Part 2 — Part II. Essays Of Representative Government In England, From The Conquest Till The Reign Of The Tudors. (continued 4)

Forms Of Borough Elections.

Until the reign of Henry IV., we do not find any law respecting the forms of election. In proportion as the elections became important, the sheriffs, profiting by the absence of all forms, took the matter into their own hands, and managed it agreeably to their own will. The law to which I refer was passed in order to prevent these abuses. Here, as everywhere, the organization of sureties took place long after the recognition and exercise of rights.

Lecture XV.

Philosophical examination of the electoral system in England in the fourteenth century. The system was the natural result of facts. Who were the electors? Four principles which determine the solution of this question.

Character Of The English Electoral System.

The facts adduced in my previous lecture, prove that the electoral system of England in the fourteenth century was determined by no philosophical combination, by no general intention. This system arose naturally and spontaneously, out of facts. Its study is therefore more curious and interesting: modern times are full of science and artifice; institutions do not now become developed with simplicity and freedom; under the pretext of giving them regularity, things are distorted, to suit some particular interest, or to accommodate a theory. Nothing of this nature occurred in the formation of the British Parliament; science did not then exist, and cunning was unnecessary. The House of Commons was not of sufficient importance for the executive to be much disturbed about its origin; the office of member for a county or borough was not enough sought after to induce different interests and parties to direct all their instruments of warfare and stratagems of policy to this end. Representatives of the country were required, who were to be chosen by the method of election—but this election had no occasion to adapt itself to a theory, or to be false in any way. In such a state of society, the electoral system might be vicious and incomplete in a thousand ways; its forms might be irregular and destitute of all needful guarantees, but its general principles would be natural and sound. These principles are what I propose to seek after, and to bring to light, in the present Lectures. They were neither known or thought of in the fourteenth century, but they exist in facts; for there is a reason for every fact, and all are subject to certain laws. Before entering upon the ancient English electoral system, singly and in itself, we should first consider it in its relations to society in general, to the powers by which it was ruled, and to the liberties which it enjoyed.

Modern Political Science.

In the present day, political science has rarely considered questions in this point of view, though it is the first and most important of all; it has operated on society and its government by a process of dissection; it has taken all powers and rights one by one, and has endeavoured to define each separately, and with regard to itself alone; seeking first completely to disjoin them from one another, and then to make them to proceed together, confining each strictly to its own sphere. In this manner have we seen enumerated the legislative power, the executive power, the electoral power, the judicial power, and the administrative power, and every effort of science has been exerted to make these different powers co-exist, while maintaining among them a rigorous distinction, and enjoining upon them never to fall into confusion, nor even to assimilate their offices and action. The same system has been applied to the rights and liberties of citizens. It is easy here to discern the triumph of the fondness for analysis which characterized the last century. But analysis is a method of study, not of creation. The spirit of analysis is scientific, but never political. In politics, whether dealing with rights or powers, the object is to create real vital forces, capable either of enforcing obedience or resisting oppression. This can never be attained by analysis; for, in reality, actual life is a very complicated matter, requiring the union and amalgamation of a multitude of different elements, each modified and sustained by the others. Analysis elucidates and separates into parts, but never constructs. This truth is demonstrated by the political history of our own time. All these powers and rights, so carefully enumerated and distinguished by science, so narrowly enclosed within specified limits, were found in the time of action to be destitute of consistency, energy, and reality. It was decreed that the legislative power should be absolutely separated from the executive power, the judicial power from the administrative, the municipal from the electoral power: liberties and rights have been isolated and dissected just in the same way as powers; and ere long all these rights and powers, incapable of existence and action in their isolated condition, have become centralized or lost in the hand of an individual or collective despotism, which alone was powerful and real, because it alone was other than a theoretic design or a scientific conception.

It may be fearlessly affirmed that rights, like public powers, will never regain reality and energy until they escape from this pretended science, which, under the pretext of classifying, enervates and nullifies them; until, united by positive ties, they mutually rest on one another, and coalesce to bring about the same results. Doubtless, the great analytical labour performed in our own time will not prove fruitless; many well grounded distinctions and necessary limitations will be maintained; all powers will not again fall into general confusion, nor will all rights become concentrated. There is some truth and usefulness in the results of the social dissection which has been performed; but if it were to be perpetuated, if rights and powers were to remain in the state of isolation and dissolution in which science has placed them at the present day, we should never possess either government or freedom.

Object Of The British Parliament.

It is very evident that nothing of this kind occurred at the period of the formation of the British Parliament. Politics did not wear so scientific a character, nor lay claim to such consideration, as at present. It was necessary to summon together the principal men in the kingdom—merchants, landowners, and others—that they might assist in particular public business. But this was never imagined to be the creation of a new right, or of a new power. Established rights and existing powers were called upon to exercise this new function, and to appear under this new form. The freeholders, that is to say, every free and veritable landowner, used to assemble in the county-courts, to administer justice and to treat together of common interests; and these county-courts were charged with the nomination of representatives. In towns of any importance, the citizens, under forms more or less liberal, regulated their own affairs, chose their own magistrates, and exercised in common certain rights and powers; and these municipal corporations were required to send members to Parliament.

Combination Of Public Rights.

Thus, the assemblies which we now designate electoral colleges were never at that period, as they now are, special and isolated assemblies, invested with a temporary duty, and in all other respects unconnected with the administration of the country. County courts and municipal corporations, which were already firmly planted and established, and possessed inherent strength, were constituted into electoral colleges. Thus the electoral system from its origin was united with every right and institution, and with almost every local and real power. It was the extension and development of existing liberties, a powerful force added to other forces previously in action and exercising government over other interests. It was not that in one place there were merely electors, in another administrators, and elsewhere judges; but there was a body of citizens who participated in the administration of local affairs, and in rendering justice; and who elected deputies for the transaction of general business. It is easily understood that,—being thus deeply rooted in the community at large, and closely united to all other powers—the electoral power (to employ the language of the present day) was defended from every vicissitude through which we have seen it pass, when attempts have been made to establish it, by itself, in some particular aspect or combination.

This then is the first characteristic of the electoral system which occupies our attention. We need not hesitate to elevate this characteristic into a principle, and to assert that where it is not met with, election, that is to say, representative government itself, will be either powerless or harassed by continual storms.

It is an error in modern politics immoderately to fear power, whatever may be its form or situation. It is divided and subdivided infinitesimally, until it no longer exists, so to speak, except as powder. This is not the way to establish liberty. Liberty cannot exist except by the possession of rights, and rights are worthless if they are not themselves powers—vital and strongly constituted powers. Placing right on one side and power on the other is not constituting a free government, but establishing a permanent tyranny, sometimes under the name of despotism, and sometimes under that of revolution; the problem is to place power everywhere in the hands of right, which can only be done by organizing or accepting at once, in the very centre of the government, and in every stage of its action, authority and resistance. Now resistance is only real and effectual when capable on all occasions of opposition to authority, when authority is compelled to treat with it at all times, to conquer or to yield. What then is the electoral right or power, if so it is called, when isolated from every other power? Its exercise is transient and infrequent; it is the crisis of a day imposed upon actual authority, which may, it is true, be defeated, but which, if it escapes, is afterwards perfectly free, and continues its course without the least obstruction, or sleeps in blind security. If, on the other hand, the electoral right is supported by other rights of more direct and frequent occurrence, if the electoral system is closely interwoven with the whole government, if the same citizens who have nominated the members, interfere in the affairs of the country under other forms but by the same title, if the central authority needs on other occasions their assent and support, if it finds them elsewhere also grouped and united for the exercise of other functions of power, then all rights serve as guarantees to one another; the electoral system is no longer suspended in air, and it becomes difficult to violate it in principle, or to elude it in its consequences.

Independence Of Public Rights.

It is impossible to doubt that to this close union of electoral rights, with a multitude of other public and local rights, the electoral system is indebted in England for its strength and permanence. One fact among a thousand others will prove this. When the central power, finding itself threatened by the elections, has endeavoured to rid itself of their influence, it has been compelled to withdraw from the towns and corporations, their charters and liberties. Without this nothing could have been done. But by this also, everything was attacked, and liberty and right being everywhere emperilled, the nation put forth its efforts not only to re-establish a House of Commons, but also to regain a multitude of other rights which had no reference to the election of representatives. It is the secret of good constitutional legislation, thus to unite all rights with each other in such a manner that it is impossible to weaken any one of them without endangering all.

This characteristic of the British electoral system has also produced, in regard to the elections themselves, other consequences no less felicitous, which I shall presently indicate. I shall now consider this system in itself, in its interior organization.

Two Classes Of Electors.

All the elements and laws of every electoral system resolve themselves into these two questions:

I. In whom are the electoral rights vested? that is to say, who are the electors? II. How are these rights exercised? that is to say, what are the modes of procedure and the forms of election?

I wish to bring together in succession under these two questions, all the facts which relate thereto in the electoral system in England, in the fourteenth century, and to examine what general principles are contained in these facts.

And first, who were the electors? There were two classes of electors, in the same manner as there were two kinds of elections—those for counties and those for boroughs. This classification was not the result of a systematic combination nor of any previous intention: it was the expression of a fact.

Originally the knights, and a little later, the freeholders, alone formed the political nation, and alone possessed political rights. All enjoyed the same right of assisting at the court or council of their lord; politically, therefore, they were equal. When the towns had acquired sufficient importance to assist the central power when needful, and strength enough to resist it if occasion required, then inhabitants became citizens. A new nation truly then entered the state. But in entering there, it remained distinct from that by which it was preceded. The representatives of boroughs never deliberated with those of counties. Each of these two classes treated with the government of those affairs which interested itself, and consented on its own account to the taxes which weighed on itself alone. Originally there was no more coalition between the representatives than between the electors: the distinction was complete. It cannot be said that there was inequality, for there was no room for comparison. They were simply two different societies represented by their deputies to the same government; and the difference of the representation arose from no other principle than the real and primitive difference between the two societies.

Right Derived From Capacity.

Now if each of these societies is considered singly and in itself, an equality of political rights will be found among the citizens called to enjoy them. As, in the counties, all the freeholders had the same right to participate in the election, so, in the towns, every member of the corporation to which a charter had been granted shared in the election of their representatives.

Thus the variety of classes existing in society was reproduced in the representation. But, on the one hand, the different classes were completely independent of one another: the knights of the shire did not tax the citizens, nor the citizens the knights of the shire; much less did either take part in the other's elections. On the other hand, the principle of the equality of right prevailed in each class, among the citizens summoned to share in the election.

There is nothing, then, that can be deduced from this in favour of an inequality among men called by virtue of the same principle to take part in a like action. Such an inequality never existed in the electoral administration of England in the fourteenth century. The difference that existed was derived from society itself, and was continued even to the very centre of representation, which did not present a more uniform whole than society itself. The true, the sole general principle which is manifested in the distribution of electoral rights as it then existed in England, is this, that right is derived from, and belongs to, capacity. This requires some explanation.

What Is Electoral Capacity?

It is beyond doubt that, at this period, setting aside the chief barons whose personal importance was such that it was necessary to treat with each of them individually, the freeholders, the clergy, and the burgesses of certain towns, could alone act as citizens. Those not comprised in one or other of these classes were chiefly poor husbandmen, labouring on subordinate and precarious property. They included all men invested with real independence, free to dispose of their person and wealth, and in a position to rise to some ideas of social interest. This it is which constitutes political capacity. This capacity varies according to time and place; the same degree of fortune and enlightenment is not everywhere and always sufficient to confer it, but its elements are constantly the same. It exists wherever we meet with the conditions, whether material or moral, of that degree of independence and intellectual development which enables a man freely and reasonably to accomplish the political act he is required to perform. Assuredly, considering the masses, as they should be considered in such a matter, these conditions are not met with in England in the fourteenth century, elsewhere than among the freeholders, the clergy, and the burgesses of the chief towns. Beyond these classes nothing is found but almost servile dependence and brutal ignorance. In summoning these classes, then, to join in the election, the electoral system summoned every capable citizen. It was derived, therefore, from the principle that capacity confers right; and among citizens whose capacity was recognized, no inequality was established.

Thus neither the sovereignty of the majority nor universal suffrage, were originally the basis of the British electoral system. Where capacity ceased, limitation of right was established. Within this limit the right was equal in all.

It is easy to prove that this is the sole principle on which it is possible to found a national and true electoral system. Let us for the moment forget facts, and consider the question from a purely philosophical point of view.

What motive has assigned in all times and countries a fixed age at which a man is declared to have attained his majority, that is to say, is considered free to manage his own affairs according to his own will? This appointment is nothing more than the declaration of the general fact, that, at a certain age, man is capable of acting, freely and reasonably, in the sphere of his individual interests. Is this declaration arbitrary? No, for if the period of his majority were fixed at ten years or at forty, the law would evidently be absurd; it would assume the presence of capacity where it did not exist, or else would not recognize it where it did exist—that is to say, it would confer or withhold the right wrongfully.

It is capacity, then, that confers right; and capacity is a fact independent of law, which law cannot create or destroy at will, but which it ought to endeavour to recognize with precision, that it may at the same time recognize the right which flows from it. And why does capacity confer right? because in reason, and reason alone, is right inherent. Capacity is nothing else than the faculty of acting in accordance with reason.

What is true of the individual considered in relation to his personal interests, is true also of the citizen in relation to social interests. Here, also, capacity confers right. Here, also, right cannot be refused to capacity without injustice. Here, also, capacity is a fact which the law, if it be just, asserts and distinguishes, to attach thereto the right.

This is the only principle in virtue of which the limitation of electoral rights can be reasonably assigned, and it was this which, without general intention or philosophic views, the nature of things and good sense caused to prevail in England at the end of the thirteenth century.

This principle equally repels the admission of the incapable, which would give dominion to the majority, that is, to material force; and would lead to the exclusion of some portion of the capable citizens, which would be an injustice; and to inequality between capacities, of which the least is declared sufficient, which would institute privilege.

Exterior Signs Of Electoral Capacity.

This principle once laid down, whether by the enlightened intention of the legislator, or by the simple force of things, it becomes necessary to put it in practice, that is, to seek and recognize in society those capacities which confer rights. By what exterior signs, susceptible of determination by law, can this capacity be recognized? this is the second enquiry which presents itself when the question is to fix the limit of electoral rights.

Evidently, we can only proceed here upon assumptions, and those of a general character. The capacity of acting freely and reasonably for the promotion of social interests, is revealed by no more distinct signs than any other internal disposition. Besides, the law operates on the masses; its decisions will necessarily be inexact, and yet must be rigorous. In their application to individuals they will often assume capacity where it is not, and will not in all instances discern it where it is. This is the imperfection of human science; the endeavour of the wise is to restrict this imperfection within its narrowest limits.

Legal Signs Of Electoral Capacity.

The electoral system of England was less faulty, in this respect, at its commencement, than it has since become. It is very probable that, in the fourteenth century, all political capacity was almost entirely contained in the classes of the freeholders, the clergy, and the burgesses of the important towns. This kind of qualification corresponded, then, very nearly with the true external signs of capacity. It may even be said that if the representative system had then possessed all its energy, if the assembly of representatives had had power and importance to become the principal spring of government, and the object of individual ambition, it would very soon have been discovered that the legal conditions of capacity included a multitude of individuals in whom capacity did not truly exist. It was because many of those who possessed the right of sharing in elections took no part in them that the inconvenience of so much latitude was not at first experienced. The principle remained intact because it did not bear all its fruits. When the House of Commons occupied a higher place in the State, it became necessary to restrict the electoral right by requiring the freeholders themselves to possess an annual income of forty shillings. The action of Parliament in the government, and by consequence the importance of electoral rights, far surpassed the intelligence and independence of many of the men to whom ancient custom had accorded them. Thence arose the limitation established by the Parliament under Henry IV. Since that period, the progress of society and the changes which have occurred in the condition of property and industry, have altered in this respect the exactness, and therefore the excellence, of the electoral system. The legal signs of electoral capacity remain the same as to right, but, in fact, they have changed. Formerly, the freeholders were the only landowners who were truly free and capable of exercising political rights; the copyholders were then little better than villani: this has long ceased to be the case; although the legal distinction still subsists, it is merely nominal: copyholds are properties as free, as secured, and as fully hereditary as freeholds. The title of freeholder is now no longer, as formerly, the only one which designates a landowner capable of exercising political rights. The law, in its description of the external characters of electoral capacity, no longer corresponds really and truly with social facts. This inconvenience is not very great in practice, because there are few copyholders of any importance who do not possess a freehold of forty shillings rent.

It is however real, for it maintains a distinction between properties as to electoral rights, which is not founded upon any real difference between the nature of the properties, and the capacity of their possessors. The system has become much more vicious as regards electoral rights in boroughs. Here the external signs by which the law pretends to recognize capacity, are become, in many instances, utterly false. The importance of particular towns, and the material or intellectual development of their inhabitants, was originally the cause of their investiture with electoral rights. The capacity was there; the right followed. Now the principle has disappeared; there are some boroughs destitute of importance, the inhabitants of which possess neither wealth nor independence; capacity is no longer there, but nevertheless the right continues still. It might be supposed that the name of the borough, its site, or its walls, are the signs of an electoral capacity which ought to reside there for ever,—that the privilege appertained to the stones. On the other hand there are other towns, which in the fourteenth century would not have failed to obtain their electoral rights, because in effect the capacities of their citizens would have been recognized, that do not yet possess them.

Thus a principle, equitable at first, has ceased to be so, because attempts have been made to arrest the progress of its effects; or rather the principle itself has perished, and a great part of the electoral system of England is nothing more than a violation of it.

Vicissitudes Of Electoral Capacity.

By this it may be seen that, if the principle which attaches right to capacity in the matter of election, is universal in its nature, and susceptible of constant application, the conditions of this capacity and the external signs by which it is to be recognized are essentially variable, and can never be restricted to the terms of a law without endangering the existence of the principle itself. The vicissitudes of electoral rights, even in the earliest time of the existence of Parliament, demonstrate this. Political rights belonged at first to the freeholders alone. Who could reasonably have sought deputies and electors in those devastated boroughs, abandoned for the most part by their ancient inhabitants, peopled only by a few poor families, whose condition and ideas were not elevated above those of the most miserable peasants?

No Permanent Test Of Electoral Capacity.

Some towns rose again and became repeopled; commerce brought with it wealth, and wealth procured social importance, and the development of mind. Representatives should emanate from these bodies; for there were certainly electors. New capacities form and declare themselves by new symptoms. At the same time, or soon after, the number of freeholders increases by the division of fiefs, many among them fall to a much lower condition than that of the ancient freeholders, and no longer possess the same independence. Will they preserve the same rights when their capacity is no longer the same? no, necessity makes each to know his value; the mere title of freeholder is no longer a correct sign of electoral capacity. Another is sought, and the condition of forty shillings rent enters into the laws. Thus, without any violation, and even by the authority of the principle, the conditions and signs of electoral capacity vary according to the real state of society. It is only when this portion of the electoral system becomes invariable that the principle will be violated.

It would then be vain and dangerous to pretend to regulate, beforehand and for ever, this part of the electoral system of a free people. The determination of the conditions of capacity and that of the external characteristics which reveal it, possess, by the very nature of things, no universal or permanent character. And not only is it unnecessary to endeavour to fix them, but the laws should oppose any unchangeable prescription regarding them. The more numerous and flexible the legal characteristics of electoral capacity, the less need this danger be dreaded. If, for example, the land-tax was regulated and fixed once for all, as it is to be desired that it may be, this tax alone would be an incorrect sign of electoral capacity; for it would not follow the vicissitudes of property: it would enfeoff the land itself with the right of election; the rent would be a better indication, because it would be more pliable. If, instead of attributing electoral rights by name and for ever to a particular borough, the English laws had conferred them upon every town whose population reached a certain limit, or the revenue from which attained a certain amount, the representation of boroughs, instead of becoming corrupt, would have followed the changes and progress of true political capacity. We could multiply these examples, and prove in a thousand ways that it is better neither to adopt any one legal sign of electoral capacity, nor to place this sign beyond the reach of the vicissitudes of society.

General Conclusions.

In summing up, we may deduce, from our examination of the electoral system of England in the fourteenth century, these three conclusions:

I. The right ought to be coextensive with the capability of judicious election, for it is its source. II. The conditions of electoral capacity should vary according to time, place, the internal state of society, public intelligence, &c. III. The external characteristics prescribed by the laws, as declaring the accomplishment of the conditions of electoral capacity, should neither be utterly immutable nor derived entirely from purely material facts.

Lecture XVI.

Subject of the lecture. Continuation of the philosophical examination of the electoral system in England in the fourteenth century. Characteristics of the elections. Examination of the principle of direct or indirect election.

Forms Of Election.

I now pass to the second of the great questions to which every electoral system gives rise. What are the proceedings and forms of the election? In this question many others are comprised. These may be divided into two classes: the one class relating to the manner of assembling the electors; the other, to their mode of operation when assembled.

The close union of the electoral system with the exercise of other rights and political powers, has been productive in England of extensive and very beneficial consequences with regard to the mode of collecting the electors together.

Originally the election of county representatives required no special and extraordinary convocation of the electors. At appointed times, they repaired to the county-court to fulfil the functions with which they were charged, and on these occasions they elected their representatives. The first writs addressed to the sheriffs set forth: Quod eligi facias in proximo comitatu, "you will elect in the next county-court."

When the importance of the House of Commons had imparted a corresponding importance to the election of its members, and the necessity of preventing the abuses arising from elections made, so to speak, by chance, and without any one receiving special notice thereof, had become felt, the election was announced throughout the country by a proclamation summoning the attendance of all the electors and indicating the time and place of the convocation of Parliament. The election thus became a special and solemn act; but was always conducted in the county-court, and at one of its periodic meetings.

The Object Of Election.

Ultimately, by the lapse of time, the changes of the judicial system, and the development of every institution, the county-courts ceased to retain in England that position which they anciently occupied. Their jurisdiction is now rare and very limited; the greater part of the freeholders never attend them; nor are they of any considerable political importance. At the present day the sole important object of any assembly of freeholders in these courts is the election of representatives, but the circumscriptions remain the same: frequent relations still exist among the freeholders of the county; the county-court is still their centre: it is now the electoral college, and that is its sole important character; but the electoral college is still the ancient county-court.

The great political result of all these facts is this, that the election of representatives has always been, and still is, not the work of an assembly of men extraordinarily and arbitrarily convened for that purpose, among whom no other tie subsists, and who possess no regular and habitual common interests, but the fruit of ancient relations, of constant and tried influences among men otherwise united in the transaction and possession of common affairs, functions, rights, and interests. In examining the question in itself, we shall very soon become convinced that this is the only way to insure veracity in elections, and suitableness and authority in the elected representatives.

The object of election is evidently to obtain the most capable and best accredited men in the country. It is a plan for discovering and bringing to light the true, the legitimate aristocracy, which is freely accepted by the masses over whom its power is to be exercised. To attain this end it is not sufficient to summon the electors together and to say to them, "Choose whom you will;" but they should have the opportunity of understanding thoroughly what they are about, and of concerting together how to do it. If they do not know each other, and are equally unacquainted with the men who solicit their suffrages, the object is evidently defeated. You will have elections which will result neither from the free choice nor the actual wishes of the electors.

Convocation Of Electors.

Election in its nature is a sudden act which does not leave much room for deliberation. If this act is not linked with the habits and previous doings of the electors, if it is not in some sort the result of long anterior deliberation, and the expression of their habitual opinion, it will be too easy to take the real wish of the electors by surprise, or to induce them to listen only to the passion of the moment; and the election will thus be deficient either in sincerity or in rationality. If, on the contrary, the men who have met to elect a representative have long been united by common interests; if they are accustomed to conduct their affairs among themselves; if the election, instead of taking them out of the habitual sphere in which their lives are passed, their activity displayed, and their thoughts exchanged, only assembles them at the centre of that sphere, to obtain the manifestation, the summary of their opinions, their wishes and the natural influence which they exercise over each other; then the election can, and generally will be, both rational and sincere.

The whole of that part of the electoral system which relates to the assembling of the electors ought, then, to be founded upon respect for natural influences and relations. The election should assemble the electors together at that centre towards which they are habitually attracted by their other interests. Well-tried and freely accepted influences constitute true and legitimate society among men. Far from dreading them, in them alone should the real desire of society be sought. Every method of uniting electors which annuls or destroys these influences, falsifies the elections, and makes them run counter to their intended object: the less the electoral assembly is extraordinary, the more will it be adapted to the regular and constant existence of those who compose it, and the better will it attain its legitimate end. On these terms only can there be electoral colleges that do what they wish, and know what they are doing; on these terms only can there be representatives who exercise over the electors a solid and salutary influence.

The maintenance of natural influences, and thereby the sincerity of elections, has not been the only good effect of the primitive identity of the electoral assemblies and the county-courts.

Electoral Districts.

These courts being the centre of a multitude of administrative, judicial, or other interests, presided over by the interested persons themselves, it was impossible that the boundaries of the district to which they related could be very extensive; as much inconvenience would thereby have resulted to the men who frequently repaired thither. The division of England into counties was not a systematic performance, and it presents some striking irregularities. But the force of events prevented most of the counties from including a very extended territory. This advantage is retained in the electoral system. The connections and ideas of the great majority of citizens do not stretch beyond a certain material sphere: and it is only within the limits of this sphere that they are really conversant with affairs, and act upon their own knowledge. If the election is at too great a distance from them, they cease to be enlightened and free agents, and become tools. Now, since it is of the will and judgment of the citizens that the choice is required, it is absurd to withhold from them, at the same time, the necessary conditions of reason and liberty. There is always, then, a limit beyond which the extent of an electoral convocation should not be carried, and this limit is itself a fact, which results from the manner in which men and interests are grouped together, in the divisions and subdivisions of the country. It ought to be large enough for the election to produce representatives capable of fulfilling their public mission, and contracted enough to insure that the greater number of the citizens who take part in the election may act with discernment and freedom. If the elections were conducted in England according to hundreds, they would yield, perhaps, obscure and ignorant representatives; if by episcopal dioceses, they would in fact annul a great part of the electoral body. The material circumstance of the necessity of a distant removal is of least consequence. The moral disorder which would result from too widely extended boundaries is much more serious.

Further; the extension of political rights is no less interested in this than the excellence of the results of the election. It is desirable to enlarge the sphere of these rights, as far as it is admitted by the imperious condition of capacity. Now, capacity depends upon a multitude of causes. A man perfectly capable of prudent choice within a radius of five miles from his dwelling, becomes absolutely incapable of doing so if the radius be extended to twenty miles: in the first case, he had the full use of his reason and freedom; in the second, he loses it. If, then, you would judiciously multiply the number of the electors, do not place the electoral centre too far from the points of circumference from whence some will have to repair thither. In all this we must proceed to some extent upon supposition, and general results alone are sought; but the principle is invariably the same. The election must be made by electors capable of choosing wisely, and must supply in those who are elected, men capable of thoroughly comprehending the interests upon which they will have to administrate. These are the two requirements, between which the limits of electoral boundaries should be sought, subject always to the condition of never determining these boundaries in an arbitrary way, so as to break through the habits, and destroy the natural and permanent state of society. Generally speaking, the division into counties formerly attained this twofold object in England.

The boundaries being defined, in accordance with the natural grouping of the citizens, and the electors being assembled, what is required of them?

Number Of Representatives.

Custom, and no standard derived from population, wealth, or any other cause, has ordained in England, that two members only should be returned from each district, with the exception of a very few places. This custom probably derives its origin from the impossibility which formerly existed of finding in the boroughs, and even in the counties, a greater number of men able and willing to undertake a mission then very little sought after. It has been seen that on several occasions three or four knights were required from the county-courts. The number was very soon reduced to two, and this fact has become the general law. Whatever may be its historic principle, this fact contains a rational principle, viz., that the election is neither sound nor good, except when the number required to be elected is very small.

Action Of Party Influence.

No one has ever denied that the fundamental law of all election is this, that the electors should do what they desire, and understand what they are doing. In practice, however, this is often forgotten. It is forgotten when electors, meeting together but for a short space of time, are required to make choice of more than one or two. The great merit of election is, that it should proceed from the elector, that on his part it is a true choice, an act both of judgment and will. Beyond doubt, no extraneous will or judgment may in any case be rightfully imposed upon him; though he may always accept or reject that which is proposed to him: but this is not sufficient; the elector must be placed in such a position that his personal judgment, his own will, shall be not only free, but stimulated to display themselves in their actual character. Their exercise must be not only possible, but must not be too difficult. Now, this error is fallen into when, instead of one or two names, a whole list of names is demanded. The elector, almost always incapable of completing this list of himself and by the help of his own discernment, falls under the dominion of combinations which he suffers rather than accepts; for he does not possess the knowledge necessary for judging correctly of their whole aim and effect. Who does not know that almost every elector in such a case cannot include in his list more than one or two names that are truly known to him, and which he really desires? The choice of the remainder is made for him, and he writes them in confidence or out of complaisance. And who makes this choice? The party to which the elector belongs. Now, party influence, like every other influence, is good only so far as it is exercised upon those who can form a just opinion of it, and not submit to it blindly. The despotism of party spirit is no better than any other despotism, and all good legislation should tend to preserve citizens from its sway. Into elections, as into every other act, levity, inconsiderateness, or passion may enter: but to these dispositions the law is not bound to show respect and afford facility. It should, on the contrary, strive to prevent their having any effect; and by the process of the election itself, it should, as far as possible, secure to the citizen the exercise of his judgment as well as the independence of his will. It is not requisite to repel all influences, or to declare them illegitimate beforehand. Every election is the result of influences, and it would be folly to pretend to isolate the elector under the pretext of obtaining his unbiassed opinion and desire. This would be to forget that man is a reasonable and free being; and that reason is called to debate, and liberty to choose. The soundness of election arises precisely from the conflict of influences. The law must allow them to reach the elector, and grant them all natural means of acting upon his judgment; but it ought not to deliver him up to them defenceless. It should take certain precautions against human weakness, and the most efficacious of these precautions will be, to require nothing of the elector that he cannot perform with true spontaneity of action. The citizen being thus left to himself, all influences may act upon him: they may perhaps induce him to abandon the name that he loved for one with which he was previously unacquainted; but they will need at least to exert greater efforts to conquer his reason or to subdue his will. Now, it is right that they should be condemned to make such efforts, and that they should not be able to obtain from levity, precipitation, or ignorance alone, an assent, the effect of which is to give to the whole country an exponent whom the elector himself would not have desired had he been able, in nominating him, to make a full use of his reason.

Evils Of Hasty Elections.

When we investigate the causes which have introduced into certain countries, in the matter of election, a custom so opposed to the true interests of liberty, and which is never met with where liberty has really been introduced into the practice of political life, we perceive that it is derived, in part at least, from the evil principle on which the whole electoral system has been founded. Electoral rights have been isolated from other rights, and separately constituted; electoral assemblies have been in no way connected with other public affairs, with local administration, or with common and permanent interests. They have been made extraordinary and solemn assemblies of very brief duration. The electoral boundaries have in general been too widely extended: hence has arisen the necessity of suddenly assembling together the whole body of electors, of dismissing them almost immediately, and at the same time, of requiring from them the choice of too many representatives. In England, the poll remains open at least fifteen days for the election of one or two members. Every one gives his vote when it bests suits him. In America, the other forms are yet more mild and free. In the system which has prevailed with us, on the contrary, all is sudden and precipitate: everything is done en masse, and by masses of people whose reason and liberty are in a great measure disabled from acting, by the haste and extent of the operation. Hence also is derived the scheme of the ballot, and of an absolute majority, consequences inevitably flowing from a rapid and numerous election; whilst elsewhere, the system of a relative and long-contested plurality affords public opinion leisure to select, and freedom to manifest its choice. And hence, finally, arises the necessity of an elected bureau, which entrusts beforehand to the majority the inspection of all the electoral operations, thus casting suspicion upon the authenticity of the results. When liberty is everywhere to be found, when all rights are bound together and mutually sustained, when publicity is real and universally present, there will always be independent magistrates to whom the direction and superintendence of elections may be confided; and there is then no necessity for placing them under the influence of party spirit, in order to withdraw them from the always-suspected influence of superior authority.

Advantages Of Direct Election.

These details relate to the forms of electoral operations; but as their vices flow from the general principles which regulate them, it was necessary to point out this connection.

Direct election has been the constant practice of England; and America has adopted the same system. It has been otherwise in most of the European States in which representative government has been established in our own times. This is one of the most important facts presented to our view by the British electoral system. In this system, direct election has been the natural consequence of the idea that was then entertained regarding political rights. Not only were these rights unshared by all, but they were not even distributed systematically, or upon one general plan. They were recognized wherever the capacity of exercising them was actually to be met with. The importance of freeholders and citizens had entailed upon them the right of interference in public affairs. This intervention was their right when these affairs related to themselves. Being unable to exercise this right personally, they elected representatives. In the spirit of the time, this right of election corresponded exactly to the right that the powerful barons exercised of being represented in Parliament by delegated agents. The individual importance of a powerful baron being very great, his proxy was individual. The freeholders and citizens also possessed an individual right, but not the same importance, and they therefore had one proxy to represent many of them. But, fundamentally, the representation was founded on the same principle—the individual rights of the electors to debate on and consent to such matters as interested them.

Its Relation To Representative Government.

In this point of view, it is easy of comprehension that direct election prevailed, and that no other idea presented itself to the public mind. All indirect election, every new medium placed between Parliament and the elector, would have appeared, and would in fact have been, a diminution of the right, a weakening of the importance and political intervention of the electors.

Direct election, then, is the simple idea, the primitive and natural electoral system of representative government, when representative government is itself the spontaneous produce of its true principle,—that is to say, when political rights are derived from capacity.

In considering this mode of election under a purely philosophical point of view, and as it respects not merely the electors alone, but society in general, does it remain equally preferable to every other more artificial combination?

It is necessary to examine it first in its relation to the rational principle of representative government; and, in the second place, in its practical results.

We have in a previous lecture laid down the rational principle of representative government. In right, this principle asserts, that true sovereignty is that of justice; and that no law is legitimate if it is not conformable to justice and to truth, that is to say, to the divine law. In fact, this principle recognizes, that no man or assembly of men, in a word, no terrestrial force, is fully conscious and constantly desirous of reason, justice, and truth—the true law. Connecting this right and fact together, the inference is, that the public powers which actually exercise sovereignty ought to be constantly required and constrained on every occasion to seek after the true law, the sole source of legitimate authority.

Qualifications Of Representatives.

The object of the representative system, in its general elements as well as in all the details of its organization, is, then, to collect and concentrate all the scattered elements of reason which exist in society, and to apply it to its government.

From thence it necessarily follows that representatives ought to be the men most capable:

1. To discover, by means of their united deliberation, the law of reason, the truth which, on all occasions, the least as well as the greatest, exists, and ought to be the ground of decision; and 2. To enforce the recognition and observance, by the citizens in general, of this law when once discovered and expressed.

In order to discover and secure the men most capable of fulfilling this mission, that is to say, good representatives, it is necessary to compel those who think or profess themselves to be such, to prove their capacity, and to obtain its recognition and assertion from the men who, in their turn, are capable of forming a judgment upon it, that is to say, upon the individual capacity of any man who aspires to become a representative. Thus does legitimate power evidence itself, and it is thus that, in the fact of election, philosophically considered, this power is exercised by those who possess it, and accepted by those who recognize it.

Now, there is a certain relation, a certain tie, between the capacity of being [a good representative or otherwise], and the capacity of recognizing the man who possesses the capacity of being. This is a fact which is continually illustrated in the world. The brave man excites those to follow him who can associate themselves with his bravery. The skilful man obtains obedience from those who are capable of comprehending his skill. The wise man engages the belief of those who are capable of appreciating his knowledge. Every superiority, has a certain sphere of attraction in which it acts, and gathers around itself real inferiorities, which are, however, in a condition to feel and to accept its action.

This sphere is by no means boundless. This also is a simple, self-evident fact. The relation which connects a superiority with the inferiorities by which it is recognized, being a purely intellectual relation, cannot exist where there does not also exist a sufficient degree of knowledge and intelligence to form the connection. A man, though very fit to recognize the superiority capable of deliberating on the affairs of his commune, may be quite unfit to distinguish and point out by his vote a person who shall be capable of deliberating on the affairs of the State. There are, then, some inferiorities, destitute of all true relation with certain superiorities, and which, if they were called upon to distinguish between them, would be either unable to do so, or would arrive at a most incorrect conclusion.

The limit at which the faculty ceases of recognizing and accepting the superiority which constitutes the capacity of being a good deputy, is that at which the right of election ought to cease; for it is here that the capacity ceases of being a good elector.

Above this limit, the right of election exists only because of the actual existence of the capacity of recognizing the superior capacity that is sought. Below it, there is no right.

Philosophic Necessity Of Direct Election.

From thence, the necessity of direct election philosophically results. Evidently it is desired to obtain that which is sought. Now, that which is sought, is a good representative. Superior capacity, that of the representative, is necessarily, therefore, the dominant condition, the starting-point of the whole operation. You will obtain this superior capacity by requiring its recognition by all those capacities which, although inferior, stand in natural relation with it. If, on the contrary, you begin by electing the electors, what will be the result? you have to accomplish an operation analogous to the preceding, but the point of departure is altered, and the general condition is lowered. You take as your foundation the capacity of the elector, that is to say, a capacity inferior to that which you wish definitively to obtain; and you necessarily address yourself to capacities still more inferior and quite unfit to conduct you, even under this form, to the more elevated result at which you aim; for the capacity of the elector being only the ability to select a good representative, it would be necessary to be in a position to comprehend the latter condition in order to comprehend the former, which can never happen.

Evils Of Indirect Election.

Indirect election, therefore, considered in itself, derogates from the primitive principle as well as from the ultimate object of representative government, and debases its nature. Considered in its practical results, in facts, and independently of every general principle, this system appears equally unsatisfactory.

In the first place, we regard it as admitted, that it is desirable that the election of representatives should not be in general the work of a very small number of electors. When electoral assemblies are very limited, not only is the election deficient in that action and energy which sustain political life in society, and afterwards contribute in great measure to the power of the representative himself, but general interests, expansive ideas, and public opinions cease to be the motive and regulating power. Coteries form themselves,—in the place of political parties, personal intrigues spring up; and a struggle is established between interests, opinions, and relations, which are almost individual in their nature. The election is no less disputed, but it is less national, and its results possess the same fault.

Starting, then, from this point, that electoral assemblies ought to be sufficiently numerous to prevent individualities from obtaining such easy dominion, I seek to discover how, by indirect election, this end can reasonably be attained.

Two hypotheses alone are possible: either the territorial boundaries, within which the assembly will be formed, charged with the nomination of the electors, will be very narrow, or will be of considerable extent. In England, for example, the electors would be required from the tithings or the hundreds, which correspond very nearly to our communes and cantons. If these boundaries are very narrow, and only a very small number are required to be selected from each—two electors for example—very probably some of these electors will be of a very inferior order.

True electoral capacities are by no means equally divided among communes; one commune may possess twenty or thirty, while another contains only a few, or perhaps none at all; and this is the case with the majority. If each district is required to furnish the same, or nearly the same number of electors, great violence will be done to realities. Many of the incapable will be summoned; many who are capable will be excluded; and, finally, an electoral assembly will be constituted, but little adapted for the wise choice of representatives. If, on the contrary, each district is required to designate a number of electors proportioned to its importance, its population, and the wealth and intelligence that are concentrated in it, then, wherever the number to be chosen is considerable, there will no longer be any true choice.

It has already been shown, that elections, when they are numerous and simultaneous, lose their character. There will be lists of electors prepared by the external influence either of parties or of power, which will be adopted or rejected without discernment or freedom. In this respect experience has everywhere confirmed the previsions of reason.

If the districts summoned to name the electors possess any great extent, another alternative presents itself. Either each will be required to choose only a small number, and then the object will be defeated, for the assembly whose duty it will be to elect the representatives will be very innumerous: or a large number of electors will be required from each district, and then the inconvenience which has been already pointed out will be incurred.

Let all the possible combinations of indirect election be exhausted, and there will not be found one which can finally supply, for the election of representatives, an assembly sufficiently numerous, and formed at the same time with discernment and liberty. In this system these two results mutually exclude each other.

I proceed now to another vicious practice connected with this system, which is no less serious, than those just indicated.

The end of representative government is to bring publicly into proximity and contact the chief interests and various opinions which divide society, and dispute for supremacy, in the just confidence that from their debates will result the recognition and adoption of the laws and measures which are most suitable for the country in general. This end is only attained by the triumph of the true majority—the minority being constantly listened to with respect.

If the majority is displaced by artifice, there is falsity. If the minority is removed from the struggle beforehand, there is oppression. In either case representative government is corrupted.

All the constituent laws of this form of government have, then, two fundamental conditions to fulfil: first, to secure the manifestation and triumph of the true majority; and, secondly, to insure the intervention and unshackled endeavour of the minority.

These two conditions are as essential to the laws which regulate the mode of the election of representatives, as to those which preside over the debates of deliberative assemblies. In neither case ought there to be falsehood or tyranny.

An electoral system which would annul beforehand,—with regard to the final result of the elections, that is to say, with regard to the formation of the deliberative assembly,—the influence and participation of the minority, would destroy representative government, and would be as fatal to the majority itself as any law which, in the deliberative assembly, should condemn the minority to silence.

This, to a certain extent, is the result of indirect election,

By direct election, and supposing that the limit of electoral capacity has been reasonably fixed by law, that is to say, at the point at which true capacity actually ceases, all the citizens whose social position, fortune, or intelligence place them above this limit, are equally summoned to unite in the choice of representatives. No inquiry is made of them concerning the opinions or interests which they advocate. The result of the election will make known the true majority; but whatever that may be they will have no cause to complain: the trial will have been complete, and they will have taken their rightful part in it.

Indirect election, on the contrary, effects beforehand a thorough purgation of the electoral capacities, and eliminates a certain number, solely on account of the opinions or interests which they may hold. It intrudes into the sphere of these capacities in order to exclude a part of the minority, so as to give to the majority a factitious force, and thus to destroy the true expression of the general opinion. We should exclaim loudly against a law which should say, à priori: "All the men, or only the third or fourth part of the men, attached to such an interest or such an opinion, shall be excluded from all participation in the election of representatives, whatever may otherwise be their importance and social position."

Source Of Indirect Election.

This is precisely what is done, à posteriori, by indirect election; and thereby it introduces into representative government positive disorder, for it creates a means of tyranny for the benefit of the majority. It may even happen, and examples of this are not wanting, that indirect election, when thus employed to eliminate a portion of the natural electoral capacities, may result in turning against the majority itself, and putting it in the minority. A supposition will clearly explain this idea. If, in the fourteenth century, it had been decreed in England, that "the copyholders and villeins should unite in nominating the electors of the members of Parliament," is it not evident that their choice would have fallen on the lords whose lands they rented or cultivated by any particular title; and that the inhabitants of the towns, the citizens, would have been almost absolutely excluded from the House of Commons? Thus, this part of the nation, which had already attained so much importance, would have seen themselves deprived of the exercise of political rights by a system which urged, as its sole specious pretext, the extension of these rights to a greater number of individuals.

This is, in fact, the true source of indirect election; it is derived from the sovereignty of numbers, and from universal suffrage: and as it is impossible to reduce these two principles to practice, it is attempted to retain some shadow of their existence. The principle of representative government is violated, its nature debased, and the right of election weakened, in order that consistent adherence to an erroneous doctrine may, to all appearance, be maintained. Who can fail to see that such a system must necessarily enervate election, and that reality and energy can be preserved by the system of direct election alone? Every action, the result of which is distant and uncertain, inspires little interest; and the same men who will unitedly display great discernment and animation in the choice of their municipal officers, would give their suffrage blindly and coldly to subsequent electors whom their thoughts never follow into the future in which they interfere so little. This pretended homage to wills not sufficiently enlightened to be trusted with a greater share of influence in the choice of representatives, is at the bottom nothing but miserable quackery and lying adulation; and under a simulated extension of political rights there is concealed the restriction, mutilation, and enfeebling of these rights in the sphere in which they really exist, and in which they might be exercised in all their fulness and with complete effect.

The true way to diffuse political life in all directions, and to interest as great a number of citizens as possible in the concerns of the State, is not to make them all combine in the same acts, although they may not all be equally capable of performing them; but to confer upon them all those rights which they are capable of exercising. Rights are worth nothing unless they are full, direct, and efficacious. In place of perverting political rights by weakening them, under the pretext of giving them diffusion, let local liberties everywhere exist, guaranteed by real rights. The electoral system itself will thus become much more powerful than it could possibly be under a pretended system of universal suffrage.

Practice Of Open Voting.

The last important fact to be noticed in the electoral system of England in the fourteenth century, is open voting. Some have attempted to regard this as an absolute principle capable of constant application; but we think it ought not so to be considered. The only absolute principle in this matter is, that election should be free, and should truly display the true thoughts and real wishes of the electors. If open voting puts a serious restraint on liberty of elections and perverts their results, it ought to be abolished. Doubtless such a condition argues infirmity of liberty and timidity of morals, and proves that a portion of society is in conflict with influences which it is afraid to shake off, though it ardently desires to be rid of them. This is a melancholy fact, but it is one which liberty, rendered fruitful by time, can alone destroy. It is very true that open voting in elections, as well as in the debates of deliberative assemblies, is the natural consequence of representative government. It is quite true that there is a degree of shame attached to liberty if it claim secrecy for itself' while imposing publicity on power. That liberty which can only attack is still very feeble; for the true power of freedom consists in its bold defence and avowal of its rights. Certainly there is an ill grace in the complaints of the niggardliness and delay with which power grants rights, when concealment is necessary for the exercise of rights already possessed. But when reason is applied to practice, it regards, for some time at least, nothing besides facts; and the most imperious of all principles is necessity. To impose open voting when it would injure freedom of election would be to compromise general liberty itself, which, ere long, must necessarily establish open voting.

Electoral System Of England.

To sum up what I have said. Nearly all the fundamental principles of a free and reasonable electoral system may be discovered in the electoral system of England in the fourteenth century. Bestowal of electoral rights upon capacity; close union of electoral rights with all other rights; regard to natural influences and relations; absence of all arbitrary and factitious combinations in the formation and proceedings of electoral assemblies; prudent limitation in the number to be chosen by each assembly; direct election, and open voting; all are to be met with. These are entirely due to the decisive circumstance that the electoral system and representative government itself were in England the simple and natural result of facts, the consequence and development of real and powerful anterior liberties, which served as their basis, and guarded and nourished in their bosom the roots of the tree which is indebted to them for its growth.

By another equally decisive circumstance, this system, though so national and spontaneous in its origin, became corrupted, at least in part, and appears at the present day to require correction. Perhaps it is owing to its very power that it remains inflexible: it has only followed at a distance the vicissitudes and progress of social conditions. It now protects the remnants of those abuses against which, at first, and for a long time, it was directed; and yet the reform of these abuses, by whatever means and at whatever period it may be effected, will be the fruit of the institutions, habits, principles, and sentiments which this system has established.

Lecture XVII.

Origin of the division of the English Parliament into two Houses. Its original constitution. Reproduction of the classifications of society in the Parliament. Causes which led the representatives of counties to separate from the barons, and coalesce with the representatives of boroughs. q Effects of this coalition. Division of the Parliament into two Houses in the fourteenth century.

Division Of The English Parliament.

Our attention has hitherto been directed only to the elements of which the Parliament was composed, and to the proceedings that took place at its formation, that is to say, to the process of election: we have now to consider another question; we must enquire what were the internal and external constitution and organisation of the Parliament thus composed.

The Parliament at the beginning of the fourteenth century was not divided, as at present, into the House of Lords and the House of Commons; nor did it, on the other hand, consist of a single body. Accounts vary regarding the date at which it assumed its present form. Carte fixes it in the seventeenth year of the reign of Edward III. (1344); the authors of the Parliamentary History, in the sixth year of the same reign (1333); Mr. Hallam in the first year of the reign of Edward III. (1327), or, perhaps, even in the eighth year of the reign of Edward II. (1315).

The principal cause of this diversity of opinion is the different circumstance with which each author connects the fact of the union of county and borough members into one single assembly. This fact is deduced by some from the date of their assembling together in the same place; by others, from the period of their common deliberation; and by others again, from the union of their votes upon the same question. And as each of these circumstances occurred in one particular Parliament independently of the others, the period when Parliament first existed in its present form is carried back or forward according to the circumstance which is regarded as decisive in this respect. However this may be, it may be affirmed that the division of Parliament into two Houses,—one comprising the lords or great barons individually summoned, and the other all the elected representatives of counties and boroughs; and both these houses deliberating and voting together in all matters of business—was not completely and definitively effected, until towards the middle of the fourteenth century. It is necessary to trace the steps by which this fact was gradually accomplished. This is the only way thoroughly to comprehend its nature and its causes.

Original Constitution Of Parliament.

Originally, as we have seen, all the immediate vassals of the king had the same right of repairing to Parliament and taking part in its deliberations. Mere knights, therefore, when they repaired thither, sat, deliberated, and voted, with the great barons.

When election was substituted for this individual right in the case of the knights of shires, and only those elected by the county-courts were entitled to attend the Parliament, they still continued to be members of the class to which they had previously belonged. Although elected and deputed not only by those knights who were immediate vassals of the king, but also by all the freeholders of their county, they continued to sit, deliberate, and vote, together with the great barons who were individually summoned.

The representatives of the boroughs, on the contrary, whose presence in Parliament was a novel circumstance (which was not connected with any anterior right exercised merely under a new shape), formed a distinct assembly from their first appearance in Parliament, sitting apart, deliberating and voting on their own account, and as thoroughly separated from the knights of the shire as from the great barons.

Separate Votes Of Various Classes.

This separation is evident from the votes of Parliament at this period. At the Parliament held at Westminster under Edward I., in 1295, the earls, barons, and knights of the shire granted the king an eleventh part of their personal property, the clergy a tenth part, and the citizens and burgesses a seventh. In 1296, the former granted a twelfth part, and the latter an eighth. In 1305, the former gave a thirtieth part, and the clergy, the citizens, and burgesses a twentieth. Under Edward II., in 1308, the barons and knights granted one twentieth, the clergy a fifteenth, the citizens and burgesses a fifteenth. Under Edward III., in 1333, the knights of the shire granted a fifteenth, the same as the prelates and the nobles, and the citizens and burgesses a tenth; and yet the records of this Parliament expressly declare that the knights of the shire and the burgesses deliberated in common. In 1341, the prelates, earls, and barons, on the one hand, and the knights of the shire on the other, granted a ninth of their sheep, lambs, and fleeces; and the burgesses, a ninth of all their personal property. In 1345, the knights of the shire granted two-fifteenths, the burgesses a fifth: the lords granted nothing, but promised to follow the king in person. Thus, at this latter period, the knights of the shire no longer voted in common with the lords, but they still voted apart from the burgesses.

In 1347, the commons without distinction granted two fifteenths, to be levied in two years in the cities, the boroughs, the ancient domains of the crown, and the counties. At this period, then, the fusion of the two elements of the Commons House was complete: and it continued so ever afterwards, although a few examples are still found of special taxes, voted by the representatives of the towns and boroughs alone in the case of customs, especially in 1373.

The original separation, then, was between the representatives of the counties and those of the boroughs. The recollections of feudal law allied the former to the great barons during more that [than?] fifty years. This separation was not confined solely to voting the supplies. Everything indicates, although it is nowhere proved by written evidence, that the knights of the shire and the representatives of the boroughs did not deliberate together any more on other affairs, either legislative or otherwise, which interested only one of the two classes. When mercantile interests were in question, the king and his council discussed them solely with the representatives of the towns and boroughs. Thus, there is reason to believe that the statute entitled The Statute of Acton-Burnel, passed in 1283, was enacted in this manner on the advice of the borough representatives alone, who met for this purpose at Acton-Burnel, whilst the knights of the shire sat with the great barons at Shrewsbury, to assist at the trial of David, Prince of Wales, then a prisoner. The separation of the two classes of representatives could therefore be carried thus far, that each class may have sat in different, though neighbouring towns.

Causes Of This Separation.

When they sat in the same town, and especially at Westminster, the whole Parliament met together, most probably in the same chamber; but the great barons and knights of the shire occupied the upper end, and the borough representatives the lower part, of the chamber.

A distinction existed even among the borough members. Until the reign of Edward III., the representatives of those boroughs which formed part of the ancient domain of the crown constituted a separate class, and voted distinct supplies.

The division of Parliament, then, far from having originated in the forms which prevailed fifty years later, arose from principles altogether different. No idea then existed of truly general interests and a national representation. The particular interests which were of sufficient importance to take part in the government, intervened in it solely on their own account, and treated separately of their own affairs. Did the matter in hand relate exclusively to things in which the great barons appeared to be interested, and where the king required their assistance alone—they alone assembled and deliberated. Was the question one of modifications in the nature or mode of the transmission of feudal territorial property—the knights of the shire were summoned; and in this way the statute Quia emptores was enacted under Edward I. Were commercial interests concerned—the king treated of them with the borough representatives only. In these various cases, as in the matter of supplies, the deliberation and vote of the different classes of members of Parliament were distinct. These classes were formed in reference to their common interests, and took no part in each other's affairs: and very rarely, probably never, at this period, was there any matter of sufficiently general and common importance to all, for all to have been summoned to deliberate and vote in common.

Formation Of The Commons.

Thus the classification of society was perpetuated in the Parliament, and was the true principle of the division between the members of Parliament.

This state of things did not long continue, because the classification of society itself, in which it originated, also tended to its own effacement. The county members could not fail to separate themselves altogether from the great barons, and completely to combine with the borough representatives; and for the following reasons.

If the knights of the shire continued for some time to sit and vote with the great barons, this was merely the effect of old association, a relic of the ancient parity of their feudal position. This equality had already received a severe check by the substitution of election for individual right of presence. The cause which had led to this change continued at work; the disparity of importance and wealth between the great barons and plain knights of the shire went on increasing; the remembrance of feudal political right became weakened; and the social position of the knights of the shire daily became more different from that of the great barons. Their parliamentary position could not fail to follow the same course. All things combined to separate them more and more.

At the same time every circumstance tended to associate the representatives of the counties with those of the boroughs. They had the same origin, and appeared in Parliament by virtue of the same title—election. The tie which had attached the county elections to feudal right became progressively enfeebled. Furthermore, these two classes of deputies were alike correspondent to certain local interests. These interests were often identical or of the same nature. The inhabitants of the towns situated in a county, and the rural landowners of the county, were often engaged in the same affairs, and frequently entertained the same claims and desires. Besides, the county-courts were a common centre at which they habitually assembled together. Both the county and borough elections frequently took place in these courts. Thus, while certain causes increasingly separated the knights of the shire from the great barons, other causes approximated them more closely to the borough representatives. The analogy of social positions naturally hastened the fusion of parliamentary positions.

Present Constitution Of Parliament.

Lastly, the great barons constituted the chief council of the king. They often assembled around him in this capacity, and independently of any convocation of the elected deputies. By reason of their personal importance, they engaged in public affairs, and took part in the government in an habitual and permanent manner. The representatives of the counties and boroughs, on the contrary, interfered in the administration of public affairs only from time to time, in certain particular cases. They possessed rights and liberties, but they neither governed, nor contested with each other for the government, nor were they constantly associated in it. Their political position was in this respect the same, and was therefore very different from that of the great barons. All things tended, then, broadly to distinguish them from the latter class, and to connect them together.

The constitution of Parliament in its present form is the result of all the above causes. It was accomplished in the middle of the fourteenth century, although some instances of separation between the two elements of the House of Commons may subsequently be met with. These cases very soon disappeared and the union became complete. One fact alone remained, and that was the superiority in importance and influence of the county representatives over the representatives of boroughs, notwithstanding the habitual inferiority of their numbers. This fact, with the exception of only a few intervals, is met with throughout the whole course of the history of Parliament.

Thus was effected, on the one side, the separation of the Houses of Peers and Commons, and on the other, the union of the different elements of the House of Commons into a single assembly, composed of members exercising the same rights and voting on all occasions in common.

This is the great fact which has decided the political destiny of England. By themselves alone, the borough deputies would never have possessed sufficient power and importance to form a House of Commons capable of resisting sometimes the king, and sometimes the great barons, and of gaining an ever-increasing influence in public affairs. But the aristocracy, or rather, the feudal nation, being divided into two parts, and the new nation which was forming in the towns becoming combined with the county freeholders there, arose from the combination a competent and imposing House of Commons.

Early Importance Of The Commons.

There was a large body of the nation independent both of the king and of the great nobles. It happened also that the king could not, as in France, make use of the Commons to annihilate the political rights and privileges of the ancient feudal system, without substituting new liberties in their places. On the Continent, the enfranchisement of the Commons definitively led to absolute power. In England, a portion of the feudal class having united with the Commons, they combined to defend their liberties. On the other hand, the crown, supported by the great barons, who could not hope to set up as petty independent sovereigns in their own domains, possessed sufficient power to defend itself in its turn. The great barons consequently were obliged to rally round the throne. It is not true, though it is constantly reiterated, that the aristocracy and people have made common cause in England against the regal power, and that English liberty has arisen out of that circumstance. But it is true that the division of the feudal aristocracy having prodigiously augmented the power of the Commons, popular liberties at an early date possessed sufficient means of resistance, and the royal power received at the same time sufficient support.

Thus, considering the division of Parliament into two houses under the historic point of view, we see both how it was effected, and how favourable it has been to the establishment of popular liberty. Is this, then, all? Are this fact and its results mere accidents arising out of circumstances peculiar to England, and to the state in which society happened to be in the fourteenth century? Or is this division of legislative power into two houses a constitutional form intrinsically good, and everywhere as well founded in reason as it was, in England, in the necessities of the times? This question must be examined in order properly to appreciate the influence which this form has exercised on the development of the constitutional system in England, and rightly to understand its causes.

Lecture XVIII.

Examination of the division of the legislative power into two Houses. Diversity of ideas on this subject. Fundamental principle of the philosophic school. Source of its errors. Characteristics of the historic school. Cause of the division of the British Parliament into two Houses. Derivation of this division from the fundamental principle of representative government. Its practical merit.

Division Of The Legislative Power.

In order to judge in itself of the division of the legislative power into two Chambers, and to estimate its merit, we must first detach it from certain particular and purely local characteristics, which are not essentially inherent in it; and which have associated it in England with causes which are not in all times and places to be met with. Not a few writers have fallen into grave errors, on this and many other questions, by neglecting to take this step at the outset. Some have formed their judgment of this institution entirely from a few of the causes which led to its establishment in England in the fourteenth century; and as, generally speaking, they did not approve either of these causes or their effects, and had a bad opinion of the social condition of which they formed part, they have condemned the institution itself, appearing to believe that it was derived solely from that social condition, and could not possibly be detached from it. Others, on the contrary, struck either with the general reasons which may be urged in favour of the institution, or with the good effects which it has produced in England and elsewhere, have adopted it exactly in that particular form in which it was introduced among our neighbours by their ancient social condition, asserting that all the characteristics which it there presents are essential to it, and even constitute it. Thus, the institution has sometimes been censured on account of particular facts which accompanied its establishment and combined to produce it, and sometimes these facts and their special consequences have been adopted as principles, simply because they were associated with an institution deemed intrinsically good.

Philosophic And Historic Schools.

These two modes of judgment, both of which are equally erroneous, characterize the two schools, which may be called distinctively the philosophic school and the historic school. As this twofold method of considering political questions has warped them, sometimes in one sense and sometimes in another, it appears to me that it would be useful to offer some general observations on this subject, which may afterwards be applied to the particular question with which we are now occupied.

One idea reigns in the philosophic school—that of Right. Right is constantly taken both as its starting-point, and as its goal. But right itself requires to be investigated; before adopting it as a principle or pursuing it as an object, we must know what it is. To discover right, the philosophic school commonly confines itself to the individual. It takes hold of man, considers him isolatedly and in himself, as a rational and free being, and deduces from an examination of his nature that which it denominates his rights. Once in possession of these rights, they are advanced as a requirement of justice and reason, which ought to be applied to social facts as the sole rational and moral rule by which these facts should be judged, if judgment only be required—or instituted, if the object be to institute government.

The historic school is held in bondage by another idea—that of Fact. It does not, if possessed of any good sense, deny right: it even proposes right as its goal, but it never adopts it as its starting-point. Fact is the ground to which everything is brought; and as facts cannot be considered isolatedly, as they are all bound up together; and as the past itself is a fact with which the facts of the present are connected, it professes great respect for the past and admits right only so far as it is founded on anterior facts; or at least this school seeks to establish right, only by uniting it closely with these facts, and striving to deduce it from them. Such are the points of view, not exclusively, for that cannot be, but dominantly, of the two schools. How much is true, and how much erroneous in each? That is to say, what is there incomplete in both?

The philosophic school is correct in adopting Right not only as its end but also as its starting-point. It is right in maintaining that an institution is not good, simply because it exists or has existed, and that there are rational principles by which all institutions should be judged, and rights superior to all facts,—rights which cannot be violated unless the facts which violate them are illegitimate, although real, and even powerful.

Errors Of The Philosophic School.

But though right in standing upon this foundation, which is its principal characteristic, the philosophic school is often mistaken when it attempts to go farther. We say that it is mistaken, philosophically speaking, and independently of all ideas of application and practical danger.

Its two chief errors, in my opinion, are these:

I. Its researches after right are misdirected; and, II. It mistakes the conditions under which right can be realised.

It is not by considering man in isolation, in his single nature, and individually, that his rights may be discovered. The idea of right implies that of relation. Right can be declared only when relation is established. The fact of a connexion, of an approximation, in a word, of society, is implied in the very word right. Right originates with society. Not that society, at its origin, created right by an arbitrary convention. Just as truth exists before man becomes acquainted with it, so does right exist before it is realised in society. It is the legitimate and rational rule of society in every step of its development, and at every moment of its existence. Rules exist before their application; they would still exist even if they were never applied. Man does not make them. As a reasonable being, he is capable of discovering and understanding them. As a free being, he can either obey or violate them; but whether he be ignorant of them or knowingly violate them, their reality, so far as they are rules, that is to say, their rational and moral reality, is independent of him, superior and antecedent to his ignorance or his knowledge, to the respect or neglect with which he treats them. Laying down this principle then on the one side, that rule virtually exists before the relation or society to which it corresponds, and on the other side, that it is not manifested and declared until society is established, that is to say, that it can only be applied when society really exists, we inquire, What is this right and how can it be discovered?

Right, considered in itself, is the rule that each individual is morally bound to observe and respect in his relations with another individual; that is to say, the moral limit at which his lawful liberty is arrested and ceases in his action on that individual; or, in other words, the right of a man is the limit beyond which the will of another man cannot morally be exercised over him in the relation which unites them.

True Rule Of Social Relations.

Nothing can be more certain than that every man in society has a right to expect that this limit will be maintained and respected as regards himself by other men and by society itself. This is the primitive and unalterable right which he possesses in virtue of the dignity of his nature. If the philosophic school had confined itself to laying down this principle, it would have been perfectly correct, and would have reminded society of the true moral rule. But it has attempted to go further: it has pretended to determine, beforehand and in a general way, the exact limit in every instance in which the will of individuals over each other, or of society over individuals, ceases to be legitimate. It has not contented itself with establishing right in principle, but has considered itself capable of enumerating all social rights à priori, and of reducing them to certain general formulæ which should comprise them all, and might thus be applied to every relation to which society gives birth. By this it has been led to overlook many very positive rights, and to create many pretended rights which have no reality. If it be true, as we have laid it down, that right is the legitimate rule of a relation, it is plain that the relation must be known before the right which ought to govern it can be understood. Now social relations, whether between one man and another, or between one and several, are neither simple nor identical. They are infinitely multiplied, varied, and interwoven; and right changes with relation. An example will best explain our meaning. We will select the most simple and natural of social relations, that of the father to the child. Nobody will presume to assert that here no right exists, that is to say, that neither the father nor the child have any respective rights to be mutually observed, and that their will alone should arbitrarily regulate their reciprocal relations. In the outset, whilst the child is devoid of reason, his will has little or no right: the right belongs entirely to the will of the father, which even then is, doubtless, legitimate only so far as it is conformable to reason, but which is not and cannot be subordinate to that of the child, on which it is exercised and which it directs. In proportion as reason becomes developed in the child, the right of the father's will becomes restricted; this right is always derived from the same principle, and ought to be exercised according to the same law; but it no longer extends to the same limit, but becomes changed and narrowed day by day with the progress of the intellectual and moral development of the child, up to the age when at length the child, having become a man, finds himself in a totally different relationship to his father—a relationship in which another right holds sway, that is to say, in which the paternal right is enclosed within entirely different limits, and is no longer exercised in the same way.

If, in the most simple of social relations, the right, though immutable in its principle, suffers so many vicissitudes in its application,—if the limit at which it stops is so continually altered, according as this relation changes in nature and character—to a far greater extent will this be the case in all other social relations, which are infinitely more changeful and complicated. Every day old rights will perish; every day new ones will arise; that is to say, different applications will daily be made of the principle of right; and each occasion will vary at the limits at which the right ceases, either on one side or the other, in the innumerable relations which constitute society.

It is not, then, a simple matter to determine right, nor can it be done once for all, and according to certain general formulae. Either these formulæ must be reduced to this dominant truth, that no will, whether that of man over man, of society over the individual, or of the individual over society, ought to be exercised contrary to justice and reason—or else these formulæ are vain; that is to say, they confine themselves to expressing the principle of right, or try unsuccessfully to enumerate and regulate beforehand all its applications.

Impossibility Of Defining Rights.

In this there consists the first error of the philosophic school, that, proud of having re-established the principle of right (a matter, certainly, of immense importance), it has thenceforth esteemed itself, by continuing the same process, in a condition to recognise and define all rights; that is to say, all applications of the principle to social relations; an attempt which is most dangerous because it is impossible.

Conditions Of Realizing Right.

It is not granted to man thus to discern, beforehand and at a glance, the whole extent of the rational laws which ought to regulate the relations of men both among themselves and with society in general. Doubtless, in each of these relations and in all the vicissitudes which they undergo, there is a principle which is their legitimate rule, and which determines rights; and it is this principle which must be discovered. But it is in the relation itself, over which this principle should hold sway, that it is contained and may be discovered; it is intimately connected with the nature and object of this relation, and these are the first data that must be studied in order to arrive at a knowledge of the principle. The philosophic school almost constantly neglects this labour. Instead of applying itself to the discovery of the true rights which correspond to the various social relations, it arbitrarily constructs rights while pretending to deduce them from the general and primitive principle of right; an attempt the reverse of philosophical, for special rights are applications, not consequences logically deduced from this principle; which is perfectly exhibited in each particular case, but which does not contain within itself all the elements or all the data required for the discovery of the right in every case.