Political Thought in England from Locke to Bentham

by Harold J. Laski

"Its true defect," says Professor Dicey of the Commentaries, "is the hopeless confusion both of language and of thought introduced into the whole subject of constitutional law by Blackstone's habit—common to all the lawyers of his time—of applying old and inapplicable terms to new institutions." This is severe enough; yet Blackstone's sins are deeper than the criticism would suggest. He introduced into English political philosophy that systematic attention to forms instead of substance upon which the whole vicious theory of checks and balances was erected. He made no distinction between the unlimited sovereignty of law and the very obviously limited sovereignty of reality. He must have known that to talk of the independence of the branches of the legislature was simple nonsense at a time when King and peers competed for the control of elections to the House of Commons. His idealization of a peerage whose typical spiritual member was Archbishop Cornwallis and whose temporal embodiment was the Duke of Bedford would not have deceived a schoolboy had it not provided a bulwark against improvement. It was ridiculous to describe the Commons as representative of property so long as places like Manchester and Sheffield were virtually disfranchised. His picture of the royal prerogative was a portrait against every detail of which what was best in England had struggled in the preceding century and a half. He has nothing to say of the cabinet, nothing of ministerial responsibility, nothing of the party system. What he did was to produce the defence of a non-existent system which acted as a barrier to all legal, and much political, progress in the next half-century. He gave men material without cause for satisfaction.

As a description of the existing government there is thus hardly an element of Blackstone's work which could stand the test of critical inquiry. But even worse was its philosophy. As Bentham pointed out, he was unaware of the distinction between society and government. The state of nature exists, or fails to exist, with startling inconsistency. Blackstone, in fact, was a Lockian who knows that Hume and Montesquieu have cut the ground from under his master's feet, and yet cannot understand how, without him, a foundation is to be supplied. Locke, indeed, seems to him, as a natural conservative, to go too far, and he rejects the original contract as without basis in history; yet contractual notions are present at every fundamental stage of his argument. The sovereign power, so we are told, is irresistible; and then because Blackstone is uncertain what right is to mean, we hear of moral limitations upon its exercise. He speaks continually of representation without any effort to examine into the notions it conveys. The members of society are held to be equal; and great pains are taken to justify existent inequalities. "The natural foundations of sovereignty," he writes, "are the three great requisites... of wisdom, goodness and power." Yet there is nowhere any proof in his book that steps have been taken in the British Constitution to associate these with the actual exertion of authority. Nor has he clear notions of the way in which property is to be founded. Communism, he writes in seventeenth century fashion, is the institution of the all-beneficent Creator who gave the earth to men; property comes when men occupy some special portion of the soil continuously or mix their labor with movable possessions. This is pure Locke; though the conclusions drawn by Blackstone are utterly remote from the logical result of his own premises.

The truth surely is that Blackstone had, upon all these questions, only the most confused sort of notions. He had to preface his work with some sort of philosophic theory because the conditions of the age demanded it. The one source of enlightenment when he wrote was Hume; but for some uncertain reason, perhaps his piety, Blackstone makes no reference to the great sceptic's speculations. So that he was driven back upon notions he felt to be false, without a proper realization of their falsity. His use of Montesquieu shows rather how dangerous a weapon a great idea can be in the hands of one incompetent to understand it, than the fertility it contained. The merit of Blackstone is his learning, which was substantial, his realization that the powers of law demand some classification, his dim yet constant sense that Montesquieu is right alike in searching for the roots of law in custom and in applying the historical method to his explanations. But as a thinker he was little more than an optimistic trifler, too content with the conditions of his time to question its assumptions.

De Lolme is a more interesting figure; and though, as with Blackstone, what he failed to see was even more remarkable than what he did perceive, his book has real ability and merit. De Lolme was a citizen of Geneva, who published his Constitution of England in 1775, after a twelve months' visit to shores sufficiently inhospitable to leave him to die in obscurity and want. His book, as he tells us in his preface, was no mean success, though he derived no profit from it. Like Blackstone, he was impressed by the necessity of obtaining a constitutional equilibrium, wherein he finds the secret of liberty. The attitude was not unnatural in one who, with his head full of Montesquieu, was a witness of the struggle between Junius and the King. He has, of course, the limitation common to all writers before Burke of thinking of government in purely mechanical terms. "It is upon the passions of mankind," he says, "that is, upon causes which are unalterable, that the action of the various parts of a state depends. The machine may vary as to its dimensions; but its movement and acting springs still remain intrinsically the same." Elsewhere he speaks of government as "a great ballet or dance in which ... everything depends upon the disposition of the figures." He does not deal, that is to say, with men as men, but only as inert adjuncts of a machine by which they are controlled. Such an attitude is bound to suffer from the patent vices of all abstraction. It regards historic forces as distinct from the men related to them. Every mob, he says, must have its Spartacus; every republic will tend to unstability. The English avoid these dangers by playing off the royal power against the popular. The King's interest is safeguarded by the division of Parliament into two Houses, each of which rejects the encroachment of the other upon the executive. His power is limited by parliamentary privilege, freedom of the press, the right of taxation and so forth. The theory was not true; though it represented with some accuracy the ideals of the time.

Nor must we belittle what insight De Lolme possessed. He saw that the early concentration of power in the royal hands prevented the continental type of feudalism from developing in England; with the result that while French nobles were massacring each other, the English people could unite to wrest privileges from the superior power. He understood that one of the mainsprings of the system was the independence of the judges. He realized that the party-system—he never used the actual term—while it provides room for men's ambitions at the same time prevents the equation of ambition with indispensability. "Woe to him," says De Lolme, "... who should endeavor to make the people believe that their fate depends on the persevering virtue of a single citizen." He sees the paramount value of freedom of the press. This, as he says, with the necessity that members should be re-elected, "has delivered into the hands of the people at large the exercise of the censorial power." He has no doubt but that resistance is the remedy whereby governmental encroachment can be prevented; "resistance," he says, "is the ultimate and lawful resource against the violences of power." He points out how real is the guarantee of liberty where the onus of proof in criminal cases is thrown upon the government. He regards with admiration the supremacy of the civil over the military arm, and the skillful way in which, contrary to French experience, it has been found possible to maintain a standing army without adding to the royal power. Nor can he fail to admire the insight which organizes "the agitation of the popular mind," not as "the forerunner of violent commotions" but to "animate all parts of the state." Therein De Lolme had grasped the real essence of party government.

It was, of course, no more than symptomatic of his time that cabinet and prime minister should have escaped his notice. A more serious defect was his inability, with the Wilkes contest prominently in his notice, to see that the people had assumed a new importance. For the masses, indeed, De Lolme had no enthusiasm. "A passive share," he thought, "was the only one that could, with safety to the state, be trusted" to the humble man. "The greater part," he wrote, "of those who compose this multitude, taken up with the care of providing for their subsistence, have neither sufficient leisure, nor even, in consequence of their imperfect education, the degree of information, requisite for functions of this kind." Such an attitude blinded him to the significance of the American conflict, which he saw unattended by its moral implications. He trusted too emphatically to the power of mechanisms to realize that institutions which allowed of such manipulation as that of George III could not be satisfactory once the people had awakened to a sense of its own power. The real social forces of the time found there no channels of activity; and the difference between De Lolme and Bagehot is the latter's power to go behind the screen of statute to the inner sources of power.

IV

The basis of revolutionary doctrine was already present in England when, in 1762, Rousseau published his Contrat Social. With its fundamental doctrines Locke had already made his countrymen familiar; and what was needed for the appreciation of its teaching was less a renaissance than discontent. So soon as men are dissatisfied with the traditional foundations of the State, a gospel of natural rights is certain to make its appearance. And, once the design of George III had been made familiar by his treatment of Chatham and Wilkes, the discontent did not fail to show itself. Indeed, in the year before the publication of Rousseau's book, Robert Wallace, a Scottish chaplain royal, had written in his Various Prospects (1761) a series of essays which are at once an anticipation of the main thesis of Malthus and a plea for the integration of social forces by which alone the mass of men could be raised from misery. In the light of later experience it is difficult not to be impressed by the modernist flavour of Wallace's attack. He insists upon the capacity of men and the disproportion between their potential achievement and that which is secured by actual society. Men are in the mass condemned to ignorance and toil; and the lust of power sets man against his neighbor to the profit of the rich. Wallace traces these evils to private property and the individualistic organization of work, and he sees no remedy save community of possessions and a renovated educational system. Yet he does not conceal from himself that it is to the interest of the governing class to prevent a revolution which, beneficent to the masses, would be fatal to themselves; nor does he conceive it possible until the fertility of men has been reduced to the capacity of the soil. He speculates upon the chances of a new spirit among men, of an all-wise legislator, and of the beneficent example of colonies upon the later Owenite model. But his book is contemporaneous with our own ideas rather than with the thoughts of his generation. Nor does it seem to have excited any general attention.

It is five years after Rousseau that we see the first clear signs of his influence. Naturally enough the men amongst whom the new spirit spread abroad were the Nonconformists. For more than seventy years they had been allowed existence without recognition. None had more faithfully supported the new dynasty than they; none had been paid less for their allegiance. Their utmost effort could secure only a sparing mitigation of the Test Act. All of them were Whigs, and the doctrines of Locke suited exactly their temper and their wants. There were amongst them able men in every walk of life, and they were apt to publication. Joseph Priestley, in particular, gave up with willingness to mankind what was obviously meant for chemical science. A few years previously Brown of the Estimate had submitted a scheme for national education, in which the essential principle was Church control. Priestley had answered him, and was encouraged by friends to expand his argument into a general treatise. His Essay on the First Principles of Government appeared in 1768; and, if for nothing else, it would be noteworthy because it was therein that the significance of the "greatest happiness principle" first flashed across Bentham's mind. But the book shows more than this. "I had placed," says Priestley with due modesty, "the foundation of some of the most valuable interests of mankind on a broader and firmer basis than Mr. Locke"; and the breadth and firmness are Rousseau's contribution.

Certainly we herein meet new elements. On the very threshold of the book we meet the dogma of the perfectibility of man. "Whatever," Priestley rhapsodizes, "was the beginning of this world, the end will be glorious and paradisaical, beyond what our imaginations can now conceive." "The instrument of this progress ... towards this glorious state" is government; though a little later we are to find that the main business of government is noninterference. Men are all equal, and their natural rights are indefeasible. Government must be restrained in the interests of liberty. No man can be governed without his consent; for government is founded upon a contract by which civil liberty is surrendered in exchange for a power to share in public decisions. It thus follows that the people must be sovereign, and interference with their natural rights will justify resistance. Every government, he says, is "in its original principles, and antecedent to its present form an equal republic"; wherefore, of course, it follows that we must restore to men the equality they have lost. And, equally, of course, this would bestow upon the Nonconformists their full citizenship; for Warburton's Alliance, to attack which Priestley exhausts all the resources of his ingenuity, has been one of the main instruments in their degradation. "Unbounded liberty in matters of religion," which means the abolition of the Establishment, promises to be "very favorable to the best interests of mankind."