Front Page Titles (by Subject) chapter xvi.: representative government, continued.—basis of property.—direct and indirect elections. - On Civil Liberty and Self-Government
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chapter xvi.: representative government, continued.—basis of property.—direct and indirect elections. - Francis Lieber, On Civil Liberty and Self-Government 
On Civil Liberty and Self-Government, 3rd revised edition, ed. Theodore D. Woolsey (Philadelphia: J.B. Lippincott & Co., 1883).
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representative government, continued.—basis of property.—direct and indirect elections.
28.The prominent points of a national representative government, considered as a guarantee of liberty, consist in the representative principle, that is, the basis of representation and the right of voting for the representative, in the election laws, in the fact that those and those only who have the right to vote do vote, (hence the importance, and, I believe, the necessity, of registration laws,) and in the organization of the representative legislature, with its own protection and liberties.
All that we can say regarding the requirements of Anglican liberty with reference to the principle of representation, is that it be a broad or popular one. Universal suffrage cannot be said to be an Anglican principle, whatever the American view, of which we shall treat by-and-by, may be. The application of the principle of a wide popular representation, however, or an extensive right of voting, has constantly though slowly expanded in England, and continues to be expanding.
The English, not allowing universal suffrage or indeed a representation based upon numbers alone, require some limit is, beyond which the right of voting shall not go.1 This limit is, as a general rule, which has however its exceptions indicated either by property or by a certain annual expense which usually designates the amount of income over which man may dispose, namely, house-rent. Hence it is often said that property is the basis of representation in England. This is not correct. Property, or the enjoyment of a certain revenue either from acquired property or from an industrial occupation, gives the right of voting, but it is not the basis of representation.
When it is maintained in modern times that property ought to be the basis of representation, or it is asserted that the English constitution is founded on property, an inappropriate term is used, which carries along with it erroneous associations in almost all discussions on this subject. When we say that population is the basis of representation, we mean indeed that one representative is chosen for a distinct number of represented citizens, and that therefore a large population should have more representatives than a small one; but when it is said that property is or ought to be the basis of representation, we mean in almost all cases nothing more than that a certain amount of property or revenue is required to entitle a man to vote. The Roman constitution ascribed to Servius Tullius was really founded upon property, because the six classes of citizens actually took a share in the government of the state in proportion to the property they held.1 Thus likewise there is a partial representation of property prescribed by the constitution of South Carolina, for the composition of the state senate, inasmuch as the small but wealthy divisions of the lower part of the state elect a number of senators disproportionately large compared to the number of senators sent from the upper districts of the state, which are very populous and possessed of proportionately less property. This was at least the case when the constitution was adopted.2
What is really meant when it is said that a constitution ought to be founded on property, is this: that a minimum amount of property ought to be adopted as the last line beyond which no suffrage ought to be granted, but not that a capital of a million or the possession of a thousand acres of land ought to be entitled to a greater share in government than the possession of a few thousand dollars. It is meant that we seek for a criterion which will enable us to distinguish those who have a fair stake in the welfare of the state from those who have not. But here occurs at once the question: Is this criterion in our age any longer safe, just, and natural, which it may be supposed to have been in former ages?3 Are there not thousands of men without property who have quite as great a stake in the public welfare as those who may possess a house or enjoy a certain amount of revenue?This criterion becomes an actual absurdity when by property landed property only is understood. It was indeed in the middle ages almost the exclusive property of lasting and extensive value; but nothing has since changed its character more than property itself. This whole question is one of vastest extent, and emphatically belongs to the science of politics and real statesmanship. In regard to the subject immediately in hand, we have only to repeat that an extensive basis of representation is doubtless a characteristic element of Anglican liberty.
29. As important as the basis of representation—indeed, in many cases more important—is the question whether there shall be direct elections by the people, or whether there shall be double elections; that is to say, elections of electors by the constituents, which electors elect the representative. It may be safely asserted that the Anglican people are distinctly in favor of simple elections. Elections by electing middle men deprive the representation of its directness in responsibility and temper; the first electors lose their interest, because they do not know what their action may end in;no distinct candidates can be before the constituents and be canvassed by them, and, inasmuch as the number of electors is a small one, intrigue is made easy.
The fact that a double or mediate election foils in a great degree the very object of a representative government, is sc well known by the enemies of liberty, that despotic governments, unable to hold their absolute power any longer, have frequently struggled hard to establish universal suffrage with double election. An intention to deceive, or a want of acquaintance with the operation of the principle, must explain the measure.1 I believe that neither American nor English-man would think the franchise worth having were double elections introduced, and so decidedly is the simple election ingrained in the Anglican character, that in the only notable case in which a mediate election is prescribed in America, namely, the election of the President of the United States, the whole has naturally and of itself become a direct election. The constitution is obeyed, and electors are elected, but it is well known for which candidate the elector is going to vote, before the people elect him. There is but one case, of old date, in which an elector, elected to vote for a certain candidate for the presidency, voted for another, and his political character was gone for life; while in the month of November, 1856, the legislature of South Carolina, the only legislature in the United States which has retained for itself the election of presidential electors, actually “instructed” the electors to vote for Mr. Buchanan, and in the state of Pennsylvania committees belonging to different parties or sections of parties agreed upon certain “Union Electoral Tickets” for the election of electors, to satisfy the claims of the different voters. These instances, and many more might be given, show how the principle of a double election has been wholly abandoned in the election for the president, although the form still exists.
Civil liberty demands a fair representative system; the latter requires that the representatives really represent the people, which is by no means necessarily obtained by simple universal suffrage. Indeed, it is one of the highest problems of political philosophy on the one hand, and of genuine statesmanship on the other, to establish, combine, and, as circumstances may require, to change the basis of representation. In England we find that a large number of persons lately urged an additional “representation of education.” Essential representation requires a fair representation of the minority,1 which, until now, has been obtained, in the system of Anglican liberty, by making election districts sufficiently small, so that persons of different political opinions would be elected, and by discountenancing “general tickets.” It might be supposed that the most consistent method, opposite to the “general ticket,” would be to make election districts so small that each elects but one person, as the present constitution of the state of New York prescribes;1 but practice, it seems, does not bear out this supposition in the mentioned state. When election districts are very small, many citizens whom it is most desirable to see in the legislature decline contending with paltry local interests and jealousies. And here it may be mentioned that a marked difference between England and America consists in the fact that in the first-mentioned country voters may take their representative from any portion of the country, while in America the principle prevails, we believe universally, that the representative must be a resident in his constituency, which is an additional reason that election districts ought not to be too narrow.2
But the idea of representing the minority in a more direct manner than by a minority in the house of representatives has been much discussed of late in England, and, to judge from the journals of the day, there seem to be many persons who believe that this could best be obtained by obliging each voter to vote for a number of representatives less than the whole number, to be sent to parliament, for instance, for two members, if three are to be sent there, or for three, if five are to be sent. This novel feature seems to have been actually adopted in some colonial constitutions. No one is able to say how such a principle may operate in certain conditions of the voters, but, as a general principle, it would seem injudicious, inoperative toward the desired object, and not Anglican. Another method was adopted to secure the representation of the minority, in the so-called Ruatan Warrant, in 1856. In this instrument every voter received the right to give, if four representatives are to be elected, all four votes to one person, or three to one and one to another, or to cast his four votes in equal halves for two persons. This is legalizing, and indeed intensifying, the voting of “plumpers,”1 as it is vulgarly called in this country, a kind of voting generally considered unfair and dishonest, and which it would be just and right to provide against by our constitutions. Each ballot ought to contain as many names as representatives are to be voted for; if not, it ought to be thrown out.
It does not seem to be the Anglican principle to elect, with the representative, his substitute in case of absence of the former from the legislature. If a representative resigns or dies, another is elected; if he absents himself, the constituents lose his vote. It seems that representation is considered too direct a relation to admit of a substitute beforehand. Yet for conventions it is customary in America to elect substitutes. They do not allow of sufficient time for a new election. On the continent of Europe, suppleans are immediately elected.1
As a matter of historical curiosity, I would direct attention to the circuitous ways and multiplied elections by which it was frequently attempted in the middle ages to insure an impartial or pure election. The master of the Knights of Malta was elected by no less than seventeen consecutive elections of electors, each election connected with oaths;2 and the Doge of Venice was elected by nine different acts, namely, five elections alternating with four acts of drawing lots,3 with the addition of collateral votings.
30. The representative principle farther requires that the management of the elections be in the hands of the voters, or of a popular character; that especially the government do not interfere with them, either in the election bureau itself, or by indecently proposing and urging certain candidates; that the house for which the candidates are elected be the sole judge of the validity of the election, and that the opening of the poll do not depend upon the executive, which by mere omission might prevent the entire election in order to exclude a distasteful citizen from the house.
The beginning of an election, the appointment of managers, the protection of the minority in this matter, and the conscientious counting of votes, where the ballot exists, are always matters of much interest and of great practical difficulty, to all those who have not traditionally learned it. Collections of election laws are therefore very instructive; and the labor of giving birth to an election with nations unaccustomed to liberty is very great. Mr. Dumont gives some instructive and amusing anecdotes, relating to the first French elections, in his Memoirs of Mirabeau.
The English law is that all the military must leave the place where an election is going on, and can only enter it when called in by the town authorities or the justices of the peace, in case of riot.
The British house of commons is the sole judge of the validity of elections; and the same office is assigned to the house of representatives by the American constitution.1
One of the gravest charges against the Duke of Polignac and his fellow-members of the cabinet, when they were tried for their lives after the revolution of 1830, was that they had allowed or induced Charles X. to influence certain electors, by letter, to elect government candidates; while the government under the late so-called republic openly supported certain persons as government candidates, and bishops wrote then, and have since sent, solemn pastoral letters, calling on their flocks to elect men of certain political color. It is wholly indifferent to decide here whether peculiar circumstances made this interference necessary. I simply maintain that it is not liberty.
31. Representative bodies must be free. This implies that they must be freely chosen, neither under the threat or violence of the executive, nor of the rabble or whatever portion of the people;1 that when met, they are independent of the threat or seduction of the executive, or of the mob, armed or not armed; that they are protected by the law as a representative body; and that a wise parliamentary law and usage protect, within the body, the rights of each representative and the elaboration of the law.
Representative legislatures cannot be truly the organisms through which public opinion passes into public will, nor can they be really considered representative bodies, if the members, or at least the members of the popular branch, are not elected for a moderately short period only; if the legislature does not sit frequently; if the elections for the popular branch are not for an entire renewal of the house; and if the member is made answerable for what he says in the house to any one or any power besides the house to which he belongs.
What a moderately short period or the frequency of sessions means, cannot, as a matter of course, be absolutely stated. Fairness and practice, as well as the character of the times, must necessarily settle these points. England had a law that, from the year 1696, each parliament should not last longer than three years, but in 1716 the septennial bill was carried, under a whig administration, forced to do it by the intrigues of the tories, who were for bringing back the Stuarts.1 This law has ever since prevailed; but even Pitt called it, in 1783, one of the greatest defects in the system of popular representation. Chatham, his father, had expressed himself against it2 before him, and it would really seem that England will return, at no distant time, to a shorter period of parliaments.3
When Count Villèle, in 1824, was desirous of diminishing the liberal spirit of the French charter, he introduced and carried a septennial bill, which was, however, abolished in 1830 by the “July revolution.” Parliaments for too short a period would lead to a discontinuous action of government, and unsettle instead of settling; hence they would be as much against liberty as too long ones. In America, two years have become a pretty generally adopted time for the duration of legislatures. It is a remarkable fact that the people in America feel so perfectly safe from attacks of the executive that, in several states, where the constitutions have been revised, a fundamental law has been enacted that the legislature shall not meet oftener than every two years. This is to avoid expense and over-legislation. The general principle remains true that “parliaments ought to be held frequently,” as the British Declaration of Rights and Liberties ordains it. The Constitution of the United States makes the meeting and dissolution of congress entirely independent of the executive, and enacts that congress shall meet at least once in every year, on the first Monday in December, and that the house of representatives shall be entirely renewed every second year.
As to the irresponsibility of members for their remarks in parliament, the Declaration of Rights enacts “that the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament.” This was adopted by the framers of our constitution, in the words that “for any speech or debate in either house, they [senators and representatives] shall not be questioned in any other place.”1
32. A farther and peculiar protection is granted to the members of the legislature, both in the United States and in England, by protecting them against arrest during session, except for certain specified crimes. The English house of commons “for the first time took upon themselves to avenge their own injury, in 1543,”2 when they ordered George Ferrers, a burgess who had been arrested in going to parliament, to be released, and carried their point “But the first legislative recognition of the privilege was under James I.”3 The Constitution of the United States enacts that senators and representatives shall “in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same.”
33. It is farther necessary that every member should possess the initiative, or right to propose any measure or resolution. This is universally acknowledged and established where Anglican liberty exists, not by enactment, but by absence of prohibition, and as arising out of the character of a member of the legislature itself. In most countries not under the segis of Anglican liberty, this right of the initiative has been denied the members, and government, that is, the executive, has reserved it to itself. So has the so-called legislative corps of the present French empire no initiative. Napoleon III. took it to himself exclusively, immediately after the coup d'etat. The French legislative corps has indeed not even the privilege of amendment; it has not the right of voting on the ministerial estimates, except on the whole estimate of one ministry at once.1 In some countries, as in France under the charter of the July revolution, the initiative is vested in the houses and in government; that is to say, the government, as government, can propose a measure through a minister, who is not a member of the house. In England no bill can be proposed by the executive as such, but, as every cabinet minister is either a peer or must contrive to be elected into the commons, the ministers have of course the right of the initiative as members of their respective houses. The Constitution of the United States prohibits any officer of the United States from being a member of either house, and the law does not allow the members of the administration a seat and the right to speak in the houses. Some think that a law to that effect ought to be passed. The representatives of our territories are in this position; they have a seat in the house of representatives, and may speak, but have no vote. A minister had the right to speak in either house, under the former French charters, in his capacity of cabinet minister, whether he was a member of the house or not. Whenever the executive of the United States is desirous to have a law passed, the bill must be proposed by some friend of the administration who is a member of one or the other house.
It has been mentioned already that the initiative of money bills belongs exclusively to the popular branch of the legislature, both in the United States and in England, by the constitution in the one, and by ancient usage, which has become a fundamental principle, in the other.
[1.][The system of representation in Great Britain had long been most unequal and absurd until 1832. To mention but one fact—out of 658 members of the house of commons, 487 were nominees of the aristocracy or of the government, and only 173 represented independent constituencies. In 1832, after a great struggle, a reform bill was passed, by which (1) fifty-six rotten boroughs, returning one hundred and eleven members, were disfranchised, and other small boroughs lost in all thirty members; (2) twenty-two large towns, including districts of London, gained the right to return two members each, twenty to return one each, and the members for the larger counties were increased from 94 to 159. (3) As for the right of electing-in the boroughs it was given to 10l. householders resident in the place, paying rates and not receiving relief from the parish In the counties several classes were added to the old foity-shilling freeholders and leaseholders for terms of years, and tenants at will paying a rent of 50/. a year. (See May, i. chap. 6.)
[1.][But it was majority of centuries, and not of votes, which determined an election.]
[2.][It is perhaps needless to say that great changes have been made in the constitution of this state since the end of the war in 1865.]
[3.][There are multitudes in the United States who still believe that universal suffrage is the root of all our political evils. In one state at least—Connecticut—the capacity to read is made a condition for being made a “fieeman.”]
[1.]According to the present constitution of Prussia (1859) there is universal suffrage for the election of a certain number of electors, and in addition a graduated property qualification for the election of other electors, who with the former elect representatives.
[1.]See Political Ethics on Opposition and Representatives.
[2.][A resident not necessarily in the district, but in the state which he represents. “No person shall be a representative … who shall not, when elected, be an inhabitant of +hat state in which he shall be chosen.” Constit., art i. sect. 2, 2.]
[1.][The subject of representing the minority—so important in a country where government by party prevails—has, since Dr. Lieber published his second edition of this work, been much discussed, and already has a large literature of its own. I have caused two notes of the author's, which of course could not duly present the subject to the reader, to be omitted, and have put into their place a simple account of the methods which have been suggested for attaining this end, with the briefest possible comments. I mention—I, the limited vote—i.e, the vote for a less number of names than there are places, as for two when three persons are to be chosen. This method was introduced into the bill of 1867 for leforming representation in Great Britain. 2. The cumulative vote, where the voter is allowed to cast all or more than one at least of his votes for one person—eg., to cast two, three, or four for one candidate, or to divide them among several. This plan is especially applicable when the practice of voting by general tickets prevails. 3. The election by lists, a Swiss plan, according to which a certain number of lists of candidates, as many on each list as there are representatives in all in a district, are prepared beforehand, and each voter votes for one of these lists. The representatives are selected from each of these lists according to the ratio of the votes on each list to the entire number of votes—e.g., if there are four lists, and 10,000 voters, and 4000 votes for one list, 3000 for another, 2000 for a third, 1000 for a fourth, then 4, 3, 2, 1 would be returned as representatives from the several lists. 4 Preferential voting, or Mr. Thomas Hare's plan, in a book first published in 1859, and which has gone through four editions. This plan has been advocated by J. S. Mill in his Representative Government, chap, vii., and by other persons of note. This plan provides that each, voter or elector may vote in the order of preference for a number of persons, not confining himself in his selections to his own locality. When the votes are counted, the person having a number of votes larger than the electoral quota, that is, larger than the number of voters divided by the number of representatives, is elected, and all the votes for him above the quota are carried down to the next person on the list needing them in order to be elected. The somewhat puzzling details of this plan must be passed by. Its advantages are that it gives a fair chance to all interests and classes of thinkers to unite, although dispersed over a state or country; and no elector would be represented by one whom he had not chosen. 5. Substitute voting. Candidates may cast surplus votes, or those over the electoral quota, and insufficient votes, or those under, and may thus fill up the places which have not been filled by the voting of the electors. 6. Proxy voting, by which a representative may cast as many votes as he receives multiples of the electoral quota. These plans admit of some modifications. There might, for instance, be an aliquot part of the number of representatives chosen from localities, and the rest chosen from the state at large on Mr. Hare's plan.
[1.]We elect substitutes for executive officers. The Roman custom was to take, in case of need, the predecessor of the failing incumbent, a principle adopted, at least in former times, in Geneva and other cities. [When a consul or tribune died, the surviving colleague, or colleagues, at first co-optated another. Afterwords a colleague was chosen, (suffectus.) When inferior magistrates died or resigned, the superior held the comitia to fill his place. See T. Mommsen, Röm. Staatsr., vol i. p 161.]
[2.]Vertot's History of the Knights of Malta, folio edition, London, 1728, vol ii., Old and New Statutes.
[3.]Daru, Histoire de Venise, Paris, 1821, vol. i.
[1.]A full statement of all the laws relating to these guarantees in England will be found in Stephens's De Lolme, Rise and Progress of the British Constitution; and Story's Commentanes on the United States gives our con stitutional law on these subjects.
[1.]Fearful cases to the contiary have happened in France and our own country. In the former country a court of justice decided against a person, because, not being the government candidate, he had dared to print and distribute his own ticket. Mr. de Montalembert made a speech against the abuse, whereupon the minister of the Interior, Mr. Billault, formeily a socialist, issued a circular to the prefects, instructing them, April, 1857, how to conduct themselves regarding the distribution of election tickets. In our country sanguinary troubles have occurred in New Orleans and Baltimore, in October, 1857, which called forth proclamations of the governors that revealed a frightful state of things, And these crimes at elections were not restricted to the two mentioned cities.
[1.][For the triennial bill of the Long Parliament, Feb. 16, 1641, and its repeal in 1664, but with the provision continued that parliaments should not be intermitted for more than three years, see Hallam, ii. pp. 131, 447. The government could not be carried on with an annual session of parliament. Nothing kept the estates on the continent from a fit development so much as freqaent and long intermissions of their sittings.]
[2.]Volume ii. page 174, of Correspondence of William Pitt, Earl of Chatham.
[3.]I have given a sufficiently long account of the Septennial Bill, under this head, in the Encyclopaedia Americana.
[1.]Free discussion on all things that appear important to the representatives is a right which was obtained after hard struggles, and only in compaiatively recent times. Elizabeth repeatedly warned the commons, in no gentle terms, not to meddle with high matters of state, which they could not understand. James I. and Charles I. did the same.
[2.]Hallam, Hist, of English Constitution, 5th edit., vol. i. p. 268.
[3.]Ibidem, vol. i. p. 303.
[1.]Why, indeed, it is called legislative corps does not appear. Legislative corpse would be intelligible.