イギリス哲学研究 第 33 号（2010 年）

Edmund Burke and the Common Law Tradition Reconsidered

Sora Sato

Introduction: John Pocock’s ‘Edmund Burke and the Ancient Constitution’

In The Ancient Constitution and the Feudal Law (first published in 1957, reissued in 1987), J.G.A. Pocock argues:

Every one of Burke’s cardinal points, as just enumerated, can be found in Hale rebuking Hobbes, in Coke rebuking James I, or in Davies rebuking the partisans of written law;... From what sources Burke derived it, and with what elements of eighteenth-century thought and his own genius he enriched it, are questions for the specialist; but that Burke’s philosophy is in great measure a revitalization of the concept of custom and the common-law tradition may be safely asserted as part of the present study’s contentions.（1）

In his essay entitled ‘Burke and the Ancient Constitution’, （2） Pocock repeats his argument that Burke’s traditionalism should be understood in the context of the common law tradition, and also that Burke was aware of this tradition. At the end of this essay he also writes: in order to explain Burke’s traditionalism,

there is no need to suppose more than his continued employment and highly developed understanding of certain concepts which came from the common law (as he [Burke] recognized) and were generally in use

＊ This essay is largely based upon the present author’s MSc dissertation submitted to University of Edinburgh in August 2009. I would like to thank Professors Thomas Ahnert, Harry Dickinson, Tamotsu Nishizawa, Kenji Fujii and two anonymous referees for their valuable comments. I am also grateful to seminar participants at Hitotsubashi University for helpful comments and discussion.. （1） Pocock (1987, p. 243). （2） This essay was first published in The Historical Journal, 3:2 (1960), 125-143. See also Pocock (1985, pp.193-194).

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as part of the political language he spoke with his contemporaries.（3） We may also remind ourselves of some passages in The Machiavellian Moment, such as ‘[t]he writings of Sir Matthew Hale (d. 1675), the Chief Justice who had upheld the common law throughout the Protectorate, form one of the most brilliant articulations of the philosophy of custom － of usage, presumption, and prescription － that links Fortescue, Coke, and Edmund Burke’.（4） When Pocock reissued The Ancient Constitution and the Feudal Law in 1987, he commented upon his own previous arguments, saying ‘I shall maintain that the case for finding elements drawn from Coke and Hale in Burke’s doctrine of prescriptive authority has been made out’.（5） Then, can we say that Pocock argues for the immediate connection between Burke and the classical common lawyers such as Sir Edward Coke and Sir Matthew Hale? Surely not, because Pocock writes in his ‘Burke and the Ancient Constitution’:

But the present essay is not designed to show that Hale “influenced” Burke or that Burke “derived” his ideas from Hale; such phraseology is universally agreed to be inadequate.（6）

Nevertheless, several passages of Pocock’s, including those quoted above might have left readers with the impression that he defended Burke’s direct link to the particular classical common lawyers. The present essay intends to re-examine the thesis ‘Burke and the Common Law Tradition’, including an assessment of Pocock’s arguments. The present author will argue that a connection between Burke and the classical common lawyers is not evident at all, simply because there is little evidence to support such an argument, and also briefly suggest at the end that the relationship between Burke and the common law tradition should be examined within a wider range of eighteenth-century political discourse than Pocock examined.

I. The Early Burke When Burke was a student at Trinity College Dublin, he studied the idea of natural law through his reading of Samuel Pufendorf. He also studied common law during c.1750-1754 at the Middle Temple in London, although he did not like the study of law. Like other students, he might have read Coke’s Institutes during this period.（7） In his first published book A Vindication of Natural Society (1756), Burke denounces lawyers:

They [lawyers] have so bewildered the World and themselves in unmeaning Forms and Ceremonies, and so perplexed the plainest Matters with metaphysical Jargon, that it carries the highest Danger to a Man out

（3） Pocock (1971, p.232). （4） Pocock (1975, p.404). See also p.15. （5） Pocock (1987, p.379). （6） Pocock (1971, p.230). （7） Lock (1998, pp.37, 64-73). See also Clark (2005, p.78).

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of that Profession, to make the least Step without their Advice and Assistance. Thus by confining to themselves the Knowledge of the Foundation of all Mens Lives and Properties, they have reduced all Mankind into the most abject and servile Dependence.（8）

However, as the Vindication is an ‘ironic’ work, which imitates and ridicules Henry St. John Bolingbroke, it might be difficult to prove to what extent the passage above reflects the young Burke’s own ideas.（9） His early attitude towards jurisprudence seems to be more evident in his An Essay towards an Abridgment of the English History (1757-?) and Fragment: An Essay towards an History of the Laws of England (c. 1757-?) than in the Vindication. For instance, when Burke says in his Fragment,

Thus the Law has been confined and drawn up into a narrow and inglorious study. And that, which should be the leading science in every well-ordered commonwealth, remained in all the barbarism of the rudest times, whilst every other advance by rapid steps to the highest improvement, both in solidity and elegance; insomuch that the study of our jurisprudence presented to liberal and well-educated minds, even in the best Authors, hardly any thing but barbarous terms, ill explained; a coarse but not a plain expression; an indigested method; and a species of reasoning, the very refuse of the schools; （10）

This passage, as F.P. Lock argues, ‘though describing the seventeenth century, was clearly inspired by his own experience’. Throughout his life, Burke seemed to hate narrow professionalism.（11） In his Abridgment Burke seems to appreciate the concept of the ancient constitution, although he does not share the seventeenth-century myth of ancient constitutionalism. According to R.J. Smith, Burke’s Abridgment proposes a ‘progressive’ view of the English Constitution. It is ‘a statement of evolutionary Whiggism’: the English Constitution has developed from simple origins to the higher state.（12） In Burke’s Abridgment and Fragment, there are only two elements which show institutional continuity between the Saxon age and Norman England: law and Christianity. Elements of Saxon law survived and became parts of the later English law. A stronger continuity between the Saxon and Norman periods is proved by the church, however, although it was altered by the Normans.（13） Burke asserts that the post-Conquest Church contributed to the production of English liberty, and that the canons strongly influenced the growth of English common law.（14） Like Hume,

（8） Burke, A Vindication of Natural Society, WS, I, p.176. （9） For this problem, see Kramnick (1977, p.91). （10） Burke, Fragment: An Essay towards an History of the Laws of England (c.1757), WS, I, pp.323-324. （11） Lock (1998, p.71). （12） Smith (1987, p.85). （13） Smith (1987, pp.87-88). （14） Cf. Hale (1713; 1971, p.43). There Hale writes: ‘Again, The Growth of Christianity in this Kingdom, and the Reception of Learned Men from other Parts, especially from Rome, and the Credit that they obtained here, might reasonably

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Burke emphasizes the role of the Great Charter but denies the Saxons’ contribution to English liberties. However, unlike the old Whigs, the lawyers and most enlightened critics, Burke is willing to ‘grant credit to the medieval churchmen for their share in the creation of the English legal and political heritage’.（15） In his Fragment Burke rejects the myth of English law as immutable. He states that ‘it is obvious, on the very first view of the Saxon Laws, that we have entirely altered the whole frame of our jurisprudence since the Conquest’.（16） In his Abridgment Burke also writes that ‘English laws, manners, and maxims were suddenly changed’ after the Conquest.（17） As a late eighteenth-century man, Burke did not adopt the naïve ancient constitutionalism of the common lawyers such as Coke. For our purposes, the early Burke’s understanding of Hale is significant. Burke writes:

Lord Chief Justice Hales’s history of the Common Law is, I think, the only one, good or bad, which we have. But with all the deference justly due to so great a name, we may venture to assert that this performance, though not without merit, is wholly unworthy of the high reputation of its author. The sources of our English Law are not well, nor indeed fairly laid open; the ancient judicial proceedings are touched in a very slight and transient manner; and the great changes and remarkable revolutions in the Law, together with their causes, down to his time, are scarcely mentioned.（18）

As Pocock points out, the early Burke misunderstood Hale, because Hale at times mentioned the changes and growth of the English law.（19） We may even question if Burke carefully read Hale since it is very apparent that Hale defended the mutable nature of law in his History of the Common Law of England.（20）

II. Prescription and Government Burke’s most explicit expression before 1790 on his connection to the common law tradition is probably his draft speech against the motion for parliamentary reform in 1782. As an active politician, Burke advised on many reforms including economic reform. When he countered the campaign for parliamentary reform, however, he used common-law thought to denounce the ideas of natural rights theory. His language in the speech ‘On a Motion made in the House of Commons...’ on 7 May 1782 foreshadows that of his Reflections. One of the highlights of this speech is his emphasis on ‘prescription’. He asserts that ‘our Constitution is a

introduce some New Laws, and antiquate or abrogate some Old ones that seem’d less consistent with the Christian Doctrines’. （15） Smith (1987, p.88). （16） Burke, Fragment, p.324. （17） Burke, An Essay towards an Abridgment of the English History, WS, I, p.453. （18） Burke, Fragment, pp.322-323. （19） Pocock (1971, p.224). （20） For instance, see Hale (1713; 1971, pp.39, 41).

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prescriptive Constitution; it is a Constitution, whose sole authority is, that it has existed time out of mind’. According to Burke, English kings, lords, judges and juries are all prescriptive. The House of Commons is also prescriptive: it ‘is a legislative body corporate by prescription, not made upon any given theory, but existing prescriptively － just like the rest’. Burke insists that the House of Commons ‘has taken its present shape and circumstances, and has been an essential operative part of the Constitution’ for at least five hundred years. Also, the English government ‘never was the work of any Legislator, never was made upon any foregone theory’. Then, ‘it [prescription] is accompanied with another ground of authority in the constitution of the human mind, presumption’.（21） He goes on to say:

It is a presumption in favour of any settled scheme of government against any untried project, that a nation has long existed and flourished under it. It is a better presumption even of the choice of a nation, far better than any sudden and temporary arrangement by actual election.（22）

For Burke, a nation is ‘an idea of continuity’, and ‘a deliberate election of ages and of generations’, but not a choice of one day nor ‘a tumultuary and giddy choice’.（23） In his Reflections, Burke also criticizes the French revolutionaries for their contempt of prescription. He argues that ‘I see the National Assembly openly reprobate the doctrine of prescription, which one of the greatest of their own lawyers tells us, with great truth, is a part of the law of nature’.（24） Interestingly, Burke associates the doctrine of prescription with the natural law, which has attracted the particular attention of those natural-law interpreters of Burke such as Peter Stanlis,（25） Francis Canavan （26） and others.（27） He argues that ‘[i]f prescription be once shaken, no species of property is secure when it once becomes an object large enough to tempt the cupidity of indigent power’.（28） Six years later, he also states in his ‘Letter to a Noble Lord’ (1796):

The learned professors of the Rights of Man regard prescription, not as a title to bar all claim, set up against old possession― but they look on prescription as itself a bar against the possessor and proprietor.

（21） Burke, ‘On a Motion made in the House of Commons, the 7th of May 1782, for a Committee to inquire into the state of the Representation of the Commons in Parliament’, in Burke (1812, X, pp.96-98). （22） Burke, ‘On a Motion made in the House of Commons’, pp.96-97. （23） Burke, ‘On a Motion made in the House of Commons’, p.97. （24） Burke, Reflections, p.133. In another place Burke states that the ‘Assembly has hardly a year’s prescription’ (p.145). Here ‘one of the greatest of their own lawyers’ is Jean Domat (1625-96), who is the author of Les Lois Civiles dans leur Ordre Naturel (1689). Burke owned a copy of Jean Domat, The Civil Law in its Natural Order: Together with the Publick Law, trans. William Strahan (2vols., London, 1722). See Clark ed. (2001, p.322n). （25） Stanlis (1958). （26） Canavan (1960). （27） For example, see Mansfield (2005, p.66). Harvey C. Mansfield asserts that ‘prescription is a theoretical innovation upon the classic theory of natural law’. （28） Burke, Reflections, p.133.

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They hold an immemorial possession to be no more than a long continued, and therefore an aggravated injustice.（29）

Burke considers the subversion of prescription as equal to the subversion of the property of the ruling class, which shows his interest in the real political issues, not just in the theoretical ideal of society. Contemporary conservatives in England tended to support the principle of prescription chiefly because it was useful to justify their property. As a Whig, Burke was a strong supporter of parliamentary power, but even so he (and Blackstone also) ‘never dreamt that parliaments had any right whatever to violate property, to overrule prescription’.（30） As H.T. Dickinson argues, the conservative theorists in the late eighteenth century relied upon the doctrine of prescription when they tried to explain the origins, development and purposes of civil government. According to them, the social institutions have evolved through centuries to be adjusted to the circumstances of succeeding generations. The conservatives believed the aim of civil government, which was to protect the rights of private property, could be achieved in the case that political power was given to those who owned property.（31） While Burke, as we have seen, asserts that the English constitution, the House of Commons and other political institutions are all prescriptive, elsewhere he also regards ‘all the major European religions’ as prescriptive and ‘justified as a habit and upon authority not upon disputation or demonstration’.（32） In his ‘Letter to William Smith’ (29 January 1795) he writes:

All the principal religions in Europe stand upon one common bottom. The support, that the whole, or the favourd parts, may have in the secret dispensations of Providence, it is impossible to tell: But humanly speaking, they are all prescriptive religions. They have all stood long enough, to make prescription, and its train of legitimate prejudices, their main Stay. The people, who compose the four Grand divisions of Christianity, have now their religion as an habit, and upon authority, and not on disputation―as all men, who have their religion derived from their parents, and the fruits of the Education, must have it;（33）

As the doctrine of prescription had in general been used in order to justify political dominion and the private property of the ruling class, Burke’s use of it for the defence of Christianity deserves attention. Here we may compare Burke’s doctrine of prescription with the similar ideas of the common lawyers, although they rarely used the term ‘prescription’ to advance their thoughts. In the De Laudibus Legum Anglie,

（29） Burke, ‘Letter to a Noble Lord’, WS, IX, p.172. （30） Burke, Reflections, p.134. （31） Dickinson (1977, pp.315-317). （32） Wilkins (1967, p.213). （33） Burke, ‘Letter to William Smith’, WS, IX, p.662.

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which was written in about 1468-1471 during exile in France, Sir John Fortescue states that ‘the customs of the English are not only good but the best’.（34） It is, as Shelley Lockwood says, because ‘the fact that the laws of England are ancient and have survived so long intact, is proof that they are the best and most just laws’.（35） In other words, while England ‘has been continuously regulated by the same customs as it is now’, if those customs had not been the best, they would have been changed by kings ‘for the sake of justice’.（36） Fortescue’s common law is customary law, or simply customs which have been tried and approved by many generations in the past. One of Sir Edward Coke’s contemporaries, Thomas Hedley, also states in his speech to the House of Commons in 1610 that time is ‘the essential form of the common law’ and ‘the trier of truth, author of all human wisdom, learning and knowledge, and from which all human laws receive...their chiefest strength, honor, and estimation’. Hedley continues to say, ‘[t]ime is wiser than the judges, wiser than the parliament, nay wiser than the wit of man’, which is the very same argument as Coke’s.（37） Sir John Davies also writes in his preface of Le primer report...en Ireland:

For a Custome taketh beginning & groweth to perfection in this manner. When a reasonable act once done, is found to bee good & beneficiall to the people, & agreeable to theîre nature & disposition, then do they vse it, & practise it, againe, & agaîne, & so by often iteration & multiplication of the act, it becometh a Custome, & being continued without interruption time out of minde, it obtaineth the force of a lawe.（38）

Custom consists in practice and use in its making － an inductive process. In short, common law is made by long experience and many trials. No custom ever becomes a law to bind the people until it has been tried and approved for a long period of time. If it is found inconvenient, it will no longer be used, and will lose the force of law.（39） In the late eighteenth century Sir William Blackstone, despite his many differences with these figures, inherited one of the ideas developed and repeated by Fortescue, Davies and Coke, when he wrote ‘in our law the goodness of a custom depends upon it’s having been used time out of mind’. In other words, the legality of a certain custom is whether the custom has an immemorial character or not. It is ‘time out of mind’, immemorial use that gives a custom ‘it’s weight and authority’. If ‘any one can shew the beginning of it, it is no good custom’.（40） Did the eighteenth-century Whigs such as Burke derived their doctrine of proscription from the common

（34） Fortescue (1468-71; 1997, p.27). （35） Lockwood (1997, p.xxxi). （36） Fortescue (1468-71; 1997, p.26). （37） Proceedings in Parliament 1610 (1966, p.175). See also Pocock (1987, pp.271-272). （38） Davies (1615, preface). （39） Davies (1615, preface). （40） Blackstone (1765-69, I, pp.67, 76).

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law thought? At the same time, however, it might not be impossible to argue that the concept of prescription used by the Whigs derived from the natural law tradition, from Grotius to Selden, Hobbes, Pufendorf, Locke and the Scottish philosophers. Paul Lucas’s critical analysis of this problem is worth consideration. He criticizes the natural-law interpretation of Burke by saying that Burke’s ‘key and characteristic doctrine of prescription is not to be found in the old writings on the natural law’.（41） Lucas also questions the extent of Burke’s debt to the common-law tradition. Until the late 1760s, the Whigs and the defenders of the ancient constitution had hardly depended upon the doctrine of prescription when they attempted to defend private property and public institutions.（42） By rendering the principle of prescription a principle of the law of the land, Burke introduced the new concept of prescription which had not previously been accepted by the classical common lawyers.（43） Burke also identified prescription with custom, whereas Coke did not: for the common lawyers, prescription was an individual privilege arising in time, but custom was a group and territorial right existing since time out of mind. In addition, Burke’s prescription is more dynamic than his predecessors.（44） Burke’s prescription is used not only for preserving and inheriting the old rights but also for growth and new acquisitions.（45）

III. The Politics of the Ancient Constitution (a) The Common Law and the Ancient Constitution Although the early Burke was critical of the common lawyers and the doctrine of the ancient constitution, and the Abridgement dealt with some discontinuities in English history,（46） by the time Burke came to analyze the French Revolution, he seems to have modified his view of Hale （47） and of the British constitution. While the later Burke is much more complimentary about the eminent common lawyers, and his emphasis in the Reflections is placed on the continuity of the constitution. His appeal to an idea of the ancient constitution, a unique and long-standing attitude towards history, emerges when he talks about the principles of the English politics, especially that of the Glorious Revolution. According to Burke, the principles of the Revolution of 1688 are to be found in the Declaration of Rights, which was ‘drawn up by great lawyers and great statesmen, and not by warm and inexperienced enthusiasts’, and ‘is called, “An Act for declaring the rights and liberties of

（41） Lucas (1968, p.36). （42） Lucas(1968, p.54). （43） Lucas (1968, p.56). （44） Lucas (1968, p.59). （45） See also Clark ed. (2001, p.95). J.C.D. Clark argues that Burke’s doctrine of prescription ‘derived from the reverence for divine purposes which he drew from Virgil and Christianity; from the idea of an ‘ancient constitution’; and from an eighteenth-century latitudinarian reading of nature as ‘wisdom without reflection, and above it’’. （46） Smith (1987, p.115). （47） For Burke’s later comments upon Hale, see his Letter to a Member of the National Assembly (1791), WS, VIII, pp.302- 303. He admired Hale as ‘this great lawyer’, but this is only a brief reference, which cannot show Hale’s influence upon Burke at all.

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the subject, and for settling the succession of the crown”’.（48） He writes: On this principle the succession of the crown has always been what it now is, an hereditary succession by law; in the old line it was a succession by the common law; in the new, by the statute law operating on the principles of the common law, not changing the substance, but regulating the mode and describing the persons.（49）

Burke’s emphasis on the English past and its continuity misled his critics into regarding him as reactionary. He did not, however, exclude the principle of change or progress from his political theory. The principle of ‘conservation and correction’ is a cardinal part of Burke’s conservatism.（50） Politicians have to find which parts of their governing body are good, and which parts of it are corrupt － we may recall what Burke calls ‘prudence’. How can they distinguish between the ‘good’ and ‘bad’? Burke argues that they should refer not only to their experience but to their historical past epitomized in writings such as the journals of parliament.

The Revolution was made to preserve our ancient, indisputable laws and liberties and that ancient constitution of government which is our only security for law and liberty. If you are desirous of knowing the spirit of our constitution and the policy which predominated in that great period which has secured it to this hour, pray look for both in our histories, in our records, in our acts of parliament, and journals of parliament, and not in the sermons of the Old Jewry and the after-dinner toasts of the Revolution Society.（51）

This passage evidently contains the common-law mind, which relies upon the concept of the ancient constitution, inherited from the classical common lawyers by most Whigs in the late seventeenth and eighteenth centuries. What Burke wishes to argue here is that the English have habitually looked back to the past at crucial moments in their politics. Just after this passage, we find another key passage of the Reflections :

Our oldest reformation is that of Magna Charta. You will see that Sir Edward Coke, that great oracle of our law, and indeed all the great men who follow him, to Blackstone, are industrious to prove the pedigree of our liberties. They endeavor to prove that the ancient charter, the Magna Charta of King John, was connected with another positive charter from Henry I, and that both the one and the other were nothing more than a reaffirmance of the still more ancient standing law of the kingdom.（52）

（48） Burke, Reflections, p.15. （49） Burke, Reflections, p.19. （50） Burke, Reflections, p.19. See also Burke, Letter to Sir Hercules Langrishe (1792), WS, IX, p.634. （51） Burke, Reflections, p.27. cf. Blackstone (1765-69, I, pp.63-64, 73). （52） Burke, Reflections, p.28. See also, p.32. Although Burke appeals to the ancient constitution, his idea is not static. He asserts that the English ‘had kept alive the ancient principles and models of the old common law of Europe meliorated and adapted to its present state’.

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This passage is also a significant example of Burke appealing to the language of common law tradition and of the ancient constitution. Then Burke also mentions ‘Selden and the other profoundly learned men who drew this Petition of Right’. Actually, John Selden, ‘one of the relatively few authors Burke quotes by name’,（53） had a similar idea of society as Burke (e.g. on natural rights, the system of legal rights as the result of a process of historical development).（54） Although Burke refers to eminent common lawyers such as Coke, Selden and Blackstone, his intention to reference them is not to explain their doctrines in detail. Instead, what he intends here is to show that the Englishmen have kept the same way of thinking from the past to the present, and also that his own arguments are not new, but traditional ones which have been supported by the authorities of his country.（55） Burke’s appeal to the common law tradition should be understood in the context of the English political thought, properly termed ‘the common-law thought’ or ‘the politics of the ancient constitution’, and he himself wished his readers to do so.

(b) Time, Wisdom and Reasoning The common law thought may have provided Burke not only with its unique view of history, but with a particular sort of epistemological arguments.（56） One of the reasons why he opposed the ideology of natural rights is his belief in the limits of individual human ability and intelligence. Burke accuses the French revolutionaries of their application of metaphysics to politics. He writes, for instance, that ‘[t]his metaphysic principle to which law, custom, usage, policy, reason were to yield is to yield itself to their pleasure’.（57） Burke argues that the ‘science of constructing a commonwealth, or renovating it, or reforming it, is, like every other experimental science, not to be taught a priori’ , and also that ‘[t]he science of government being therefore so practical in itself and intended for such practical purposes― a matter which requires experience, and even more experience than any person can gain in his whole life’.（58） In particular, when he states that ‘the science of jurisprudence, the pride of the human intellect, which with all its defects, redundancies, and errors is the collected reason of ages...’,（59） he is indebted to the epistemological views deployed by the common law thought. Burke never denies ‘theory’, but he argues that politics requires wisdom which cannot be reduced to first principles. A man of politics should rely not only upon his own experience but also upon the wisdom of the previous generations because the knowledge

（53） Hampsher-Monk (1987, p.39). See also Burke, Report on the Lords Journals (30 April 1794), WS, VII, p.184. Here Burke describes Selden as ‘a great Ornament of the Common Law’. （54） Hampsher-Monk (1987, pp.39-40). （55） Pocock (1971, pp.205, 207-208, 231). （56） For Burke’s epistemological arguments from a different viewpoint, see Hampsher-Monk (1998). （57） Burke, Reflections, p.153. （58） Burke, Reflections, p.53. （59） Burke, Reflections, p.83.

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acquired by any individual is quite limited. Burke states in his Reflections:

YOU see, Sir, that in this enlightened age I am bold enough to confess that we are generally men of untaught feelings, that, instead of casting away all our old prejudices, we cherish them to a very considerable degree, and, to take more shame to ourselves, we cherish them because they are prejudices; and the longer they have lasted and the more generally they have prevailed, the more we cherish them. We are afraid to put men to live and trade each on his own private stock of reason, because we suspect that this stock in each man is small, and that the individuals would do better to avail themselves of the general bank and capital of nations and of ages.（60）

This is the famous passage which manifests his concept of ‘prejudice’. In particular, Burke claims that ‘our church establishment’ ‘is the first of our prejudices, not a prejudice destitute of reason, but involving in it profound and extensive wisdom’.（61） He believed that human beings can make a better choice by relying upon prescription or the wisdom of generations rather than upon the intelligence of the cleverest man. He states in his ‘On a Motion made in the House of Commons...’:

Nor is prescription of government formed upon blind unmeaning prejudices － for man is a most unwise, and a most wise, being. The individual is foolish. The multitude, for the moment, is foolish, when they act without deliberation; but the species is wise, and when time is given to it, as a species it almost always acts right.（62）

In The Machiavellian Moment, Pocock quotes this passage, and comments that by this Burke ‘meant, incidentally, the biological, not the scholastic, species’.（63） Again, we may compare Burke with the common lawyers before his age in this respect. In Calvin’s Case of the Seventh Reports Coke argues that the laws have been ‘fined and refined’ ‘by the wisdom of the most excellent men, in many successions of ages, by long and continual experience (the trial of right and truth)’. Laws contain profound wisdom, which nobody ‘could ever have effected or attained unto’, even if ‘he had in his head the wisdom of all the men in the world, in any one age’. Coke seems to imply that the knowledge which any particular individual, who lives only for ‘so short a time’, can attain is quite limited and much smaller than laws can achieve. Thus, ‘it is optima regula, qua nulla est verior aut firmior in jure, Neminem oportet esse sapientiorem legibus [the best rule, than which nothing is more true or more settled in law, that no one ought to

（60） Burke, Reflections, p.76. （61） Burke, Reflections, p.80. （62） Burke, ‘On a Motion made in the House of Commons’, p.97. （63） Pocock (1975, p.24).

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consider himself wiser than the laws]’.（64） Both Coke and Burke suppose that wisdom achieved by traditional social institutions is superior to that of any individual. Pocock also claims that Hale’s ‘distrust of abstract reasoning, the belief that ancient institutions contain a latent wisdom greater than that of the individual, above all the concept of the law as the fruit of a great social process... － all these are Burke’s’.（65） In fact, Burke’s conservatism is very much akin to the political thought of the common lawyers, but the question is whether Burke derived his ideas from particular common lawyers such as Coke and Hale.

Conclusion The similarity between the common-law mind and Burke’s conservatism, to some extent, seems obvious. Both the common lawyers and Burke suppose that (1) it is time that gives social institutions authority and title to be justified, and they also acknowledge that (2) social institutions which acquire prescriptive titles contain latent wisdom built up by many generations, which cannot be attained by any individual. In addition, (3) they have hatred toward abstract reasoning (a deductive method of reasoning). In describing their views, both Burke and the common lawyers use the same vocabulary such as ‘time out of mind’ or ‘the ancient constitution’. Was Burke ‘influenced’ by the writings of the common lawyers when devising his own conservative way of thinking? The present author argues that Burke’s connection to the common law tradition should arguably be proved because ‘Burkean’ thought before Burke (such as (1) ~ (3) mentioned above) was often presented by the common lawyers or anyone who seemed to be influenced by the ‘common-law mind’, Burke could know this intellectual tradition from the political literature, culture and events of his age, and he used the same vocabulary as that used by the common-law mind for presenting his traditionalism. The common law thought developed a unique view of history and a particular sort of epistemological arguments, both of which Burke assimilated into his own political thought. However, this does not show in any way an immediate connection between Burke and particular common lawyers. Although Burke sometimes refers to the eminent common lawyers approvingly in his works,（66） it is far from true to argue that he ‘derived’ his traditionalism from them. When Burke writes ‘we know from Lord Coke, from whom you have learnt, and whom you might teach, that every man’s reason is not the reason of the law’,（67） he might have recognized Coke’s concept of ‘artificial

（64） Coke, Seventh Reports, ‘Calvin’s Case’ in Coke (2003, I, p.173). （65） Pocock (1987, p.173). （66） For Burke’s comments on Coke (except the Reflections), see WS, I, p.135, II, pp.239, 349, 354, III, pp.132, 291, 502- 503, 544, VII, pp.120, 132, 141, 145-146, 165, 246-247, 302, IX, p.628, Corr. II, p.255. For John Davies, WS, III, pp. 140, 204, IX, pp.470, 615. Burke may have read John Selden, Of the Judicature in Parliaments, A Posthumous Treatise (London, 1681) and John Selden, A Brief Discourse Concerning the Power of the Peeres and Commons of Parliament in point of Judicature (London, 1640). For Selden (except the Reflections), VII, pp.184-185, 222. For Hale, see above p.10. It does not seem that Burke mentions Fortescue in his works. （67） Burke, ‘Speech on London Remonstrance’ (19 March 1770), II, WS, p.239.

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reason’. This is, however, nothing more than his brief reference to Coke. Although Pocock’s essay ‘Burke and Ancient Constitution’ often attempts a comparison between Burke and Hale, what is demonstrated by this is only the similarity of their intellectual thought. ‘Burke’s traditionalism is rooted in a way of thought already traditional’,（68） but it might even be unnecessary to compare at length Burke with particular common lawyers before his age when we try to place Burke’s traditionalism in the context of English political thought. While Pocock’s (and the present author’s) emphasis is at times put on a comparison between Burke and the classical common lawyers, what should really be examined is the eighteenth-century reception of the common-law mind, including the influence of the particular common lawyers such as Coke, Hale and Blackstone, as well as what Burke read and what political discourse had a significant impact upon him if we want to know ‘how Burke advanced his traditionalism’. Although Pocock states that ‘Burke was then aware of common-law thought both as a phenomenon of the seventeenth century, and as a phenomenon of the eighteenth’,（69） he (and this essay as well) does not analyze in full what political discourse and literature could influence the formation of Burke’s traditionalism. Terminology such as ‘the ancient constitution’ or ‘prescription’ seems to have been widely adopted in the eighteenth-century political discourse. Burke could have had opportunities to absorb the common-law mind from a wide range of political discourse and literature rather than from any particular common lawyer. An Appeal from the New to the Old Whigs (1791) may provide some evidence to justify this argument, where he attempts to demonstrate that his notion of the Glorious Revolution fits into the ideology of the Whigs who engaged in the impeachment of Henry Sacheverell.（70） The Whigs at that time stated that the Revolution of 1688 had been the case of necessity, and had been justified as a means for restoring the ancient constitution, not for producing any innovation in the constitution. According to Sir Joseph Jekyll, the ‘Revolution did not introduce any innovation; it was a restoration of the ancient fundamental constitution of the kingdom’. Sir Robert Eyre ‘distinguishes expressly the case of the Revolution, and its principles, from a proceeding...to change their ancient constitution, and to frame a new government for themselves’.（71） Burke’s lengthy quotations from these Whigs’ remarks would show his reliance upon their political ideas. Actually, many Whigs before and after the Revolution of 1688 relied upon the doctrine of the ancient constitution rather than the Lockean contract theory, which is more radical, in order to justify their actions.（72） As Burke stresses in 1791, many Whigs in the Sacheverell trial insisted that the Revolution was ‘an exceptional response to a unique situation’, not ‘a general and unconditional defence of the right of resistance’.（73） It is also worth examining Burke’s writings on American affairs and the legal dimension of American Revolution. In his ‘Speech on Conciliation with America’ on 22 March 1775 he commented upon legal

（68） Pocock (1971, p.231). （69） Pocock (1971, p.222). （70） Burke owned two copies of The Tryal of Dr. Henry Sacheverell (London, 1710). See Clark ed. (2001, p.40). （71） Burke, An Appeal from the New to the Old Whigs in Burke (1904, III, p.58). （72） Dickinson (1977, chap.2, 4). （73） Dickinson (1977, pp.75-78).

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education in America after he praised religion in the new world. He states:

In no country perhaps in the world is the law so general a study. The profession itself is numerous and powerful; and in most provinces it takes the lead. The greater number of the Deputies sent to the Congress were Lawyers.

He also writes just after this, ‘I hear that they have sold nearly as many of Blackstone’s Commentaries in America as in England’.（74） As important parts of political discourse in the latter half of eighteenth century, the writings of American revolutionaries would be worth attention. The American colonists appealed to the language of the common law as well as a Lockean contract or resistance theory or republican thoughts in order to defend themselves from absolute and arbitrary authority. When the American Revolution ‘had its prominent legal dimension and began as a conflict over jurisdiction’,（75） to what extent did Burke realize that dimension? At least he knew very well about its controversy in regard to sovereignty.（76） In addition, it would also be interesting to consider the connection between the common-law mind and his writings on India. As Frederick G. Whelan notes, Burke hoped that Fox’s India Bill might become ‘the Magna Charta of Hindustan’,（77） whereas both Burke and his antagonist Hastings supposed the people of India should be governed according to their own customary law.（78） Burke would have had opportunities to be acquainted with the eighteenth-century political discourse of the common law tradition from various political events and writings of his age. Although the present essay is not designed to discuss in detail Burke’s involvement in those political events, it will become a good starting point for further research to suggest that Burke’s connection to the common law tradition cannot be fully understood without considering his commitment to various political discourse of his age rather than his reading of the works of particular common lawyers.

Bibliography

Primary Sources Blackstone, Sir William. 1765-69. Commentaries on the Laws of England, Oxford, 4vols.

（74） Burke, ‘Speech on Conciliation with America’, WS, III, p.123. Burke owned a copy of Blackstone’s Commentaries on the Laws of England. See Clark ed. (2001, p.259n). See also Maitland (1957, p.147). ‘Nearly 2500 copies of Blackstone’s Commentaries were absorbed by the colonies on the Atlantic seaboard before they declared their independence...the common law went straight to the Pacific’. （75） see Clark (2005, p.78). （76） I am indebted to Professor Harry Dickinson’s personal suggestion in this respect. （77） Whelan (1996, pp. 270, 308). （78） Cf. Dreyer (1979, pp.76-77).

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Burke, Edmund. 1790. Reflections on the Revolution in France, J.P.A. Pocock ed. Indianapolis/ Cambridge: Hackett Publishing Company, 1987. The abbreviation is Reflections. ------1812. The Works of the Right Honourable Edmund Burke, vol.X, London. ------1904. The Works of the Right Honourable Edmund Burke, vol.III, Bohn. ------1958-78. The Correspondence of Edmund Burke, 10 vols., Copeland, Thomas W. and others ed. Cambridge, Chicago, Illinois: Cambridge University Press, The University of Chicago Press. The abbreviation is Corr. ------1981-.The Writings and Speeches of Edmund Burke, Langford, Paul. and others ed. Oxford: Oxford University Press. The abbreviation is WS. ----- 2001. Reflections on the Revolution in France, J.C.D. Clark ed. Stanford, California: Stanford University Press. The abbreviation is Clark ed. Coke, Sir Edward. 2003. The Selected Writings and Speeches of Sir Edward Coke, 3vols, Steve Sheppard ed. Indianapolis, Ind.: Liberty Fund. Davies, Sir John. 1615. Le primer report des cases & matters en ley resolues & adiudges en les courts del Roy en Ireland. Collect et digest per Sr. Iohn Dauys Chiualer Atturney Generall del Roy en cest realme, Dublin. Fortescue, Sir John. 1468-71. De Laudibus Legum Anglie (In Praise of the Laws of England) in On the Laws and Governance of England, Shelley Lockwood ed. Cambridge: Cambridge University Press, 1997. Hale, Sir Matthew. 1713. The History of the Common Law of England, Charles M. Gray ed, Chicago and London: University of Chicago Press, 1971. 1966. Proceedings in Parliament 1610, vol.2 (House of Commons), Elizabeth Read ed. Foster, New Haven and London: Yale University Press.

Secondary Sources

Canavan, Francis P. 1960. The Political Reason of Edmund Burke, Durham, N.C. : Duke University Press. Clark, J.C.D. 2005. ‘Edmund Burke’s Reflections on the Revolution in America (1777): or, How Did the American Revolution Relate to the French?’ in An Imaginative Whig: Reassessing the Life and Thought of Edmund Burke, Ian Crowe ed. Columbia and London: University of Missouri Press. Dickinson, H.T. 1977. Liberty and Property: Political Ideology in Eighteenth-Century Britain, London: Methuen. Dreyer, Frederick A. 1979. Burke’s Politics: A Study in Whig Orthodoxy, Waterloo, Ont. : Wilfrid Laurier University Press. Hampsher-Monk, Iain. 1987. The Political Philosophy of Edmund Burke, London and New York: Longman. Hampsher-Monk, Iain. 1998. ‘Burke and the Religious Sources of Skeptical Conservatism’ in The Skeptical

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Tradition around 1800: Skepticism in Philosophy, Science, and Society, J. van der Zande and R.H. Popkin eds. Dordrecht, Boston, London: Kluwer Academic Publishers. Kramnick, Isaac. 1977. The Rage of Edmund Burke: Portrait of an Ambivalent Conservative, New York: Basic Books. Lock, F.P. 1998. Edmund Burke, vol.1, Oxford: Clarendon Press. Lucas, Paul. 1968. ‘On Edmund Burke’s doctrine of prescription: or, an appeal from the new to the old lawyers’, The Historical Journal, 11:1, 35-63. Lockwood, Shelley. 1997. ‘Introduction’ in On the Laws and Governance of England. Maitland, F.W. 1957. Historical Essays, H.M. Cam ed. Cambridge: Cambridge University Press. Mansfield, Harvey C. 2005. ‘Burke’s Conservatism’ in An Imaginative Whig. Pocock, J.G.A. 1971. ‘Burke and the Ancient Constitution: A Problem in the History of Ideas’ in Pocock, Politics, Language and Time: Essays on Political Thought and History, Chicago and London: The University of Chicago Press. ------1975. The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition, [Princeton, N.J.]: Princeton University Press. ------1985. ‘The political economy of Burke’s analysis of the French Revolution’ in Pocock, Virtue, Commerce, and History, Cambridge: Cambridge University Press. ------1987. The Ancient Constitution and the Feudal Law: a Study of English Historical Thought in the Seventeenth Century, A Reissue with a Retrospect, Cambridge: Cambridge University Press. Smith, R.J. 1987. The Gothic Bequest: Medieval institutions in British thought, 1688-1863, Cambridge: Cambridge University Press. Stanlis, Peter J. 1958. Edmund Burke and the Natural Law, Ann Arbor: University of Michigan Press. Whelan, Frederick G. 1996. Edmund Burke and India: Political Morality and Empire, Pittsburgh: University of Pittsburgh Press. Wilkins, Burleigh Taylor. 1967. The Problem of Burke’s Political Philosophy, Oxford: Clarendon Press. （さとう そら・PhD in History, University of Edinburgh）

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