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The Mixed Constitution and the Common Law David Lieberman [forthcoming in The Cambridge History of Eighteenth-Century Political Thought, eds. Mark Goldie and Robert Wokler (Cambridge University Press)] Accounts of England’s constitutional system1 , even in the more systematic treatments of the middle decades of the eighteenth century, followed the common earlymodern pattern in which political theory often comprised an uneven amalgam of classical maxims of government, narrow partisan polemics, antiquarian learning, historical researches and technical legal doctrine. None the less, ‘the constitution of England’, so constructed, enjoyed an extensive influence on liberal political philosophy and western statecraft well beyond its place of origins and the particular circumstances of its first articulation. ‘The eye of curiosity seems now to be universally turned’ to this ‘model of perfection’, explained Jean Louis Delolme in the 1770s (Delolme 1834, p.1). And what was to be discovered in this model were the general principles of political freedom. ‘‘Tis the Britannic Constitution that gives this kingdom a lustre above other nations’, extolled Roger Acherley a half-century earlier, ‘as it secures to Britons, their private property, freedom and liberty, by such walls of defense as are not to be found in any other parts of the universe’ (Acherley 1727, p.vi). The organizing principle for much of the eighteenth-century celebration of the English constitution was the commonplace idea that structures of government could preserve political freedom only where they frustrated the abuse of political power. To the extent that the English enjoyed unique levels of political freedom, this was the result of a constitutional order which so effectively prevented arbitrary or tyrannical acts of power. The achievement of this kind of political system, in turn, depended on the existence and the co-ordination of several distinct kinds of institutions and governmental procedures. Theorists of the English

Mixed Constitution and Common Law (3) provided a potential 'check to the abuse of power committed by any other component part, which in turn secured a political order best equipped to sustain public liberty Like three distinct powers in mechanics [king, lords and commons], jointly impel the machine of government in a direction different from what either acting by themselves, would have done, but at the same time in a direction partaking of each, and formed out of all; a direction which constitutes the true line of the liberty and happiness of the community. (Blackstone 1979, 1, p151) The theory of England's mixed government, centered on the tripartite legislature of King-in-Parliament, first attained prominence in the form of the 1642 statement published by Charles I as His Majesties Answer to the Nineteen Propositions(see Weston 1965, and Weston and Greenberg 1981). Eighteenth-century commentators continued to invoke this source, particularly in their efforts to clarify the limited or regulated character of monarchy in this constitutional system(Mackworth 1701, pp. 2, 9). And, as in the case of the Answer the Nineteen PropositionS, their favored presentation clearly echoed classical and renaissance motifs concerning the superiority and durability of the ' mixed political form. But in one crucial respect, they distinguished their accounts from earlier formulations. Formerly the appeal to England's mixed government competed with other, more absolutist accounts of English kingship, now it enjoyed constitutional orthodoxy. The constitution of England had been seen in two very different lights for almost a century before the revolution Bolingbroke observed in 1733, but now our constitution is no longer a mystery. ' 'It is by this mixture of monarchical, aristocratical and democratical power, blended together in one system, he explained, ' that our free constitution of government hath been preserved ( Bolingbroke 1844, Il, pp. 80, 119) The Glorious Revolution of 1688 was routinely credited, as by bolingbroke, with this definitive clarification and vindication of the political order. To invoke 1688 and the mixed constitution was thus to make plain the very different character of kingship in Britain from

Mixed Constitution and Common Law (3) provided a potential ‘check’ to the abuse of power committed by any other component part, which in turn secured a political order best equipped to sustain public liberty: Like three distinct powers in mechanics [king, lords and commons], jointly impel the machine of government in a direction different from what either, acting by themselves, would have done; but at the same time in a direction partaking of each, and formed out of all; a direction which constitutes the true line of the liberty and happiness of the community. (Blackstone 1979, I, p.151) The theory of England’s mixed government, centered on the tripartite legislature of King-in-Parliament, first attained prominence in the form of the 1642 statement published by Charles I as His Majesties Answer to the Nineteen Propositions (see Weston 1965, and Weston and Greenberg 1981). Eighteenth-century commentators continued to invoke this source, particularly in their efforts to clarify the ‘limited or regulated’ character of monarchy in this constitutional system (Mackworth 1701, pp.2,9). And, as in the case of the Answer to the Nineteen Propositions, their favored presentation clearly echoed classical and renaissance motifs concerning the superiority and durability of the ‘mixed’ political form. But in one crucial respect, they distinguished their accounts from earlier formulations. Formerly the appeal to England’s mixed government competed with other, more absolutist accounts of English kingship, now it enjoyed constitutional orthodoxy. ‘The constitution of England had been seen in two very different lights for almost a century before the revolution,’ Bolingbroke observed in 1733; but now ‘our constitution is no longer a mystery.’ ‘It is by this mixture of monarchical, aristocratical and democratical power, blended together in one system,’ he explained, ‘that our free constitution of government hath been preserved.’ (Bolingbroke 1844, II, pp.80,119). The Glorious Revolution of 1688 was routinely credited, as by Bolingbroke, with this definitive clarification and vindication of the political order. To invoke 1688 and the mixed constitution was thus to make plain the very different character of kingship in Britain from

Mixed Constitution and Common Law (4) the absolutist governments which oppressed the continental monarchies and, in earlier eras, threatened England's liberties. One measure of the security furnished by the Glorious Revolution was the near complacency mid- century commentators displayed in treating once fiercely-contested issues concerning the nature and authority of England's monarch and parliament(see Pocock 1987, and Weston 1991). Hume in the History of England acknowledged that it was once disputed. with great acrimony' whether the House Commons formed a constituent part of the original Parliament, but that the question by general consent had been settled against the claims of the Commons(Hume 1983, I, p. 467 Blackstone in the Commentaries noted the same controversy among our learned antiquarians, but dismissed its relevance to current political arrangements( Blackstone 1979 I, p 145). Soon after, he reassured that whatever doubts might be formerly raised by weak and scrupulous minds concerning the existence of an original contract between subjects and sovereign, such qualms ' must now entirely cease; especially with regard to every prince who has reigned since 1688(1, p. 226) Such appeals to the consensus and stability which followed in the wake of the glorious Revolution were, of course. a matter of tendentious exaggeration. Indeed the most robust claims for constitutional certainty appeared in precisely those settings- such as Bolingbroke's writing- where the legacy of 1688 underwent partisan dispute. The major enactments of the Revolution era- the 1689 Bill of rights and Act of Toleration the 1694 Triennial Act; the 1701 Act of Settlement-were all documents of political compromise and even purposeful ambiguity, which readily allowed for rival understandings of their constitutional meaning, novelty or conservatism. As a recent generation of historians has shown whatever the successes of the revolution settlement and the hanoverian succession this political achievement did not lead to the silencing or eradication of the antagonistic doctrines of non-resistance and hereditary kingship, Jacobite loyalism, royal supremacy or High Anglican ecclesiology(see Kenyon 1977, Gunn 1983, pp. 120-93, and Clark 1985)

Mixed Constitution and Common Law (4) the absolutist governments which oppressed the continental monarchies and, in earlier eras, threatened England’s liberties. One measure of the security furnished by the Glorious Revolution was the near complacency mid-century commentators displayed in treating once fiercely-contested issues concerning the nature and authority of England’s monarch and parliament (see Pocock 1987, and Weston 1991). Hume in the History of England acknowledged that it ‘was once disputed ... with great acrimony’ whether the House Commons formed a constituent part of the original Parliament, but that the question ‘by general consent’ had been settled against the claims of the Commons (Hume 1983, I, p.467). Blackstone in the Commentaries noted the same controversy ‘among our learned antiquarians,’ but dismissed its relevance to current political arrangements (Blackstone 1979, I, p.145). Soon after, he reassured that ‘whatever doubts might be formerly raised by weak and scrupulous minds’ concerning ‘the existence’ of an ‘original contract’ between subjects and sovereign, such qualms ‘must now entirely cease; especially with regard to every prince who has reigned since 1688’ (I, p.226). Such appeals to the consensus and stability which followed in the wake of the Glorious Revolution were, of course, a matter of tendentious exaggeration. Indeed, the most robust claims for constitutional certainty appeared in precisely those settings - such as Bolingbroke’s writing - where the legacy of 1688 underwent partisan dispute. The major enactments of the Revolution era - the 1689 Bill of Rights and Act of Toleration; the 1694 Triennial Act; the 1701 Act of Settlement - were all documents of political compromise and even purposeful ambiguity, which readily allowed for rival understandings of their constitutional meaning, novelty or conservatism. As a recent generation of historians has shown, whatever the successes of the Revolution settlement and the Hanoverian succession, this political achievement did not lead to the silencing or eradication of the antagonistic doctrines of non-resistance and hereditary kingship, Jacobite loyalism, royal supremacy or High Anglican ecclesiology (see Kenyon 1977, Gunn 1983, pp.120-93, and Clark 1985)

Mixed Constitution and Common Law (5) Where, however, the legacy of 1688 seemed most emphatic was in its repudiation of the pretensions of Stuart absolutism, and the supporting doctrines of non-resistance and divine right kingship. ‘The principal duty of the king,’ Blackstone explained, ‘is to govern his people according to law’ (Blackstone 1979, I, p.226). Accordingly, the Revolution parliament had moved to regulate and restrain by statute just those practices of royal prerogative (such as the ‘suspending’ and ‘dispensing’ power) through which James II violated ‘the laws and liberties’ of the kingdom, threatened ‘the protestant religion’, and undermined the constitutional order by governing ‘without consent of parliament’ (see Williams 1970, pp.26-7, and Blackstone 1979, IV, 433-4). Whereas James II had sworn a coronation oath to keep ‘the ancient customs of the realm’, William and Mary swore more precisely to govern ‘according to the statutes in parliament agreed on, and the laws and customs of the same’ (Williams 1970, p.37). The ‘continual struggle’ of the first four Stuart reigns between ‘the crown and the people’ and between ‘privilege and prerogative,’ Hume explained in the final chapter of his History, had been settled ‘in favour of liberty.’ ‘The powers of the royal prerogative were more narrowly circumscribed and more exactly defined,’ and the ‘great precedent of deposing one king and establishing a new family … put the nature of the English constitution beyond all controversy’ (Hume 1983, VI, pp.530-1). ii. Parliamentary Sovereignty If the theory of the mixed constitution thus clarified the limited nature of monarchic power in England, it proved less decisive in settling the extent of parliament’s own institutional capacity. Eighteenth-century statements of parliamentary authority often retained the traditional formulation of parliament’s powers in terms of its historical responsibilities as legislature; High Court (Magna curia); and place of counsel (Commune

Mixed Constitution and Common Law (6) Cocilium Regni)(Atkyns 1734, pp 69-70). But in the routinization of parliamentary government in the decades following the Glorious Revolution, parliaments specific legislative function, including its annual enactments governing taxation and finance, came to dwarf its other roles(see Thomas 1971, pp. 45-88, and Langford 1991, pp. 139-206). And by this time it had become commonplace to analyze parliamentary power more abstractly in terms of a general theory of sovereignty(see Dickinson 1977, pp 121-42, and Lieberman 1989,pp.3l-4049-55) Blackstone, whose treatment in the Commentaries supplied the battle-ground for several important subsequent discussions, approached the topic through a brief summary of the nature of civil society and political obligation, drawn from the standard materials of natural jurisprudence. Political authority was created through a voluntary transfer of natural right; the aims of such political association were better to secure individual liberty and the collective good; and to achieve such purposes, every political society required a supreme irresistible, absolute, uncontrolled authority in which .. the rights of sovereignty reside (Blackstone 1979, 1, p. 49). The distinguishing mark of sovereign power'was'the making f laws'(I, p. 49), which power, in Britain, was exercised by the King-in-Parliament It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal civil,military,maritime,or criminal, this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. (I, p 156) This, moreover, was a not a claim of pure conceptual abstraction. Parliament had confirmed its sovereign power by regulating the succession to the throne'(as was done in the reign of Henry VIl and William I); by altering the established religion of the land'(as was done.. in the reigns of Henry VIll and his three children; and by changing even the constitution of the kingdom and of parliaments themselves'(as was done by the act of union

Mixed Constitution and Common Law (6) Cocilium Regni) (Atkyns 1734, pp.69-70). But in the routinization of parliamentary government in the decades following the Glorious Revolution, parliament’s specific legislative function, including its annual enactments governing taxation and finance, came to dwarf its other roles (see Thomas 1971, pp.45-88, and Langford 1991, pp.139-206). And by this time it had become commonplace to analyze parliamentary power more abstractly in terms of a general theory of sovereignty (see Dickinson 1977, pp.121-42, and Lieberman 1989, pp.31-40,49-55). Blackstone, whose treatment in the Commentaries supplied the battle-ground for several important subsequent discussions, approached the topic through a brief summary of the nature of civil society and political obligation, drawn from the standard materials of natural jurisprudence. Political authority was created through a voluntary transfer of natural right; the aims of such political association were better to secure individual liberty and the collective good; and to achieve such purposes, every political society required ‘a supreme, irresistible, absolute, uncontrolled authority in which … the rights of sovereignty reside’ (Blackstone 1979, I, p.49). The distinguishing mark of ‘sovereign power’ was ‘the making of laws’ (I, p.49), which power, in Britain, was exercised by the King-in-Parliament: It hath sovereign and uncontrollable authority in the making, confirming, enlarging, restraining, abrogating, repealing, reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical, or temporal, civil, military, maritime, or criminal; this being the place where that absolute despotic power, which must in all governments reside somewhere, is entrusted by the constitution of these kingdoms. (I, p.156) This, moreover, was a not a claim of pure conceptual abstraction. Parliament had confirmed its sovereign power by regulating ‘the succession to the throne’ (‘as was done in the reign of Henry VII and William III’); by altering ‘the established religion of the land’ (‘as was done … in the reigns of Henry VIII and his three children’; and by changing ‘even the constitution of the kingdom and of parliaments themselves’ (‘as was done by the act of union

Mixed Constitution and Common Law and the several statutes for triennial and septennial elections). 'Some have not scrupled to call its power. the omnipotence of parliament, Blackstone reported(though he himself found thefigure rather too bold)(I, p 156) As the critics of this type of formulation argued at length, such legislative omnipotence seemed to threaten for very fabric of liberty the English constitution was celebrated to protect. The kingdom had simply defeated royal tyranny by enshrining parliamentary absolutism(see Gunn 1983, pp 7-42, and Hamburger 1994). In its most extreme articulations-as in the case mounted by Paine in the Rights of Man -the criticism led to the dramatic conclusion that England, in fact, had no constitution: ' merely a form of government without a constitution'(Paine 1974, p.331). A parliamentary supremacy which included the authority to revise the constitution itself entailed a reversal of a true system of constitutional government in which the constitution controlled the government, and the community itself controlled the constitution(pp. 278-80) Paines, no doubt, was a self-consciously iconoclastic assault of English political orthodoxies. But he navigated a much-traversed of eighteenth-century issue, which recalled and rehearsed the themes of earlier disputes concerning the nature and limits of political obligation. Notwithstanding the Commentaries's imposing itemization of past parliamentary enactments that altered the basic structures of church and state, there were many who felt that the bald claim of parliaments uncontrollable authority seriously distorted the nature of legislative power. One important line of speculation, dominated by jurists and university moralists, sought a more careful and discriminating treatment of the nature of sovereignty than that afforded by the blackstonean language of absolute despotic power. There was the need to distinguish sovereign power'and 'supreme power,, and to differentiate the domestic and external (or international) faces of sovereignty(Rutherforth 1822, pp. 282-5). Likewise was the injunction always carefully to ' distinguish juridical from moral power' in the understanding of parliament's supreme jurisdiction'( Chambers 1986, I, p 140). And again was the insistence that the frequently indefinite extent of sovereign authority in many

Mixed Constitution and Common Law (7) and the several statutes for triennial and septennial elections’). ‘Some have not scrupled to call its power … the omnipotence of parliament,’ Blackstone reported (though he himself found the ‘figure rather too bold’) (I, p.156). As the critics of this type of formulation argued at length, such legislative ‘omnipotence’ seemed to threaten for very fabric of liberty the English constitution was celebrated to protect. The kingdom had simply defeated royal tyranny by enshrining parliamentary absolutism (see Gunn 1983, pp.7-42, and Hamburger 1994). In its most extreme articulations - as in the case mounted by Paine in the Rights of Man - the criticism led to the dramatic conclusion that England, in fact, had no constitution: ‘merely a form of government without a constitution’ (Paine 1974, p.331). A parliamentary supremacy which included the authority to revise the constitution itself entailed a reversal of a true system of constitutional government in which the constitution controlled the government, and the community itself controlled the constitution (pp.278-80).2 Paine’s, no doubt, was a self-consciously iconoclastic assault of English political orthodoxies. But he navigated a much-traversed of eighteenth-century issue, which recalled and rehearsed the themes of earlier disputes concerning the nature and limits of political obligation. Notwithstanding the Commentaries’s imposing itemization of past parliamentary enactments that altered the basic structures of church and state, there were many who felt that the bald claim of parliament’s ‘uncontrollable’ authority seriously distorted the nature of legislative power. One important line of speculation, dominated by jurists and university moralists, sought a more careful and discriminating treatment of the nature of sovereignty than that afforded by the Blackstonean language of ‘absolute despotic power’. There was the need to distinguish ‘sovereign power’ and ‘supreme power’, and to differentiate the domestic and external (or international) faces of sovereignty (Rutherforth 1822, pp.282-5). Likewise was the injunction ‘always carefully’ to ‘distinguish juridical from moral power’ in the understanding of parliament’s ‘supreme jurisdiction’ (Chambers 1986, I, p.140). And again was the insistence that the frequently ‘indefinite’ extent of sovereign authority in many

Mixed Constituti states should not be confused, as by blackstone, with the idea that sovereignty was therefore infinite'(Bentham 1977, p 484; and see Sedgwick 1800, p 126) In addition to the attempted clarification of the concept of sovereignty was a corresponding effort better to elucidate the term"constitution'. Blackstone, as was conventional, identified the constitution with the organization of the legislature. As william Paley later put it, ' A government receives its denomination from the form of the legislature which form is likewise what we commonly mean by the constitution of a country. '(Paley 1838, Ill, p. 253). And on this understanding, the constitution existed so long as the tripartite structure of king-in-parliament survived as sovereign; and any enactment issued by this legislative sovereign enjoyed legal validity(Blackstone 1979, pp 51-2). But while the gislature furnished the core element of the English constitution, few commentators Blackstone included -treated this structural form as exhausting the kingdom s system of constitutional norms and practices. In this manner, bolingbroke maintained that by constitution we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions, and customs .. that compose the general system according to which the community hath agreed to be governed'(Bolingbroke 1844, Il, p.88). On the basis of this more dense definition of the constitution, it was easy to identify situation in which parliaments legislative product violated constitutional principles( Bolingbroke 1844, Il pp 150-1; and see Burns 1962). And Paley more cautiously and hesitantly conceded that although a parliamentary enactment in the strict and proper acceptation of the term'could not be unconstitutional,,"in a lower sense it may, viz. when it militates with the spirit contradicts the analogy, or defeats the provision of other laws, made to regulate the form of government(Paley 1838, Ill, p. 261) Most weighty and controversial, however, was the characterization of the constitutional resources available for dealing with an abuse or violation of the constitutional order. Blackstone, in setting out the case for parliaments sovereign and uncontrollable authority,, acknowledged the arguments of Mr. Locke and other theoretical writers' that

Mixed Constitution and Common Law (8) states should not be confused, as by Blackstone, with the idea that sovereignty was therefore ‘infinite’ (Bentham 1977, p.484; and see Sedgwick 1800, p.126). In addition to the attempted clarification of the concept of sovereignty was a corresponding effort better to elucidate the term ‘constitution’. Blackstone, as was conventional, identified the constitution with the organization of the legislature. As William Paley later put it, ‘A government receives its denomination from the form of the legislature; which form is likewise what we commonly mean by the constitution of a country.’ (Paley 1838, III, p.253). And on this understanding, the constitution existed so long as the tripartite structure of king-in-parliament survived as sovereign; and any enactment issued by this legislative sovereign enjoyed legal validity (Blackstone 1979, pp.51-2). But while the legislature furnished the core element of the English constitution, few commentators - Blackstone included - treated this structural form as exhausting the kingdom’s system of constitutional norms and practices. In this manner, Bolingbroke maintained that ‘by constitution we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions, and customs ... that compose the general system according to which the community hath agreed to be governed’ (Bolingbroke 1844, II, p.88). On the basis of this more dense definition of the constitution, it was easy to identify situation in which parliament’s legislative product violated constitutional principles (Bolingbroke 1844, II, pp.150-1; and see Burns 1962). And Paley more cautiously and hesitantly conceded that although a parliamentary enactment ‘in the strict and proper acceptation of the term’ could not be ‘unconstitutional’, ‘in a lower sense it may, viz. when it militates with the spirit, contradicts the analogy, or defeats the provision of other laws, made to regulate the form of government’ (Paley 1838, III, p.261). Most weighty and controversial, however, was the characterization of the constitutional resources available for dealing with an abuse or violation of the constitutional order. Blackstone, in setting out the case for parliament’s ‘sovereign and uncontrollable authority’, acknowledged the arguments of ‘Mr. Locke and other theoretical writers’ that

Mixed Constitution and Common Law (9) there remains still inherent in the people a supreme power to remove or alter the legislative when it violated'the trust reposed in them'(Blackstone 1979, I, p 157). And later,in treating the likely response of the community to severe"unconstitutional oppressions, he noted that whenever necessity and the safety of the whole shall require it,, future generations would mobilize'those inherent( though latent) powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish(I, p. 238). But throughout the commentaries, blackstone endeavored to blunt any radical implications of his own appeal to natural rights and natural equality(see Lieberman 1989, pp52-5).In the hypothetical case of morally-legitimate political resistance, he insisted that this must involve an extra-legal exercise of individual moral capacity 'necessarily.. out of the reach of any stated rule or express legal provision No human laws will... suppose a case, which at once must destroy all law nor will they make provision for so desperate an event, as must render all legal provisions ineffectual. So long therefore as the English constitution lasts.. the power of parliament is absolute and without control. (I, pp 156- It was this Blackstonean insistence that the constitution did and could not specify in law the rights of popular sovereignty upon which it ultimately was based which more radical theorists of political liberty challenged most vehemently. Judge Blackstone, James Burgh charged in his Political Disquisitions, seems to forget that the safety of the people limits all free governments. '"The truth is, he had placed the sovereignty wrong, viz. in the government; whereas it should have been in the people . .'(Burgh 1774-5, I, p 226 and Im p 278). The following year, Richard Price, in his avowedly Lockean defense of civil liberty dismissed as absurd' the doctrine which some have taught concerning the omnipotence of parliaments. All government was in the very nature of it, a trust; and legislators exercised a'subordinate and limited authority according to the specific fiduciary powers of the community had delegated to them. 'If they contradict this trust, they betray their

Mixed Constitution and Common Law (9) ‘there remains still inherent in the people a supreme power to remove or alter the legislative’ when it violated ‘the trust reposed in them’ (Blackstone 1979, I, p.157). And later, in treating the likely response of the community to severe ‘unconstitutional oppressions’, he noted that ‘whenever necessity and the safety of the whole shall require it’, future generations would mobilize ‘those inherent (though latent) powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish’ (I, p.238). But, throughout the Commentaries, Blackstone endeavored to blunt any radical implications of his own appeal to natural rights and natural equality (see Lieberman 1989, pp.52-5). In the hypothetical case of morally-legitimate political resistance, he insisted that this must involve an extra-legal exercise of individual moral capacity ‘necessarily … out of the reach of any stated rule or express legal provision’: No human laws will … suppose a case, which at once must destroy all law … nor will they make provision for so desperate an event, as must render all legal provisions ineffectual. So long therefore as the English constitution lasts … the power of parliament is absolute and without control. (I, pp.156- 7). It was this Blackstonean insistence that the constitution did and could not specify in law the rights of popular sovereignty upon which it ultimately was based which more radical theorists of political liberty challenged most vehemently. ‘Judge Blackstone’, James Burgh charged in his Political Disquisitions, ‘seems to forget that the safety of the people limits all free governments.’ ‘The truth is,’ he had ‘placed the sovereignty wrong, viz. in the government; whereas it should have been in the people …’ (Burgh 1774-5, I, p.226 and III, p.278). The following year, Richard Price, in his avowedly Lockean defense of civil liberty, dismissed as ‘absurd’ the doctrine ‘which some have taught’ concerning ‘the omnipotence of parliaments’. All government was ‘in the very nature of it, a trust’; and legislators exercised a ‘subordinate and limited’ authority according to the specific fiduciary powers of the community had delegated to them. ‘If they contradict this trust, they betray their