Select Works of Edmund Burke: Reflections on the Revolution in France. Edmund Burke

Чтение книги онлайн.

СКАЧАТЬ of his main ideas is the thoroughly lawyer-like one that liberty can only proceed “from precedent to precedent.” This onward progress he admitted as far as the epoch of the Revolution, but there, in a way characteristic of him, he resolved to take his stand. Magna Charta, the Petition of Right, the Bill of Rights, and the Act of Settlement, were his undoubted chain of English constitutional securities, and he declined to admit any further modification of them. So far he was in harmony with popular ideas. When he went beyond this, and declared that the Act of Settlement bound the English nation for ever, his reasoning was obviously false. The whole procedure of Burke throughout this book is, as has been observed, [xviii] avowedly that of an advocate. In his apology called the “Appeal from the New to the Old Whigs,” he states as the reason that when any one of the members of a vast and balanced whole is endangered, he is the true friend to them all who supports the part attacked, “with all the power of stating, of argument, and of colouring, which he happens to possess, and which the case demands. He is not to embarrass the minds of his hearers, or to incumber or overlay his speech, by bringing into view at once (as if he were reading an academic lecture) all that may and ought, when a just occasion presents itself, be said in favour of the other members. At that time they are out of court; there is no question concerning them. Whilst he opposes his defence on the part where the attack is made, he presumes that for his regard to the just rights of all the rest, he has credit in every candid mind.” Burke’s overstrained reverence for the Act of Settlement may be partly due to the general feeling of uncertainty which, during his own century, prevailed as to party principle. As early as Swift’s time, parties and their creeds had become thoroughly confused and undistinguishable. But Burke demanded something positive—something to which men could bind themselves by covenant. Casting a glance back upon the history of parties from Burke’s time, the Revolution is the first trustworthy landmark that we meet with. In the apology from which we have just quoted, he proclaims the speeches of the managers of the impeachment of Sacheverel, as representing those who brought about the English Revolution, to be the fountains of true constitutional doctrine. After this epoch he seems to have distrusted all political creeds. There is hardly one notable political work of the day immediately preceding him to which he makes allusion, and then only in terms of censure.

      As an illustration at once of Burke’s instinctive retreat to the shelter of legal orthodoxy, and of the charm which his pen could throw over the driest statement of first principles, let us observe how he has worked up a well-known passage of a well-known legal classic.

“The design of entering into society being the protection of our persons and security of our property, men in civil society have a right, and indeed are [xix] obliged to apply to the public for redress when they are injured; for were they allowed to be their own carvers, or to make reprisals, which they might do in a state of nature, such permission would introduce all that inconvenience which the state of nature did endure, and which government was at first invented to prevent; hence therefore they are obliged to submit to the public the measure of their damages, and to have recourse to the law and the courts of justice, which are appointed to give them redress and ease in their affairs.” (Bacon’s Abridgment, art. Actions in General.)

“One of the first motives to civil society, and which becomes one of its fundamental rules, is that no man should be judge in his own cause. By this each person has at once divested himself of the fundamental right of uncovenanted man, that is, to judge for himself, and to assert his own cause. He abdicates all right to be his own governor. He inclusively, in a great measure, abandons the right of self-defence, the first law of nature. Men cannot enjoy the rights of an uncivil and of a civil state together. That he may obtain justice he gives up his right of determining what it is, in points the most essential to him. That he may secure some liberty, he makes a surrender in trust of the whole of it.” (Page 151.)

      The practical jurisprudence of England in Burke’s time stood sadly in need of Reform. That of France was in a still worse case. Burke fully recognised the necessity of removing the “defects, redundancies, and errors” of the law (p. 191), though he still maintained it to be the “collected reason of ages,” and the “pride of the human intellect.” Whether in France “the old independent judicature of the Parliaments” was worth preserving, in a reformed condition, as Burke so strongly insists, admits of doubt. Scandalous as were the delays, the useless and cumbrous processes, and the exaction which attended the management of the English law, those who administered it were at least able men, and men who had honestly risen to their places, in virtue of their native and acquired qualifications. It was not so in France. In France judges purchased their places and suitors purchased justice. In cases where this may not be absolutely true, justice at the hands of the “sworn guardians of property” was a doubtful commodity, and few will now deny that the Assembly were justified in making a clean sweep of it (see p. 222). As to the common law which they administered, its condition will be best gathered from the articles on the subject contained in the Encyclopédie. It is enough to say of it that it exhibited the worst characteristics of English law before the time of [xx] Richard II. The general system of English law he thought entitled a qualified commendation. His views on the subject were however very different from those of his contemporary, Lord Eldon. He did not systematically discountenance all enquiry, and scout all proposed reform. He had taken the lead in 1780, in advocating reforms dealing with the Royal property, which have since been carried out with general approval. He had commenced, early in his career, a treatise advocating that reform of the Irish Penal Laws which, when carried through by his friends Savile and Dunning, produced the awful riots of 1780. His judgment on the question of how far reform was admissible, and at what point it degenerated into innovation, coincides with that of Bacon and Hale, rather than with that of Coke and Eldon.

      Conceiving the English nation as a four-square fabric supported on the four bases of the Church, the Crown, the Nobility, and the People, it is natural to find the author insisting most on the excellences of those elements which were then assailed in France. The People, of course, needed no defence, nor was the Crown as yet overthrown. The dream of the moment was a constitutional monarchy, based on elements similar to those of the English Constitution.¹ Only the Church and the Aristocracy were as yet threatened: and, next to the defence of the Church, the best known section of the present treatise is that which relates to the Nobility. On this subject, independently of constitutional law and of theory, Burke cherished prejudices early formed and never shaken. He had lived on terms of intimacy with, and was bound by ties of mutual obligation to some of the worthiest members of the British aristocracy. It is mainly to them personally that his panegyric is applicable. Nobility, however, possessed claims which he was as eager to recognise, as an important establishment of the common law of the country, and as justified by universal analogy and supported by the best general theories of society. “To be honoured, and even privileged, by the laws, opinions, and inveterate usages of our country,” was with him not only a noble prize to the person who attained it, but a politic institution for the community which conferred it. Why? Because it operated as an instinct to secure property, [xxi] and to preserve communities in a settled state (p. 241). But Burke’s reasoning is vitiated by a cardinal fault. It is pervaded by his own conception of an aristocracy, derived from his own personal friends and fellow-workers. The aristocracy of France differed from that of England as substance differs from shadow. In England, nobility had long implied privileges which are merely honorary; in France it implied privileges substantial in themselves, and grievous to those who were excluded from them. Practically, though Burke in the duties of his advocacy denies the fact, the nobility were untaxed. To use a sufficiently accurate expression, the feudal system was still in operation in France. If not aggravated by natural growth during successive centuries, it exhibited a growing incompatibility with what surrounded it. In England it had practically been extinct for two centuries, and it was now absolutely out of mind. Barons and Commons had long made up but one People; the old families were mostly extinct, and the existing Peers were chiefly commoners with coronets on their coats of arms. At the present moment not a single seat in the House of Peers is occupied in virtue of tenure,¹ and the Peerage, saving heraldic vanities and some legal and social courtesies, practically confers nothing but a descendible personal magistracy, exercised at considerable expense and inconvenience. The status of a Peer generally involves, in addition, the maintenance of the bulk of a fortune not always large in the least remunerative of investments. The СКАЧАТЬ