistic. It ignores the obvious fact that many
mills were water powered, that railways did not yet exist, and that much of
what pollution there was came from the kilns of antiquity. It is more likely that
Coleridges silence on the issue of pollution is reflection of the fact that
revolutionary environmental problems had not clearly presented themselves
during his lifetime.129 On that interpretation, Coleridges legacy was not to
have set in train a campaign for environmental law, but to have supplied a
uniquely wide-ranging justificationbased on science and political philosophyfor such a campaign. This is the level of seminal anticipation at which
Dicey envisages law-making opinion operating.
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VOL. 34
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.
The focus here is on the Young England revolt as it translated into

environmental law.
Of the Young Englanders, it was Disraeli who placed most emphasis on
pollution abatement and nature conservation (others were more concerned
with relieving factory workforces of over-exploitation in factories).135 First
through the medium of public health, and then as a concern in its own right,
Disraeli stepped away from problems of life within factories to steer Young
England into the legal protection of wider nature beauty from the threats of
industry and industrial towns and cities. In regard (briefly) to public health,
Disraeli joined with post-Bentham utilitarians to form the Health of Towns
Association in 1844. This was established under the direction of Thomas
Southwood Smith (the Benthamite who oversaw the preservation of Benthams
body for posterity).136 Utilitarian activists and Young Englanders put aside
philosophical differences to secure implementation of Chadwicks proposed
sanitary reforms. Whilst Disraeli was initially opposed to the Public Health Act
1848 and the Board of Health it created on the basis that it gave too much
power to centralized government inspectors,137 his opinion changed.
Indeed, it was in collaboration with the first President of the Board of
Health, Charles Bowyer Adderley (18181905),138 that Disraeli developed
environmental law. Adderleys romanticism is evident from his stewardship of
the Hams Hall estate (the environmental health of which he defended in the
Birmingham sewage case mentioned above). Adderley was lampooned in the
radicalliberal political press for purveying a merry England view which
meant that he was always a day behind the world.139 This was based on his
expression of the Young England belief in the aristocracy as the nations moral
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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).
leaders, through stewardship of the land.140 [H]ow I longed to lounge by

myself at Hams, and on summer days to be at home on the river, then clear as
crystal! wrote Adderley, in a diary entry which explains both the romantic
motivation behind the nuisance litigation (and his public health office), and the
aversion to it of Birminghams petit bourgeoisie.141 However, there was
ultimately nothing reactionary about the outcome of the litigation, which
resulted in the invention of a world-pioneering infrastructure for the purification of sewage.142
Dicey was not singling out Adderley when he referred to the aristocracys
aesthetic objections to the industrial bourgeoisie and the patrician distaste for
industrial development on the basis of its ugliness.143 But his celebration of the
beauty of nature led one journalist to dismiss him as a figure removed from
public affairs who had nothing to offer a progressive Parliament.144 Indeed, as
a statesman he has been dismissed in one modern historical work as simply
incompetent.145 Yet Adderley was not a nature devout aesthete to the
exclusion of broader, liberal concerns. In his parliamentary career he founded
the Colonial Reform Society, which promoted self-governance of colonies and
an end to transportation.146 He sponsored some of the earliest state education
legislation aimed at giving disadvantaged children the opportunity to fulfil their
potential.147 In the present field of statute law, his contribution was particularly
important. He was (as noted) the President of the Board of Health overseeing
the Public Health Act 1848.148 He chaired the celebrated Royal Sanitary
Commission (which sat between 1868 and 1871), making wide-ranging
recommendations for (inter alia) pollution law reform. He sponsored the
Public Health Act 1872 (which contained provisions dealing with rivers
pollution). And he contributed to the relevant lexicon in inventing the terms
local government,149 and town and country planning.150
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Further, it was Adderley who briefed Disraeli on his memorable

Conservative promise delivered at a speech in Manchester in 1872, entitled
Sanitas Sanitatum; Onmia Sanitas:
The first consideration of a Minister should be the health of the people [defined as]
pure air, pure water, the inspection of unhealthy habitations, [of] the adulteration of
food.151
151
Quoted in S Weintraub, Disraeli (Hamish Hamilton 1993) 502.

ibid.
153
Blake (n 133) 495.
154
Disraeli, HC Deb, 26 July 1875, vol 226, col 49.
155
Its criminal prohibition on rivers pollution was a dead letter. W Howath, Water Pollution Law (Shaw and
Sons 1988) 14.
156
W Moneypenny and G Buckle, The Life of Benjamin Disraeli, vol 5 (John Murray 1920) 337. It was
opposed by Radicals with industry sympathies, led this time by Dilke, 707.
157
Blake (n 133) 553.
158
HC Deb 9 May 1878, vol 239, cols 159697.
159
ibid. On the invention of these technologies pursuant to common law litigation, see Pontin, The Common
Law Clean Up (n 1).
152
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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Stay now thine hand

Proclaim not mans dominion
Over Gods works, by strewing rocks and sand
With sea birds blood-stained plumes and
broken pinion.164
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
HC Deb (n 158); HL Deb (n 179).

In R Fisher (ed), Flamborough: Village and Headland (British Library 2011) lines 15.
Line 10.
Line 18.
J Gaskell, Who Killed the Great Auk? (OUP 2000) 186.
Raymond (n 20) 124.
Blake (n 133) 172.
PJ Helm, Modern British History: 18151914 (Bell and Sons 1968) 146.
Wilson (n 19).
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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Middle Ages . . . became the storehouse of lessons for reshaping Victorian

economic life.172 Yet the most sustained examination of this movement is that
of Smith,173 whose unpublished MA thesis invites us to interpret the
movement as both serious and influential. Smith does not mention pollution
and nature conservation law, nor indeed does he mention Coleridge. But he
does highlight Young Englands contribution to an aristocratically centralized,
hierarchical property theory which helps connect the movement with my
subject matter:
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
A Briggs, Age of Improvement (Longman 1959) 306.

Smith (n 22).
174
ibid.
175
According to the contemporary survey conducted by J Bateman, The Great Landowners of Great Britain and
Northern Ireland (Harrison 1876) 337, the Duke held 181,616 acres of land in the North East from which he
received 161,874 in rent per annum. Only 15 landowners received over 100,000 rent per annum.
176
Thompson (n 24) 122. See further A Rose, Kings of the North: The House of Percy in British History
(Phoenix 2003).
177
See National Archive, MH16/1, 13280.
178
According to Bateman (n 175), Londonderry accrued 100,118 from 50,323 acres (277); Durham of
Lambton castle held 30,471 acres, yielding 71,671 (145); Grey received 23,724 from 17,599 acres (195);
Lord Ravensworth accrued 39,160 from 13,851 acres (376). Henry George Percy was the Dukes son, and later
the 7th Duke of Northumberland.
179
He took over House of Lords sponsorship of the first Bill (the Rivers Pollution Bill 1872) from Lord
Shaftesbury, who was grieving his wifes death: HL Deb 30 April 1875, vol 223, col 1888.
180
Gaskell (n 167) 184.
173
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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Because the aristocratic tradition outlasted the downright socially democratic

Manchester outlook, grandsons of the original successful mill-owners and merchants
were sent to public schools, to Oxford and to Cambridge, and too often fell in love
with the country-house style of life, probably the most seductive of all styles of life.183
Priestley is clearly not defending a territorial elite, for he is attempting to

explain Britains loss of its early competitive edge which saw its fall from the
worlds first industrial nation to an old fashioned second-rate power in the
later 20th century. But there is a more positive slant on this, which is that
Britains slowing in the intensity of industrialization (where others pushed on in
single-minded fashion) served to protect nature, and to do so in Coleridgean
fashion.
The business historian Desrochers has examined the background to
corporate acquiescence with clean technology in different terms. He explores
181
Peter Willis, Capability Brown in Northumberland (1981) 9 Garden History 157, 175. The first Duke
spent a quarter of a million pounds on Browns gothic landscape.
182
THS Escott, Society in the English Country House (1907) 50, quoted in D Cannadine, Aspects of Aristocracy:
Grandeur and Decline in Modern Britain (Yale University Press 1994) 165.
183
JB Priestley The English (Heinemann 1973) 124.
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
Desrochers, Pioneers and Green Thumb (n 1).

Desrochers, Pioneers (n 1) 705.
Desrochers, Green Thumb (n 1) 12.
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.
790
VOL. 34
187
188
189
HL Deb 27 November 1973, vol 347, col 21.

ibid, col 22.
ibid, col 28.
mentionedwith minimal elaborationas central to law-making opinion at

this time.
It is not possible to discuss in any detail the subsequent evolution of lawmaking opinion in this area. It is fairly clear that the romance of the law
examined in regard to Coleridge (and the Young England conduit of
Coleridgean ideas) is at most, now, a counter-current, as is, perhaps to a
lesser extent, the idea of utility. Evidence for this can be found as early as
November 1973, when Ted Heaths Conservative administration sponsored the
Protection of the Environment Bill. Baroness White commented that [t]here
is perhaps just a hint of a bid for popularity in the Title as it stands.187 Her
reasoning was that the measure was about refuse disposal and industrial
pollution of rivers, and not the really big, contemporary issues of tackling
population growth and rising consumption . . . of built-in obsolescence, of ever
more elaborate packaging.188 A Bill with environment in the title, she
concluded, must address in broader terms growing public concern . . . about
the whole balance of nature in our increasingly extravagant world.189
Baroness White may or may not have been aware of the way in which a rich
variety of Benthamite and Coleridgean ideas converged around the balance of
nature in Victorian Britain, but she was certainly aware of the poverty of ideas
underlying the lamentable Control of Pollution Act 1974 (the name ultimately
given to the enactment which started out life as the Protection of the
Environment Bill). The message of this article is that what made Victorian era
thought successful in addressing environmental problems of the day was the
way in which it looked backwards to conservation and mixed insight from the
past with fresh ideas about reform and improvement. A degree of back to the
future is missing in todays debate about tackling environmental problems
through markets. As Coleridge (and to a lesser extent Bentham) appreciated,
markets can only go so far before they are the problem, not the solution.

5 Environmental Law-Making Public Opinion in Victorian Britain: The Cross-Currents of Bentham's and Coleridge's Ideas

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Oxford Journal of Legal Studies, Vol. 34, No. 4 (2014), pp.

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Environmental Law-Making Public

Oxford Journal of Legal Studies

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Environmental Law-Making Public Opinion in Victorian Britain 761

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Benthamism or individualism.7 This then gave way to collectivism during

Oxford Journal of Legal Studies

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Environmental Law-Making Public Opinion in Victorian Britain 763

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development of environmental law. This self-styled terrae fillius (son of the

Oxford Journal of Legal Studies

that present day environmental law has a philosophical underpinning of any

2. Pollution and Nature Conservation Law in the 19th Century

Pontin, Nuisance Law (n 1) 101718.

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Environmental Law-Making Public Opinion in Victorian Britain 765

Should the convenience of one man be considered before that of millions,

This reasoning benefits from contextualization, for it is increasingly apparent

A-G v Birmingham Corporation (1858) 70 ER 220, 4 Kay & J 528.

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Injunctions were granted to aristocrats virtually as of right in this setting.

Oxford Journal of Legal Studies

This patrician estate stewardship paradigm unfolded within a largely common

Pontin, The Common Law Clean Up (n 1) 19197.

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The same dynamic is apparent in relation to the Rivers Pollution Prevention

Environmental Law-Making Public Opinion in Victorian Britain 767

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Oxford Journal of Legal Studies

Critics of Diceys argument that Bentham influenced the development of mid

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3. Benthamism in Relation to 19th-Century Environmental Law

Environmental Law-Making Public Opinion in Victorian Britain 769

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scientific, hard-headed approach, which recognized the primacy of free trade,

Oxford Journal of Legal Studies

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drainage to cater for a quarter of a million citizens.51 Bentham had difficulty

Environmental Law-Making Public Opinion in Victorian Britain 771

4. Coleridges Conservatism in Relation to Nature

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protection as of intrinsic value.57 By this is meant that it supports legal

Oxford Journal of Legal Studies

A. Coleridges Scientific Theory of Life

JH Muirhead, Coleridge as Philosopher (Allen and Unwin 1930) preface.

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Henry Muirhead.62 Muirhead praised the multifarious and miraculous writing

Environmental Law-Making Public Opinion in Victorian Britain 773

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Oxford Journal of Legal Studies

B. Coleridges liberalism in relation to Nature

Indeed, it was through romantic poetry that Coleridge developed an idea of

M Hale, The Primitive Organisation of Mankind (William Shrowsbury 1677).

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Religion and natural science are closely connected in much of Coleridges

Environmental Law-Making Public Opinion in Victorian Britain 775

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And what if all of animated nature

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