strictly observed, and Edward himself, in 1281, on his own
authority, altered several of the statutes which had been passed
in 1278 by the Parliament at Gloucester. Nothing therefore was
more irregular and uncertain than the rights of the public and
the forms of government at this period. Principles were professed
which were only very partially carried into practice, and which
were often entirely neglected. But in the midst of this apparent
disorder, great institutions were gradually being formed; the
innovations of the preceding reign became habits, and these
habits, sanctioned by time, became necessities. Thus rights were
established.
As to the distinction which I have just made between the
different assemblies which met at this period, as they are all
equally called Parliaments, and exercised at various times the
most different powers, it is difficult to fix precisely upon
those which ought to be regarded as positive Parliaments. The
boundaries which separate them are contracted and often
imperceptible; it would be great temerity to pretend accurately
to determine what was the real character of any particular
assembly, and consequently whether it ought or ought not to be
regarded as a Parliament. Whenever Tory writers have not found
the presence of county and borough deputies attested by positive
and official proof, such as the writs of convocation, they have
denied the fact of their presence. But this is an excessive and
partial exactness: very often the chronicles of the period supply
the lack of writs, and indicate that these deputies were present.
I will now point out the principal facts which have been omitted
by these writers, which prove that complete Parliaments were
frequently holden.
While Edward was still in Palestine, a Parliament was assembled
in Westminster to take an oath of fidelity to the new king from
the hands of the Archbishop of York, and, according to several
chroniclers, four knights from each shire and four deputies from
each city were summoned thither.
Edward, on his return to England, convened a new Parliament at
Westminster, on the 25th of April, 1275. The preamble to the
statutes which were on that occasion decreed has been preserved:
it declares that "these statutes have been made by king Edward by
the advice of his council, and with the consent of the
archbishops, bishops, abbots, priors, barons, and _of the
commonalty of the kingdom_."
{371}
In the following year another Parliament was assembled in the
same place; it was constituted in the same manner, and, to all
appearance, consisted of the same members.
The year 1283 offers many proofs of the admission of deputies
from the Commons into Parliament. In the month of January two
extraordinary assemblies were convened, one at Northampton, the
other at York, to raise the forces and obtain the subsidies that
were necessary for the conquest of Wales. The writs of
convocation have been preserved: in the one case, the sheriffs
were ordered to send to Northampton all the freeholders who
possessed a revenue of more than twenty pounds sterling; in the
other case, they are enjoined to cause to be elected in each
county, city, borough, and mercantile town (_villâ
mercatoriâ_), four knights and townsmen having full power "for
the whole of the commonalty." Lastly, in the month of June of
this same year, a Parliament met at Shrewsbury, in order to
decide on the fate of David, prince of Wales, who had been made
prisoner, after the conquest of that country. The writs of
convocation are of four kinds: the first are addressed
individually to one hundred and eleven earls or barons; the
second to the magistrates of twenty-one towns or boroughs; the
third enjoin the sheriffs to cause two knights to be elected for
each county; the fourth are addressed to seventeen members of the
king's privy council, among whom are the judges. Prom 1283 to
1290 we meet with several Parliaments, some of which are even
celebrated by the statutes which emanated from them; however,
there is no proof that any deputies from counties and boroughs
were present at them.
But, in 1290, Edward on his return from France convened a
Parliament at Westminster, in which it is certain that some
county deputies sat. A writ has been preserved dated June 14th,
1290, addressed to the sheriff of Northumberland, and ordering
him to cause _two_ or _three_ knights to be elected.
There is every reason to believe that this county was not the
only one thus privileged, and that there were others which also
sent deputies to this Parliament. This convocation was probably
intended to enable the county deputies to pronounce concerning
the statute _Quia emptores terrarum_, which authorised the
proprietors of fiefs to sell them at their discretion, and
rendered the subsequent possessors direct vassals of the lord of
the fief, while the sellers ceased to be such; this removed the
necessity of sub-enfeofment, and must have considerably increased
the number of the direct vassals of the king. Boroughs were not
represented in this Parliament: probably because the matters of
which it treated did not immediately concern them.
{372}
The First Complete Parliament.
From 1290 to 1294 we find several Parliaments in which there is
no indication that county and borough deputies had a seat. In
these Parliaments the affairs of Scotland were considered. The
magnates of the kingdom alone took part in them. In the
Parliament held at Westminster in the month of October, 1294,
only borough representatives are wanting; county deputies were
admitted to it; they granted to the king a tenth of the moveable
wealth of the kingdom.
In the following year we find that not only the boroughs and
counties, but even the inferior clergy, exercised the right to be
represented in the great assembly held at Westminster in the
month of September, 1295. We possess the writs of convocation
addressed to the bishops and archbishops, ordering them to cause
a certain number of deputies for the chapters and for the clergy
to be nominated; we have also those which summon forty-nine earls
or barons individually, and those which enjoin the sheriffs to
cause two knights to be elected for each county, and two deputies
for each borough in the county. These boroughs were about a
hundred and twenty in number. This assembly was more general in
its character than any other that had as yet met; all classes of
society had access to it, and we may truly say that the entire
nation was represented. Accordingly the regular and complete
establishment of the British Parliament is generally dated from
this year, 1295.
This great assembly did not act as one single body; it was
divided into two houses, the one containing lay representatives,
the other ecclesiastical; and not only was the place of their
meeting distinct, but their votes were distinct also. The barons
and knights granted to the king an eleventh of their moveable
wealth; the townsmen gave a seventh, and the clergy, after long
disputes with the king, ended by only granting him a tenth, which
was the offer originally made.
{373}
The Commons In Parliament.
The Parliament which was held in the month of August, 1296, was
constituted in the same way as its predecessor, and the votes in
it were similarly divided. The barons and knights granted only a
twelfth part of their moveable property, and the burgesses an
eighth.
In 1297, a Parliament met at Salisbury, but the writs by which it
was convened are lost; we do not therefore possess any direct
proof of the presence of deputies from counties and boroughs in
this assembly; however, there is extant a writ of the 30th of
July, in the same year, in which Edward states that the towns and
counties have granted him subsidies, and this indirect proof may
supply the want of the writs of convocation.
During this same year (1297), the quarrel broke out between the
aristocracy and the crown on the subject of the confirmation of
the charters, and the Earls of Norfolk and Hereford, by their
bold steadfastness, secured victory for the national cause, and
extorted from the king a complete and definite sanction to the
rights and institutions whose maintenance they vindicated. We
find at this time that two deputies were summoned from each
county to receive from the hands of the prince-regent those
charters which had been confirmed by the king.
From the time when these charters were definitely confirmed, the
convocation of deputies from the counties and boroughs was no
longer an irregular and arbitrary transaction,--it became a
necessity. Accordingly, their presence in the Parliaments is
constantly attested by authentic proofs.
Thus they were admitted to the Parliament convened at York, on
the 15th of April, 1298; the writs of convocation of which are
preserved. They were also present in the Parliament held at
Lincoln on the 29th of December, 1299. The writs of convocation
for this Parliament are similar to those which convened the
preceding one. They summon the same deputies who had been present
at the last Parliament, enjoining further that substitutes should
be chosen in the place of any who had died since that time. We
find, moreover, that writs were addressed to the chancellors of
the Universities of Oxford and Cambridge, requiring them to send
to the Parliament four or five deputies in the case of Oxford,
and two or three from Cambridge; and directing them to select
such deputies from among those who were most discreet and most
learned in the law--_de discretioribus et in jure scripto magis
expertis prædictæ Universitatis_.
{374}
Composition Of Parliament.
Lastly, the writs of convocation for the Parliament held at
Westminster on the 24th of July, 1302, are in all respects
similar to the preceding.
I will not further trace this series of facts, which henceforth
ceases to be remarkable because of its unvarying uniformity.
Suffice it to say that all the Parliaments which were held during
the last five years of the reign of Edward I. were of the same
nature and composed of the same members. Two of these, however,
deserve special attention. The first is that held at Westminster
in 1305. The particulars of its dissolution are preserved to us,
as well as those which relate to the mode in which the petitions
which already flowed into it were received. The second is that
which met at Carlisle in 1307. We have the lists of the bishops,
abbots, priors, earls, barons, &c., who sat in it. The number of
earls or barons amounts to eighty-six, that of the bishops and
abbots to sixty-eight. There were besides a great number of
deputies from the inferior clergy, forming the lower house of the
ecclesiastical convocation; and there were, moreover, two knights
from each county, two citizens from each city, and two burgesses
from each borough.
From all these facts it follows that, if at the commencement of
the fourteenth century the Parliament was not yet constituted in
an actual and definite form, yet it already rested on a fixed
basis: moreover, as to its composition, we may deduce from the
facts to which I have already referred, the following results:
I. The Parliament was composed, in the _first_ place, of
earls or lay barons convened individually by the king;
_secondly_, of archbishops, bishops, abbots, and priors,
also summoned individually; _thirdly_, of deputies from
the knights or freeholders of the counties; _fourthly_, of
deputies from cities, towns, and boroughs.
{375}
II. No law or statute, no ancient or recognized right,
determined who were the earls, barons, abbots, &c., whom the
king was bound to convoke individually. He acted somewhat
arbitrarily in this respect, often omitting to summon those
whom he had summoned on previous occasions. [Footnote 33] These
omissions were sometimes, though rarely, resisted by protests.
The importance of a noble and of his family was the only
guarantee of his convocation to the Parliament. Disorder, civil
wars, and confiscations, prevented this convocation from being
an incontestable and hereditary right, except in the case of a
permanent feudal tenure.
[Footnote 33: Thus Edward summoned to the Parliament of
Shrewsbury (1283) a hundred and eleven earls or barons; to
the Parliament of Westminster (1295), he only summoned
fifty-three; and out of the hundred and eleven who were
present in 1283, sixty were absent in 1295. The latter
Parliaments of his reign furnish several instances of similar
irregularities. Thus we find at this time ninety-eight lay
_proceres_ who were only once summoned to the
Parliament, and fifty who were summoned once, twice, or three
times. There was a distinction among the barons who were
summoned individually: some were summoned by virtue of their
feudal tenure, others, only in virtue of the writ of
convocation, whether they were or were not immediate vassals
of the king. These last exercised in the Parliament the same
rights as the former, only it does not appear that the sole
fact of a writ of convocation conferred upon them a
hereditary right. There are even several examples of
ecclesiastical peers who were convened by special writs, and
who obtained a discharge from the obligation to attend the
Parliament by proving that they held no fief of the king. The
practice of creating barons or peers was of later
introduction: _first_, by a statute of the Parliament
(under Edward III.); _secondly_, by letters patent from
the king (under Richard II.).]
III. The principal functionaries of the king, such as the
judges and members of the privy council, were almost always
convened to the Parliament by virtue of their official
position; indeed, they were uniformly either earls or barons.
IV. The convocation of county and borough deputies was not a
legal or public necessity; but it became an actual necessity by
the predominance of the principle that consent in all matters
of impost was a right.
V. The convocation of county deputies was more certain and
regular than that of borough deputies; more certain, because it
originated partly in a right which had not then been questioned,
and which it was necessary to respect, the right, namely, of
every immediate vassal to a seat in the general assembly; more
regular, because the county courts, which were all composed of
the same elements and possessed of the same interests,
constituted a uniform and identical whole throughout England,
so that some could not be admitted to the privilege of
representation without all the rest being admitted also.
{376}
As the towns and boroughs, on the other hand, only owed their
admission into Parliament to varying causes without unity or
connexion with each other, and were only called to assist in
matters which concerned themselves individually; so the
admission of a representative from one town did not at all
involve the admission of representatives from other towns, nor
even the continuance of this privilege in any one case.
VI. The number of town and borough deputies was not fixed. The
king determined this arbitrarily. Nevertheless the convocation
of two deputies for each county, and as many for each borough,
passed into a rule.
VII. However irregular the convocation of borough deputies
might be, there is no reason to think that the number of
boroughs which were then represented in the assembly was as
limited as has been assumed; there is no reason to think, as
has been maintained by Tory historians, that only towns in the
domains of the king originally sent deputies to Parliament. The
assumption is, on the contrary, contradicted by facts which
prove that, besides the towns belonging to the royal domain,
those which had received a charter of incorporation, either
from the king or from some great baron, were represented; as
were also those which, without having received any such
charter, were rich enough to pay the expenses of their
deputies. However, the importance of particular towns, and the
necessity that was felt for their concurrence in public
business, was in this respect the only rule; and most
frequently, the choice of the towns which should be represented
was left to the arbitrary decision of the sheriffs.
{377}
Lecture XIV.
Mode of election of the deputies of counties and boroughs.
Who were the electors?
No uniform principle to regulate elections in boroughs and
towns.
Voting in public.
Who Were The Electors?
We have seen how county and borough deputies were introduced into
Parliament; but we are still far from having obtained a complete
and correct idea of representative government as it existed in
England at the period at which we have now arrived. We have yet
to learn by whom and in what manner these members were
nominated--in a word, what was then the electoral system, if we
may be allowed to give this name to a collection of isolated
customs and institutions unconnected with each other, and almost
entirely destitute of any generality or unity of character.
The two political parties, whose opposition and debates are met
with at every step in the study of English institutions, have not
failed to resolve this question, each in a different manner. The
Tories, always disposed to limit the boundaries of public
liberty, maintain that the introduction of county members into
Parliament arose primarily from the impossibility of uniting in
the general assembly all the direct vassals of the king, the
whole body of whom alone had the right to be present; and that
landowners of this class were originally the sole electors of
these representatives. The Whigs assert, on the other hand, that
all the freeholders in the county, whether direct or indirect
vassals of the king, have always taken part in this election.
I shall seek the solution of this question exclusively in the
facts which have special reference to the introduction of county
members into Parliament; and as this change has been the result
not of secondary or unforeseen circumstances, but of the natural
course of time and of events, it is needful first to call to mind
the general facts which preceded it and gave it birth.
{378}
Origin Of County Freeholders.
We have seen that, a large number of the direct vassals of the
king having very early renounced, on account of their small
wealth or influence, their attendance at the general assembly,
their political existence became localized and restricted to
county affairs, and to attendance at the county court, at which
those affairs were transacted. The direct vassals of the king,
however, were not the only persons interested in the affairs of
the county. Many other freeholders, whether vassals of the great
barons or originally simple socagers, possessed considerable
wealth and influence; [Footnote 34] and as actual possession at
this period was almost the only arbiter of right, there is little
doubt, _à priori_, that all the freeholders of any
importance in the county were then admitted to the county-court,
to direct the administration of justice and to discuss their
common interests.
[Footnote 34: It may be seen in the Black Book of the
Exchequer that Godfrey Fitzwilliam, in Buckinghamshire, held
twenty-seven knights' fiefs of Earl Walter Gifford, whilst
Guilbon Bolbech, in the same county, held of the king only
one knight's fief.]
These probabilities are changed into absolute facts by the
testimony of history. It is proved that the knights, who were
direct vassals of the king, did not alone compose the
county-courts. From the time of William the Conqueror to the end
of the reign of Edward I. a multitude of deeds, laws, writs, and
historic records prove that all the freeholders, or nearly all,
sat in these courts; and that if there were some exceptions to
this rule, they did not in the least proceed from any general
distinction between the direct or indirect vassals of the king,
but merely from particular conditions imposed on individual
tenures. For it does not appear that all freemen-landholders were
equally compelled to make their appearance at the county-courts,
as this service was esteemed a burden rather than a privilege.
It may then be regarded as certain, that either by the fall of
many of the direct vassals of the king, or by the elevation of a
great number of the simple vassals of the nobles, there had
arisen in every county a body of freeholders, all of whom, in
reference to the affairs of the county, and independently of the
nature of their feudal relations, possessed the same importance
and equal rights.
{379}
Functions Of The County Courts.
The county-courts, thus composed, exercised the right of election
long before the regular and definitive introduction of their
representatives into Parliament. Here officers invested with the
powers necessary for the transaction of the county business were
sometimes elected; and sometimes knights were appointed to
execute the measures of the central government, or sent thither
as bearers of complaints or representations. Instances of such
elections are numerous. The charters have frequently prescribed
them, and they are continually spoken of in the chronicles.
It cannot be affirmed that this appointment of particular knights
for the transaction of specific local business was always
conducted in a regular manner and by a distinct election. It was
sometimes done by the sheriffs alone: but it is certain that most
generally it took place "by the community of the county, with the
consent and by the advice of the county, _per communitatem
comitatûs, de assensu et consilio comitatûs_."
We gather from all these facts, first, that before the
introduction of county-members into Parliament, the direct
vassals of the king, who, on account of their inferior
importance, had ceased to attend at the general assembly, did not
form a distinct body in the county-courts, or a particular class
of landowners invested with peculiar rights; but that, on the
contrary, they were merged in the general class of freeholders,
nearly all of whom also attended the county-court, and there
exercised the same rights; and, secondly, it is unquestionable
that this assembly of freeholders was in the habit, in certain
cases, of appointing some one of its members either for the
management of the county business, or for any other purpose.
Are we to believe that when the object in view was sending
representatives of the county to Parliament, there was
substituted, in place of the existing order of things, a new
order by which to elect them? or, in other words, that those
freeholders, who, though direct vassals of the king, were on the
same footing with the other freeholders as regarded all the
operations of the county-court, were distinguished from them by
being alone called upon to elect members of Parliament? Nothing
is less probable in itself, and in fact nothing is less true than
that there was such a disorganization of the county-courts at
election times.
{380}
Rights Of The Freeholders.
It is not at all probable, because, in the state of society at
this period, the _status quo_ almost always ruled. We are
greatly deceived if we expect to find the institutions of the
time under the sway of some general rule, and issuing in the
inevitable consequences of a principle. There was no such
dominant general rule or principle. When a new law appears, it is
the product of facts, not of a theory. When any new demand is
made upon society, it is society in its actual condition, and not
a systematically constituted society, which replies to the
demand.
The freeholders in general formed the county-court on every
occasion, and took part in all its acts. What reason could there
be for suddenly setting aside an established custom in order to
create a privilege in favour of certain landowners whose
position, although special in some respects, was but little
distinguished from that of others? Was there any occasion for an
act so unusual that it could not be put in force without
subverting the customs then in vogue? There was none: on the
contrary, this act appeared to the county landowners as only
another circumstance allied to the many existing facts of the
same description: they neither foresaw all the importance which
this fact could not fail to acquire, nor all the consequences to
which it would necessarily lead. This election of knights
summoned to Parliament, although somewhat more important than
other elections, resembled all those which were frequently made
in the county-court, and in which every freeholder took part. Why
should the right of voting on such occasions have belonged
exclusively to particular individuals among them? Were they not
all equally interested, as the majority of the taxes were levied
on their personal property; and the principal duty of the
deputies was the settlement of the taxes? How is it possible to
believe otherwise than that this, like every other election, was
made by all the members of the county-court without distinction?
Facts, I repeat, confirm these probabilities. The writs addressed
to the sheriffs by the king for the election of county members,
are conceived in the same terms as those issued for elections
relating exclusively to the administration of local affairs.
{381}
Forty-Shilling Freeholders.
They equally set forth that these knights shall be elected with
the assent of the community of the county, _de assensu
communitatis comitatûs_. Further, the returns of the sheriffs
declare that the election has been made "in full county, by the
whole of the community of the county," _in pleno comitatu, per
totam communitatem comitatûs._ Under the succeeding reigns,
terms yet more formal were employed; thus, about the middle of
the reign of Edward III. the writs contain, that the election
ought to be made "according to the will, and with the consent, of
the men of the county," _de arbitrio et consensu hominum
comitatûs_. Finally, facts which have come down to us from
later times prove that all freeholders possessed an equal right
of participation in these elections. In 1405, a statute of Henry
IV., intended to prevent certain abuses committed on these
occasions by sheriffs under the preceding reign, orders among
other things, that "all those who should be present at the
county-court, even when they had not been duly summoned thither
by the sheriff, should take part in the election." Lastly, under
Henry VI., the great number of the freeholders having given rise
to many disturbances during the elections, two statutes (the
first issued in 1429, and the second in 1432) limited the right
of suffrage to freeholders possessing an annual income of forty
shillings: this was the first and last limitation of the kind,
and it still continues to subsist in England.
Thus, moral probabilities and historical facts alike indicate,
that since the origin of the Parliament in its actual form, the
representatives of counties have been elected not only by the
direct vassals of the king, but by all the freeholders, whether
mediate or immediate vassals, who composed the county court. In
order definitively to establish this opinion, nothing remains but
to examine the proofs that are alleged in favour of the opposite
opinion. These may be reduced to two: first, it is said, that as
the direct vassals of the king alone possessed originally the
right of sitting in the general assembly, and as the election of
knights of the shire arose entirely from the impossibility of
assembling in Parliament all the direct vassals of the king, the
latter alone must have been the electors of the representatives
who were sent in their place. Secondly, the vassals of the barons
long demanded exemption from the obligation of contributing to
the payment of the fees allotted to the county members, which
proves that they could not have shared in the election; for had
they done so their claim would have been absurd.
{382}
Refutation Of Tory Theories.
Both these proofs have the fault of being indirect, and of
resting upon consequences deduced from general facts, and not
upon special and positive facts, such as those I have just
adduced in support of the contrary opinion. Moreover, the first
argument supposes the existence of a general and absolute
principle which was invariably followed; and that the county
members were summoned to Parliament only to represent the direct
vassals of the king. This supposition is neither probable nor
conformable to facts. We again repeat, that there was at this
period no general principle, no fixed and invariable rule.
General principles and their consequences exist only in a calm
and settled state of society; they are incompatible with a rude
population and long-continued disorder. How, then, could social
classifications and their corresponding rights have remained
fixed and distinct in the midst of such chaotic confusion?
Besides, the feudal system never exercised such complete sway in
England as to insure anything like a strict observance of its
principles. It is true that the right possessed by all the direct
vassals of the king to appear in the central assembly, was one of
the sources of county representation; but when this right, after
having fallen into desuetude, began to revive in the persons of
representatives, it was outweighed by an actual and more powerful
circumstance, the formation of the general class of freeholders,
meeting at the county-court, and there exercising the same
functions and equal rights. This fact is incontestible; so the
Tories are compelled to acknowledge that the deputies were
elected by all present at the county-court. But how do they
attempt to escape from the consequences of this confession? They
maintain that the direct vassals alone sat in the county-court:
an opinion too much opposed to the nature of things and to all
the facts which I have brought forward, to require refutation.
{383}
There is another difficulty which perplexes Tory writers, and
which they are equally unsuccessful in their attempts to
surmount. It is impossible for them to deny that under the reigns
subsequent to that of Edward I., and especially under Henry IV.,
all the freeholders in the county took part in the election: now,
to avoid this embarrassment, it is pretended, that taking
advantage of the disorder of the times they had usurped the right
of suffrage, and that the statute of Henry IV. (in 1405) for the
first time legalized this abuse, and lawfully summoned the
freeholders to the election of deputies. There is no probability
in this supposition, which is not supported by a single fact.
Between the reigns of Edward I. and Henry IV., nothing can be
discovered which indicates the usurpation of the electoral right
by a portion of the freeholders who had remained till then
strangers to the election. No trace of change in the composition
of the county-courts is to be found, nor any alteration in the
form or language of the writs of convocation. Everything
indicates, on the contrary, that the elections continued to be
conducted as in former times; and that the statute of Henry IV.
has evidently no other object than to prevent the illegal
practices of the sheriffs, which had become scandalous under the
reign of Richard II. Thus, in whatever light it is viewed, this
first argument is utterly valueless.
Payment Of Representatives.
The second is of no greater worth. It is founded upon the
supposition that those only who have a voice in the election of
representatives ought to contribute to the payment of their
salary. Now this supposition is explicitly contradicted by a writ
of Edward III., which proves that even the _villani_, the
simple husbandmen, who certainly took no part in the election,
were required to contribute to the payment of the fees. If it
appear, then, that the freeholders demanded release from this
impost, it cannot thence be concluded that they had no share in
the election.
In these demands there is nothing extraordinary. The office of
member of Parliament was originally more an onerous burden than
an advantage. The person elected was compelled to give security
to guarantee his attendance at the assembly. A curious instance
is mentioned of an elected knight who could not find the required
bail; the sheriffs, therefore, seized his oxen and farm-horses to
compel him to fulfil the duties of his office. In a short time,
to render the charge less onerous it was made lucrative: fees
being awarded to the representatives. These fees were levied on
the entire county, with the exception of certain particular
immunities.
{384}
A writ of Edward III. proves this distinctly. It is true that the
vassals of the barons, chiefly under the reign of Edward III.,
made frequent claims of exemption from payment of the salaries
due to the members: but these were not founded upon the
circumstance that they had had no share in the election; they
rested on a pretext derived from feudal law, maintaining that, as
their lords sat in Parliament in their own right, that is to say,
in their quality of peers, they were represented by them, and
ought not to pay the salaries of the county representatives. It
is evident that these claims proceeded from confusing ideas of
the ancient feudal representation (a fiction which rendered the
noble in some sort the proxy of his vassals) with ideas of the
new system of representation. These facts in no way prove that
the vassals of the barons took no part in the election of the
county members; all that they indicate is that the collection of
the members' salaries was very arbitrary, and was regulated by
different customs in each county; no conclusion can, however, be
drawn from them relative to electoral rights.
Now that I have reduced to their just value these two arguments,
the sole support of the opinion which I oppose, it appears very
nearly certain that all the freeholders who attended the
county-court united in the election of the representatives,
whatever might be the nature of their feudal relation to the
crown.
Election Of Borough Representatives.
Having completed our researches into the election of county
members, let us next examine how the election of the
representatives of boroughs was conducted.
Although in the county-courts no fixed rule nor systematic
distinction regulated the distribution of electoral rights, there
was at least something general and identical in them throughout
England. The counties were territorial districts of the same
nature; the county-courts, wherever situated, were the same
institution, and the freeholders formed one class of men. Out of
circumstances nearly everywhere alike, there naturally arose an
electoral system in all places the same.
{385}
It was not, nor could it be thus with respect to the boroughs.
They had acquired their liberties successively to a greater or
less extent, and under a thousand different forms. The political
state of one town gives no clue to that of other towns, as they
were not at all correspondent to one another. Sometimes the
municipal rights belonged to the more or less numerous
corporation which held the town in _fee-farm_; sometimes to
the general body of freeholders who held their houses in
_burgage-tenure_, a kind of tenure analogous to the tenure
in _socage_; sometimes to the entire body of householders;
occasionally, but more rarely, to the whole of the inhabitants.
When any particular borough was summoned to send deputies to
Parliament, it occurred to no one to consider this new right as
distinct from their municipal rights, and to regulate the
electoral system on a separate basis. This summons had reference
to the borough in its existing condition, and did not introduce
the slightest innovation into the exercise of the civic
authority. The citizens who, in virtue of their charter, enjoyed
the right of managing the affairs of the borough, also exercised
that of naming its representatives. There was then nothing
general or uniform in the foundation of this new right, and it
would be impossible to reduce the elections in towns and boroughs
to any common principle. We can only examine a number of
particular facts, and derive from them the following results:--
I. The political right of electing members of Parliament was
not distinct from the municipal rights of the borough, and was
exercised in the same manner and by the same citizens.
II. From this it follows that the election was commonly made by
the council, who directed the local interests of the borough:
the number of electors, therefore, was very limited at the
outset.
III. Where a corporation held a town in _fee-farm_, it
also possessed the right of appointing the members of
Parliament. These corporations were generally composed of a few
individuals.
IV. As the freeholders of many boroughs sat in the
county-courts, not a few of the elections of borough members
took place originally in these very county-courts, and by the
borough freeholders who repaired thither, and who exercised
this power either on their own account, or as authorized by
their fellow-citizens.
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V. The writs or orders for the election of deputies were at
first addressed directly to the borough magistrates themselves.
This, at least, was the case in 1264, the period of the first
convocation with which we are acquainted of the representatives
of boroughs under Henry III. In 1283, the same procedure was
followed by Edward I. for the convocation of the Shrewsbury
Parliament, to which the representatives of twenty-one boroughs
were summoned. In 1295, the writs were addressed to the
sheriffs of the counties in which the boroughs were situated,
and from that period, this has been the habitual and legal form
of convening the boroughs. In 1352 and 1353, however, Edward
III. addressed his writs directly to the municipal magistrates,
on the first occasion for ten boroughs, and on the second for
thirty-eight. These are the last examples of similar
convocations. The Cinque-ports remained the only boroughs which
received the writs directly.
Corruption Of Borough Representation.
These facts explain how borough-representation has been so easily
corrupted in England, and remains so disgraceful to this day.
[Footnote 35] In every town political rights have remained
restricted to the municipal bodies, who, originally, were usually
comprised in a very narrow circle. The general tendency has been
ever since, and especially at the period of the revolution of
1640, to extend electoral rights in boroughs, and thus to render
the election more popular; but, on the whole, the choice is
invariably made by the municipal powers, organized according to
their ancient charters of incorporation. In the counties,
electoral rights have adapted themselves to all the vicissitudes
of property, and have become proportionably extended: in the
boroughs, they have remained unaltered. Every unchangeable
institution is vicious, because ultimately it will be sure to
establish privileges in opposition to the actual state of
society.
[Footnote 35: Before the reform of Parliament in 1832.]
I should wish to be able to add to these researches into the
electoral system of England in the thirteenth century some
particular and circumstantial details concerning the forms of
elections; but nothing can be discovered on this subject, either
in history or in the laws. The laws did not mention the matter,
because at this stage of civilization it is not thought that such
things require to be either regulated or expressed.
{387}
It is probable that the electors, who were generally very few in
number, agreed among themselves, in presence of the sheriff, on
the representatives they wished to appoint; and that the sheriff,
by a writ, informed the Court of Chancery of the nomination. The
only important circumstance in this mode of election was the open
voting, which has been perpetuated to this day. Nobody then
attached sufficient importance to his choice to think concealment
necessary.
Forms Of Borough Elections.
Until the reign of Henry IV., we do not find any law respecting
the forms of election. In proportion as the elections became
important, the sheriffs, profiting by the absence of all forms,
took the matter into their own hands, and managed it agreeably to
their own will. The law to which I refer was passed in order to
prevent these abuses. Here, as everywhere, the organization of
sureties took place long after the recognition and exercise of
rights.
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Lecture XV.
Philosophical examination of the electoral system in England in
the fourteenth century.
The system was the natural result of facts.
Who were the electors?
Four principles which determine the solution of this question.
Character Of The English Electoral System.
The facts adduced in my previous lecture, prove that the
electoral system of England in the fourteenth century was
determined by no philosophical combination, by no general
intention. This system arose naturally and spontaneously, out of
facts. Its study is therefore more curious and interesting:
modern times are full of science and artifice; institutions do
not now become developed with simplicity and freedom; under the
pretext of giving them regularity, things are distorted, to suit
some particular interest, or to accommodate a theory. Nothing of
this nature occurred in the formation of the British Parliament;
science did not then exist, and cunning was unnecessary. The
House of Commons was not of sufficient importance for the
executive to be much disturbed about its origin; the office of
member for a county or borough was not enough sought after to
induce different interests and parties to direct all their
instruments of warfare and stratagems of policy to this end.
Representatives of the country were required, who were to be
chosen by the method of election--but this election had no
occasion to adapt itself to a theory, or to be false in any way.
In such a state of society, the electoral system might be vicious
and incomplete in a thousand ways; its forms might be irregular
and destitute of all needful guarantees, but its general
principles would be natural and sound. These principles are what
I propose to seek after, and to bring to light, in the present
Lectures. They were neither known or thought of in the fourteenth
century, but they exist in facts; for there is a reason for every
fact, and all are subject to certain laws. Before entering upon
the ancient English electoral system, singly and in itself, we
should first consider it in its relations to society in general,
to the powers by which it was ruled, and to the liberties which
it enjoyed.
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Modern Political Science.
In the present day, political science has rarely considered
questions in this point of view, though it is the first and most
important of all; it has operated on society and its government
by a process of dissection; it has taken all powers and rights
one by one, and has endeavoured to define each separately, and
with regard to itself alone; seeking first completely to disjoin
them from one another, and then to make them to proceed together,
confining each strictly to its own sphere. In this manner have we
seen enumerated the legislative power, the executive power, the
electoral power, the judicial power, and the administrative
power, and every effort of science has been exerted to make these
different powers co-exist, while maintaining among them a
rigorous distinction, and enjoining upon them never to fall into
confusion, nor even to assimilate their offices and action. The
same system has been applied to the rights and liberties of
citizens. It is easy here to discern the triumph of the fondness
for analysis which characterized the last century. But analysis
is a method of study, not of creation. The spirit of analysis is
scientific, but never political. In politics, whether dealing
with rights or powers, the object is to create real vital forces,
capable either of enforcing obedience or resisting oppression.
This can never be attained by analysis; for, in reality, actual
life is a very complicated matter, requiring the union and
amalgamation of a multitude of different elements, each modified
and sustained by the others. Analysis elucidates and separates
into parts, but never constructs. This truth is demonstrated by
the political history of our own time. All these powers and
rights, so carefully enumerated and distinguished by science, so
narrowly enclosed within specified limits, were found in the time
of action to be destitute of consistency, energy, and reality. It
was decreed that the legislative power should be absolutely
separated from the executive power, the judicial power from the
administrative, the municipal from the electoral power: liberties
and rights have been isolated and dissected just in the same way
as powers; and ere long all these rights and powers, incapable of
existence and action in their isolated condition, have become
centralized or lost in the hand of an individual or collective
despotism, which alone was powerful and real, because it alone
was other than a theoretic design or a scientific conception.
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It may be fearlessly affirmed that rights, like public powers,
will never regain reality and energy until they escape from this
pretended science, which, under the pretext of classifying,
enervates and nullifies them; until, united by positive ties,
they mutually rest on one another, and coalesce to bring about
the same results. Doubtless, the great analytical labour
performed in our own time will not prove fruitless; many well
grounded distinctions and necessary limitations will be
maintained; all powers will not again fall into general
confusion, nor will all rights become concentrated. There is some
truth and usefulness in the results of the social dissection
which has been performed; but if it were to be perpetuated, if
rights and powers were to remain in the state of isolation and
dissolution in which science has placed them at the present day,
we should never possess either government or freedom.
Object Of The British Parliament.
It is very evident that nothing of this kind occurred at the
period of the formation of the British Parliament. Politics did
not wear so scientific a character, nor lay claim to such
consideration, as at present. It was necessary to summon together
the principal men in the kingdom--merchants, landowners, and
others--that they might assist in particular public business. But
this was never imagined to be the creation of a new right, or of
a new power. Established rights and existing powers were called
upon to exercise this new function, and to appear under this new
form. The freeholders, that is to say, every free and veritable
landowner, used to assemble in the county-courts, to administer
justice and to treat together of common interests; and these
county-courts were charged with the nomination of
representatives. In towns of any importance, the citizens, under
forms more or less liberal, regulated their own affairs, chose
their own magistrates, and exercised in common certain rights and
powers; and these municipal corporations were required to send
members to Parliament.
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Combination Of Public Rights.
Thus, the assemblies which we now designate electoral colleges
were never at that period, as they now are, special and isolated
assemblies, invested with a temporary duty, and in all other
respects unconnected with the administration of the country.
County courts and municipal corporations, which were already
firmly planted and established, and possessed inherent strength,
were constituted into electoral colleges. Thus the electoral
system from its origin was united with every right and
institution, and with almost every local and real power. It was
the extension and development of existing liberties, a powerful
force added to other forces previously in action and exercising
government over other interests. It was not that in one place
there were merely electors, in another administrators, and
elsewhere judges; but there was a body of citizens who
participated in the administration of local affairs, and in
rendering justice; and who elected deputies for the transaction
of general business. It is easily understood that,--being thus
deeply rooted in the community at large, and closely united to
all other powers--the electoral power (to employ the language of
the present day) was defended from every vicissitude through
which we have seen it pass, when attempts have been made to
establish it, by itself, in some particular aspect or
combination.
This then is the first characteristic of the electoral system
which occupies our attention. We need not hesitate to elevate
this characteristic into a principle, and to assert that where it
is not met with, election, that is to say, representative
government itself, will be either powerless or harassed by
continual storms.
It is an error in modern politics immoderately to fear power,
whatever may be its form or situation. It is divided and
subdivided infinitesimally, until it no longer exists, so to
speak, except as powder. This is not the way to establish
liberty. Liberty cannot exist except by the possession of rights,
and rights are worthless if they are not themselves powers--vital
and strongly constituted powers. Placing right on one side and
power on the other is not constituting a free government, but
establishing a permanent tyranny, sometimes under the name of
despotism, and sometimes under that of revolution; the problem is
to place power everywhere in the hands of right, which can only
be done by organizing or accepting at once, in the very centre of
the government, and in every stage of its action, authority and
resistance.
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Now resistance is only real and effectual when capable on all
occasions of opposition to authority, when authority is compelled
to treat with it at all times, to conquer or to yield. What then
is the electoral right or power, if so it is called, when
isolated from every other power? Its exercise is transient and
infrequent; it is the crisis of a day imposed upon actual
authority, which may, it is true, be defeated, but which, if it
escapes, is afterwards perfectly free, and continues its course
without the least obstruction, or sleeps in blind security. If,
on the other hand, the electoral right is supported by other
rights of more direct and frequent occurrence, if the electoral
system is closely interwoven with the whole government, if the
same citizens who have nominated the members, interfere in the
affairs of the country under other forms but by the same title,
if the central authority needs on other occasions their assent
and support, if it finds them elsewhere also grouped and united
for the exercise of other functions of power, then all rights
serve as guarantees to one another; the electoral system is no
longer suspended in air, and it becomes difficult to violate it
in principle, or to elude it in its consequences.
Independence Of Public Rights.
It is impossible to doubt that to this close union of electoral
rights, with a multitude of other public and local rights, the
electoral system is indebted in England for its strength and
permanence. One fact among a thousand others will prove this.
When the central power, finding itself threatened by the
elections, has endeavoured to rid itself of their influence, it
has been compelled to withdraw from the towns and corporations,
their charters and liberties. Without this nothing could have
been done. But by this also, everything was attacked, and liberty
and right being everywhere emperilled, the nation put forth its
efforts not only to re-establish a House of Commons, but also to
regain a multitude of other rights which had no reference to the
election of representatives. It is the secret of good
constitutional legislation, thus to unite all rights with each
other in such a manner that it is impossible to weaken any one of
them without endangering all.
This characteristic of the British electoral system has also
produced, in regard to the elections themselves, other
consequences no less felicitous, which I shall presently
indicate. I shall now consider this system in itself, in its
interior organization.
{393}
Two Classes Of Electors.
All the elements and laws of every electoral system resolve
themselves into these two questions:
I. In whom are the electoral rights vested? that is to say, who
are the electors?
II. How are these rights exercised? that is to say, what are
the modes of procedure and the forms of election?
I wish to bring together in succession under these two questions,
all the facts which relate thereto in the electoral system in
England, in the fourteenth century, and to examine what general
principles are contained in these facts.
And first, who were the electors? There were two classes of
electors, in the same manner as there were two kinds of
elections--those for counties and those for boroughs. This
classification was not the result of a systematic combination nor
of any previous intention: it was the expression of a fact.
Originally the knights, and a little later, the freeholders,
alone formed the political nation, and alone possessed political
rights. All enjoyed the same right of assisting at the court or
council of their lord; politically, therefore, they were equal.
When the towns had acquired sufficient importance to assist the
central power when needful, and strength enough to resist it if
occasion required, then inhabitants became citizens. A new nation
truly then entered the state. But in entering there, it remained
distinct from that by which it was preceded. The representatives
of boroughs never deliberated with those of counties. Each of
these two classes treated with the government of those affairs
which interested itself, and consented on its own account to the
taxes which weighed on itself alone. Originally there was no more
coalition between the representatives than between the electors:
the distinction was complete. It cannot be said that there was
inequality, for there was no room for comparison. They were
simply two different societies represented by their deputies to
the same government; and the difference of the representation
arose from no other principle than the real and primitive
difference between the two societies.
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Right Derived From Capacity.
Now if each of these societies is considered singly and in
itself, an equality of political rights will be found among the
citizens called to enjoy them. As, in the counties, all the
freeholders had the same right to participate in the election,
so, in the towns, every member of the corporation to which a
charter had been granted shared in the election of their
representatives.
Thus the variety of classes existing in society was reproduced in
the representation. But, on the one hand, the different classes
were completely independent of one another: the knights of the
shire did not tax the citizens, nor the citizens the knights of
the shire; much less did either take part in the other's
elections. On the other hand, the principle of the equality of
right prevailed in each class, among the citizens summoned to
share in the election.
There is nothing, then, that can be deduced from this in favour
of an inequality among men called by virtue of the same principle
to take part in a like action. Such an inequality never existed
in the electoral administration of England in the fourteenth
century. The difference that existed was derived from society
itself, and was continued even to the very centre of
representation, which did not present a more uniform whole than
society itself. The true, the sole general principle which is
manifested in the distribution of electoral rights as it then
existed in England, is this, that right is derived from, and
belongs to, capacity. This requires some explanation.
What Is Electoral Capacity?
It is beyond doubt that, at this period, setting aside the chief
barons whose personal importance was such that it was necessary
to treat with each of them individually, the freeholders, the
clergy, and the burgesses of certain towns, could alone act as
citizens. Those not comprised in one or other of these classes
were chiefly poor husbandmen, labouring on subordinate and
precarious property. They included all men invested with real
independence, free to dispose of their person and wealth, and in
a position to rise to some ideas of social interest. This it is
which constitutes political capacity. This capacity varies
according to time and place; the same degree of fortune and
enlightenment is not everywhere and always sufficient to confer
it, but its elements are constantly the same.
{395}
It exists wherever we meet with the conditions, whether material
or moral, of that degree of independence and intellectual
development which enables a man freely and reasonably to
accomplish the political act he is required to perform.
Assuredly, considering the masses, as they should be considered
in such a matter, these conditions are not met with in England in
the fourteenth century, elsewhere than among the freeholders, the
clergy, and the burgesses of the chief towns. Beyond these
classes nothing is found but almost servile dependence and brutal
ignorance. In summoning these classes, then, to join in the
election, the electoral system summoned every capable citizen. It
was derived, therefore, from the principle that capacity confers
right; and among citizens whose capacity was recognized, no
inequality was established.
Thus neither the sovereignty of the majority nor universal
suffrage, were originally the basis of the British electoral
system. Where capacity ceased, limitation of right was
established. Within this limit the right was equal in all.
It is easy to prove that this is the sole principle on which it
is possible to found a national and true electoral system. Let us
for the moment forget facts, and consider the question from a
purely philosophical point of view.
What motive has assigned in all times and countries a fixed age
at which a man is declared to have attained his majority, that is
to say, is considered free to manage his own affairs according to
his own will? This appointment is nothing more than the
declaration of the general fact, that, at a certain age, man is
capable of acting, freely and reasonably, in the sphere of his
individual interests. Is this declaration arbitrary? No, for if
the period of his majority were fixed at ten years or at forty,
the law would evidently be absurd; it would assume the presence
of capacity where it did not exist, or else would not recognize
it where it did exist--that is to say, it would confer or
withhold the right wrongfully.
It is capacity, then, that confers right; and capacity is a fact
independent of law, which law cannot create or destroy at will,
but which it ought to endeavour to recognize with precision, that
it may at the same time recognize the right which flows from it.
And why does capacity confer right? because in reason, and reason
alone, is right inherent. Capacity is nothing else than the
faculty of acting in accordance with reason.
{396}
What is true of the individual considered in relation to his
personal interests, is true also of the citizen in relation to
social interests. Here, also, capacity confers right. Here, also,
right cannot be refused to capacity without injustice. Here,
also, capacity is a fact which the law, if it be just, asserts
and distinguishes, to attach thereto the right.
This is the only principle in virtue of which the limitation of
electoral rights can be reasonably assigned, and it was this
which, without general intention or philosophic views, the nature
of things and good sense caused to prevail in England at the end
of the thirteenth century.
This principle equally repels the admission of the incapable,
which would give dominion to the majority, that is, to material
force; and would lead to the exclusion of some portion of the
capable citizens, which would be an injustice; and to inequality
between capacities, of which the least is declared sufficient,
which would institute privilege.
Exterior Signs Of Electoral Capacity.
This principle once laid down, whether by the enlightened
intention of the legislator, or by the simple force of things, it
becomes necessary to put it in practice, that is, to seek and
recognize in society those capacities which confer rights. By
what exterior signs, susceptible of determination by law, can
this capacity be recognized? this is the second enquiry which
presents itself when the question is to fix the limit of
electoral rights.
Evidently, we can only proceed here upon assumptions, and those
of a general character. The capacity of acting freely and
reasonably for the promotion of social interests, is revealed by
no more distinct signs than any other internal disposition.
Besides, the law operates on the masses; its decisions will
necessarily be inexact, and yet must be rigorous. In their
application to individuals they will often assume capacity where
it is not, and will not in all instances discern it where it is.
This is the imperfection of human science; the endeavour of the
wise is to restrict this imperfection within its narrowest
limits.
{397}
Legal Signs Of Electoral Capacity.
The electoral system of England was less faulty, in this respect,
at its commencement, than it has since become. It is very
probable that, in the fourteenth century, all political capacity
was almost entirely contained in the classes of the freeholders,
the clergy, and the burgesses of the important towns. This kind
of qualification corresponded, then, very nearly with the true
external signs of capacity. It may even be said that if the
representative system had then possessed all its energy, if the
assembly of representatives had had power and importance to
become the principal spring of government, and the object of
individual ambition, it would very soon have been discovered that
the legal conditions of capacity included a multitude of
individuals in whom capacity did not truly exist. It was because
many of those who possessed the right of sharing in elections
took no part in them that the inconvenience of so much latitude
was not at first experienced. The principle remained intact
because it did not bear all its fruits. When the House of Commons
occupied a higher place in the State, it became necessary to
restrict the electoral right by requiring the freeholders
themselves to possess an annual income of forty shillings. The
action of Parliament in the government, and by consequence the
importance of electoral rights, far surpassed the intelligence
and independence of many of the men to whom ancient custom had
accorded them. Thence arose the limitation established by the
Parliament under Henry IV. Since that period, the progress of
society and the changes which have occurred in the condition of
property and industry, have altered in this respect the
exactness, and therefore the excellence, of the electoral system.
The legal signs of electoral capacity remain the same as to
right, but, in fact, they have changed. Formerly, the freeholders
were the only landowners who were truly free and capable of
exercising political rights; the copyholders were then little
better than _villani:_ this has long ceased to be the case;
although the legal distinction still subsists, it is merely
nominal: copyholds are properties as free, as secured, and as
fully hereditary as freeholds. The title of freeholder is now no
longer, as formerly, the only one which designates a landowner
capable of exercising political rights. The law, in its
description of the external characters of electoral capacity, no
longer corresponds really and truly with social facts. This
inconvenience is not very great in practice, because there are
few copyholders of any importance who do not possess a freehold
of forty shillings rent.
{398}
It is however real, for it maintains a distinction between
properties as to electoral rights, which is not founded upon any
real difference between the nature of the properties, and the
capacity of their possessors. The system has become much more
vicious as regards electoral rights in boroughs. Here the
external signs by which the law pretends to recognize capacity,
are become, in many instances, utterly false. The importance of
particular towns, and the material or intellectual development of
their inhabitants, was originally the cause of their investiture
with electoral rights. The capacity was there; the right
followed. Now the principle has disappeared; there are some
boroughs destitute of importance, the inhabitants of which
possess neither wealth nor independence; capacity is no longer
there, but nevertheless the right continues still. It might be
supposed that the name of the borough, its site, or its walls,
are the signs of an electoral capacity which ought to reside
there for ever,--that the privilege appertained to the stones. On
the other hand there are other towns, which in the fourteenth
century would not have failed to obtain their electoral rights,
because in effect the capacities of their citizens would have
been recognized, that do not yet possess them.
Thus a principle, equitable at first, has ceased to be so,
because attempts have been made to arrest the progress of its
effects; or rather the principle itself has perished, and a great
part of the electoral system of England is nothing more than a
violation of it.
Vicissitudes Of Electoral Capacity.
By this it may be seen that, if the principle which attaches
right to capacity in the matter of election, is universal in its
nature, and susceptible of constant application, the conditions
of this capacity and the external signs by which it is to be
recognized are essentially variable, and can never be restricted
to the terms of a law without endangering the existence of the
principle itself. The vicissitudes of electoral rights, even in
the earliest time of the existence of Parliament, demonstrate
this. Political rights belonged at first to the freeholders
alone. Who could reasonably have sought deputies and electors in
those devastated boroughs, abandoned for the most part by their
ancient inhabitants, peopled only by a few poor families, whose
condition and ideas were not elevated above those of the most
miserable peasants?
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No Permanent Test Of Electoral Capacity.
Some towns rose again and became repeopled; commerce brought with
it wealth, and wealth procured social importance, and the
development of mind. Representatives should emanate from these
bodies; for there were certainly electors. New capacities form
and declare themselves by new symptoms. At the same time, or soon
after, the number of freeholders increases by the division of
fiefs, many among them fall to a much lower condition than that
of the ancient freeholders, and no longer possess the same
independence. Will they preserve the same rights when their
capacity is no longer the same? no, necessity makes each to know
his value; the mere title of freeholder is no longer a correct
sign of electoral capacity. Another is sought, and the condition
of forty shillings rent enters into the laws. Thus, without any
violation, and even by the authority of the principle, the
conditions and signs of electoral capacity vary according to the
real state of society. It is only when this portion of the
electoral system becomes invariable that the principle will be
violated.
It would then be vain and dangerous to pretend to regulate,
beforehand and for ever, this part of the electoral system of a
free people. The determination of the conditions of capacity and
that of the external characteristics which reveal it, possess, by
the very nature of things, no universal or permanent character.
And not only is it unnecessary to endeavour to fix them, but the
laws should oppose any unchangeable prescription regarding them.
The more numerous and flexible the legal characteristics of
electoral capacity, the less need this danger be dreaded. If, for
example, the land-tax was regulated and fixed once for all, as it
is to be desired that it may be, this tax alone would be an
incorrect sign of electoral capacity; for it would not follow the
vicissitudes of property: it would enfeoff the land itself with
the right of election; the rent would be a better indication,
because it would be more pliable. If, instead of attributing
electoral rights by name and for ever to a particular borough,
the English laws had conferred them upon every town whose
population reached a certain limit, or the revenue from which
attained a certain amount, the representation of boroughs,
instead of becoming corrupt, would have followed the changes and
progress of true political capacity. We could multiply these
examples, and prove in a thousand ways that it is better neither
to adopt any one legal sign of electoral capacity, nor to place
this sign beyond the reach of the vicissitudes of society.
{400}
General Conclusions.
In summing up, we may deduce, from our examination of the
electoral system of England in the fourteenth century, these
three conclusions:
I. The right ought to be coextensive with the capability of
judicious election, for it is its source.
II. The conditions of electoral capacity should vary according
to time, place, the internal state of society, public
intelligence, &c.
III. The external characteristics prescribed by the laws, as
declaring the accomplishment of the conditions of electoral
capacity, should neither be utterly immutable nor derived
entirely from purely material facts.
{401}
Lecture XVI.
Subject of the lecture.
Continuation of the philosophical examination of the electoral
system in England in the fourteenth century.
Characteristics of the elections.
Examination of the principle of direct or indirect election.
Forms Of Election.
I now pass to the second of the great questions to which every
electoral system gives rise. What are the proceedings and forms
of the election? In this question many others are comprised.
These may be divided into two classes: the one class relating to
the manner of assembling the electors; the other, to their mode
of operation when assembled.
The close union of the electoral system with the exercise of
other rights and political powers, has been productive in England
of extensive and very beneficial consequences with regard to the
mode of collecting the electors together.
Originally the election of county representatives required no
special and extraordinary convocation of the electors. At
appointed times, they repaired to the county-court to fulfil the
functions with which they were charged, and on these occasions
they elected their representatives. The first writs addressed to
the sheriffs set forth: _Quod eligi facias in proximo
comitatu_, "you will elect in the next county-court."
When the importance of the House of Commons had imparted a
corresponding importance to the election of its members, and the
necessity of preventing the abuses arising from elections made,
so to speak, by chance, and without any one receiving special
notice thereof, had become felt, the election was announced
throughout the country by a proclamation summoning the attendance
of all the electors and indicating the time and place of the
convocation of Parliament. The election thus became a special and
solemn act; but was always conducted in the county-court, and at
one of its periodic meetings.
{402}
The Object Of Election.
Ultimately, by the lapse of time, the changes of the judicial
system, and the development of every institution, the
county-courts ceased to retain in England that position which
they anciently occupied. Their jurisdiction is now rare and very
limited; the greater part of the freeholders never attend them;
nor are they of any considerable political importance. At the
present day the sole important object of any assembly of
freeholders in these courts is the election of representatives,
but the circumscriptions remain the same: frequent relations
still exist among the freeholders of the county; the county-court
is still their centre: it is now the electoral college, and that
is its sole important character; but the electoral college is
still the ancient county-court.
The great political result of all these facts is this, that the
election of representatives has always been, and still is, not
the work of an assembly of men extraordinarily and arbitrarily
convened for that purpose, among whom no other tie subsists, and
who possess no regular and habitual common interests, but the
fruit of ancient relations, of constant and tried influences
among men otherwise united in the transaction and possession of
common affairs, functions, rights, and interests. In examining
the question in itself, we shall very soon become convinced that
this is the only way to insure veracity in elections, and
suitableness and authority in the elected representatives.
The object of election is evidently to obtain the most capable
and best accredited men in the country. It is a plan for
discovering and bringing to light the true, the legitimate
aristocracy, which is freely accepted by the masses over whom its
power is to be exercised. To attain this end it is not sufficient
to summon the electors together and to say to them, "Choose whom
you will;" but they should have the opportunity of understanding
thoroughly what they are about, and of concerting together how to
do it. If they do not know each other, and are equally
unacquainted with the men who solicit their suffrages, the object
is evidently defeated. You will have elections which will result
neither from the free choice nor the actual wishes of the
electors.
{403}
Convocation Of Electors.
Election in its nature is a sudden act which does not leave much
room for deliberation. If this act is not linked with the habits
and previous doings of the electors, if it is not in some sort
the result of long anterior deliberation, and the expression of
their habitual opinion, it will be too easy to take the real wish
of the electors by surprise, or to induce them to listen only to
the passion of the moment; and the election will thus be
deficient either in sincerity or in rationality. If, on the
contrary, the men who have met to elect a representative have
long been united by common interests; if they are accustomed to
conduct their affairs among themselves; if the election, instead
of taking them out of the habitual sphere in which their lives
are passed, their activity displayed, and their thoughts
exchanged, only assembles them at the centre of that sphere, to
obtain the manifestation, the summary of their opinions, their
wishes and the natural influence which they exercise over each
other; then the election can, and generally will be, both
rational and sincere.
The whole of that part of the electoral system which relates to
the assembling of the electors ought, then, to be founded upon
respect for natural influences and relations. The election should
assemble the electors together at that centre towards which they
are habitually attracted by their other interests. Well-tried and
freely accepted influences constitute true and legitimate society
among men. Far from dreading them, in them alone should the real
desire of society be sought. Every method of uniting electors
which annuls or destroys these influences, falsifies the
elections, and makes them run counter to their intended object:
the less the electoral assembly is extraordinary, the more will
it be adapted to the regular and constant existence of those who
compose it, and the better will it attain its legitimate end. On
these terms only can there be electoral colleges that do what
they wish, and know what they are doing; on these terms only can
there be representatives who exercise over the electors a solid
and salutary influence.
The maintenance of natural influences, and thereby the sincerity
of elections, has not been the only good effect of the primitive
identity of the electoral assemblies and the county-courts.
{404}
Electoral Districts.
These courts being the centre of a multitude of administrative,
judicial, or other interests, presided over by the interested
persons themselves, it was impossible that the boundaries of the
district to which they related could be very extensive; as much
inconvenience would thereby have resulted to the men who
frequently repaired thither. The division of England into
counties was not a systematic performance, and it presents some
striking irregularities. But the force of events prevented most
of the counties from including a very extended territory. This
advantage is retained in the electoral system. The connections
and ideas of the great majority of citizens do not stretch beyond
a certain material sphere: and it is only within the limits of
this sphere that they are really conversant with affairs, and act
upon their own knowledge. If the election is at too great a
distance from them, they cease to be enlightened and free agents,
and become tools. Now, since it is of the will and judgment of
the citizens that the choice is required, it is absurd to
withhold from them, at the same time, the necessary conditions of
reason and liberty. There is always, then, a limit beyond which
the extent of an electoral convocation should not be carried, and
this limit is itself a fact, which results from the manner in
which men and interests are grouped together, in the divisions
and subdivisions of the country. It ought to be large enough for
the election to produce representatives capable of fulfilling
their public mission, and contracted enough to insure that the
greater number of the citizens who take part in the election may
act with discernment and freedom. If the elections were conducted
in England according to hundreds, they would yield, perhaps,
obscure and ignorant representatives; if by episcopal dioceses,
they would in fact annul a great part of the electoral body. The
material circumstance of the necessity of a distant removal is of
least consequence. The moral disorder which would result from too
widely extended boundaries is much more serious.
Further; the extension of political rights is no less interested
in this than the excellence of the results of the election. It is
desirable to enlarge the sphere of these rights, as far as it is
admitted by the imperious condition of capacity. Now, capacity
depends upon a multitude of causes.
{405}
A man perfectly capable of prudent choice within a radius of five
miles from his dwelling, becomes absolutely incapable of doing so
if the radius be extended to twenty miles: in the first case, he
had the full use of his reason and freedom; in the second, he
loses it. If, then, you would judiciously multiply the number of
the electors, do not place the electoral centre too far from the
points of circumference from whence some will have to repair
thither. In all this we must proceed to some extent upon
supposition, and general results alone are sought; but the
principle is invariably the same. The election must be made by
electors capable of choosing wisely, and must supply in those who
are elected, men capable of thoroughly comprehending the
interests upon which they will have to administrate. These are
the two requirements, between which the limits of electoral
boundaries should be sought, subject always to the condition of
never determining these boundaries in an arbitrary way, so as to
break through the habits, and destroy the natural and permanent
state of society. Generally speaking, the division into counties
formerly attained this twofold object in England.
The boundaries being defined, in accordance with the natural
grouping of the citizens, and the electors being assembled, what
is required of them?
Number Of Representatives.
Custom, and no standard derived from population, wealth, or any
other cause, has ordained in England, that two members only
should be returned from each district, with the exception of a
very few places. This custom probably derives its origin from the
impossibility which formerly existed of finding in the boroughs,
and even in the counties, a greater number of men able and
willing to undertake a mission then very little sought after. It
has been seen that on several occasions three or four knights
were required from the county-courts. The number was very soon
reduced to two, and this fact has become the general law.
Whatever may be its historic principle, this fact contains a
rational principle, viz., that the election is neither sound nor
good, except when the number required to be elected is very
small.
{406}
Action Of Party Influence.
No one has ever denied that the fundamental law of all election
is this, that the electors should do what they desire, and
understand what they are doing. In practice, however, this is
often forgotten. It is forgotten when electors, meeting together
but for a short space of time, are required to make choice of
more than one or two. The great merit of election is, that it
should proceed from the elector, that on his part it is a true
choice, an act both of judgment and will. Beyond doubt, no
extraneous will or judgment may in any case be rightfully imposed
upon him; though he may always accept or reject that which is
proposed to him: but this is not sufficient; the elector must be
placed in such a position that his personal judgment, his own
will, shall be not only free, but stimulated to display
themselves in their actual character. Their exercise must be not
only possible, but must not be too difficult. Now, this error is
fallen into when, instead of one or two names, a whole list of
names is demanded. The elector, almost always incapable of
completing this list of himself and by the help of his own
discernment, falls under the dominion of combinations which he
suffers rather than accepts; for he does not possess the
knowledge necessary for judging correctly of their whole aim and
effect. Who does not know that almost every elector in such a
case cannot include in his list more than one or two names that
are truly known to him, and which he really desires? The choice
of the remainder is made for him, and he writes them in
confidence or out of complaisance. And who makes this choice? The
party to which the elector belongs. Now, party influence, like
every other influence, is good only so far as it is exercised
upon those who can form a just opinion of it, and not submit to
it blindly. The despotism of party spirit is no better than any
other despotism, and all good legislation should tend to preserve
citizens from its sway. Into elections, as into every other act,
levity, inconsiderateness, or passion may enter: but to these
dispositions the law is not bound to show respect and afford
facility. It should, on the contrary, strive to prevent their
having any effect; and by the process of the election itself, it
should, as far as possible, secure to the citizen the exercise of
his judgment as well as the independence of his will. It is not
requisite to repel all influences, or to declare them
illegitimate beforehand. Every election is the result of
influences, and it would be folly to pretend to isolate the
elector under the pretext of obtaining his unbiassed opinion and
desire.
{407}
This would be to forget that man is a reasonable and free being;
and that reason is called to debate, and liberty to choose. The
soundness of election arises precisely from the conflict of
influences. The law must allow them to reach the elector, and
grant them all natural means of acting upon his judgment; but it
ought not to deliver him up to them defenceless. It should take
certain precautions against human weakness, and the most
efficacious of these precautions will be, to require nothing of
the elector that he cannot perform with true spontaneity of
action. The citizen being thus left to himself, all influences
may act upon him: they may perhaps induce him to abandon the name
that he loved for one with which he was previously unacquainted;
but they will need at least to exert greater efforts to conquer
his reason or to subdue his will. Now, it is right that they
should be condemned to make such efforts, and that they should
not be able to obtain from levity, precipitation, or ignorance
alone, an assent, the effect of which is to give to the whole
country an exponent whom the elector himself would not have
desired had he been able, in nominating him, to make a full use
of his reason.
Evils Of Hasty Elections.
When we investigate the causes which have introduced into certain
countries, in the matter of election, a custom so opposed to the
true interests of liberty, and which is never met with where
liberty has really been introduced into the practice of political
life, we perceive that it is derived, in part at least, from the
evil principle on which the whole electoral system has been
founded. Electoral rights have been isolated from other rights,
and separately constituted; electoral assemblies have been in no
way connected with other public affairs, with local
administration, or with common and permanent interests. They have
been made extraordinary and solemn assemblies of very brief
duration. The electoral boundaries have in general been too
widely extended: hence has arisen the necessity of suddenly
assembling together the whole body of electors, of dismissing
them almost immediately, and at the same time, of requiring from
them the choice of too many representatives. In England, the poll
remains open at least fifteen days for the election of one or two
members. Every one gives his vote when it bests suits him. In
America, the other forms are yet more mild and free.
{408}
In the system which has prevailed with us, on the contrary, all
is sudden and precipitate: everything is done _en masse_,
and by masses of people whose reason and liberty are in a great
measure disabled from acting, by the haste and extent of the
operation. Hence also is derived the scheme of the ballot, and of
an absolute majority, consequences inevitably flowing from a
rapid and numerous election; whilst elsewhere, the system of a
relative and long-contested plurality affords public opinion
leisure to select, and freedom to manifest its choice. And hence,
finally, arises the necessity of an elected bureau, which
entrusts beforehand to the majority the inspection of all the
electoral operations, thus casting suspicion upon the
authenticity of the results. When liberty is everywhere to be
found, when all rights are bound together and mutually sustained,
when publicity is real and universally present, there will always
be independent magistrates to whom the direction and
superintendence of elections may be confided; and there is then
no necessity for placing them under the influence of party
spirit, in order to withdraw them from the always-suspected
influence of superior authority.
Advantages Of Direct Election.
These details relate to the forms of electoral operations; but as
their vices flow from the general principles which regulate them,
it was necessary to point out this connection.
Direct election has been the constant practice of England; and
America has adopted the same system. It has been otherwise in
most of the European States in which representative government
has been established in our own times. This is one of the most
important facts presented to our view by the British electoral
system. In this system, direct election has been the natural
consequence of the idea that was then entertained regarding
political rights. Not only were these rights unshared by all, but
they were not even distributed systematically, or upon one
general plan. They were recognized wherever the capacity of
exercising them was actually to be met with. The importance of
freeholders and citizens had entailed upon them the right of
interference in public affairs. This intervention was their right
when these affairs related to themselves. Being unable to
exercise this right personally, they elected representatives.
{409}
In the spirit of the time, this right of election corresponded
exactly to the right that the powerful barons exercised of being
represented in Parliament by delegated agents. The individual
importance of a powerful baron being very great, his proxy was
individual. The freeholders and citizens also possessed an
individual right, but not the same importance, and they therefore
had one proxy to represent many of them. But, fundamentally, the
representation was founded on the same principle--the individual
rights of the electors to debate on and consent to such matters
as interested them.
Its Relation To Representative Government.
In this point of view, it is easy of comprehension that direct
election prevailed, and that no other idea presented itself to
the public mind. All indirect election, every new medium placed
between Parliament and the elector, would have appeared, and
would in fact have been, a diminution of the right, a weakening
of the importance and political intervention of the electors.
Direct election, then, is the simple idea, the primitive and
natural electoral system of representative government, when
representative government is itself the spontaneous produce of
its true principle,--that is to say, when political rights are
derived from capacity.
In considering this mode of election under a purely philosophical
point of view, and as it respects not merely the electors alone,
but society in general, does it remain equally preferable to
every other more artificial combination?
It is necessary to examine it first in its relation to the
rational principle of representative government; and, in the
second place, in its practical results.
We have in a previous lecture laid down the rational principle of
representative government. In right, this principle asserts, that
true sovereignty is that of justice; and that no law is
legitimate if it is not conformable to justice and to truth, that
is to say, to the divine law. In fact, this principle recognizes,
that no man or assembly of men, in a word, no terrestrial force,
is fully conscious and constantly desirous of reason, justice,
and truth--the true law. Connecting this right and fact together,
the inference is, that the public powers which actually exercise
sovereignty ought to be constantly required and constrained on
every occasion to seek after the true law, the sole source of
legitimate authority.
{410}
Qualifications Of Representatives.
The object of the representative system, in its general elements
as well as in all the details of its organization, is, then, to
collect and concentrate all the scattered elements of reason
which exist in society, and to apply it to its government.
From thence it necessarily follows that representatives ought to
be the men most capable:
1. To discover, by means of their united deliberation, the law
of reason, the truth which, on all occasions, the least as well
as the greatest, exists, and ought to be the ground of
decision; and
2. To enforce the recognition and observance, by the citizens
in general, of this law when once discovered and expressed.
In order to discover and secure the men most capable of
fulfilling this mission, that is to say, good representatives, it
is necessary to compel those who think or profess themselves to
be such, to prove their capacity, and to obtain its recognition
and assertion from the men who, in their turn, are capable of
forming a judgment upon it, that is to say, upon the individual
capacity of any man who aspires to become a representative. Thus
does legitimate power evidence itself, and it is thus that, in
the fact of election, philosophically considered, this power is
exercised by those who possess it, and accepted by those who
recognize it.
Now, there is a certain relation, a certain tie, between the
capacity of being [a good representative or otherwise], and the
capacity of recognizing the man who possesses the capacity of
being. This is a fact which is continually illustrated in the
world. The brave man excites those to follow him who can
associate themselves with his bravery. The skilful man obtains
obedience from those who are capable of comprehending his skill.
The wise man engages the belief of those who are capable of
appreciating his knowledge. Every superiority, has a certain
sphere of attraction in which it acts, and gathers around itself
real inferiorities, which are, however, in a condition to feel
and to accept its action.
This sphere is by no means boundless. This also is a simple,
self-evident fact. The relation which connects a superiority with
the inferiorities by which it is recognized, being a purely
intellectual relation, cannot exist where there does not also
exist a sufficient degree of knowledge and intelligence to form
the connection.
{411}
A man, though very fit to recognize the superiority capable of
deliberating on the affairs of his commune, may be quite unfit to
distinguish and point out by his vote a person who shall be
capable of deliberating on the affairs of the State. There are,
then, some inferiorities, destitute of all true relation with
certain superiorities, and which, if they were called upon to
distinguish between them, would be either unable to do so, or
would arrive at a most incorrect conclusion.
The limit at which the faculty ceases of recognizing and
accepting the superiority which constitutes the capacity of being
a good deputy, is that at which the right of election ought to
cease; for it is here that the capacity ceases of being a good
elector.
Above this limit, the right of election exists only because of
the actual existence of the capacity of recognizing the superior
capacity that is sought. Below it, there is no right.
Philosophic Necessity Of Direct Election.
From thence, the necessity of direct election philosophically
results. Evidently it is desired to obtain that which is sought.
Now, that which is sought, is a good representative. Superior
capacity, that of the representative, is necessarily, therefore,
the dominant condition, the starting-point of the whole
operation. You will obtain this superior capacity by requiring
its recognition by all those capacities which, although inferior,
stand in natural relation with it. If, on the contrary, you begin
by electing the electors, what will be the result? you have to
accomplish an operation analogous to the preceding, but the point
of departure is altered, and the general condition is lowered.
You take as your foundation the capacity of the elector, that is
to say, a capacity inferior to that which you wish definitively
to obtain; and you necessarily address yourself to capacities
still more inferior and quite unfit to conduct you, even under
this form, to the more elevated result at which you aim; for the
capacity of the elector being only the ability to select a good
representative, it would be necessary to be in a position to
comprehend the latter condition in order to comprehend the
former, which can never happen.
{412}
Evils Of Indirect Election.
Indirect election, therefore, considered in itself, derogates
from the primitive principle as well as from the ultimate object
of representative government, and debases its nature. Considered
in its practical results, in facts, and independently of every
general principle, this system appears equally unsatisfactory.
In the first place, we regard it as admitted, that it is
desirable that the election of representatives should not be in
general the work of a very small number of electors. When
electoral assemblies are very limited, not only is the election
deficient in that action and energy which sustain political life
in society, and afterwards contribute in great measure to the
power of the representative himself, but general interests,
expansive ideas, and public opinions cease to be the motive and
regulating power. Coteries form themselves,--in the place of
political parties, personal intrigues spring up; and a struggle
is established between interests, opinions, and relations, which
are almost individual in their nature. The election is no less
disputed, but it is less national, and its results possess the
same fault.
Starting, then, from this point, that electoral assemblies ought
to be sufficiently numerous to prevent individualities from
obtaining such easy dominion, I seek to discover how, by indirect
election, this end can reasonably be attained.
Two hypotheses alone are possible: either the territorial
boundaries, within which the assembly will be formed, charged
with the nomination of the electors, will be very narrow, or will
be of considerable extent. In England, for example, the electors
would be required from the tithings or the hundreds, which
correspond very nearly to our _communes_ and _cantons_.
If these boundaries are very narrow, and only a very small number
are required to be selected from each--two electors for
example--very probably some of these electors will be of a very
inferior order.
True electoral capacities are by no means equally divided among
communes; one commune may possess twenty or thirty, while another
contains only a few, or perhaps none at all; and this is the case
with the majority. If each district is required to furnish the
same, or nearly the same number of electors, great violence will
be done to realities. Many of the incapable will be summoned;
many who are capable will be excluded; and, finally, an electoral
assembly will be constituted, but little adapted for the wise
choice of representatives.
{413}
If, on the contrary, each district is required to designate a
number of electors proportioned to its importance, its
population, and the wealth and intelligence that are concentrated
in it, then, wherever the number to be chosen is considerable,
there will no longer be any true choice.
It has already been shown, that elections, when they are numerous
and simultaneous, lose their character. There will be lists of
electors prepared by the external influence either of parties or
of power, which will be adopted or rejected without discernment
or freedom. In this respect experience has everywhere confirmed
the previsions of reason.
If the districts summoned to name the electors possess any great
extent, another alternative presents itself. Either each will be
required to choose only a small number, and then the object will
be defeated, for the assembly whose duty it will be to elect the
representatives will be very innumerous: or a large number of
electors will be required from each district, and then the
inconvenience which has been already pointed out will be
incurred.
Let all the possible combinations of indirect election be
exhausted, and there will not be found one which can finally
supply, for the election of representatives, an assembly
sufficiently numerous, and formed at the same time with
discernment and liberty. In this system these two results
mutually exclude each other.
I proceed now to another vicious practice connected with this
system, which is no less serious, than those just indicated.
The end of representative government is to bring publicly into
proximity and contact the chief interests and various opinions
which divide society, and dispute for supremacy, in the just
confidence that from their debates will result the recognition
and adoption of the laws and measures which are most suitable for
the country in general. This end is only attained by the triumph
of the true majority--the minority being constantly listened to
with respect.
If the majority is displaced by artifice, there is falsity. If
the minority is removed from the struggle beforehand, there is
oppression. In either case representative government is
corrupted.
{414}
All the constituent laws of this form of government have, then,
two fundamental conditions to fulfil: first, to secure the
manifestation and triumph of the true majority; and, secondly, to
insure the intervention and unshackled endeavour of the minority.
These two conditions are as essential to the laws which regulate
the mode of the election of representatives, as to those which
preside over the debates of deliberative assemblies. In neither
case ought there to be falsehood or tyranny.
An electoral system which would annul beforehand,--with regard
to the final result of the elections, that is to say, with regard
to the formation of the deliberative assembly,--the influence
and participation of the minority, would destroy representative
government, and would be as fatal to the majority itself as any
law which, in the deliberative assembly, should condemn the
minority to silence.
This, to a certain extent, is the result of indirect election,
By direct election, and supposing that the limit of electoral
capacity has been reasonably fixed by law, that is to say, at the
point at which true capacity actually ceases, all the citizens
whose social position, fortune, or intelligence place them above
this limit, are equally summoned to unite in the choice of
representatives. No inquiry is made of them concerning the
opinions or interests which they advocate. The result of the
election will make known the true majority; but whatever that may
be they will have no cause to complain: the trial will have been
complete, and they will have taken their rightful part in it.
Indirect election, on the contrary, effects beforehand a thorough
purgation of the electoral capacities, and eliminates a certain
number, solely on account of the opinions or interests which they
may hold. It intrudes into the sphere of these capacities in
order to exclude a part of the minority, so as to give to the
majority a factitious force, and thus to destroy the true
expression of the general opinion. We should exclaim loudly
against a law which should say, _à priori_: "All the men, or
only the third or fourth part of the men, attached to such an
interest or such an opinion, shall be excluded from all
participation in the election of representatives, whatever may
otherwise be their importance and social position."
{415}
Source Of Indirect Election.
This is precisely what is done, _à posteriori_, by indirect
election; and thereby it introduces into representative
government positive disorder, for it creates a means of tyranny
for the benefit of the majority. It may even happen, and examples
of this are not wanting, that indirect election, when thus
employed to eliminate a portion of the natural electoral
capacities, may result in turning against the majority itself,
and putting it in the minority. A supposition will clearly
explain this idea. If, in the fourteenth century, it had been
decreed in England, that "the copyholders and villeins should
unite in nominating the electors of the members of Parliament,"
is it not evident that their choice would have fallen on the
lords whose lands they rented or cultivated by any particular
title; and that the inhabitants of the towns, the citizens, would
have been almost absolutely excluded from the House of Commons?
Thus, this part of the nation, which had already attained so much
importance, would have seen themselves deprived of the exercise
of political rights by a system which urged, as its sole specious
pretext, the extension of these rights to a greater number of
individuals.
This is, in fact, the true source of indirect election; it is
derived from the sovereignty of numbers, and from universal
suffrage: and as it is impossible to reduce these two principles
to practice, it is attempted to retain some shadow of their
existence. The principle of representative government is
violated, its nature debased, and the right of election weakened,
in order that consistent adherence to an erroneous doctrine may,
to all appearance, be maintained. Who can fail to see that such a
system must necessarily enervate election, and that reality and
energy can be preserved by the system of direct election alone?
Every action, the result of which is distant and uncertain,
inspires little interest; and the same men who will unitedly
display great discernment and animation in the choice of their
municipal officers, would give their suffrage blindly and coldly
to subsequent electors whom their thoughts never follow into the
future in which they interfere so little. This pretended homage
to wills not sufficiently enlightened to be trusted with a
greater share of influence in the choice of representatives, is
at the bottom nothing but miserable quackery and lying adulation;
and under a simulated extension of political rights there is
concealed the restriction, mutilation, and enfeebling of these
rights in the sphere in which they really exist, and in which
they might be exercised in all their fulness and with complete
effect.
{416}
The true way to diffuse political life in all directions, and to
interest as great a number of citizens as possible in the
concerns of the State, is not to make them all combine in the
same acts, although they may not all be equally capable of
performing them; but to confer upon them all those rights which
they are capable of exercising. Rights are worth nothing unless
they are full, direct, and efficacious. In place of perverting
political rights by weakening them, under the pretext of giving
them diffusion, let local liberties everywhere exist, guaranteed
by real rights. The electoral system itself will thus become much
more powerful than it could possibly be under a pretended system
of universal suffrage.
Practice Of Open Voting.
The last important fact to be noticed in the electoral system of
England in the fourteenth century, is open voting. Some have
attempted to regard this as an absolute principle capable of
constant application; but we think it ought not so to be
considered. The only absolute principle in this matter is, that
election should be free, and should truly display the true
thoughts and real wishes of the electors. If open voting puts a
serious restraint on liberty of elections and perverts their
results, it ought to be abolished. Doubtless such a condition
argues infirmity of liberty and timidity of morals, and proves
that a portion of society is in conflict with influences which it
is afraid to shake off, though it ardently desires to be rid of
them. This is a melancholy fact, but it is one which liberty,
rendered fruitful by time, can alone destroy. It is very true
that open voting in elections, as well as in the debates of
deliberative assemblies, is the natural consequence of
representative government. It is quite true that there is a
degree of shame attached to liberty if it claim secrecy for
itself' while imposing publicity on power. That liberty which can
only attack is still very feeble; for the true power of freedom
consists in its bold defence and avowal of its rights.
{417}
Certainly there is an ill grace in the complaints of the
niggardliness and delay with which power grants rights, when
concealment is necessary for the exercise of rights already
possessed. But when reason is applied to practice, it regards,
for some time at least, nothing besides facts; and the most
imperious of all principles is necessity. To impose open voting
when it would injure freedom of election would be to compromise
general liberty itself, which, ere long, must necessarily
establish open voting.
Electoral System Of England.
To sum up what I have said. Nearly all the fundamental principles
of a free and reasonable electoral system may be discovered in
the electoral system of England in the fourteenth century.
Bestowal of electoral rights upon capacity; close union of
electoral rights with all other rights; regard to natural
influences and relations; absence of all arbitrary and factitious
combinations in the formation and proceedings of electoral
assemblies; prudent limitation in the number to be chosen by each
assembly; direct election, and open voting; all are to be met
with. These are entirely due to the decisive circumstance that
the electoral system and representative government itself were in
England the simple and natural result of facts, the consequence
and development of real and powerful anterior liberties, which
served as their basis, and guarded and nourished in their bosom
the roots of the tree which is indebted to them for its growth.
By another equally decisive circumstance, this system, though so
national and spontaneous in its origin, became corrupted, at
least in part, and appears at the present day to require
correction. Perhaps it is owing to its very power that it remains
inflexible: it has only followed at a distance the vicissitudes
and progress of social conditions. It now protects the remnants
of those abuses against which, at first, and for a long time, it
was directed; and yet the reform of these abuses, by whatever
means and at whatever period it may be effected, will be the
fruit of the institutions, habits, principles, and sentiments
which this system has established.
{418}
Lecture XVII.
Origin of the division of the English Parliament into two
Houses.
Its original constitution.
Reproduction of the classifications of society in the
Parliament.
Causes which led the representatives of counties to separate
from the barons, and coalesce with the representatives of
boroughs.
Effects of this coalition.
Division of the Parliament into two Houses in the fourteenth
century.
Division Of The English Parliament.
Our attention has hitherto been directed only to the elements of
which the Parliament was composed, and to the proceedings that
took place at its formation, that is to say, to the process of
election: we have now to consider another question; we must
enquire what were the internal and external constitution and
organisation of the Parliament thus composed.
The Parliament at the beginning of the fourteenth century was not
divided, as at present, into the House of Lords and the House of
Commons; nor did it, on the other hand, consist of a single body.
Accounts vary regarding the date at which it assumed its present
form. Carte fixes it in the seventeenth year of the reign of
Edward III. (1344); the authors of the Parliamentary History, in
the sixth year of the same reign (1333); Mr. Hallam in the first
year of the reign of Edward III. (1327), or, perhaps, even in the
eighth year of the reign of Edward II. (1315).
The principal cause of this diversity of opinion is the different
circumstance with which each author connects the fact of the
union of county and borough members into one single assembly.
This fact is deduced by some from the date of their assembling
together in the same place; by others, from the period of their
common deliberation; and by others again, from the union of their
votes upon the same question. And as each of these circumstances
occurred in one particular Parliament independently of the
others, the period when Parliament first existed in its present
form is carried back or forward according to the circumstance
which is regarded as decisive in this respect.
{419}
However this may be, it may be affirmed that the division of
Parliament into two Houses,--one comprising the lords or great
barons individually summoned, and the other all the elected
representatives of counties and boroughs; and both these houses
deliberating and voting together in all matters of business--was
not completely and definitively effected, until towards the
middle of the fourteenth century. It is necessary to trace the
steps by which this fact was gradually accomplished. This is the
only way thoroughly to comprehend its nature and its causes.
Original Constitution Of Parliament.
Originally, as we have seen, all the immediate vassals of the
king had the same right of repairing to Parliament and taking
part in its deliberations. Mere knights, therefore, when they
repaired thither, sat, deliberated, and voted, with the great
barons.
When election was substituted for this individual right in the
case of the knights of shires, and only those elected by the
county-courts were entitled to attend the Parliament, they still
continued to be members of the class to which they had previously
belonged. Although elected and deputed not only by those knights
who were immediate vassals of the king, but also by all the
freeholders of their county, they continued to sit, deliberate,
and vote, together with the great barons who were individually
summoned.
The representatives of the boroughs, on the contrary, whose
presence in Parliament was a novel circumstance (which was not
connected with any anterior right exercised merely under a new
shape), formed a distinct assembly from their first appearance in
Parliament, sitting apart, deliberating and voting on their own
account, and as thoroughly separated from the knights of the
shire as from the great barons.
{420}
Separate Votes Of Various Classes.
This separation is evident from the votes of Parliament at this
period. At the Parliament held at Westminster under Edward I., in
1295, the earls, barons, and knights of the shire granted the
king an eleventh part of their personal property, the clergy a
tenth part, and the citizens and burgesses a seventh. In 1296,
the former granted a twelfth part, and the latter an eighth. In
1305, the former gave a thirtieth part, and the clergy, the
citizens, and burgesses a twentieth. Under Edward II., in 1308,
the barons and knights granted one twentieth, the clergy a
fifteenth, the citizens and burgesses a fifteenth. Under Edward
III., in 1333, the knights of the shire granted a fifteenth, the
same as the prelates and the nobles, and the citizens and
burgesses a tenth; and yet the records of this Parliament
expressly declare that the knights of the shire and the burgesses
deliberated in common. In 1341, the prelates, earls, and barons,
on the one hand, and the knights of the shire on the other,
granted a ninth of their sheep, lambs, and fleeces; and the
burgesses, a ninth of all their personal property. In 1345, the
knights of the shire granted two-fifteenths, the burgesses a
fifth: the lords granted nothing, but promised to follow the king
in person. Thus, at this latter period, the knights of the shire
no longer voted in common with the lords, but they still voted
apart from the burgesses.
In 1347, the commons without distinction granted two fifteenths,
to be levied in two years in the cities, the boroughs, the
ancient domains of the crown, and the counties. At this period,
then, the fusion of the two elements of the Commons House was
complete: and it continued so ever afterwards, although a few
examples are still found of special taxes, voted by the
representatives of the towns and boroughs alone in the case of
customs, especially in 1373.
The original separation, then, was between the representatives of
the counties and those of the boroughs. The recollections of
feudal law allied the former to the great barons during more that
[than?] fifty years. This separation was not confined solely to
voting the supplies. Everything indicates, although it is nowhere
proved by written evidence, that the knights of the shire and the
representatives of the boroughs did not deliberate together any
more on other affairs, either legislative or otherwise, which
interested only one of the two classes. When mercantile interests
were in question, the king and his council discussed them solely
with the representatives of the towns and boroughs. Thus, there
is reason to believe that the statute entitled _The Statute of
Acton-Burnel_, passed in 1283, was enacted in this manner on
the advice of the borough representatives alone, who met for this
purpose at Acton-Burnel, whilst the knights of the shire sat with
the great barons at Shrewsbury, to assist at the trial of David,
Prince of Wales, then a prisoner. The separation of the two
classes of representatives could therefore be carried thus far,
that each class may have sat in different, though neighbouring
towns.
{421}
Causes Of This Separation.
When they sat in the same town, and especially at Westminster,
the whole Parliament met together, most probably in the same
chamber; but the great barons and knights of the shire occupied
the upper end, and the borough representatives the lower part, of
the chamber.
A distinction existed even among the borough members. Until the
reign of Edward III., the representatives of those boroughs which
formed part of the ancient domain of the crown constituted a
separate class, and voted distinct supplies.
The division of Parliament, then, far from having originated in
the forms which prevailed fifty years later, arose from
principles altogether different. No idea then existed of truly
general interests and a national representation. The particular
interests which were of sufficient importance to take part in the
government, intervened in it solely on their own account, and
treated separately of their own affairs. Did the matter in hand
relate exclusively to things in which the great barons appeared
to be interested, and where the king required their assistance
alone--they alone assembled and deliberated. Was the question one
of modifications in the nature or mode of the transmission of
feudal territorial property--the knights of the shire were
summoned; and in this way the statute _Quia emptores_ was
enacted under Edward I. Were commercial interests concerned--the
king treated of them with the borough representatives only. In
these various cases, as in the matter of supplies, the
deliberation and vote of the different classes of members of
Parliament were distinct. These classes were formed in reference
to their common interests, and took no part in each other's
affairs: and very rarely, probably never, at this period, was
there any matter of sufficiently general and common importance to
all, for all to have been summoned to deliberate and vote in
common.
{422}
Formation Of The Commons.
Thus the classification of society was perpetuated in the
Parliament, and was the true principle of the division between
the members of Parliament.
This state of things did not long continue, because the
classification of society itself, in which it originated, also
tended to its own effacement. The county members could not fail
to separate themselves altogether from the great barons, and
completely to combine with the borough representatives; and for
the following reasons.
If the knights of the shire continued for some time to sit and
vote with the great barons, this was merely the effect of old
association, a relic of the ancient parity of their feudal
position. This equality had already received a severe check by
the substitution of election for individual right of presence.
The cause which had led to this change continued at work; the
disparity of importance and wealth between the great barons and
plain knights of the shire went on increasing; the remembrance of
feudal political right became weakened; and the social position
of the knights of the shire daily became more different from that
of the great barons. Their parliamentary position could not fail
to follow the same course. All things combined to separate them
more and more.
At the same time every circumstance tended to associate the
representatives of the counties with those of the boroughs. They
had the same origin, and appeared in Parliament by virtue of the
same title--election. The tie which had attached the county
elections to feudal right became progressively enfeebled.
Furthermore, these two classes of deputies were alike
correspondent to certain local interests. These interests were
often identical or of the same nature. The inhabitants of the
towns situated in a county, and the rural landowners of the
county, were often engaged in the same affairs, and frequently
entertained the same claims and desires. Besides, the
county-courts were a common centre at which they habitually
assembled together. Both the county and borough elections
frequently took place in these courts. Thus, while certain causes
increasingly separated the knights of the shire from the great
barons, other causes approximated them more closely to the
borough representatives. The analogy of social positions
naturally hastened the fusion of parliamentary positions.
{423}
Present Constitution Of Parliament.
Lastly, the great barons constituted the chief council of the
king. They often assembled around him in this capacity, and
independently of any convocation of the elected deputies. By
reason of their personal importance, they engaged in public
affairs, and took part in the government in an habitual and
permanent manner. The representatives of the counties and
boroughs, on the contrary, interfered in the administration of
public affairs only from time to time, in certain particular
cases. They possessed rights and liberties, but they neither
governed, nor contested with each other for the government, nor
were they constantly associated in it. Their political position
was in this respect the same, and was therefore very different
from that of the great barons. All things tended, then, broadly
to distinguish them from the latter class, and to connect them
together.
The constitution of Parliament in its present form is the result
of all the above causes. It was accomplished in the middle of the
fourteenth century, although some instances of separation between
the two elements of the House of Commons may subsequently be met
with. These cases very soon disappeared and the union became
complete. One fact alone remained, and that was the superiority
in importance and influence of the county representatives over
the representatives of boroughs, notwithstanding the habitual
inferiority of their numbers. This fact, with the exception of
only a few intervals, is met with throughout the whole course of
the history of Parliament.
Thus was effected, on the one side, the separation of the Houses
of Peers and Commons, and on the other, the union of the
different elements of the House of Commons into a single
assembly, composed of members exercising the same rights and
voting on all occasions in common.
This is the great fact which has decided the political destiny of
England. By themselves alone, the borough deputies would never
have possessed sufficient power and importance to form a House of
Commons capable of resisting sometimes the king, and sometimes
the great barons, and of gaining an ever-increasing influence in
public affairs. But the aristocracy, or rather, the feudal
nation, being divided into two parts, and the new nation which
was forming in the towns becoming combined with the county
freeholders there, arose from the combination a competent and
imposing House of Commons.
{424}
Early Importance Of The Commons.
There was a large body of the nation independent both of the king
and of the great nobles. It happened also that the king could
not, as in France, make use of the Commons to annihilate the
political rights and privileges of the ancient feudal system,
without substituting new liberties in their places. On the
Continent, the enfranchisement of the Commons definitively led to
absolute power. In England, a portion of the feudal class having
united with the Commons, they combined to defend their liberties.
On the other hand, the crown, supported by the great barons, who
could not hope to set up as petty independent sovereigns in their
own domains, possessed sufficient power to defend itself in its
turn. The great barons consequently were obliged to rally round
the throne. It is not true, though it is constantly reiterated,
that the aristocracy and people have made common cause in England
against the regal power, and that English liberty has arisen out
of that circumstance. But it is true that the division of the
feudal aristocracy having prodigiously augmented the power of the
Commons, popular liberties at an early date possessed sufficient
means of resistance, and the royal power received at the same
time sufficient support.
Thus, considering the division of Parliament into two houses
under the historic point of view, we see both how it was
effected, and how favourable it has been to the establishment of
popular liberty. Is this, then, all? Are this fact and its
results mere accidents arising out of circumstances peculiar to
England, and to the state in which society happened to be in the
fourteenth century? Or is this division of legislative power into
two houses a constitutional form intrinsically good, and
everywhere as well founded in reason as it was, in England, in
the necessities of the times? This question must be examined in
order properly to appreciate the influence which this form has
exercised on the development of the constitutional system in
England, and rightly to understand its causes.
{425}
Lecture XVIII.
Examination of the division of the legislative power into two
Houses.
Diversity of ideas on this subject.
Fundamental principle of the philosophic school.
Source of its errors.
Characteristics of the historic school.
Cause of the division of the British Parliament into two
Houses.
Derivation of this division from the fundamental principle of
representative government.
Its practical merit.
Division Of The Legislative Power.
In order to judge in itself of the division of the legislative
power into two Chambers, and to estimate its merit, we must first
detach it from certain particular and purely local
characteristics, which are not essentially inherent in it; and
which have associated it in England with causes which are not in
all times and places to be met with. Not a few writers have
fallen into grave errors, on this and many other questions, by
neglecting to take this step at the outset. Some have formed
their judgment of this institution entirely from a few of the
causes which led to its establishment in England in the
fourteenth century; and as, generally speaking, they did not
approve either of these causes or their effects, and had a bad
opinion of the social condition of which they formed part, they
have condemned the institution itself, appearing to believe that
it was derived solely from that social condition, and could not
possibly be detached from it. Others, on the contrary, struck
either with the general reasons which may be urged in favour of
the institution, or with the good effects which it has produced
in England and elsewhere, have adopted it exactly in that
particular form in which it was introduced among our neighbours
by their ancient social condition, asserting that all the
characteristics which it there presents are essential to it, and
even constitute it. Thus, the institution has sometimes been
censured on account of particular facts which accompanied its
establishment and combined to produce it, and sometimes these
facts and their special consequences have been adopted as
principles, simply because they were associated with an
institution deemed intrinsically good.
{426}
Philosophic And Historic Schools.
These two modes of judgment, both of which are equally erroneous,
characterize the two schools, which may be called distinctively
the philosophic school and the historic school. As this twofold
method of considering political questions has warped them,
sometimes in one sense and sometimes in another, it appears to me
that it would be useful to offer some general observations on
this subject, which may afterwards be applied to the particular
question with which we are now occupied.
One idea reigns in the philosophic school--that of Right. Right
is constantly taken both as its starting-point, and as its goal.
But right itself requires to be investigated; before adopting it
as a principle or pursuing it as an object, we must know what it
is. To discover right, the philosophic school commonly confines
itself to the individual. It takes hold of man, considers him
isolatedly and in himself, as a rational and free being, and
deduces from an examination of his nature that which it
denominates his rights. Once in possession of these rights, they
are advanced as a requirement of justice and reason, which ought
to be applied to social facts as the sole rational and moral rule
by which these facts should be judged, if judgment only be
required--or instituted, if the object be to institute
government.
The historic school is held in bondage by another idea--that of
Fact. It does not, if possessed of any good sense, deny right: it
even proposes right as its goal, but it never adopts it as its
starting-point. Fact is the ground to which everything is
brought; and as facts cannot be considered isolatedly, as they
are all bound up together; and as the past itself is a fact with
which the facts of the present are connected, it professes great
respect for the past and admits right only so far as it is
founded on anterior facts; or at least this school seeks to
establish right, only by uniting it closely with these facts, and
striving to deduce it from them. Such are the points of view, not
exclusively, for that cannot be, but dominantly, of the two
schools. How much is true, and how much erroneous in each? That
is to say, what is there incomplete in both?
The philosophic school is correct in adopting Right not only as
its end but also as its starting-point. It is right in
maintaining that an institution is not good, simply because it
exists or has existed, and that there are rational principles by
which all institutions should be judged, and rights superior to
all facts,--rights which cannot be violated unless the facts
which violate them are illegitimate, although real, and even
powerful.
{427}
Errors Of The Philosophic School.
But though right in standing upon this foundation, which is its
principal characteristic, the philosophic school is often
mistaken when it attempts to go farther. We say that it is
mistaken, philosophically speaking, and independently of all
ideas of application and practical danger.
Its two chief errors, in my opinion, are these:
I. Its researches after right are misdirected; and,