Part 2 — Part II. Essays Of Representative Government In England, From The Conquest Till The Reign Of The Tudors. (continued 5)

The second error of the philosophic school is that of mistaking the conditions under which right may be realised, that is to say, under which it may become associated with facts, so as to regulate them.

It has long been said that two powers, right and might, truth and error, good and evil, dispute the mastery of the world. What is not so often said, though it is no less true, is this—they dispute for it because they simultaneously possess it, because they co-exist in it everywhere at the same time. These two powers, so opposite in their nature, are never separated; in fact, they meet and mingle everywhere, forming by their co-existence and conflict that sort of impure and troubled unity which is the condition of man on earth; and which is reproduced in society as well as in individuals. All mundane facts bear this character: there are none that are completely devoid of truth, justice, and goodness; none that are wholly and purely right, good, or true. The simultaneous presence, and at the same time the struggle, of might and right, forms the primitive and dominant fact which is reproduced in all other facts.

Amalgamation Of Might And Right.

The philosophical school habitually loses sight of this intimate and inevitable amalgamation of might and right in all that exists and takes place upon the earth. Because these two powers are hostile, it thinks them separate. When it recognises some great violation of right in an institution, a power, or a social relation, it concludes that right is utterly absent from it; and imagines, at the same time, that if it can succeed in laying hold of this fact, and shaping and regulating it according to its own will, it will secure the undisputed sway of right in that fact. Hence the contempt, one might almost say the hatred, with which it judges and treats facts. Hence also, the violence with which it pretends to impose upon them those rules and forms which constitute right in its eyes: what regard is due to that which is only the work of might? what sacrifices are not due to that which will be the triumph of right and reason? and the firmer the minds and the more energetic the characters of these reasoners, the more will they be ruled and the further misguided by this method of viewing human things. Facts past and present do not deserve so much disdain, nor do future ones merit so much confidence. We do not here adopt the views of the sceptics, nor would we regard all facts as equally good or bad, and equally invested with or destitute of reason and right. Nothing can be more contrary to our opinion. We firmly believe in the reality and legitimacy of right, in its struggle against might, and in the utility as well as the moral obligation of sustaining right in this eternal but progressive combat. We only ask that, in this struggle, nothing may be forgotten, and nothing confounded; and that indiscriminate attacks may not be made. We ask that because a fact may contain many illegitimate elements, it is not therefore to be supposed à priori to contain nothing besides, for such is not the case. Right exists everywhere more or less, and everywhere right ought to be respected. There is also more or less falsity and incompleteness in the speculative idea which we form to ourselves of right, and there will be unjust force and violence employed in the strife in which this idea is made to prevail, and in the new facts which will result from its triumph. This is not saying that the combat ought to be suspended, or that the triumph ought not to be pursued. It is only necessary truthfully to recognise the condition of human things, and never to lose sight of it, whether the question be one of judgment or of action.

Errors Of The Philosophic School.

This is what the philosophic school can rarely consent to do. Taking right for the point at which it sets out, and also that at which it aims, it forgets that facts subsist between these two extremes—actual and existing facts, independent data; a condition which of imperative necessity must be submitted to, when the extension of right is sought after, since these facts are the very matters to which right must be applied. This school begins by neglecting one of the fundamental elements of the problem which it has to solve; it falls into reverie, and constructs imaginary facts, whilst it ought to be operating on real facts. And when compelled to quit hypotheses, and deal with realities, it becomes irritated at the obstacles which it meets, and unreasonably condemns the facts which throw them in its way. Thus, through having desired impossibilities, it is led to forget a part of that which is actually true. Society at every period swerves more or less from the general type of right; that is to say, the facts which constitute its material and moral condition are more or less regulated according to right, and also become in a greater or less degree susceptible of receiving a more absolute form, a more perfect rule, and of continually assimilating more closely to reason and truth; and this it is which must be absolutely studied and understood before passing a judgment on these facts, or endeavouring to effect their change and improvement. Perfection is the aim of human nature and of human society; perfection is the law of their existence, but imperfection is its condition. The philosophic school does not accept this condition; and is thus misled in its endeavours towards attaining perfection, and even in its own idea of the perfection to which it aspires.

Errors Of The Historic School.

The historic school possesses other characteristics, and falls into different errors. With the utmost respect for facts, it easily allows itself to be induced to attribute to them merits to which they are not entitled; to see more reason and justice, that is to say, more right, in them than they really contain, and to resist even the slightest bold attempt to judge and regulate them according to principles more conformable to general reason. It is even inclined to deny these principles, to maintain that there is no rational and invariable type of right that man can take for a guide in his efforts or his opinions: an error of great magnitude, and sufficient to place this school, philosophically considered, in a subordinate rank. What then is perfection, if there is no ideal perfection to be aimed at? What is the progress of real rights, if there is no rational right to comprehend them all? What is the human mind, if it is incapable of penetrating far beyond actual realities in its knowledge of this rational right? and how can it judge of them except by comparing them with this sublime type, which it never holds in full possession, but which it cannot deny without abnegating itself, and losing every fixed rule and guiding thread? Doubtless, facts command respect, because they are a condition, a necessity; and they deserve it, because they always contain a certain measure of right. But the judgment ought never to be enslaved by them, nor should it attribute absolute legitimacy to reality. Is it so difficult, then, to perceive that evil is evil even when it is powerful and inevitable? The historic school constantly endeavours to evade this confession. It tries to explain every institution, and to abstain from giving judgment upon them, as if explanation and judgment were not two distinct acts, which possess no right over one another. It never suffers the institution of a comparison between the real state of any society and the rational state of society in general; as if the real, or even the possible, were the limit of reason; as if, when judging, reason should be deposed, because when applied it is compelled to undergo conditions and to yield to obstacles which it cannot conquer. The historic school would be perfectly right if it confined itself to the careful study of facts, bringing to light that portion of right which they contain, and searching out the degree of perfection which they are capable of receiving, and if it restricted itself to maintaining that it is not easy to distinguish real rights, unjust to condemn facts en masse, and impossible and dangerous to neglect them altogether. But when it undertakes to legitimise facts by facts; when it refuses to apply the invariable law of justice and rational right to all, it abandons every principle, falls into a sort of absurd and shameful fatalism, and disinherits man and society of that which is most pure in their nature, most legitimate in their pretensions, and most noble in their aspirations.

Comparison Of The Two Schools.

To sum up, the philosophic school possesses the merit of everywhere acknowledging the principle of right, and adopting it as the unchangeable rule of its judgment on facts. Its errors consist in its knowledge of facts being slight, imperfect, and precipitate; and in not allowing to facts the power which is inseparable from them, and the degree of legitimacy which they always contain. The historic school is better acquainted with facts, appreciates their causes and consequences more equitably, effects a more faithful analysis of their elements, and arrives at a more exact knowledge of particular rights as well as at a more just estimate of practicable reforms. But it is deficient in general and fixed principles: its judgments fluctuate according to chance; and accordingly it almost always hesitates to come to a conclusion, and never succeeds in satisfying the mind, which the philosophic school, on the contrary, always impresses strongly, at the risk of leading it astray.

We have insisted on the distinctive characters and opposite errors of these two schools, because we meet with them unceasingly when investigating how institutions and social facts have been appreciated and understood. Of this we have given an example by indicating the two points of view under which the division of the legislative power into two Chambers has been commonly considered. The historic school approves and recommends it; but it often founds its reasons on illegitimate facts, and adheres too absolutely to the forms which this institution has assumed in the past, while it refrains from attaching itself to any rigorous and rational principle. The philosophic school has long maintained, and many of its disciples still believe, that this is an accidental and arbitrary institution, which is not founded on reason and the very nature of things.

Let us now consider this institution in itself, after having disentangled it from that which, in England, has related merely to its actual origin, and to the local circumstances in the midst of which it took its rise.

Origin Of The House Of Peers.

It is beyond doubt that the immense inequality of wealth and credit,—in a word, of power and social importance, which existed between the great barons and the other political classes of the nation, whether freeholders or burgesses, was in England the sole cause of the institution of the House of Peers. No political combination or idea of public right had anything to do with its formation. The personal importance of a certain number of individuals, in this case, created their right. Political order is necessarily the expression, the reflection, of social order. In this stage of civilisation especially, power is indisputably conveyed from society into the government. There was a House of Peers because there were men who, bearing no comparison with others, could not remain confounded with them, exercising only the same rights, and possessing no greater amount of authority.

To the same cause must be ascribed several of the leading characteristics of the House of Peers; the hereditary transmission of social importance, wealth, and power (the result of the feudal system as regards property), carried with it the inheritance of political importance. This is proved by the fact, that originally the sole hereditary peers were the barons by feudal tenure. Hereditary right did not originally belong to the barons by writ; although individually summoned to the Upper House, they exercised, when sitting there, the same rights. The judicial functions of the House of Peers also had the same source. At first they belonged to the general assembly of the direct vassals of the king. When the greater number of these vassals ceased to attend that assembly, the great barons who alone attended, continued to exercise nearly all its functions, and especially its judicial authority. Of this they continued to hold possession when the knights re-entered Parliament by means of election. Thus, a right, which originally devolved upon the general assembly of the political nation, became concentrated in the new House of Peers, at least in every case unaffected by the new jurisdictions instituted by the king. On examining in all its details the political part now performed in England by the House of Peers, it will be found that a great number of its attributes are only the results of ancient facts, that they are not inherent in the institution itself, but solely derived from the social position of the great barons; and at the same time it will be perceived that all these facts are connected with the general and primitive fact of the great inequality then subsisting between the great barons and the citizens.

Advantages Of A House Of Peers.

As this inequality really existed, and could not fail to re-appear in the government, it was very fortunate for England that it assumed the form of the House of Peers. Inequality is never more oppressive and fatal than when displayed solely for its own advantage, and in an individual interest. This is the invariable result when the upper ranks are dispersed over the country, and are brought into contact with, and into the presence of, their inferiors alone. If, instead of uniting in the House of Peers to exercise, as members of that assembly, the power they possessed over society, the great barons had each remained on his own estates, their superiority and power would have weighed heavily on all their vassals and farmers, and social emancipation would have been very much retarded. Every baron would then have had to do with his inferiors alone. In the House of Peers, on the contrary, he had to deal with his equals; and to obtain influence in that assembly, and effect his will, he was obliged to have recourse to discussion, to the advancement of public reasons, and to constitute himself the exponent of some interest superior to his own personal interest, and of opinions around which it would be possible for men to unite together. Thus men, who, had they remained isolated on their domains, would have acted only upon inferiors and for their own interest, were constrained, when they had met together, to act upon their equals, and for the interests of the masses, whose support alone could increase their power in the frequent struggles which this new situation imposed upon them. Thus by the single fact of its concentration, the high feudal aristocracy insensibly changed its character. Each of its members possessed rights originally derived entirely from his own power, which he came to the House of Peers to exercise solely for his own interest; but when once brought together into each other's presence, all these individual interests experienced the necessity of seeking new means of obtaining credit and authority elsewhere than in themselves. Personal powers were constrained to sink themselves into a public power. An assembly composed of individual superiorities, jealous only to preserve and increase their power, became gradually converted into a national institution, compelled to adapt itself, in many points, to the interest of all.

Results Of Its Establishment.

As I have elsewhere had occasion to say, one of the greatest vices of the feudal system was to localise sovereignty, and to bring it everywhere, so to speak, to the door of those over whom it was exercised. The formation of the House of Peers weakened this evil in England, and thus, at least in a political point of view, struck a deadly blow at feudalism.

Further, the great barons thus formed into a body, had the power and duty of defending in common their rights and liberties against the royal power; and their resistance, instead of consisting in a series of isolated wars, as was the case in France, immediately assumed the character of a collective and truly political resistance, founded on certain general principles of right and liberty. Now there is something contagious in these principles and their language, which very soon extends them beyond the limits within which they are at first enclosed. Right calls forth right, liberty engenders liberty. The demands and resistance of the great barons provoked similar demands and resistance in other classes of the nation. Without the concentration of the high aristocracy in the House of Peers, the House of Commons would probably have never been formed. From all these facts flows this consequence, that when great inequality actually exists in society between different classes of citizens, it is not only natural but useful to the progress of justice and liberty, that the superior class should be collected and concentrated into a great public power, in which individual superiorities become placed on a more elevated level than that of personal interest; they learn to treat with their equals, to meet with opposition, and to furnish an example of the defence of liberties and rights; while by exposing themselves in some sort to the view of the whole nation, they experience by this fact alone the necessity of adapting themselves, to a certain extent, to its opinions, sentiments, and interests.

Is A House Of Peers Advantageous?

But, it may be said, a social inequality of sufficient magnitude to occasion the formation of such a power, is neither a universal fact, nor one in itself good and desirable; and under this point of view the House of Peers, as it is constituted in England, was simply a remedy for an evil. There can be no doubt that the accumulation of land, wealth, and positive power which belonged to the great barons, and the securing of all these social advantages, were the result of violence, and as contrary to the internal tendency as to the rational principles of society in general. If then the division of the legislative power into two Chambers is derived only from such causes, it might in certain cases be inevitable and even beneficial; but where these causes are not met with, nothing would recommend it, or ought to make its necessity a matter of regret. The equitable and natural distribution of social advantages, their rapid circulation, the free competition of rights and powers—this is the object, as it is the rational law of the social condition. An institution which, in itself and by its nature, is opposed to this object and derogates from this law, contains nothing which ought to lead to its adoption when not imposed by necessity.

Is this the case with regard to the division of the legislative power into two Chambers, setting aside those particular characteristics which, in the English House of Peers, are derived solely from local and accidental facts, and cannot be referred to rational causes of universal validity?

Before considering this question in its relation to the fundamental principle of representative government, some observations are necessary.

Two Tendencies In Society.

It is by no means true, that similar inequalities to those which produced the preponderance of the great barons in England, and a permanent classification of society in conformity to these facts, are natural conditions of the social state. Providence does not always sell her benefits at so high a price to the human race, and has not rested the very existence of society on this denomination, this immovable constitution of privilege. Reason must believe, and facts prove, that society can not only subsist, but is even better off in another condition; in a condition in which the principle of free competition exercises more dominion, and where the different social classes are more nearly allied. It is certain, however, that there exist in society two tendencies, equally legitimate in their principle, and equally salutary in their effects, although in permanent opposition to each other. The one is the tendency to the production of inequality, the other, the tendency to maintain or restore equality between individuals. Both are natural and indestructible: this is a fact which requires no proof, the aspect of the world displays it everywhere; and if we look within, we shall perceive it in ourselves. Who does not desire, in some respect or another, to raise himself above his equals? and who would not also wish, in some particular, to bring down his superiors to an equality with himself? These two tendencies, considered in their principle, are equally legitimate: the one is attached to the right of the natural superiorities which exist in the moral as well as in the physical order of the universe; the other, to the right of every man to that justice which desires that no arbitrary force should deprive him of any of the social advantages which he possesses, or might acquire, unaided and without injury to his fellows. To prevent natural superiorities from displaying themselves, and exercising the power that belongs to them, is to create a violent inequality, and to mutilate the human race in its noblest parts. To enslave men in regard to those rights which are common to all, by reason of the similitude of their nature, to unequal laws imposed or maintained by force, is to insult human nature and to forget its imperishable dignity. In fine, these two tendencies are equally salutary in their effects: without the one, society would be inert and lifeless; without the other, might alone would dominate, and right would for ever be suppressed. In considering them as respects that which is legitimate and moral in each, let us ask what is this tendency to inequality but the desire to elevate ourselves, to extend our influence, and to bring to light and effect the triumph of that portion of moral power which is naturally placed by the will of God the Creator, in each particular individual? and is it not this impulse which constitutes the life and determines the progress of the human race? On the other hand, what is this tendency to equality except resistance to force, to capricious arbitrary wills, and the desire to yield obedience only to justice and true law? Doubtless, in both these tendencies, the bad as well as the the good parts of our nature display themselves: there is a taint of insolence in the desire of self-elevation, and of envy in the passion for equality. Injustice and violence may be employed either to abase superiors or to surpass equals; but in that conflict of good and evil, which is everywhere the condition of man, it is not the less true that the two tendencies of which I am speaking constitute the very principle of social life, the twofold cause which makes the human race advance in the career of improvement, which leads it back when it wanders astray, and urges it forward when perverse powers or wills seek to arrest its course.

Tendency To Inequality.

The tendency to inequality is then a fact inevitable in itself, legitimate in its principle, and salutary in its effects, if it is restrained by the law of competition, that is to say, beneath the condition of a permanent and free struggle with the tendency to equality, which, in the order of Providence, appears to be the fact by which it is destined to be balanced. In every country there will always arise and exist a certain number of great individual superiorities, who will seek an analogous place in government to that which they occupy in society. They ought not to obtain it for their personal interest, nor to extend it beyond what comports with the public interest, nor should they retain it longer than they possess the title in virtue of which they assumed it, that is to say, their actual importance, nor should they preserve this title by means violative of the principle of free competition, and the maintenance of the rights which are common to all. All this is indubitable, but, this being allowed, there will still remain the necessity of introducing and concentrating among the superior powers all the great superiorities of the country, in order to engage them in the transaction of public affairs, and in the defence of the general interests.

This, as we have seen, is the sole object of the representative system: its precise purpose is to discover and concentrate the natural and real superiorities of the country, in order to apply them to its government. Now, is it good in itself, and in conformity with the fundamental principle of this system, to apply only one method of seeking out these superiorities, and to gather them all into a single voting urn? that is to say, must they be united in one single assembly, formed upon the same conditions, after the same tests, and by the same mode? We now reach the pith of the question.

Opposition To Absolute Power.

The principle of the representative system is the destruction of all sovereignty of permanent right, that is to say, of all absolute power upon earth. The question of what is now called omnipotence has at all times been agitated. If by this is understood an actually definitive power, in the terms of established laws, such a power always exists in society, under a multitude of names and forms: for wherever there is a matter to be decided and completed, there must be a power to decide and complete it. Thus, in the family, the father exercises the power of definitively determining, in certain particulars, the conduct and destiny of his children; in a well regulated municipality, the municipal council definitively enacts the local budget; in civil trials, certain tribunals give final judgment upon cases submitted to their decision; and in the political system, electoral omnipotence belongs to the electors. Definitive power is thus disseminated through the social state, and is necessarily met with everywhere. Does this imply that a power ought somewhere to exist, which possesses omnipotence by right, that is to say, which has the right to do anything it pleases? That would be absolute power; and it is the formal design of the representative system, as well as the object of all its institutions, to provide against the existence of such a power, and to take care that every power shall be submitted to certain trials, meet with obstacles, undergo opposition, and, in fine, be deprived of sway until it has either proved its legitimacy, or given reason for presuming it.

There is not, then, and there cannot be, any omnipotence by right, that is to say, any power which should be allowed to say: "that is good and just because I have so decided it;" and every effort of political science, every institution, ought to tend to the prevention of such a power being anywhere formed; and should provide that the actual omnipotence which exists under so many names in society, should everywhere meet with restraints and obstacles enough to prevent its conversion into an omnipotence by right.

Until the summit of society is reached, and while those powers only are constituted, above which other permanent powers will be placed for the purpose of controlling them, and with power to enforce their authority, this end appears easy to attain.

Bulwarks Against Absolute Power.

Judicial power, municipal power, and every second class power may be definitive without much danger, because if they are abused in a manner likely to become fatal, the legislative or executive power will be there to repress them. But we must necessarily come at last to the supreme power, to that power which superintends all others, and is not itself ruled or restrained by any visible and constituted power. Shall the right of omnipotence appertain to this? Certainly not, whatever may be its form or name. It will, however, be always prone to aspire to it, and able to usurp it, for in the political system it possesses omnipotence, and of this it cannot be deprived; for in reference to general interests, as well as to local and private interests, a definitive power is a necessity.

Here then, all the foresight of the politician ought to be displayed: he will need all his art and all his efforts, to prevent actual omnipotence from asserting its inherent rightfulness, and general definitive power from becoming absolute power.

This result is endeavoured to be secured by a variety of means:

I. by recognising the individual rights of citizens,—the effect of which is to superintend, control, and limit this central supreme power, and constantly to subject it to the law of reason and justice to which it ought to be subordinated; this is the object of the jury, of the liberty of the press, and of publicity of all kinds: II. by constituting, in a distinct and independent way, the principal powers of the second class, such as the judicial and municipal powers; on such a plan that these being themselves repressed and restrained when necessary by the central power, may restrain and repress it in their turn if it should attempt to become absolute: III. by organising the central power itself in such a manner as to make it very difficult for it to usurp rightful omnipotence, and to provide that it shall meet with such oppositions and obstacles within itself as will not admit of its attaining actual omnipotence except under laborious conditions, the accomplishment of which gives ground to presume that it does in effect act in accordance with reason and justice; that is to say, that it possesses legitimacy.

Secret Of Political Liberty.

This last description of means is the only one connected with the question that now occupies our attention. The division of the legislative power into two Chambers has precisely this object. It is directed against the easy acquisition of actual omnipotence at the summit of the social system, and consequently against the transformation of actual omnipotence into rightful omnipotence. It is therefore conformable to the fundamental principle of the representative system, and is a necessary consequence of it.

Why is it undesirable that the legislative and executive powers, that is to say, the entire supreme power, should reside either in one man or in a single assembly? why does tyranny always spring from these two forms of government? Because it is in the nature of things, that a power which has no equal should think itself rightfully sovereign, and should very soon become absolute. It has happened thus in democracies, aristocracies, and monarchies; wherever actually sovereign power has been conferred upon a single man, or a single body of men, that man, or that body, has assumed to be rightfully sovereign; and more or less frequently, and with greater or less violence, it has exercised despotism.

The art of politics, the secret of liberty is, then, to provide equals for every power for which it cannot provide superiors. This is the principle which ought to preside in the organisation of the central government: for on these terms only can the establishment of despotism at the centre of the State be prevented.

Now if the legislative power is entrusted to a single assembly, and the executive power to one man, or if the legislative power is divided between one assembly and the executive power, is it possible for each of these powers to possess sufficient force and consistence to admit of the necessary equality between them, that is to say, to secure that neither shall become the sole and undisputed sovereign power? Such an example has never been witnessed: wherever the central power has been thus constituted, a struggle has arisen, which has resulted, according to the times, either in the annihilation of the executive power by the legislative assembly, or of the legislative assembly by the executive power. Some countries have been governed by a single assembly, others by several assemblies, of which some have been aristocratic and others democratic; while all have contested with each other for the sovereignty. These various forms of government have given rise either to tyranny or to continued commotions, and have nevertheless endured. But a government in which the legislative assembly and the executive power have remained distinct, preserving their personality and their independence, and reciprocally limiting each other, is a phenomenon without example, either in antiquity or in modern times. One of these powers has always speedily succumbed, or been soon reduced to a state of subordination and dependence equivalent to nonentity, at least as regarded the essential purposes for which it was instituted.

Division Of The Central Power.

This could not fail to be the case. Equality is impossible between powers which are completely dissimilar, either in their nature, or in their means of obtaining power or credit. The dominion of one person, that is to say, the pure monarchical form of government, derives its springs and means of action from certain dispositions of human nature, and certain conditions of society. The full and exclusive rule of a single assembly derives the same from other dispositions and other social circumstances; according as one or other class of these circumstances predominate, kings have abolished assemblies, and assemblies have overthrown kings. But the co-existence of these two systems of government, when confronted with each other and acting in direct opposition, is impossible. They do not then act as a restraint upon each other, but they wage a war of extermination: such an event has accordingly never been met with except in revolutionary times: it may possibly have been an unavoidable condition of such epochs; but then it has always involved one or other of these forms of despotism: it has never become the basis of a free and regular government.

When it is once admitted that the division of the central power is indispensable, in order to prevent all usurpation of rightful omnipotence, or, at least, to render such usurpation infrequent and difficult, it necessarily follows that this division ought to be effected in such a way that the resulting powers shall be capable of regular co-existence, that is to say, of mutually restraining, limiting, and compelling each other to seek in common for that reason, truth, and justice, which ought to regulate their will and preside over their actions. It is essential that neither of these powers should elevate itself so much above the others as to be able to throw off their yoke; for the excellence of the system consists precisely in their mutual dependence, and in the efforts which it imposes on them to secure unanimity. Now there can be no mutual dependence, except between powers which are invested with a certain degree of independence, and with strength enough to maintain it.

Its Relation To Representative Government.

The division of the central power, or of the actual sovereignty, between the executive power and two legislative assemblies is, therefore, strictly derived from the fundamental principle of the representative system; or rather it is the sole constitutional form which fully corresponds to this principle, and guarantees its maintenance, since this is the only form which, by providing equals for powers which admit of no superiors, prevents them all from claiming and usurping rightful sovereignty, that is to say, absolute power.

Why has this truth been so frequently forgotten? why has this constitutional form been so often repudiated by men who, nevertheless, desired to establish representative government?—Because they have forgotten the principle of this form of government. At the very moment when they were directing their efforts against absolute power, they have imagined that it legitimately existed somewhere; and they have attributed it to society itself,—to the entire people. They have thus proved wanting in consistency and courage in their opposition to absolute power; and either have not known, or have not dared, to pursue it wherever it might be found; to leave it no refuge; to denounce and banish it under every possible name and form. Thus, admitting the existence of one sole sovereign, naturally and eternally legitimate, they have also been obliged to admit an undivided representation of this undivided sovereign. The sovereignty of the people, thus understood, necessarily carries with it the unity of the legislative power: and when tyranny has sprung from it, when the lessons of experience have led men to seek other combinations, when it has been considered right to divide the legislative assembly, it has been done with the assertion, that such a step was contrary to the principle of representative government, but necessary: that principles cannot rigorously be followed, and that it is necessary to believe in the theory, but not to practise it. Such language is an insult to truth, for truth never contains evil; and when evil does appear anywhere, it arises not from truth but from error. If the consequences of a principle are fatal, it is not because the principle, though in itself true, is not applicable, but because it really is not true. It has been said by the advocates of divine right: There is only one God; there ought therefore to be only one king; and all power belongs to him because he is the representative of God. The advocates of the sovereignty of the people say: There is only one people; there ought therefore to be only one legislative assembly, for that represents the people. The error is the same in both cases, and in each instance it leads equally to despotism. There is only one God, that is certain: but God exists nowhere upon the earth, for neither is any man nor is the entire people God, nor do any perfectly know his law, or constantly desire it. No actual power, then, ought to be undivided, for the unity of actual power supposes a plenitude of rightful power which nobody possesses or can possess.

Good Effects Of This Division.

Far, then, from the division of legislative power being a derogation from the principles of political liberty, it is, on the contrary, in perfect harmony with these principles, and is specially directed against the establishment of absolute power.

Having this [thus?] established the principle, it would be easy to consider it in practice, and to demonstrate its good effects. It would be easy to prove that it is indispensible for realising the responsibility of the executive power; for curbing inordinate ambition, and turning every kind of superiority to the profit of the State; for preventing fundamental institutions, the public rights of citizens, and all the higher branches of legislation, from being treated as simple measures of government, and made subject to the instability of political experience: but these considerations would lead me too far; I wished to establish this constitutional form in principle, because it is owing to the want of such foundations that it has long been regarded with mistrust and doubt by many enlightened men. Its utility is never disputed; its good results are acknowledged; but men are generally ignorant how it can be made to agree with the general principles of a free government; and it has been found, not without reason, that these principles would be weakened by any derogation from them. In times when the human race is subject to regenerative influences, empiricism is never the ruling spirit: man then requires some rational and rigorous principles which may furnish a solution to every difficulty; and he mistrusts experience when he finds her counsels at variance with those primitive axioms which his reason has firmly adopted. This is our natural disposition: let us not lament it, it characterises all great epochs; it is then only necessary rigidly to examine principles themselves, and to grant dominion to those ideas only which truly deserve it.

How Should It Be Effected?

A second question remains for consideration: it is, to ascertain how the division of the legislative power into two houses ought to be effected, and what should be the mode of formation, what the attributes and the relations of the two assemblies. This, at least to a great degree, is a question of circumstance, the solution of which is almost entirely dependent upon the state of society, its internal constitution, and the manner in which wealth, influence, and intelligence, are distributed; this is sufficiently indicated by what I have said about the causes that led to the formation of the House of Peers in England. It is evident, for example, that those countries in which there was no such inequality as then existed between the different classes of society, would be ill adapted for a division of the legislative power based upon the same ideas, presenting the same characteristics, and entailing the same consequences. Perhaps the only general idea which can be laid down beforehand upon this subject is, that the two assemblies should not proceed from the same source, and be constituted in the same manner; in a word, that they should not be exactly alike. The object of their separation would then be defeated, for their similitude would destroy the mutual independence which is the condition of their utility.

Lecture XIX.

Power and attributes of the British Parliament in the fourteenth century. At its origin, and subsequent to its complete development, the Parliament retained the name of the Great Council of the kingdom. Difference between its attributes and its actual power at these two epochs. Absorption of almost the entire government by the Crown; gradual resumption of its influence by the Parliament.

Original Name Of The Parliament.

The first name borne in England by the assembly which was succeeded by the Parliament, was, as you have seen, that of the great council, the common council of the kingdom, magnum commune consilium regni. The same name has also been given to the Parliament in England for the last two centuries, when it is desired to indicate completely the nature of its interference in the government, and the part which it there performs. It is called the great national council: the king governs in Parliament, that is to say, with the advice and consent of the great council of the nation.

Thus, both at the origin of the British government, and since it has attained its complete development, the same idea has been attached to the assembly, or union of the great public assemblies; and they have both been designated by the same word.

At both these periods, the Parliament or the corresponding assembly which preceded it, has never actually been, and, indeed, could not be considered as a special power, distinct from the government properly so called,—an accessory limited in its action to a certain number of affairs or emergencies. The government itself has resided in it. All superior powers have there been concentrated and called into exercise.

The Great National Council.

At the origin of modern States, and especially of England, it was very far from being thought that the whole and sole right of the body of capable citizens, of the political nation, consisted in consenting to the imposition of taxes; that they were otherwise subjected to an independent authority, and were not authorized in any way to interfere, either directly or indirectly, in the general affairs of the State. Whatever these affairs might be, they were their affairs, and they always occupied themselves with them, when their importance naturally called for their intervention. This is testified by the history of the Saxon Wittenagemot, of the Anglo-Norman Magnum Consilium and of all the national assemblies of the German peoples, in the earliest period of their existence. These assemblies were truly the great national council, deliberating and deciding on the affairs of the nation in concert with the king.

When the representative system has achieved all its mighty conquests, and borne its essential fruits, it has invariably resorted to this; and returned in fact to the point from which it set out. In spite of all distinctions and apparent limitations, the power of Parliament has extended to everything, and has exercised a more or less immediate, but in reality a decisive influence on all the affairs of the State. Parliament has again become the great national council in which all the national interests are debated and regulated, sometimes by means of anterior deliberation, at other times by those of responsibility.

When this first and last condition of free governments has been recognized, it will be perceived that a very different intermediate condition is to be met with, in which Parliament, although sometimes styled the great national council, exercises none of its functions, does not in a permanent manner interfere in political affairs, and is not, in a word, the seat and habitual instrument of government. During the whole of this period, the government is separate from the Parliament, and resides altogether in the royal power, around which are grouped the principal members of the great aristocracy. The Parliament is necessary in certain cases, but it is not the centre, the focus, of political action. It exercises rights, defends its liberties, and labours for their extension; but influences the government in no decisive way: and principles which belong only to absolute monarchy co-exist with the more or less frequent convocation of the representatives of the nation.

Parliament In The Fourteenth Century.

Such was the state of the British Parliament, from its formation in the thirteenth century until nearly the end of the seventeenth. It was only at the end of the seventeenth century that it resumed all the characteristics of a great national council, and became once more the seat of the entire government.

The British Parliament was not, then, in the fourteenth century either what the public assemblies of the German peoples had originally been, nor what it is in the present day. In order properly to comprehend what, at that period, was the nature of its power and the scope of its influence, we must follow the progress of events.

Common deliberation on common affairs is the principle, as well as the most simple form, of political liberty. This principle fully obtained at the infancy of modern nations. The national assembly was the great council in which public affairs of every kind were transacted. The king, the natural head of this council, was required to convoke it, and to follow its advice.

By the dispersion of the nation over an extended territory, the great national council became dispersed, and could not be assembled: for some time, however, it retained its ancient form, and the full extent of its ancient rights; but power is attached to continual presence, and the great council became of rare occurrence. Its numbers rapidly thinned; and it was very soon composed of great landowners alone, whom wealth, political importance, and that ambition which increases with the growth of power, frequently assembled round the king. The government, which formerly resided in the great national council, now resided only in this new council, formed of the king and the great barons, who became daily further separated from the body of the nation. The same words continued to be employed: the king always governed with his great council; but this was no longer the same assembly; the government and the body of the nation had become disjoined.

The king endeavoured to free himself from the great barons, and to govern alone; they resisted; and in the struggle in which they engaged for the defence of their liberties or the preservation of their influence in the central government, they were compelled to seek support from the body of the nation, the freeholders and the burgesses.

Admission Of The Commons.

The issue of this struggle was favourable to liberty; the freeholders and the burgesses, who were become almost strangers to the central government, renewed their connection with it by the formation of Parliament; and this great council of the king, which for two centuries had been continually contracting, once more began to extend.

But at their return, the new citizens were very far from taking the same place which their ancestors had occupied. The development of inequality is always the first result of the progress of the social state. Royalty had extended and fortified its power; it now existed by itself, powerful and independent, and claiming distinct rights proportionate to its own strength. It was the same with the great barons, who also were strong and independent in themselves. If it had been possible to congregate in a single assembly all the descendants of those ancient Saxons or Normans who had originally formed the great common council, a very different spectacle would have been presented. Instead of finding an assembly of warriors, not enjoying perfect equality, certainly, but sufficiently equal for each to preserve his personal importance, and to consider himself in a condition to defend it; instead of seeing a chief at their head, too little distinguished from the principal men among them to be powerful without their adherence,—there would have been a king invested with great wealth and power, mighty barons followed by a multitude of retainers almost entirely dependent upon them, and a body of citizens obliged to unite and act collectively for the recovery of some influence over those measures which interested them most directly. In this new composition of society and of the national assembly, the deputies of the counties and boroughs were very far from pretending to associate themselves with the government properly so called, or from thinking to control or direct the central power in all public affairs; several centuries necessarily elapsed before their ideas could acquire so much generality, and their interference in Parliament became so comprehensive. They assembled there for the sole purpose of defending themselves, and those whom they represented, against the most crying abuses of power, against the violent and arbitrary invasion of their persons and their possessions.

Vicissitudes Of The Parliament.

Discussing the demands for supplies that were addressed to them, and presenting their complaints to the government against the most perilous acts of injustice of the agents of the king or of the great nobles, constituted the whole of their mission, and, in their own opinion, the full extent of their rights. Their personal importance was too trivial, and their intellectual activity too limited, for them to imagine themselves called to discuss and regulate the general affairs of the State. They resisted power when it directly attacked them, or required great sacrifices from them; but royalty and its prerogatives, the ordinary council of the king, and his measures in regard to legislation, peace and war, or general politics, in a word, the government properly so called, were entirely beyond their interference. They had not the power, or even the wish, to meddle with such matters; it was all discussed and decided between the king, his ministers, and the great nobles who were naturally called to take part therein by the elevation and importance of their social position.

Both the ancient assembly of the Saxon or Norman warriors, then, and the existing Parliament, would be vainly sought for in the Parliament of the fourteenth century. No violence is done to facts: a new society had been formed which could only engender a political order in accordance with its own character. Great inequality prevailed, and this inequality would naturally reappear between the powers to which it gave birth. The primitive and simple unity which exists in an uncivilized community had disappeared; the wise unity to which a state of civilised society can elevate itself by the diffusion of wealth and intelligence, was still far distant. There was a king, a House of Lords, and a House of Commons: but there was not a Parliament in the political sense which is now attached to that word.

The permanent co-existence of royalty and a great public council, through all these vicissitudes of government and liberty, is an important fact. This council, formed at first by the general assembly of the nation, afterwards restricted to the great barons, and speedily admitting within its circle the representatives of other social conditions, has always been in England the principal organ of the central government. The English monarchy has never succeeded in isolating and enfranchising itself therefrom.

Its Gradual Increase.

It has been narrowed or extended by reason of changes occurring in society: but it has always constituted the condition and form of the monarchy. Popular liberty, so to speak, has always maintained a footing in the central power; the nation has never been completely excluded from participation in its own affairs. The progress of Parliament has been the progress of the government itself. In vain was the House of Commons feeble and inactive at its origin: it did exist, and it formed part of the king's council; it was always present to embrace, in some measure, every opportunity of extending its influence, and aggrandising its position and the part it had to perform. In the fourteenth century, its power was very limited, its attributes very restricted, and its intervention in public affairs very infrequent; but it was impossible that it should not daily increase. In effect it did greatly increase from the time of Edward I. to that of Henry VI. During the wars of the Red and White Roses, the great feudal aristocracy destroyed itself by its contentions. When Henry VII. ascended the throne, there no longer existed a body of great barons capable of offering armed resistance to the royal power. The House of Commons, though strengthened, had not yet emerged from its condition of inferiority, and was incapable of taking the place of the great barons in resistance to royalty. Hence the Tudor despotism in the sixteenth century, the only period at which the maxims of absolute power have prevailed in England; but even in that very century, the House of Commons daily penetrated further into the government, until its power was fully revealed by the great Revolution of the seventeenth century.

I have now given you a glimpse of the space between the period of the definitive formation of the British Parliament, and that at which it sought to obtain its entire dominion. In our subsequent lectures we shall examine the principal phases in the development of this great government during those three centuries.

Lecture XX.

Condition and attributes of the Parliament during the reign of Edward II. (1307-1327). Empire of favourites. Struggle of the barons against the favourites. Aristocratic factions. Petitions to the king. Forms of deliberations on this subject. Deposition of Edward II.

Reign Of Edward I.

In order to explain the manner in which the British Parliament was formed, I have found it necessary, up to this point, to follow history step by step,—to enter into all the details, and to collect all the facts, that might serve as proofs either of its existence, or of its participation in public affairs. I have now another object to attain, and I must therefore pursue another course. The Parliament is now definitively formed; and if I were to continue to narrate all the facts which relate to it, and to keep a register, as it were, of all its acts, I should write the history of the country, and not that of its institutions. What I am seeking to describe, is the development of representative government; and I shall avoid all questions unconnected with this object. The extension which the Parliament received, the revolutions which it underwent,—in a word, its personal and internal life, will constitute the subject to which our attention must be directed.

On considering the reign of Edward I. from a political point of view, it is evident that, notwithstanding the agitations by which it was disturbed, there was, during that reign, some wholeness and unity in the exercise of power. Edward was a firm and capable prince, who well knew how to concentrate and direct the various forces of society; in him, the State possessed a centre and a chief. Under Edward II., the English government lost all solidity and unity: no intelligent and determined will presided over it; the nation had no rallying-point; the string of the bundle was broken; all forces and all passions were displayed at hap-hazard, and came into conflict upon the interests of individuals or factions.

Empire Of Favourites.

In such a state of things, what could the Parliament be? Nothing, or next to nothing, unless it were an instrument of factions. The body of barons was then, and long continued to be, the preponderant portion of the assembly: the Commons, though strong enough sometimes to defend themselves when their own interests were at stake, were not sufficiently powerful to interfere, in a decisive manner, in public affairs, and to become the centre of the government. All matters were, therefore, arranged between the court and the barons, or rather between the different factions into which the body of barons was divided. The Commons appeared in the train of one or other party, to give their alternate triumphs the appearance of a national adhesion, but without ever determining the course of events, or even modifying them in any effectual manner. The supreme power and the country were a prey to the conflicts and schisms of the high aristocracy.

In order clearly to demonstrate that such was the state of institutions and of the central government at this period, it will be sufficient to refer to the three principal events of this reign.

Rebellions Of The Barons.

The first is the conflict which the English barons maintained against the king, with regard to a favourite, Piers Gaveston, whom, in spite of his father's advice, Edward II. had persisted in retaining in his confidence. The favourite and his creatures absorbed all the power and advantages of the court; and in 1311, the barons, desiring their share of riches and favours, after having attempted all other means for his overthrow, demanded his dismissal with arms in their hands. Their enterprise was evidently intended neither to promote the interests of the people nor those of the king; it was a revolt of courtiers. They fought, not to assert the inviolability of charters or rights, but to obtain the employments and treasures of a favourite. Nevertheless, they attempted to give a national colour to their rebellion. The plans and measures of the great rebel Parliament held at Oxford during the reign of Henry III. were revived; Lords Ordainers were appointed to reform the State; they bid for public favour by the abolition of a few abuses; they enacted that the possessors of landed property alone should be appointed sheriffs; they limited the right of purveyance, which was held by the crown; and they prohibited all grants of royal letters-patent ordering the suspension of the regular course of justice. But these were merely outward appearances intended to conceal the selfish egotism of the great barons; their only object was to make themselves masters of the royal authority, of the right of appointing to the chief offices of state, and of the revenues of the crown. They put Gaveston to death, and seized upon the whole power. The representatives of counties and boroughs, who were present in the Parliament by which these designs were executed, gave their consent; but they were mere followers of the rebellion, and had no influence upon the government. The great barons, who came to Parliament in arms and accompanied by their troops, had the entire management of everything in their own hands.

Edward escaped from the tutelage imposed upon him by the coalition of the barons, only to fall under the sway of two new favourites, Hugh le Despencer, or Spencer, and his son. The elevation of these two courtiers raised up against them a storm similar to that which had overthrown Gaveston. The new rebellion which broke out in 1321 is the second remarkable event of this reign. It was first manifested by a sentence passed against the two Spencers by the great barons of the realm. They passed it by their own authority alone, without the concurrence either of the Commons or of the king, and at the same time compelled the king to grant them an amnesty for themselves and their adherents; shortly afterwards, the civil war began, and the confederated barons were overcome. Edward convoked a Parliament at York, in 1322, at which the Commons attended, and which repealed first the sentence against the two Spencers, and afterwards all the ordinances passed by the Lords Ordainers in 1311 and 1312, as being contrary to the rights of the king, and to the laws and usages of the country. Thus, whether the court or the rebels prevailed, a Parliament always sanctioned their triumph, saving only the ever-ready recourse to civil war, the only true means of decision.

Deposition Of Edward II.

Moreover, it is evident that the riches which were amassed by court favours and the exercise of royal power were a constant subject of jealousy and faction., The petition presented to the king in 1322 by Hugh Spencer the elder against the barons who had condemned him, sets forth that they had devastated sixty-three of his manors or domains in fifteen different counties,—that they had carried off 28,000 sheep, 22,000 head of cattle, two harvests, one from his barns and granaries, and one of standing corn, 600 horses, a great quantity of provisions of all kinds, and complete suits of armour to equip 200 men,—and that they had moreover done damage, in his castles and lands, to the amount of more than 30,000l. sterling. Such was then the wealth of a great English baron; and herein resided an inexhaustible source of rebellions.

A third event, the deposition of Edward II., presents a spectacle of the same character as the two preceding occurrences. This was the result of a new confederation of the barons, at whose head the queen, Isabella, had placed herself. A Parliament, convoked at Westminster, on the 7th of January, 1327, declared the incapacity of the king, then a prisoner in Kenilworth Castle. A deputation, composed of four bishops, two earls, four barons, three deputies from each county, and several burgesses of London, of the Cinque Ports, and of other cities, was sent to acquaint him with the resolution of the Parliament, and formally to renounce the oath of fidelity. This deputation received from Edward II. his abdication in favour of his son Edward III., then fourteen years of age, under whose name the dominant faction expected to wield the supreme power to its own advantage.

Notwithstanding the interference of the Commons in this and the preceding acts, it is clear that the whole affair was managed between aristocratic factions influenced by personal interests, and profiting by the king's incapacity to appropriate to themselves the government and all its advantages. There is nothing to indicate any progress of political institutions and triumph of national liberties. The government of the barons, after such scenes, was even more arbitrary and oppressive than that of the king.

Progress Of The Parliament.

It is, nevertheless, a remarkable fact that, in all these occurrences, the sanction of the Parliament was always regarded as necessary, and as the only means of terminating and legalizing the works of violence. The Parliament, or at least the House of Commons, was merely a passive instrument in the matter; but it was already thought impossible to dispense with its concurrence. Now, as it is part of the nature of this instrument to serve the cause of public liberties and to lead, sooner or later, to their extension, every circumstance that augmented its importance and established its necessity may be considered as a progress of the representative system.

I will now bring under your notice the principal parliamentary facts of this period, and inquire in what respects the principles of a free government were manifested or introduced in them.

It was at this time that the Parliament decidedly became the centre towards which all demands for the reform of abuses, the redressing of grievances, the modification of laws, in a word, all petitions, were directed; it had possessed this character from its origin, but in a less extended measure. When the Parliament, or rather the body of barons in Parliament assembled, had begun once more to act as the great council of the king, a host of applications which had previously never been made, or had been addressed to the king alone, were addressed to the king in Parliament, and became a subject for deliberation at its meetings. Thus, in the Parliament held at Westminster, in 1315, we find that 268 petitions were presented.

These petitions were of two kinds. Some were presented by the Commons to the king in council, and had reference to demands or complaints of general interest. Others were presented by individuals, corporations, or towns, and had reference to private or local interests. The former class gave birth to the right of initiative; the latter to the right of petition. Both classes were addressed to the king, in whom the actual power resided; and upon whom, on this account, it devolved not only to provide for the general necessities of the State, but also to do justice to special interests.

Practice Regarding Petitions.

On the opening of each Parliament, a certain number of days were fixed for the reception of petitions. A certain number of persons, chiefly judges or councillors of the king, were appointed to receive them, to investigate their nature, to classify them according to their objects, to set aside those which were to form the subject of discussion in the Parliament itself, and finally to present them to Parliament. This discussion was almost confined to the House of Barons, who were supposed to form a great intermediary council between the privy council of the king and the entire Parliament. The barons, when assembled in the privy council, deliberated and decided upon the demands of the Commons relative to matters of general interest. If these demands referred to certain complaints against abuses of the exercise of the royal power, or against the conduct of the sheriffs, for example, the king answered them in his own name alone, after having taking the advice of his privy council, of the judges, or of the barons, according to circumstances. If the petitions prayed for some interpretation or declaration of the existing law, the answer was given in the same manner. If they suggested the enactment of a new law, the king, when he judged it convenient, proposed this law to the Parliament; but in early times, this was very rarely the case; and when the petition had once been presented, the Commons ordinarily had nothing further to do with the matter than to receive the answer of the king.

As to those petitions which originated from individuals or from bodies unconnected with the Parliament, and which related only to matters of private interest, the meeting of Parliament was merely chosen as the occasion of their presentation, because it was more favourable than any other period for obtaining a reply. The royal council decided upon all those petitions which did not require the intervention of the barons or of the entire Parliament.

The presentation of petitions at this period is, therefore, a very complex fact with which are connected not only the right of petition to the Houses of Parliament, but also the right of petition to the government generally, the right of initiative, the jurisdiction of the Houses of Parliament, in short, a host of institutions essential to the representative system, and each of which it is necessary to consider separately. They all existed, but in a confused and embryo state, in this affluence of petitions of all kinds, which called into action very different powers, then exercised indiscriminately. This original confusion was, undoubtedly, one of the principal causes of the universality of the power of the British Parliament. We cannot now examine into all the institutions which sprang from this source, and progressively disentangled themselves, assuming a distinct form. The question of the right of petition, in the sense which is attached to it at the present day, is in itself deserving of our careful examination, and will form the subject of our next lecture.

Conditions Of Granting Subsidies.

One particular fact attests the progress which the Commons were beginning to make in the comprehension of their power and rights. It is beyond doubt that, originally, the voting of supplies always furnished them with an opportunity of obtaining some concessions or the redress of their grievances; this is proved by the history of English charters. But, in 1309, when granting Edward II. a twentieth part of their moveable goods, they expressly attached the condition that "the king should take into consideration, and should grant them the redress of certain grievances of which they had to complain." [Footnote 36]

These grievances had existed for a long while, and were perpetuated for a considerable period afterwards; but the Commons had begun to look them full in the face, and to insist year after year upon their redress, as the only condition upon which they would grant the supplies.

Statute Of 1322.

A statute passed in 1322, by the Parliament at York, which revoked the sentence against the two Spencers, declared that "thenceforward all laws respecting the estate of the crown, or of the realm and people, must be treated, accorded, and established in Parliament by the king, by and with the assent of the prelates, earls, barons, and commonalty of the realm." This is a formal recognition of the right of the Commons to interfere in the legislation of the country, and in all great public affairs.

Many English publicists attach great importance to this statute, and regard it as the first act which officially sanctioned the fundamental principle of the British government. This importance appears to me to be exaggerated. The principle enunciated by this statute had been put into practice on many previous occasions, and a sufficiently clear knowledge was not then possessed of that which constituted matter of legislation and general interest to obtain conformity to it in practice. It is, therefore, far from being the case that the Commons, from this time forth, always exercised the power allotted to them by this statute. Nevertheless, the official exposition of the principle indicates progress in the ideas ol the times.

Whig And Tory Errors.

Such are the principal facts of the reign of Edward II., with regard to the condition and action of the Parliament. They contained no very important innovation, but they announce the consolidation and natural progress of the institutions definitively established under Edward I. Tory writers, taking their stand upon the preponderant influence exercised by the great barons during the reign of Edward II., have attempted to cast doubts even upon the presence of the Commons at several of the Parliaments of this period. Whig writers, on their side, endeavour to deduce, from the proofs which are extant of the presence of the Commons, an argument for their great importance and decisive participation in events. The former are mistaken when they deny the presence of the Commons in Parliament, from their having been unable to find any writs of convocation addressed to the sheriffs; for the writs which order the payment of the salaries of the representatives are extant for nearly all the Parliaments of this period. The latter deduce too extensive results from the presence of the Commons in the Parliament: it is beyond all doubt that the high aristocracy, who sat in the House of Lords, then managed and directed affairs almost entirely alone. The progress of liberty is not so rapid; the most important point is, that it be certain. Thenceforward it was certain, and it received great development during the two following reigns.

Lecture XXI.

Of petitions during the early times of representative government. Regulations on the subject. Transformation of the right of petition possessed by the Houses of Parliament into the right of proposition and initiative. Petitions ceased to be addressed to the king, and are presented to Parliament. Origin of the right of inquiry. Necessity for representative government to be complete. Artifices and abuses engendered by the right of petition.

Right Of Petition.

The circumstances which occur at the origin of an institution are well calculated to make us acquainted with its nature. At such periods, events are simple, and produce themselves spontaneously. No effort has yet been made either to evade them or to change their nature, and the state of society is not sufficiently complicated to render it impossible to attain the object aimed at by any but subtle and indirect means.

To say truth, in what does the right of petition consist? It is the right to demand the reparation of an injury, or to give expression to a desire. Such a demand must naturally be addressed to the power which is capable of satisfying the desire or repairing the injury,—which has authority, and power enough to grant the prayer of the petition.

Accordingly, in the fourteenth century, all petitions, whether they emanated from the two Houses of Parliament, or from individuals unconnected with those Houses, whether they had reference to general or private interests, were addressed to the king. No one had any idea of petitioning the Houses themselves; the king governed; in him resided both the right and the power to redress public or private grievances, and to satisfy the requirements of the nation. To him the barons, commons, corporations, and citizens applied whenever they had need.

Presentation Of Petitions.

The king governed in his council: and of all his councils, the Parliament was the most eminent and the most extensive. In certain cases, the advice and acquiescence of the Parliament, as a whole or in part, were necessary to the exercise of the royal authority. The meeting of Parliament was, therefore, the natural opportunity for the presentation of all petitions. It was, as it were, the moment at which the nation and the government met face to face, either to transact in common those affairs which required their concurrence, or to make those reciprocal demands of which they mutually stood in need. Private citizens naturally availed themselves of this opportunity for presenting their own petitions, either because the co-operation of the great powers of the State was necessary to grant their prayers, or because they referred to demands upon which the king was competent to decide alone, but to which his attention would then be more effectually directed, as they might receive support from the patronage of the barons or deputies met in council with the king.

In all cases, it was to the king in his council, that is to say, to the government itself, that petitions were addressed; and far from the Houses of Parliament, after having received and examined them, referring them to the government for decision, it was the king who, by officers specially appointed for the purpose, received and examined them, and afterwards called the attention of both Houses to those with whose prayers he could not comply without their sanction. All complaints and demands were thus forwarded directly to the power entrusted with the duty of coming to a definitive decision regarding them; and the Houses of Parliament interfered subsequently only in certain cases, and then as a necessary council.

Such was the primitive and natural fact. The progress of the representative system, however, completely changed its course and character.

We have seen that, in the fourteenth century, petitions were of two kinds; first, those drawn up or presented to the king, by one or both Houses, and relating to grievances of a more or less general character; secondly, those addressed to the king by corporations or citizens, and relating to collective or private interests. We have now nothing further to do with the first class of these petitions. As far as the Houses of Parliament are concerned, they have become transformed into a right of initiative, more or less efficacious and more or less direct. This right, its importance and its forms, give rise to questions of an entirely distinct character. At the present day, the complaints or demands addressed by private citizens to the legislative authorities, are alone called by the name of petitions.

Assertion Of The Right Of Petition.

There is now no further question about the right of addressing such demands to the executive power itself,—to the government properly so called. No one thinks of contesting the right of citizens to seek in this manner the redress of their grievances, or the satisfaction of their desires. Nor that this right, in itself so simple and incontestable, has not sometimes assumed great political importance, and thereby occasioned animated discussions. In 1680, Charles II., having ceased for several years to convoke a Parliament, a great number of petitions were addressed to him demanding its convocation. The king, by proclamation, declared them seditious, and refused to receive them; but the Parliament having met at last, the House of Commons enacted, on the 27th of October, 1680;

"1. That it is, and ever hath been, the undoubted right of the subjects of England to petition the king for the calling and sitting of Parliaments, and redressing of grievances. 2. That to traduce such petitioning as a violation of duty, and to represent it to his Majesty as tumultuous or seditious, is to betray the liberty of the subject, and contribute to the design of subverting the ancient legal constitution of this kingdom, and introducing arbitrary power. 3. That a committee be appointed to enquire after all such persons, that have offended against the right of the subject." [Footnote 37]

A state of crisis could alone lead to such an attempt to destroy the most natural of the right of citizens—the right of addressing the government itself in order to make known to it their desires—and the Charter, reasonably, neither sanctioned nor limited it. The right to which it gave sanction, and which alone now bears the name of the right of petition, is the right of applying to the two Houses of Parliament to urge their interference, either in some matter of general legislation, or for the redress of private grievances. To this right the question which we have now under consideration is restricted. We must enquire how it became introduced into the representative system of government, and in what respects the various forms which it has successively assumed correspond to the various stages of the development of that system.

Petitions To Parliament.

In fact, this right did not exist in the fourteenth century; that is to say, nobody thought either of exercising or of demanding it. The Houses of Parliament, and particularly the House of Commons, were themselves the great public petitioner. They had quite enough to do to present and obtain the reception of their own demands, without incurring the labour of interfering on behalf of private interests, which at that time were treated generally with much less consideration. They were, moreover, too slightly connected with the government thus to meddle with the details of its action. They were neither the seat nor the centre of power. Their assembly lasted only for a short period. The king's answers to their own demands were ordinarily given only during the next session. In such a state of things, it was natural that all private petitions should go directly to the king in council, for from that source alone could redress be expected.

When the Houses had acquired greater importance, sat for a longer period, and interfered in all great public affairs—when, in full and secure possession of their fundamental rights, they began to apply them to practice instead of limiting their efforts to defend their existence—when, in a word, they had acquired, in public opinion and in reality, the consistency of public powers associated in the government of the State, it became natural that petitions should be presented to them against the abuses or errors of that government which they were appointed to control. The right of petition to the Houses of Parliament was then regarded as a natural consequence of the right of petition to the king. The Parliament was always considered and called the great council of the king. This council, it is true, was habitually in opposition and conflict with the government of the king, which still remained exterior to it, and endeavoured to free itself from its control: but ancient traditions retained their sway; complaint was made to one part of the government against the injuries committed by the other part. The new mode of petitioning did not, therefore, appear extraordinary, and no attempt was made either to authorize or prohibit it. It was brought into use without opposition. [Footnote 38]

"From the first years of Henry V.," he says, "though not, I think, earlier, the Commons began to concern themselves with the petitions of individuals to the Lords or Council. … Many of the requests preferred to them were such as could not be granted without transcending the boundaries of law. A just inquietude as to the encroachments of the king's council had long been manifested by the Commons: and finding remonstrances ineffectual, they took measures for preventing such usurpations of legislative power, by introducing their own consent to private petitions. These were now presented by the hands of the Commons, and in very many instances passed in the form of statutes with the express assent of all parts of the legislature. Such was the origin of private bills, which occupy the greater part of the rolls in Henry V. and VI.'s Parliament."

Right Of Initiative.

But when this practice was introduced, the Houses of Parliament themselves had undergone great change of form, and received considerable development, as regarded their internal constitution, their proceedings, and their privileges. Instead of those petitions which, at the outset, they had been accustomed to present to the king, the right of initiative had been substituted, and this right belonged to every member of either of the two Houses of Parliament who might exercise it by bringing forward, with such formalities and delays as were required by usage, any motion with which he thought it fitting to occupy the assembly.

Mode Of Presenting Petitions.

With the right of initiative was connected the right of enquiry into all such facts or acts as appeared to the House of sufficient importance to induce it to desire a thorough knowledge of them, and afterwards to adopt a resolution regarding them, either of prosecution or of censure, or simply to declare its opinion. On coming before Houses invested with such rights, petitions necessarily took another course than would have been the case had those rights been wanting. And in the first place, it passed into a custom that they must be presented by a member; this custom was not, originally, a precaution against the abuse of the right of petition, but the natural form of its exercise. As every member enjoyed the right to call the attention of the House, by motion, to any particular subject, it was natural that he should make use of this right whenever he became the exponent, to the House, of the demands of his constituents or his friends. By this means, they acquired an authority which they could not otherwise have obtained; the House was thus made to deliberate, not upon the petition, but upon the motion of the member who had presented it, and who had based upon it a proposition either for an enquiry, or for an address, or for a prosecution, or for a law, or for any other act which the House was entitled to accomplish. And whatever this motion might be, it was subjected to all the formalities and all the delays which, on every occasion, regulated the debates and deliberations of the assembly.

Thus invested with all the rights necessary for exercising over the government, by one mode or another, the influence which properly belonged to them, the English Houses of Parliament regarded the petitions which were presented to them merely as an opportunity for exercising this influence in virtue of these rights. They did not act as a sort of patron placed between the petitioners and the government from which the redress of the grievance was definitively demanded; nor did they refer the petition to the government, with a postscript of their own to request the passing of any act of which they were unable to superintend or compel the execution. After its presentation, they no longer had anything whatever to do with the petition; if the motion to which it had given rise were adopted, then began an act of the House itself, accomplished with all the usual formalities, and terminated by a resolution which specially belonged to it, and which placed the government in presence of the thoroughly-discussed and clearly-expressed opinion or will of the assembly which shared with it in the exercise of the supreme power in the nation.

Course Of The Right Of Petition.

When, by a further progress, the government found itself at last obliged to fix its seat within the Houses of Parliament, when they had become once more the great national council, discussing and deciding public affairs in public, petitions also were restored to their natural state, to their primary condition,—that is to say, being addressed to the Houses of Parliament, they were addressed to the king in council, to the government itself, which consisted in the royal power, surrounded by the parliamentary majority, and compelled to justify its wishes and acts against the attacks of the opposition, which sat in the same council, by virtue of the same title, and with the same rights. What has been the consequence of this? Every petition, when converted into a motion by a member of the House, gives rise to a regular combat, conducted according to the usual formalities, between the ministry and the opposition. The issue of this conflict fully decides the fate of the petition, that is to say, the result at which it aims; it has not to go elsewhere in search of a solution; the House has neither compromised itself frivolously, nor given its verdict inconsiderately; and, with the exception of the case of appeal to a new House after a dissolution, all its acts, after having been accomplished in obedience to those formalities which give pledge of their maturity, directly attain their object.

Such has been the course of the right of petition in England. Closely connected with the whole system of representative government, it has kept pace with the progress of that system, adapting itself to its various successive stages, and holding the same rank with the other rights of deliberative assemblies. It has thus been brought back to its true nature, which is incessantly to proclaim and assert, in the centre of the government itself, the grievances and the requirements of citizens, so as to ensure, after mature deliberation, the redress of the former and the satisfaction of the latter.

Abuses Of The Right Of Petition.

I do not say that this result is always attained in England; other causes have, in certain respects, neutralized the natural virtue of representative government, and prevented it from producing all its legitimate results. I merely say that the right of petition has there assumed its reasonable form, and that, but for the action of causes which effect a general change of the system, it would by that form attain the object which its advocates should propose to themselves.

Let us now enquire what must happen in a different state of things, when representative government, though perhaps less changed in certain particulars, is nevertheless much more incomplete. It will be seen how the right of petition may introduce disorder among the public powers of a State, and yet remain almost illusory.

This is the hypothesis upon which I stand. I suppose the Houses of Parliament invested, by right, with great power, associated in the legislation of the country, voting taxes, receiving accounts of the administration of the revenues of the State, carrying on their discussions in public, and enjoying a large amount of liberty in these debates. It is beyond a doubt that, in the public opinion, they will be held to possess the mission and the power to obtain the redress of all grievances, and the satisfaction of all legitimate requirements, and to compel the executive power to act, on all occasions, in accordance with justice, the laws, and the general interests of the country. It is from the action of the Houses of Parliament that the public and the citizens will expect all that they desire or hope; and towards them they will turn their eyes to obtain it.

Such being the disposition of the public mind, if these same Houses do not possess the right of initiative, or the right of enquiry, or any positive external jurisdiction—if it is not in their power to set themselves in motion and to pursue their own objects—in a word, if their means of direct action are far below their written mission and the public expectation, what will be the consequence?

Evidently both the Houses and the public will seek for indirect means of exercising that influence which rightfully belongs to them, and which is actually imputed to them. And if the right of petition had been solemnly sanctioned, to it will resort be made to supply the place of deficient rights, and by it will members of the Houses strive to obtain that control over the whole government, of which it has been attempted to deprive them.

Who cannot perceive, for example, that the right of petition is a real right of initiative, since its effect is to introduce, into the Houses of Parliament, questions which the government has not brought forward, and to give rise to discussions which the government has not originated? Thus, the right of initiative, though denied to members of the Houses, belongs to all citizens, to the first comer, even to a fictitious name. The elect of a large number of citizens may not provoke his colleagues to discuss with him a solemnly propounded question: but if he leave the House, if he cast aside his character of representative and assume that of petitioner, he has the power to do so, and the humblest citizen possesses it equally with himself. Thus, instead of an initiative, the utility and propriety of which would be guaranteed by the character and position of the members of the Houses, an initiative is substituted which is guarded by no guarantee, and which imposes no moral obligation upon the man who exercises it, since he is not a part of the public power which he sets in motion.

And as this power holds a very lofty position in the public opinion, as it is supposed to possess the mission and the power to remedy every evil, its interference will be solicited in matters of all kinds; it will be called upon to deliberate upon affairs most foreign to its attributes; and its petitioners will afterwards be astonished to find its actual power so limited in comparison with the immensity of the rights which it is supposed to enjoy.

It will soon be felt that there is disorder in such a state of things, and attempts will be made to remedy it. Restrictions will be imposed, if possible, upon this universal initiative. The remedy would present itself spontaneously, if every member of the legislative assemblies had the right to propose such motions as he judged fitting. It would then come to pass, as it did in England, that every petition must be presented by a member, and must become, on his part, the subject of a motion. Thus the members themselves would exercise over petitions that kind of censorship from which it is impossible to liberate them. In the absence of this censorship, another kind is invented; the petitions are referred to a committee ad hoc, appointed to examine them beforehand, and to call the attention of the House to those which appear to deserve its notice; but to whom does this censorship belong? to the parliamentary majority which names the committee. This is the reverse of the natural order of things. Petitions almost always belong to the minority. The minority presents and supports them. The minority is, consequently, placed, in this respect, at the discretion of the majority, whose censorship may become a means of tyranny; whereas, if the right of initiative belonged to all the members, a legitimate censorship would be established, which would refuse to bring forward a multitude of unsuitable petitions, and would neither reject nor postpone any of those which were possessed of real importance.

Discussion Of Petitions.

After the first step in the exercise of the right, that is to say, after the presentation of petitions, comes their discussion. If they could be introduced by a member only, this discussion would be subject to all the delays and formalities required for the due regulation of legislative debates. A first motion, for instance, would suggest that the petition should be read; a second, that it be printed; a third, that it form the subject of an enquiry, or of an address to the crown, or of a law. During this process, facts would be cleared up, and opinions would be formed; and a conflict would occur between the minority and the majority, only if the latter should formally refuse to grant the justice demanded, or to comply with the wish expressed. In the other system, on the contrary, the debate must be precipitate and confused; the House and the government must adopt their resolution in a few moments, often without thoroughly understanding what they demand of, or refuse to, one another. Petitions succeed and fall upon one another with a rapidity that produces sometimes violence, and sometimes indifference; and the right of petition itself thus becomes an occasion of disorder, or is treated with a sort of levity and disdain which compromises it in the legislative chambers, and also compromises the Chambers in the opinion of the public.

Right Of Enquiry.

The manner in which petitions are introduced into the Chambers is not the only cause of so vicious a mode of deliberation, but the absence of the right of enquiry also contributes greatly towards it. Every petition received by one of the Chambers calls for a resolution on its part; there is therefore something more than mere singularity in depriving it of the means of adopting that resolution with a full knowledge of the cause. It is a great defect of representative government that, leading as it necessarily does to the systematic organization and permanent conflict of parties, it habitually divides the truth into two parts, and induces men never to consider questions on more than one side, and to see only half the ideas or facts in reliance upon which their decision must be made. It is, without doubt, a system of exaggeration and partiality; and this evil is, to a certain point, inevitable. All means of diminishing it are, therefore, of great importance. Now, the most effectual, indisputably, is to compel opposing opinions to unite, on certain occasions, in a common search after truth. This is the effect of the right of enquiry. When these opinions reach the moment of decision, without having been brought into contact or made acquainted with each other, without having been constrained mutually to communicate motives and facts, their resolution will chiefly be dictated by party spirit, and by anterior engagements which have experienced no necessity to modify it. Everything, on the other hand, that brings the minority and the majority into presence, before the moment when they must appear in public and pronounce their decision, draws them for a time out of their habitual sphere, and leads them to extend or to correct their ideas. This is especially the case in reference to facts. It is immensely inconvenient if all communications of this kind can only be made at the rostrum, and in the midst of the decisive combat; for they are then rejected, and scarcely ever influence the decision. Thus, as the absence of the right of enquiry leaves parties in their natural ignorance and primitive crudity, it is injurious not only to the goodness of the special resolutions of deliberative assemblies, but also to the wisdom of their general arrangements.