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 qualification for a Peerage has long been limited to a long-continued course of service to the State. Every one of these conditions was reversed in France. The nobleman was a member of a decaying privileged class, who clung to their unjust and oppressive privileges with the most obstinate tenacity. It was the idle noble who spent the hard earnings of the peasant. Taxation in England fell lightly in the extreme upon the poorer classes; in France they bore almost the whole burden of the national expenses. Society in France thus rested on a tottering and artificial frame: while in England the frame had gradually and safely accommodated itself to the change of social force.
But in the method of Burke every argument in favour of a [xxii] particular element of the State, based upon the special excellence of that element, is subordinate to his general doctrine of the nature of the State as a grand working machine. A machine, he thought, to attain the end for which it was devised, must be allowed to work fairly and continuously. To be perpetually stopping its system for the purpose of trying experiments, was an error venial only in a child. To destroy it, in order to use its parts in the construction of some other ideal machine, which might never be got to work at all, was criminal madness. The strictures of Burke with reference to this great and central point in his political philosophy are only partially applicable to the French Reformers of his day; nor are they at any time unexceptionably appropriate. Yet they constitute a profound and necessary substructure in every intelligent conception of civil matters, and as such they will never cease to be worthy of the remembrance of the most practised statesmen, as well as an indispensable part of the education of the beginner in politics. Every student must begin, if he does not end, with Conservatism; and every Reformer must bear in mind that without a certain established base, secured by a large degree of this often-forgotten principle, his best devised scheme cannot fail to fall to the ground. The present work is the best text-book of Conservatism which has ever appeared.
Burke claims for his views the support of the English nation. Political events and the popularity of his book alike proved that this was no idle boast: but it necessarily indicated nothing more than that the party of progress was in England in the minority, while in France it was in the ascendant. Burke’s claim, however, involves far more. It asserts that the doctrines of the revolution had long been well known in England: that the belief in the “rights of man” had long been exploded, and its consequences dismissed as pernicious fallacies: and that in this condemnation the best minds in England had concurred. To examine the justice of this claim would involve the whole political and religious history of the stirring century between the Spanish Armada and the Revolution of 1688. This is far beyond our present purpose, which may be equally well served on ground merely literary. Taking English literature as our guide, we shall find that, two hundred years before, conclusions very similar to those of Burke were formed in the minds of philosophical [xxiii] observers. The significance of those conclusions is not impaired by the historical results of the contest. They throw no shade upon the glorious victories of the spirit of English liberty. They rather illustrate and complement them. They rather tend to justify the partial adoption, by sober and reasonable men, when the substance of English liberty began to be attacked under the Scotch kings, of ideas which were previously limited to intemperate and half-educated minds. But these ideas never penetrated the mass of English contemporary thinkers. Milton, in his proposed organisation of the republic, followed Italian, not English ideas: and the honour due to Milton will not prevent our recognising the beauty and propriety of doctrines