Although it had been said that there was no written Constitution—that there was no guide-post to shew its limits—yet there was a Constitution, drawn from the laws of Nature, and ratified by the laws of God, existing in the spirit of the English laws and in the hearts of the people, that could not be destroyed.
—Reginald Richardson, 1839.Footnote 1The British constitution has long dominated our understanding of nineteenth-century politics. It was the master narrative that shaped both elite and popular politics, giving political parties their identities and radicalism its platform.Footnote 2 Although there was broad agreement on the sacred importance of the constitution, there was no single authoritative account of what the British constitution was, and how it should control government. This uncertainty left an empty space at the heart of the political nation, which different groups could fill with their constitutional interpretations. Political debate, therefore, centered on parties and movements casting themselves as the custodians of the true constitution and castigating their opponents as its assailers. A consequence of the constitutional bent of political discourse was the historicizing of political debate, as precedents from Britain's constitutional past were pressed into the service of contemporary politics. Broadly speaking, there were two narratives regarding the origin of the constitution in the nineteenth century. The first, held mainly by Tories, traced Parliament to Edward's I's summons in the thirteenth century. Parliament, therefore, was a medieval creation of the monarchy. The second constitutional narrative, held by Chartists, most radicals, and, until the 1820s, the Whigs, argued that the constitution was Saxon in origin.Footnote 3
The idea of an ancient Saxon constitution had a long history; it was fundamental, for example, in the struggles of the seventeenth century.Footnote 4 The democratic version of the Saxon constitution drawn on by the Chartists, however, was first embraced in the 1770s by radical writers such as Obadiah Hulme, James Burgh, and the father of reform, Major John Cartwright.Footnote 5 Indeed, the latter's 1777 pamphlet Take Your Choice! was the first appearance of what became the six points of the People's Charter in a single program.Footnote 6 The democratic-Saxon narrative argued that the Saxons' “glorious constitution” had included universal male suffrage and annual elections. This pristine constitution, however, had been subverted by the Normans and their system of feudal bondage, and––while remnants of the Saxon constitution survived––they were progressively eroded by later monarchs and governments.Footnote 7 What radicals from the 1770s to the Chartists demanded, therefore, was a restoration of lost rights, not the introduction of new ones. As the gigantic 1842 National Petition, which bore a total of 3,315,752 signatures scrawled across six miles of paper, claimed,
your petitioners maintain that it is the inherent, indubitable, and constitutional right, founded upon the ancient practice of the realm of England, and supported by well approved statutes, of every male inhabitant of the United Kingdom, he being of age and of sound mind, non-convict in crime, and not confined under any judicial process, to exercise the elective franchise in the choice of Members to serve in the Commons House of Parliament. That your petitioners can prove, that by the ancient customs and statutes of this realm, Parliament should be held once in each year.Footnote 8
The recognition of the centrality of the constitution was an important landmark in Chartist historiography. It enabled historians to establish a lineage within which Chartist arguments could be understood, and recast Chartism as the heir to a long radical tradition. The constitutional shift also provided valuable insights into the nature of political contest in nineteenth-century Britain. Where it had been assumed that Chartists held an ideology antithetical to that of their opponents, the primacy of constitutional discourse shifted attention to how politics was contested within the terms of a shared language.Footnote 9 Perhaps the most far-reaching aspect of the constitutional idiom, however, was the recognition that constitutionalism was a discourse within which Chartism was contained, both linguistically and strategically.Footnote 10 For the language of the constitution shaped the form the movement took, the tactics Chartists pursued, the demands they made; most importantly, it structured the way they thought, and were able to think, about politics and society.
The understanding of the constitution in the historiography of Chartism and nineteenth-century popular politics does, however, have limitations. Most importantly, perhaps, and in contrast to the approaches of historians working on seventeenth- and eighteenth-century constitutionalism, historians concerned with nineteenth-century constitutionalism have not explored the ideas that underpinned constitutional discourse. Instead of the constitution's intellectual aspects, attention has focused on constitutionalism as a narrative form: how things were said has mattered more than what was said.Footnote 11 Yet, even here, the narrative used is problematic. For the British constitutional tradition has been depicted as an inward-looking, exceptionalist paradigm of national political development that was distinct from the constitutional traditions of other nations. Although the British constitution certainly had peculiar characteristics, it was never self-contained and insular. Moreover, there is nothing unique about the emphasis that British constitutional discourse placed on national events. All constitutional traditions are stories of national political development that essentialize the national.Footnote 12
This article addresses these issues by considering the ideas that underpinned the Chartist conception of the constitution. It does so by placing Chartist constitutionalism alongside American constitutionalism. The latter was the model form of constitutionalism for liberals and radicals throughout the nineteenth century, and has been at the center of recent comparative scholarship on the “age of constitutions.” The basis of the American constitutional ideal was that constitutions were written texts that were separate from and placed above government.Footnote 13 American constitutionalism sprung from the American Revolution, which, in a “fifteen-year burst of brilliance, never since equaled,” gave to the world constitutional documents in the form of the Declaration of Independence, the state constitutions, and the Federal Constitution of 1787.Footnote 14 These American examples inspired a “contagion of new-style constitutions” across the Atlantic World.Footnote 15 In Europe alone, they helped inspire over sixty written constitutions by 1820, including the four revolutionary French constitutions of the 1790s. At least a further eighty constitutions had been implemented between 1820 and 1850, many of them in Latin America.Footnote 16
Britain did not––and still does not––have a constitution in the American sense; the British constitution was not a single document, but more a reading of history.Footnote 17 With popular radicalism clothed in the language of the British constitution, the simple conclusion is that radicals endorsed this state of affairs. As Linda Colley has recently argued, however, the differences between English and American constitutional models have been exaggerated. Colley offers a way forward by placing Britain in its imperial context, showing how written constitutions were used extensively as a technique for governance of the empire.Footnote 18 She also highlights the influence of the American constitutional tradition on British radicals such as Cartwright, and notes that London throughout the nineteenth century was an intellectual hub that offered refuge for failed reformers and revolutionaries from around the world.Footnote 19
This article extends Colley's analysis by considering the shared basis of American and Chartist conceptions of the constitution. It does so not merely to make connections––useful though these are––but to open up new questions regarding popular constitutionalism itself. American constitutionalism was forged in a conflict that threw open questions regarding taxation, representation, and sovereignty. Chartism was fired by the same grievances and, it shall be argued, drew on a common set of arguments. As were the Americans sixty years before, the Chartists were confronted by a parliament that they believed had superseded its constitutional authority, denied them representation, and trampled on the sovereignty of the people. This perception did not just rest on the conviction that the Saxon constitution had been violated, nor a straightforward appeal to natural rights. For Chartist constitutionalism was also powerfully informed by a strand of English legal theory that joined natural law—the basis of American constitutional law—with English common law. The latter was inextricably bound up with the constitution. However, scholars have not asked how the Chartists viewed the law. The natural law interpretation of the common law allowed the Chartist to imagine that the British constitution functioned like an American-style constitution, that is, one that was visible, known to all, and capable of binding government. Chartist arguments, therefore, rested on a form of written constitutionalism that was rooted in the English common law.
A Movement of Natural Lawyers?
The best-known British radical advocate of a written constitution was Thomas Paine, who in his famous challenge to Edmund Burke to produce the British constitution declared that if Burke could not do so, Britain had no constitution at all. Paine held that, “A constitution is not a thing in name only, but in fact. It has not an ideal, but a real existence; and whenever it cannot be produced in a visible form, there is none.”Footnote 20 It had once been widely believed that Paine had persuaded the nascent radical movement of the 1790s to reject British constitutionalism for his more demanding American definition of a constitution.Footnote 21 The reemergence of the tradition of British constitutionalism, however, has led historians’ to minimize Paine's influence on Chartism.Footnote 22 Having rejected Paine's strictures against the British constitution, it has been suggested that radical and Chartist constitutionalism was Burkean, in the sense that they believed that the constitution was the product of organic development over time.Footnote 23 This argument, however, exaggerates the influence of Burke, and misunderstands the theoretical principles of Chartist constitutionalism. The use of Burke to elaborate a romantic conception of history and the organic development of constitutions was a phenomenon more of the European continent than Britain, where it was “hardly touched.”Footnote 24 In Britain, moreover, few accepted Burke's rosy depiction of the ancien regime, and his account of the French Revolution was seen as an exaggeration.Footnote 25
More important, however, were the theoretical differences between Burke and the Chartists. Like the Chartists, Burke accepted the notion of an ancient constitution and even acknowledged that it was based on mutual consent. He emphatically denied, however, that the constitution embodied first principles, arguing that the implementation of natural rights would destroy society.Footnote 26 Rather than explicit consent, he proposed that “social goods,” which included political rights, were the product of historical “entailed inheritance.”Footnote 27 For Burke, therefore, the genius of the constitution lay in its development over time, not its supposed abstract foundation.Footnote 28 Burke never directly replied to Paine, but a Burkean response to Paine's argument would have been to insist that the constitution was something that could be understood through an appreciation of the institutions, traditions, and practices of society. Thus, a Burkean understanding of the constitution was that it was simply the institutions that had developed, regardless of whether the principles that underlay them were codified.Footnote 29
Chartist constitutional thought did not follow this path. Indeed, Chartist constitutionalism was in many respects in agreement with Paine's political principles. Although Chartists did not accept Paine's rejection of the constitution's historical narrative, they did believe that the British constitution was rooted in first principles; and to answer Paine's challenge to Burke, they believed that the constitution could be produced. Unlike Paine, Chartists continued to appeal to iconic texts, such as the Magna Carta and the Bill of Rights of 1688, which they regarded as fundamental constitutional documents. As Thomas Cooper, Chartism's de facto poet laureate, argued, “in the legal enactments of our glorious Alfred and other Saxon monarchs––in our boasted Magna Carta and Bill of Rights––in brief, that, in all and sundry the civil and juridical institutions of my country there were to be found the luminous traces of a broad enlightened freedom.”Footnote 30 Indeed, the name People's Charter itself was an explicit reference to the Magna Carta that “all politically aware contemporaries would have understood.”Footnote 31
In this respect, the People's Charter can be seen as a new constitution. As Cooper went on to say, “as far as my understanding enables me to judge, [the Charter] is neither more nor less than an embodiment of the principles contained in the theory of the British Constitution.”Footnote 32 This claim, however, rested on more than just its allusion to the Magna Carta and the Saxon constitutional tradition. For in its final form, the Charter did not merely contain the famous six points, but rather 106 points that set out exactly how the political machinery of a post-Charter electoral system would operate.Footnote 33 It began by stipulating that “All Acts and Parts of Acts relating to Registration, Nomination, or Elections, as well as duration of Parliaments and sittings of members, must be repealed,” and set out in great detail their replacements, from the election of the returning officers to arrangements for nomination, registration, and election.Footnote 34 In this way, Chartists sought to revolutionize the operations of government.
This organizational aspect of Chartist constitutionalism was informed and put into practice by Chartism's own associations. While Chartism's outward-looking face was characterized by the spectacle of its monster meetings, massive petitions, imposing parades, and so on, Chartism's inner life was made up of a sprawling network of overlapping associations, committees, and unions. This Chartism was bureaucratically governed by an obsessive regime of agendas, motions, and carefully defined constitutions.Footnote 35 According to the Northern Star, the latter were an essential tool of Chartist organization. Commenting on the National Charter Association's 1844 Constitution and Rule Book, a copy of which was issued to all members, the Northern Star claimed: “Without it, all will be confusion and uncertainty: with it, if the instructions be as they ought to be, clear and precise, all will be orderly and stable.”Footnote 36 The National Charter Association, Chartism's largest and longest lasting organization, is an excellent example of Chartist constitutional governance at work. During the 1840s the National Charter Association issued four constitutions––in 1840, 1843, 1844, and 1848––as well as an amended constitution in 1841.Footnote 37 Each of these was the product of a process of discussing, drafting, and amending by delegate meetings and the wider membership. The associations's first constitution was avowedly an amalgamation of a “great number” of plans submitted for consideration.Footnote 38 The clearest influences were organizations and associational cultures with which many Chartists would have been familiar, such as the format of parish vestry meetings, Methodist-style classes, and the federal structure, rotation of office, and elected positions used by trade unions.Footnote 39 The practices of these organizations were also evident in the constitutions of other Chartist bodies, such as the Northern Political Union and the Universal Suffrage Central Committee of Scotland.Footnote 40 Moreover, all four of the constitutions represent an attempt to incorporate the six points of the People's Charter with the use of universal suffrage, annual votes, the secret ballot, the weighting of regional votes based on the size of its population, a salaried executive, and, of course, no property qualification for elected office.
Beyond the operational and organizational aspects of Chartist thought and practice, a constitutional ideal was at work, which placed constitutions above government, like the American model. It was to this ideal, and the sources in which it was rooted, that Reginald Richardson, a Manchester-based Chartist, referred to when he claimed, “Although it had been said that there was no written Constitution—that there was no guide-post to shew its limits—yet there was a Constitution, drawn from the laws of Nature, and ratified by the laws of God, existing in the spirit of English laws and in the hearts of the people, that could not be destroyed.”Footnote 41 Similarly, the Northern Liberator, the northeast of England's leading early Chartist newspaper, stated, “The whole current of English law abounds with authorities unquestionable … every English lawyer of eminence lays it down as a maxim, that legislation, in contradiction to the laws of nature and God, and to Revelation, as part and parcel of the law of the land, is null, void, and of no effect.”Footnote 42 Both Richardson and the Northern Liberator were asserting that the constitution consisted of a body of fundamental law, which seemingly rested on three sources: English law or the common law, divine law, and natural law. These sources, however, were not distinct in Chartist understanding.
The mythology of English common law contended that it was a self-contained legal doctrine based on the custom of England. Unlike continental (and Scottish) Roman law, which was rooted in natural law principles, the common law was not laid down by either will or nature but rather a reflection of the rules and practices of society.Footnote 43 As William Blackstone put it, the common law was “handed down by tradition, use, [and] experience.’”Footnote 44 Despite the claims of its mythology, however, the common law was closely related to natural law. From the earliest times the common law had embraced both English custom and Roman law principle and common law lawyers insisted that the law conformed to reason and laws of nature as well as custom.Footnote 45
Feargus O'Connor, Chartism's most prominent leader, explicitly appealed to this relationship between common and natural law when he stood trial for libel against the Warminster Poor Law Guardians in 1840. In his defense O'Connor, who had trained as a barrister, criticized the foundation of the libel laws because they had no basis in the “civil Roman laws, from which the common law of England has sprung.” He highlighted that the attorney general, who was prosecuting his case, was unable to draw a precedent “from the institutes of Justinian, or from the Precedents,” the key texts of Roman law, and instead relied on the precedent of judges who had “capriciously” construed it from “the whims of their predecessors, when the dictum of the cabinet, the quibble of a judge, or the prejudice of the jury, constituted the law of the land.”Footnote 46 The ambiguities of the common law allowed radicals to draw upon legal doctrines that emphasized the common law's conformity with nature. In the seventeenth century, for example, these claims underpinned radical interpretations of the ancient constitution that stressed contractual government and justified the right to rebellion and regicide.Footnote 47 The same doctrines were central to the American Revolution, which has been described by one historian as “a revolution of natural law against common law.”Footnote 48 In Britain at the time of the American Revolution, reformers such as Cartwright used this strand of common law jurisprudence to push for democratic reform.Footnote 49
Natural law was a mode of thinking that connected politics, morality, and law. It set a number of normative rules, before any human choices, to which all were subject.Footnote 50 Although natural law existed in ancient and medieval thought, the first systematic attempt to formalize natural law doctrine was the jurisprudence of the Dutch lawyer Hugo Grotius.Footnote 51 From Grotius onward, natural law underpinned a diverse group of canonical works, such as the philosophy of Thomas Hobbes, the natural right theory of John Locke, and the political economy of Adam Smith.Footnote 52 Although natural law can be secular, much of its power rested on its theological underpinnings.Footnote 53 Natural law was seen as God's law for men, and as such enjoyed greater legitimacy than any man-made legislation. As the Chartist Circular stated, in an unattributed quotation from William Blackstone's Commentaries on the Laws of England, “Life and Liberty are derived from the same Almighty source. They are the Creator's gift … No human laws are of any validity if contrary to the Law of Nature, which is coeval with mankind, and dictated by God himself.”Footnote 54 There was, therefore, considerable cross-over between divine law and natural law. On the one hand, divine law could mean law inferred from Scripture. However, more generally it was used as a synonym for natural law. Because natural law and divine law were both expressions of divine design, there was no need to distinguish sharply between the two. A typical example of this joining of natural and divine law was the passage in the 1848 National Petition that simply stated, “your petitioners regard the representation in Parliament of every man of sound mind as a right compatible with, and sustained by, the laws of nature and of God.”Footnote 55 When understood in this way, natural law could not be repealed nor circumvented by contingent circumstances: it bound Parliament, peer, and peasant equally.
All of the above aspects of natural law were expressed by the American Declaration of Independence. As its famous second paragraph enduringly proclaimed, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”Footnote 56 As John Phillip Reid has argued, however, there was nothing in the Declaration that was not already widely understood to be “English rights, recognized and protected by British constitutional documents.”Footnote 57 Indeed, it was to protect their constitutional rights as Britons that the Americans rebelled against the British government. Recent scholarship, however, has sought to downplay the revolutionary influence of the Declaration of Independence, arguing that it was more about the rights of nations than the rights of man.Footnote 58 The Chartists, however, celebrated the Declaration because it was a clear statement of their own political principles, by a people they regarded as “the same Saxon race, transplanted to the new world.”Footnote 59 The Chartist Circular, for example, printed the Declaration in full on its front in February 1840, it was invoked in their speeches and writing, and it was sold alongside the People's Charter at radical bookstores.Footnote 60 As one former Chartist put it, the Declaration was “the most enlightened, the most humane, and the most important confession of political faith ever given to the world. On the very form of it blazes the sublime statement of human rights and the cheerful prophecy of human redemption, ‘all men are created equal.’”Footnote 61 The Northern Star put it even more passionately in 1844:
It was a day ever memorable in the annals of human kind when, amid the din of contending armies and the roar of mortal conflict, the sages and statesmen of America dared to meet and proclaim in the teeth of tyranny-ridden Europe, that long outraged but eternal truth, that ‘all men are born free and equal’: thus throwing down the gauntlet to oppression, and summoning the oppressed to the struggle for freedom… Yes, it was a day pregnant with blessed hope for the human race, when JEFFERSON proclaimed those principles, which, embodied in the immortal DECLARATION OF INDEPENDENCE, rent the New World from the domination of the Old!Footnote 62
The connection between the Declaration of Independence and the People's Charter was also recognized on the other side of the Atlantic. At a meeting in Philadelphia in 1847 to celebrate O'Connor's election to Parliament, a motion adopted in the presence of a number of Chartist migrants stated, “we anticipate the day, when the principles of the People's Charter, will be the basis of the British constitution, inasmuch as those very principles are the exact embodiment of our own glorious declaration of independence.”Footnote 63
One of the main ways that natural law was expressed in Chartist arguments was by citing common law legal authorities. As J. C. D. Clark has argued, many of the jurists venerated as champions of the common law, such as Henry de Bracton, Edward Coke, and William Blackstone––the authorities the Northern Liberator called unquestionable––“had a deep knowledge of Roman law, and their major works were attempts to systematize the common law with natural law.”Footnote 64 At his first trial, O'Connor argued that the Poor Law was not a law on the authority of “Puffendorf” (whose name was always spelled with an extra f in Chartist usage), Montesquieu, Grotius, Locke, De Lolme, Paley, “and your very own constitutional Judge Blackstone,” all of whom he described as “writers on the constitution.”Footnote 65 The same argument was used by Joseph Rayner Stephens, a Methodist preacher and firebrand anti-Poor Law leader, and Peter Bussey, a leading Chartist in the West Riding of Yorkshire. Stephens, for example, repeated in the courtroom what he had frequently declared to anti-poor law and Chartist rallies: “The new poor-law bill … was an act of Parliament that ought not to be obeyed, for, being contrary to the laws of God, it was no law at all.” In support of this statement, Stephens did not read from scripture, as might be expected from a minister invoking the laws of God, but rather twenty quotations from “high authorities,” nine of which were taken from Blackstone's Commentaries.Footnote 66 The first quotation he read, for example, was essentially the same as that cited above, from the Chartist Circular: “The law of nature being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. No human laws are of any validity if contrary to this.”Footnote 67 Bussey, who was in court for refusing to pay the Poor Law rates, likewise quoted from Blackstone three times, and once each from Edward Coke, Henry Hobbart, Bracton, Lord Abinger, Francis Bacon, Locke, and Brougham.Footnote 68
The Poor Law Amendment Act of 1834 was fundamental to the emergence of Chartism, particularly in the north of England, where early Chartism was strongest.Footnote 69 The Chartists and the anti-Poor Law movement argued that the right to relief was a legal right based on natural law and recognized by the common law. The most influential proponent of this “legal” case against the Poor Law was the great radical journalist and Chartist icon William Cobbett.Footnote 70 According to his most extensive anti-Poor Law work, The Legacy to Labourers, the right to relief was affirmed by “the express and incessantly reiterated commands of God, in both Testaments; and according to the laws of England, Canon-Law, Common Law, Statute-Law, laws made by Protestants, as well as laws made by Catholics.”Footnote 71 By seemingly removing this right, or at least qualifying it, the Poor Law Amendment Act struck at the heart of the Chartist conception of society and the constitution. As an article on the rights of the poor in the Northern Star declared, “to refuse the poor a maintenance, which shall be founded on liberal and charitable principles, is to destroy a portion of our Constitution, and change its very nature.”Footnote 72 The 1842 petition likewise declared––“with feeling of indignation”––“[t]hat your petitions conceive that bill to be contrary to all previous statutes, opposed to the spirit of the constitution, and an actual violation of the precepts of Christian religion.”Footnote 73 The struggle against the Poor Law, therefore, lent urgency to Chartist attempts to limit the power of Parliament.
Although the Poor Law was never surpassed in Chartist demonology, it was far from the only way that Chartists believed that the government had violated the constitution. The 1842 Petition, for example, complained that Parliament had denied the “undoubted right of the people, to meet freely, when, how, and where they choose, in public places, peaceably, in the day, to discuss their grievances, and political and other subjects, or for the purpose of framing, discussing, or passing any vote, petition, or remonstrance, upon any subject whatsoever.”Footnote 74 In defense of this “undoubted constitutional right,” Bronterre O'Brien quoted from Blackstone six times, Locke twice, and Abingdon once.Footnote 75 Other examples where Chartists quoted from legal authorities included the separation of the executive from the legislature, the constitutional right to bear arms, and the right to use them to resist tyranny.Footnote 76 In a wide-ranging editorial that touched on the legality of the Poor Law, the origin of property, the grounds for allegiance to the crown, and the right of resistance, the Northern Liberator cited from Blackstone's Commentaries, Edward Coke, “Puffendorf” Grotius's de Jure Belli ac Pacis, Paley's Moral Philosophy, Hale's Pleas of the Crown, Montesquieu's Spirit of the Laws, Baron Gilbert's Law of the Common Pleas, Francis Bacon's Law Tracts, and Locke's Dissertations on Government.Footnote 77 A more unusual Chartist case was Richardson's use of “Puffendorf,” Grotius, Vattel, and Montesquieu to argue for female suffrage.Footnote 78
While at first glance it appears that Chartists were drawing on an eclectic range of sources, they were, in fact, referencing primarily the English legal authorities mentioned above, those who “had a deep knowledge of Roman law,” and the luminaries of an apparently congruent continental legal tradition, led by Grotius and Pufendorf, alongside writers such as Locke who wrote in a natural-law framework.Footnote 79 By far the most cited constitutional authority, however, was William Blackstone. The Blackstone whom Chartists drew on in their speech and writing was the Blackstone who sought to impose order on the common law by shackling it to a natural-law framework.Footnote 80 Following this Blackstone, Chartist speakers blurred the boundary between common and natural law. A speaker at a Bury anti-Poor Law meeting, for example, stated that “he did not intend to argue the question on an abstract view of the principle of natural justice, indeed on such a ground, it did not admit denial.” Rather, “he would take up the right as expounded by the common law and fundamental statutes of the realm,” He then read to the meeting the following passage from Commentaries:
Those rights which God and nature have established, and which are therefore called natural rights, such as our life and liberty, need not the aid of human law, to be more effectually invested in every man than they are, neither do they receive any additional strength when declared by Municipal Laws to be inviolable. On the contrary, no human legislation has the power to abridge or destroy them, unless the owner shall commit some act which amounts to a forfeiture.Footnote 81
This section, however, was an abstract position, part of Blackstone's attempt to synthesize natural and common law. Because Blackstone was considered, in the words of Cobbett, “the great teacher of our laws,” this statement passed for a binding legal judgment.Footnote 82 Thus, for the Chartists, the denial of suffrage, the qualification of the right to relief, and other constitutional infringements, were not just in breach of some ideal moral standard or natural right. Armed with quotation after quotation from English legal authorities, Chartists also argued that Parliament violated the common law and the constitution it embodied. Crucially, these two sources of law were one and the same thing.
Chartist Constitutionalism
When read through lens of the principles outlined above, a form of constitutionalism emerges that is different from the way it is customarily understood in the historiography. Rather than a narrative tradition based on the authority of precedent, Chartist constitutionalism was firmly rooted in the fixed principles of fundamental law. From this position, the Chartists were able to produce, in writing, the British constitution, based on the “unquestionable authorities” and fundamental statutes of the common law.
A comprehensive example of the way that Chartists did this was the thirty-nine point Declaration of Rights adopted by the Chartist Convention of the Industrious Classes in 1839 and printed across the Chartist press.Footnote 83 The 1839 Convention met ostensibly to organize the presentation of the first national petition to Parliament, but it also functioned as a forum to discuss strategy, and, for some, it was an alternative parliament invested with the democratic authority that the Westminster Parliament lacked.Footnote 84 The idea of a convention had a long history in Britain and America. In the British context, the idea had a continual importance in radical politics from the 1770s to the Chartist period.Footnote 85 As the Chartists were well aware, however, the history of conventions should be stretched back to at least the seventeenth century, when they met on two occasions.Footnote 86 The first, the 1660 Convention Parliament, met to restore the monarchy, which had been abolished following the execution of Charles I in 1649. Despite its conservative intentions, the 1660 Convention turned constitutional procedure on its head. As the throne was vacant, the Convention Parliament assembled without royal summons, which was––and still is––the British constitutional custom, and then proceeded to summon the king, Charles II.Footnote 87 The second seventeenth-century convention met in 1689 following the Glorious Revolution. Like its predecessor, the 1689 Convention was also an irregular body that broke with constitutional custom by transferring the crown, this time from James II, who had “vacated” the throne, to William III and Mary II. Conventions, therefore, were extraordinary bodies. Unlike regular parliaments, assemblies, or conferences, they met to address fundamental constitutional issues.
In America, conventions served the same important purpose. A convention, in the form of the Continental Congress, declared, and to a large degree made possible, American independence. Conventions were also the vehicle through which the states discussed, drafted, and implemented their new constitutions; a mechanism that was repeated for the Federal Constitution of 1787.Footnote 88 By using conventions in this way, the Americans made reality the idea of popular sovereignty at the heart of Whig and radical political principles. For in order for their new constitutions to be seen to have emerged “from the people, for the people,” they had to be based on the consent of the people. To achieve this, they pioneered large-scale forms of representative government by marrying democracy, representation, and constitutionalism; a framework for government that became the model for reformers around the world, the Chartists, of course, being no exception.
Placing Chartism's 1839 General Convention within this longer historical context allows us to grasp its significance. For it was not just that the movement was following well established constitutional tactics, but that they convened to deal with fundamental constitutional matters in the only way that was constitutionally legitimate. The 1839 Convention was not the only Chartist convention. Two further General Conventions met in 1842 and 1848, and the National Charter Association held numerous conventions throughout the 1840s and 1850s. They were not, however, conventions in the sense outlined above. Unlike the 1839 Convention, the General Conventions of 1842 and 1848 did not seek to deal directly with constitutional matters, but met primarily for organizational and promotional purposes.Footnote 89 They were, in effect, conferences concerned with party, rather than national, government.
The significance of the Chartist Declaration of Rights, therefore, was not so much the program of reforms that it sought to commit the movement to, but the form it took, and what it confirmed about how the Chartists viewed the constitution. The long title of the document was “Declaration of the Rights of the People of the United Kingdom of Great Britain, according to the Ancient Laws and Customs of the Realm of England.” Some newspapers, however, chose to call it, instead, the “Thirty-Nine Articles,” an ironic nod towards the Anglican articles of faith.Footnote 90 Both these steps were probably taken to distance the Declaration, and by extension the Convention and the movement, from the French Declaration of the Rights of Man and Citizen of 1789 and 1793.Footnote 91 This was not just a matter of presentation. From the 1790s, British radicals faced government prosecution for various forms of conspiracy, unlawful assembly, seditious libel, and, as was the case for Joseph Gerrald in 1793 and Thomas Hardy, John Horne Tooke, and John Thelwall in 1794, high treason. Legislation also curtailed the form the Convention could take. Although the Seditious Meeting Acts of 1817 and 1819 had been repealed in 1824, they cast a long shadow over radical organization, and Chartists took care to stay within their limitations. This meant that the number of delegates was capped at just forty-nine, each of whom had to be elected by a public meeting, but not by a specific organization.Footnote 92 Stressing their constitutional purpose and intentions was, therefore, a necessary step to appease the watchful authorities, as well as their own fears and paranoias.
A further difference between the Chartist Declaration and its French predecessor was that each article was accompanied by references to constitutional authorities and fundamental laws. The first point, for example, read: “That the sovereignty of this United Kingdom is monarchical; not despotic, but limited,” and was supported by reference to “Bracton on the laws and Constitution of England book, i, and De Corona, book, iii.” At first sight, the first point separates Chartism not only from Revolutionary France––whose 1789 Declaration invested sovereignty “essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation”Footnote 93 ––but also from republican America. It should be stressed, however, that neither American nor British radicalism was necessarily anti-monarchical.Footnote 94 An orthodox, eighteenth-century reading of the British constitution celebrated above all the way it balanced power between the Crown, Lords, and Commons. In a context where Parliament was perceived to have overreached its constitutional power, the monarchy represented a potential ally. Hence why Chartists occasionally petitioned Queen Victoria directly.
Chartist respect for the traditional role of the monarch did not mean, of course, that they tolerated arbitrary royal prerogative. As the second article of the Declaration read, “That the duties and allegiance of protection by means and goods and just government, are reciprocal and co-ordinate duties,” supported by reference to “Grotius, Locke, Coke, Blackstone, &c. &c. 20 Edw 2, c. ‘original contract declared broken and throne vacant.’ This statute produced in parliament, 10 Rich. 2, 1398.”Footnote 95 Indeed, on the authority of Bracton, Somers, Seldon, and Sydney, Article IV declared that the sovereignty was “a trust” invested in the monarch by the people, and was therefore “controlled, modified, and limited by the will of parliament.” Further articles included the core Chartist demands of universal suffrage and annual parliaments; the right to carry arms; ten article stipulating various legal protections for individuals, such as the banning of torture and the assumption of innocent until “convicted by the judgement of his peers and the laws of the land;” and four articles that enshrined the inviolability of property. All thirty-nine points of the Declaration included references to constitutional authorities, common-law practice, and fundamental statutes.Footnote 96 By producing constitutions in this way, therefore, the Chartists married the claim that they wanted nothing new––the link with the constitutional past––with Paine's constitutional requirements; that is, that they were visible, confined to print, were able to be quoted line-by-line and article-by-article, and, crucially, were set apart from and above government.
The Declaration had a turbulent life, a fact that may explain historians’ limited engagement with it. First, the London Dispatch published it prematurely and without the permission of its author, leading to a vote of censure against the paper by the Convention.Footnote 97 When it was finally introduced to the Convention, O'Connor, who is usually regarded to have had the firmest grasp of the movement's mainstream opinion, opposed its adoption, and proposed that the Convention recommend that the people study it instead.Footnote 98 Following the Convention's collapse, it was largely overlooked by the Chartists, although noteworthy exceptions suggest its continued importance. In 1841, for example, the NCA Executive referred to the Declaration as evidence of their respect for property rights.Footnote 99 Of even greater significance was the use of the exact wording of points VIII and XIX of the Declaration––those for universal suffrage and freedom of assembly––in the 1842 National Petition.Footnote 100 A more general reason why Chartists did not refer to the Declaration more frequently was highlighted by O'Connor's objection to its adoption. O'Connor's complaint did not regard the Declaration's substance; indeed, he believed that it was “the most important document of our time.”Footnote 101 Rather, he argued that the Declaration “contained principles which were by no means novel, on the contrary it contained the very principles for which the people were then contending.”Footnote 102
On this score, O'Connor was surely correct; for the Declaration was one particularly clear manifestation of a more general belief that particular laws embodied the constitution. The logic that underpinned this broader position was set out by the Chartist Circular, which accepted that “The laws of England undoubtedly form what we are accustomed to boast of as the British Constitution.” The Circular, however, identified two problems with how the constitution was understood. First, that the constitution was made of a body of statutes that was too voluminous and complex to be understood by the ordinary person. And, second, that when laws become inactive, obsolete, or are subverted part of the Constitution became defunct. Both of these issues, as we have seen, formed part of Paine's criticism of the British constitution. As the Circular noted, they could lead to the conclusion that “the British Constitution exists only in name; for what is law to-day may cease to be law tomorrow.”Footnote 103 The latter point, however, was unlikely to have been directed at Paine but rather to the advocates of legal positivism, the doctrine which underpinned parliamentary supremacy and dominated discussions of law and politics in nineteenth-century Britain.
Yet the Circular rejected legal positivism as a “mass of crudities,” and insisted that they could “recognize something deserving the name laws, which form, in fact, the real bona fide British Constitution.” These “true principles” were those laws that conferred rights and immunities to all British citizens, had stood the test of time against tyrants, and were founded on principles that all could acknowledge. Statutes that met these criteria, the Circular argued, “have now become fixed principles of law, which may truly be said to form the essential parts of the Constitution.”Footnote 104 It was this constitution that the Declaration sought to clarify, and to which Richardson referred when he stated that “there was a Constitution, drawn from the laws of Nature, and ratified by the laws of God, existing in the spirit of English laws.”Footnote 105 William Lovett, the author of the People's Charter, made the same argument in 1840: “From reading and reflection I am led to conceive that there are certain great constitutional boundaries which ought to be as sacred from the innovation of class, or the infringements of law, as if England had a written constitution.”Footnote 106
This argument implied, first, that there were “constitutional rights, or fundamental laws of the State [that] Parliament itself has no right to abrogate.”Footnote 107 Secondly, there were statutes that did not adhere to the principles of the constitution. These were laws that were “partial in nature, and in their operations unjust.” Such laws, despite being enforced and obeyed, “cannot be said to form part of the constitution, which is founded on equity, and has for its chief end ‘the liberty and happiness of all its subjects.’”Footnote 108 There was, in other words, a distinction between legality and constitutionality in Chartist thought, a distinction also central to American revolutionary readings of the British constitution. Like the Chartists, the Americans contested the constitutionality of certain Acts of Parliament, most notoriously the Stamp Act of 1765. They acknowledged that the principles of the constitution were also contained in Acts of Parliament, but they argued that these Acts were nevertheless of “a nature more sacred than those which established a turnpike road.”Footnote 109
When cast in this way, Chartist constitutionalism must be understood as articulating one side of the enduring conflict within the common law tradition over whether Parliament could do as it pleased or was bound by the judgments of the common law.Footnote 110 Without a written constitution and a supreme court empowered with its sole authoritative interpretation, this conundrum needed to be resolved by judges, lawyers, philosophers, and Parliament itself.Footnote 111 Blackstone, to whom the Chartists looked for clarity, left this issue unresolved. On the one hand, he denied that human laws could subvert the law of nature and still be valid, but on the other hand, he insisted that Parliament was “absolute and without control” and could “do every thing that is not naturally impossible.”Footnote 112
In nineteenth-century Britain, it was the latter part of Blackstone's argument––that which upheld parliamentary sovereignty and legal positivism––which was the most influential.Footnote 113 At the time that it emerged, however, Blackstone's depiction of absolute parliamentary sovereignty was far from uncontroversial. The American revolutionaries, along with British radicals such as James Burgh and Richard Price, rejected Blackstone's “absurd” conception of absolute parliamentary sovereignty, while Paine notoriously responded by arguing that Britain, in fact, had no constitution at all.Footnote 114 Indeed, according to Gordon Wood, Blackstone's model was “the single most important abstraction of politics in the entire [American] Revolutionary era.”Footnote 115 This claim is supported by a citation count of Revolutionary-era pamphlets that found that Blackstone was the second most quoted figure after Montesquieu––who was entangled in the tug of war between federalist and anti-federalists on the viability of large republics.Footnote 116
Instead of rejecting Blackstone, Chartists simply cited him selectively. Passages from the Commentaries that upheld the inviolability of the law of nature were freely circulated. Those that articulated the notion of Parliamentary sovereignty were either passed over or unknown. It was, after all, very unlikely that many Chartists read the whole of the Commentaries. Instead, they relied on the radical press, and popular writers such as Cobbett, who had no interest in printing passages that contradicted their position.Footnote 117 Despite their widespread use of his authority, the Chartists never celebrated Blackstone as a radical hero.Footnote 118 Indeed, part of Blackstone's appeal lay in the fact that even he, “Tory though he was,” was “compelled to admit that all government to be founded on the assent of the people.”Footnote 119
There was, of course, another way that Chartists sought to control Parliament: namely, the establishment of a representative government based on proposals of the People's Charter. This proposition rested, in part, on the firm conviction that only a legislature controlled by the people could be restrained from exercising arbitrary power against the people. This article has argued that alongside this institutional fix to the problem of Parliamentary sovereignty was a vision of British constitution that embodied tenets of fundamental law. Parliament, then, was to be restrained not only from within by democratic institutions, but also from above.
The Chartists, however, pushed their interpretation of the common law substantially further to unify these two aspects of their constitutionalism. For it was also commonly asserted that for statutes to be considered constitutional, they must have been introduced by a democratic Parliament.Footnote 120 Dr. John Taylor, when introducing the Declaration to the Convention, rested its significance on exactly this point, claiming that “If the Document were well founded every law and every Act of Parliament that had been passed since the people were deprived of Universal Suffrage were illegal, and need not, or indeed ought not, to be obeyed.”Footnote 121 The Charter newspaper likewise argued that “universal suffrage, as founded upon the individual inherent right of every freeman, was the main and prominent feature of the constitution of England,” and its denial meant that there was “no moral obligation on the part of Englishmen … to obey the laws made by Parliament as present constituted.”Footnote 122 Lovett explained the same point in an address to the middle classes in 1848, where he argued that the “equal right of every member of the community is paramount and stands superior to all laws, customs, forms, or ancient usage.” Thus, it was clear that “all political laws and institutions are evidently to protect the inalienable rights of the whole people,” and those who confined the organs of government to “any particular order, class, or portion of society” were “violators of the laws of God, and despotic usurpers of the rights of man.”Footnote 123 It was for the same reason that O'Connor called the Convention “the fountainhead of law,” and why Chartists such as William Barnett of Macclesfield could proclaim that they “owe the British Government no allegiance but what I am obliged to give it. I declare, that I will obey the Convention; nor death nor hell shall prevent me from being obedient to them. They are my government. I had a hand in chusing them.”Footnote 124 The Chartist constitution, therefore, embodied not only a narrative of lost liberties but also a powerful intellectual synergy between the laws of England, the laws nature, and the sovereign will of the people.
Conclusion
After they had cut their political ties with Britain, the authors of the American Constitution ensured that there could be no further confusion regarding the ultimate location of sovereignty. Whether the Chartists would have produced their own written constitution in a post-Charter society can only be the subject of conjecture. What is clearer, however, is that Chartists drew on the same set of ideas as the Americans. Like the American Revolution two generations before, Chartism was a reaction to the exercise of parliamentary sovereignty. And, like the Americans, Chartists drew on a sophisticated interpretation of the common-law tradition, from which they argued that there were fundamental limits beyond which no power––parliamentary, monarchical, democratic, or a mixture of the three––must reach. The Chartists, therefore, serve as a timely reminder of a popular tradition in Britain that did not accept the rhetoric of the unwritten constitution, nor its system of absolute Parliamentary sovereignty.
Although the focus of this article has been primarily on Chartist ideas, a more general aim has been to move towards a comparative approach to British constitutionalism. Building on the shared basis of American and Chartist constitutionalisms outlined here, further work is needed to investigate the synergies between the popular ideas about the constitution in contemporary America and the Chartist movement, which could then be linked to broader attitudes in the wider “Anglo-World.”Footnote 125 Beyond the English-speaking world, there is also a rich vein of comparative research to be carried out on the popular constitutionalisms of Europe and Latin America.Footnote 126 The most obvious opportunity for the former in the Chartist period were the 1848 Revolutions and their aftermath, when London became the “asylum of nations” and emigres rubbed shoulders and collaborated with Chartists.Footnote 127 However, the revolutionary wave of 1830, which galvanized the reform movement in Britain, should also be considered.Footnote 128 Moreover, the collaboration between British and Europeans migrants in the United States ought also to be explored. By taking such an approach, we not only establish valuable transnational connections but also open up new questions and perspectives regarding Britain's indigenous constitutional tradition. We might also ensure that Britain's peculiar, but not isolated, constitutional tradition takes its rightful place in our ever-expanding knowledge of the age of constitutions.
