The publication of Bentham’s Collected Works is likely to produce more new or revised views than the publication of Burke’s Writings and Speeches: indeed, it has already done so. The Bentham project will also take longer, for the establishment of the text is a herculean task. Bentham left a vast archive of notes and of drafts and redrafts of works planned but not published. Some of what was published in his lifetime was published in French, by his friend Dumont, with little help from Bentham, and retranslated into English. After his death his disciple Bowring added to the confusion by publishing an edition of Bentham’s works which seems to aim at recording Bowring’s interpretation of Bentham’s thought rather than his own words. Burke left no problem like this. Most of what he wrote was written as a reaction to current events, and published at once, and past editors have treated it with respect. What is particularly valuable about the present undertaking is that Burke’s speeches – many printed for the first time – and his notes for speeches are brought together with the pamphlets he wrote and published at the same time.
It is easy enough to make a contrast between the Burkean and the Benthamite approach: between the appeal to history and the appeal to utility, between rhetoric and reason, romanticism and scepticism. But it is too easy. Agreement is not destroyed because the agreed position is reached by different roads. All their lives, Burke and Bentham agreed in detestation and denunciation, as pernicious nonsense, of doctrines of natural rights, original contracts, and the rights of man. Both were lifelong enemies of abstractions, fictions, and ‘non-entities’. Both were exponents of the concept of parliamentary sovereignty, and both later modified their views.
Hobbes had defined the sovereign as the law-making authority, unlimited and indivisible. Following Hobbes, but by no means acknowledging him, the 18th-century debate started from the premise that Parliament, the legislature, was the supreme body in the state. It had emerged victorious over its old rivals; its law was the supreme form of law and could override other forms; the king could not abrogate or make exemptions from it. Did this mean that Parliament was sovereign? Blackstone in the 1760s, Burke and Bentham in the 1770s, answered ‘yes’. Those who answered ‘no’ deserve more respect than either Burke or Bentham gave them. These dissentients from sovereignty did not dispute Parliament’s supremacy: what they rejected was the step from supremacy to sovereignty. Some of them denied that the step had been taken: there were certain things, they said, that Parliament not only ought not to but could not do. The radical Granville Sharp, who saw ‘too many advocates for the imaginary omnipotence, or unlimited power, of Parliament’, agreed with the Whig lawyer Camden that Parliament could not ‘subvert the constitution’. To Bentham this was nonsense. Others denied, not Parliament’s unlimited power, but its unlimited right: there were certain things that Parliament ought not to do – for example, infringe the constitution. In effect, they looked for a reliable way of preventing such infringement. This is not a foolish or eccentric quest. Indeed, both ‘could not’ and ‘ought not’ point to a very real constitutional problem, not at all confined to 18th-century Britain. An obvious solution, adopted by many makers of new constitutions, was to separate the constitution from the legislature. The dissentients believed that they were separate in England: whatever powers Parliament had, it had not the power, or the right, to tamper with the constitution.
One of the dissentients, Willoughby Bertie, Earl of Abingdon, put their case in 1777 in the form of protest against ‘Mr Burke’s Creed’ – ‘the unlimited right as well as the unlimited power’ of Parliament. Burke had stated it briefly in 1766, in his first reported speech in the Commons, and elaborated it in 1777, in his letter to the Sheriffs of Bristol. ‘I say,’ Abingdon retorted, ‘the right is fiduciary, the power limited. If Parliaments are not bound by the constitution, nor subject to the control of the People, where is the difference betwixt a free and an arbitrary country, – between the despotism of the King of France and the despotism of the Parliament of England? It is a solecism in politics, and an absurdity in terms, to say that in a limited Government there can be unlimited Power.’ In the 1770s these had little chance of being anything but minority views. For Abingdon wrote not only against a long drift towards acceptance of parliamentary sovereignty, but during the sharp quarrel about sovereignty in relation to British policy towards the American colonies. To most Whigs parliamentary sovereignty was not despotism. It was, after all, born of two great victories for liberty – the Glorious Revolution and the Act of Settlement – and it was not unitary sovereignty. The balances and mixture implicit in the tripartite structure of Parliament seemed a safeguard against tyranny, just as the structure itself seemed to disprove Hobbes’s contention that sovereignty was indivisible.
Burke followed closely on Dr Johnson and Bentham. In 1775 Dr Johnson pronounced that ‘there must in every society be some power or other from which there is no appeal – exempt itself from question or control, and bounded only by physical necessity – not infallible, for it may do wrong; but irresistible.’ And in 1776 Bentham launched his attack on ‘unmeaning’ statements: there were no ‘assignable bounds to the supreme power’ in a state. ‘To say that there is any act that they [Parliament] cannot do, to speak of any thing (of theirs) as being illegal ... void ... is ... an abuse of language.’
With Johnson, Bentham and Burke on the side of parliamentary sovereignty, it might seem that the battle was won. Nevertheless, one section of the enemy was difficult to subdue because it did not admit to being an enemy. These were the upholders of the doctrine of natural law, a universal moral code, binding on everyone and therefore of course on Parliament. Many men who were by no means radical insisted, with Chatham, that the acceptance of parliamentary sovereignty did not entail the sacrifice of natural law. Blackstone, who had defined parliamentary sovereignty in 1765, saw no incompatibility between it and the law of nature, ‘the eternal, immutable laws of good and evil ... which [God] has enabled human reason to discover’. Since the devil can make as well as quote scripture, Hobbes himself might have been quoted, for he wrote of ‘equity ... to which, being a precept of the law of nature, a sovereign is as much subject as any of the meanest of his people’. Blackstone’s combination of parliamentary sovereignty with natural law – a non-entity, a poisonous fiction of the kind dear to lawyers and constitutional theorists – was one of the ‘inconsistencies’ that infuriated Bentham, who saw it as nothing but imprecision of thought and language. But here, at least, Bentham painted Blackstone blacker than he was. Natural law differs from other fictions – contract, for example – and cannot be exploded in the same way. Surely, too, at least two of Blackstone’s statements ought to have given Bentham pause: that natural law was found out by human reason (echo of Hobbes?) and that obedience to natural law means ‘that every man shall pursue his own happiness’ (echo of David Hume and foretaste of Bentham himself?). The puzzle is rather, as Ross Harrison suggests in his discussion of Bentham’s thought as a whole – a considerable achievement – why Bentham did not enlist natural law as an ally of utility: they had much in common.
The dissentients had no wish to combine natural law, or anything else, with parliamentary sovereignty. They knew that the brakes they applied to Parliament reduced it from sovereignty to supremacy, and this was their intention. Abingdon’s reply to Burke is, here, a reply to Bentham too: the limits on Parliament’s power are not abstractions or fictions, and there is no need of speculation and the arts of the metaphysician to discover them. They are ‘the constitution’. Its principles are to be found in documents, which may or may not be Acts of Parliament, like Magna Carta, the Petition of Right, the Declaration of Rights. These form, to quote a later Answer to Mr Burke (1781), ‘that code or system of fundamental laws, emphatically called “The Constitution” ... immutable and indefeasible, in contradistinction to acts of parliament, which are alterable and repealable at pleasure’. This warning not to confuse the nature of a fundamental law with the form in which it is stated makes the radicals’ case very clear: it rests upon a distinction between the constitution and the laws. Parliament makes the laws but not the constitution. It follows not only that there is a difference between constitutional laws and ordinary laws, but also that a law made by a particular Parliament may be ‘unconstitutional’.
The distinction between constitutional and ordinary Acts of Parliament was made by legislators as well as by dissentients from parliamentary sovereignty. Some Acts of Parliament were tacitly designated ‘constitutional’ or ‘fundamental’ by the insertion of the words ‘for ever’. The Bill of Rights, the Act of Settlement and the Acts of Union with Scotland and Ireland had these words, and the Triennial and Septennial Acts used a phrase with the same meaning. Of course the words ‘for ever’ in an Act of Parliament are, and were, no legal obstacle to its repeal by any future Parliament: they were, however, a moral obstacle. But what is important is that the words express a feeling of need for a way of distinguishing between constitutional, or fundamental, and ordinary Acts of Parliament.
These were problems created by the concept of parliamentary sovereignty, and not to be solved simply by defining it. What was the justification for allowing Parliament to change the constitution as easily as it made any other change? Did parliamentary sovereignty mean that there was no constitutional rule that Parliament could not abrogate, and therefore, as Tocqueville was to assert in the mid-19th century, no constitution? If so, Parliament was absolute in a way that the King had never been. Could liberty co-exist with an unlimited Parliament? American constitution-makers asked these questions in the 1780s. In 1788 the Federalist pointed to the dangers to liberty of allowing to the legislature ‘a full power to change the constitution’, and noted that ‘even in Great Britain, where the principles of civil and political liberty have been most discussed ... it is maintained, that the authority of the parliament is transcendent and uncontrollable, as well with regard to the constitution, as the ordinary objects of legislative provision.’ An example of the mischiefs attendant on not having a ‘paramount constitution’ was, the Federalist asserted, legislation affecting the frequency of general elections, ending with the Septennial Act of 1716. It is a good example, for the Act was much quoted in England, over two centuries, both by defenders and by opponents of parliamentary sovereignty. To Blackstone the Septennial Act was proof of parliamentary sovereignty: by altering both its own maximum life and that of future Parliaments Parliament had changed ‘its own constitution’. For precisely the same reason, opponents of the Act condemned it as ‘unconstitutional’. For the next century and a half there was a series of attempts to repeal it. Amongst would-be repealers were some who not only condemned its unconstitutionality but also had the positive aim of replacing ‘septennial Parliaments’ with annual Parliaments, a general election each year. It is true that advocates of annual Parliaments talked of ‘restoration’ as opposed to ‘odious innovation’: they claimed that ‘a new Parliament every year’ had once been the practice, as it remained the spirit, of the constitution. But though they might appeal to the past for justification, their target was the present: they wished to increase the control of the electorate over the House of Commons, of constituents over Members of Parliament. They insisted that members of the Commons were trustees, or even delegates; instructions from their constituents should order their conduct in Parliament and annual elections enforce their accountability. It followed that Members ought not to have voted for the Septennial Act without obtaining their electors’ consent.
These views of the proper relationship between electors and elected implied a change in the nature of the House of Commons, a switch from being a deliberative assembly to being something more like an assembly of delegates. ‘Annual Parliaments’ was therefore not only an older but also a much more radical demand than Parliamentary reform, and more clearly connected with questions of the sovereignty of Parliament as a whole. Nevertheless, the two groups of reformers were not distinct: in the 1770s and 1780s, when demands for Parliamentary reform became prominent, supporters of annual Parliaments joined them.
Many Parliamentary reformers, however, right down to those who achieved reform in 1832, did not want annual Parliaments. For Parliamentary reformers (the adjective is misleading, but difficult to drop because so commonly used) were concerned with increasing, not reducing, the independence of the House of Commons. They proposed to do this by eliminating crown and aristocratical influence. Their basic demand was for a more equal representation. This meant redrawing the electoral map so as to abolish the representation of decayed and dependent boroughs and transfer it to other constituencies, either unrepresented boroughs or the existing counties which, because of their wide franchise and large electorate, were freer than most boroughs. Some reformers wished to alter the franchise as well as the electoral map. They put forward a variety of schemes, most of which they justified, often with great learning, as being a restoration of a state of affairs which had once existed, particularly in free Anglo-Saxon times, before the Norman tyrant and his successors stripped England of her liberties. These were indeed Burke’s ‘antiquarians’, but they were not ‘speculatists’, nor concerned with the rights of man. It may be that there is no necessary connection between Parliamentary reform and parliamentary sovereignty (apart from annual Parliaments). Burke saw none in 1769: Parliament was sovereign, he said, no matter how the House of Commons was elected, and no doubt many Parliamentary reformers would have agreed. Yet doubts creep in. Although independence meant primarily freedom from the influence of king and peers, it also meant, as Fox as well as Burke insisted, freedom from pressure from constituents. This was vital because such pressure prevented MPs from doing their duty as members of a deliberative assembly: to discuss freely and promote the welfare of the whole community, not a section of it. Burke believed that ‘the very inequality of representation ... so foolishly complained of’ helped Members of Parliament to do their duty, by preventing them from thinking of themselves as representatives of a particular district. Was he right? Is this conception of the House of Commons and the duty of its Members, after all, only compatible with a small, even a haphazard electorate? Certainly independence of this kind has greatly declined in the last century and a half, while the electoral map has been reformed and the electorate has greatly increased. Although there is more to this than simple cause and effect, it has become very clear that, in practice, freedom from pressure for the House of Commons does not easily co-exist with a large electorate. If the two are incompatible, then the link between Parliamentary reform and parliamentary sovereignty is established. Bentham saw a link and in the early 19th century made it the basis of his constitutional thought.
Burke’s unremitting hostility to Parliamentary reform was based, in the main, on approval of the existing system. He associated ideas of reform with speculation and antiquarianism, dangerous guides to ‘practical government’. His golden age was not the Anglo-Saxon past but the 18th-century present, which he saw as the product – indeed, the end-product – of the development of a political organism. The constitution had grown into excellence: it was not a made constitution but ‘a prescriptive constitution ... its sole authority is that it has existed time out of mind.’ The French Revolution intensified his feelings because it provided him, he thought, with a parallel. The glory of the English Revolution was precisely that, in Burke’s opinion, it had not broken the process of growth and continuity: it was ‘a revolution not made but prevented’. The ‘philosophick’ French Revolution was totally different: it was ‘abolition and destruction’, a deliberate break with the past, not a building on it. He was convinced that the English reformers were the counterparts of the philosophes – especially Rousseau – whose ideas had produced the revolution in France, and that they wanted something like the French Revolution in England. Soon the English reformers became the ‘English Jacobins’.
Into the political philosophy which Burke wove round the three revolutions – English, American, French – there crept the idea of natural law as a restraint on the actions of a sovereign legislature. No legislature, he asserted – certainly not the English Parliament – had the right to do what the ‘arbitrary’ French National Assembly had done: cut off the past and start again. ‘Englishmen,’ he said, ‘have a high opinion of the legislative authority. But we have never dreamt that parliaments had any right whatever to overrule prescription – this great fundamental part of natural law.’ So, just as the American Revolution pushed Burke into defining parliamentary sovereignty, the French Revolution pushed him into realising that a legislature free from any check could be dangerous. He fell back on the most commonly held check of all: natural law.
The absence of check or control on the sovereign legislature worried Bentham too. He tackled this problem in the early 19th century: his solution was his so-called ‘conversion to democracy’ – not, I think, an apt description of it. His concern with the definition of sovereignty (and of many other legal and political concepts) had always been a positive or dynamic one. The sovereign was the instrument through which the policy of utility, the greatest happiness, could be effected. This was the purpose, the potential, of sovereignty. The problem – as it might have been with Hobbes’s ‘just Laws’ – was to induce the sovereign to pursue the prescribed policy. No sovereign that Bentham had encountered – Catherine the Great, the French National Assembly, the English Parliament – had been seriously interested in utility. The solution was to find a sovereign which would itself benefit from a utilitarian policy – or, rather, to make the beneficiaries of such a policy into the sovereign. The beneficiaries were the governed, the people. So the sovereign = legislature equation was discarded and sovereignty redefined as ‘control’. For control meant not only restraint but guidance, propulsion. The people could not legislate but it could control the legislature and, below it, the other organs of government. The people was the ideal controlling authority: they elected the legislature and had a direct interest both in checking its abuse of power and in inducing it to follow a utilitarian policy. So checks, control and accountability rather than universal suffrage are the hallmarks of Bentham’s so-called ‘conversion to democracy’. On the whole, I find Mr Hume’s argument that Bentham’s conversion developed smoothly and in a sense inevitably from his earlier thought more convincing than Mr Rosen’s emphasis on the new elements in his democracy. But the two approaches are really complementary: the first looking forward and the second backward from the text of the Constitutional Code, of which the first volume (1830) is now edited by Professor Burns and Mr Rosen.
Although Bentham’s redefinition of sovereignty is far from Burke’s return to natural law, both were born of dissatisfaction – for very different reasons – with the concept of legislative sovereignty. Nor is it difficult to see in Bentham’s demotion of Parliament from sovereignty to ‘omnicompetence’ an echo of the radicals’ insistence that Parliament was supreme but not sovereign. The phrase ‘control of the people’ is Abingdon’s, and many of the devices Bentham advocated to ensure it are those of the old radicals whose arguments he and Burke despised. But Bentham’s redefinition is not so much analysis as intention: his plan was to make the people sovereign. In 1885, a year after the third Reform Act, Dicey – not planning the future but analysing the present – thought that the people were, then, sovereign. Though Dicey toyed with a sort of double sovereignty, with Parliament as legal sovereign and the people as political sovereign, he had no doubt that the first was ‘subordinate’ to the second: the people was ‘the real sovereign of England’. ‘Legal sovereignty’ was not the same as parliamentary sovereignty. Moreover, it was not only the people that limited Parliament: it was also the constitution. There were things that Parliament could not do, Acts that it ‘could not pass’, some because the people did not want them, others because they were ‘unconstitutional’. ‘Unconstitutional’ did not mean illegal. The constitution was not the same as the laws, and constitutional understandings were ‘nearly if not quite as binding as the laws’.
For Dicey, then, parliamentary sovereignty was a ‘legal fiction’. Most of what he said would have been pleasing to 18th-century dissentients from sovereignty. Of course this does not prove that they were ‘right’. But it suggests that they were right in their worries: parliamentary sovereignty was not a very satisfactory concept, then or later.