BURKE’S POLITICS AND THE LAW OF NATURE

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BURKE’S POLITICS AND THE LAW OP NATURE

by Peter J. Stanlis

A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the University of Michigan

1951

Committee in charge: Professor Associate Professor Associate Professor

Louis I. Bredvold, Chairman Professor John Arthos William Frankena Professor Henry V, Ogden Paul Spurlin

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PREPAGE

It has been my purpose in this thesis to describe in de­ tail the ultimate moral and legal basis of Burke's political theory.

Since 1867 , when John Llorley's first book on Burke

appeared, Burke's complex political thought has been examined by many competent scholars, and the consensus of opinion has been that his political philosophy is founded in a conserva­ tive Utilitarianism,

My investigations of Burke's speeches,

correspondence and works, and of the replies written to his Reflections, have led me to conclude that Burke's political theory is centered not in Utilitarianism, but in the classi­ cal Law of Nature. -dual sense—

I have used the term '‘politics" in a

first as it applies to Burke's handling of the

particular issues and ideas he encountered during his career as a practical statesman, and secondly in an Aristotelian sense, as it applies to his political theory.

This particular

and general use of "politics" is necessary and warranted, be­ cause of the close fusion of practice and theory in Burke's action and thought. In the first three chapters I have tried to determine the extent to which, in every important political issue, Burke appealed to the classical Lav/ of Nature.

Throughout these

chapters, in describing the theory of the Law of Nature and Burke's appeals to it in practical affairs, I have attempted to set both Burke's theory and practice in an historical frame of reference,

I have found it necessary in chapter four ii

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to distinguish Burke’s conception and application of th9 Law of Nature from the appeals to "natural rights" of some of his contemporary critics.

This distinction is most

clearly expressed in the antithesis between "nature" and "art," as found in the replies to Burke's Reflections. Among some of Burke's English predecessors and contemporaries who appealed to "Nature," there were other important digres­ sions from the classical Law of Nature, particularly in the confusion between a "descriptive" and "normative" conception of Nature, but I have had to omit this side of the problem. Finally, in the last two chapters, I have tried to show how fundamental the classical Law of Nature is in Burke's theories of human nature and of Church and State. The best available edition of Burke's letters is The Correspondence of Edmund Burke. ed,, Earl Fitzwilliam (London, l8i|lj.), in four volumes, and I have supplemented this with The Epistolary Correspondence of Edmund Burke, ed., Dr. French Laurence (London, 1827).

Throughout my thesis I have called

the first collection of letters Correspondencet and the second Laurence Correspondence.

Other references to Burke's letters,

drawn largely from the Bohn edition of Burke's works, are iden­ tified as they are used.

All the references designated Speeches

are taken from The Speeches of Edmund Burke (London, I8l6 ), in four volumes.

Throughout my study I have used the Bohn edition

of Burke's Work3 (London, I 85I1 ), in six volumes, prefaced by the fifth edition of James Prior's Life of Burke. and as an aid to the reader, in my quotations and references I have iii

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always identified the particular work and page rather than the volume in which it appears. It is a pleasure for me to acknowledge my deep obliga­ tions to Professor Louis I. Bredvold, Chairman of my thesis committee, and to the committee members, Professors Henry V. Ogden, Paul Spurlin, John Arthds and William Frankena, for their many friendly and helpful criticisms of each chapter.

Peter J. Stanlls Detroit, Michigan April, 19f?l

iv

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CONTENTS •.

Preface......................... I.

The Theory of the Law of Nature • • • • • • •

1

II. Burke and the Law of Nature.................. 26 III. Burke and the Law of Nations IV.

• • • • • • • •

91

The Antithesis of Natural and Civil Society: Burke and the English ’Natural Rights’ Tra­ dition . . • • • • • • • • • .............

lf?7

V. Burke’s Theory of Human Nature • • • • • • • VI. Burke’s Theory of Church and VII.

Conclusion

State • • . • • 296 • • • • • •

Bibliography...............

221

3U-Q 35>3

v

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. ii

BURKE’S POLITICS AND THE LAW OP NATURE Chapter I The Theory of the Law of Nature 1 • The Importance of Burke1s Reflections. II. Burke, Mackintosh and the Law of Nature. III. The Law of Nature and political sovereignty. The French Revolution touched off many bitter contro­ versies about the nature of civil society, of man, and of the moral and legal basis of Church and State, but perhaps none of these controversies is as stimulating and profitable for scholars in the history of ideas as that contained in Burke’s Reflections on the Revolution in France (1790), and some of the many replies that were written to it.

Burke was the first

public man to realize that the revolution was far more than an alteration in the government of France.

In November, 1792,

Burke wrote to his son that the revolution was "an event which has nothing to match it, or in the least to resemble it, in history."1

He felt that the revolution violated "the whole

system of policy on which the general state of Europe has o hitherto stood," that the revolutionists tried to make themselves "paramount to every known principle of public law in Europe,"

and that they sought to establish "principles

1Correspondence. IV, 24. See also, pp. 82-83, 208 and 211. 2 Ibid.. Appendix, p. 519. ^Ibid..

p.

544. 1

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2 subversive of the whole political, civil, and religious A

system of Europe."

In 1796 Burke summarized his impressions

of the strange and powerful effect the revolution had produced on menfs imaginations: Out of the tomb of the murdered monarchy in France has arisen a vast, tremendous, unformed spectre, in a far more terrific guise them any which ever yet have over­ powered the imagination, and subdued the fortitude of man. Going straight forward to its end, unappaled by peril, unchecked by remorse, despising all common max­ ims and all common means, that hideous phantom over­ powered those who could not believe it was possible she could at all exist. • • .5 For Burke the revolution was "a total departure . . . from every one of the ideas and usages, religious, legal, moral, or social, of this civilized world;" it had "made a schism with the whole universe."

In short, It was "a revolution

in dogma," the practical culmination of all the emancipat­ ing doctrines and sentiments released since the Protestant ReformatIon--the ever increasing secularism of the Renais­ sance, the dynamic Interaction and growth of empirical and speculative philosophy, of social sensibility, and of the use of the scientific method for "progress

Among other reasons,

4Ibid., p. 647. ^Regicide Peace (1796), p. 155. See also. Morley. Edmund Burke: A Historical Study (London, 1867), pp. 264-2551 6Ibi&*«. p. 215. See also, pp. 219, 232-234, 243-245, 304305 and 415; Morley, Edmund Burke: A Historical Study, p. 236. 7For Burke’s comparison of the Revolution with the Reforma­ tion, see French Affairs, pp. 350-352. See also, Morley, Ed­ mund Burke: A Historical Study, pp. 225-240, 273-274 and 551.

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the Reflections is Important because In this work Burke stripped to their essential forms the theories of civil so­ ciety, human nature and Church and State, which had caused the revolution, pointed out the fallacies and dangers of these theories, and by advancing an alternative social theory ral­ lied public opinion in Britain and Europe against the revo­ lution* If we consider only Burke's immediate practical inten­ tion, his Reflections was perhaps the most successful book of the English Enlightenment, and it was almost totally op­ posed to the prevailing spirit of the age.

So clearly and

eloquently did Burke analyze the basic issues and social the­ ories raised by the revolution, that the people of Britain were almost immediately divided into two distinct groups for or against it.®

The first British edition of the Reflections

sold 12,000 copies in the first month; in less than a year there were eleven editions, and by 1796 about 30,000 copies had been sold.^

For that era, when a book was circulated

among many readers and was frequently read to large public groups, this was a phenomenal achievement.

So remarkable was

its immediate effect, that the Reflect ions became the focal ®For the division of public opinion between Burke and his opponents, see Samuel Bernstein, "English Reactions to the French Revolution," Sci. and Soc., 9 No. 2 (1945), pp. 147-171 ®See Thomas W. Copeland, Our F.mlnnnt Friend Edmund Burke (Yale Univ. Press, 1949), p. 191; Morley. Burke (tiondon. 1879), p p . 151-155. -----

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4 point for all private and public discussions of the revolu­ tion.

Wilberforce, the ardent advocate of emancipation for

slaves, praised Burke as the man vho "had stood between the living and the dead until the plague was stayed."1°

Reynolds

and Gibbon greatly admired the Reflections, the latter writ­ ing of it:

"Burke's book is a most admirable medicine against

the French disease.

I admire his eloquence; I approve his

politics; I adore his chivalry; and I can almost forgive his reverence for church establishments."^

Of course the King

said in public that it was "a very good book," which "every gentleman ought to read."

In November, 1796, Earl Fltz-

william wrote to Burke and estimated the practical effect his Reflections and other writings on French affairs had produced in Britain:

"You, my dear Burke, by the exertion of your

great powers, have carried three-fourths of the public. • . . Your labours . . . have produced [an] effect in the country beyond expectation."^

The French translation, reputed to

have been done in part by the Imprisoned Louis XVI, enjoyed an even greater contemporary triumph throughout Europe: Le succes de cette publication avait ete Immense; trente mille exemplalres s'etaient vendus dans une seule annee, et tous les peuples de 1 'Europe avalent pu lire cette 10Wilberforce, Diary. I, 284. ^Quoted by James Prior, Life of Burke (London, 1854), p . 515. 12Burke's Correspondence. IV, 356 and 359.

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5 oeuvre remarquable, traduite dans toutes las langues das son apparition. . . . La premiere traduction francalse, faita d'apres la 3*- edition anglaise, parut a Pa^is an 1790. La manuscrit fut distribu^, par parties, a trois Imprimeriea at imprime*en huit j o u r s O n fit cinq editions de cetta traduction do 1790 a la fin da 1791.13 For writing the Reflections. Catherine the Great of Russia and King Stanislas of Poland sent letters of congratulations to Burke.

Among the revolutionists in Franca, Burke was of

course strongly denounced:

Mirabeau spoke warmly against the

Reflections in the National Assembly, and Jean-Baptiste Cloots, the eccentric Prussian Jacobin, sent Burke an ironic invitation to France:

"Quittez votre lie, mon cher Burke; venez en France,

si vous voulez jouir du plus magnlfique spectacle dont l'entendement du philosophe puisse $tre frappe."^

When the four­

teenth edition of the Reflections appeared, Romllly, a mod­ erate man who for a while sympathized with the revolution, "wondered whether Burke was not rather ashamed of his success.

From every class of people and many parts of 1g

Europe

Burke1s book provoked a grand chorus of praise and

censure which reverberated through all discussions of the French Revolution. ^®Rene Bazin, "Edmund Burke et la Revolution," Revue de L 1Anjou (Nouvelle Serie), Jan., 1882, Tome Quatrieme, p • 3*3• ^Jean-Baptiste Cloots, Addresse d fun Prusslen a un Anglais (Paris, 1790), p. IS"! See also, p. 49. ForTJurke on Cloots, see Speeches. IV, 77-78. •^^orley, Burke, p. 153. ^■®See Robert H. Murray. Edmund Burke (London. 1931). ----------pp. 372-374.

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In Britain the immediate political consequence of Burke*s Reflections was a sharp split In the Whig party.

Burke as­

sumed the unofficial leadership of the anti-revolutionary minority, and Pox and Sheridan, his life-long political friends, 17 headed the opposition. Their differences were hotly debated through many issues on the floor of Parliament,

18

and came to

a climax on April 21, 1791, when Burke solemnly renounoed 19 Fox's friendship. Within three years Burke's eloquence and the dire events in France which he had predicted with such 20 amazing accuracy, had drawn most of the nation and Fox's supporters to Burke's side, but as Edmond Malone noted in May, 1794, personal animosities continued unabated:

"We are

now so distracted by party there, [at the Literary Club] in consequence of Burke and Windham, and I might add the whole nation, being on one side, and Fox and his little phalanx on the other, that we in general keep as clear of politics as 21 we can." If such friction existed among Burke's friends, we may well understand the Intense revulsion provoked by the Reflections among those who believed ardently in the revolu­ tion.

As we shall see in Chapter IV, such well known

17Ibld.. pp. 374-376. 18

See Burke's Speeches. IV, 1-152, especially 75-76. 19, Ibid., p p . 22-23. 20 See Morley, Burke, pp. 155-156. 21 Quoted by Donald C. Bryant, Edmund Burke and Els Liter­ al. friends. Washington Univ. Studies— New Series fs't. Louis,

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7 republican zealots as Dr. Price, Dr. Priestley, the Godwins, Mrs. Macaulay Graham, Paine and Mackintosh, and even Burke's colleagues, George Rous and Earl Stanhope, savagely attacked his work.

In addition to these there were replies from many

obscure pamphleteers, such as Joel Barlow, William Belsham, Sir Brooke Boothby, Benjamin Bousfield, Thomas Broome, Thomas Cooper, Norman MacLeod, Charles Pigott, Thomas Spence, Francis Stone, Mark Wilks, David Williams and Christopher Wyvill.

In­

cluding the large number of anonymous tracts published by the various radical clubs and societies, there were at least thirty-eight direct "replies"22 and several defenses2® of the Reflections. Burke's most famous opponent, Tom Paine,

*

achieved with his Rights of Man an even more popular success. Indeed, these two men have come to be regarded by many schol­ ars as symbols of the great conflict in ideas of their era: "Burke and Paine stated in their most uncompromising form the conservative and the democratic position."24

"The polemic be­

tween Burke and Paine divided British public opinion into

22See Carl Cone, "Pamphlet Replies to Burke's Reflections," Soc. Scl. Quart.. Vol. XXVI (June, 1945), 22-34. Cone makes use of only twenty-one replies. What constitutes a "reply" is debatable, as some men attacked Burke in the process of. discussing the revolution. 23 See for example, Thomas Townshend, A Summary Defence of Burke (London, 1796). This book answers—the attacks of Wake­ field, Corry and Miles. 2^George M. Trevelyan, History of England (London, 1926), p • 564•

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8 Burkeites and Paineites."

25

"The great controversy in which

Burke and Paine were the principle antagonists was perhaps the most crucial ideological debate ever carried on in English."26

Paine's reply was by far the most popular answer

to Burke, and serves to illuminate the enormous contemporary importance of the Reflections in discussing the revolution. For the purposes of our study, however, Burke's Reflec­ tions is not important because it clarified the social Issues of the revolution, but because it was the focal point of all political discussions on the Law of Nature and "natural rights." The practical social controversies that divided Europe, Britain and the Whigs over the Reflections were but the surface mani­ festation of a far deeper conflict in political theory— a con­ flict centered largely in the meaning of such words as "Nature" and "Reason," "natural" and "artificial," and such phrases as "Natural Rights"

andthe "Law of Nature,"

In Chapter II and

again in Chapter

IIIwe shall determine the extent to which

the conception of the Law of Nature appears in Burke, and In Chapter IV we shall analyze the contemporary meanings of "Natural Rights"

andnote how they compare with Burke's con­

ception of "Nature."Throughout these and

later chapters it

will become evident why, in the conflicting political theo­ ries that raged about "Nature," the most vital role was played by the Reflections.

25Bernstein, o£. cit., p. 159. See also, pp. 149-150. 26Copeland, 0£. cit., p. 148. See also, pp. 172-182.

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9 II By far the most competent criticism against Burke's Reflections Is James Mackintosh's Vindlclae Galllcae. which appeared in April, 1791,

In a sense Mackintosh's reply may

be considered our first point of departure in analyzing the Law of Nature in Burke's political thought, because in the change of opinion which Mackintosh experienced between 1791 and the publication of his A Discourse on the Law of Nature and Nations in 1799, we have the first recognition by one of Burke's critics of the importance of "Nature" in Burke's thought*

To understand Burke's part in Mackintosh's change •

of opinion, it is necessary to summarize their relationship beginning with the appearance of Mackintosh's reply to th| > Reflections. William Hazlltt attests to the popularity a&d esteem with which the Vindlclae Galllcae was received: “

"It I -

t

was cried up by the partisans of the new school, as a worhj superior in the charms of composition to its undoubted rivlal: in acuteness, depth, and soundness of reasoning, of course* V 27 there was supposed to be no comparison •" Soon after its publication Burke wrote to his friend Dr. Laurence: not read, or even seen Macintosh; —

"I have

but Richard tells me that

it is Paine at bottom; and that indeed all the writers against me are, either Paines, with some difference in the way of Oo stating, or even myself." Richard Burke's report to his 27Hazlitt, The Spirit of the Age, p. 100. 28£gS£ence Correspondence, (London, 1827 ), p. 241 . Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.

10 father was not strictly accurate.

Mackintosh’s work was really

a mixture of Paine’s "natural rights" theory and the current Utilitarianism; it was an intelligent and liberal Whig expres­ sion of the glowing optimism and widespread hope which the revolution had inspired up to April, 1791.

Burke must have

read Mackintosh shortly afterwards, because in December, 1792, he rose in the House of Commons and complained that Sheridan, like "Mr. Mackintosh and other writers of less eminence" garbled him by "taking a detached passage without explaining it by what followed or went before it."29

Even more than

Burke’s writings, however, events across the Channel caused Mackintosh gradually to modify his original enthusiasm, so that when the first tlzree of Burke’s ^Letters on a Regicide t Peace appeared late in* 1796, Burke was pleasantly surprised i

to note the grave decofjum, candor and moderation with which i

Mackintosh criticized his work in letters to The Monthly Re­ view for Nov. and Dec., ^.796.

Writing to Dr. Laurence in

Dec., 1796, Burke expressed some ambivalent feelings about the apparent change in Mackintosh's political views: I forgot to speak to you about Mackintosh's supposed conversion. I suspect by his letter, that it does not extend beyond the interior politicks of this Island, but that, with regard to France and many other coun­ tries, he remains as frank a Jacobin as ever. This conversion is none at all; but we must nurse up these nothings, and think these negatives advantages as we can have them. Such as he is, I shall not be displeased if you bring him d o w n .30 29Speeches. IV, 75. ^^Laurence Correspondence. pp. 106-107.

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11 As we shall have occasion later to consider the ”law of na­ tions” in Burke’s politics, it is important to note that Burke's doubts centered in Mackintosh’s view of international relations; nevertheless, he arranged through Dr. Laurence to have the Scotsman visit him during Christmas, 1796.

Accord­

ing to Hazlitt, "He sent an invitation to the writer to see him; and in the course of three days’ animated discussion of such subjects, Mr. Mackintosh became a convert not merely to the graces and gravity of Mr. Burke's style, but to the lib­ erality of his views, and the solidity of his opinions.



The Lincoln's Inn Lectures were the fruit of this inter31 view." Hazlitt attributed the "sudden and violent change in Sir James' views and opinions" to his "personal interview" with Burke, so that it is significant that the first series of his thirty-nine Lincoln's Inn Lectures, published in 1799, should be called A Discourse on the Law of Nature and Nations. Hazlitt recognized that Mackintosh's "recantation" of Vlndlciae Galllcae resulted from his "slow, reluctant, pain­ ful admission" of disillusionment in the revolution, similar to that which overtook Wordsworth, Coleridge, Southey and 3^Hazlltt, The Spirit of the Age, p. 100. For Burke's letter to Mackintosh, seeTTobert M. Mackintosh. Memoirs of the Life of Sir James Mackintosh (Boston, 1853;, "T, 8&-9S7 Hazlitt's account agrees with that of Lois Whitney. Primitiv­ ism and the Idea of Progress (Johns Hopkins Press, 1934), pp. 224-226. For a different account of the origin of Mackintosh's lectures, see B. Sprague Allen, "Minor Disciples of Radicalism In the Revolutionary Era," Modern Philology, Vol. XXI (1923-1924), 294. -------------

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12 many others: The volcano of the French Revolution was seen expiring in its own flames, like a bonfire made of straw: the principles of Reform were scattered in all directions, like chaff before the keen northern blast* * . . The havoc was amazing, the desolation was complete* As to our visionary sceptics and Utopian philosophers, they stood no chance with our lecturer— he did not 'carve them as a dish fit for the gods, but hewed them as a carcase fit for hounds•' Poor Godwin, who had come, in the bonhommie and candour of his nature, to hear what new light bad broken in upon his old friend, was obliged to quit the field, and slunk away after an exulting taunt thrown out at 'such fanciful chimeras as a golden mountain or a perfect man*'32 Through Mackintosh's "Lectures on the Law of Nature and of Nations," the mighty spirit of Burke, like Caesar at Philippi, still walked abroad in triumph after death*

As we shall see,

the "new light" which "had broken in upon" Mackintosh from his conversations with Burke, was none other than the ancient theory of the Law of Nature, which had permeated the moral, • religious,legal, and political thought of the Greek, Roman and Medieval civilizations, and had profoundly influenced all 33 English thought since the Renaissance. Mackintosh's "new light" shines everywhere throughout A Discourse on the Law of 32Ibld., p. 98* 33For the Importance of the Law of Nature in the ancients' politics, see George H* Sabine, A History of Political Theory (New York, 1937), pp. 3-197. See” also* Essays"in Political Theory Presented to George H, Sabine, ed* by M.”Tf. Konvitz and A. E. Murphy (Cornell Univ.“Press, 1948), pp. 17-61. The Law of Nature in Mediaeval political theory is available in the monumental scholarship of R. W. Carlyle and A. J. Carlyle, A Mediaeval Political Theory in the West (London, “ 1928-1936T, 6 v. See also* Sabine, op* cit.. pp. 198-414* For the Law of Nature in political tSought since the Renais­ sance, see Sabine, o£. cit.* p. 415 ff.

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13 Nature nn^ Nations, and his argument Is in effect an historical review of the theory of the Law of Nature as propounded by Aristotle in his Ethics and Rhetoric, by Cicero in his De Republics. De Leglbus and De Offlclis. by Seneca in De Beneficlls. De Otio and De Tranqulllltate.--works ifaich were codi­ fied by Paulus and systematized into the Roman law in the Digest and Institutes of Justinian.

Mackintosh's work con­

tains the same theory of law that is found in the writings of St* Ambrose, St. Augustine, St. Gregory and other Church Fathers, whose works were expanded into the canon law of the Church by St. Thomas Aquinas, and paralleled the civil laws as expounded by Bracton.

Mackintosh's new light illuminates the legal and

social writings of Hooker, Bacon and Coke; it radiates from the work of the Cambridge Platonlsts, and from such Anglicans as Bramhall and Cumberland, who attacked Hobbes' revolutionary interpretation of the Law of Nature.

It appears In the works

of such continental writers as Suarez, Grotius, Puffendorf, Vattel and Helnecclus; it is found in Locke, Shaftesbury, Bolingbroke and Blackstone; the Americans made the Law of Nature the basis of their resistance to British tyranny.

In­

deed, Mackintosh noted that the Law of Nature had been "uni­ formly taught . . . by a succession of wise men from the first dawn of speculation to the present moment."^

There can be

little reason to doubt that he learned this fact, however Mackintosh, The Law of Nature and Nations (London. 1799). p. 27,

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14 imperfectly, from his three days of conversation with Burke. Perhaps the Law of Nature can best be understood by see­ ing what, "from the first dawn of speculation to the present moment," various "wise men" have said about it.

The follow­

ing quotations should be read as something more than an il­ lustration of the consistency and duration of the Law of Nature in history, for in the chapters that follow we shall have oc­ casion to return frequently to the ideas in them. c. 340 B.C. Aristotle: Political justice is partly natural, partly legal. Natural justice is that which everywhere has the same force and does not exist by people's thinking this or that. (Ethics, v. 7). Partic­ ular law is that which each community lays down and ap­ plies to its own members. . . . Universal law is the law of nature. For there really is, as everyone to some extent divines, a natural justice and injustice which binds all men. (Rhetoric, i. 13). c. 54 B.C. Cicero: Right reason is indeed a true law which is in accordance with nature, applies to all men, and is unchangeable and eternal. By its commands this law summons men to the performance of their duties; by its prohibitions it restrains them from doing wrong. Its commands and prohibitions always Influence good men, but are without effect upon the bad. To invalidate this law by human legislation is never morally right, nor is it permissible ever to restrict its operation, and to annul it wholly is impossible. Neither the Senate nor the people can absolve us from our obligation to obey this law. . . . It will not lay down one rule at Rome and another at Athens, nor will it be one rule today and another tomorrow. But there will be one law, eternal and unchangeable, binding at all times upon all peoples; and there will be, as it were, one common master and ruler of men, namely God, who is the author of this law, its interpreter, and its sponsor. The man who will net obey it will abandon his better self, and, in denying the true nature of man, will thereby suffer the severest of penalties, though he has escaped all the other con­ sequences which men call punishment. (De Republics. Ill, . 533 A.D. Justinian: Natural laws which are observed among all nations are due to a divine providence. They

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15 remain in full force and are immutable• tit. 2.).

(Pandects. I.

c. 1268 Henry Bracton: The King himself ought not to be subject to any man, but he ought to be subject to God and the law, since law makes the King* Therefore let the King render to the law what the law has ren­ dered to the King, vis, dominion and power, for there is no King where will rules and not the law* (Tractatus de Legibus. f • 5 b •)• 1275 St* Thomas Aquinas: Since all things subject to Divine providence are ruled and measured by the eternal law* • • it is evident that all things partake somewhat of the eternal law, in so far as • • • from its being imprinted on them, they derive their respective inclina­ tions to their proper acts and ends* Now among all others, the rational creature is subject to Divine prov­ idence in the most excellent way, in so far as it par­ takes of a share of providence, by being provident both for Itself and for others* • • • This participation of the eternal law in the rational creature is called the natural law* • • • Every human law has just so much of the nature of law as it is derived from the law of na­ ture* But if at any point it deflects from the law of nature, it is ho longer a law but a perversion of law* (Summa Theologies. I, 2, Q. xcl, art. 2* Q* xcv, art. 5.). 1593 Richard Hooker: This law [of nature] we may name Eternal, being that order which God, before all ages, has set down with Himself to do all things by • • • • The [natural] laws . . . do bind men absolutely even as they are men, although they have never any settled fellow­ ship, nor any solemn agreement among themselves what to do or not to do. • • • Human laws are measures in respect of men whose motions they must direct. . . . Such mea­ sures have also their higher rules to be measured by: which rules are two, the Law of God and the Law of Na­ ture. So that laws must be made according to the gen­ eral law of nature* (Ecclesiastical Politv. I. ii. 6: I. x, 1; III. 9.). 1608 Francis Bacon: For there are in nature certain fountains of justice whence all civil laws are derived, but as streams; and like as waters do take tinctures and tastes from the soils through wdiich they run, so do civil laws vary according to the regions and governments where they are planted, though they proceed from the same foun­ tain. (Dig, and Adv. of Learn.. Works. I, p. 101j • As the common law is more worthy than the statute law, so the law of nature is more worthy than them both. • • • Our law is grounded upon the law of nature. (Argument in Calvin^ Case.. Works. XV, pp. 202, 225.).

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16 1608 Edward Coke: The Law of Nature was before any judicial or municipal law and la Immutable* The Law of Nature Is that which God at the time of the creation of the nature of man Infused into his heart for his preserva­ tion and direction; and this is the Eternal Law, the Moral Law, called also the Law of Nature* (Calvin's Case, note, 7 Hep• 12a•)* 1612 Francis Suarez: The rational basis of the Law of Nations • • • consists in the fact that the human race, howsoever many the various peoples and kingdoms into which it may be divided, always preserves a certain unity, not only as a species, but also, as it were, a moral and political unity called for by the natural precept of mutual love and mercy, which applies to all* • • • For just as in one state or province law is intro­ duced by custom; so in the human race as a whole, it was possible for laws to be introduced by the habitual conduct of nations, and all the more because the matters comprised within this latter system of law are few, and very Closely related to the Natural Law, and most easily deduced therefrom in a manner so advantageous and so in harmony with nature Itself, that while this derivation of the law of nations from Natural Law may not be selfevident, that is, not essentially and absolutely required for moral rectitude, it is nevertheless quite in accord with nature and universally acceptable for its own sake* (De Leglbus ac de Deo Legislators. II, c* xix.). 1625 Hugo Grotlus: The Natural Law is the dictate of right reason which points out that a given act, because of its opposition to or conformity with man's rational nature, is either morally wrong or morally necessary, and accordingly forbidden or commanded by God, the Author of nature* • • • Many human laws may be established supplementing the Natural Law, but they cannot contra­ dict it. (De Jure Belli et P a d s . I* i. 10). 1672 Puffendorf: We may call it [the law of nature] likewise the Law Universal or Perpetual, the former, in regard that it binds the whole Body of Human Race, the latter, because it is not subject to change* (Of the Law of Nature and Nations (Oxford, 1703), p* 95* 1690 John Locke: Municipal laws are only so far right as they are founded on the law of Nature, by which they sure to be regulated and interpreted* (Second Treatise on Civil Government, c. 2, s* 12*). 1758 Earnerich de Vattel: As men are subject to the laws of nature and as their union in civil society cannot ex­ empt them from the obligation of observing those laws,

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17 . . • the whole nation • • • remains subject to the laws of nature and Is bound to respect them In all Its undertakings. (Le Droit des Gens. Int. 5). 1765 William Blackstone: This law of nature, being co­ eval with mankind, and dictated by God himself, Is of course superior In obligation to any other. It Is binding over all the globe, In all countries, and at all times: no human laws are of any validity, If contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or Immediately, from this original* (Commentaries on the Laws of England. Chitty ed., New York, 1852), 1, 27-557 In summarising these passages, we find that up to the revo­ lutionary period men agreed upon the following general facts concerning the Law of Nature:

(1) that It is derived from

God, its author and Interpreter; (2) that it is eternal, un­ changeable, universal and uniform, and therefore binding at all times and upon all individuals, races, nations and govern­ ments; (3) that it is the ultimate ethical norm for the various national laws which are derived from It; (4) that It can eas­ ily be understood through man's "right reason" and Instincts, 35 and that happiness consists in living according to it. These principles, variously combined, emphasized and applied, are the fundamental elements in the classical Law of Nature which we shall discuss throughout our study of Burke. We may measure Burke's general influence upon Mackintosh's thought by summarizing the differences between his Vlndlclae Galllcae and A Discourse on the Law of Nature and Nations. The first work combines within the revolutionary "natural 35 Compare these points for similarities and differences with Miss Whitney's account of the Laws of Nature in the eighteenth century. See Whitney, o£. cit.. p. 10.

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18 rights" and Utilitarian framework, a general antithesis be­ tween "art" and "nature," a love of simplicity in man's civil institutions, an inplicit faith in man's natural benevolence, a strong glowing belief in empirical philosophy, in the demonstrability of ethics through scientific method and their appli­ cation to human affairs, a profound social sensibility, a con­ viction in inevitable progress, and a belief in the sovereignty of the general will*

All of these ideas are found in varying

degrees in the political theory of the revolutionists*

In his

second work Mackintosh reveals a deeper sense of religion, a stronger consciousness of historical continuity, a profound awareness of men's individual differences in various civil societies, and the resulting complexity of men's natures and institutions— all of which were lacking in his first work.

His

Utilitarianism is subdued, his sensibility is much abated, there is no talk of "natural rights" or progress, and the distinction between "art" and "nature" is implicitly understood.

These

differences cannot be accounted for by the different inten­ tion of each work* they reveal a fundamental change in belief. Throughout The Law of Nature and Nations, the great num­ ber of quotations from and references to Aristotle, Cicero, Bacon, Hooker, Grotius, Puffendorf and others, including Burke himself, prove that Burke had led his convert to the clearest and deepest springs from which the theory of the Law of Nature had flowed, and that the Scotsman had drunk liberally in the

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19 tradition.®®

Mackintosh confessed his faith in "the sacred

code promulgated by the great Legislator of the Universe;" and then defined the Lav of Nature in almost all its richness: The lav of nature • . • may vith sufficient correctness • • • be called a 'lav,' inasmuch as it is a supreme, in­ variable, and uncontrollable rule of conduct to all men, of vhich the violation is avenged by natural punish­ ments, vhlch necessarily flov from the constitution of things, and are as fixed and inevitable as the order of nature. It is the lay of nature, because its general precepts are essentially adapted to promote the happi­ ness of man, as long as he remains a being of the same nature vith vhlch he is at present endoved, or, in other vords, as long as he continues to be man, in all the variety of times, places, and circumstances, in vhich he has been knovn, or can be imagined to exist; because it is discoverable by natural reason, and suitable to our natural constitution; because its fitness and vladom are founded on the general nature of human beings, and not on any of those temporary and accidental situations in vhich they may be placed .37 The vital distinction vhich Mackintosh dravs betveen "the general nature of human beings," and men "in all the variety of times, places, and circumstances," ve shall meet again in Burke*s principle of prudence and use of the lav of nations against the revolutionists.

From Mackintosh*s relationship

vith Burke several vital questions arise vhich ve shall have to oonsider.

First of all, vhat vas there in Burke*s political

philosophy to cause Mackintosh, after his meeting vith Burke, to make the Lav of Nature the basis of his attack on the French 36 Since Cicero strides like a giant through all discussions of the lav of nature, and Burke quoted him more than any other ancient vriter, Mackintosh's quotations from De Republics and De Legibus are especially significant: See TEe Lav of Nature and Nations. pp. 10 -11 , 35, 39, 42, 61, 65 anJ”657“ For"EIs— remarks on the lav of nations, see his use of Grotius and Puffendorf, pp. 15-32. 37m

The Lav of Nature and Nations, pp. 8-9.

See also, p. 67.

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Revolution? of Nature?

How well did Burke know the tradition of the Law To what extent did he accept it and appeal to it

in his speeches and political works?

Before answering these

and other related problems in Chapter II, there Is one other vital point concerning the Law of Nature which must be briefly considered.

Ill Throughout European history those who have accepted the normative ethical code contained in the Law of Nature, have been led by its principles to assert a theory of political sovereignty very different from that propounded by those who have denied the Law of Nature.

Since in Chapter II we shall

examine in detqil Burke's theory of sovereignty as it is related to the Law of Nature, it is imperative to understand how sovereignty and the Law of Nature have traditionally been related.

The question of sovereignty determines what makes

an act just, that is, how will or action is related to reason, law or ethics.

Among the ancients and medievalists this prob­

lem was generally stated in abstract moral or theological terms such as the following:

Does the power to do a thing constitute

the right to do it, or is power circumscribed by legal right? Is a thing good because God wills it, or does God will It be­ cause, in and of itself, It is good?

Is God primarily a Being

of will and power, or of reason and law?

Does God's power

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21 make or follow His reason and law?

38

Until the appearance of

Calvin's Institutes of the Christian Religion (1536), there was almost universal agreement among adherents to the Law of Nature that God's nature was centered in reason or law rather than in will or power, and that therefore God in His sovereign­ ty willed things because they were good, and forbade things because they were evil, rather than the reverse.

Puffendorf

has summarized this theory of how Divine power or will is re­ lated to law and ethics: The things forbidden by the Natural Law are not therefore Evil because God hath forbidden them, but God therefore forbad them, because they were in themselves Evil: And on the other hand, the things enjoined by the same Law, are not made good or necessary by God's enjoining them; but were therefore enjoined by God, because they were in themselves simply good and necessary.39 It was agreed among most theologians, particularly in Medieval times, that the problem of how will and law are re­ lated does not exist for God, since He is a spirit Infinitely perfect and does not need to ask Himself these questions. God's power is equal to His wisdom and goodness; there cannot be a gap between what God conceives and what He can do; His power and law are the same. But for man there could be and fre­ quently was a gap between will and moral principle, and this conflict Implied two claims to sovereignty, which had to be resolved. ®®Puffendorf, o£. clt.. p. 97. As we shall see in the chapter on Burke's theory of human nature, when we examine Burke's objections to the philosophic monism implicit in the revolutionary pleasure-pain calculus, the dualism revealed in this passage, which holds that good and evil are each intrin­ sically real, has profound implications beyond the sovereignty of law over will. It implies that good and evil, and all reality, may be independent, or at least different, from man's perceptions; in short, that men may think they are obeying the moral necessity of their natures, or of the Law of Nature, when they are really doing only what they will.

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22 Hooker in theology and Bacon and Coke in law, in all their conflicts with the Calvinists, argued that to say a thing is good because God, without any moral reason, willed it, was to conceive of God as an arbitrary tyrant.

Against the Cal­

vinist doctrine that sovereignty lies wholly in God’s selfcontained will, Hooker stated that God in His infinite good­ ness and wisdom necessarily chooses to follow His created Law of Nature:

"They err therefore who think of the will of

God to do this or that, there is no reason besides His will.

„40

All of the seventeenth century High Church Anglicans who wrote against the Calvinists in ecclesiastical sovereignty, and against Hobbes in political sovereignty, agreed with Hooker that reason and the Law of Nature, rather than Divine or monarchical will, is the ultimate basis for true sovereignty. Hooker’s Anglicanism asserts a theory of cosmic sover­ eignty centered in a Divine contract.

It assumes that God,

out of His perfect fusion of reason and will, fixed forever the original constitution of all physical and moral nature. As we have noted, Hooker believed that the Immutable and eternal Law of Nature is "that order which God, before all ages, has set down with Himself to do all things by."

God,

in effect, made an irrevokable compact with Himself, by which He holds Himself morally responsible to do all things accord­ ing to the perfect reason and wisdom of His original creation. To Hooker, "that law Eternal which God Himself hath made to ^ Ecclesiastical Polity. I, ii, 5.

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S3 Himself”41 establishes the self-imposed limits of Divine sov­ ereignty, and prevents God from acting by His arbitrary will. In the words of Puffendorf, "God cannot but observe His prom­ ises.”4^

Blackstone also agreed with both of his predeces­

sors on this point:

"These are the eternal, Immutable laws

of good and evil to which the Creator Himself in all His dispensations conforms.

43

No discussion of Burke's theory of

contract, nor of what he meant by the phrase "a Divine tactic,” has been offered with this idea in mind.

We shall note how

inqportant Hooker’s idea of a Ditine contract is to Burke's theory of sovereignty in Church and State. The theory of Divine sovereignty was extended by analogy from theology to politics, and adherents to the Law of Nature therefore always insisted that the will of all men, rulers and ruled alike, is always limited by law, that power is sub­ ject to the original reason and wisdom of God's moral law. This meant that all political actions are to be measured against the normative ethics of the Law of Nature. To advo­ cates of arbitrary monarchical power, who believed that a thing is good because the king wills it, we have seen that Bracton, through the Law of Nature, replied that "the King . . . ought to be subject to God and the law, since law makes 41Ibid. 4^Puffendorf, o£. cit.. p. 99.

Puffendorf's italics.

43

°Blackstone, oj3. cit.. I, 27.

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24 the King" and not the king the law; that "there is no King where will rules and not the law."

This principle of political

sovereignty was dramatically illustrated in English history when Coke opposed James I fs desire to rule by his private 44 arbitrary will. Since the Law of Nature taught that all men, by virtue of their common humanity, had a sacred and in­ violable right to their own lives, liberties and property, every ruler was limited in what he should will to do by the moral necessity to preserve these common human rights.

We

shall see to what extent Burke's lifelong opposition to George III, his theory of human nature, and his belief that power in Church and State must be divided to preserve civil liberty under constitutional law, have anything in common with the theory of political sovereignty advanced by Bracton and Coke. We have observed in the quotations from Puffendorf, Vattel and Blackstone, that the Law of Nature "binds the whole body of the human race;" "the whole nation . . . remains subject to the laws of nature;" "it is binding over all the globe, in all countries, and at all times," so that the theory of sover­ eignty which limits the power of monarchs applies with equal force to the collective will of the people at large.

To those

44Por two excellent brief accounts of the conflict between the king and Colce, see Roscoe Pound, The Spirit of Law (N.P., 1909), and Rene A. Wormser, The Law (tfew York, 1949TT"PP• 286290. "His [Coke's] constant thesis was that not even the king was superior to the common law." Wormser, op. cit.. --p. 288.

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25 who oppose the arbitrary will of monarchs with the theory that "the general will" of the people, through their representatives, is always just, Cicero gave the same answer that Coke had given to James I:

"Neither the Senate nor the people can ab­

solve us from our obligation to obey this law," because it is "binding at all times upon all peoples."

With these preliminary

observations on the Law of Nature and sovereignty by Burke’s predecessors, we are ready to examine how well Burke knew the Law of Nature, the extent to which he appealed to it, and whether it influenced his theory of political sovereignty.

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M

Chapter II Burke and the Law of Nature I. II. III.

Burke’s Burke’s Burke’s Burke’s

Legal Erudition and the Law of Nature. Appeals tothe Law of Nature before 1790. Appeals tothe Law of Nature in French Affairs: theory of political sovereignty.

Since "very early youth," Burke confessed in 1780 to a gentleman interested in reforming Parliament, he had "been conversant in reading and thinking upon the subject of our laws and constitution, as well as upon those of other times, m1 and other countries, and a decade before his death he stated in Parliament that "he • • •had in the course of his life o looked frequently into law books on different subjects." Burke’s interest in the law began at least as early as 1747, when his father, wishing to have Burke follow him in the law, entered his name at the Middle Temple.

Early in 1750 Burke

went up to London to study law, and although he soon abandoned his studies to take up first literature and then an active life in politics, his speeches reveal that he had acquired a profound knowledge and enduring respect for the law:

"No man

here," he said in 1770, "has a greater veneration than I have ^“Letter on the Duration of Parliaments, is referred to by Arthur L.~Woehl. burke’s Ph.D. Thesis, 1928), p. 83. I am Indebted of the material in this section of Chapter

p. 2 . This letter Reading (Cornell, to Woenl for much II.

^Speeches. Ill, 291. Burke’s speeches are frequently reported in the third person. 26

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27 for the doctors of the law,"s and four years later, In his speech on American taxation, he voiced his greatest tribute to the law:

"The law. • . is, in my opinion, one of the first

and noblest of human sciences; a science which does more to quicken and invigorate the understanding than all other kinds of learning put together; but it is not apt, except In persons very happily born, to open and to liberalize the mind exactly m4 in the same proportion.” Burke cautioned his colleagues in March, 1775, not to underestimate the resources of the Colonists, who had bought as many copies of Blackstone’s Commentaries as the British:

"This study [law] renders man acute, Inquisitive,

dexterous, prompt in attack, ready in defence, full of resources.

i»5

In addition to his remarks in Parliament, Burke’s

lifelong respect for the law is revealed in the volumes of his library, which Included the works of many writers, both ancient and modern, on theories of jurisprudence.® 3 Ibid., I, 72. 4 Ibid.. p. 206. p. 6 6 .

See Morley, Burke, pp. 8-9; Woehl, op. cit., ---

5 Ibid., p. 291. g

See the Catalogue of the Library of the Late Right Eon. Edmund Burke. Sold by Auction by Mr. Evans, froT"93 Pall-Mall, on Thursday, Nov. 7, 1833 (London, 1833). Among 664 Items are the following works which contain discussions of the Law of Nature: Aristotle on Government. p. 6 ; Clceronis Opera Phil­ osophies. 2 V. Clceronis Eplstolae ad Famlllares. Clceronis^ Opera. Tl V, Clceronis Oraplones.~"cTcero. be fralTura Deorurn. Cicero, De Republics. p. fe; fciceronls Opera. 4 v, p. fs~W°rthy Booke of Old Age, p. 2§: Epictetus’ Manuell. p. 2 2 ; Bacon. Abridgment of the Law, p. 2; Bacon, On the Laws Government of England, 'p. 8 ; firotius, On War and Peace, ed. by Barbeyrac, p. 17; Pufendorflus de Leg'e Natural!" p . 19;

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28 Woehl has proved by direct references and quotations from Burke’s writings how profoundly he had absorbed almost all of the classical writers on the Law of Nature who were quoted in the first chapter.

"Direct evidences of a wide reading in

Aristotle. . • are frequent," Woehl noted, and "the Ethics and the Politics appear directly in quotations and indirectly in Burke’s theory on the characters of men and governments."7 There is universal agreement among scholars about the early and sustained importance of Cicero's influence on Burke, in O matters of style, temperament and beliefs. "There is no doubt that Burke had read practically everything that Cicero Puffendorf's Law of Nature and Nations. 2 V, p. 25; Works of the Author of the~lflhole Duty of fcan.~p. 29; Vattel, Droit des Gens, 2 V, Vattel's Law of Nations. 2 V, p. 24. Carl B. Cone, inwfedmund Burke's Library." The Papers of the Bibliographical Society of America, warns that "among tEe books offered for sale were 221 volumes published after • . • Burke's death in 1797." (p. 160). Cone concludes, however, that "of political philosophers, Burke owned the works of the leading writers: Plato, Aristotle, Machiavelli, Milton, Sidney, Locke, Montesquieu, and Bolingbroke, but not Hobbes . . . Rousseau and Voltaire. • • are also represented. The great names of English legal his­ tory are also to be found. In addition to those of Bacon, Blackstone, De Lolme, Coke and Prynne, there are the works of writers on legal subjects whose names are now of academic in­ terest." (p. 163). 7

Woehl, pp. cit., pp. 111-112, I, 151 and 328.

See also. Burke, Speeches. ------

8 it

°"Burke . . • met a man after his own heart in Cicero . . . the only man at all like Burke for richness, expansiveness, and variety of mind in all the ancient world." Woodrow Wilson, Mere Literature (Boston, 1896), pp. 113-114. See also, DNB on Burke, p. 17. With his friend Windham, Burke discussed problems in semantics in Cicero's work. See Windham*s Diary, pp. 65-66.

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d

29 has left us.

In his youth Burke seems to have been partic­

ularly inclined toward the De Officiis, 'a blameless piece.1 The pan^jhlets in the Lucas controversy are usually headed with a quotation from that work or from De^ Legibus ."9

The

insistence upon the sovereignty of law over will is manifested even in these youthful essays, and reappeared in full force in 1761 when Burke quoted Cicero’s De Legibus to controvert the Hobbesian theory that laws receive their authority from niBre institution.*0

It was also largely from Cicero that

Burke adopted one of the most important ideas derived from the Law of Nature--that the state is an indirect emanation of God’s power and goodness and rests on divine law. Lester said:

As J. A.

"His insistence that God willed the state seeks

authority in Cicero more frequently than in Hooker."11

Burke's

9Woehl, op. cit., p. 127. See also, pp. 29, 128 and 140. In 1748, while still an undergraduate at Trinity College, Dublin, Burke contributed four anonymous pamphlets to the Lucas controversy, in which the methods and arguments of Cicero were taken as a model. See Arthur P.I. Samuels, The Early Life. Correspondence and Writings of Edmund Burke T^smErTdgeHJnTv. Press, 1923), pp. 99-101 and""T90 ff• Samuels describes these youthful essays as "saturated with classic thought." p. 191. The Influence of Cicero's conception of the Law of Nature upon Burke will appear later. 10„ See Tracts on the Popery Laws. p. 21. Burke quoted Cicero eleven times in hTs works. For other references, see also, Speeches. II, 363, 489; III, p. 211; IV, pp. 70, 230 and 368.

11John A. Lester, An Analysis of the Conservative Thought of Edmund Burke (Harvard, Ph.D. thesis, 1943), p. 120. See also, E. J. Payne, Burke’s Select Works. II, Introduction, xxxvii-xxxviii•

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4

30 moral Intensity in applying the Law of Nature is closer in spirit to Cicero than to any other writer.

In a parliamentary

report Burke wrote that "much has been written by persons learned in the Roman law, particularly in modern times. Among the jurists who helped to form the Roman law Burke knew the work of Paulus and Calistratus, Gravinia's Origines Juris Clvllls. and of course the Justinian compilations.^

All of

these works on Roman jurisprudence breathe the spirit of Cicero and the Roman Stoics, and are based upon the Law of Nature. Among continental legal philosophers Burke had certainly read Sigonio's De Antiquo Jure Provinclarum. Calvin's Insti­ tutes. Suarez's Tractatus de Legibus. Grotius's De_ Jure Belli et P a d s . Puffendorf's De Jure Naturae et Gentium, and many 14 others. Among his French predecessors and contemporaries he had read and admired Montesquieu's L'Esprit des Lois and Vattel»s Le_ Droit des Gens; from the first he learned the his­ torical method of treating ideas,15 while the second was his most frequently quoted modern authority on the law of nations.16 Burke also knew the writings of the famous Jansenist jurist, 12Speeches. IV, 223.

See also, pp. 224-227, 229 and 255.

13See Woehl, 0£. cit., pp.

66 , 133-134, 202-203 and 205.

14 Ibid., pp. 18, 203-206.

15

"The student of Esprit des Lois will recognize its in­ fluence in every one ot Burke's masterpieces." Morley, Burke, p. 50. See Speeches. II, p. 255; IV, p. 151. See especially, Policy of the'Allies, p. 431 and Appendix, pp. 458-466.

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d

31 Domat, whom he described as "one of the greatest lawyers” in 17 the National Assembly. Domat based his Civil Law in its Natural Order on a revolutionary interpretation of St. Thomas Aquinas’ theory that legislation ought to be for and by the people.18 But Burke’s great legal erudition is most clearly re­ vealed in his innumerable quotations and references to the ancient records, charters, legal treatises, statutes, proce­ dures and decisions which comprised the common law of England. Burke’s knowledge of English common law is pertinent in deter­ mining his conception of the Law of Nature, because as we shall see, unlike many writers on jurisprudence Burke never treated the Law of Nature merely as an abstract ethical code perceived directly by the naked reason.

To Burke the spirit of the Law

of Nature was always embodied in historical and legal prece­ dents, and therefore although he by no means identified English common law and the Law of Nature, he used his knowledge of both to illuminate their close reciprocal relationship. In 1773 Burke candidly admitted in Parliament:

"I have stud­

ied . . . God knows: hard have I studied, even to the making dog-ears of almost every statute book in the kingdom . . • the letter as well as the spirit of the laws, the liberties, 17 See Reflections, p. 422. iSSee Lord Acton, Essays on Freedom and Power (Boston. --------------------1949), p. 252.

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32 and the constitution of this country."19

Woehl has shown that

Burke’s references to the laws of England "begin with Ina of Wessex, and continue with the long line of kings, from Alfred 20 on, who recorded a body of law." The enormous labor that Burke expended in the process of mastering English law is well summarized by Woehl:

"Burke evidently ransacked legal

and historical documents of all kinds, including the Journals of the Lords and Commons, the Rolls and Laws of Parliament, State Trials, Statutes of Jeofails, Woodfall's Parliamentary Debates, the legal decisions of Chief-Barons and Justices Hardwicke, Willes, Parker, Raymond, Vaughan, Holt, Lee, Mans21

field and Wilmot.”

A specimen of how Burke utilized his

vast knowledge of English law in his parliamentary duties, will indicate the temper he brought to legal theory and legis­ lative practice: It is well known, that the elementary treatises of law, and the dogmatical treatises of English jurisprudence, whether they appear under the names of Institutes, Digests, or Commentaries, do not rest on the authority of the supreme power, [the monarch] like the books called the Institute, Digest, Code, and authentic collations in the Roman law. With us, doctrinal books of that description have little or no authority, other than as they are supported by the adjudged cases and reasons given at one time or other from the bench; and to these i

19 Speeches. I, 172, 20woehl, 0£. cit., p. 203.

21 Ibid». p. 205. For Burke's reading and use of digests of the English common law, see p. 206.

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they constantly refer. This appears In Coke's Insti­ tutes, in Corayn’s Digest, and In all books of that nature.22 While debating, Burke frequently made good extemporaneous use of his legal knowledge:

"In this part of his speech, Mr,

Burke entered into a detail of legal authority, which he traced so far back as the reign of Richard II, and followed up with different instances to the reign of George the First, if23

with much learning and ingenuity."

It is no exaggeration

to say that Burke knew the chief works on European jurisprudence, and especially on English common law,

24

from the

22

Speeches. IV, 202, This speech, a report on the causes of the duration of Hastings' trial, is saturated with English common, canon, statutory and criminal law and procedure from the time of Richard II to 1794, 23

Speeches. Ill, 536-537, See also, Thomas Macknight, History of the Life and Times of Edmund Burke (London, 1858), I, 67; Til, 568; Woehl, oja. cit.. pp. 65-^6. 24 Burke's fragmentary "Essay towards an History of the Laws of England." a supplement to his Abridgment of English His­ tory (1757), indicates his particular awareness or English l^gaj. history. Burke's interest in English legal and consti­ tutional history is strongly reflected in the early book re­ views in Dodsley's Annual Register. As editor and chief con­ tributor, Burke certainly reviewed all of the following books on law that appeared in Britain from 1758 to 1765: Blackstone 's Discourses on the Study of Law (1759), Wallace's Laws of Scotland (17607. Grey's~bebates o'^ the House of Commons (1763), Elly's Liberty of Subjects in England (lTgsTT We" know that he also reviewed Blackstone's Commentaries (1767-68), Beccaria’s Essay on Crimes and Punishmenb (1767). Dalrymple's Memoirs of Great Bribaln and Ireland (1771). and Sullivan's Lectures on the Feudal and' ' English Laws (1773). For details on these and other reviews, see Thomas W. Copeland, "Edmund Burke and the Book Reviews in Dodsley's Annual Register." PMLA. (XLV, 1942), pp. 446-468. -------- -----

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34 Justinian code down to his own time.

We shall see that

Burke's legal erudition is very pertinent to his interpre­ tation of the Law of Nature. Among the great body of writers on English law there were several whom Burke particularly admired.

"Bracton," he said 25 in Parliament, "is allowed by all to be a good authority,”

and Hooker was for Burke the great fountainhead of post-Reforma 26 tion English canon law. Burke had a poor opinion of Francis 27 Bacon's character, and seldom appealed to him. Next to Cicero, no legal theorist had quite the same authority for Burke as Coke, whom he quotes nine times in his works®8 and to whom he alludes in his speeches more frequently, and in general with unreserved admiration, than to any other writ29 er. Burke said he venerated "Sir Edward Coke, that great oracle of our law, and indeed all the great men, who follow 30 him, to Blackstone," because Coke inspired his seventeenth century successors in legal theory to give a strong moral 25„ Speeches. I, 61. 26 Ibid., p. 158. See also, Woehl, 0£. cit.. p. 141. 27 Ibid.. IV, 470-471. 28 See Wilson M. Hudson, An Index to the Works of Edmund Burke, (Chicago University, Ph. D. ThesTs7 19477, pp. 83-84. _ r 2^8 ®9 Speeches. I, pp. 78, 92, 300; II, 34-35; III, 246; IV, 137,- m , l9l, 202-203, 208, 232, 451, 471 and 483. See also, Correspondence. I, 280. 30Reflections, p. 305.

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35 basis to English civil liberty under the common law.

Among

the men who followed Coke was Selden, whom Burke called "a 31 great ornament of the common law.” Burke admired also the moderate lawyers of 1688, whose interpretation of that revo­ lution, consonant with the idea that the British state is founded on an inherited constitutional limited monarchy, he defended so skillfully in the first part of the Reflections and in An Appeal from the Old to the New Whigs. Burke's col­ leagues in the House of Commons knew that he was so widely read in ancient and .modern jurisprudence, and especially in English common law, that he was the fittest man among them to handle the enormous legal problems in their charges against Warren Hastings, and largely for this reason he was put in charge of the impeachment.

It is necessary at this point to

examine Burke's speeches and political writings to see whether he made good use of his legal erudition, and to determine the extent to which his political thought rested upon appeals to the classical Law of Nature,

II Burke's Indian speeches reveal his legal erudition at its be3t, and since they also provide the clearest expression of the Law of Nature in his thought, it is fitting to examine

51Speeches. IV, 256. p. 305;

See also, p. 257 and Reflections, '

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36 them first.

The importance of Burke’s appeals to the Law of

Nature in his Indian speeches, and also in American, domestic, economic, Irish and French affairs, has not been recognized by any Burkean scholar.

Burke’s first important appeal to

the Law of Nature in Indian affairs occurred on December 1, 1783, in his speech supporting Fox's East India Bill.

"This

bill," he said, was "intended to form the Magna Charta of 32 Hindostan," yet he noted that those who opposed it did so on the grounds "that the bill is an attack on the chartered rights of men."^

Here, for the first of several times,

Burke made a vital distinction between what he considered the true "natural rights" derived from the classical Law of Nature, and false or arbitrary claims to "rights."

Because the word

"rights" was an abstraction, and subject to various interpre­ tations Burke approached his problem semantically.

"The

phrase of 'the chartered rights of men,'" he noted, "is very unusual in the discussion of privileges conferred by charters of the present description."

All previous charters, he con-

tinued, such as those of King John and Henry III, "may, with­ out any deceitful ambiguity, be very fitly called the char­ tered rights of m e n . because they are merely written 32 Speeches. II, 413. 3* Ibid., p. 409. 34 Ibid., pp. 409-410.

Burke's italics,

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37 documents recognizing the sanctity of the Law of Nature: The rights of men, that is to say, the natural rights of mankind, are, indeed, sacred things; and if any public measure is proved mischievously to affect them, the ob­ jection ought to be fatal to that measure, even if no charter at all could be set up against it. If these natural rights are further affirmed and declared by ex­ press covenants, if they are clearlydefined and secured against chicane, against power and authority, by written instruments and positive engagements, they are in a still better condition: they partake not only of the sanctity of the object so secured, but of that solemn public faith itself, which secures an object of such importance. Indeed, this formal recognition, by the sovereign power, of an original right in the subject, can never be subverted, but by rooting up the holding radical principles of government, and even of society itself.35 But,

said Burke, ”the charter

"formed on principles charter."

of the EastIndia Company” is

the very reverse of those of the great

He elaborates this crucial point:

Magna Charta is a charter to restrain power, and to destroy monopoly. The East India charter is a charter to establish monopoly, and to create power. Political power and commercial monopoly are not the rights of men; and the rights of them derived from charters, it is fal­ lacious and sophistical to call 'the chartered rights of men.’ These chartered rights . . . do at least suspend the natural rights of mankind at large; and in their very frame and constitution, are liable to fall into a direct violation of them.36 35 Ibid.

36

Ibid., p. 410. A fragment on monopoly, found among Burke’s papers, is worth noting here: " ’Monopoly’ is contrary to ’Natural Right. 1 Monopoly is the power . . . of exclusive dealing in a commodity . . . which others might supply if not prevented by that power. No monopoly nan, therefore, be pre­ scribed in; because contrary to common right. . . . The State, representing all its individuals, may contract for them; and therefore may grant a monopoly." Correspondence. IV, Appendix, p. 459. See also, pp. 460-462; Speeches. IV. p . 310.

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d

If the East India Company had governed in India "under the controul of the sovereign imperial discretion, and with the •37 due observance of the natural and local law,” Burke would have opposed revoking its charter.

But the Company refused

to recognize the Law of Nature and the local laws of India, which guaranteed the natives1 rights; it insisted that the charter granted by Parliament left its officials free to govern in India as they saw fit.

The Company, Burke concluded, had

violated its "subordinate derivative trust," had "notoriously, grossly abused" its power; Parliament could not stand by in Epicurean aloofness and make a sale of its duties, but should adopt F o x ^ bill and "provide a real chartered security for the rights of men cruelly violated under that charter."3® For Burke the issue was one of conflicting claims to sover­ eignty, and his choice is clear:

"If I kept faith. . . with

the Company," he said, "I must break the faith, the covenant, the solemn, original, indispensable oath, in which I am bound, by the eternal frame and constitution of things, to the whole 39

human race."

Burkefs appeal to the "natural rights" of the

Law of Nature enabled him, in his first great attack on abuses In India, to transcend the commercial and national powers which sacrificed human rights to a narrow self-interest. 37 Ibid., p . 411.

38 Ibid., pp. 412-413. 487, 490.

See also, pp. 428, 476, 478, 486*

39 Ibid., p . 458.

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39 In February, 1785, two years after Fox's bill was re­ jected, Burke made his famous speech exposing the hoax of the 40 Nabob of Arcot's debts. There is only one appeal to Nature In this speech, but It is one of Burke's best: The benefits of heaven to any community ought never to be connected with political arrangements, or made to depend on the personal conduct of princes. • . • The means of subsistence of mankind should be as immutable as the laws of nature, let power and dominion take what course they may.4* In one of the shortest speeches of his career, delivered in March, 1787, Burke made a general protest against those in Parliament who wished to obstruct Hastings' impeachment: "I rise in support of the eternal principles of truth and justice, and those who cannot or dare not support them are endeavouring to cough them down."

42

Hastings had a small group of power­

ful friends, most of whom were skilled lawyers, and they suc­ ceeded in throwing up an endless series of legal impediments to keep the impeachment from coming to an issue.

"The greatest

obstruction of all," Burke is said to have lamented, "proceeded from the body of the law.

There was no body of men for whom

he entertained a greater respect . • . for the profession 40For a good account of this fraud see Morley. Edmund Burke: A Historical Study, pp. 205-207. For Burke and India, see pp. 196-224. 41 Speeches. Ill, 162. See also, p. 163. This passage may possibly refer to the physical rather than the moral laws of nature, a distinction which was fundamental to Burke's thought. 49

Ibid., p. 272.

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40 itself he felt a degree of veneration, approaching almost to idolatry.” However, when these men tried to invalidate the impeachment by dissolving Parliament, Burke protested:

”These

gentlemen of the law, driving us from law to law, would, in 43 the end, leave us no law at all." As Burke wrote to Dundas in Dec., 1787, these obstructions were further complicated because "all the local knowledge of India is in the hands of the person prosecuted by the House of Commons,"

44

and Hastings

had suppressed or destroyed the main sources of information. Burke secured a large body of detailed evidence on India from Philip Francis and from the records of the India House, but he took his stand against Hastings mainly on the Law of Na­ ture, and Hastings himself supplied Burke with material for his best arguments. Burke made it clear that Hastings’ defense ultimately rested on the argument that he had the right to rule India through arbitrary power.

Hastings claimed this right on two

accounts; first, because Parliament, through the East India Company, had granted him unlimited power to rule in India, and second, as Burke summarized him, because "the whole his­ tory of Asia is nothing more than precedents to prove the

At.

Ibid., pp. 535 and 521. 44 Correspondence. Ill, 63. Ill, 233.

See also, pp. 64-65; Speeches.

45See Speeches. II, 446-447; III, 66 .

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41 Invariable exercise of arbitrary power.1'46

Throughout his

speeches Burke frequently reminded his hearers of Hastings’ claim: Mr. Hastings comes before you • . he says, 'I had arbitrary power to exercise, and I exercised it. Slaves I found the people, slaves they are; they are so by their constitution; I did not make it for them; I was unfortunately bound to exercise it, and I did exercise it.'47 In India, to use the words of Mr. Hastings, the power of the sovereign was everything, the rights of the people nothing.48 The prisoner . . . assumes to exercise a power which extended to the property, liberty, and life of the subject.49 He makes the corrupt practices of mankind the prin­ ciples of his government; he collects together the vi­ cious examples of all the robbers and plunderers of Asia, forms the mass of their abuses into a code, and call3 it the duty of a British governor.50 As "manager" for the prosecution, Burke saw that he was obliged to destroy the whole foundation of Hastings’ theory that sovereignty rested solely in a ruler’s will. 46

Ibid., IV, 356*

See also, p. 357.

47 Ibid., p. 354. In securing absolute rule, Burke noted that Hastings acted on a principle of sovereignty centered in power alone: "He declares that in a division between him and the Nabob 'the strongest must decide.’" Speeches. II, 4 3 4 . The same applied in divisions with England: "Here Mr. Burke read from parts of the defence of Mr. Hastings, passages, stating, that whenever he thought the laws of England militated against the interests of the Company, he was at liberty to violate them." Speeches. IV, 476-477. 48 Ibid., p. 472. See also, pp. 473 and 475. 49 Ibid.. p. 479. For other examples of Hastings' claim to arbitrary power, see Speeches. II, 437; III, 69, 85, 223-227, 262, 427; IV, 357, 359, 366-367, 369 and passim. 50 Ibid., p. 367. See also, pp. 357 and 368.

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42 Burke’s most extended attack on Hastings’ claim to ar­ bitrary power, made on February 16, 1788, was based wholly on the moral Law of Nature: Will you ever hear the rights of mankind made subservient to the practice of government? It will be your lordships’ duty and joy--it will be your pride and triumph, to teach men, that they are to conform their practice to principles, and not to derive their principles from the wicked, cor­ rupt, and abominable practice of any man whatever. Where Is the man that ever before dared to mention the practice of all the villains, of all the notorious depredators, as his justification? To gather up, and put it all into one code, and call it the duty of a British governor? I believe so audacious a thing was never before attempted by man. ’He had arbitrary power!’ My lords, the East India Company have not arbitrary power to give him. The king has no arbitrary power to give. Neither your lord­ ships, nor the Commons, nor the whole legislature, have arbitrary power to give. Arbitrary power is a thing which no man can give. My lords, no man can govern him­ self by his own will; much less can he be governed by the will of others. We are all born— high as well as low— governors as well as governed--in subjection to one great, immutable, pre-existing law, a law prior to all our devices and all our conspiracies, paramount to our feelings, by which we are connected in the eternal frame of the universe, and out of which we cannot stir. This great law does not arise from our combinations and com­ pacts; on the contrary, it gives to them all the sanc­ tion they can have. Every good and perfect gift is of God: all power Is of God; and He who has given the power, and from whom alone it originates, will never suffer it to be corrupted. Therefore, my lords, if this be true-If this great gift of government be the greatest and best that was ever given by God to mankind, will he suffer It to be the plaything of man, who would place his own feeble and ridiculous will on the throne of divine justice? It Is not to be overturned by conquest; for by conquest, which is the more immediate designation of the hand of God, the conqueror succeeds to that alone which belonged to the sovereign before him. He cannot have absolute power by succession; he cannot have It by compact; for the people cannot covenant themselves out of their duty to their rights. . . .51 The whole of Burke’s argument against Hastings' theory of 51 Ibid., pp. 357-358.

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43 sovereignty la contained In a few aphoristic statements: "Law and arbitrary power are at eternal hostility. . . .

We

should be brought back to our original situation; we should be made to know ourselves, as men born under law.

He that

would substitute will in the place of law is a public enemy to the world; . • . against law, no power can be set up.

it52

"There never was a man who thought he had no law but his own will, who did not also find that he had no ends but his own profit."®®

For Burke, who maintained that since the intro­

duction of the Roman law into Britain, "the law of nature and nations (always a part of the law of England) came to be cul­ tivated,"®4 nothing could be more destructive of the ethical norm necessary for a just society than Hastings1 theory of arbitrary will. Hastings' claim that arbitrary power was the normal mode of rule in Asia implied that there was no universal rule of just conduct for rulers, as was taught by the Law of Nature. Burke emphatically rejected such a contention: This gentleman has formed a geographical morality, by which the duties of men in public and private stations are not to be governed by their relation to the great Governor of the Universe, and by their relation to one another, but by climates. After you have crossed the ®2 Ibid., pp. 358-359. ®®Ibld.. pp. 374-375. For other examples in Indian affairs of Burke1s attacks on arbitrary power, or pleas for the sover­ eignty of law over will, see Speeches. II, 429, 431-432, 434, 446-447, 460, 473, 475-476; III, 57, 68 , 74, 8 6 , 99, 175-176, 223-225, 266, 280; IV, 307, 313, 328, 354-363, 368, 374-375, 475-476, 478-479, 489-491 and 499. 54 Ibid., p. 230. See also, pp. 232 and 236. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.

44 equinoxial line, all the virtues die* • • • Against this geographical morality I do protest, and declare therefore, that Mr* Hastings shall not screen himself under it, be­ cause * * . the laws of morality are the same everywhere; and actions that are stamped with the character of pecu­ lation, extortion, oppression, and barbarity in England, are so in Asia, and the world over.55 Burke’s great sympathy for the people of India was only ex­ ceeded by his fear that Hastings’ friends, in defending him, would introduce his '’Eastern" principles into England:

"The

doctrine that in the East there are no laws, no rights, no liberties, is a doctrine which has not only been stated by the prisoner at the bar, but has been disseminated with a wicked activity throughout this country."

To disprove Has­

tings' contention that morality varied in time and place, Burke read widely in Oriental jurisprudence.

He read the Koran, the

Shasta and the Heyada: he quoted from Tamerlane's Institutes, recently translated by Major Davy, Hastings' former secretary; he used White's translation of the Institutes of Tlm^r (Ox­ ford, 1783), and Tavernier's Travels into Persia and the East 57 Indies (1677). Burke placed the results of his reading be­ fore his hearers:

"The morality of the East, my lords, as

far as respects governors, is as pure as our own. • • ." "Mr. Hastings finds no authority for his practice, either in 55 Ibid., p. 354. 56 Ibld.. p . 366.

57 For Burke's reading and proof that Oriental law is as sound as English law see Speeches. IV, 359-367, 472-473; Woehl, 0£. cit.. pp. 179-180.

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the Koran or In the Gentoo law. . . . "

"The same laws, the

same sacredness of principle, however they may be disobeyed, both In Europe and in Asia, are held and strictly maintained." Burke finally concluded: Mr. Hastings has no refuge— let him run from law to law; let him fly from common law, and the sacred institutions of the country in which he was born; let him fly from acts of parliament; • . • still the Mohammedan law con­ demns him; • . • let him fly where he will--from law to law— law, thank God, meets him everywhere--arbitrary power cannot secure him against law; and I would as soon have him tried on the Koran, or any other eastern code of laws, as on the common law of this kingdom.59 Burke's argument on the universality of the moral law is based on an implicit belief in the Law of Nature. Since Hastings' acts were "crimes • • . against those eternal laws of justice which you [the judges] are assembled 60 here to assert," it was necessary for his prosecutors to fol low "rules drawn from the fountain of justice,"61 and to con­ demn him in terms of the eternal Law of Nature:

"I impeach

him," said Burke, "in the name and by the virtue of those eternal laws of justice, which ought equally to pervade every 62 age, condition, rank, and situation in the world." Burke believed that the function of courts of law was to reflect 5a Speeches. IV, 363, 367 and 369. 59 Ibid., pp. 366-367. See also, p. 481. Burke's belief that thecommon law of England is Intimately connected with the moral Law of Nature, Is clearly suggested in this passage. 60 Ibid., p. 304. See also, pp. 305, 480. 61 Ibid.. p. 237. 62 Ibid.. p. 418.

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!

46 through human institutions the spirit of the divine Law of Nature:

’’Courts of justice were links of that great chain of

which the first and great link was Divine Justice."

Despite

the fact that many parts of Burke*s speeches were reported in the third person, and give only an approximate idea of his argument, nothing is clearer than that the appeal to the Law of Nature is at the heart of his impeachment of Hastings: Mr. Burke next entered into a disquisition upon the na­ ture of government, of which we lament our inability to give an adequate idea; but we will endeavour . . . to give the general scope of his reasoning. He first laid it down as a general principle, that all law and all sovereignty were derived from Heaven; for if the laws of every nation, from the most simple and social of the most barbarous people, up to the wisest and most salutary laws of the most refined and enlightened so­ cieties, from the Divine laws handed down to us in Holy Writ, down to the meanest forms of earthly institution, were attentively examined, they would be found to breathe but one spirit, one principle, equal distribu­ tive justice between man and man, and the protection of one individual from the encroachments of the rest. The universality of this principle proved its origin. Out of this principle laws arose, for the execution of which sovereignty was established; and all, viz. that principle, those laws, and that sovereignty, were thus evidently derived from God. . . . If, then, laws and sovereignty were sacred, as being the gift of God for the benefit of the people; and If the laws and sovereignty of India were, as he contended them to be, founded upon the same principle of universal Justice, then Mr. Hastings, as a British governor, sent, not to conquer or extirpate, but to preserve and cherish, was bound to protect the people of that country inthe use of those laws, and shield that sovereignty from encroachment or usurpa­ tion.64 In the pages that follow we shall occasionally encounter Burke*s theory of divine sovereignty and religious mysticism, ^ Ibid.. p. 420.

See also, p. 511.

64 Ibid., p. 477.

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d

47 particularly in the chapter on hie theory of Church and State, and it will be important to remember that this vital element in his political philosophy, more often assumed than stated, is derived from his full acceptance of the classical Law of Nature• In American, domestic and Irish affairs, Burke’s appeals to the Law of Nature are seldom as explicit and never as ex­ tensive as those found in his speeches on India, but within the various circumstances and events of America, England and Ireland, the core of his argument remains the same.

Every­

where his greatest fear is that arbitrary will or uncontrolled power may triumph, and that man's basic natural rights to life, liberty and property under the Law of Nature, will be violated. The consistency of Burke's position, and his implicit appeals to the Law of Nature, particularly in American affairs, have not been recognized.

Since 1867, when Morley's first book

on Burke appeared, it has been the universal opinion of Burkean scholars that against George Ill's claim of an ab­ stract right to tax the colonies, Burke took his stand al­ most completely on the principle of expediency, and that therefore he rejected all belief in "natural rights."65 Burke certainly did attack the metaphysical abstract right of taxation assumed by Townshend, Grenville and Lord North, and expediency certainly figured largely in his argument: 65Por Morley's argument, see Edmund Burke: Study, pp. 135-152.

A Historical -----------

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48 I shall not now enquire into the right of Great Britain to tax her colonies; all that is lawful is not expedient, and I believe the inexpediency of taxing our colonies, even supposing it to be lawful, is now evident to every man.®® I am resolved this day to have nothing at all to do with the question of the right of taxation. • • I put it totally out of the question . . . I do not examine, whether the giving away a man's money be a power excepted and reserved out of the general trust of government; and how far all mankind, in all forms of polity, are entitled to an exercise of that right by the charter of nature. Or whether, on the contrary, a right of taxation is nec­ essarily involved in the general principle of legisla­ tion, and inseparable from the ordinary supreme power. These are deep questions, where great names militate against each other; where reason is perplexed; and an appeal to authorities only thickens the confusion. For high and reverend authorities lift up their heads on both sides; and there is no sure footing in the middle. This point is the 'great Serbonian bog, betwixt Damiata and Mount Casius old, where armies whole have sunk.” I do not intend to be overwhelmed in that bog, though in such respectable c o m p a n y . 67 The first passage reveals that expediency was an important element in Burke's attack, while the second shows that, out of a fear of a useless quarrel in metaphysics, Burke did not wish to discuss the problem in terms of "rights."

Yet nothing

could be more false than to suppose, as Morley and others have done, that such passages prove Burke rested his case on ex­ pediency and therefore denied belief in natural rights. Certainly the colonies never considered it merely "in­ expedient" to be taxed without their legislative consent.

To

them the "right" of taxation without representation was posi­ tively unjust.

It was a violation of their property rights,

66 Speeches. I, 20. This idea recurs frequently in Burke's speeches on American affairs. 67 Ibid., pp• 303-304•

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49 and the attempt to enforce unjust taxation resulted in threats to their lives and liberty under the British constitution which they, like Burke, believed was founded on the Law of Nature: It is the glory of the British Prince and the happiness of all his subjects that their constitution hath its foundation in the immutable laws of nature; and as the supreme legislature, as well as the supreme executive derives its authority from that constitution, it should seem that no laws can be made or executed which are re­ pugnant to any essential law of nature.®8 Whereas the colonists came more and more to appeal directly to the Law of Nature, Burke’s appeals were almost always in­ direct. through the British constitution, which was for him merely the practical means of guaranteeing the rights of na­ ture throughout the empire:

MOur constitution, Mr. Burke

said, was a provident system, formed of several bodies, for securing the rights, the liberties, the persons and the pro­ perties of the p e o p l e . I n both domestic and American af­ fairs, Burke felt that George III and his ministers, in try­ ing to make the power of the Crown supreme, had placed their arbitrary will above the constitution and therefore, like Hastings, had violated the sovereignty of the Law of Nature: "The same baneful influence," Burke said in 1770, "under which this country is governed, is extended to our fellow sufferers in America; the constitutional rights of Englishmen 68House of Reps. of Mass. to Conway. Feb. 13, 1768, Almon, Prior Documents, pp.T81-182. Quoted by R.G. Adams, Political Ideas of the American Revolution (Durham, N.C., N.D.), p. IS'l. In petitions of grievances the colonists frequently appealed to the natural rights of the Law of Nature. 69 Speeches. IV, 136. See also, I, 214, 257 and 257.

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50 arc invaded. . ." and the "unalienable rights of their con­ stituents" are defeated by "ministerial requisitions that are altogether arbitrary and unjust."7® said in Parliament:

In February, 1772, Burke

"When tyranny is extreme, and abuses of

government intolerable, men resort to the rights of nature to shake it off."

*71

Burke regretted and opposed the arbitrary

policies of the king, and favored the colonial cause not be­ cause the Americans had an abstract right to rebel against British rule, as Paine argued, but because Britain had im­ prudently invoked the abstract right to tax and rule the col­ onists by arbitrary decree, and above all, because the king and Parliament were themselves in rebellion to the Law of Nature, and had denied the colonists their civil rights under natural and constitutional law. Burke saw that constitutional liberty in England would stand or fall upon the outcome of the struggle with America, that if the English government succeeded in destroying liberty abroad Englishmen would soon have none at home. 1775, he said:

In March,

"In order to prove that the Americans have no

right to their liberties, we are every day endeavouring to subvert the maxims which preserve the whole spirit of our 70 Speeches. I, 16-17. See also, p. 527. The king had cor­ rupt eatneHouse of Commons, Burke lamented, so that "the ground and pillar of freedom is . . . held up only by the treacherous underpinning and clumsy butresses of arbitrary power." Ibid.. p. 195. For a good account of these corrup­ tions see feir George Trevelyan, The Early History of Charles James Fox (New York, 1880), p. 7(TTf. 7 ^Ibid., p. 110.

See also, p. 111.

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51 own."7^

Before seeing how the king’s "oppressive stretches

of power" in America were paralleled in England, it will he useful to summarize Burke’s reactions to the arbitrary decrees passed against the colonies.

In March, 1774, the Boston Port

Bill was passed, taking away the city’s trade and in effect revoking its charter.

Burke promptly attacked it:

"I call

this bill unjust, for is it not fundamentally unjust to pre­ vent the parties who have offended from being heard in their own defence.

Justice, Sir, is not to be measured by geograph73 ical lines nor distances." Such an act, he added, i3 "the

doctrine of devils;" it is "contrary to the nature of man and the nature of things."7^

"Franchises," he wrote, "are for the

preservation of men’s liberties, properties, and lives. . • It is bad to take away a charter; it is worse to take away a city."75

Such a "proscription of whole cities and provinces

is to take away from them benefits of nature. . . deprive them of their civil privileges, and . . . strip them of their judicial rights."76

When the bill was extended to all New

England, Burke again objected:

"You sentence . . . to famine

at least 300,000 people in two provinces, at the mere 72

Ibid., p. 295,

See also, pp. 20 and 298.

73

Ibid., p. 176. See also, p. 233. When the habeas corpus was suspended Burke extended this same argument. See Corres­ pondence. IV, Appendix. p. 493. 74 Correspondence. IV, Appendix, p. 474. See also, pp. 476-477. 75 Ibid.. p. 476. 76 Ibid.. pp. 488-489. See also, pp. 490-493.

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4

52 arbitrary will and pleasure of two men.

7*7

In short, the acts

of Parliament toward America "take away the rights of men” and prove that when power becomes arbitrary "a man may be 78 regulated out of his liberty, his property and his life.11 Burke charged that Britain was "endeavouring to invert the order of n a t u r e , a n d that her "right" to rule the colonies by arbitrary decrees was totally opposed to the British con­ stitution and the Law of Nature, The whole issue In Burke’s struggle to maintain the rule of natural and constitutional law in Britain is contained in one sentence:

"Arbitrary power . . . is a subversion of na­

tural justice, a violation of the inherent rights of mankind."

AO

The king’s power in corrupting Parliament was dra­

matically illustrated in what Burke called "the rights of elec81 tion invaded in Middlesex," when the Commons refused to seat Wilkes, the elected candidate, and the king refused all redress to the London electors' petition: I stand up to, • . bear my testimony to its injustice, as well as to its inexpediency; to support the unques­ tionable birthright of the British subject, and to defend the sanctity of our laws . • • • They [the London free­ holders] could neither prostitute their parts nor their principles to the arbitrary fiat of an all-directing favourite, . ,, Till the sacred right of election, 77

Speeches. I, 270. 78 Correspondence. IV, Appendix, p. 495. 79

Speeches. I, 414.

80

Correspondence. IV, Appendix, p. 463.

81Speeches. I, 15.

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53 wrested from their hands, filled the freeholders of Great Britain with universal apprehension for their liberties, they never disturbed the royal repose with their complaints. . . . By what rule, then, does the majority of this House square its conduct, when it acts in direct opposition to the majority of the people? By that rule of arithmetic, which by its mighty fiat over­ turned the laws of nature, decreed 296 to be greater than 1146, gave us Colonel Luttrell for John Wilkes. • • • That the people should not choose their own rep­ resentative, is a saying that shakes the constitution. • • • The question amounts to this, whether you mean to be a legal tribunal, or an arbitrary and despotic as­ sembly. • . • The substance of the question is, to put bounds to your own power by the rules and principles of law.82 For the Commons to declare any elected member unworthy, at its private discretion, "is to corrupt judicature into legis­ lature.”

Burke drew out the logical implication in the Com­

mons' claim:

"Whatever it decides is de jure law."

He con­

cluded: Nobody will, I hope, assert this, because the direct consequence would be the entire extinction of the dif­ ference between true and false judgments • For if the judgment makes the law, and not the law directs the judgment, it is impossible there should be such a thing as an illegal judgment g i v e n . 8 3 The main thesis of a theory of sovereignty based on will rather than on law is that a de^ facto judgment is a -3 l6 , 320, 325, 337, 3^ J“and 376V 3^-Observationg on 'The Present State of the Nation*, p. 261.

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A

of metaphysical abstractions has never been made, but the follow ing examples will reveal the consistency within the various ob­ jections Burke originally made against Grenville: 177^2 Th© spirit of practicality, of moderation, and mutual convenience, will never call in geometrical ex­ actness as the arbitrator of an amicable settlement,.• I am not here going into the distinctions of rights, not attempting to mark their boundaries, I do not enter into these metaphysical distinctions; I hate the very sound of them. Speeches. I, 23^235# 1775: Refined policy ever has been the parent of con­ fusion, and ever will be so, as long as the world endures•• Abstract liberty, like other mere abstractions, is not to be found. Liberty inheres in some sensible object,,, The question,•• is whether you will choose to abide by a pro­ fitable experience, or a mischievous theory. Speeches. I, 276 , 287 and 322 . I777 : Mr, Burke again rose up, and confessed that truth was not to be found in the extremes; that he did not want to drive the honourable member to the argumentum ad abaurdum in any metaphysical question, SpeecheaT T7 3B 3 . I do not pretend to be an antiquary, a lawyer, or quali­ fied for the chair of professor in metaphysics. I never ventured to put your solid interests upon speculative grounds. My having constantly declined to do so has been attributed to my incapacity for suoh disquisitions; and X am inclined to believe it is partly the cause,•• So trulv has prudence (constituted as the god of this lower world) the entire dominion over every exercise of power committed into its hands; and yet I have lived to see prudence and conformity to circumstances wholly set at nought in our late controversies, and treated as if they were the most contemptible and irrational of all things,,, Instead of troubling our understandings with speculations concerning the unity of empire... it was our duty... to conform our government to the character and circumstances of the sev­ eral people who composed this mighty and strangely diver­ sified mass, I never was wild enough to conceive that one method would serve for the whole; that the natives of Hlndo stan and those of Virginia could be ordered in the same manner.., I was persuaded that government was a practioal thing, made for the happiness of mankind, and not to fur­ nish out a speotaole of uniformity, to gratify the schemes of visionary politicians. Our business was to rule, not to wrangle; and it would have been a poor compensation that we had triumphed in a dispute, whilst we lost an em­ pire... There are people, who have split and anatomised the doctrine of free government, as if it were an abstract

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10$

question concerning metaphysical liberty and necessity; and not a matter of moral prudence and natural feeling... Civil freedom is not an abstract speculation... Par from any resemblance to those propositions in geometry and metaphysics, which admit no medium, but must be true or false in all their latitude; social and civil freedom, like all other things in common life, are variously mixed and modified, enjoyed in very different degrees, and shaped into an infinite diversity of forms, according to the temper and clrcumstanoea of every community* The ex­ treme of liberty (which is its abstract perfection, but its real fault) obtains nowhere, nor ought to obtain any­ where. •• Liberty too must be limited in order to be pos­ sessed* Letter to the Sheriffs of Bristol, pp. 2$, 2830 * Italios mine* 1779 :

He hoped parliament would not treat it discontents in Ireland as a metaphysioal question... It was our meta­ physical quarrel about mere words, that caused the Ameri­ can war* Speeches. I, b$7» 1780 :

It is always to be lamented when men are driven to search into the foundations of the commonwealth. It is certainly necessary to resort to the theory of your gov­ ernment, whenever you propose any alteration in the frame of it... The excellence of mathematics and metaphysics is to have but one thing before you; but he forms the best judgment in all moral disquisitions, who has the greatest number and variety of considerations in one view before him. Speeches. II, 160-161 and I62 -I63 . 1783 :

I feel an insuperable reluctance in giving my hand to destroy any established institution of government, upon a theory, however plausible it may be. My experience In life teaohes me nothing clear upon the subject. Speeches. II, 1+13.

1781+.: A prescriptive government, such as ours, never was the work of any legislator, never was made upon any fore­ gone theory. It seems to me a preposterous way of reason­ ing, and a perfect confusion of ideas, to take the theories which learned and speculative men have made from that gov­ ernment, and then, supposing it made on those theories, which were made from it, to accuse government as not cor­ responding with them. I do not vilify theory and specula­ tion— no, because that would be to vilify reason itself.•• No, whenever I speak against theory, I mean always a weak, erroneous, fallacious, unfounded, or imperfect theory; and one of the ways of discovering that It Is a false theory is by comparing it with practice. This is the true touch­ stone of all theories, which regard man and the affairs of men does it suit his nature in general? does it suit his nature as modified by his habits? Speeches, III, ho.

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106 1790: Mr* Burke said*** he never had loved, and never should love an abstract question; being of opinion that much of the vioe of the present age was owing to an ab­ stract way of thinking* Speeches* III, 509* I cannot,.* give praise or blame to anything which relates to human actions, and human concerns, on a simple view of the ob­ ject, as it stands stripped of every relation, in all the nakedness and solitude'of metaphysical abstraction* Cir­ cumstances (which with some gentlemen pass for nothing) give in reality to every political principle its dis­ tinguishing oolor and discriminating effect* The circum­ stances are what render every civil and political scheme beneficial or noxious to mankind.** Government is not made in virtue of natural rights, which may and do exist in total independence of it; and exist in much greater clearness, and in a much greater degree of abstract per­ fection: but their abatraot perfection is their practical defeot... In a sense the restraints on men, as well as their liberties, are to be reokoned among their rights* But as the liberties and the restrictions vary with times cuid circumstances, and admit of infinite modifications, they ofltnnot be settled upon any abstract rule; and noth­ ing is so foolish as to discuss them upon that principle.•• What is the uae of discussing a man’s abstract right to food or medicine? The question is upon the method of pro­ curing and administering them* In that deliberation I shall always advise to call in the aid of the ffluner and the physician, rather theui the professor of metaphysics* The science of constructing a commonwealth, or renovating it, or reforming it, is, like every other experimental science, not to be taught g, priori*.. The legislators who framed the ancient republics knew that their business was too arduous to be accomplished with no better apparatus than the metaphysics of an undergraduate.** They had to do with men, and they were obliged to study human nature. They had to do with citizens, and they were obliged to study the effects of those habits which are communicated by the circumstances of civil life* They were sensible that the operation of this second nature on the first pro­ duced a new combination; and thence arose many diversities amongst men, according to their birth, their education, their professions, the period of their lives, their resi­ dence in towns or in the country, their several ways of acquiring and of fixing property.•• all of which rendered them as it were so many different species of animals.•• The ancient legislator would have been ashamed, that the coarse husbandman should well know how to assort and to use his sheep, horses, and oxen, and should have enough of com­ mon sense, not to abstract and equalize them all into ani­ mals, without providing for each kind an appropriate food, care, and employment; whilst he, the economist, disposer, and shepherd of his own kindred, subliming himself into an airy metaphysician, was resolved to know nothing of his

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107 flocks but as men In general... As the first sort of legislators attended to the different kinds of citizens, and combined them into one commonwealth, the others, the metaphysical and alchemistical legislators, have taken the direot contrary course. They have attempted to con­ found all sorts of citizens as well as they could, into one homogeneous mass; and then they divided this their amalgama into a number of incoherent republics. Reflections. pp. 282, 332-333 and Italics mine. 1792: They English radicals propagate all the abstract principles, and exalt to the stars the realization of them at our door. They are sublime metaphysicians; and the horrible consequences produced by their speculations affeot them not at all. They only ask whether the prop­ osition be true? — whether it produces good or evil, is no part of their oonoem. Correap ondenoe. Ill, i|£)8-Ii0 9 . Theories ought to be found on experience, and instead of adapting the constitution to a theory, the theory he wished to see grow out of the constitution. Speeohes. IV, i|9. I never govern myself, no rational man ever did govern him­ self, by abstractions and universals. I do not put ab­ stract ideas wholly out of any question, because I know well that under that name I should dismiss principles; and that without the guide and light of sound well-under­ stood principles, all reasoning in politics, as in every­ thing else, would be only a confused jumble of particular faots and details, without a means of drawing out any sort of theoretioal or practical oonoluslon. A statesman differs from a professor in an university; the latter has only the general view of society; the former, the states­ man, has a number of circumstances to combine with those general ideas.•• Circumstances are infinite, are infin­ itely combined; are variable and transient; he who does not take them into consideration is not erroneous, but stark mad— dat opa-ynm ut cum rati one lnsaniat— he is metaphysically mad. A statesman, never losing sight of principles, Is to be guided by oircumstanoes; and judging oontrary to the exigencies of the moment he may ruin his country for ever. Speeohes. IV, f>5>. These passages contain all of Burke's essential objections to metaphysical abstractions in politios; before seeing how they are related to the law of nations, it Is neoessary to summarize their significance. Clearly, one of the great common denominators in Burke's *As we have seen, this analogy was used in 1769 , against Grenville's uniformitarian colonial policy.

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criticism of eighteenth century political thought is his deep contempt for all metaphysically conceived plans of government, whether proposed by George III and his ministers, the "Rights of Man" reformers, or the Frenoh Jacobins.

In chapter four we

shall examine what is Involved in Burke's statement that "the Rights of Man... were founded upon plausible deductions and metaphysioal abstractions."^

Burke's constant hatred of meta­

physical speculation which contradicted historical experience makes his attacks on George III and the Jacobins perfectly con­ sistent.

In placing prudence against the error of logically

extending speculative principles, in choosing "rather to be happy citizens than subtle disputants," Burke sought to show George III why "a great empire and little minds go ill to­ gether," and to guide Britain away frcm the principle of the "right" of king and parliament toward a consideration of the "general character and situation of a p e o p l e . B u r k e never succeeded in teaching George III that "government, inits

ex­

ercise. •• ought to conform to the exigences of the time, and the temper and oharacter of the people with whom it is con­ cerned; and not always to attempt violently to bend the people to their theories of subjection."^

If the king and his mini-

were guilty of trying to bend the Colonists to their "right" of sovereignty, how much more guilty were the Jacobins, who had no limit through precedents on their ideas of metaphysical

32speeohes. ^V, 76.

See also, pp. 77-78* 33Speeoh on Conciliation, pp. £00* 509 and ijBO. 3^A Letter to the Sheriffs of Bristol, p. 31*

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"rights," and who sought to bend not merely some far-flung colonies but the whole civilization of Europe to their meta­ physical speculations on perfect societies and the "Rights of Man*"

The increased emotional intensity of Burke's arguments

against the Jacobins is proportionate to the danger he saw from them, but his arguments are essentially the same as those against George III*

Indeed, the very language of the Reflections often

echoes the spirit of 1777* and as political prudence is con­ sistently offered as the positive alternative to abstract meta­ physical theory, it would take a distortion of diction to find Burke's criticism of the two revolutions inconsistent* Whenever the Jacobins encountered the inevitable gap be­ tween their theories and aotual conditions, Burke noted that they did not hesitate to foroe conditions to fit their theories: "You lay down metaphysio propositions whioh infer universal oonsequenoes, and then you attempt to limit logic by despotism*"3^ The Jacobins prided themselves on being supremely logical, yet their metaphysical doctrines of simple uniformity and univer­ sality contradicted not only the complex nature of created con­ ditions, both physioal and civil, and the toted, political ex­ perience of men throughout history, but also their own dogma of natural Individual rights*

To Burke, who believed that "the

science of government*.• requires more experience them any person can gain in his whole l i f e , " ^

the presumption of the Jacobins,

who "despised experience as the wisdom of unlettered men," 35Reflections, p* li-92* 36lbld** p. 33lu See also, pp* i+UD-U^4-3•

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110 and who therefore would "appeal to no praotloe and oopy after no model,"37 insanity*

appeared as metaphysics carried to the point of

In 1777 Burke had described metaphysical politicians

like George III as "far gone in madness,"3®

and any attempt to

displace experience and prudenoe with metaphysics, "the first of soporifics," was to him a sign of insanity*

The Jacobins

were "metaphysically mad" in the same sense as the scientists and philosophers in Book III of Gulliver 1a Travels: Prance's

"Prom its

general aspect one would conclude that it had been

i

for some time past under the special direotion of the learned academicians of Laputa and Balnlbari*

With Burke this was

no mere literary reference; he pictures what happens when "the metaphysicians descend from their airy speculations," and lists among their "follies which baffle argument" their "project for coining into money the bells of the suppressed churches*"^ Even the vocabulary Burke applies to the Jacobins suggests his belief that their theories are insane*

They are "specula­

tors," "calculators," "visionaries," "enthusiastic projectors," "empiric theorists," and "alchymists," whose political "zeal" and unbounded confidence in their own rationality and "enlight­ enment" prompts them to think their "cant" is the pinnacle of human wisdom*

Their worship of mathematical reason and logio

37lbidJL, pp. 331 and 1+1+2* See also, p. I+36* 3®A Letter to the Sheriffs of Bristol* p* 29* 39Refleotions. p* 1+01+. In 1769 Burke had said of Grenville: "It looks as if he had dropped down from the moon, without any knowledge of the general nature of this globe or of its inhabi­ tants. " Observations on 'The Present State of the Nation*' p* 3°3» l+0lbid*. p. 512.

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has gotten them "entangled in the mazes of metaphysic sophis­ try;" they are "infected with the contagion of project and sys­ tem."^-

Por Burke the Jacobins symbolized the ultimate evil

in his life-long struggle against the application of meta­ physical abstractions to praetieal politics.^ Burke*s idea that "the extreme of liberty (which is its abstraot perfection, but its real fault)," first expressed in 1777 and applied in 1790 almost word for word to natural rights, was seized upon by one of his critios in 1791 , and in the pro­ cess of refuting Burke one of the chief souroes of the revolu­ tionary metaphysios is clearly revealed: It is to be observed, that the terms abstraot, philo­ sophy, metaphysios, etc. have been much confounded of late, and endeavoured to be brought into disrepute by those who could only expect to succeed in perverting reason, by confounding terms. The author of the letter upon the French Revolution, speaking of rights, etc. says, their abstraot perfection is their practical defect: now, abstract perfection can only arise from practical excel­ lency, and it is... from the contemplation and knowledge of Individuals alone, that we are able to combine various qualities, so as to complete and harmonize any system whatever, whether of mechanics or of ethics, and the effects and the value of a system so framed, may be most precisely ascertained, by resolving it into its elemen­ tary parts .4-3 ^ Ibld,, pp. 295, 311, 336, 3I4JO, lj86 , lj9lj.-lj.95 and $09. Ij^Por other examples of Burke's distrust of abstractions, see Correspondence. Ill, PP. 392, 39lj-f h21-h22, I4.77, $0l|* £ 10; IV. 299-300; Speeches^ I, pp. 66, 70, 233, 238, 275, 307-308, 311^315,. 3175 ±1, PP. llj-3, 287-289, 369; III, PP. 20-22, 5.9, 5lu 575- 1*76; IV, pp. 51-52, 55- 59, 6 6 , 76 and 86.

lj-3Another Sketch of the Reign of George III. 1780-1790 (Lon­ don, 1791), p. 3l+. TEis anonymous critic is echoed by Priestley "One of the most curious paradoxes in this work Reflections is that the rights of men... are all extremes, and in proportion as they are metaphysically true, they are morally and politically false. * Now by metaphysically true can only be meant strictly and properly true, and how tkis can be in any sense false, is to me incomprehensible." Letters to Burke, p. 25. His italics.

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112 The revolutionists' belief that "natural" truths in "ethics" and politics are as clear and demonstrable as in "mechanics," and that therefore a geometric perfection is possible in prac­ tical social appairs, implies a confusion between a "normative and "desoriptive" conception of "Nature,"

In 1775 and again

in 1790, Burke argued that neither through a priori rational principles nor inductive empirioal evidenoe of particular ex­ periences can moral or political truths attain the certainty of geometry:

"Man acts from adequate motives relative to his

interests; and not on metaphysical speculations,

Aristotle,,.

cautions us against this species of delusive geometrical ac­ curacy in moral arguments, as the most fallacious of all sophistry,

And again:

of all things

is

"In politics the most fallacious

geometrical demonstration."^

This is what

Burke meant when he said that in proportion as things are metaphysically true, they are morally and politically false. There is muoh in Burke's oriticism of the revolutionists that is reminiscent of Aristotle's criticism of Plato's doc­ trine of Ideas or Forms,

Like Aristotle he believed that it

is impossible to arrive at perfect essences or systems of thought through the mundane objects perceived through man's lm perfect senses and reason, that the specific physical concrete precedes in authority the general metaphysical abstract, yet that the flow of unconnected external events and empirical ^ S p e e c h on Conciliation, p, 501, ^Reflections, p, )|V|, Burke’s attacks on geometric poli­ tics are important. See pp. 335, k&7 and $09.

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objects is not the ultimate basis of knowledge.

Burke emphas­

ized the reality of temporal, mundane particular facts, but but as he was an orthodox Christian he also believed in the reality of eternal, spiritual universal laws.

Burke combined

his Christian dualism with his Aristotelian resolution of the problem of substances and essences, and therefore never judged moral problems in the abstract.

''Before I judge upon any ab­

stract proposition," he said five years before his death, it "must be embodied in circumstances.11^

This Aristotelian view

of reality, combined with Aristotle's distinction between the "practical" and the "speculative" sciences, between knowledge as a means to action and knowledge as an end in itself, is vital in Burke's political philosophy; as we shall now see, it underlies his combination of the law of nations and the Law of Nature.

Ill At the turn of the seventeenth century among the great writers on the Law of Nature, Suarez and Grotius were particu­ larly aware that the rise of a conscious nationalism required them to show how the Law of Nature never could apply to men directly and in the abstract, but always indirectly, through the supplementary and variable laws of nations which were de­ rived from "Nature."

But they had also to show that the

^Speeches, IV, 66 .

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behavior of nations toward each other was subject to the moral law*

Hence the term "law of nations" came to be used rather

loosely, and often acquired a multiplicity of meanings*

Some­

times it meant the particular adaptation of the Law of Nature to the internal government of particular nations, i.e*, con­ stitutional law*

But since one nation has no legal or moral

right to legislate for any other, and every nation has the moral obligation to protect its citizens against any nation whioh would destroy their corporate sovereignty, there must be a law beyond national constitutional laws to which all nations may appeal in safeguarding their moral right to exist indepen­ dently*

Properly speaking this is the Law of Nature, the norm­

ative moral code to which all nations, like all individuals, should adhere, but the application of the moral law to the ex­ ternal relations between nations, i.e., international law, was also called the "law of nations*"^

Bolingbroke and Blackstone

reveal that the constitutional and international concepts of law, as logical derivatives of the Law of Nature, were accepted during Burke's time: As supreme Lord over all His works, His general Providenoe regards immediately the great commonwealth of mankind, but then, as supreme Lord likewise, His author­ ity gives a sanction to the particular bodies of law which are made under it. The law of nature is the law of all his subjects: the constitutions of particular governments are like the by-laws of oities, or the ap­ propriated customs of provinces* It follwws, therefore, ^ F o r this use of the term in the work of Suarez and Gro tius, see Arthur Nussbaum, A Concise History of the. Law of Nations (New York, I9 I1. 7 ), pp. 61j.-?2 and 92 -112 *

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115 that he who breaks the law of his country resists, the ordinance of God, that is, the law of his nature. As it is impossible for the whole race of mankind to be united in one great society, they must neoessarily divide into many, and form separate states, commonwealths, and nations, entirely independent of eaoh other, and yet liable to a mutual intercourse. Hence arises a... law to regulate this mutual intercourse, called ’the law of na­ tions, 1 which, as none of these states will acknowledge a superiority in the other, cannot be dictated by any, but depends entirely upon the rules of natural law/® Long before Burke's time the acceptance of the law of nations, which distinguished "man" in any abstract universal state of nature from "men" as they are divided into specifio national civil states, was not contrary to but a necessary part of the Law of Nature The greatest error of omission in Burkean scholarship has been the failure to consider the role of the law of na­ tions in his political theory.

This law, which establishes

Burke's principle of diversity and strict consideration of in­ finite circumstances, and culminates in his principle of prudenoe, was for him a vital part of the Law of Nature.

Burke

never regarded the Law of Nature merely as an abstract moral McHenry St. John Bolingbroke, "The Idea of a Patriot King," Works (Phila., I8lj2), II, 379* The last sentence Indicates how Bolingbroke, following his Deism and logic, could appeal to the Law of Nature yet invert the whole moral basis of political sovereignty. In his essay he made not merely constitutional law, but even statutory laws and the arbitrary decrees of monarchs, the ultimate basis of rule. Like Burke he used the voca­ bulary of "Nature,11 but he arrived at a Hobbist theory of sov­ ereignty, of will over law, which completely contradicted Burke. ^Blackstone, Commentaries. I, 29. "All civil laws... either presuppose or include the chief heads of the Law of Nature*.. neither are these in the least in­ jured or impaired by the particular ordinances, which each com­ monwealth finds a necessity of superadding, for its separate interest and benefit." Puffendorf, Laws. o£ Nature, 33 d Nfltiong^ P. 106.

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code, Immediately perceived by private reason, but as the most imperative law of the spiritual side of man’s common nature, permeating every good act of individuals, civil institutions, races and nations.

Even more than Montesquieu, his master and

teacher on this point, Burke realized that man’s common nature is infinitely modified by climate, geography, history, religion, nationality, and raoe, by institutions, customs, manners and habits, by all the civil circumstanoes of times, places and occasions, which cut across and qualify the different means by which the moral Law of Nature is fulfilled.

With all their

differences, men in any given nation had their citizenship in common, so that they could best live according to the spirit of the Law of Nature indirectly, by acknowledging the inter­ mediary de, .jure sovereignty of their own state, and each state in turn, in its intercourse with other states, was obliged to acknowledge the superior force of the moral law.

Thus the in­

dividual finds his proper place in his nation, much as the na­ tion, in its turn, fulfills its destiny in the evolving life of civilized humanity; so that individuals and nations are mutually bound to each other, and both with the Law of Nature, reflecting at every point the spirit of the God-given moral law, repeating this arrangement, under a great diversity of forms, throughout the entire order of the civil universe. Burke is certainly in the tradition of Suarez and Grotius, and of all political theorists who had said that the law of nations, in both senses, is derived from the Lav/ of Nature. On international law, however, Burke seems to have assumed a

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117 new, hypothetical transitional law between the universal Law of Nature and the particular constitutions of particular states — a law of nations which applies distinctly to what he calls "the Commonwealth of Europe."

We have seen that Burke believed the

moral law applied in India as in England.

He admitted that

Hastings had brought disgrace upon Britain's honor by violating the law of nations in Asia,^

and he stated that Cheyt Sing,

in refusing to pay tribute to Hastings, "was justifiable upon every principle of the laws of nations, nature, and morality."^ But in dealing with international European politics, the laws and fate of the whole world were too grand and hypothetical an object for Burke's practical consideration; he wilfully re­ stricted himself, in using the term "law of nations," to the chief elements in the common laws of Europe, the "similitude throughout Europe of religion, laws and m a n n e r s , t o which all European nations are bound.

The law common to Europe con­

sists of a close fusion of three things,— manners,—

laws, religion and

which according to Burke were shaped respectively

by the remnants of Roman law, Christianity, and the customs of the Germanic tribes that overran Rome: The writers on public law have often called this aggregate of nations a commonwealth.* They had reason. It Is vir­ tually one great stateehaving the same basis of general law, with some diversity of provincial customs and local ^See Speeches. HI, 217-218; IV, I4.76 # ^ Speeches. IV, IjjSO. ^Regicide Peace, p. 2li^ *To verify Burke's point, see for example Puffendorf, Op. cit.. p. 106 .

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118 establishments. The nations of Europe have had the very same Christian religion, agreeing in the fundamental parts, varying a little in the ceremonies and in the sub­ ordinate doctrines. The whole of the polity and economy of every country in Europe has been derived from the same sources. It was drawn from the old Germanic or Gothic customary, from the feudal institutions which must be con­ sidered as an emanation from that customary; and the whole has been improved and digested into system and discipline by the Roman law. Prom hence arose the several orders... which are called states... in every European country.5AIn considering the individual differences and circumstances of mankind at large, this common law of the European commonwealth is the broadest frame of reference Burke ever made.

It is the

first qualification of "Nature*1 that leads finally to his prin­ ciple of political prudence.

It Is to this vast and complica­

ted ancient Germanic-Roman-Ghristian civilization, whose "com­ mon Inheritance" transcends the claims of any of its national parts, that Burke refers, even more than to the Law of Nature itself, when he attacks European nations that violate the law of nations. During the intense nationalism of the Renaissance it be­ came obvious that national self-interest and ambition could lead legislators to justify violations of the Law of Nature by appeals to the constitutional law of nations.

According

to Mackintosh this Inversion of moral law continued until late in the seventeenth century:

"Puffendorf... restored natural

law to that superiority which belonged to it, and with great

egicide Peace, p. 2li}.. The Idea of the "Commonwealth of Europe1 occurs frequently In this work. See pp. 203, 206 , 215, 219, 233, 2I4I4-, 2$3-2$k, 323-321}-, 36I4-, 373 and I4. 33.

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119 propriety treated the law of nations as only one main branch of the parent stock,

Burke may not have taught Mackintosh

the proper relation of the laws of nature and of nations, but his discussions of the international law of nations in American and French affairs show clearly that he understood it.

With

Burke no claim could transcend the normative ethics of "Nature," and his impartiality in applying this rule is proved in the fact that until 1790 he was more severely critical of the ar­ bitrary aots of his own country than of any other.

In 1777,

while discussing the American rebellion, Burke pointed out that traditionally only nations which are recognized as already legally established have any moral claim, under the broadest concept of the law of nations, to make international treaties and war.

He lamented that the king's treating the colonists

as outlaws and rebels, rather than as citizens dissenting from arbitrary rule, made it impossible to settle differences under the law of nations: "Whenever a rebellion really and truly exists,,, government has not entered into,,, military conven­ tions ; but has ever declined all intermediate treaty which should put rebels in possession of the law of nations with re­ gard to war,"^6

in February, 1778, Burke told Parliament that

Britain's plan to use Indians and to excite rebellion among the slaves in America violated international law:

"He insisted that

the proclamation for that purpose was directly contrary to the ^Mackintosh, Law of Nature and Nations, p. 21, pp, k, 17 and 3§. ^ k Letter to the Sheriffs of Bristol, p. 6,

See also,

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common statute law of this country, as well as to the general law of nations."^

In December, 1779* Burke contended that

both the Colonies and France were within their legal rights to form an alliance: Mr* Burke entered into an ample investigation of the propriety of America joining with France, and contended, that in all ages and in all countries, it was perfectly natural for revolted subjects to form an alliance with that power known to be most inimical to the state, from whose supremacy they had withdrawn, and to whom the de­ struction of the interest of the former parent state was obviously a matter of desirable advantage.58 Even in this passage, reported as indirect discourse, it is noteworthy that Burke's contention that the alliance was '’natural'’ rested on an appeal to legal precedents among nations and that the utility or "desirable advantage" to the Allies, of destroying Britain's power in America, was a by-product of following the moral law. Burke's most severe attack on Britain's violations of the law of nations occurred in a speech on May lip, 1781* in his "Inquiry into the seizure of private property in St* Eustatius. At a time when Britain and Holland were not officially at war, this tiny West Indies Dutch island was seized by Britain’s Admiral Rodney and General Vaughan, and in the name of the Crown all the private property of every American, Jewish, Dutch and even British resident and merchant was confiscated. Burke attacked this confiscation as "a most unjustifiable, outrageous

^ Speeches. I, 398. ffilbid.. Ullw

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121 and unprincipled violation of the law of nations."^

He con­

sidered the confiscation of the property of the Jews particu­ larly unjust, because these unfortunate people had no nation to which they could look for moral redress.^0

In the course of

his speech, as reported by the Commons1 clerk, Burke contends that the rules of war and conquest among civilized nations rest on the law of nations, which is derived from the Divine Law of Nature: Mr. Burke entered largely into the investigation of that right which a conqueror attains to the property of the vanquised by the law of nations... He declared that the general confiscation of the private property found upon the island was contrary to the law of nations, and to that system of war which civilized states had of late, by their consent and practice, thought proper to intro­ duce. Perhaps it might be said, there was no positive law of nations, no general established laws framedand settled by actsin which every nation had a voice. There was not indeed any law of nations established likethe laws of Britain in black letter, by statute and record; but there was a law of nations as firm, as clear, as manifest, as obligatory, as indispensable... There were certain limited and defined rights of war recognized by civilized states, and practiced in enlightened Europe... They were established by reason, in which they had their origin;... by the convention of parties;... by the authorities of writers, who took the laws and maxims not from their own inventions and ideas, but from the consent and sense of ages; and lastly, from the evidence of pre­ cedent. Mr. Burke went largely into this description and proof of the rights of civilized war... He said 'that a king conquered to acquire dominion, not plunder; that a state does not go to war with individuals, but with a state; and in conquest, does not take possession of pri­ vate property'... By this maxim the calamities of war are mitigated... This law, therefore, directs that the ^Speeches. II. 2lj-8. Lecky said that the events and treach­ ery that followed the capture of St. Eustatius "ought to bring a blush to the cheek of every English historian.11 For his account, see op. cit.. IV, 179-182. 60 Ibid.. pp. 2I1. 9 -2 # .

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122 private property of individuals, in a territory surren­ dering at discretion, is not only to be spared, but to be secured,•• When men surrender, they are entitled to pro­ tection, There is a virtual compact in conquest, by which protection arises out of, and accompanies, allegiance. Gan the King of Great Britain seize upon the propertyof his subjects at his will and pleasure? No: nor can he in the instant of conquest seize on the goods and effects of the conquered... Every monarch, however despotic, is bound down by the very essence of his tenure, to observe this obligation... The king who should receive the surrender of a people, thereby admitting them within the pale of his government, and afterwards strip them of their prop­ erty, must, in so doing, forfeit his royal authority, and be considered only as a robber. •• This is a prin­ ciple inspired by the Divine Author of all good; it is felt in the heart; it is recognized by reason; it is estab­ lished by consent... By the convention of parties, this law of nations was established and confirmed.®* Not only individuals, but nations also are entitled to justice when as corporate bodies they contend for survival through war: "It was a first principle in the law of nations, as laid down by every writer, that to expound the rights of war, we must conceive each party to have justice on its side, and every­ thing preceding the commencement of hostilities must be for­ gotten in that exposition."^

The recorder of Burke's speech

does not supply the rich details of his argument, but states 6lIbid.. pp. 2£6 -2£ 8 . See also, pp. 259-269; 313 -328 . Writ­ ten authorities were for Burke the least binding evidence of the law of nations: "As to the authority of books, he thought them the weakest part of the argument, although they had col­ lected the wisdom of ages, and had connected It with their authors' sagacity, judgment and sense. He quoted Vattel as being the latest and best, and whose testimony he preferred; because being a modern writer, he expressed the sense of the day in which we live." Ibid., p. 259* 62ibjd.« p. 260. In a later speech Burke noted that the French, under the Marquis de Bouille, in seizing British pos- ^ sessions, "treated the conquered with tenderness and humanity. Ibid.. p. 326 .

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123 in the abstract that "Mr, Burke,,, in a variety of most beau­ tiful and forcible arguments, enforoed the doctrine of the law of nations,"^

Indirect and general as the recorded evi­

dence is, it nevertheless proves that in the decade before France burst into flame Burke derived his theory of the law of nations from the Law of Nature, In May, 1791* during his speech on the Quebec government bill, Burke raised the question of how the law of nations is related to political sovereignty.

He denied that Britain had

any right to rule French Canada on the radical reformers * doc­ trine of "natural rights," which, being an abstract doctrine, could do nothing to determine corporate and national sover­ eignty,

He then asked:

On what, then, was this House to found its competence? There was another code on which mankind in all ages had acted— the law of nations; and on this alone he con­ ceived the competence of the house to rest. This coun­ try had acquired the power of legislating for Canada by right of conquest,,. The law of nations enabled us to legislate for the people of Canada, and bound us to afford them an equitable government, and them to al­ legiance,^ Burke conceived conquest to be an act securing not merely physical power over an enemy, but also dictating a profound moral responsibility upon the victorious state, compelling it, under threat of forfeiting Its acquired sovereignty, to grant

63Ibid.. p, 2^9. For Burke's other appeals to the law of nations In Colonial affairs, particularly in the exchange of prisoners after Cornwallis surrendered, see Speeches, I, 131132; II, 295-311. ^Speeches, IV, 6 , See also, p, 5*

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121). the defeated "an equitable government" baaed on the Law of Nature, The turn of events in Prance after 1790 afforded Burke many occasions to discuss politics in terms of the law of na­ tions,

In December, 1792, he observed that the revolutionists

badly confused terms; they invoked the Law of Nature itself against all existing treaties between nations established under the law of nations: If a treaty opposed their ambition, they immediately af­ firmed that it was contrary to the laws of nature; and reduoed every moral obligation to the same levelling prin­ ciple, •• Thus the revolutionists' laws of nature super­ seded the laws of nations; and Great Britain, in her turn, would be left to the mercy of the honest and innocent republicans of Francei°5 The revolutionists, said Burke, simply pronounced all estab­ lished monarchs usurpers of the Law of Nature,

"By this means

they got rid of the law of nations and the obligation of treaties,"^

The voiding of all treaties was a legalistic

preliminary to the conquest of Europe:

"They had violated

the law of nations by a decree, declaring war against all gov­ ernments, and forcing those countries, into which their armies ^7 should enter, to form a constitution similar to their own," The aim of imposing their theory of the state upon Europe was part of the revolutionists' principle of abstract uniformity in human affairs, and in February, 1793 > Burke warned that ^ Ibid.. p. 8f>. ^ Ibid.. p, 95*

See also, p, 109*

^ Ibid.. p. 93,

See also, p, 100,

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Britain was included in thi3 levelling process: Prance... in order to overturn the fabric of our laws and government... invented a new law of nations... She had di­ rected the principle operations of that law to Great Bri­ tain. Their minister Gambon... had declared that the limits of their empire should be those that nature had set The revolutionists' concept of "Nature11 as it applied to civil society was far more geographical and physical than moral and political; their substitution of the descriptive scientific view of "nature" for the ethical normative view caused them, Burke noted, to advance a social sensibility which disregarded all national and local "artificial" loyalties:

"Prance has

endeavoured, under the specious pretext of an enlarged bene­ volence, to sow the seeds of enmity among nations, and destroy all local attachments, calling them narrow and illiberal."^ To Burke one of the most monstrous errors of the revolutionists was their reference of all political theory to the touchstone of a hypothetical, abstract state of physical nature, man's supposed "original" state.

Their desire to imitate the spirit

or return to the ideal of man's simple "original nature," led them to ignore all Individual differences, preferences and local loyalties, historically developed in civil society under the law of nations, and to wish to establish, by reason or force, a universal society centered in an abstract Liberty, Equality and Fraternity* In February, 1793, Burke began a series of debates with 68 Ibid.. pp. 107-108. 69lbid.. p. II4O.

See also, p. 109*

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126 Pox concerning the possibility of having diplomatic relations with the revolutionists, and the propriety of British inter­ ference in French affairs*

Fox had derided Burke’s appeals to

the law of nations, and Burke rejoined by asking on what other basis nations could negotiate treaties: The right honourable gentleman Fox had, with much flip­ pancy, talked of the law of nations* He Burke wished to know on what law the French could be expected to treat; they had made a new law of nations of their own. and had pronounced all treaties between kings,.. void*7o In June, 1793» Burke again pointed out that the revolutionary principles made treaties impossible, and he repeated his attack on uniformity in governments: He read a long extract of a report made by Brissot from the diplomatic committee, wherein it is stated as dis­ graceful to a free people to have any treaties whatever, especially with sovereigns... It had been said, shall we interfere for the purpose of obtruding on the French whatever form of government we shall think fitting for them? He was of opinion, that no country could force a particular form of government upon another, but that all received such a one as was, under all..• circumstances most adapted to their situation.7i Burke acknowledged that "It surely was not the business of this country to set up for a general arbiter of the law of nations,"?2

but this did not mean, as Fox said, that Britain

had no concern with French affairs.

It was not to force an

abstract theory of government on France, but to keep France from levelling the states of Europe to her theory, that Britain 7°Ibid.. p. 120. ?1Ibid*. pp. 150-151. 72Ibid., p. 151^

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127 was justifiably concerned.

In August, 1791, Burke had said

of the legality of intervention:

"By the law of nations, when

any country is divided, the other powers are free to take which aide they please. For this consult a very republican writer, 7^ Vattel." Burke now extended this argument against Fox in June, 1793: He insisted that it was a delusion, that nations were not to interfere with each other; for if any nation endeavoured to confuse, to trample upon, violate, or despise the rights of others, the interests of human society required that all should Join against them. If, by the subversion of all law and religion, a nation adopts a malignant spirit to produce anarchy and mischief in other countries, it is the right of nations to go to war with them. In support of this doctrine, he quoted the authority of Vattel, who lays it down, that if one nation adopt prin­ ciples injurious to all government and order, such a na-. tion is to be opposed from principles of common safety.7MIn March, 179^4-» Burke observed that events had dissipated Fox’s appeals to universal sensibility, and that Parliament had re­ turned to the traditional interpretation of the law of nations: "He was glad to remark... that they were now convinced of the danger of those principles of universal but fictitious benevo­ lence which forbad any interference in the affairs of a foreign state."75

Scholars favorable to the revolution have never

73Correspondence. Ill, 226. See also, pp. 508-509* 'Eh® same doctrine had justified France’s interest in the American cause, and had been repeated by Burke in Dec., 1787* See Speeches, III, 310. 7M-Speeoh.es. IV, 151. Mackintosh had admitted that all Eng­ lishmen, whether friends or enemies of the revolution, agreed that its influence could not be restricted to France, but would alter the whole social state of Europe. Vindlciae Gallloae. p. 358. Lecky agreed with Burke: "It was idle to say that French affairs did not concern Englishmen, when they were steadily and persistently held up as a model. 0p.._ cit.,., *» U-87. See also, pp. 519-521* 75ibid.. p. 153*

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128 forgiven Burke for his share in convincing Pitt and the British government that the new French doctrines were subversive of the law of nations on which the established political order of Europe stood. After Burke accepted the Chiltern Hundreds on June 20 , I79I+, and retired from Parliament, he continued to attack the revolutionists for their violations of the international law of nations#

As usual the Jacobins were his special target.

He

attacked their confusion of descriptive and normative "Nature" by reminding them that "individuals are physical beings sub­ ject to laws universal and invariable," that "commonwealths are not physical but moral essences."7^

He attacked them for

their "rejection of every principle upon which treaties could be made."77

Burke distinguished between the Jacobins as a sect

and France as a nation, and argued that the other powers of Europe warred only against those who renounced the law of nations: France since her revolution is under the sway of a sect, whose leaders have deliberately, at one stroke, demolished the whole body of that jurisprudence which France had pretty nearly in common with other civilized countries. In that jurisprudence were contained the elements and principles of the law of nations, the great ligament of mankind... It is a war between the partisans of the an­ cient, civil, moral, and political order of Europe, against a sect of fanatical and ambitious atheists which means to change them all. It is not France extending a foreign empire over other nations; it is a sect aiming at « universal empire, and beginning with the conquest of France.,' 7^Regicide Peace, p, 1^3• Bee also, pp. 213, 220# Reflec­ tions. pp. 307 -308 . 77lbid.. p. 178. See also, pp. 182, l8£-l86 . 78lbid.. 00 . 206. 233-2314.* For Burke's other appeals to the law of nations in French affairs, see Thoughts on French Affairs, PP. 3I4-8 -3J+9 ; Policy of the Allies, p. Ltfl, particularly Burke's 'Extracts from Vattel's Law of Nations," Appendix, pp. h58—q-oo.

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129 Through his appeals to the international law of nations, Burke justified his call for a total Y/ar against the revolutionists, but these appeals reveal only the negative application of his principle, for through the same law he sought to reconcile the legitimate interests of each state in the great "Commonwealth of Europe," and to have every nation live with its neighbors in the spirit of the Law of Nature, Burke was in the tradition of his predecessors in con­ ceiving the law of nations to be not only international, but also constitutional.

Indeed, b^r analogy the first could be

derived from the second: It has ever been the method of public jurists to draw a great part of the analogies, on which they form the law of nations, from the principles of law which prevail in civil oommunity. Civil laws are not all of them merely positive. Those which are rather conclusions of legal reason than matters of statutable provision, belong to universal equity, and are universally applicable,79 Thus the constitutional law of individual states is related to the European law of nations as the latter is to the Law of Nature,

On a national level, "the universal law of almost

every nation,,, is a kind of secondary law of nature,"8®

Ac­

cording to Burke, "constitutions furnish the civil means of getting at the natural,"®^ so that they too are derived by analogy from the Law of Nature:

"By a constitutional policy,

79rbid.. p, 216, 80Annual Register (1767), p, 295* ^•Regicide Peace, p, l\2 l?,

Se® also, p, 298 ,

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130 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, Beoause of "this happy effect of following nature," Burke al­ ways felt that any unjust statute passed under the British constitution would immediately reveal itself as a violation of the Law of Nature.®®

On this point Burke acknowledged that

he was in the tradition of Sir Edward Coke, "that great oracle of our law, and... all the great men who follow him, to Blackstone,"®^- who held that the common law of England regarding liberty and property was far more binding than any statute of king or parliament: We entertain a high opinion of the legislative authority; but we never dreamt that parliaments had any right what­ ever to violate property, to overrule prescription, or to force a currency of their own fiction in place of that which is real, and recognized by the law of nations.®? National constitutional laws derive their power and validity from the Law of Nature, and as constitutional law is the basic law of a nation through many generations of men, its sover­ eignty is in turn superior to any statute passed by any par­ ticular administration.

By virtue of His contract with the

original creation of things, God cannot by arbitrary will be Q^Reflections. p. 307* See also, p. 306. ®3See A Letter to the Sheriffs of Bristol, p. 10. 8|j-Reflections, p. 3^5* Q5lbid.. p. b.23. Burke’s speeches in parl5.ament are filled with statements that statutes should conform to the spirit of the constitution; "Mr. Burke.•• said the bill was a direct violation of Magna Charta, the common law of the land, and the constitution." Speeches. Ill, 182.

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131 unjust to any of His creatures, and b£ analogy, the rulers of who hold their power in trust under natural and constitutional law, have no moral right to violate these laws by arbitrary acts against the people’s lives, liberty or property.

Britain,

3urke observed in 1790, "had kept alive the ancient principles and models of the old common law of Europe moliorated and adap­ ted to its present s t a t e . T h u s Britain’s constitutional law is connected through the "common law of Europe" to the Law of Nature, and it is also the law within which Englishmen may fulfill their individual differences. Burke’s belief in the Law of Nature and of nations en­ abled him, as he said in I78 I4., to look at "man's nature in general" and man's "nature as modified by his habits."

It was

the great glory of the English constitution, Burke said through out the Reflections, that it considered both what men have in common and their individual differences.

"The foundation of

government is there laid... in political convenience and in human nature; either as that nature is universal, or as it is modified by local habits."®^

If we compare the ideas and

phrases in the following passages, the first written in 177^4and the seoond in 1790 » we shall see why the two great prin­ ciples of man’s natural unity and civil diversity appear over and over again in Burke’s theory of the English constitution: 86Ibid.. p. 310 . ^ A n Appeal, p. 109.

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132 Nothing is more beautiful in the theory of parliaments, than that principle of renovation, and union of perman­ ence and change, that are happily mixed in their con­ stitution! ~ That in all our changes we are never either wholly old or wholly new:— that there are enough of the old to preserve unbroken the traditionary chain of the maxims and policy of our ancestors, and the law and custom of parliament; and enough of the new to invigorate us and bring us to our true character, by being taken fresh from the mass of the people; and the whole, though mostly com­ posed of the old members, have, notwithstanding, a new character, and may have the advantage of change without the imputation of inconstancy. Our political system is placed in a just correspondence and symmetry with the order of the world,,,, wherein, by the disposition of a stupendous wisdom, moulding 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 re­ tain, we are never wholly obsolete.°9 For Burke civil society is a creation of man’3 wisdom and power, working analogically through precedents and the spirit of the moral law, rather than logically and literally through meta­ physical reasoning.

Civil society, patterned upon man and na­

ture, has therefore at least as rich and vast a variety of con­ ditions and circumstances to shape its character as physical nature, and nations are governed not by any abstract universal and eternal principles derived directly from the laws of Nature, but indirectly, through man’s reason and free will, and all the circumstances of time, place, climate, race and inherited cus­ toms and civil institutions.

God, the Laws of Nature, and

^ Correspondence. IV, Appendix, p. k-6%» S^Reflections. p. 307.

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133 man’s development through history, have placed men in various national states, where they are able to fulfill "that action and counteraction, which, in the natural and in the political world, from the reciprocal struggle of discordant powers, draws out the harmony of the universe."^

Burke felt that "the di­

versity of interests, that must exist, and must contend, in all complex society,"9^

no matter how varied, is always re­

concilable to an all-inclusive and just social welfare.

This

reconciliation is possible by what men have in common under "Nature" as an ethical norm; constitutions modify the method of application, but they do not extinguish or even weaken the power of the Law of Nature, Prom the harmony of natural and constitutional law Burke derived his principle that "the love of the whole is not ex­ tinguished by,., subordinate partiality."^

The proper order

of progression in arriving at the love of all humanity was also indirect. from love of kin to love of kind: To be attached to the sub-division, to love the little platoon we belong to in society, is the first principle (the germ as it were) of public affections. It is the first link in the series by which we proceed towards a love to our country, and to mankind.93 For Burke the germ of public affection began in the family, 90lbid., pp. 308 -309 . 91Ibid.. p. k$5. 92lbld.. P. 1^67.

93lbid.. p. 320. See also, p. I4.6 7 . MacCunn has a fairly good account of "civil vicinity" in Burke’s political theory. See op. cit.. pp. 16-37•

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In November, 1793 > he wrote to the Comte D ’Artois, comforting him on a kinsman’s death: family

"The ties of nature,

i.e., of

which are the laws of God, are much better, surer, safer

and pleasanter, than any which we make for ourselves, politi­ cally, as members of parties or states, or in the intercourse of common life, as friendships.”^

Burke's conviction that

public affection should be embodied in an object underlies his attacks on abstract rights and on that “universal benevolence” which tended to extinguish local and national feelings.

This

was his main point against Dr. Price’s A Discourse on the Love of our Country (Dublin, 1790).

This sermon, which Burke be­

lieved taught men to hate their countries, has been described as "the red rag that drew Burke into the arena" with his Reflections.

Burke’s attack on Price’s theory of public af­

fection forms an important theme in his criticism of the revo­ lutionists' sensibility.

Windham recorded that shortly before

Burke died he "spoke with horror" of Voltaire’s Pucelle D ’Or­ leans. as a work which tended to destroy "all love of country, and blamed himself for having polluted his imagination by read­ ing i t . F o r

Burke a man morally in tune with the Law of

Nature venerated his country and respected all the differences In men's natures, both within and between all nations. So profound was Burke's regard for the various circum­ stances in a nation’s life, that although he said the French ^Correspondence. XV, 186. 9£windham, Diary, p. 371*

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135 National Assembly had "in everything.,, strayed out of the high road of n a t u r e , e v e n here, where an abstract statement concerning the political course of action to be followed might have seemed safe, he refused to meet a Paris friend's request to submit a plan for Prance:

"Sir, the proposition of plans,

without an attention to circumstances, is the very cause of all your misfortunes; and never shall you find me aggravating, by the infusion of any speculation of mine, the evils which have arisen from the speculations of others."9?

Burke required an

intimate knowledge of details, amounting to empirical verifi­ cation, before he would say anything of political plans:

"I

must see with my own eyes, I must, in a manner, touch with my own hands, not only the fixed but the momentary circumstances, before I could venture to suggest any political project what­ soever. "9®

In any theory, he insisted, "plans must be made

for men," not men fitted into plans.

"We cannot think of mak-

99 ing men and binding nature to our designs. it^

Burke's profound

self-skepticism and dislike of abstract theory results partly from his belief in the constitutional law of nations, but as we shall now see, it derives mainly from his principle of political prudence. ^ Reflections« P* 325* See also, p. 28I4.. 97 A Letter to a Member of the National Assembly, p. 5^4-8. See also, Thoughts on French Affairs, p. 392. 9^Ibid.. p. 51+9. 99lbid,.

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136

IV The constitutional law of individual states forma in Burke’s political theory the second broadest qualification of the Law of Nature.

This national basis of law, which regulates the in­

dividual differences of people in various states, is the key to Burke's most fundamental practical political doctrine-- his moral prudence.

Almost every page that Burke ever wrote on

matters of state breathes the spirit of his principle of pru­ dence.

To understand what Burke meant by “prudence" or “ex­

pediency" it is essential to note Its Intimate connection through the constitutional law of nations to the Law of Nature. This is precisely what all of Burke's critics, in their dis­ regard of his appeals to the law of nations, have failed to do, and the omission has led them to a false antithesis between prudence and Nature!

"There is the same appeal to expediency

in place of an appeal to the law of nature.

Prudence is

derived from the spirit of constitutional law In much the same

way that the law of nations is derived from the Law of Nature, and it has the same kind of reciprocal relationship to both laws.

In practice, prudence is simply the ultimate and con­

stant consideration which should be given, under the moral law, to the national and local circumstances that make men radically different from one another.

100Ogden, Op. cit.. p. 111.

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137 The main reason why Burke felt it was "metaphysically in­ sane" to ignore men's differences and aim at political uni­ formity, was that God in His original creation decreed there should be many natural differences among mankind, according to climate, race, civil customs and the infinite other circum­ stances that set men apart:

"Those v/ho think themselves wiser

than Providence, and stronger than the course of nature, may complain of all this variation."^®^

These natural differences

between men existed even within each state, and necessitated a principle of change:

"A state without the means of some change

is v/ithout the means of its conservation*"102

Permanent poli­

tical arrangements are meaningful only as they sustain and are sustained by the changing needs and circumstances of men; transformations in society are necessary and good, and wholly in the spirit of the Law of Nature: great law of change*

"We must all obey the

It is the most powerful law of nature,

and the means perhaps of its conservation*"103

a h

that men

can do through politics, Burke indicates, is to provide the means of change that will bring his society into harmony with the moral law.

The means of change cannot be found in meta­

physical "rights" aimed at establishing uniformity in society, for according to Burke the Law of Nature, as the ultimate 1°1a Letter to the Sheriffs of Bristol, p. 33* Almost the whole of this letter is a pure expression of Burke's principle of prudence. 102Reflections, p* 295* 1°3a Letter to Sir Hercules Langrishe, p* 3I4O.

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138 source of prudence, invalidates all metaphysical.abstractions: "These metaphysical rights entering into common life, like rays of light which pierce into a dense medium, are by the laws of nature« refracted from their straight line.

Using the

same general simile, three years later Burke repeated thi3 idea in parliament:

"Laws, he said, were bending to occasions while

they followed principles, as the rays of light acting under a general law are refracted by a particular modification of glass through which they would, under the same laws, otherwise pass in a direct line."^®-’

Since political prudence is indirectly

connected to the Law of Nature, and partakes of its character, it too is clearly perceptible by m a n ’s natural reason*

It was

therefore no moral paradox to Burke that "all the rules of pruTo A

dence are as sure as the laws of material nature," though they could not be settled on any abstract rule.

even Neither

Burke's contemporaries nor his critics of the past century and a half, have grasped this great apparent paradox in his poli­ tical theory,—

that because the universal and eternal Law of

Nature included a vital place for civil differences between men living under the law of nations, it was necessary to preserve and venerate these differences througjh prudence, and that this was not to abjure but to fulfill the Law of Nature. ^ ^Reflections, p* 33^4-*

Italics mine.

^Speeches. IV, I39-II4D. IQ^Regicide Peace, p. 192.

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139 According to Burke, the principle of prudence, or tem­ perance, is perfectly clear because "the rules of prudence... are formed upon the known march of the ordinary province of God;"

107

prudence is perceivable as the spirit of the moral

law of God, embodied in all human affairs, fulfilling itself throughout history: His [God'sJ hand, in every page of his book, has written the lesson of moderation. Our physical well-being, our moral worth, our social happiness, our political tranquil­ lity, all depend on that control of our appetites and passions, which the ancients designed by the cardinal virtue of Temperance.108 Through prudence in history and civil society, as well as through natural reason and divine revelation, God has made clear the whole duty of man to man.

Prudence is the spirit of God’s

moral law which should emanate through civilrulers stitutions, and infuse

and in­

all men with aliberalreasonableness.

In short, prudence is Burke's "divine tactic" embodied in man's political tact.

Understood in this profoundly Aristotelian

sense, Burke's principle of prudence Is nothing less than the theory of the universal, eternal and unchangeable moral Law of Nature applied in practice through politics to each particular man, at every moment and In all circumstances, under the de­ rived moral sovereignty of various nations.

This is the vital

implication in Burke's union of the laws of Nature and of na­ tions; in his political theory they are always so interfused

l°7lbid.. p. 236. lo8Ibid.. p. 326.

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that each particular element of each law pervades every fiber of the other, so that his principle of sovereignty is blended and harmonized with his principle of prudence in a complex, subtle and unsystematic whole. The complete fusion of the Law of Nature and the law of nations made it impossible for Burke to separate political theory from practice,

and therefore, unlike the radical re­

formers and revolutionists, he never regarded politics as a theoretical science capable of being brought to a logical p e r ­ fection.

Since individual differences between m e n under the

law of nations made prudence the cardinal law of practical p o l ­ itics, it was impossible to have any law or principle by which an abstract, absolute political theory of any practical valid­ ity might be devised.

That is why those who have looked for

a conscious system in B u r k e ’s politics have looked in vain, and have even been led through frustration to deny that Burke had a political theory.

In a sense, faith in the classical

Law of Nature is B u r k e ’s ultimate political principle.

But

prudence prevented him from seeking to apply "Nature” as though it were mathematics.

Prudence made his theory thoroughly and

profoundly temperate in its application to society, and this too was part of his theory.

In B u r k e ’s politics prudence is like

Einstein’s theory of relativity in explaining the material u n i ­ verse.

In their respective fields both m e n asked the same

questions and gave essentially the same answer.

Einstein showed

that the failure to find a law by which to measure the absolute relation of moving objects in time and space was the result of

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111! a higher law which made all such relations relative to each other.

Through prudence Burke combined his complete acceptance

of the Laws of Nature and nations with his distrust of abstract, absolute, a Phiori political theory, so that in effect he achieved an absolute relativism within a relatively attainable 10Q moral absolutism. ^ For Burke political theory could never be an exact math­ ematical science because matters requiring moral prudence could never be settled a priori*

"The progressive sagacity

that keeps company with times and occasions, and decides upon things in their existing position, is that alone which can give true propriety, grace, and effect to a m a n ’s conduct.

It

is very hard to anticipate the occasion, and to live by a rule more general."1^® questions,"HI

Since "no moral questions are ever abstract ethical decisions require m a n ’s free will

and right reason at every point in each new occasion, prudence, as the spirit of the Law of Nature in practice, was always Burke’s positive alternative in his incessant attacks on metaphysioal abstractions: Nothing universal can be rationally affirmed on any moral or political subject. Pure metaphysical abstraction does not belong to these matters. The lines of morality are 109Arthur L. Goodhart suggests the same conclusion in say­ ing that in Burke "we have an anticipation of Stammler’s ’Law of Nature with a changing content.’" English Contributions to the Philosophy of Law (Oxford Univ. Press, I9I4.9 ), P« 36. H O Correspondence. II, 276. See also, Speeches. IV, 22lj.. U l Speeches. IV, 66.

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1k2 not like ideal lines of mathematics. They are broad and deep as well as long. They admit of exceptions; they de­ mand modifications. These exceptions and modifications are not made by the process of logic, but by the rules of prudence. Prudence is not only the first in rank of the virtues political and moral, but she is the director, the regulator, the standard of them a l l . H 2 Burke always maintained that "the exercise,,, of competent juris­ diction is a matter of moral prudence," because "moral necessity is not like metaphysical, or even physical."'*’'1^

in aii his

conflicts with George III, the English radical reformers and the French revolutionists, he always made prudence the anti­ thesis of metaphysical rights: A wise prince,,, will study the genius of his people. He will indulge them in their humours, he will preserve them in their privileges, he will aet upon the circumstances of his states as he finds them, and whilst thus acting,,, he is the happy prince of a happy people,Un­ it is not, perhaps, so much by the assumption of unlawful powers, as by the unwise,,, use of those which are most legal, that governments oppose their true end and object; for there is such a thing as tyranny as well as usurpa­ tion. You can hardly state to me a case, to which legis­ lature is the most confessedly competent, in which, if the rules of benignity and prudence are not observed, the most mischievous and oppressive things may not be done. So that after all, it is a moral and virtuous discretion, and not any abstract theory of right, which keeps govern­ ments faithful to their ends. Crude unconnected truths are in the world of practice what falsehoods are in theory, These passages reveal why, in violating his theory of sovereignty 112An Appeal, p. 16. Langrishe. pp. 317-318.

See also, A Letter to Sir Hercules

^ 3 Regicide Peace, pp, 218 and 310* orrespondence. Ill, 211. ^-^Speeches . IV, 55-56. See also, pp, 58-59* 309* 323-321+J I, 278, 285 and 353*

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ll|-3 by placing their private will above the moral law, Burke’s enemies also violated his principle of prudence.

These passages

state perfectly the grounds of Burke’s objection to George Ill’s polloies, yet they were written in 1791 and 1792, and were meant for the more common revolutionists of France*

In his

constant opposition to abstract reasoning, Burke raised his principle of prudence to a cardinal political principle, so that it was impossible for him to discuss social problems relating to life, liberty and property on any abstract rule. The essential spirit of Burke’s moral prudence is perhaps best shown in the many short phrases in which he mentions it incidentally.

In most disputes "prudence would be neuter,"

but since practical affairs require choioes and firm decisions, the job of a prudent statesman is to "reconcile," "compensate," and "balance" human affairs in a manner "suitable to the local and habitual circumstances of their people."11^

Such words and

phrases as "mediation," "equipoise," "wisdom and temper," "the spirit of moderation," and "the amiable and conciliatory virtues of lenity, moderation and tenderness,"11*^

fill all Burke's

discussions of natural and constitutional law and practical policy.

Everywhere he advises that rulers should "conform to

the nature and circumstances of things," that "matters of pru­ dence are under the dominion of circumstances, and not of logical H ^ S e e Reflections, pp. ^30, Iflf-O and 1*53. H 7 a Letter to the Sheriffs of Bristol, p. 1*1. Reflections, p. 286.

See also,

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114 118

analogies *1

His speeches are filled with such phrases as

"not infallibility but prudence," "ideas of prudence and accom­ modation to circumstances," "prudence a statesman, 11H 9

is

the first object of

hjjq considered government as the exercise of

all the great qualities of the human mind, wit h the mother virtues of prudence and providence at their head." "The situa­ tion of m a n is the preceptor of his duty."

"In all moral

machinery the moral results are its test."

"All mankind must

bend to circumstances."

"Situations and circumstanoes were

first to be considered."

"Prudence... was a very useful qual­

ity, and a part of every m a n ’s duty to his country."

"A great

deal depends on the state in which you find men."

Since

"every prudent act is founded on compromise and b a r t e r , " ^ l prudence tells when we should "abate our demand in favor of moderation and justice, and tenderness to individuals ."^22 prudence could not first accomplish in the spirit was fulfilled in the letter by laws not steady,

"When the maxims of public councils are

it is necessary that law should supply the want of

prudence ."123

essential to keep in mind that in all

llSsee Reflections. p. 1+71+J Regicide Peace, p. 22l+. also, The Present. State of the Nation.~p. 2ol.

■'■•'■^See Speeches. I, pp. 113* 323 and 1+13* 120see Speeches. II, pp. 213 and U-335 H I *

See

PP« 1+8 and 539*

IV, pp. 6, 13 and 5 6•

123-Speeches. I, 327*

See also, p. 328.

^ - ^ C o r r e s p o n d e n c e t xil,

118. For other references to cir­ cumstanoes and prudence, see Speeches, I, 189-190* 270, 31+5*

57, 181, 198, 311, 1+81; III, I4.6 2 ; IV, 7, ll+ and 55-56. 123Speeches. I, 352.

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these uses of prudence Burke meant not an intellectual but a moral discretion; prudence was that part of man's reason and temper which enabled him to live by the spirit of the Law of Nature• Now that we have seen what Burke's prudence is, it is easy to understand why and how profoundly it differs from Utilita­ rianism*

With Burke prudence is moral, not intellectual; it

is a part of, and not a substitute for, the moral Law of Na­ ture*

Burke's prudence is a moral horror of injuring those

under our power whom we wish to help; the Utilitarians' pru­ dence is a shrewd calculation of how far men may go before they begin to injure others and themselves.

Passages such as the

following in Burke could indeed be interpreted in a utilitarian sense: All political power which is set over men, and... all privilege claimed or exercised in exclusion of them, being wholly artificial, and for so much a derogation from the natural equality of mankind at large, ought to be some way or other exercised ultimately for their bene­ fit. 121J. Whenever the sacrifice of any subordinate point of moral­ ity, or of honour, or even of common liberal sentiment and feeling is called for, one ought to be tolerably sure that the object is worth it.12^ The first passage has sometimes been alluded to as proof of Burke's utilitarianism, yet it merely says what is an obvious general truth which even a wholly anti-utilitarian theorist could hold,—

that power should be used to benefit man.

The

12lt,Speeches, II, 1+11* •^^Correspondence. Ill, ll£»

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second passage is perhaps the closest Burke ever came to sac­ rificing morality to utility, and even here it is to be noted that he limits his sacrifice to a "subordinate point of moral­ ity, 11 No such aualifications are found when Burke attacked Hastings’ "system of corruption" and his "attempts to justify it on the score of utility," "God forbid that prudence, which is the supreme guide, and indeed stands the first of all the vir1 pA tues, should ever be the guide of vices," Burke distinguished carefully between a true and false adherent of moral prudence: "Our love to the occasionalist, but not server of occasions."'*'^ In any conflict between merely utilitarian convenience and law, Burke’s stand is clear: to me.

"What the law respects shall be sacred

If the barriers of law should be broken down upon Ideas

of convenience, even of public convenience, we shall have no longer any thing certain among us,,.

My limits are the rules

of law; the rules of policy; and the service of the state,"128 When rulers follow true moral prudence they are perfectly in accord with natural and constitutional law, from which men’s true natural and civil rights are derived,

Burke believed that

when claims to "rights" conflict with moral expediency they are not really "rights," and not, as Vaughan and other critics have said, that they are rights but must yield to expediency. Burke did have a principle of utility, but he tells us him­ self that it was derived from Cicero's principle of moral equity, 126speeches. IV, 37^ and 387* ^-^7goprespondence. Ill, 112. I28speeches. II, 62 and 66. See also, p, 63.

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114-7 "which is grounded upon our common nature" and derived from "original justice." "The only utility agreeable to that nature" wrote Burke, is based on "law;" this "utility

is

connected...

with and derived directly from our rational nature; for any other utility may be the utility of a robber."12?

Burke's

moral equity has nothing to do with the utilitarians' physical and intellectual "equality" of man, which

was derived from

modern empirical and rational philosophy, from Hobbes and Locke and not from Cicero.

Moral "equity" led Burke to his principle

of man's diversity within a political unity under the Law of Mature, just as "equality" led the Enlightenment utilitarians to the contrary theory of political uniformity under majority will.

In quoting Burke's "expedience is that which is good

for the community, and good for every individual in it,nl3® Vaughan failed to consider the italicized part of this sentence. When we note, furthermore, that Burke said this in the process of attacking the reform of parliament on "a representation on the principle of numbers," there is no doubt that Burke's ex­ pediency has nothing to do with the utilitarian "greatest good of the greatest number."

Burke saw that the utilitarians had

transposed this slogan to mean that the greatest number should be the moral criterion of the greatest good.

In chapter two

we saw how completely Burke rejected the theory that popular will was the sole ultimate moral basis of politics, and that it could 12?Tracts> on the Popery Laws. p. 22.

See also, pp. 21-23.

13QSpeeches. Ill, 1+9.

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ll|j8 absorb the individual through the state into the '‘general will." The same objections applied to the utilitarian emphasis upon numbers in representation:

“It is not an arithmetical inequal­

ity with which we ought to trouble ourselves.

If there be a

moral, a political equality, this is the desideratum in our constitution, and in every constitution in the world."131 Neither "abstract right" nor metaphysical "truth" nor "general will" nor "utility," nor anything else, could replace or justify trans­ gressions against the moral Law of Nature. Burke believed the reverse of Lecky's statement that "all morals spring from and depend on utility."

To Burke a thing is

not good because it is useful, but utility is merely one of several positive social consequences of morality.

Since there

could be nothing normative or obligatory in the pleasure or profit of utility, it could never be the final principle by which to judge men's actions.

To have each individual decide

for himself what was useful would be to build utility on the radicals' "natural rights."

Utility could easily be rationalized

to include a callous personal, class, sectarian or national self-interest which could violate the moral law.

The utilita­

rians believed in a prudent or convenient morality; Burke in a moral prudence.

Burke's critics have erred by ignoring the

most important fact in his moral theory of "Nature," that he was a believing Christian who never separated politics, in theory or practice, from normative ethics.

To Burke the only

thing more useless than the utilitarianism of Hume, Godwin and I31lbid., p. 50.

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1k9 Benthan, was the unnaturalness of Dr. Price’s and Paine's natu­ ral rights.

Utilitarianism, like the radicals' individual

natural rights to which in one sense it was strongly opposed, was in the full stream of the revolutionary tradition.

Indeed,

scholars who have examined the revolutionary period in terms of "natural rights" versus utilitarianism, have assumed too narrow a frame of reference to understand either Burke or the revolution.

Vaughan admitted that "natural rights," which was

a convenient theory on which to launch the revolution, was a dead issue by 1793-9^-J it was replaced mainly by utilitarianism, a more useful theory on which to consolidate the revolution and impel men toward "progress."

Yet Burke hated this second phase

of the revolution no less ardently than the first, because his theory of sovereignty, principle of moral prudence and recon­ ciliation of self-interest and social benevolence, were all based on the Law of Nature, which is often foreign in spirit and principle, and infinitely more complex, than Utilitarianism^ 2 It is noteworthy that Lord Acton, perhaps the most hyper­ critical scholar and moralist that ever lived, attacked Burke for holding the very principle of expediency which Morley and others so admired as "liberal."

Acton hated the popular tyranny

of utilitarianism as ardently as Burke, and very rightly con­ sidered Mill, Morley's master, an enemy to civil liberty and 132Another writer infers another reason why Burke was not a utilitarian: "It was by no means certain, as Burke pointed out, that man was made for happiness; it seemed, on the contrary, al­ most indubitable that he was bora to trouble as the sparks fly upward. Toil and conflict were the salutary conditions of tils existence." Geoffrey Brunn, Europe, and the French Imperrum (New York, 1 9 3 8 P* 215.

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i5o private conscience.

He believed that in bending to circum­

stances Burke was too often equivocal and evasive toward facing up to the full demands of the moral law: the arbitration of principle.

"He loved to evade

He was prolific of arguments

that were admirable, but not decisive.

He dreaded two-edged

weapons and maxims that faced both ways."1^

a

recent editor

of Acton summarized the grounds of his criticism of Burke: Against Burke and Morley the charge was that they treated political questions Experimentally, by the Baconian methods. 1 *They think that politics teach what is likely to do good or harm, not what is right and wrong, innocent or sinful. 1 For Acton politics was a science, the applic­ ation of the principles of morality. For Burke and Morley it was, as Morley once quipped, something like logic— neither a science nor an art but a dodge. Politics for them was a series of expediencies and compromises. True to their empiricism, Acton complained, they could not see the presence of eternal and absolute principles because they had no sense of the religious sanctity of those prin­ ciples. 'As there are, for him Morley no rights of God, there are no rights of man— the consequence, on earth, of obligation in Heaven. Therefore he never tries to ad­ just his view to many conditions and times and circum­ stances, but approaches each with a mind uncommitted to doctrines and untrammelled by analogies. '13*4Acton's criticism applies well to Morley, who as a positivist and utilitarian denied the Law of Nature, but we have seen that it does not apply to Burke at all.

Of all men, Acton should

have known better than to disown Burke as his master, for not adhering to the Law of Nature.

Acton would have been right in

disowning Burke if his principle of prudence was what Morley ^33Quoted by Mary Gladstone Drew, Acton. Gladstone and Others (London, I92J4.), p. 29. 13^+Gertrude Himmelfarb, ed., Acton, Essays on Freedom and Power. Introduction, xxxvii-xxxviii.

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151 thought it to be, for Acton also centered his philosophy in the classical Law of Nature.

His criticism reveals that even those

of Bur k e ’s successors who adhered to the moral law did not u n ­ derstand or accept his principle of prudence.

However, Acton

does suggest the great potential danger in Burke’s prudence,— that it may have lead him to moral casuistry and calculation, to the false liberalism and real indifference of the "trimmers 1 1 and latitudinarians, V/hig."

to Dr. J o h n s o n ’s unprincipled "bottomless

’ .Ve have seen that in his political theory Burke was

none of these things.

The question remains: did B u r k e ’s p r i n ­

ciple of prudence lead h i m to violate the moral law in practice? In two great passages,

the first inspired by his unique

part in the attempted economical reform of I 78O, and the second by his independent stand on the French Revolution, Burke clearly distinguished between equivocation or moral weakness in a crisis, and his own principle of prudence: I feel that I engage in a business... totally wide of the course of prudent conduct; and I really think, the most completely adverse that can be imagined, to the natural turn and temper of m y own m i n d . .. It is much more easy to reconcile this measure to humanity, than to bring it to any agreement w i t h prudence. I do not mean that little, selfish, pitiful, bastard thing, whi c h sometimes goes by the name of a family in which it is not legitimate, and to which it is a disgrace— I mea n that public and enlarged prudence, which, apprehensive of being disabled from r e n ­ dering acceptable services to the world, withholds itself from those that are invidious.135 13^Spe eches. II, 11. "If I cannot reform v/ith equity," wrote Burke, I will not reform at all." p. 57 • See also, p. ii+5* Bentham, in his Defense of Economy Against the late Mr. Burke_ (Lon­ don, 1817), attacked B u r k e ’s speech and drew out the differences between Burke and his utilitarian contemporaries. To Bentham, Bur ke’s "frugality," "probity," "candour11 etc., were so many pre­ texts to preserve the corrupt court system, p. 13. To Burke s x am not possessed of an exact measure between real service and its reward, he wrote: "Except Edmund Burke, no man is thus ignorant, p. 32. He then computed the ratio between service and reward. Reproduced with permission of the copyright owner. Further reproduction prohibited without permission.

152 Prudence (in all things a virtue, in politics the first of virtues,) will lead us rather to acquiesce in some qualified plan>that does not come up to the full perfec­ tion of the abstract idea, than to push for the more per­ fect, which cannot be attained without tearing to pieces the whole contexture of the commonwealth... In all changes in the state, moderation is a virtue, not only amiable^ but powerful. It is a disposing, arranging, conciliating, cementing virtue... Moderation (which times and situa­ tions will clearly distinguish from the counterfeits of pusillanimity and indecision) is the virtue only of super­ ior minds. It requires a deep courage, and full of re­ flection, to be temperate when the voice of multitudes (the specious mimic of fame and reputation) passes judg­ ment against you. The impetuous desire of an unthinking public will endure no course, but what conducts to splen­ did and perilous extremes. Then.to dare to be fearful, when all about you are full of presumption and confidence, and when those who are bold at the hazard of others would punish your caution and disaffection, is to show a mind prepared for its trial; it discovers, in the midst of general levity, a self-possessing and collected character, v/hich, sooner or later, bids to attract every thing to it, as to a centre *^-3o If these passages were not enough to acquit 3urke of being through prudence a scrupulous conniver or a moral coward, his whole practical political career is the best answer to both Morley*s and Acton’s misinterpretations.

For years after most

of his colleagues would have liked to have quietly dropped Hastings’ trial, Burke made himself unpopular for the moral zeal with which he pursued a just decision.

He gave up his

seat from Bristol rather than support an iniquitous economic policy against Ireland.

He broke life-long friendships and

stood alone for several years rather than admire the events of 1789.

His loyalty to Rockingham and moral guidance of Whig

policies for several decades is a sufficient monument to his high personal integrity.

The drown was never able to corrupt

136correspondence. Ill, 118-120.

See also, p. 121.

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A

153 him, and he spent most of his political career with the loyal opposition.

In I769 when the elder Pitt left his retirement

and returned briefly to politics to secure justice for the Colonists and the Middlesex electors, the condition under which he was willing to assume power is an sternal tribute to the party of Burke! For my part, I am grown old, and unable to fill any of­ fice of business; but this I am resolved on, that I will not even sit at council but to meet Lord Rockingham. He, and he alone, has a knot of spotless friends such as ought to govern this kingdom.137 In practice Burke’s principle of prudence did not result in cal­ culated self-interest, or an ossified moral will, but in a dyna­ mic application of the Law of Nature to various human affairs. In summarizing Burke’s political theory it is clear that the Law of Nature, and the law of nations culminating in pru­ dence, form the largest and most fruitful frame of reference. His political theory is founded upon the ancient conception of the Law of Nature, which he inherited from Aristotle, Cicero, Justinian, Bracton, 3t. Thomas Aquinas, Hooker, Bacon, Suarez, Grotius, Puffendorf, and all the Lnglish jurists from Coke through Blacks tone, as modified by the modern law of nations and his own unique addition of prudence.

Burke shows his con­

scious affinity with all of his predecessors, but particularly with Cicero, in his view of "Nature" as an imperative ethical norm, rather than as an empirical descriptive process, in his belief that the Laws of Nature come from God and are discoverable 137Willi am Pitt, quoted by Sir George 0. Trevelyan, Op*. cit^, ?. 192.

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I5t by m a n through individual and corporate reason,

in his convic­

tion that there is a possible moral resolution of the apparent conflict between m a n ’s self-interest and social benevolence, and in his principle of sovereignty, which held the will of God and man subservient to the eternal and unchangeable moral law. Burke’s acceptance of m e n ’s differences under the law of nations, and his application of moral prudence, made his compassionate regard and irrational reasonableness toward all that was finite, fallible and weak in human nature the chief social means of liv­ ing by the spirit of the Law of Nature.

Through the moral law

and prudence Burke combined his eloquent religious mysticism and stark earthy practicality, often resembles the Bible,

so that his political theory

and is never more penetrating and pro-

found than when it appears naive.

Nature and prudence gave him

his conviction that society is of Divine institution and that its various forms, from the people.

and those who administer it, all originate As a normative code of ethics,

the Lav/ of

Nature is the basis of B u r k e ’s conservatism; it taught him that man and society are organically immortal, and are bound through precedents and conventions beyond history to God.

The prin­

ciple of prudence underlies B u r k e ’s liberalism, his sensitive regard for m e n ’s differences, his veneration for local loyal­ ties and prejudices, his intense hatred of arbitrary absolutism and his skepticism toward ideal, simple, universal and uniform plans of government.

Burke's Law of Nature and prudence made

his political theory thoroughly consistent, yet almost wholly unsystematic.

They enabled hi m to fuse to the limit of their

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m

valence,

the most sublime moral precepts and the most concrete

details and various situations, one.

so that theory and practice were

In all his discussions of natural,

constitutional and

statutory laws, he revealed their rich reciprocal theoretical relationships, in point.

and also their practical application to the case

As Matthew Arnold said,

with thought."

Burke

"saturated politics

Because he favored that harmony of discordant

powers which tested ideas through an incessant and vigorous opposition, Burke was by temperament a m a n who would not regard the ultimate test of a philosophy that it was