realised.
It is not by considering man in isolation, in his single nature,
and individually, that his rights may be discovered. The idea of
right implies that of relation. Right can be declared only when
relation is established. The fact of a connexion, of an
approximation, in a word, of society, is implied in the very word
_right_. Right originates with society. Not that society, at
its origin, created right by an arbitrary convention. Just as
truth exists before man becomes acquainted with it, so does right
exist before it is realised in society. It is the legitimate and
rational rule of society in every step of its development, and at
every moment of its existence. Rules exist before their
application; they would still exist even if they were never
applied. Man does not make them. As a reasonable being, he is
capable of discovering and understanding them. As a free being,
he can either obey or violate them; but whether he be ignorant of
them or knowingly violate them, their reality, so far as they are
rules, that is to say, their rational and moral reality, is
independent of him, superior and antecedent to his ignorance or
his knowledge, to the respect or neglect with which he treats
them. Laying down this principle then on the one side, that rule
virtually exists before the relation or society to which it
corresponds, and on the other side, that it is not manifested and
declared until society is established, that is to say, that it
can only be applied when society really exists, we inquire, What
is this right and how can it be discovered?
Right, considered in itself, is the rule that each individual is
morally bound to observe and respect in his relations with
another individual; that is to say, the moral limit at which his
lawful liberty is arrested and ceases in his action on that
individual; or, in other words, the right of a man is the limit
beyond which the will of another man cannot morally be exercised
over him in the relation which unites them.
{428}
True Rule Of Social Relations.
Nothing can be more certain than that every man in society has a
right to expect that this limit will be maintained and respected
as regards himself by other men and by society itself. This is
the primitive and unalterable right which he possesses in virtue
of the dignity of his nature. If the philosophic school had
confined itself to laying down this principle, it would have been
perfectly correct, and would have reminded society of the true
moral rule. But it has attempted to go further: it has pretended
to determine, beforehand and in a general way, the exact limit in
every instance in which the will of individuals over each other,
or of society over individuals, ceases to be legitimate. It has
not contented itself with establishing right in principle, but
has considered itself capable of enumerating all social rights
_à priori_, and of reducing them to certain general formulæ
which should comprise them all, and might thus be applied to
every relation to which society gives birth. By this it has been
led to overlook many very positive rights, and to create many
pretended rights which have no reality. If it be true, as we have
laid it down, that right is the legitimate rule of a relation, it
is plain that the relation must be known before the right which
ought to govern it can be understood. Now social relations,
whether between one man and another, or between one and several,
are neither simple nor identical. They are infinitely multiplied,
varied, and interwoven; and right changes with relation. An
example will best explain our meaning. We will select the most
simple and natural of social relations, that of the father to the
child. Nobody will presume to assert that here no right exists,
that is to say, that neither the father nor the child have any
respective rights to be mutually observed, and that their will
alone should arbitrarily regulate their reciprocal relations. In
the outset, whilst the child is devoid of reason, his will has
little or no right: the right belongs entirely to the will of the
father, which even then is, doubtless, legitimate only so far as
it is conformable to reason, but which is not and cannot be
subordinate to that of the child, on which it is exercised and
which it directs.
{429}
In proportion as reason becomes developed in the child, the right
of the father's will becomes restricted; this right is always
derived from the same principle, and ought to be exercised
according to the same law; but it no longer extends to the same
limit, but becomes changed and narrowed day by day with the
progress of the intellectual and moral development of the child,
up to the age when at length the child, having become a man,
finds himself in a totally different relationship to his
father--a relationship in which another right holds sway, that is
to say, in which the paternal right is enclosed within entirely
different limits, and is no longer exercised in the same way.
If, in the most simple of social relations, the right, though
immutable in its principle, suffers so many vicissitudes in its
application,--if the limit at which it stops is so continually
altered, according as this relation changes in nature and
character--to a far greater extent will this be the case in all
other social relations, which are infinitely more changeful and
complicated. Every day old rights will perish; every day new ones
will arise; that is to say, different applications will daily be
made of the principle of right; and each occasion will vary at
the limits at which the right ceases, either on one side or the
other, in the innumerable relations which constitute society.
It is not, then, a simple matter to determine right, nor can it
be done once for all, and according to certain general formulae.
Either these formulæ must be reduced to this dominant truth, that
no will, whether that of man over man, of society over the
individual, or of the individual over society, ought to be
exercised contrary to justice and reason--or else these formulæ
are vain; that is to say, they confine themselves to expressing
the principle of right, or try unsuccessfully to enumerate and
regulate beforehand all its applications.
Impossibility Of Defining Rights.
In this there consists the first error of the philosophic school,
that, proud of having re-established the principle of right (a
matter, certainly, of immense importance), it has thenceforth
esteemed itself, by continuing the same process, in a condition
to recognise and define all rights; that is to say, all
applications of the principle to social relations; an attempt
which is most dangerous because it is impossible.
{430}
Conditions Of Realizing Right.
It is not granted to man thus to discern, beforehand and at a
glance, the whole extent of the rational laws which ought to
regulate the relations of men both among themselves and with
society in general. Doubtless, in each of these relations and in
all the vicissitudes which they undergo, there is a principle
which is their legitimate rule, and which determines rights; and
it is this principle which must be discovered. But it is in the
relation itself, over which this principle should hold sway, that
it is contained and may be discovered; it is intimately connected
with the nature and object of this relation, and these are the
first data that must be studied in order to arrive at a knowledge
of the principle. The philosophic school almost constantly
neglects this labour. Instead of applying itself to the discovery
of the true rights which correspond to the various social
relations, it arbitrarily constructs rights while pretending to
deduce them from the general and primitive principle of right; an
attempt the reverse of philosophical, for special rights are
applications, not consequences logically deduced from this
principle; which is perfectly exhibited in each particular case,
but which does not contain within itself all the elements or all
the data required for the discovery of the right in every case.
The second error of the philosophic school is that of mistaking
the conditions under which right may be realised, that is to say,
under which it may become associated with facts, so as to
regulate them.
It has long been said that two powers, right and might, truth and
error, good and evil, dispute the mastery of the world. What is
not so often said, though it is no less true, is this--they
dispute for it because they simultaneously possess it, because
they co-exist in it everywhere at the same time. These two
powers, so opposite in their nature, are never separated; in
fact, they meet and mingle everywhere, forming by their
co-existence and conflict that sort of impure and troubled unity
which is the condition of man on earth; and which is reproduced
in society as well as in individuals. All mundane facts bear this
character: there are none that are completely devoid of truth,
justice, and goodness; none that are wholly and purely right,
good, or true. The simultaneous presence, and at the same time
the struggle, of might and right, forms the primitive and
dominant fact which is reproduced in all other facts.
{431}
Amalgamation Of Might And Right.
The philosophical school habitually loses sight of this intimate
and inevitable amalgamation of might and right in all that exists
and takes place upon the earth. Because these two powers are
hostile, it thinks them separate. When it recognises some great
violation of right in an institution, a power, or a social
relation, it concludes that right is utterly absent from it; and
imagines, at the same time, that if it can succeed in laying hold
of this fact, and shaping and regulating it according to its own
will, it will secure the undisputed sway of right in that fact.
Hence the contempt, one might almost say the hatred, with which
it judges and treats facts. Hence also, the violence with which
it pretends to impose upon them those rules and forms which
constitute right in its eyes: what regard is due to that which is
only the work of might? what sacrifices are not due to that which
will be the triumph of right and reason? and the firmer the minds
and the more energetic the characters of these reasoners, the
more will they be ruled and the further misguided by this method
of viewing human things. Facts past and present do not deserve so
much disdain, nor do future ones merit so much confidence. We do
not here adopt the views of the sceptics, nor would we regard all
facts as equally good or bad, and equally invested with or
destitute of reason and right. Nothing can be more contrary to
our opinion. We firmly believe in the reality and legitimacy of
right, in its struggle against might, and in the utility as well
as the moral obligation of sustaining right in this eternal but
progressive combat. We only ask that, in this struggle, nothing
may be forgotten, and nothing confounded; and that indiscriminate
attacks may not be made. We ask that because a fact may contain
many illegitimate elements, it is not therefore to be supposed
_à priori_ to contain nothing besides, for such is not the
case. Right exists everywhere more or less, and everywhere right
ought to be respected. There is also more or less falsity and
incompleteness in the speculative idea which we form to ourselves
of right, and there will be unjust force and violence employed in
the strife in which this idea is made to prevail, and in the new
facts which will result from its triumph. This is not saying that
the combat ought to be suspended, or that the triumph ought not
to be pursued. It is only necessary truthfully to recognise the
condition of human things, and never to lose sight of it, whether
the question be one of judgment or of action.
{432}
Errors Of The Philosophic School.
This is what the philosophic school can rarely consent to do.
Taking right for the point at which it sets out, and also that at
which it aims, it forgets that facts subsist between these two
extremes--actual and existing facts, independent data; a
condition which of imperative necessity must be submitted to,
when the extension of right is sought after, since these facts
are the very matters to which right must be applied. This school
begins by neglecting one of the fundamental elements of the
problem which it has to solve; it falls into reverie, and
constructs imaginary facts, whilst it ought to be operating on
real facts. And when compelled to quit hypotheses, and deal with
realities, it becomes irritated at the obstacles which it meets,
and unreasonably condemns the facts which throw them in its way.
Thus, through having desired impossibilities, it is led to forget
a part of that which is actually true. Society at every period
swerves more or less from the general type of right; that is to
say, the facts which constitute its material and moral condition
are more or less regulated according to right, and also become in
a greater or less degree susceptible of receiving a more absolute
form, a more perfect rule, and of continually assimilating more
closely to reason and truth; and this it is which must be
absolutely studied and understood before passing a judgment on
these facts, or endeavouring to effect their change and
improvement. Perfection is the aim of human nature and of human
society; perfection is the law of their existence, but
imperfection is its condition. The philosophic school does not
accept this condition; and is thus misled in its endeavours
towards attaining perfection, and even in its own idea of the
perfection to which it aspires.
Errors Of The Historic School.
The historic school possesses other characteristics, and falls
into different errors. With the utmost respect for facts, it
easily allows itself to be induced to attribute to them merits to
which they are not entitled; to see more reason and justice, that
is to say, more _right_, in them than they really contain,
and to resist even the slightest bold attempt to judge and
regulate them according to principles more conformable to general
reason.
{433}
It is even inclined to deny these principles, to maintain that
there is no rational and invariable type of right that man can
take for a guide in his efforts or his opinions: an error of
great magnitude, and sufficient to place this school,
philosophically considered, in a subordinate rank. What then is
perfection, if there is no ideal perfection to be aimed at? What
is the progress of real rights, if there is no rational right to
comprehend them all? What is the human mind, if it is incapable
of penetrating far beyond actual realities in its knowledge of
this rational right? and how can it judge of them except by
comparing them with this sublime type, which it never holds in
full possession, but which it cannot deny without abnegating
itself, and losing every fixed rule and guiding thread?
Doubtless, facts command respect, because they are a condition, a
necessity; and they deserve it, because they always contain a
certain measure of right. But the judgment ought never to be
enslaved by them, nor should it attribute absolute legitimacy to
reality. Is it so difficult, then, to perceive that evil is evil
even when it is powerful and inevitable? The historic school
constantly endeavours to evade this confession. It tries to
explain every institution, and to abstain from giving judgment
upon them, as if explanation and judgment were not two distinct
acts, which possess no right over one another. It never suffers
the institution of a comparison between the real state of any
society and the rational state of society in general; as if the
real, or even the possible, were the limit of reason; as if, when
judging, reason should be deposed, because when applied it is
compelled to undergo conditions and to yield to obstacles which
it cannot conquer. The historic school would be perfectly right
if it confined itself to the careful study of facts, bringing to
light that portion of right which they contain, and searching out
the degree of perfection which they are capable of receiving, and
if it restricted itself to maintaining that it is not easy to
distinguish real rights, unjust to condemn facts _en masse_,
and impossible and dangerous to neglect them altogether. But when
it undertakes to legitimise facts by facts; when it refuses to
apply the invariable law of justice and rational right to all, it
abandons every principle, falls into a sort of absurd and
shameful fatalism, and disinherits man and society of that which
is most pure in their nature, most legitimate in their
pretensions, and most noble in their aspirations.
{434}
Comparison Of The Two Schools.
To sum up, the philosophic school possesses the merit of
everywhere acknowledging the principle of right, and adopting it
as the unchangeable rule of its judgment on facts. Its errors
consist in its knowledge of facts being slight, imperfect, and
precipitate; and in not allowing to facts the power which is
inseparable from them, and the degree of legitimacy which they
always contain. The historic school is better acquainted with
facts, appreciates their causes and consequences more equitably,
effects a more faithful analysis of their elements, and arrives
at a more exact knowledge of particular rights as well as at a
more just estimate of practicable reforms. But it is deficient in
general and fixed principles: its judgments fluctuate according
to chance; and accordingly it almost always hesitates to come to
a conclusion, and never succeeds in satisfying the mind, which
the philosophic school, on the contrary, always impresses
strongly, at the risk of leading it astray.
We have insisted on the distinctive characters and opposite
errors of these two schools, because we meet with them
unceasingly when investigating how institutions and social facts
have been appreciated and understood. Of this we have given an
example by indicating the two points of view under which the
division of the legislative power into two Chambers has been
commonly considered. The historic school approves and recommends
it; but it often founds its reasons on illegitimate facts, and
adheres too absolutely to the forms which this institution has
assumed in the past, while it refrains from attaching itself to
any rigorous and rational principle. The philosophic school has
long maintained, and many of its disciples still believe, that
this is an accidental and arbitrary institution, which is not
founded on reason and the very nature of things.
Let us now consider this institution in itself, after having
disentangled it from that which, in England, has related merely
to its actual origin, and to the local circumstances in the midst
of which it took its rise.
{435}
Origin Of The House Of Peers.
It is beyond doubt that the immense inequality of wealth and
credit,--in a word, of power and social importance, which existed
between the great barons and the other political classes of the
nation, whether freeholders or burgesses, was in England the sole
cause of the institution of the House of Peers. No political
combination or idea of public right had anything to do with its
formation. The personal importance of a certain number of
individuals, in this case, created their right. Political order
is necessarily the expression, the reflection, of social order.
In this stage of civilisation especially, power is indisputably
conveyed from society into the government. There was a House of
Peers because there were men who, bearing no comparison with
others, could not remain confounded with them, exercising only
the same rights, and possessing no greater amount of authority.
To the same cause must be ascribed several of the leading
characteristics of the House of Peers; the hereditary
transmission of social importance, wealth, and power (the result
of the feudal system as regards property), carried with it the
inheritance of political importance. This is proved by the fact,
that originally the sole hereditary peers were the barons by
feudal tenure. Hereditary right did not originally belong to the
_barons by writ;_ although individually summoned to the
Upper House, they exercised, when sitting there, the same rights.
The judicial functions of the House of Peers also had the same
source. At first they belonged to the general assembly of the
direct vassals of the king. When the greater number of these
vassals ceased to attend that assembly, the great barons who
alone attended, continued to exercise nearly all its functions,
and especially its judicial authority. Of this they continued to
hold possession when the knights re-entered Parliament by means
of election. Thus, a right, which originally devolved upon the
general assembly of the political nation, became concentrated in
the new House of Peers, at least in every case unaffected by the
new jurisdictions instituted by the king. On examining in all its
details the political part now performed in England by the House
of Peers, it will be found that a great number of its attributes
are only the results of ancient facts, that they are not inherent
in the institution itself, but solely derived from the social
position of the great barons; and at the same time it will be
perceived that all these facts are connected with the general and
primitive fact of the great inequality then subsisting between
the great barons and the citizens.
{436}
Advantages Of A House Of Peers.
As this inequality really existed, and could not fail to
re-appear in the government, it was very fortunate for England
that it assumed the form of the House of Peers. Inequality is
never more oppressive and fatal than when displayed solely for
its own advantage, and in an individual interest. This is the
invariable result when the upper ranks are dispersed over the
country, and are brought into contact with, and into the presence
of, their inferiors alone. If, instead of uniting in the House of
Peers to exercise, as members of that assembly, the power they
possessed over society, the great barons had each remained on his
own estates, their superiority and power would have weighed
heavily on all their vassals and farmers, and social emancipation
would have been very much retarded. Every baron would then have
had to do with his inferiors alone. In the House of Peers, on the
contrary, he had to deal with his equals; and to obtain influence
in that assembly, and effect his will, he was obliged to have
recourse to discussion, to the advancement of public reasons, and
to constitute himself the exponent of some interest superior to
his own personal interest, and of opinions around which it would
be possible for men to unite together. Thus men, who, had they
remained isolated on their domains, would have acted only upon
inferiors and for their own interest, were constrained, when they
had met together, to act upon their equals, and for the interests
of the masses, whose support alone could increase their power in
the frequent struggles which this new situation imposed upon
them. Thus by the single fact of its concentration, the high
feudal aristocracy insensibly changed its character. Each of its
members possessed rights originally derived entirely from his own
power, which he came to the House of Peers to exercise solely for
his own interest; but when once brought together into each
other's presence, all these individual interests experienced the
necessity of seeking new means of obtaining credit and authority
elsewhere than in themselves. Personal powers were constrained to
sink themselves into a public power. An assembly composed of
individual superiorities, jealous only to preserve and increase
their power, became gradually converted into a national
institution, compelled to adapt itself, in many points, to the
interest of all.
{437}
Results Of Its Establishment.
As I have elsewhere had occasion to say, one of the greatest
vices of the feudal system was to localise sovereignty, and to
bring it everywhere, so to speak, to the door of those over whom
it was exercised. The formation of the House of Peers weakened
this evil in England, and thus, at least in a political point of
view, struck a deadly blow at feudalism.
Further, the great barons thus formed into a body, had the power
and duty of defending in common their rights and liberties
against the royal power; and their resistance, instead of
consisting in a series of isolated wars, as was the case in
France, immediately assumed the character of a collective and
truly political resistance, founded on certain general principles
of right and liberty. Now there is something contagious in these
principles and their language, which very soon extends them
beyond the limits within which they are at first enclosed. Right
calls forth right, liberty engenders liberty. The demands and
resistance of the great barons provoked similar demands and
resistance in other classes of the nation. Without the
concentration of the high aristocracy in the House of Peers, the
House of Commons would probably have never been formed. From all
these facts flows this consequence, that when great inequality
actually exists in society between different classes of citizens,
it is not only natural but useful to the progress of justice and
liberty, that the superior class should be collected and
concentrated into a great public power, in which individual
superiorities become placed on a more elevated level than that of
personal interest; they learn to treat with their equals, to meet
with opposition, and to furnish an example of the defence of
liberties and rights; while by exposing themselves in some sort
to the view of the whole nation, they experience by this fact
alone the necessity of adapting themselves, to a certain extent,
to its opinions, sentiments, and interests.
{438}
Is A House Of Peers Advantageous?
But, it may be said, a social inequality of sufficient magnitude
to occasion the formation of such a power, is neither a universal
fact, nor one in itself good and desirable; and under this point
of view the House of Peers, as it is constituted in England, was
simply a remedy for an evil. There can be no doubt that the
accumulation of land, wealth, and positive power which belonged
to the great barons, and the securing of all these social
advantages, were the result of violence, and as contrary to the
internal tendency as to the rational principles of society in
general. If then the division of the legislative power into two
Chambers is derived only from such causes, it might in certain
cases be inevitable and even beneficial; but where these causes
are not met with, nothing would recommend it, or ought to make
its necessity a matter of regret. The equitable and natural
distribution of social advantages, their rapid circulation, the
free competition of rights and powers--this is the object, as it
is the rational law of the social condition. An institution
which, in itself and by its nature, is opposed to this object and
derogates from this law, contains nothing which ought to lead to
its adoption when not imposed by necessity.
Is this the case with regard to the division of the legislative
power into two Chambers, setting aside those particular
characteristics which, in the English House of Peers, are derived
solely from local and accidental facts, and cannot be referred to
rational causes of universal validity?
Before considering this question in its relation to the
fundamental principle of representative government, some
observations are necessary.
{439}
Two Tendencies In Society.
It is by no means true, that similar inequalities to those which
produced the preponderance of the great barons in England, and a
permanent classification of society in conformity to these facts,
are natural conditions of the social state. Providence does not
always sell her benefits at so high a price to the human race,
and has not rested the very existence of society on this
denomination, this immovable constitution of privilege. Reason
must believe, and facts prove, that society can not only subsist,
but is even better off in another condition; in a condition in
which the principle of free competition exercises more dominion,
and where the different social classes are more nearly allied. It
is certain, however, that there exist in society two tendencies,
equally legitimate in their principle, and equally salutary in
their effects, although in permanent opposition to each other.
The one is the tendency to the production of inequality, the
other, the tendency to maintain or restore equality between
individuals. Both are natural and indestructible: this is a fact
which requires no proof, the aspect of the world displays it
everywhere; and if we look within, we shall perceive it in
ourselves. Who does not desire, in some respect or another, to
raise himself above his equals? and who would not also wish, in
some particular, to bring down his superiors to an equality with
himself? These two tendencies, considered in their principle, are
equally legitimate: the one is attached to the right of the
natural superiorities which exist in the moral as well as in the
physical order of the universe; the other, to the right of every
man to that justice which desires that no arbitrary force should
deprive him of any of the social advantages which he possesses,
or might acquire, unaided and without injury to his fellows. To
prevent natural superiorities from displaying themselves, and
exercising the power that belongs to them, is to create a violent
inequality, and to mutilate the human race in its noblest parts.
To enslave men in regard to those rights which are common to all,
by reason of the similitude of their nature, to unequal laws
imposed or maintained by force, is to insult human nature and to
forget its imperishable dignity. In fine, these two tendencies
are equally salutary in their effects: without the one, society
would be inert and lifeless; without the other, might alone would
dominate, and right would for ever be suppressed. In considering
them as respects that which is legitimate and moral in each, let
us ask what is this tendency to inequality but the desire to
elevate ourselves, to extend our influence, and to bring to light
and effect the triumph of that portion of moral power which is
naturally placed by the will of God the Creator, in each
particular individual? and is it not this impulse which
constitutes the life and determines the progress of the human
race? On the other hand, what is this tendency to equality except
resistance to force, to capricious arbitrary wills, and the
desire to yield obedience only to justice and true law?
Doubtless, in both these tendencies, the bad as well as the the
good parts of our nature display themselves: there is a taint of
insolence in the desire of self-elevation, and of envy in the
passion for equality. Injustice and violence may be employed
either to abase superiors or to surpass equals; but in that
conflict of good and evil, which is everywhere the condition of
man, it is not the less true that the two tendencies of which I
am speaking constitute the very principle of social life, the
twofold cause which makes the human race advance in the career of
improvement, which leads it back when it wanders astray, and
urges it forward when perverse powers or wills seek to arrest its
course.
{440}
Tendency To Inequality.
The tendency to inequality is then a fact inevitable in itself,
legitimate in its principle, and salutary in its effects, if it
is restrained by the law of competition, that is to say, beneath
the condition of a permanent and free struggle with the tendency
to equality, which, in the order of Providence, appears to be the
fact by which it is destined to be balanced. In every country
there will always arise and exist a certain number of great
individual superiorities, who will seek an analogous place in
government to that which they occupy in society. They ought not
to obtain it for their personal interest, nor to extend it beyond
what comports with the public interest, nor should they retain it
longer than they possess the title in virtue of which they
assumed it, that is to say, their actual importance, nor should
they preserve this title by means violative of the principle of
free competition, and the maintenance of the rights which are
common to all. All this is indubitable, but, this being allowed,
there will still remain the necessity of introducing and
concentrating among the superior powers all the great
superiorities of the country, in order to engage them in the
transaction of public affairs, and in the defence of the general
interests.
This, as we have seen, is the sole object of the representative
system: its precise purpose is to discover and concentrate the
natural and real superiorities of the country, in order to apply
them to its government. Now, is it good in itself, and in
conformity with the fundamental principle of this system, to
apply only one method of seeking out these superiorities, and to
gather them all into a single voting urn? that is to say, must
they be united in one single assembly, formed upon the same
conditions, after the same tests, and by the same mode? We now
reach the pith of the question.
{441}
Opposition To Absolute Power.
The principle of the representative system is the destruction of
all sovereignty of permanent right, that is to say, of all
absolute power upon earth. The question of what is now called
_omnipotence_ has at all times been agitated. If by this is
understood an actually definitive power, in the terms of
established laws, such a power always exists in society, under a
multitude of names and forms: for wherever there is a matter to
be decided and completed, there must be a power to decide and
complete it. Thus, in the family, the father exercises the power
of definitively determining, in certain particulars, the conduct
and destiny of his children; in a well regulated municipality,
the municipal council definitively enacts the local budget; in
civil trials, certain tribunals give final judgment upon cases
submitted to their decision; and in the political system,
electoral omnipotence belongs to the electors. Definitive power
is thus disseminated through the social state, and is necessarily
met with everywhere. Does this imply that a power ought somewhere
to exist, which possesses omnipotence by right, that is to say,
which has the right to do anything it pleases? That would be
absolute power; and it is the formal design of the representative
system, as well as the object of all its institutions, to provide
against the existence of such a power, and to take care that
every power shall be submitted to certain trials, meet with
obstacles, undergo opposition, and, in fine, be deprived of sway
until it has either proved its legitimacy, or given reason for
presuming it.
There is not, then, and there cannot be, any omnipotence by
right, that is to say, any power which should be allowed to say:
"that is good and just because I have so decided it;" and every
effort of political science, every institution, ought to tend to
the prevention of such a power being anywhere formed; and should
provide that the actual omnipotence which exists under so many
names in society, should everywhere meet with restraints and
obstacles enough to prevent its conversion into an omnipotence by
right.
Until the summit of society is reached, and while those powers
only are constituted, above which other permanent powers will be
placed for the purpose of controlling them, and with power to
enforce their authority, this end appears easy to attain.
{442}
Bulwarks Against Absolute Power.
Judicial power, municipal power, and every second class power may
be definitive without much danger, because if they are abused in
a manner likely to become fatal, the legislative or executive
power will be there to repress them. But we must necessarily come
at last to the supreme power, to that power which superintends
all others, and is not itself ruled or restrained by any visible
and constituted power. Shall the right of omnipotence appertain
to this? Certainly not, whatever may be its form or name. It
will, however, be always prone to aspire to it, and able to usurp
it, for in the political system it possesses omnipotence, and of
this it cannot be deprived; for in reference to general
interests, as well as to local and private interests, a
definitive power is a necessity.
Here then, all the foresight of the politician ought to be
displayed: he will need all his art and all his efforts, to
prevent actual omnipotence from asserting its inherent
rightfulness, and general definitive power from becoming absolute
power.
This result is endeavoured to be secured by a variety of means:
I. by recognising the individual rights of citizens,--the
effect of which is to superintend, control, and limit this
central supreme power, and constantly to subject it to the law
of reason and justice to which it ought to be subordinated;
this is the object of the jury, of the liberty of the press,
and of publicity of all kinds:
II. by constituting, in a distinct and independent way, the
principal powers of the second class, such as the judicial and
municipal powers; on such a plan that these being themselves
repressed and restrained when necessary by the central power,
may restrain and repress it in their turn if it should attempt
to become absolute:
III. by organising the central power itself in such a manner as
to make it very difficult for it to usurp rightful omnipotence,
and to provide that it shall meet with such oppositions and
obstacles within itself as will not admit of its attaining
actual omnipotence except under laborious conditions, the
accomplishment of which gives ground to presume that it does in
effect act in accordance with reason and justice; that is to
say, that it possesses legitimacy.
{443}
Secret Of Political Liberty.
This last description of means is the only one connected with the
question that now occupies our attention. The division of the
legislative power into two Chambers has precisely this object. It
is directed against the easy acquisition of actual omnipotence at
the summit of the social system, and consequently against the
transformation of actual omnipotence into rightful omnipotence.
It is therefore conformable to the fundamental principle of the
representative system, and is a necessary consequence of it.
Why is it undesirable that the legislative and executive powers,
that is to say, the entire supreme power, should reside either in
one man or in a single assembly? why does tyranny always spring
from these two forms of government? Because it is in the nature
of things, that a power which has no equal should think itself
rightfully sovereign, and should very soon become absolute. It
has happened thus in democracies, aristocracies, and monarchies;
wherever actually sovereign power has been conferred upon a
single man, or a single body of men, that man, or that body, has
assumed to be rightfully sovereign; and more or less frequently,
and with greater or less violence, it has exercised despotism.
The art of politics, the secret of liberty is, then, to provide
equals for every power for which it cannot provide superiors.
This is the principle which ought to preside in the organisation
of the central government: for on these terms only can the
establishment of despotism at the centre of the State be
prevented.
Now if the legislative power is entrusted to a single assembly,
and the executive power to one man, or if the legislative power
is divided between one assembly and the executive power, is it
possible for each of these powers to possess sufficient force and
consistence to admit of the necessary equality between them, that
is to say, to secure that neither shall become the sole and
undisputed sovereign power? Such an example has never been
witnessed: wherever the central power has been thus constituted,
a struggle has arisen, which has resulted, according to the
times, either in the annihilation of the executive power by the
legislative assembly, or of the legislative assembly by the
executive power. Some countries have been governed by a single
assembly, others by several assemblies, of which some have been
aristocratic and others democratic; while all have contested with
each other for the sovereignty. These various forms of government
have given rise either to tyranny or to continued commotions, and
have nevertheless endured. But a government in which the
legislative assembly and the executive power have remained
distinct, preserving their personality and their independence,
and reciprocally limiting each other, is a phenomenon without
example, either in antiquity or in modern times. One of these
powers has always speedily succumbed, or been soon reduced to a
state of subordination and dependence equivalent to nonentity, at
least as regarded the essential purposes for which it was
instituted.
{444}
Division Of The Central Power.
This could not fail to be the case. Equality is impossible
between powers which are completely dissimilar, either in their
nature, or in their means of obtaining power or credit. The
dominion of one person, that is to say, the pure monarchical form
of government, derives its springs and means of action from
certain dispositions of human nature, and certain conditions of
society. The full and exclusive rule of a single assembly derives
the same from other dispositions and other social circumstances;
according as one or other class of these circumstances
predominate, kings have abolished assemblies, and assemblies have
overthrown kings. But the co-existence of these two systems of
government, when confronted with each other and acting in direct
opposition, is impossible. They do not then act as a restraint
upon each other, but they wage a war of extermination: such an
event has accordingly never been met with except in revolutionary
times: it may possibly have been an unavoidable condition of such
epochs; but then it has always involved one or other of these
forms of despotism: it has never become the basis of a free and
regular government.
When it is once admitted that the division of the central power
is indispensable, in order to prevent all usurpation of rightful
omnipotence, or, at least, to render such usurpation infrequent
and difficult, it necessarily follows that this division ought to
be effected in such a way that the resulting powers shall be
capable of regular co-existence, that is to say, of mutually
restraining, limiting, and compelling each other to seek in
common for that reason, truth, and justice, which ought to
regulate their will and preside over their actions. It is
essential that neither of these powers should elevate itself so
much above the others as to be able to throw off their yoke; for
the excellence of the system consists precisely in their mutual
dependence, and in the efforts which it imposes on them to secure
unanimity. Now there can be no mutual dependence, except between
powers which are invested with a certain degree of independence,
and with strength enough to maintain it.
{445}
Its Relation To Representative Government.
The division of the central power, or of the actual sovereignty,
between the executive power and two legislative assemblies is,
therefore, strictly derived from the fundamental principle of the
representative system; or rather it is the sole constitutional
form which fully corresponds to this principle, and guarantees
its maintenance, since this is the only form which, by providing
equals for powers which admit of no superiors, prevents them all
from claiming and usurping rightful sovereignty, that is to say,
absolute power.
Why has this truth been so frequently forgotten? why has this
constitutional form been so often repudiated by men who,
nevertheless, desired to establish representative
government?--Because they have forgotten the principle of this
form of government. At the very moment when they were directing
their efforts against absolute power, they have imagined that it
legitimately existed somewhere; and they have attributed it to
society itself,--to the entire people. They have thus proved
wanting in consistency and courage in their opposition to
absolute power; and either have not known, or have not dared, to
pursue it wherever it might be found; to leave it no refuge; to
denounce and banish it under every possible name and form. Thus,
admitting the existence of one sole sovereign, naturally and
eternally legitimate, they have also been obliged to admit an
undivided representation of this undivided sovereign. The
sovereignty of the people, thus understood, necessarily carries
with it the unity of the legislative power: and when tyranny has
sprung from it, when the lessons of experience have led men to
seek other combinations, when it has been considered right to
divide the legislative assembly, it has been done with the
assertion, that such a step was contrary to the principle of
representative government, but necessary: that principles cannot
rigorously be followed, and that it is necessary to believe in
the theory, but not to practise it. Such language is an insult to
truth, for truth never contains evil; and when evil does appear
anywhere, it arises not from truth but from error.
{446}
If the consequences of a principle are fatal, it is not because
the principle, though in itself true, is not applicable, but
because it really is not true. It has been said by the advocates
of divine right: There is only one God; there ought therefore to
be only one king; and all power belongs to him because he is the
representative of God. The advocates of the sovereignty of the
people say: There is only one people; there ought therefore to be
only one legislative assembly, for that represents the people.
The error is the same in both cases, and in each instance it
leads equally to despotism. There is only one God, that is
certain: but God exists nowhere upon the earth, for neither is
any man nor is the entire people God, nor do any perfectly know
his law, or constantly desire it. No actual power, then, ought to
be undivided, for the unity of actual power supposes a plenitude
of rightful power which nobody possesses or can possess.
Good Effects Of This Division.
Far, then, from the division of legislative power being a
derogation from the principles of political liberty, it is, on
the contrary, in perfect harmony with these principles, and is
specially directed against the establishment of absolute power.
Having this [thus?] established the principle, it would be easy
to consider it in practice, and to demonstrate its good effects.
It would be easy to prove that it is indispensible for realising
the responsibility of the executive power; for curbing inordinate
ambition, and turning every kind of superiority to the profit of
the State; for preventing fundamental institutions, the public
rights of citizens, and all the higher branches of legislation,
from being treated as simple measures of government, and made
subject to the instability of political experience: but these
considerations would lead me too far; I wished to establish this
constitutional form in principle, because it is owing to the want
of such foundations that it has long been regarded with mistrust
and doubt by many enlightened men. Its utility is never disputed;
its good results are acknowledged; but men are generally ignorant
how it can be made to agree with the general principles of a free
government; and it has been found, not without reason, that these
principles would be weakened by any derogation from them. In
times when the human race is subject to regenerative influences,
empiricism is never the ruling spirit: man then requires some
rational and rigorous principles which may furnish a solution to
every difficulty; and he mistrusts experience when he finds her
counsels at variance with those primitive axioms which his reason
has firmly adopted. This is our natural disposition: let us not
lament it, it characterises all great epochs; it is then only
necessary rigidly to examine principles themselves, and to grant
dominion to those ideas only which truly deserve it.
{447}
How Should It Be Effected?
A second question remains for consideration: it is, to ascertain
how the division of the legislative power into two houses ought
to be effected, and what should be the mode of formation, what
the attributes and the relations of the two assemblies. This, at
least to a great degree, is a question of circumstance, the
solution of which is almost entirely dependent upon the state of
society, its internal constitution, and the manner in which
wealth, influence, and intelligence, are distributed; this is
sufficiently indicated by what I have said about the causes that
led to the formation of the House of Peers in England. It is
evident, for example, that those countries in which there was no
such inequality as then existed between the different classes of
society, would be ill adapted for a division of the legislative
power based upon the same ideas, presenting the same
characteristics, and entailing the same consequences. Perhaps the
only general idea which can be laid down beforehand upon this
subject is, that the two assemblies should not proceed from the
same source, and be constituted in the same manner; in a word,
that they should not be exactly alike. The object of their
separation would then be defeated, for their similitude would
destroy the mutual independence which is the condition of their
utility.
{448}
Lecture XIX.
Power and attributes of the British Parliament in the
fourteenth century.
At its origin, and subsequent to its complete development, the
Parliament retained the name of the Great Council of the
kingdom.
Difference between its attributes and its actual power at these
two epochs.
Absorption of almost the entire government by the Crown;
gradual resumption of its influence by the Parliament.
Original Name Of The Parliament.
The first name borne in England by the assembly which was
succeeded by the Parliament, was, as you have seen, that of the
great council, the common council of the kingdom, _magnum
commune consilium regni_. The same name has also been given to
the Parliament in England for the last two centuries, when it is
desired to indicate completely the nature of its interference in
the government, and the part which it there performs. It is
called the great national council: the king governs in
Parliament, that is to say, with the advice and consent of the
great council of the nation.
Thus, both at the origin of the British government, and since it
has attained its complete development, the same idea has been
attached to the assembly, or union of the great public
assemblies; and they have both been designated by the same word.
At both these periods, the Parliament or the corresponding
assembly which preceded it, has never actually been, and, indeed,
could not be considered as a special power, distinct from the
government properly so called,--an accessory limited in its
action to a certain number of affairs or emergencies. The
government itself has resided in it. All superior powers have
there been concentrated and called into exercise.
{449}
The Great National Council.
At the origin of modern States, and especially of England, it was
very far from being thought that the whole and sole right of the
body of capable citizens, of the political nation, consisted in
consenting to the imposition of taxes; that they were otherwise
subjected to an independent authority, and were not authorized in
any way to interfere, either directly or indirectly, in the
general affairs of the State. Whatever these affairs might be,
they were their affairs, and they always occupied themselves with
them, when their importance naturally called for their
intervention. This is testified by the history of the Saxon
_Wittenagemot_, of the Anglo-Norman _Magnum Consilium_
and of all the national assemblies of the German peoples, in the
earliest period of their existence. These assemblies were truly
the great national council, deliberating and deciding on the
affairs of the nation in concert with the king.
When the representative system has achieved all its mighty
conquests, and borne its essential fruits, it has invariably
resorted to this; and returned in fact to the point from which it
set out. In spite of all distinctions and apparent limitations,
the power of Parliament has extended to everything, and has
exercised a more or less immediate, but in reality a decisive
influence on all the affairs of the State. Parliament has again
become the great national council in which all the national
interests are debated and regulated, sometimes by means of
anterior deliberation, at other times by those of responsibility.
When this first and last condition of free governments has been
recognized, it will be perceived that a very different
intermediate condition is to be met with, in which Parliament,
although sometimes styled the great national council, exercises
none of its functions, does not in a permanent manner interfere
in political affairs, and is not, in a word, the seat and
habitual instrument of government. During the whole of this
period, the government is separate from the Parliament, and
resides altogether in the royal power, around which are grouped
the principal members of the great aristocracy. The Parliament is
necessary in certain cases, but it is not the centre, the focus,
of political action. It exercises rights, defends its liberties,
and labours for their extension; but influences the government in
no decisive way: and principles which belong only to absolute
monarchy co-exist with the more or less frequent convocation of
the representatives of the nation.
{450}
Parliament In The Fourteenth Century.
Such was the state of the British Parliament, from its formation
in the thirteenth century until nearly the end of the
seventeenth. It was only at the end of the seventeenth century
that it resumed all the characteristics of a great national
council, and became once more the seat of the entire government.
The British Parliament was not, then, in the fourteenth century
either what the public assemblies of the German peoples had
originally been, nor what it is in the present day. In order
properly to comprehend what, at that period, was the nature of
its power and the scope of its influence, we must follow the
progress of events.
Common deliberation on common affairs is the principle, as well
as the most simple form, of political liberty. This principle
fully obtained at the infancy of modern nations. The national
assembly was the great council in which public affairs of every
kind were transacted. The king, the natural head of this council,
was required to convoke it, and to follow its advice.
By the dispersion of the nation over an extended territory, the
great national council became dispersed, and could not be
assembled: for some time, however, it retained its ancient form,
and the full extent of its ancient rights; but power is attached
to continual presence, and the great council became of rare
occurrence. Its numbers rapidly thinned; and it was very soon
composed of great landowners alone, whom wealth, political
importance, and that ambition which increases with the growth of
power, frequently assembled round the king. The government, which
formerly resided in the great national council, now resided only
in this new council, formed of the king and the great barons, who
became daily further separated from the body of the nation. The
same words continued to be employed: the king always governed
with his great council; but this was no longer the same assembly;
the government and the body of the nation had become disjoined.
The king endeavoured to free himself from the great barons, and
to govern alone; they resisted; and in the struggle in which they
engaged for the defence of their liberties or the preservation of
their influence in the central government, they were compelled to
seek support from the body of the nation, the freeholders and the
burgesses.
{451}
Admission Of The Commons.
The issue of this struggle was favourable to liberty; the
freeholders and the burgesses, who were become almost strangers
to the central government, renewed their connection with it by
the formation of Parliament; and this great council of the king,
which for two centuries had been continually contracting, once
more began to extend.
But at their return, the new citizens were very far from taking
the same place which their ancestors had occupied. The
development of inequality is always the first result of the
progress of the social state. Royalty had extended and fortified
its power; it now existed by itself, powerful and independent,
and claiming distinct rights proportionate to its own strength.
It was the same with the great barons, who also were strong and
independent in themselves. If it had been possible to congregate
in a single assembly all the descendants of those ancient Saxons
or Normans who had originally formed the great common council, a
very different spectacle would have been presented. Instead of
finding an assembly of warriors, not enjoying perfect equality,
certainly, but sufficiently equal for each to preserve his
personal importance, and to consider himself in a condition to
defend it; instead of seeing a chief at their head, too little
distinguished from the principal men among them to be powerful
without their adherence,--there would have been a king invested
with great wealth and power, mighty barons followed by a
multitude of retainers almost entirely dependent upon them, and a
body of citizens obliged to unite and act collectively for the
recovery of some influence over those measures which interested
them most directly. In this new composition of society and of the
national assembly, the deputies of the counties and boroughs were
very far from pretending to associate themselves with the
government properly so called, or from thinking to control or
direct the central power in all public affairs; several centuries
necessarily elapsed before their ideas could acquire so much
generality, and their interference in Parliament became so
comprehensive. They assembled there for the sole purpose of
defending themselves, and those whom they represented, against
the most crying abuses of power, against the violent and
arbitrary invasion of their persons and their possessions.
{452}
Vicissitudes Of The Parliament.
Discussing the demands for supplies that were addressed to them,
and presenting their complaints to the government against the
most perilous acts of injustice of the agents of the king or of
the great nobles, constituted the whole of their mission, and, in
their own opinion, the full extent of their rights. Their
personal importance was too trivial, and their intellectual
activity too limited, for them to imagine themselves called to
discuss and regulate the general affairs of the State. They
resisted power when it directly attacked them, or required great
sacrifices from them; but royalty and its prerogatives, the
ordinary council of the king, and his measures in regard to
legislation, peace and war, or general politics, in a word, the
government properly so called, were entirely beyond their
interference. They had not the power, or even the wish, to meddle
with such matters; it was all discussed and decided between the
king, his ministers, and the great nobles who were naturally
called to take part therein by the elevation and importance of
their social position.
Both the ancient assembly of the Saxon or Norman warriors, then,
and the existing Parliament, would be vainly sought for in the
Parliament of the fourteenth century. No violence is done to
facts: a new society had been formed which could only engender a
political order in accordance with its own character. Great
inequality prevailed, and this inequality would naturally
reappear between the powers to which it gave birth. The primitive
and simple unity which exists in an uncivilized community had
disappeared; the wise unity to which a state of civilised society
can elevate itself by the diffusion of wealth and intelligence,
was still far distant. There was a king, a House of Lords, and a
House of Commons: but there was not a Parliament in the political
sense which is now attached to that word.
The permanent co-existence of royalty and a great public council,
through all these vicissitudes of government and liberty, is an
important fact. This council, formed at first by the general
assembly of the nation, afterwards restricted to the great
barons, and speedily admitting within its circle the
representatives of other social conditions, has always been in
England the principal organ of the central government. The
English monarchy has never succeeded in isolating and
enfranchising itself therefrom.
{453}
Its Gradual Increase.
It has been narrowed or extended by reason of changes occurring
in society: but it has always constituted the condition and form
of the monarchy. Popular liberty, so to speak, has always
maintained a footing in the central power; the nation has never
been completely excluded from participation in its own affairs.
The progress of Parliament has been the progress of the
government itself. In vain was the House of Commons feeble and
inactive at its origin: it did exist, and it formed part of the
king's council; it was always present to embrace, in some
measure, every opportunity of extending its influence, and
aggrandising its position and the part it had to perform. In the
fourteenth century, its power was very limited, its attributes
very restricted, and its intervention in public affairs very
infrequent; but it was impossible that it should not daily
increase. In effect it did greatly increase from the time of
Edward I. to that of Henry VI. During the wars of the Red and
White Roses, the great feudal aristocracy destroyed itself by its
contentions. When Henry VII. ascended the throne, there no longer
existed a body of great barons capable of offering armed
resistance to the royal power. The House of Commons, though
strengthened, had not yet emerged from its condition of
inferiority, and was incapable of taking the place of the great
barons in resistance to royalty. Hence the Tudor despotism in the
sixteenth century, the only period at which the maxims of
absolute power have prevailed in England; but even in that very
century, the House of Commons daily penetrated further into the
government, until its power was fully revealed by the great
Revolution of the seventeenth century.
I have now given you a glimpse of the space between the period of
the definitive formation of the British Parliament, and that at
which it sought to obtain its entire dominion. In our subsequent
lectures we shall examine the principal phases in the development
of this great government during those three centuries.
{454}
Lecture XX.
Condition and attributes of the Parliament during the reign of
Edward II. (1307-1327).
Empire of favourites.
Struggle of the barons against the favourites.
Aristocratic factions.
Petitions to the king.
Forms of deliberations on this subject.
Deposition of Edward II.
Reign Of Edward I.
In order to explain the manner in which the British Parliament
was formed, I have found it necessary, up to this point, to
follow history step by step,--to enter into all the details, and
to collect all the facts, that might serve as proofs either of
its existence, or of its participation in public affairs. I have
now another object to attain, and I must therefore pursue another
course. The Parliament is now definitively formed; and if I were
to continue to narrate all the facts which relate to it, and to
keep a register, as it were, of all its acts, I should write the
history of the country, and not that of its institutions. What I
am seeking to describe, is the development of representative
government; and I shall avoid all questions unconnected with this
object. The extension which the Parliament received, the
revolutions which it underwent,--in a word, its personal and
internal life, will constitute the subject to which our attention
must be directed.
On considering the reign of Edward I. from a political point of
view, it is evident that, notwithstanding the agitations by which
it was disturbed, there was, during that reign, some wholeness
and unity in the exercise of power. Edward was a firm and capable
prince, who well knew how to concentrate and direct the various
forces of society; in him, the State possessed a centre and a
chief. Under Edward II., the English government lost all solidity
and unity: no intelligent and determined will presided over it;
the nation had no rallying-point; the string of the bundle was
broken; all forces and all passions were displayed at hap-hazard,
and came into conflict upon the interests of individuals or
factions.
{455}
Empire Of Favourites.
In such a state of things, what could the Parliament be? Nothing,
or next to nothing, unless it were an instrument of factions. The
body of barons was then, and long continued to be, the
preponderant portion of the assembly: the Commons, though strong
enough sometimes to defend themselves when their own interests
were at stake, were not sufficiently powerful to interfere, in a
decisive manner, in public affairs, and to become the centre of
the government. All matters were, therefore, arranged between the
court and the barons, or rather between the different factions
into which the body of barons was divided. The Commons appeared
in the train of one or other party, to give their alternate
triumphs the appearance of a national adhesion, but without ever
determining the course of events, or even modifying them in any
effectual manner. The supreme power and the country were a prey
to the conflicts and schisms of the high aristocracy.
In order clearly to demonstrate that such was the state of
institutions and of the central government at this period, it
will be sufficient to refer to the three principal events of this
reign.
Rebellions Of The Barons.
The first is the conflict which the English barons maintained
against the king, with regard to a favourite, Piers Gaveston,
whom, in spite of his father's advice, Edward II. had persisted
in retaining in his confidence. The favourite and his creatures
absorbed all the power and advantages of the court; and in 1311,
the barons, desiring their share of riches and favours, after
having attempted all other means for his overthrow, demanded his
dismissal with arms in their hands. Their enterprise was
evidently intended neither to promote the interests of the people
nor those of the king; it was a revolt of courtiers. They fought,
not to assert the inviolability of charters or rights, but to
obtain the employments and treasures of a favourite.
Nevertheless, they attempted to give a national colour to their
rebellion.
{456}
The plans and measures of the great rebel Parliament held at
Oxford during the reign of Henry III. were revived; Lords
Ordainers were appointed to reform the State; they bid for public
favour by the abolition of a few abuses; they enacted that the
possessors of landed property alone should be appointed sheriffs;
they limited the right of purveyance, which was held by the
crown; and they prohibited all grants of royal letters-patent
ordering the suspension of the regular course of justice. But
these were merely outward appearances intended to conceal the
selfish egotism of the great barons; their only object was to
make themselves masters of the royal authority, of the right of
appointing to the chief offices of state, and of the revenues of
the crown. They put Gaveston to death, and seized upon the whole
power. The representatives of counties and boroughs, who were
present in the Parliament by which these designs were executed,
gave their consent; but they were mere followers of the
rebellion, and had no influence upon the government. The great
barons, who came to Parliament in arms and accompanied by their
troops, had the entire management of everything in their own
hands.
Edward escaped from the tutelage imposed upon him by the
coalition of the barons, only to fall under the sway of two new
favourites, Hugh le Despencer, or Spencer, and his son. The
elevation of these two courtiers raised up against them a storm
similar to that which had overthrown Gaveston. The new rebellion
which broke out in 1321 is the second remarkable event of this
reign. It was first manifested by a sentence passed against the
two Spencers by the great barons of the realm. They passed it by
their own authority alone, without the concurrence either of the
Commons or of the king, and at the same time compelled the king
to grant them an amnesty for themselves and their adherents;
shortly afterwards, the civil war began, and the confederated
barons were overcome. Edward convoked a Parliament at York, in
1322, at which the Commons attended, and which repealed first the
sentence against the two Spencers, and afterwards all the
ordinances passed by the Lords Ordainers in 1311 and 1312, as
being contrary to the rights of the king, and to the laws and
usages of the country. Thus, whether the court or the rebels
prevailed, a Parliament always sanctioned their triumph, saving
only the ever-ready recourse to civil war, the only true means of
decision.
{457}
Deposition Of Edward II.
Moreover, it is evident that the riches which were amassed by
court favours and the exercise of royal power were a constant
subject of jealousy and faction., The petition presented to the
king in 1322 by Hugh Spencer the elder against the barons who had
condemned him, sets forth that they had devastated sixty-three of
his manors or domains in fifteen different counties,--that they
had carried off 28,000 sheep, 22,000 head of cattle, two
harvests, one from his barns and granaries, and one of standing
corn, 600 horses, a great quantity of provisions of all kinds,
and complete suits of armour to equip 200 men,--and that they had
moreover done damage, in his castles and lands, to the amount of
more than 30,000_l._ sterling. Such was then the wealth of a
great English baron; and herein resided an inexhaustible source
of rebellions.
A third event, the deposition of Edward II., presents a spectacle
of the same character as the two preceding occurrences. This was
the result of a new confederation of the barons, at whose head
the queen, Isabella, had placed herself. A Parliament, convoked
at Westminster, on the 7th of January, 1327, declared the
incapacity of the king, then a prisoner in Kenilworth Castle. A
deputation, composed of four bishops, two earls, four barons,
three deputies from each county, and several burgesses of London,
of the Cinque Ports, and of other cities, was sent to acquaint
him with the resolution of the Parliament, and formally to
renounce the oath of fidelity. This deputation received from
Edward II. his abdication in favour of his son Edward III., then
fourteen years of age, under whose name the dominant faction
expected to wield the supreme power to its own advantage.
Notwithstanding the interference of the Commons in this and the
preceding acts, it is clear that the whole affair was managed
between aristocratic factions influenced by personal interests,
and profiting by the king's incapacity to appropriate to
themselves the government and all its advantages. There is
nothing to indicate any progress of political institutions and
triumph of national liberties. The government of the barons,
after such scenes, was even more arbitrary and oppressive than
that of the king.
{458}
Progress Of The Parliament.
It is, nevertheless, a remarkable fact that, in all these
occurrences, the sanction of the Parliament was always regarded
as necessary, and as the only means of terminating and legalizing
the works of violence. The Parliament, or at least the House of
Commons, was merely a passive instrument in the matter; but it
was already thought impossible to dispense with its concurrence.
Now, as it is part of the nature of this instrument to serve the
cause of public liberties and to lead, sooner or later, to their
extension, every circumstance that augmented its importance and
established its necessity may be considered as a progress of the
representative system.
I will now bring under your notice the principal parliamentary
facts of this period, and inquire in what respects the principles
of a free government were manifested or introduced in them.
It was at this time that the Parliament decidedly became the
centre towards which all demands for the reform of abuses, the
redressing of grievances, the modification of laws, in a word,
all petitions, were directed; it had possessed this character
from its origin, but in a less extended measure. When the
Parliament, or rather the body of barons in Parliament assembled,
had begun once more to act as the great council of the king, a
host of applications which had previously never been made, or had
been addressed to the king alone, were addressed to the king in
Parliament, and became a subject for deliberation at its
meetings. Thus, in the Parliament held at Westminster, in 1315,
we find that 268 petitions were presented.
These petitions were of two kinds. Some were presented by the
Commons to the king in council, and had reference to demands or
complaints of general interest. Others were presented by
individuals, corporations, or towns, and had reference to private
or local interests. The former class gave birth to the right of
initiative; the latter to the right of petition. Both classes
were addressed to the king, in whom the actual power resided; and
upon whom, on this account, it devolved not only to provide for
the general necessities of the State, but also to do justice to
special interests.
{459}
Practice Regarding Petitions.
On the opening of each Parliament, a certain number of days were
fixed for the reception of petitions. A certain number of
persons, chiefly judges or councillors of the king, were
appointed to receive them, to investigate their nature, to
classify them according to their objects, to set aside those
which were to form the subject of discussion in the Parliament
itself, and finally to present them to Parliament. This
discussion was almost confined to the House of Barons, who were
supposed to form a great intermediary council between the privy
council of the king and the entire Parliament. The barons, when
assembled in the privy council, deliberated and decided upon the
demands of the Commons relative to matters of general interest.
If these demands referred to certain complaints against abuses of
the exercise of the royal power, or against the conduct of the
sheriffs, for example, the king answered them in his own name
alone, after having taking the advice of his privy council, of
the judges, or of the barons, according to circumstances. If the
petitions prayed for some interpretation or declaration of the
existing law, the answer was given in the same manner. If they
suggested the enactment of a new law, the king, when he judged it
convenient, proposed this law to the Parliament; but in early
times, this was very rarely the case; and when the petition had
once been presented, the Commons ordinarily had nothing further
to do with the matter than to receive the answer of the king.
As to those petitions which originated from individuals or from
bodies unconnected with the Parliament, and which related only to
matters of private interest, the meeting of Parliament was merely
chosen as the occasion of their presentation, because it was more
favourable than any other period for obtaining a reply. The royal
council decided upon all those petitions which did not require
the intervention of the barons or of the entire Parliament.
The presentation of petitions at this period is, therefore, a
very complex fact with which are connected not only the right of
petition to the Houses of Parliament, but also the right of
petition to the government generally, the right of initiative,
the jurisdiction of the Houses of Parliament, in short, a host of
institutions essential to the representative system, and each of
which it is necessary to consider separately. They all existed,
but in a confused and embryo state, in this affluence of
petitions of all kinds, which called into action very different
powers, then exercised indiscriminately.
{460}
This original confusion was, undoubtedly, one of the principal
causes of the universality of the power of the British
Parliament. We cannot now examine into all the institutions which
sprang from this source, and progressively disentangled
themselves, assuming a distinct form. The question of the right
of petition, in the sense which is attached to it at the present
day, is in itself deserving of our careful examination, and will
form the subject of our next lecture.
Conditions Of Granting Subsidies.
One particular fact attests the progress which the Commons were
beginning to make in the comprehension of their power and rights.
It is beyond doubt that, originally, the voting of supplies
always furnished them with an opportunity of obtaining some
concessions or the redress of their grievances; this is proved by
the history of English charters. But, in 1309, when granting
Edward II. a twentieth part of their moveable goods, they
expressly attached the condition that "the king should take into
consideration, and should grant them the redress of certain
grievances of which they had to complain." [Footnote 36]
[Footnote 36: These grievances were eleven in number, viz:
1. That the king's purveyors took all kinds of provisions
without giving any security for the payment;
2. That additional duties had been imposed on wine, on
cloth, and on other foreign imports;
3. That by the debasement of the coin, the value of all
commodities had been advanced;
4. That the stewards and marshals of the king's household
held pleas, which did not fall under their cognizance;
5. And exercised their authority beyond the verge, that is,
a circuit of twelve leagues round the king's person;
6. That no clerks were appointed, as they had been under
the last monarch, to receive the petitions of the Commons
in Parliament;
7. That the officers appointed to take articles for the
king's use in fairs and markets, took more than they ought,
and made a profit of the surplus;
8. That in civil suits, men were prevented from obtaining
their right by writs under the privy seal;
9. That felons eluded the punishment of their crimes by the
ease with which charters of pardon were obtained;
10. That the constables of the castles held common pleas at
their gates without any authority; and
11. That the escheators ousted men of their inheritances,
though they had appealed to the king's courts.
_Rot. Parl._ i. 441.]
These grievances had existed for a long while, and were
perpetuated for a considerable period afterwards; but the Commons
had begun to look them full in the face, and to insist year after
year upon their redress, as the only condition upon which they
would grant the supplies.
{461}
Statute Of 1322.
A statute passed in 1322, by the Parliament at York, which
revoked the sentence against the two Spencers, declared that
"thenceforward all laws respecting the estate of the crown, or of
the realm and people, must be treated, accorded, and established
in Parliament by the king, by and with the assent of the
prelates, earls, barons, and commonalty of the realm." This is a
formal recognition of the right of the Commons to interfere in
the legislation of the country, and in all great public affairs.
Many English publicists attach great importance to this statute,
and regard it as the first act which officially sanctioned the
fundamental principle of the British government. This importance
appears to me to be exaggerated. The principle enunciated by this
statute had been put into practice on many previous occasions,
and a sufficiently clear knowledge was not then possessed of that
which constituted matter of legislation and general interest to
obtain conformity to it in practice. It is, therefore, far from
being the case that the Commons, from this time forth, always
exercised the power allotted to them by this statute.
Nevertheless, the official exposition of the principle indicates
progress in the ideas ol the times.
Whig And Tory Errors.
Such are the principal facts of the reign of Edward II., with
regard to the condition and action of the Parliament. They
contained no very important innovation, but they announce the
consolidation and natural progress of the institutions
definitively established under Edward I. Tory writers, taking
their stand upon the preponderant influence exercised by the
great barons during the reign of Edward II., have attempted to
cast doubts even upon the presence of the Commons at several of
the Parliaments of this period. Whig writers, on their side,
endeavour to deduce, from the proofs which are extant of the
presence of the Commons, an argument for their great importance
and decisive participation in events. The former are mistaken
when they deny the presence of the Commons in Parliament, from
their having been unable to find any writs of convocation
addressed to the sheriffs; for the writs which order the payment
of the salaries of the representatives are extant for nearly all
the Parliaments of this period.
{462}
The latter deduce too extensive results from the presence of the
Commons in the Parliament: it is beyond all doubt that the high
aristocracy, who sat in the House of Lords, then managed and
directed affairs almost entirely alone. The progress of liberty
is not so rapid; the most important point is, that it be certain.
Thenceforward it was certain, and it received great development
during the two following reigns.
{463}
Lecture XXI.
Of petitions during the early times of representative
government.
Regulations on the subject.
Transformation of the right of petition possessed by the Houses
of Parliament into the right of proposition and initiative.
Petitions ceased to be addressed to the king, and are presented
to Parliament.
Origin of the right of inquiry.
Necessity for representative government to be complete.
Artifices and abuses engendered by the right of petition.
Right Of Petition.
The circumstances which occur at the origin of an institution are
well calculated to make us acquainted with its nature. At such
periods, events are simple, and produce themselves spontaneously.
No effort has yet been made either to evade them or to change
their nature, and the state of society is not sufficiently
complicated to render it impossible to attain the object aimed at
by any but subtle and indirect means.
To say truth, in what does the right of petition consist? It is
the right to demand the reparation of an injury, or to give
expression to a desire. Such a demand must naturally be addressed
to the power which is capable of satisfying the desire or
repairing the injury,--which has authority, and power enough to
grant the prayer of the petition.
Accordingly, in the fourteenth century, all petitions, whether
they emanated from the two Houses of Parliament, or from
individuals unconnected with those Houses, whether they had
reference to general or private interests, were addressed to the
king. No one had any idea of petitioning the Houses themselves;
the king governed; in him resided both the right and the power to
redress public or private grievances, and to satisfy the
requirements of the nation. To him the barons, commons,
corporations, and citizens applied whenever they had need.
{464}
Presentation Of Petitions.
The king governed in his council: and of all his councils, the
Parliament was the most eminent and the most extensive. In
certain cases, the advice and acquiescence of the Parliament, as
a whole or in part, were necessary to the exercise of the royal
authority. The meeting of Parliament was, therefore, the natural
opportunity for the presentation of all petitions. It was, as it
were, the moment at which the nation and the government met face
to face, either to transact in common those affairs which
required their concurrence, or to make those reciprocal demands
of which they mutually stood in need. Private citizens naturally
availed themselves of this opportunity for presenting their own
petitions, either because the co-operation of the great powers of
the State was necessary to grant their prayers, or because they
referred to demands upon which the king was competent to decide
alone, but to which his attention would then be more effectually
directed, as they might receive support from the patronage of the
barons or deputies met in council with the king.
In all cases, it was to the king in his council, that is to say,
to the government itself, that petitions were addressed; and far
from the Houses of Parliament, after having received and examined
them, referring them to the government for decision, it was the
king who, by officers specially appointed for the purpose,
received and examined them, and afterwards called the attention
of both Houses to those with whose prayers he could not comply
without their sanction. All complaints and demands were thus
forwarded directly to the power entrusted with the duty of coming
to a definitive decision regarding them; and the Houses of
Parliament interfered subsequently only in certain cases, and
then as a necessary council.
Such was the primitive and natural fact. The progress of the
representative system, however, completely changed its course and
character.
We have seen that, in the fourteenth century, petitions were of
two kinds; first, those drawn up or presented to the king, by one
or both Houses, and relating to grievances of a more or less
general character; secondly, those addressed to the king by
corporations or citizens, and relating to collective or private
interests. We have now nothing further to do with the first class
of these petitions. As far as the Houses of Parliament are
concerned, they have become transformed into a right of
initiative, more or less efficacious and more or less direct.
This right, its importance and its forms, give rise to questions
of an entirely distinct character. At the present day, the
complaints or demands addressed by private citizens to the
legislative authorities, are alone called by the name of
petitions.
{465}
Assertion Of The Right Of Petition.
There is now no further question about the right of addressing
such demands to the executive power itself,--to the government
properly so called. No one thinks of contesting the right of
citizens to seek in this manner the redress of their grievances,
or the satisfaction of their desires. Nor that this right, in
itself so simple and incontestable, has not sometimes assumed
great political importance, and thereby occasioned animated
discussions. In 1680, Charles II., having ceased for several
years to convoke a Parliament, a great number of petitions were
addressed to him demanding its convocation. The king, by
proclamation, declared them seditious, and refused to receive
them; but the Parliament having met at last, the House of Commons
enacted, on the 27th of October, 1680;
"1. That it is, and ever hath been, the undoubted right of the
subjects of England to petition the king for the calling and
sitting of Parliaments, and redressing of grievances.
2. That to traduce such petitioning as a violation of duty, and
to represent it to his Majesty as tumultuous or seditious, is
to betray the liberty of the subject, and contribute to the
design of subverting the ancient legal constitution of this
kingdom, and introducing arbitrary power.
3. That a committee be appointed to enquire after all such
persons, that have offended against the right of the subject."
[Footnote 37]
[Footnote 37: Parliamentary History, vol. iv. p. 1174.]
A state of crisis could alone lead to such an attempt to destroy
the most natural of the right of citizens--the right of
addressing the government itself in order to make known to it
their desires--and the Charter, reasonably, neither sanctioned
nor limited it. The right to which it gave sanction, and which
alone now bears the name of the _right of petition_, is the
right of applying to the two Houses of Parliament to urge their
interference, either in some matter of general legislation, or
for the redress of private grievances. To this right the question
which we have now under consideration is restricted. We must
enquire how it became introduced into the representative system
of government, and in what respects the various forms which it
has successively assumed correspond to the various stages of the
development of that system.
{466}
Petitions To Parliament.
In fact, this right did not exist in the fourteenth century; that
is to say, nobody thought either of exercising or of demanding
it. The Houses of Parliament, and particularly the House of
Commons, were themselves the great public petitioner. They had
quite enough to do to present and obtain the reception of their
own demands, without incurring the labour of interfering on
behalf of private interests, which at that time were treated
generally with much less consideration. They were, moreover, too
slightly connected with the government thus to meddle with the
details of its action. They were neither the seat nor the centre
of power. Their assembly lasted only for a short period. The
king's answers to their own demands were ordinarily given only
during the next session. In such a state of things, it was
natural that all private petitions should go directly to the king
in council, for from that source alone could redress be expected.
When the Houses had acquired greater importance, sat for a longer
period, and interfered in all great public affairs--when, in
full and secure possession of their fundamental rights, they
began to apply them to practice instead of limiting their efforts
to defend their existence--when, in a word, they had acquired, in
public opinion and in reality, the consistency of public powers
associated in the government of the State, it became natural that
petitions should be presented to them against the abuses or
errors of that government which they were appointed to control.
The right of petition to the Houses of Parliament was then
regarded as a natural consequence of the right of petition to the
king. The Parliament was always considered and called the great
council of the king. This council, it is true, was habitually in
opposition and conflict with the government of the king, which
still remained exterior to it, and endeavoured to free itself
from its control: but ancient traditions retained their sway;
complaint was made to one part of the government against the
injuries committed by the other part. The new mode of petitioning
did not, therefore, appear extraordinary, and no attempt was made
either to authorize or prohibit it. It was brought into use
without opposition. [Footnote 38]
[Footnote 38: Mr. Hallam is of opinion that the interference
of the Commons in regard to petitions relating to matters of
private interest originated solely in this desire to repress
the encroachments of the Privy Council.
"From the first years of Henry V.," he says, "though not, I
think, earlier, the Commons began to concern themselves
with the petitions of individuals to the Lords or Council.
... Many of the requests preferred to them were such as
could not be granted without transcending the boundaries of
law. A just inquietude as to the encroachments of the
king's council had long been manifested by the Commons: and
finding remonstrances ineffectual, they took measures for
preventing such usurpations of legislative power, by
introducing their own consent to private petitions. These
were now presented by the hands of the Commons, and in very
many instances passed in the form of statutes with the
express assent of all parts of the legislature. Such was
the origin of private bills, which occupy the greater part
of the rolls in Henry V. and VI.'s Parliament."
(Hallam's Middle Ages, vol. ii. p. 224.)
Beginning from the reign of Edward III. (1322), or, as Mr.
Hallam thinks, from that of Edward II. (1310), we find both
Houses, at the opening of the session, each appoint a
committee for the purpose, not only of receiving, but of
examining petitions, in order to enquire into the truth of
the facts stated, before the petitions became the subject of
deliberation in Parliament. (Parliamentary History, vol. i.
p. 230.) It is doubtful whether the committees received
directly the petitions addressed to the king in council, or
whether those which fell under the cognizance of the
Parliament were referred to them by the officers of the king.
In 1410, we meet with an instance of a private petition,
addressed to the Commons, and transmitted by them to the
king, with their recommendation. (Report of the Lords
Commissioners, p. 362.) For the mode of the presentation of
petitions, both to the Privy Council, and to the House of
Lords, see Hallam's dissertation on the Privy Council, in the
second volume of his History of the Middle Ages.]
{467}
Right Of Initiative.
But when this practice was introduced, the Houses of Parliament
themselves had undergone great change of form, and received
considerable development, as regarded their internal
constitution, their proceedings, and their privileges. Instead of
those petitions which, at the outset, they had been accustomed to
present to the king, the right of initiative had been
substituted, and this right belonged to every member of either of
the two Houses of Parliament who might exercise it by bringing
forward, with such formalities and delays as were required by
usage, any motion with which he thought it fitting to occupy the
assembly.
{468}
Mode Of Presenting Petitions.
With the right of initiative was connected the right of enquiry
into all such facts or acts as appeared to the House of
sufficient importance to induce it to desire a thorough knowledge
of them, and afterwards to adopt a resolution regarding them,
either of prosecution or of censure, or simply to declare its
opinion. On coming before Houses invested with such rights,
petitions necessarily took another course than would have been
the case had those rights been wanting. And in the first place,
it passed into a custom that they must be presented by a member;
this custom was not, originally, a precaution against the abuse
of the right of petition, but the natural form of its exercise.
As every member enjoyed the right to call the attention of the
House, by motion, to any particular subject, it was natural that
he should make use of this right whenever he became the exponent,
to the House, of the demands of his constituents or his friends.
By this means, they acquired an authority which they could not
otherwise have obtained; the House was thus made to deliberate,
not upon the petition, but upon the motion of the member who had
presented it, and who had based upon it a proposition either for
an enquiry, or for an address, or for a prosecution, or for a
law, or for any other act which the House was entitled to
accomplish. And whatever this motion might be, it was subjected
to all the formalities and all the delays which, on every
occasion, regulated the debates and deliberations of the
assembly.
Thus invested with all the rights necessary for exercising over
the government, by one mode or another, the influence which
properly belonged to them, the English Houses of Parliament
regarded the petitions which were presented to them merely as an
opportunity for exercising this influence in virtue of these
rights. They did not act as a sort of patron placed between the
petitioners and the government from which the redress of the
grievance was definitively demanded; nor did they refer the
petition to the government, with a postscript of their own to
request the passing of any act of which they were unable to
superintend or compel the execution. After its presentation, they
no longer had anything whatever to do with the petition; if the
motion to which it had given rise were adopted, then began an act
of the House itself, accomplished with all the usual formalities,
and terminated by a resolution which specially belonged to it,
and which placed the government in presence of the
thoroughly-discussed and clearly-expressed opinion or will of the
assembly which shared with it in the exercise of the supreme
power in the nation.
{469}
Course Of The Right Of Petition.
When, by a further progress, the government found itself at last
obliged to fix its seat within the Houses of Parliament, when
they had become once more the great national council, discussing
and deciding public affairs in public, petitions also were
restored to their natural state, to their primary
condition,--that is to say, being addressed to the Houses of
Parliament, they were addressed to the king in council, to the
government itself, which consisted in the royal power, surrounded
by the parliamentary majority, and compelled to justify its
wishes and acts against the attacks of the opposition, which sat
in the same council, by virtue of the same title, and with the
same rights. What has been the consequence of this? Every
petition, when converted into a motion by a member of the House,
gives rise to a regular combat, conducted according to the usual
formalities, between the ministry and the opposition. The issue
of this conflict fully decides the fate of the petition, that is
to say, the result at which it aims; it has not to go elsewhere
in search of a solution; the House has neither compromised itself
frivolously, nor given its verdict inconsiderately; and, with the
exception of the case of appeal to a new House after a
dissolution, all its acts, after having been accomplished in
obedience to those formalities which give pledge of their
maturity, directly attain their object.
Such has been the course of the right of petition in England.
Closely connected with the whole system of representative
government, it has kept pace with the progress of that system,
adapting itself to its various successive stages, and holding the
same rank with the other rights of deliberative assemblies. It
has thus been brought back to its true nature, which is
incessantly to proclaim and assert, in the centre of the
government itself, the grievances and the requirements of
citizens, so as to ensure, after mature deliberation, the redress
of the former and the satisfaction of the latter.
{470}
Abuses Of The Right Of Petition.
I do not say that this result is always attained in England;
other causes have, in certain respects, neutralized the natural
virtue of representative government, and prevented it from
producing all its legitimate results. I merely say that the right
of petition has there assumed its reasonable form, and that, but
for the action of causes which effect a general change of the
system, it would by that form attain the object which its
advocates should propose to themselves.
Let us now enquire what must happen in a different state of
things, when representative government, though perhaps less
changed in certain particulars, is nevertheless much more
incomplete. It will be seen how the right of petition may
introduce disorder among the public powers of a State, and yet
remain almost illusory.
This is the hypothesis upon which I stand. I suppose the Houses
of Parliament invested, by right, with great power, associated in
the legislation of the country, voting taxes, receiving accounts
of the administration of the revenues of the State, carrying on
their discussions in public, and enjoying a large amount of
liberty in these debates. It is beyond a doubt that, in the
public opinion, they will be held to possess the mission and the
power to obtain the redress of all grievances, and the
satisfaction of all legitimate requirements, and to compel the
executive power to act, on all occasions, in accordance with
justice, the laws, and the general interests of the country. It
is from the action of the Houses of Parliament that the public
and the citizens will expect all that they desire or hope; and
towards them they will turn their eyes to obtain it.
Such being the disposition of the public mind, if these same
Houses do not possess the right of initiative, or the right of
enquiry, or any positive external jurisdiction--if it is not in
their power to set themselves in motion and to pursue their own
objects--in a word, if their means of direct action are far below
their written mission and the public expectation, what will be
the consequence?
Evidently both the Houses and the public will seek for indirect
means of exercising that influence which rightfully belongs to
them, and which is actually imputed to them. And if the right of
petition had been solemnly sanctioned, to it will resort be made
to supply the place of deficient rights, and by it will members
of the Houses strive to obtain that control over the whole
government, of which it has been attempted to deprive them.
{471}
Who cannot perceive, for example, that the right of petition is a
real right of initiative, since its effect is to introduce, into
the Houses of Parliament, questions which the government has not
brought forward, and to give rise to discussions which the
government has not originated? Thus, the right of initiative,
though denied to members of the Houses, belongs to all citizens,
to the first comer, even to a fictitious name. The elect of a
large number of citizens may not provoke his colleagues to
discuss with him a solemnly propounded question: but if he leave
the House, if he cast aside his character of representative and
assume that of petitioner, he has the power to do so, and the
humblest citizen possesses it equally with himself. Thus, instead
of an initiative, the utility and propriety of which would be
guaranteed by the character and position of the members of the
Houses, an initiative is substituted which is guarded by no
guarantee, and which imposes no moral obligation upon the man who
exercises it, since he is not a part of the public power which he
sets in motion.
And as this power holds a very lofty position in the public
opinion, as it is supposed to possess the mission and the power
to remedy every evil, its interference will be solicited in
matters of all kinds; it will be called upon to deliberate upon
affairs most foreign to its attributes; and its petitioners will
afterwards be astonished to find its actual power so limited in
comparison with the immensity of the rights which it is supposed
to enjoy.
It will soon be felt that there is disorder in such a state of
things, and attempts will be made to remedy it. Restrictions will
be imposed, if possible, upon this universal initiative. The
remedy would present itself spontaneously, if every member of the
legislative assemblies had the right to propose such motions as
he judged fitting. It would then come to pass, as it did in
England, that every petition must be presented by a member, and
must become, on his part, the subject of a motion. Thus the
members themselves would exercise over petitions that kind of
censorship from which it is impossible to liberate them.
{472}
In the absence of this censorship, another kind is invented; the
petitions are referred to a committee _ad hoc_, appointed to
examine them beforehand, and to call the attention of the House
to those which appear to deserve its notice; but to whom does
this censorship belong? to the parliamentary majority which names
the committee. This is the reverse of the natural order of
things. Petitions almost always belong to the minority. The
minority presents and supports them. The minority is,
consequently, placed, in this respect, at the discretion of the
majority, whose censorship may become a means of tyranny;
whereas, if the right of initiative belonged to all the members,
a legitimate censorship would be established, which would refuse
to bring forward a multitude of unsuitable petitions, and would
neither reject nor postpone any of those which were possessed of
real importance.
Discussion Of Petitions.
After the first step in the exercise of the right, that is to
say, after the presentation of petitions, comes their discussion.
If they could be introduced by a member only, this discussion
would be subject to all the delays and formalities required for
the due regulation of legislative debates. A first motion, for
instance, would suggest that the petition should be read; a
second, that it be printed; a third, that it form the subject of
an enquiry, or of an address to the crown, or of a law. During
this process, facts would be cleared up, and opinions would be
formed; and a conflict would occur between the minority and the
majority, only if the latter should formally refuse to grant the
justice demanded, or to comply with the wish expressed. In the
other system, on the contrary, the debate must be precipitate and
confused; the House and the government must adopt their
resolution in a few moments, often without thoroughly
understanding what they demand of, or refuse to, one another.
Petitions succeed and fall upon one another with a rapidity that
produces sometimes violence, and sometimes indifference; and the
right of petition itself thus becomes an occasion of disorder, or
is treated with a sort of levity and disdain which compromises it
in the legislative chambers, and also compromises the Chambers in
the opinion of the public.
{473}
Right Of Enquiry.
The manner in which petitions are introduced into the Chambers is
not the only cause of so vicious a mode of deliberation, but the
absence of the right of enquiry also contributes greatly towards
it. Every petition received by one of the Chambers calls for a
resolution on its part; there is therefore something more than
mere singularity in depriving it of the means of adopting that
resolution with a full knowledge of the cause. It is a great
defect of representative government that, leading as it
necessarily does to the systematic organization and permanent
conflict of parties, it habitually divides the truth into two
parts, and induces men never to consider questions on more than
one side, and to see only half the ideas or facts in reliance
upon which their decision must be made. It is, without doubt, a
system of exaggeration and partiality; and this evil is, to a
certain point, inevitable. All means of diminishing it are,
therefore, of great importance. Now, the most effectual,
indisputably, is to compel opposing opinions to unite, on certain
occasions, in a common search after truth. This is the effect of
the right of enquiry. When these opinions reach the moment of
decision, without having been brought into contact or made
acquainted with each other, without having been constrained
mutually to communicate motives and facts, their resolution will
chiefly be dictated by party spirit, and by anterior engagements
which have experienced no necessity to modify it. Everything, on
the other hand, that brings the minority and the majority into
presence, before the moment when they must appear in public and
pronounce their decision, draws them for a time out of their
habitual sphere, and leads them to extend or to correct their
ideas. This is especially the case in reference to facts. It is
immensely inconvenient if all communications of this kind can
only be made at the rostrum, and in the midst of the decisive
combat; for they are then rejected, and scarcely ever influence
the decision. Thus, as the absence of the right of enquiry leaves
parties in their natural ignorance and primitive crudity, it is
injurious not only to the goodness of the special resolutions of
deliberative assemblies, but also to the wisdom of their general
arrangements.
Besides, when the right of enquiry is wanting, its absence is
supplied in the same way as that of the right of initiative by
the right of petition. As it is impossible to undertake a serious
and complete investigation of any particular kind of abuse which
appears to have introduced itself into the government, special
complaints are suggested and multiplied.
{474}
Now, the right of petition is no more competent to supply the
place of the right of enquiry than that of the right of
initiative. The revelation of abuses or grievances which it
occasions is, by the very nature of things, full of confusion and
error; matters are seldom presented without prejudice and with
generality. And yet, from the very fact that there are no means
of going into the details, and examining them in all their
bearings, men are involuntarily led to put confidence in these
complaints. Never were the demands presented by the House of
Commons itself for the redress of grievances so numerous and
violent as in those times when it was allowed to address them to
the king only, and was permitted neither to have them thoroughly
investigated by its own members, nor to sum them up in a body of
facts accompanied by satisfactory proofs.
Necessity For The Completeness
Of Representative Government.
Finally, when the representative system of government is
complete, and provided with all the rights and all the means of
action which it needs in order to accomplish its ends, the right
of petition is nothing but the right of calling the attention of
the Houses of Parliament, by means of one of their members, to
any particular question, or act of the governing power. When once
this first provocation has taken place by way of petition, the
petition has attained its object; nothing more is necessary but a
discussion and resolution of the House itself, which takes place
according to the ordinary formalities, as if it had originated
within the assembly itself, and independently of all relations
with the external world. Thus the exercise of a right which
should belong to all citizens is reconciled with the dignity of
the public power of the nation, and with the maturity befitting
their acts. Thus all grievances may solicit redress, all desires
may be expressed, without giving rise to any disorder, any
precipitation, or any subversion of the procedure of the great
deliberative bodies. When, on the contrary, these deliberative
bodies themselves are deprived of the rights and means of action
which are necessary to them for the fulfilment of their
destination, the right of petition becomes an irregular and often
violent means by which the public and the legislative chambers
endeavour to supply their deficiencies. And then this right, by
all the practices to which it lends itself, and by the vicious
mode of deliberation which it entails, creates, in its turn, new
disorders which men undertake to remedy by imposing upon the
right itself restrictions or trammels which would be completely
useless if the legislative chambers were invested with all the
means of action which are their due.
{475}
Political liberty has this in common with science generally; it
is most dangerous when it is incomplete. The history of the
British Parliament proves this at every step.
{476}
Lecture XXII.
Condition of the Parliament under Edward III.
Progress of the power of the Commons.
Their resistance to the king.
Regularity of the convocation of Parliament.
Measures taken for the security of its deliberations.
Division of the Parliament into two Houses.
Speaker of the House of Commons.
Firmness of the House of Commons in maintaining its right to
grant taxes.
Accounts given by the government of the collection of the
taxes.
Appropriation of the funds granted by Parliament.
Parliamentary legislation.
Difference between statutes and ordinances.
Reign Of Edward III.
Hitherto we have only met with political struggles between the
king and his barons, or between opposite aristocratic factions;
the Commons have hitherto appeared only in a second rank; they
exercised as yet hardly any direct influence over general
affairs, over the government properly so called; or if they
occasionally interfered in the administration of the country, it
was merely as the auxiliary or the instrument of some particular
faction.
The reign of Edward III. presents a different aspect; the
conflict between the king and his barons has ceased, and all the
great aristocracy seems to be grouped around the throne; but at
the same time, the Commons have formed themselves into a body,
distinct and powerful in itself. They do not aspire to snatch the
supreme power from the hands of the king and the barons; they
would not have strength enough to do so, nor do they entertain
any thought of it; but they resist every encroachment upon those
rights which they are beginning to know and to appreciate; they
have acquired a consciousness of their own importance, and know
that all public affairs properly fall under their cognizance.
Finally, either by their petitions, or by their debates in
reference to taxation, they are daily obtaining a larger share in
the government, exercise control over affairs which, fifty years
before, they never heard mentioned, and become, in a word, an
integral and almost indispensable part of the great national
council, and of the entire political machine.
{477}
Influence Of The Commons.
Thus, whereas hitherto the political aspect of England has been
the conflict of the great barons with the king; from the reign of
Edward III., the resistance of the Commons to the king's
government, generally formed and sustained by the barons, becomes
the great fact of the history. It is not unintentionally that I
here employ the words _conflict_ and _resistance_. In
the first period, in fact, the barons struggled, not only to
defend their rights, but to invade the supreme power, and to
impose their own government upon the king. This conflict was
consequently nothing but a permanent civil war. But during the
second period, this was no longer the case; we hear of no
revolts, and of no civil wars: under Edward III., at least, the
Commons do not arm to attack the government with force; but they
oppose to it a political resistance, they constantly protest
against the abuses and arbitrariness of the central power.
Instead of directing their attacks against the king himself, they
lay all blame upon his ministers, and begin to assert and
popularize the principles of parliamentary responsibility.
Finally, they separate completely from the great barons, act on
their own account, and become the true depositaries of the
pledges of public liberties.
This was a great revolution, and it prepared the way for all
others. The more minutely we examine into the events of the reign
of Edward III., the more proofs shall we discover of this
important change. I shall content myself with giving a rapid
summary of these proofs by recapitulating the general facts which
characterize this reign.
The first of these facts is the regularity, previously
unexampled, with which the Parliament was convoked. A measure was
adopted for this purpose in 1312, during the reign of Edward II.,
by the Lords Ordainers. Subsequently we meet with two statutes
relative to the convocation of this assembly, one of which was
passed in 1331, and the other in 1362. Finally, in 1377, the last
year of the reign of Edward III., the Commons themselves demanded
by petition that the sessions of Parliament should take place
regularly every year. It is curious to compare this petition with
the requests addressed to the king, under previous reigns, by the
members of the House of Commons, to be exempted from serving in
Parliament: they had now begun to feel that their mission was not
a burden, but a right.
{478}
Parliaments Of Edward III.
During the reign of Edward III., we may enumerate forty-eight
sessions of Parliament, which makes nearly one session in each
year.
Nor did the Parliament merely provide for the regularity of its
convocation; it took measures, at the same time, to ensure the
security of its deliberations. In 1332, a royal proclamation
forbade all persons to wear coats of mail, or to carry any other
offensive or defensive arms, in those towns in which the
Parliament was sitting: it also prohibited all games and
diversions which might disturb the deliberations of the assembly.
The frequent recurrence of proclamations of this kind announces
the formation of a regular assembly.
It is also during the reign of Edward III., in 1313, that we hear
for the first time of the Parliament being divided into two
Houses. According to historical documents of that year, the
prelates, counts and barons, on the one hand, and the
representatives of the counties and boroughs, on the other, sat
at Westminster, the former in the White Chamber, and the latter
in the Painted Chamber; and deliberated thus upon the question of
peace with France.
Finally, it is also at the end of this reign, in 1377, that the
rolls of Parliament first make mention of the Speaker of the
House of Commons; Sir Thomas Hungerford is the first person upon
whom this title was conferred. Previously, the House used to
select one of its members whenever it was necessary to speak in
its name, either to the king, or in the full Parliament: and it
was probably in 1377, that it began to appoint its Speaker for
the whole session, and at its commencement.
{479}
Prorogations Of Parliament.
It has been asserted that, during this reign and in earlier
times, every session of Parliament involved a fresh election; and
that the right of proroguing the existing Parliament to a new
session did not appertain to the king. This is an error. It was
necessary that a session of Parliament should take place in each
year, but not an election. The following fact proves this. The
Parliament held under Edward I. in 1300, resumed its session in
1301. The writs summon the deputies of the previous year, except
in cases in which a new election was necessary on account of
death or absolute inability to serve. In 1305, the king prorogued
Parliament on the 21st of March, and allowed the deputies to
return home, "_Issint qu'ils reveignent prestement et sanz
délai, quele houre qu'ils soient autrefois remandez._"--"On
condition that they should return readily and without delay, at
such time as they might be previously recalled." In 1312, during
the reign of Edward II., the Parliament separated after having
sat two months, and on the same day the king addressed writs to
the sheriffs, ordering them to send "the same knights and
burgesses--_eosdem milites et cives_," to Westminster on the
2nd of November following, "to the same Parliament which we have
thought should be continued there--_ad idem Parliamentum quod
ibidem duximus continuandum_." This Parliament thus prorogued
actually met, and sat from the 2nd of November to the 18th of
December, after which it was dissolved. In 1329, during the reign
of Edward III., the Parliament which sat at Salisbury, from the
15th to the 31st of October, was adjourned to Westminster, where
it held a second session, from the 10th to the 22nd of February,
1330. We meet with similar instances in 1333 and 1372. The
Parliaments were, therefore, not elected annually, and the right
of prorogation was in full vigour.
Thus was developed and regulated the internal constitution of the
Parliament: thus, instead of being merely an accidental meeting,
limited to the accomplishment of a single object, it gradually
assumed the consistency of a political assembly of periodical
obligation.
{480}
Voting Of Taxes.
A second general fact, which serves to support the views which I
have advanced, is the voting of taxes. There is, perhaps no reign
which presents so many instances of arbitrary and illegal imposts
as that of Edward III., and yet there is not one which
contributed more powerfully to secure the triumph of the
principle that taxes are legitimate only when they are freely
granted. This principle was incessantly lost sight of practically
by the king, who was pressed by necessities, created partly by
his wars, and partly by the bad administration of his revenues.
His whole reign was spent in efforts to regain, under forms more
or less indirect, the right of taxing his subjects at his
pleasure; but the Commons, on their side, never ceased to protest
against these efforts, sometimes attaching the revocation of an
arbitrary tax to the concession of a legal subsidy, and sometimes
by endeavouring to introduce the principle of the necessity of
consent into all those ways by which the king attempted to elude
it. Thanks to their perseverance, the schemes of power were, if
not always frustrated, at least always unmasked, and thereby
rendered impotent for the future.
Instances of this conflict abound in the Parliaments held in the
years 1333, 1340, 1347, 1348, and 1349, which are in general
filled only with complaints of the Commons, demanding either the
abolition or the diminution of unjust and illegal taxes, which
had been imposed without their consent. To all these demands the
king replied, sometimes by a formal refusal, sometimes by
reference to the consent which had been granted him by the Lords,
and sometimes by an assurance that the tax should not be levied
for any length of time; but if the Commons threatened to refuse
him new subsidies, he felt himself compelled to meet these
demands by some new concessions.
Nor was it merely by keeping a firm hand upon the voting of taxes
that the House of Commons maintained its rights; it also extended
them beyond the concession of subsidies on two important
occasions. In 1340, the Parliament, suspecting that a portion of
the subsidies voted by it had not found its way into the royal
exchequer, appointed certain persons to receive the accounts of
the tax-collectors, and required them to give security for the
payment of all that they received. This is the first instance of
any account whatever being given to Parliament with regard to
taxes; it began by desiring to make sure of the fidelity of the
receipts, and thus took a first step towards asserting its rights
to receive an account of the employment of the funds, that is to
say, of their expenditure. In 1354, we perceive the dawn of
another parliamentary right, that of the appropriation of the
public funds. The Parliament, when granting a tax upon wool,
added to its vote the condition that the money derived from this
subsidy should be devoted to the expenses of the war then waging,
and not to any other purpose.
{481}
Share In The Legislation.
After all, it is not to be wondered at that the king and his
Parliament were incessantly at variance with regard to subsidies,
and mutually occasioned each other continual miscounts. There was
then no means of estimating receipts and expenditure beforehand.
The king involved himself in an expense without knowing to what
sum it would amount; and the Parliament voted a subsidy without
knowing what it would produce. In 1371, the Parliament granted a
subsidy of £50,000, to be levied at the rate of 22_s_.
3_d_. on every parish, which supposed the existence of
45,000 parishes in England. It turned out, however, that there
were only 9,000. The king convoked a great council, to which he
summoned only half the deputies of the last Parliament, one from
each county and borough, "to save expense--_ad parcendum
sumptibus._" The matter was laid before this council, which
ordained the assessment of every parish at 116_s_. instead
of at 22s. 3d., in order to raise the sum of £50,000. Great
disorder must necessarily have accompanied such ignorance.
The third general fact which proves the great increase of
importance which the Parliament had obtained at this period, is
its participation in the legislation. When we open a collection
of the statutes of this reign, we find at the head of each
statute one of the two following formulas: _"A la requeste de
la commune de son roïalme par lor pétitions mises devant lui et
son conseil, par assent des prélats, comtes, barons, et autres
grantz, au dit Parlement assembles_," &c. [Footnote 39] Or:
"_Par assent des prélats, comtes, et barons, et de tote la,
commune du roïalme, au dit Parlement assembles_," &c.
[Footnote 40] Sometimes the statute begins with these words:
"_Ce sont les choses que notre seigneur le roi, les prélats,
seignours, et la commune ont ordiné en ce présent Parlement_."
[Footnote 41]
[Footnote 39: "At the request of the commons of his realm, by
their petitions! laid before him and his council, and by the
assent of the prelates, earls, barons, and other nobles, in
the said Parliament assembled."]
[Footnote 40: "By the assent of the prelates, earls and barons,
and of all the commons of the realm, in the said Parliament
assembled."]
[Footnote 41: "These are the things which our lord the king,
the prelates, lords, and commons have ordained in this
present Parliament."]
{482}
Ordnances And Statutes.
All these formulas express the participation of the House of
Commons in the legislation of the country; and prove, as I have
already observed, that this participation was generally exercised
by the presentation of petitions to the king; the lords
deliberated upon these petitions, which were afterwards converted
into statutes by the king, without being returned to the House of
Commons to receive its express assent under the form of statutes.
Accordingly, as the Commons did not interfere in the enactment of
statutes by any direct vote, their petitions were frequently
mutilated and altered; and the statutes, which were drawn up
either by the judges or by the members of the privy council, did
not always faithfully convey their meaning. It was probably with
a view to remedy this inconvenience that, in the Parliament of
1341, a certain number of prelates, barons, and royal
councillors, with twelve knights of shires and six burgesses,
were appointed a commission for the purpose of converting into
statutes such petitions as gave rise to measures of general
legislation.
But all the petitions of the Commons were not resolved into
statutes; they frequently gave occasion merely to ordinances.
Many dissertations have been written upon the distinction between
the legislative acts designated by these two words. It has been
maintained that ordinances were issued by the king alone, by the
advice of the Lords, but without the concurrence of the Commons.
Originally, this distinction was incorrect, for most ordinances
were issued, just as statutes were enacted, upon the request of
the Commons. Thus, in 1364, the Parliament having desired the
passing of sumptuary laws, the king demanded of both Houses, by
the chancellor, "whether they would have such matters as they
agreed on to be by way of ordinance or of statute?" And they
replied: "By way of ordinance, that they might amend the same at
their pleasure." [Footnote 42] From this answer it has been
inferred, with great appearance of reason, that the nature of
statutes was to be perpetual, whereas ordinances were only
temporary.
[Footnote 42: Parliamentary History, vol. i. p. 128.]
Ordinances were not inscribed, like statutes, upon the rolls of
Parliament; they were less solemn in their character, although
their object frequently had reference to matters equally
legislative and of equally general interest, such as the
enactment of jurisdiction or of penalties. It is not more easy to
clearly distinguish ordinances from, statutes, than great
councils from Parliaments properly so called. All that we can say
is, that less importance and stability were attributed to this
class of legislative measures.
{483}
Conservators Of The Peace.
Legislative measures were not always adopted upon the petition of
the Commons; the king also exercised the right of initiative, not
only in matter of taxation, but in reference to all other
subjects of general interest. Thus, in 1333, Sir Jeffrey Scroop
of Markham, in the king's presence, and at his command, informed
the prelates, earls, barons, and other nobles, of the disorders
committed in the country by bands of armed marauders; pointed out
the necessity of repressing their outrages; and demanded of them
to suggest to the king such measures as they deemed suitable to
effect this purpose. The prelates hereupon retired, saying that
it did not befit them to deliberate upon such a subject. The
other nobles deliberated among themselves, and proposed to the
king a series of regulations for the maintenance of the public
peace. These regulations were read in presence of the nobles, the
knights of the shires, and the "commons--_genz du commun,_"
who all gave their assent to them, and the necessary measures
were adopted in consequence. A result of this deliberation was
the restoration of the _Conservators of the Peace_, who had
been temporarily appointed by the Earl of Leicester, during the
reign of Henry III., and who were the precursors of the justices
of the peace.
After all, it is easy to imagine that, in the fourteenth century,
confused ideas were entertained as to what was and what was not
matter for legislation; since, in our own days, we not only feel,
but formally admit, the impossibility of fixing the limit _à
priori_, in a philosophic and absolute manner.
{484}
Lecture XXIII.
Continuation of the history of the progress of the Commons
House of Parliament during the reign of Edward III.
Their interference in questions of peace and war; and on the
internal peace of the kingdom.
Their resistance of the influence of the Pope, and of the
national clergy, in temporal affairs.
First efforts of the Commons to repress abuses at elections.
First traces of function of Committees of both Houses to
investigate certain questions in common.
Political Powers Assumed By Parliament.
It was not merely in the matter of taxation and of general
legislation that the House of Commons, during the reign of Edward
III., extended and consolidated its rights. Its interference in
the administration of public affairs, in politics properly so
called, assumed at this period a development previously
unexampled, and an entirely a novel character. It began really to
take part in the government of the State. This is proved by a
multitude of facts.
First, in the matter of peace and war, its intervention became,
at this period, habitual and almost indispensable. Mr. Hallam
seems to me to have fallen into error on this subject; he is of
opinion that the king alone, in the fourteenth century, desired
that the Commons should interfere in questions of this kind, in
order that he might cast the responsibility upon them, but that
they constantly refused to incur it. I think that this assertion
is incorrect. The Commons of the fourteenth century frequently
sought and exercised this power, and accepted the attendant
responsibility; and they always gained greatly by it. The
principal facts are these. In 1328, during the minority of
Edward, and while Mortimer reigned in his name, the treaty of
peace with Scotland, which fully liberated that kingdom from all
feudal subordination to England, was concluded with the consent
of the Parliament. The Commons are expressly mentioned; and we
may suppose that Mortimer was anxious thereby to cover his own
responsibility for a disgraceful treaty.
{485}
In 1331, Edward consulted the Parliament upon the question of
peace or war with France, on account of his continental
possessions, and also upon his projected journey to Ireland. The
Parliament gave its opinion in favour of peace and of the king's
departure for Ireland. In 1336, it urged the king to declare war
against Scotland, saying: "That the king could no longer, with
honour, put up with the wrongs and injuries daily done to him and
his subjects by the Scots." [Footnote 43]
[Footnote 43: Parliamentary History, vol. i, p. 93.]