Burke on the English Constitution

Review of:
Works of the Right Hon. Edmund Burke. London: 1815.

There are two ways in which the theories of Burke may be regarded in such a manner as to invest them with a certain degree of unity. In his Appeal from the New to the Old Whigs, he observes of himself, 'I believe, if he could venture to value himself upon anything, it is on the virtue of consistency that he would value himself the most. Strip him of this, and you leave him naked indeed.'

This observation we think was both sincere and just. It would be quite possible to take the broadest expositions of his views—those, namely, which are to be found in the Appeal from the New to the Old Whigs, and the Reflections on the Revolution in France— then to show, by a comparison of them with his earlier works, that there was a true consistency in the whole of his political speculations, and that the apparent contrast between the earlier and the later ones was apparent only.

There is, however, another way of considering the subject, which, if less systematic, is on the whole more instructive. It is to take his works in that which is at once their natural and, with very few exceptions, their chronological order also, and to collect from each division of them, the principal doctrines which he taught upon political and moral subjects.

It is this second plan which we propose to adopt. One advantage of it is that the nature of the classification which it implies is self-evident. Considered in reference to it, Burke's works fall into two great divisions—those which preceded, and those which related to, the French Revolution. The speeches and writings on Indian affairs form a separate and special department, which, though eminently characteristic of the man and of his genius, throw less light than either of the other sets of writing on his theories and principles. We now propose to state, and to some extent discuss, his theory of the English Constitution as it is developed in his earlier speeches and writings.

As we have already shown, none of Burke's earlier writings contain any systematic statement of his political views. He was, indeed, from first to last, a pamphleteer; and his principles have to be collected from the particular cases in reference to which they were originally stated, much in the same manner in which legal principles must be collected from reported cases. Like almost all the principal writers, on what may broadly be called the orthodox side, in the eighteenth century, Burke was from first to last a utilitarian of the strongest kind. In a significant passage in the treatise on the Sublime and Beautiful, he speaks of 'our reason, our relations, and our necessities' as the proper basis of 'the science of our duties,' and treats the theory of the beauty of virtue as 'altogether visionary and unsubstantial.'

In the Appeal from the New to the Old Whigs, he says, 'Political problems do not primarily concern truth and falsehood. They relate to good or evil. What in the result is likely to produce evil is politically false; that which is productive of good is politically true.'

Whenever he has occasion to refer to the American quarrel he utterly refuses to enter upon the abstract questions which were so eagerly discussed at the time about the right of taxation. In his Speech on Conciliation with America he says:

'I am resolved this day to have nothing at all to do with the question of the right of taxation. Some gentlemen startle—but it is true; I put it totally out of the question. It is less than nothing in my consideration.' So, in the Speech on American Taxation, he says: 'I am not going into the distinctions of rights, nor attempting to mark their boundaries. I do not enter into these metaphysical distinctions; I hate the very sound of them.' Custom and practice are 'the arguments of States and kingdoms.'

A passage in the Letter to the Sheriffs of Bristol may stand as typical of much else which might be quoted:

'I was persuaded that government was a practical thing made for the happiness of mankind, and not to furnish out a spectacle of uniformity to gratify the schemes of visionary politicians. . . . It is melancholy as well as ridiculous to observe the kind of reasoning with which the public has been amused in order to divert our minds from the common sense of our American policy.'

And after referring to the abstract discussions which had taken place on liberty, natural rights, and the like, he says:

'Civil freedom, gentlemen, is not, as many have endeavoured to persuade you, a thing that lies hid in the depth of abstruse science. It is a blessing and a benefit, and all the just reasoning that can be upon it, is of so coarse a texture as perfectly to suit the ordinary capacities of those who are to enjoy, and of those who are to defend it.'

Expediency is thus the basis of all his speculation, and the first rule of expediency is to set out from existing facts, and to take all measures whatever with respect to them. This, as every one knows, is the keynote of a great part of the Reflections on the Revolution in France, but perhaps one of the most striking illustrations of it is to be found in his speech on Fox's East India Bill:

‘I do not presume to condemn those who argue a priori against the propriety of leaving such extensive political powers in the hands of a company of merchants . . . but with my particular ideas and sentiments I cannot go that way to work. I feel an insuperable reluctance in giving my hand to destroy any established institution of government upon a theory, however plausible it may be.'

So fond is he of precedents, that in the Speech on Conciliation with America a great part of the argument consists of an almost servile application of the Precedents of Ireland, Wales, Chester, and Durham, which he concludes with these words:

 'Above all things I was resolved not to be guilty of tampering, the odious vice of restless and unstable minds. I put my foot in the tracks of our forefathers, where I can neither wander nor stumble. Determining to fix articles of peace, I was resolved not to be wise beyond what was written; I was resolved to use nothing else than the form of sound words, to let others abound in their own sense, and carefully to abstain from all expressions of my own. What the law has said, I say. In all things else I am silent. I have no organ, but for her words. This, if it be not ingenious, I am sure is safe.'

It would be easy to fill pages with extracts from his works on the sacredness of possession and prescription. In his later works, indeed, the glorification of these two words becomes a sort of mania. In a letter to Mr., afterwards Baron, Smith on Popery in Ireland, he says:

'All the principal religions in Europe stand upon one common bottom . . . humanly speaking, they are all prescriptive religions. They have all stood long enough to make prescription, and its chain of legitimate prejudices, their mainstay.'

Such being the foundation of all Burke's political theories, it is not surprising that he should have idolised the English Constitution, as it afforded him the very πού στώ, which was, in his view, the first condition of all political speculation. In the present day indeed his language on the subject, well known as it is, has come to look affected and almost absurd.

Take, for instance, the famous expression in the Speech on Economical Reform: 'I come next to the great supreme body of the civil government itself. I approach it with that awe and reverence with which a young physician approaches to the cure of the disorders of his parent.' The first subject touched upon under this solemn heading is the Board of Green Cloth, and the first recommendation is that the Royal tables should be supplied by a contract, made by the Steward of the Household and approved by the Treasury, so that, to use Burke's own illustration, the turnspit in the King's kitchen might no longer be a member of Parliament. Awe and reverence are not exactly the feelings which would occur to a young physician if it became his melancholy duty to suggest to the revered author of his being the propriety of taking a blue pill, and of being a little more careful in his diet.

Still, whatever may be thought of the manner in which Burke expressed his views on the subject, it can hardly be doubted that the practical consequences which he drew in the first part of his career from his general conception of the Constitution were generous, magnanimous, and reasonable. It is equally true that they were the direct consequences of his general view that the constitution of a nation was something which a wise man would take as he found it, and from which he would derive as much practical advantage as possible.

The great illustrations of this, no doubt, are his writings in relation to America, in comparison with which his expositions of the popular character of the House of Commons, of the merits of party government, and of the distinction between the position of a representative and that of a delegate, are almost insignificant.

It may no doubt appear paradoxical to assert that the greatest of constitutional writings of our greatest constitutional author were those which did not relate to England itself, but it is nevertheless perfectly true. Burke's estimate of the character of the Constitution shows itself in the clearest light when he regards the Parliament of Great Britain in its imperial capacity; and, by tracing its relation to dependencies, has occasion to point out the nature of the sovereignty which it exercises, and the limitations to which that sovereignty is subjected by its own nature.

Indeed, if the matter is carefully considered, it will appear that this must be so from the nature of the case. Constitutional questions, if fully thought out, are all questions, not of law, but of power. Legal questions are those which can be decided by a common superior according to a fixed rule, but the question whether such and such functions belong to the Crown, to the House of Lords, or to the House of Commons, cannot possibly be decided by reference to a common superior. If neither party will give way, they can be decided only by an appeal to force, by a coup d’état in one shape or another—the deposition, it may be the execution, of a King, or the turning the Parliament out of doors by an armed force.

This is also true of questions arising between different legal bodies, such as imperial and subordinate legislatures. In these cases a dispute as to the limits of the powers possessed by the different bodies can be decided by civil war only, if the parties insist. Such was the case of the American colonies, and of the civil war of 1861. Such in substance was the case of Ireland in 1782; such might well be the case of Canada at the present day, if the English nation were ever to be absurd enough to allow such a question to arise.

All constitutional questions being questions of power, and not of law, it is obvious that in practice they may be divided into two classes — questions between sovereign and sovereign and questions between sovereign and subject. On the one side we have questions which arise between the different depositaries of the sovereign power, questions between the King and the Parliament, or between the Parliament of Great Britain and the Parliament of Ireland, or the nation's representative bodies in the colonies.

On the other, we have questions between the sovereign power and its subjects. Questions of the first order sound, as lawyers would say, in civil war. Questions of the second order sound in revolution. In questions of the first class the substantial issue, when reduced to its simplest terms, is, Which branch of the Government is, at a particular time, and for a particular purpose, the strongest? In questions of the second order the substantial issue is, Whether the existing Government shall, or shall not, continue to exist as a government.

All the questions to which Burke addressed himself during the earlier part of his life were questions of the first order, and he treated them, as every one would now admit, with conspicuous wisdom. The question which he had to deal with towards the close of his life was a question of the second order; and his great mistake appears to us to have been, that he treated it in precisely the same way, and on precisely the same principles, as those on which he had treated the questions which came before him at an earlier period, although the two sets of questions were fundamentally different. His fault was, not that he was inconsistent, but that he was too consistent, that he did not know how to apply new principles to a new case.

Reserving for future consideration the second part of his works, let us now dwell a little on the less noisy, but far wiser, part of his career. It is, as we have already observed, difficult even now to read his utterances on the subject of America without shame and sorrow, mixed to some degree with surprise at their having been so entirely without effect.

No doubt the subsequent course of events has enabled us all to be wise upon the matter at a very cheap rate; but when we read his arguments the wonder is how any one could ever be so insane as to doubt their soundness. Here, he said, is a collection of nations separated from you by several thousand miles of ocean, invested by your legislation with forms of government, which are, at least apparently and prima facie, all but independent. They have through their constituted authorities resolutely refused to allow you to tax them, and it is impossible to distinguish the principle upon which they proceed, from the principle upon which you in England avowedly base the right of the House of Commons to hold the purse-strings of the nation. They are, moreover, one of the sturdiest races in the world. 'From their six capital sources—of descent, of form of government, of religion in the Northern provinces, of manners in the Southern, of education, of the remoteness of the situation from the first mover of government—from all these causes a fierce spirit of liberty has grown up.' Why knock your heads against such a stone wall as this for no conceivable motive except a sort of metaphysical point of honour? Why not learn the lesson which the whole of your own history teaches, that to attempt to break down such a spirit by mere military force would, if possible, be most pernicious?

It is worth observing that Burke's Speech on Conciliation with America contains no direct opinion as to the success which would attend an appeal to force. Six years before, in his Observations on a Late State of the Nation, he had expressed a very decided one. To enforce obedience to the Stamp Act 'every province in America must be traversed, and must be subdued. I do not entertain the least doubt that this could be done. We might, I think, without much difficulty have destroyed our colonies. This destruction might be effected probably in a year, or in two at the utmost.'

This earnest dissuasion from the use of force is coupled with another appeal of at least equal importance. It is the famous appeal against the purely legal view of the question, which, of course, could regard the Americans simply as persons guilty of high treason by levying war. In the Letter to the Sheriffs of Bristol two years afterwards, when the war was in full progress, he insisted on this point still more forcibly.

An Act had been passed for punishing the naval forces of the Americans as pirates. Burke denounces this on the ground that 'the Act does not (as all laws and all equitable transactions ought to do) fairly describe its object,' which, he argues, was to superadd moral degradation to legal guilt. He not only contends that in the soldiers and sailors who obeyed the orders of their own local Government there was no moral guilt at all, but he adds that, under the circumstances, it was an abuse of the criminal law to look at a civil war in the light of a rebellion:

'Lawyers, I know, cannot make the distinction for which I contend, because they have their strict rule to go by. But legislators can do what lawyers cannot, for they have no other rules to bind them but the great principles of reason and equity and the general sense of mankind. ... If we had adverted to this we never could consider the convulsions of a great empire, not disturbed by a little disseminated faction, but divided by whole communities and provinces and entire legal representatives of a people, as fit matter of discussion under a Commission of Oyer and Terminer. It is as opposite to reason and prudence as it is to humanity and justice.'

Further on he insists with extraordinary force on the monstrous and unnatural perversion of common sense which found matter of pride and glorification in the trifling and now almost forgotten successes which occasionally fell to the share of the Royal troops, and which flattered national vanity by the satisfactory reflection that Englishmen by birth, blood, language, and religion were slaughtered successfully by German mercenaries.

'It is not instantly that I can be brought to rejoice when I hear of the slaughter and captivity of long lists of those names which have been familiar to my ears from my infancy, and to rejoice that they have fallen under the sword of strangers, whose barbarous appellations I scarcely know how to pronounce. The glory acquired at the White Plains by Colonel Rahl has no charms for me, and I fairly acknowledge that I have not yet learned to delight in finding Fort Kniphausen in the heart of the British dominions.'

It would be easy to multiply these quotations. Our special object in making them is to show what Burke understood by the Constitution, and constitutional principles. He understood by the Constitution the aggregate of the public establishments of Government, and by constitutional principles those maxims which experience showed to be necessary to their harmonious working. As we have seen in the extracts just given, he rightly regarded these questions as belonging to a sphere above that of positive law, and by which, in some cases, the constant rigour of positive law might be suspended and corrected. In short, he viewed the whole State, including not merely the Government of Great Britain, but the Government of the British Empire, as a vast and intricate whole, the different parts of which must, if they were not to fall into fatal and inextricable confusion, keep an eye continually on each other, and play with extreme care and attention, each its own part, in one great drama.

We have shown how he applied this theory to the case of England and America by preaching to the British Parliament the utmost possible respect for the Colonial Governments, and for the 'fierce' people which they represented, but it is a sort of presumption to speak for Burke in any words but his own. The following extract gives his theory of the Constitution of the British Empire as shortly and brilliantly as possible.

In answer to the argument if America is said not to be free because it is not represented, England is not free because Manchester, etc., were not represented, he says:

'Is it because the natural resistance of things, and the various mutations of time, hinders our government, or any scheme of government, from being any more than a sort of approximation to the right, is it therefore that the colonies are to recede from it infinitely? When this child of ours wishes to assimilate to its parent, and to reflect with a true filial resemblance the beauteous countenance of British liberty, are we to turn to them the shameful parts of our Constitution? Are we to give them our weakness for their strength, our opprobrium for their glory, and the slough of slavery which we are not able to work off, to serve them for their freedom?’

The colonies are to have their own place, and the British Parliament to have its place. It is the local legislature of Great Britain, and also has 'her nobler capacity . . . her imperial character, in which, as from the throne of heaven, she superintends all the several inferior legislatures, and guides and controls them all without annihilating any.'

His treatment of the relations between England and the American colonies is certainly the best illustration of Burke's conception of the Constitution. His theory on the subject might readily be further illustrated from the well-known expositions, to which we have more than once referred, of various domestic constitutional questions. In each of these cases the question arose of the relation to each other of different members of the Government, and in each the solution is found by considering what, with a view to the general advantage of the country, that relation ought to be considered to be, precedent being regarded as the best possible evidence as to what is generally advantageous.
Party government, for instance, is treated in this way. It may be regarded as a bad and factious thing, but it is implied in the theory of Parliament:

'For my part I find it impossible to conceive that any one believes in his own politics, or thinks them to be of any weight, who refuses to adopt the means of having them reduced into practice. It is the business of the speculative philosopher to mark the proper ends of government. It is the business of the politician, who is the philosopher in action, to find out proper means towards those ends and to employ them with effect. Therefore, every honourable connection will avow it is their first purpose to pursue every just method to put the men who hold their opinions into such a condition as may enable them to carry their common plans into execution with all the power and authority of the State. As this power is attached to certain situations, it is their duty to contend for those situations. Without a proscription of others they are bound to give to their own party the preference in all things.'

Moreover, so it was done in former times. Lord Sunderland, Lord Godolphin, Lord Somers, and the Duke of Marlborough formed parties. It is, however, needless to accumulate illustrations. No one who is at all acquainted with Burke's writings will hesitate to accept what we have stated, as a fair account of his method of political inquiry, and of his conception of the nature of a Constitution.

What is to be said of its value? There can hardly, we apprehend, be two opinions as to its value, so long as the foundation on which it rests remains unimpaired. If political power is, in point of fact, parcelled out in a State between a variety of different bodies, or in an empire between a number of different governments, and if it is on the whole desirable that this arrangement should be continued, it is almost an identical proposition that it is also desirable that each member of the company should act his own part in the play, that there should be as little quarrelling as possible, and that every actor should on all occasions have an eye rather to the general effect than to his own personal glorification.

It is also clear that, so long as it is wise to keep up that distribution of political power which makes the constitution, experience will be a more instructive guide as to the best way of adjusting the relations of the various parts to each other than any express rules; and it ought to be added in favour of Burke that, at the time when he wrote, the state of things, both in the British Empire and in Great Britain, was such that it could not be said to be unwise to take the view of the empire and of the nation which he actually took.

All this, however, is to be taken in connection with a totally different set of considerations to which Burke never refers at all. Constitutions are made for empires and nations, empires and nations are not made for constitutions; and as the social condition of Great Britain, and of the various members of the British Empire, changed, it was absolutely essential that the Constitution, both of the Empire and of the nation, should change also. With regard to the Constitution of the Empire, it may no doubt be plausibly (to say the very least) contended that Burke was perfectly right, not merely in his general theory, but also in his application of it to particular facts.

Ordinary common sense and justice might no doubt have averted the American war, and delayed for a time which it is impossible to guess at, with any appearance of plausibility, the formation of the United States. How this would have affected England and the world at large it is impossible to say, but it would beyond all doubt have had a powerful effect, of some sort, on the French Revolution. One of the impulses which occasioned the outbreak at that particular moment would have been wanting. The Conservative party in the colonies would have been immensely powerful. In short, if it ought to be the effort of an English statesman, at all times and in all places, to promote the comparative force as well as the positive welfare of the British Empire, the course which Burke insisted on was the right one. Constitutionalism would have had a triumph such as never rewarded any other principle or system in this world, if the thirteen colonies had parted from the Mothercountry upon friendly and kindly terms, and had become foreign nations without ceasing to be friends.

The imperial side of Burke's policy was no doubt its strong side. The relations between the inferior and the dependent parts of an empire must always be principally of the constitutional kind, unless the empire is exclusively military; but in the internal government of a nation it is barely possible that so complicated and intricate an arrangement as that of which Burke was the great prophet and poet shall, be otherwise than exceptional. Political institutions must depend upon the social condition of the country to which they belong. They must also be based upon principles which may be true or false, and it is equally impossible to secure the permanence of any state of society, and to prevent, on mere grounds of momentary expediency, the discussion of fundamental principles. Such changes and such discussions are fatal to constitutions. They must and do modify them, and the only question is whether the modifications shall be more or less abrupt, and more or less violent.

Saturday Review, December 28, 1867.