The publication of the Reflections on the Revolution in France (1790), Burke’s uncompromising denunciation of French Revolutionary theory as antithetical to the British Constitution, dismayed many of Burke’s supporters and admirers, and gave deadly ammunition to his long time enemies – at least what they thought was deadly ammunition. At this time, Burke and his reputation were at a low ebb. Younger members of the House had taken to calling him ‘dinner bell’ because of his long tedious speeches, especially over the Warren Hastings impeachment. Among the avenues of attack were the charges of inconsistency and contradiction of which were the following.
First, it was claimed that Burke was inconsistent in defending the Americans against the actions of the British government while later condemning of the French Revolution. The presumption in this charge is that the American and French Revolutions were of the same kind. Burke easily (and scornfully) refuted the charge in An Appeal from the New to the Old Whigs (1791). Defence of the British Constitution is central in Burke’s most important speeches as it was here. In brief, from the point of view of the Constitution Burke claimed that the Americans, as American British, were being denied the rights guaranteed to them in the Constitution. From the point of view of the Constitution, Dr Price of the Revolution Society and those like him, were proposing a British version of French Revolutionary theory that would abolish the Constitution. The point was that the American and French Revolutions were different in substance.
But Burke also highlighted a fundamental point of logic which he contrasted with a vivid metaphorical refutation of the charge of inconsistency. In the following passage in An Appeal he situates the point of logic within the maintenance of the proper place of the members of the Constitution (Crown, Lords, Commons):
As any one of the great members of this constitution happens to be endangered, he that is a friend to all of them chooses and presses the topics necessary for the support of the part attacked, with all the strength, the earnestness, the vehemence, with all the power of stating, of argument, and of colouring, which he happens to possess, and which the case demands. He is not to embarrass the minds of his hearers, or to encumber, or overlay his speech, by bringing into view at once (as if he were reading an academic lecture) all that may and ought, when a just occasion presents itself, to be said in favour of the other members. At that time they are out of the court; there is no question concerning them. Whilst he opposes his defence on the part where the attack is made, he presumes, that for his regard to the just rights of all the rest, he has credit in every candid mind. He ought not to apprehend, that his raising fences about popular privileges this day, will infer that he ought, on the next, to concur with those who would pull down the throne: because on the next he defends the throne, it ought not to be supposed that he has abandoned the rights of the people.
Burke’s logic surely holds: ‘This mode of arguing from your having done any thing in a certain line, to the necessity of doing every thing [entails] a logical fallacy.’ It simply does not follow that the curbing of the power of the Crown leads necessarily to the abolition of the Crown and the handing of all political power to the ‘people’ – nor the other way round. He says that people should be able to ‘distinguish between a difference in conduct, under a variation of circumstances, and an inconsistency in principle.’ The distinction is straightforward. Expressed in another way, he asks whether ‘such a thing as a medium had never been heard of in the moral world.’ That the moderate in politics will defend excesses from the Left and the Right is familiar action in modern politics. You defend a position on all sides, as a castle protected on all sides by a moat meets attacks from various points on the 360 degree arc. In the final sentence of the last paragraph of the Reflections, Burke conjures a vivid image of his consistency throughout his political career. It is the same image that Michael Oakeshott used so effectively in his essay ‘Political Education’ (Rationalism in Politics, 1962, p. 127).
I have little to recommend my opinions. They come…from one who wishes to preserve consistency; but who would preserve consistency by varying his means to secure the unity of his end; and, when the equipoise of the vessel in which he sails, may be endangered by overloading it upon one side, is desirous of carrying the small weight of his reasons to that which may preserve its equipoise.
The second charge of inconsistency, though appearing the same as the first, is slightly different in emphasis. The claim was that Burke’s condemnation of the French Revolution was virtually a condemnation of the Glorious Revolution. If Burke supported the Glorious Revolution he must also support the French Revolution to be consistent. Again, Burke easily refuted this charge (in An Appeal) by comparing the defence of the Glorious Revolution by foremost members of the Whig party in the trial of Dr Henry Sacheverell with his defence of the Constitution in the Reflections. Sacheverell was brought to trial before the House of Peers in 1710 for ‘High Crimes and Misdemeanours’, those crimes being an alleged Jacobite attempt to undermine the 1688 Revolution. Burke demonstrated with extensive quotations that his arguments for and explanation of the Glorious Revolution in the Reflections paralleled closely those of the Whigs acting as witnesses in the 1710 trial. There was clearly no inconsistency here.
A third charge of inconsistency is that Burke’s grounds for condemning the French Revolution undermined his defence of the Glorious Revolution. Considering Burke’s lengthy demonstration in An Appeal that his defence did not differ in substance from the Whig defence at the time of the 1688 Revolution, I thought, at least on the surface, this charge groundless. But, as a fellow Burkean explained, the argument is that the legislative changes brought about by the Bill of Rights (1689), which was ‘a restatement in statuary form of the Declaration of Right’, was not consistent with Burke’s defending the Constitution on the grounds of firmly established tradition, which were in turn the grounds for his condemnation of the French Revolution and the political theories that motivated it. The great change the Bill of Rights ushered in was the dramatic shifting of the relationship between the Crown and the Parliament. The monarch’s powers were dramatically restricted and the Parliament’s rights increased. Such a change could surely not be condoned by the Constitution. My direct reply is that for this charge to succeed it must rest on the attribution a ‘hard’ traditionalism to Burke to which, I will argue, Burke did not subscribe. By a ‘hard’ tradition I mean tradition so prescriptive that it remains unassailable.
Another Burkean explained what he saw as a problem of consistency (a fourth point of consistency): ‘The moment Burke purports to be stating, or is taken to be stating, a theory of political authority and obligation against the French Revolution, then it creates an onus to show how the Glorious Revolution could be justified within that same theory of political obligation.’ He went to explain what he sees as a problem in reconciling the two. For my argument here it will not be necessary to produce his explanation.
My short response to this problem of consistency is that if I have succeeded in drawing out an objective grounding of political obligation in Burke’s two major works on the French problem (the Reflections and An Appeal) then that idea of political obligation must be found in the apologies for the 1688 Revolution and be the moral motivating force in the actors. Indeed, if Burke’s idea of political obligation is objectively grounded then it applies generally to whatever form a political and social organization takes, though the members of a particular organization may ignore or be blind to political obligation as Burke saw it.
No doubt, there were people in the vanguard of the agitation to expel James II and place William and Mary on the throne whose motivations were a great deal less pure than those defending what they saw as the British Constitution. Ugly anti-popery without any reference to the Constitution clearly played a role in the growing disturbances. However that may be, safeguarding the Constitution and its integrity was the motivating force behind the revolution. We know that from the recorded declarations of many of the actors. Now it goes without saying that in this discussion one should understand exactly what was meant when the Constitution was referred to or invoked to support policy. The following examination is aimed at revealing how Burke saw obligation residing in the Constitution and at discovering whether its objectivity can be sustained in the way I presented it in my paper ‘Burke and what it means to be a ‘people’.
Burke’s most sustained discussion of the Constitution is found in the early part of the Reflections. In the Penguin edition it covers pages 99-122 (all references are to the Penguin edition). In discussing the Constitution in reference to the French Revolution Burke constantly goes back to the Constitution at the time of the Glorious Revolution to show both its continuity over the centuries (before and after 1688) and its complete incompatibility with the ideas of Dr Price of the Revolution society. At all times, he stresses the Constitution’s continuity and the responsibility to preserve that continuity. In opening his attack on Dr Price’s understanding of the 1688 Revolution he refers directly to the Declaration of Right (1688) to put the Constitution central in the discussion:
This Declaration of Right… is the cornerstone of our constitution as reinforced, explained, improved, and in its fundamental principles for ever settled. It is called, ‘An Act for declaring the rights and liberties of the subject, and for settling the succession of the crown’. You will observe that these rights and this succession are declared in one body and bound indissolubly together. (p. 100)
Naming the reinforcement, the explanation and the improvement of the Constitution’s ‘fundamental principles’, are clearly to stress the idea of continuity. Burke did not see any fundamental departure in the legislative program of 1688 from the Constitution as it stood at that time. What then is this Constitution? Once again saying, ‘The Revolution was made to preserve our ancient, indisputable laws and liberties and that ancient constitution of government which is our only security for law and liberty’, Burke tells us unambiguously:
If you are desirous of knowing thespiritof our constitution and the policy which predominated in that great period which has secured it to this hour, pray look for both in our histories, in our records, in our acts of parliament, and journals of parliament, and not in the sermons of the Old Jewry and the after-dinner toasts of the Revolution Society. In the former you will find other ideas and another language… We wished at the period of the Revolution, and do now wish, to derive all we possess as an inheritance from our forefathers. Upon that body and stock of inheritance we have taken care not to inoculate any cyon [scion] alien to the nature of the original plant. All the reformations we have hitherto made have proceeded upon the principle of reverence to antiquity; and I hope, nay, I am persuaded, that all those which possibly may be made hereafter will be carefully formed upon analogical precedent, authority, and example. [my emphasis]
It is easy to miss, but it is important to see that Burke opens with ‘knowing the spirit of our constitution’. The documents he cites (and all like documents) coalesce into a spirit that, first, forms something over and above the mere aggregation of the documents and, second, clearly has a prescriptive force. This is where the obligation resides. The prescriptive nature of the spirit is further reinforced by the metaphor of an entailed property inheritance. Each generation receives that inheritance and is in turn bound to pass it on whole and complete, if not improved, so that each generation can enjoy the same benefits. All the way along the line in Burke’s reasoning is the idea of obligation. To emphasise the living organic nature of the Constitution, he reaches for a startlingly appropriate metaphor, that of a living plant and its propagation. The grafting of an incompatible twig or bud onto the stock is likely not only to kill the graft but also to corrupt the stock. He then switches from compelling metaphor to plain reasoning. The structure of the Constitution is such that reformations, meaning growth or the accommodation of change, merely work by analogy from established pattern. Reformations are allowable and sometimes necessary, which is a constant theme in his defence of the Constitution in the Reflections and An Appeal. Burke then goes on to give concrete evidence – actual documents – for the way he has described the Constitution. They are legal documents that reach back time out of mind. This idea of the force of ‘antiquity’ is an important one in this discussion.
Our oldest reformation is that of Magna Charta. You will see that Sir Edward Coke, that great oracle of our law, and indeed all the great men who follow him, to Blackstone, are industrious to prove the pedigree of our liberties. They endeavor to prove that the ancient charter, the Magna Charta of King John, was connected with another positive charter from Henry I, and that both the one and the other were nothing more than a reaffirmance of the still more ancient standing law of the kingdom. In the matter of fact, for the greater part these authors appear to be in the right; perhaps not always; but if the lawyers mistake in some particulars, it proves my position still the more strongly, because it demonstrates the powerfulprepossession toward antiquity, with which the minds of all our lawyers and legislators, and of all the people whom they wish to influence, have been always filled, and the stationary policy of this kingdom in considering their most sacred rights and franchises as an inheritance. (p. 117) [my emphasis]
Historian J.G.A. Pocock explicates this same passage in his essay, ‘Burke and the Ancient Constitution: A Problem in the History of Ideas’ (Politics, Language & Time, 1960, p. 207), one of the most important essays of a number he wrote about Burke. We have here a deeper explanation of the force of ‘antiquity’ in the constitution of the British state.
[Burke] is saying that the practice of establishing the rules of political behaviour by an appeal to history conducted in this manner has been followed so regularly in the course of British history that it now constitutes a tradition of behaviour, a ‘stationary policy’ which he hopes and believes will be maintained in the future. The Revolution of 1688, he says, was conducted on the principle that there existed a body of ancient laws and liberties, and an ancient constitution guaranteeing them, and that all that was necessary in the conditions of that critical year was to reaffirm their existence; it was not conducted on the principle that under certain circumstances power ‘reverts to the society’ and the people have a right to ‘erect a new form… as they think good’. (From the closing sentence of Locke’sSECOND TREATISE OF GOVERNMENT). Rights are not justified by abstract reason, but as an inheritance under positive laws… From Coke to Blackstone, Burke observes, the great English lawyers have steadily maintained that this in fact is the case with English law: that the laws and liberties of England are rooted in Magna Carta and the Charter of 1215 in a body of law very much more ancient than itself.
Two pages later Pocock explains further:
The doctrine of the ancient constitution received its classical formulation, though not its original conception, about the year 1600. It was the work of common lawyers, and seems to have been shaped throughout by assumptions concerning the common law of England, deeply implanted in the mind of everyone trained in that study. These assumptions were first, that all law in England might properly be termed common law; second, that common law was common custom, originating in the usages of the people and declared, interpreted and applied in the courts; third, that all custom was by definition immemorial, that which had been usage and law since time out of mind, so that any declaration of law, whether judgement or (with not quite the same certainty) statute, was a declaration that its content had been usage since time immemorial.
The problem that Pocock discusses in this essay is Burke’s view of immemoriality. Pocock says that Burke at crucial points seems to subscribe to what I would call a ‘hard’ view of immemoriality (and a hard traditionalism), that is, ‘that the law is inscrutable’ (and tradition all powerful), and that the body of the law was not analysable into its constituent parts. Experience and time superseded individual reason. At other times, says Pocock, Burke claimed ‘that all that was custom was immemorial; but this need not – though it often did – imply a state and unchanging content.’ For Burke, the operations of reason sometimes had its place in assessing the meaning of the Constitution and where particular circumstances would lead that assessment. Pocock claims this is inconsistency on Burke’s part.
I don’t think that he makes his case and I make a counter case in my Master’s thesis on Burke. But we need not follow Pocock’s argument here, or my response. (I will make my response available in a separate paper.) I propose that Burke’s important comments on immemoriality and the constitution are reconcilable and that he did indeed think that, although the notion of antiquity had a strong influence, something could be said about law and custom as they relate to the Constitution, and that reason could and at times was urgently called upon to make that assessment – and he said so most vigorously in the Reflections, especially with regard to the exercise of prudence. Burke’s ideas on the exercise of prudence and the prescriptions that flow from the Constitution, understood properly, were on full display during the American crisis. But I will restrict myself here to the Reflections and Burke’s analysis of the crisis that brought on the 1688 Revolution. Regarding the onset of the crisis, the central claim was that James’s attempt to subvert the Constitution made it necessary to act.
It would be to repeat a very trite story, to recall to your memory all those circumstances which demonstrated that their accepting King William was not properly a choice; but to all those who did not wish, in effect, to recall King James or to deluge their country in blood and again to bring their religion, laws, and liberties into the peril they had just escaped, it was an act of necessity, in the strictest moral sense in which necessity can be taken… (pp. 101/102)
They charged him [James II] with nothing less than a design, confirmed by a multitude of illegal overt acts, to subvert the Protestant church and state, and their fundamental, unquestionable laws and liberties; they charged him with having broken the original contract between king and people. This was more than misconduct. A grave and overruling necessity obliged them to take the step they took, and took with infinite reluctance, as under that most rigorous of all laws. Their trust for the future preservation of the constitution was not in future revolutions. (pp. 112/113)
A fundamental principle in ensuring the integrity of any Constitution when a breakdown threatens or takes places is to seek the means of maintaining continuity, or in the most urgent circumstances of re-establishing continuity. Abstractly speaking continuity could take a number of directions from a constitution formed in the way Pocock attributes to the English. But concrete circumstances would greatly narrow the choices. Circumstances include the nature and wishes of the people, their geography, their institutions, and the prevailing political attitudes of the people at the time, as Burke was at pains to explain in the American Speeches. It seems inconvertible that the mood of the English in 1688, and most certainly of the elite, was flowing in the direction of political thought that John Locke so clearly expressed in his Second Treatise of Government, published in 1689, and not in the direction of an absolute monarchy, in which commentators say James II wanted to take Britain. So, not only was James II disturbing the prevailing relationship between the different members of the Constitution – it was undermining enough for the Crown to render the other members impotent – he was working in the opposite direction of the people’s wishes and where cultural development was taking them. It was an extreme situation which called for an extreme solution, a solution that must presuppose the existence of the Constitution.
In an abstract sense, a legislative reordering of the relationship between the Crown, Lords, and Commons, giving more power to the Commons and adding restrictions to the throne, would not necessarily represent a break in continuity. Indeed, again abstractly speaking, it might even be a healthy development. Such legislation could simply take its place in the flow of law and custom that had gone on for centuries. This meets, in my view, one charge of inconsistency (above). Burke did not subscribe to a hard traditionalism or the idea of a hard immemoriality.
But 1688 represented a very particular case that demanded urgent action, considering the growing military and social conflict and the growing desertion of James II’s support. There was virtually no choice in the matter, as Burke explained. The circumstances demanded a solution – not just any solution. That solution was the offering of the crown to William and Mary. The fact that the military conflict and the social disturbances came to an end shortly after and most of population accepted the adjustment would seem to be some proof that the action to ensure the integrity of the Constitution and its continuity in 1688 was the right action in the concrete circumstances.
Burke was well aware that ‘in a single case, parliament departed from the strict order of inheritance’ and the unavoidable choice of William and Mary was a ‘temporary solution of continuity’, though legitimate. To justify that legitimacy in legal terms he pointed out that ‘it is against all genuine principles of jurisprudence to draw a principle from a law made in a special case…’ (p. 101). Nevertheless, he was eager to provide a philosophical justification of action that might have the appearance of a break in continuity and an undermining of the Constitution. He explains how change can (and sometimes must) take place to correct dysfunction.
It is far from impossible to reconcile, if we do not suffer ourselves to been tangled in the mazes of metaphysic sophistry, the use both of a fixed rule and an occasional deviation: the sacredness of an hereditary principle of succession in our government with a power of change in its application in cases of extreme emergency. Even in that extremity (if we take the measure of our rights by our exercise of them at the Revolution), the change is to be confined to the peccant part only, to the part which produced the necessary deviation; and even then it is to be effected without a decomposition of the whole civil and political mass for the purpose of originating a new civil order out of the first elements of society. (pp. 105/106)
Not only can change be made to the Constitution, the ability to change is a requirement for the health of any polity. A hard unbreakable traditionalism has no place in Burke’s thought.
A state without the means of some change is without the means of its conservation. Without such means it might even risk the loss of that part of the constitution which it wished the most religiously to preserve. The two principles of conservation and correction operated strongly at the two critical periods of the Restoration and Revolution, when England found itself without a king. At both those periods the nation had lost the bond of union in their ancient edifice; they did not, however, dissolve the whole fabric. On the contrary, in both cases they regenerated the deficient part of the old constitution through the parts which were not impaired. They kept these old parts exactly as they were, that the part recovered might be suited to them. They acted by the ancient organized states in the shape of their old organization, and not by the organic moleculae of a disbanded people. (p. 106)
Burke goes further than arguing that in order for a state to continue it must be in possession of the means to excise those parts that are moribund or infectious. A healthy constitution has analogically the same patterns and processes of the natural world overseen by a divine order.
By a constitutional policy, working after the pattern of nature, we receive, we hold, we transmit our government and our privileges in the same manner in which we enjoy and transmit our property and our lives. The institutions of policy, the goods of fortune, the gifts of providence are handed down to us, and from us, in the same course and order. Our political system is placed in a just correspondence and symmetry with the order of the world and with the mode of existence decreed to a permanent body composed of transitory parts, where in, by the disposition of a stupendous wisdom, molding together the great mysterious incorporation of the human race, the whole, at one time, is never old or middle-aged or young, but, in a condition of unchangeable constancy, moves on through the varied tenor of perpetual decay, fall, renovation, and progression. Thus, by preserving the method of nature in the conduct of the state, in what we improve we are never wholly new; in what we retain we are never wholly obsolete. By adhering in this manner and on those principles to our forefathers, we are guided not by the superstition of antiquarians, but by the spirit of philosophic analogy. [my emphasis]
Burke’s rationalist critics don’t like these sorts of passages. They move too far from what Burke calls ‘the dry, imperative style of an act of parliament’. Whatever the critics may say about its alleged fluffiness in a discourse on law, the passage presents a powerful image of the vital workings of nature which functions as a straightforward argument from analogy and, I maintain, a strong one. An essential feature of the image is nature’s irresistible process of growth and rejuvenation after shedding its dying parts, paralleling the duty inherent in the Constitution to ensure its continuity in a similar way. We must note in the final sentence Burke’s placing the ‘spirit of philosophic analogy’ above the prescriptions of antiquity – the development of law, time out of mind. Burke speaks of a ‘principle of reverence to antiquity’, but that principle does not operate outside the supervision of reason.
Finally, to further support my claim that the Whigs of 1688 were not only as much subject to Burke’s idea of political obligation as were Burke’s contemporaries, but were fully conscious of it in their actions, we have this crucial passage that parallels the arguments in An Appeal for an objective grounding of political obligation. Note Burke’s stipulation that reason, meaning moral reason, was sovereign in the Whigs’ deliberations.
It is indeed difficult, perhaps impossible, to give limits to the mere abstract competence of the supreme power, such as was exercised by parliament at that time , but the limits of a moral competence subjecting, even in powers more indisputably sovereign, occasional will to permanent reason and to the steady maxims of faith, justice, and fixed fundamental policy, are perfectly intelligible and perfectly binding upon those who exercise any authority, under any name or under any title, in the state.
The passage begins with the distinction between judgment and thinking divorced from concrete circumstances (that is, purely abstract thinking) and the moral judgment appropriate in particular circumstances, that is, reason accompanied by ‘faith, justice, and fixed fundamental policy.’ ‘Faith’ in this context, as we have seen in An Appeal and will appear below, is faithfulness to the compacts or agreements made and implicit in a people’s constitution. It is a clear statement of the moral obligation inherent in any healthy polity. Then Burke turns to the elements of the British Constitution.
The House of Lords, for instance, is not morally competent to dissolve the House of Commons, no, nor even to dissolve itself, nor to abdicate, if it would, its portion in the legislature of the kingdom. Though a king may abdicate for his own person, he cannot abdicate for the monarchy. By as strong, or by a stronger reason, the House of Commons cannot renounce its share of authority. The engagement and pact of society, which generally goes by the name of the constitution, forbids such invasion and such surrender. The constituent parts of a state are obliged to hold their public faith with each other and with all those who derive any serious interest under their engagements, as much as the whole state is bound to keep its faith with separate communities.Otherwise competence and power would soon be confounded and no law be left but the will of a prevailing force. [My emphasis]
I emphasise this last sentence to make clear that Burke is saying what he repeated in An Appeal: the breakdown of an objectively grounded obligation would subject the people to the will and whim of those that have usurped authority from a constitution protected by that obligation.
On this principle the succession of the crown has always been what it now is, an hereditary succession by law; in the old line it was a succession by the common law; in the new, by the statute lawoperating on the principles of the common law, not changing the substance, but regulating the mode and describing the persons. Both these descriptions of law are of the same force and are derived from an equal authority emanating from the common agreement and original compact of the state,communi sponsione reipublicae[from the common engagement of the state], and as such are equally binding on king and people, too, as long as the terms are observed and they continue the same body politic. [my emphasis]
Note here the Aristotelian/Thomistic distinction here between accident and substance. Changes can be made to the Constitution without changing its essential character. It’s another indication that Burke was not a hardline traditionalist.
Although the Test and Corporations Act were an incoherence in the British Constitution, and the law of succession in the context of the Constitution could never claim permanence, it pains me to recognise that wisdom in political action was more on the side of the Whigs in 1688 than on the side of James II and his supporters and without pain to recognise that Burke’s defence of the Constitution in the face of the French revolutionary threat was the same defence the Whigs invoked to justify the 1688 Revolution. In both cases the same idea of political obligation was an essential feature.