The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction to the Liberty Fund Edition
• Editor’s Note
• Preface
• Part 1: Representative Institutions In England, France, and Spain, From the Fifth to the Eleventh Century
• Lecture I
• Lecture 2
• Lecture 3
• Lecture 4
• Lecture 5
• Lecture 6
• Lecture 7
• Lecture 8
• Lecture 9
• Lecture 10
• Lecture 11
• Lecture 12
• Lecture 13
• Lecture 14
• Lecture 15
• Lecture 16
• Lecture 17
• Lecture 18
• Lecture 19
• Lecture 20
• Lecture 21
• Lecture 22
• Lecture 23
• Lecture 24
• Lecture 25
• Lecture 26
• Part 2: Essays of Representative Government In England, From the Conquest Till the Reign of the Tudors
• Lecture 1
• Lecture 2
• Lecture 3
• Lecture 4
• Lecture 5
• Lecture 6
• Lecture 7
• Lecture 8
• Lecture 9
• Lecture 10
• Lecture 11
• Lecture 12
• Lecture 13
• Lecture 14
• Lecture 15
• Lecture 16
• Lecture 17
• Lecture 18
• Lecture 19
• Lecture 20
• Lecture 21
• Lecture 22
• Lecture 23
• Lecture 24
• Lecture 25

PART 2

ESSAYS OF REPRESENTATIVE GOVERNMENT IN ENGLAND, FROM THE CONQUEST TILL THE REIGN OF THE TUDORS

LECTURE 1

I think it necessary to remind you, gentlemen, of the plan which I adopted last year with regard to our study of the political institutions of Europe. The essential object of that plan was to give some unity and compactness to this vast history. And this is not an arbitrary and self-chosen object. In the development of our continent, all its peoples and all its governments are connected together; in spite of all struggles and separations, there is really some unity and compactness in European civilization. This unity, which has been revealing itself from day to day, is now evident; never have geographical limits possessed less sway than in our times; never has such a community of ideas, feelings, aspirations, and efforts united, in spite of territorial demarcations, so great a mass of men. That which is now revealed has been labouring for more than twelve centuries to manifest itself; this external and apparent community has not always existed; but such has always been, at bottom, the unity of European civilization, that it is impossible thoroughly to understand the history of any of the great modern peoples without considering the history of Europe as a whole, and contemplating the course pursued by humanity in general. It is a vast drama in which every people has its part to perform, and with the general events of which we must be acquainted in order to understand the particular scenes connected therewith.

I have divided the history of the political institutions of Europe into four great epochs, which are distinguished from each other by essentially different characteristics. The first is the barbarian epoch; a time of conflict and confusion, in which no society could be established, no institution be founded and become regularly prevalent in any part of Europe; this epoch extends from the fifth to the tenth century. The second is the feudal epoch, and extends from thetenth to the fourteenth century. The third is the epoch of efforts towards constitutional monarchy; feudalism declines, the populations become free, and royalty employs them to extend and augment its power; this epoch embraces the period from the fourteenth to the sixteenth century. In the fourth period, on the Continent, all efforts towards a representative system have failed or almost entirely disappeared; pure monarchy prevails. England alone decidedly obtains a constitutional government. This epoch lasts from the sixteenth century to the French Revolution.

These epochs were not determined by an arbitrary choice,—their division results from the general facts which characterize them. They will not all form the subject of this course of lectures. I wish to study the political institutions of Europe with you, and representative government is the centre towards which all our studies tend. Where I perceive no trace of the representative system, and no direct effort to produce it, I turn aside, and transfer my attention to some other quarter. Nor shall I merely limit our studies in reference to epochs only; I shall limit them also in respect to places. Last year, in my lectures on the first epoch, I did not follow the progress of political institutions in the whole of Europe, but confined my observations to France, Spain, and England. We have now to study the third epoch; but the States-General of France and the Cortes of Spain were only unfruitful attempts at representative government. I shall therefore postpone our study of them, and devote this year’s course to the attentive examination of the origin of representative government in England, the only country in which it received uninterrupted and successful development. This study is particularly necessary to us at the present day, and we are ourselves well-disposed to enter upon it with an earnest desire to reap advantage from it.

According to their political state, and in the degree of their civilization, do the peoples consider history under various aspects, and look to it for various kinds of interest. In the early ages of society, whilst all is new and attractive to the youthful imagination of man, he demands poetical interest; the memories of the past form the groundwork of brilliant and simple narratives, fitted to charm an eager and easily satis fied curiosity. If, in such a community, where social existence is in full vigour, and the human mind is in a state of excitement, Herodotus reads to the Greeks assembled at Olympia his patriotic narratives, and the discoveries of his voyages, the Greeks delight in them as in songs of Homer. If civilization is but little advanced—if men live more isolated—if “country,” in the concrete, at least, exists but slightly for them—we find simple chronicles intermingled with fables and legends, but always marked with that naïf and poetical character which, in such a condition of existence, the human mind requires in all things. Such are the European chronicles from the tenth to the fifteenth century. If, at a later period, civilization becomes developed in a country without the coeval establishment of liberty, without an energetic and extensive political existence, when the period of enlightenment, of wealth, and of leisure, does arrive, men look for philosophical interest in history; it no longer belongs to the field of poetry; it loses its simplicity; it no longer wears its former real and living physiognomy; individual characters take up less space, and no longer appear under living forms; the mention of names becomes more rare; the narrative of events, and the description of men, are more its pretext than its subject; all becomes generalized; readers demand a summary of the development of civilization, a sort of theory of the peoples and of events; history becomes a series of dissertations on the progress of the human race, and the historian seems only to call up the skeleton of the past, in order to hang upon it general ideas and philosophic reflections. This occurred in the last century; the English historians of that period, Robertson, Gibbon, and Hume, have represented history under that aspect; and most of the German writers still follow the same system. The philosophy of history predominates; history, properly so called, is not to be found in them.

But if advanced civilization and a great development of the human intellect coincide, in a nation, with an animated and keen political existence; if the struggle for liberty, by exciting the mind, provoke energy of character; if the activity of public life be added to the general claims of thought, history appears in another light; it becomes, so to speak, practical. No longer is it required to charm easily excited imaginations by its narratives, nor to satisfy by its meditations active intellects debarred from exercising themselves upon aught but generalities. But men expect from it experience analogous to the wants they feel, to the life they live; they desire to understand the real nature and hidden springs of institutions; to enter into the movements of parties, to follow them in their combinations, to study the secret of the influence of the masses, and of the action of individuals; men and things must resuscitate before them, no longer merely as an interest or diversion, but as a revelation of how rights, liberties, and power are to be acquired, exercised, and defended; how to combine opinions, interests, passions, the necessities of circumstances, all the elements of active political life. That is what history becomes for free nations; it is from that point of view that Thucydides wrote the history of the Peloponnesian war, Lord Clarendon and Bishop Burnet that of the English Revolution.

Generally, and by the very nature of things, it is in regular order, and at distant intervals, that history assumes one or other of these various kinds of interest in the eyes of the people. A taste for simple narratives, a liking for philosophic generalizations, and a craving for political instruction, almost always belong to very different times and degrees of civilization.

By a rare concurrence of circumstances, all these tastes and acquirements seem to unite at the present day; and history is now susceptible amongst us of all these kinds of interest. If it narrate to us with truth and simplicity the first attempts at social life, the manners of infant nations; that singular state of society in which ideas are few in number but keen, and wants are energetic although unvaried, in which all the pretensions of barbarian force struggle against all the habits of wild liberty, it will find us capable of understanding such a recital, and somewhat disposed to be charmed therewith. Fifty years ago, a faithful picture of this age in the life of peoples would have appeared only coarse and revolving; its interesting and poetical character would have been neither relished nor understood; conventionalisms were then turned into habits, and factitious manners held sway over the whole of society; Homer himself, in an age so destitute of simplicity and naturalness, was admired on hearsay only; and if no one dared to call in question his title to glory, he was pitied for having been obliged to shed the lustre of his genius upon an epoch of barbarism and ignorance. Prodigious events have since renewed the state of society, broken up old forms, conventional habits, and factitious manners; simple ideas and natural feelings have resumed their empire; a kind of rejuvenescence has taken place in the minds of men, and they have become capable of understanding man at every degree of civilization, and of taking pleasure in the simple and poetic narratives of infant society. In our days it has been felt that barbarian times also deserved, in some respects, to be called heroic times; in our days, mankind has discovered the faculty, as well as the necessity, of obtaining a true knowledge of the institutions, ideas, and manners of peoples, on their entrance into social life. Thus this section of history has regained an interest which it had ceased to possess; it is no longer regarded as the patrimony of the erudite; it has been seized upon by novelists themselves, and the public have taken delight in following their footsteps.

At the same time, the need of broad philosophical views of the course of human affairs and the progress of society, has gained strength instead of becoming extinguished; we have not ceased to look to facts for something more than mere narratives; we still expect them to be summed up in general ideas, and to furnish us with those great results which throw light on the sciences of legislation and political economy, and on the vast study of the destiny of the human race. Far, then, from being less inclined to consider history under a philosophic point of view, it seems to have acquired a wider interest in this respect. More than ever, we feel the necessity of tracing events back to their primitive causes, of reducing them to their simplest expression, of penetrating into their remotest effects; and if old chronicles have regained their charm in our eyes, the great combinations of historic philosophy still constitute a pressing necessity of our minds.

Finally, our birth into public life, the institutions that we possess and that we will not lose, that aurora of liberty which, though it arose in the midst of tempests, is not destined to perish therein, the past which we leave behind us, the present with which we are busied, the future which awaits us, infine, our entire position—all impart to history, considered under the political point of view, the most imperious interest. Before our time, the movement of public life, the game of parties, the war of factions, the struggles of assemblies, all the agitations and developments of power and liberty, were things which men had heard of but had not seen, which they had read of in books but which were not actually existing around the reader. These things have occurred, and are now occurring under our very eyes; every consideration leads us to study them, every circumstance aids us to comprehend them. And not to us alone has political life been restored: it has returned into history, hitherto cold and vague to the minds of those who had not been struck by the real visions of the scenes which it relates. And while regaining our comprehension of history, we have also become aware of the counsels and the lessons which it can furnish us; its utility no longer consists, as formerly, in a general idea, a sort of moral and literary dogma professed by writers rather than adopted and practised by the public. Now, a more or less thorough acquaintance with history, and especially with that of free peoples, is not merely an accomplishment of cultivated minds; it is a necessity to every citizen who feels desirous to take part in the affairs of his country, or merely to appreciate them correctly. And thus this great study now presents itself to us with all the kinds of interest that it is able to offer, because we have in us ability to consider it under all its aspects, and to seek and to find all that it contains.1

Such are the motives which induce me to select the history of the political institutions of England as the subject of this course of lectures. Here, in effect, history considered under its three different aspects, presents itself with the greatest simplicity and richness. Nowhere have the primitive manners of modern peoples been preserved for a longer period, or exercised so decisive an influence upon the institutions of a country. Nowhere do great philosophical considerations spring with greater abundance from the contemplation of events and men. Here, infine, representative government, the special object of our study, developed itself without interruption, received into its bosom and fertilized by its alliance the religious movement imparted to Europe in the sixteenth century, and thus became the starting point of the political reformation which is now beginning on the Continent.

It is by no means my intention to relate to you the history of England. I intend merely to consider it under its political point of view; and even under this point of view, we shall not study all the institutions of the kingdom. Representative government is our theme; and we shall therefore follow the history of the Parliament step by step. We shall only refer to judicial, administrative, and municipal institutions in so far as they are connected with representative government, and have contributed either to form it, or to determine its character.

Last year, before entering upon our examination of facts, I attempted to define with precision what we ought to understand by representative government. Before seeking for its existence, I desired to know by what signs we might discern its presence. Now that we are about to study the history of the only representative government which, until our days, has existed with full vitality in Europe, I think it well to recapitulate some of these ideas.

I have said that I had no very high opinion of the division of governments by publicists, into monarchical, aristocratic, and democratic; and that, in my opinion, it was by their essential principle, by their general and internal idea, that governments were characterized and distinguished. The most general idea that we can seek out in a government is its theory of sovereignty, that is, the manner in which it conceives, places, and attributes the right of giving law and carrying it into execution in society.

There are two great theories of sovereignty. One seeks for it and places it in some one of the real forces which exist upon the earth, no matter whether it be the people, the monarch, or the chief men of the people. The other maintains that sovereignty as a right can exist nowhere upon earth, and ought to be attributed to no power, for no earthly power can fully know and constantly desire truth, reason, and justice—the only sources of sovereignty as a right, and which ought also to be the rule of sovereignty in fact. The first theory of sovereignty founds absolute power, whatever may be the form of the government. The second combats absolute power in all its forms, and recognises its legitimacy in no case. It is not true to say that of these two theories, one or the other reigns exclusively in the various governments of the world. These two theories commingle in a certain measure; for nothing is completely destitute of truth or perfectly free from error. Nevertheless, one or the other always dominates in every form of government, and may be considered as its principle.

The true theory of sovereignty, that is, the radical illegitimacy of all absolute power, whatever may be its name and place, is the principle of representative government.

In fact, in representative government, absolute power, sovereignty as a right, inhere in none of the powers which concur to form the government: they must agree to make the law; and even when they have agreed, instead of accepting for ever the absolute power which actually results from their agreement, the representative system subjects this power to the variableness of election. And the electoral power itself is not absolute, for it is confined to the choice of the men who shall have a share in the government.

It is, moreover, the character of that system, which nowhere admits the legitimacy of absolute power, to compel the whole body of citizens incessantly, and on every occasion, to seek after reason, justice, and truth, which should ever regulate actual power. The representative system does this, 1. by discussion, which compels existing powers to seek after truth in common; 2. by publicity, which places these powers when occupied in this search, under the eyes of the citizens; and 3. by the liberty of the press, which stimulates the citizens themselves to seek after truth, and to tell it to power.

Finally, the necessary consequence of the true theory of sovereignty is, that all actual power is responsible. If, in fact, no actual power possesses sovereignty as a right, they are all obliged to prove that they have sought after truth, and have taken it for their rule; and they must legitimize their title by their acts, under penalty of being taxed with illegitimacy. The responsibility of power is, in fact, inherent in the representative system; it is the only system which makes it one of its fundamental conditions.

After having recognised the principle of representative government, we investigated its external characteristics, that is to say, the forms which necessarily accompany the principle, and by which alone it can manifest its existence. These forms we reduced to three: 1. division of powers; 2. election; and 3. publicity. It is not difficult to convince ourselves that these characteristics necessarily flow from the principle of representative government. Indeed, 1. all sole power in fact soon becomes absolute in right. It is therefore necessary that all power in fact should be conscious of dependence. “All unity,” says Pascal, “that is not multitude, is tyranny.” Hence results the necessity for two Houses of Parliament. If there be only one, the executive power either suppresses it, or falls into so subaltern a condition that there would soon remain only the absolute power of the single House of Parliament. 2. Unless election occurred frequently to place power in new hands, that power which derived its right from itself would soon become absolute in right; this is the tendency of all aristocracies. 3. Publicity, which connects power with society, is the best guarantee against the usurpation of sovereignty as a right by the actual power.

Representative government can neither be established nor developed without assuming, sooner or later, these three characteristics; they are the natural consequences of its principle; but they do not necessarily co-exist, and representative government may exist without their union.

This was the case in England. It is impossible not to enquire why representative government prevailed in that country, and not in the other States of the Continent. For, indeed, the Barbarians who settled in Great Britain had the same origin and the same primitive manners as those who, after the fall of the Roman Empire, overran Europe; and it was not in the midst of very different circumstances that they consolidated their dominion in that country.

From the fifth to the twelfth century, we find no more traces of true representative government in England than upon the Continent; its institutions were analogous to those of the other European nations; and we behold in every land the conflict of the three systems of free, feudal, and monarchical institutions.

We cannot fully resolve this question beforehand, and in a general manner. We shall answer it gradually, as we advance in the examination of facts. We shall see by what successive and varied causes political institutions took a different course in England to that which they pursued on the Continent. We may, however, indicate at once the great fact which, from a very early period, determined the character and direction of British institutions.

The first of the great external characteristics of representative government, division of power, is met with in every age, in the government of England. Never was the government concentrated in the hands of the king alone; under the name of the Wittenagemot, of the Council or Assembly of the Barons, and after the reign of Henry III., of the Parliament, a more or less numerous and influential assembly, composed in a particular manner, was always associated with the sovereignty. For a long period, this assembly somewhat subserved despotism, and sometimes substituted civil war and anarchy in the place of despotism; but it always interfered in the central government. An independent council, which derived its strength from the individual power of its members, was always adjoined to the royal authority. The English monarchy has always been the government of the king in council, and the king’s council was frequently his adversary. The great council of the king became the Parliament.

This is the only one of the essential characteristics of the system of representative government, which the government of England presents, until the fourteenth century. During the course of this epoch, the division of power, far from efficiently repressing despotism, served only to render it more changeful and more dangerous. The council of barons was no more capable than the king himself, of comprehending and establishing a stable political order and true liberty; these two forces were incessantly in conflict, and their conflict was war, that is to say, the devastation of the country, and the oppression of the mass of the inhabitants. But from this there resulted, in process of time, two decisive facts, from which liberty took its origin; they were these:

1. From the very fact that power was divided, it followed that absolute power, sovereignty as a right, was never attributed to the king, nor supposed to be in itself legitimate. Now, this is the very principle of representative government; but this principle was far from being understood, or even suspected, philosophically speaking. It was incessantly stifled by force, or else it was lost in the confusion of the ideas of the time regarding divine right, the origin of power, and so forth; but it existed in the depths of the public mind, and became by slow degrees a fundamental maxim. We find this principle formally expressed in the writings of Bracton, Lord Chief Justice under Henry III., and of Fortescue, who held the same office under Henry VI. “The king,” says Bracton, “should be subject to no man, but only to God and to the law, for the law makes him king; he can do nothing upon earth but that which, by law, he may do; and that which is said in the Pandects, that that which pleases the king becomes law, is no objection; for we see by the context, that these words do not mean the pure and simple will of the prince, but that which has been determined by the advice of his councils, the king giving the sanction of his authority to their deliberations upon the subject.”

“The English monarchy,” says Fortescue, “ non solum est regalis, sed legalis et politica potestas,” 2 and he frequently develops this idea. The limitation of powers was, thus, at a very early period, a matter of public right in England; and the legitimacy of sole and absolute power was never recognized. Thus was established and preserved, for better times, the generative principle of all legitimate power as well as of all liberty; and by the virtue of this principle alone was maintained, in the souls of the people, that noble sentiment of right which becomes extinguished and succumbs wherever man finds himself in presence of an unlimited sovereignty, whatever may be its form and name.

2. The division of the supreme power produced yet another result. When the towns had acquired greater wealth and importance, when there had been formed, beyond the circle of the king’s immediate vassals, a nation capable of taking part in political life, and which the government found it necessary to treat with consideration, this nation naturally adjoined itself to the great council of the king, which had never ceased to exist. In order to gain itself a place in the central government, it had no need abruptly to create new institutions; a place was already prepared to receive it, and although its entrance into the national council ere long changed its nature and forms, it at least was not under the necessity of asserting and re-animating its existence. There was a fact capable of receiving extension, and of admitting into its bosom new facts, together with new rights. The British Parliament, to say truth, dates only from the formation of the House of Commons; but without the presence and importance of the council of Barons, the House of Commons would, perhaps, never have been formed.

Thus, on the one hand, the permanence of the idea that the sovereignty ought to be limited, and, on the other, the actual division of the central power, were the germs of representative government in England. Until the end of the thirteenth century we met with no other of its characteristics; and the English nation, until that period, was not perhaps actually more free and happy than any of the peoples of the Continent. But the principle of the right of resistance to oppression was already a legal principle in England; and the idea of the supremacy which holds dominion over all others, of the supremacy of the law, was already connected, in the mind of the people and of the jurisconsults themselves, not with any particular person, or with any particular actual power, but with the name of the law itself. Already the law was said to be superior to all other powers; sovereignty had thus, in principle at least, left that material world in which it could not fix itself without engendering tyranny, to place itself in that moral world, in which actual powers ought constantly to seek it. Many favourable circumstances were doubtless necessary to fecundate these principles of liberty in England. But when the sentiment of right lives in the souls of men, when the citizen meets with no power in his country which he is bound to consider as infallible and absolutely sovereign, liberty can never fail to spring up. It has developed itself in England less universally, less equally, and less reasonably, we venture to believe, than we are permitted to hope will be the case at the present day in our own country; but, in fine, it was born, and increased in growth in that country more than in any other; and the history of its progress, the study of the institutions which served as its guarantees, and of the system of government to which its destinies seem henceforward to link themselves, is at once a great sight and a necessary work for us. We shall enter upon it with impartiality, for we can do so without envy.3

LECTURE 2

Before entering upon the history of representative government in England, I think it necessary, in the first place, to remind you of the facts which served, as it were, as its cradle—of the movements of the different nations which successively occupied England—the conquest of the Normans—the state of the country at the period of this conquest, about the middle of the eleventh century—and the principal events which succeeded it. A knowledge of facts must always precede the study of institutions.

The Britons—Gauls or Celts in origin—were the first inhabitants of Great Britain. Julius Caesar subjugated them, and the Roman dominion substituted a false and enervating civilization in the place of their barbarian energy. On being abandoned by Rome, when that city abdicated piecemeal the empire of the world, the Britons were unable to defend themselves, and summoned the Saxons to their assistance. The latter, finding them already conquered, from their allies became ere long their masters, and exterminated or drove back into the mountains of Wales, the people whom the Romans had subdued. After a long series of incursions, the Danes established themselves in the north of England, during the ninth century, and in the latter part of the eleventh century, the Normans conquered the whole country.

Towards the middle of the eleventh century, and before the Norman conquest, great enmity still subsisted between the Saxons and the Danes, whereas between the Danes and Normans the recollections of a common origin were still fresh and vivid. Edward the Confessor had been brought up at the Court of Normandy, and the Normans were held in great favour by him. He had appointed several of them to great offices in his realm. The primate, the Archbishop of Canterbury, was a Norman; and Norman was spoken at the Court of Edward. All these circumstances seemed to prepare the way for the invasion of England by the Normans.

The internal state of England was equally favourable to it. The Saxon aristocracy had risen in proportion as the royal power had declined; but the power of the great land-holders was a divided power, and their dissensions opened a door for foreign interference. Harold, the brother-in-law of king Edward, who had died without issue, had just usurped the crown; so that William had not even to oppose a legitimate monarch. “Whether the English make Harold or another their duke or king, I grant it,” said William on the death of Edward; but he, nevertheless, assumed to be heir of the kingdom, by virtue of a will of the deceased monarch, and came to assert his right at the head of an army of 40,000 men. On the 14th of October, 1065, Harold lost both the crown and his life at the battle of Hastings. The primate then offered the crown of England to William, who accepted it after some show of hesitation, and was crowned on the 6th of December. He at first treated his Saxon subjects with mildness, but ordered the construction of a number of fortresses, and gave large grants of lands to his Norman comrades. During a journey which he made into Normandy, in the month of March, 1067, the Saxons revolted against the tyranny of the Normans. William suppressed the revolt, and continued for some time still faithful to his policy of conciliation. But rebellions continued to arise, and William now had recourse to rigorous measures. By repeated confiscations he ensured the sovereign establishment of the Normans, and of the feudal system. The Saxons were excluded from all great public employments, and particularly from the bishoprics. William covered England with forts, substituted the Norman language for the Anglo-Saxon, and made it the language of law—a privilege which subsisted until the reign of Edward III. He enacted very severe laws of police, among others the law of curfew, so greatly detested by the Saxons, but which already existed in Normandy; and finally, he laid waste the county of Yorkshire, the stronghold of the Saxon insurgents.

The Pope had given his approval to William’s enterprise, and had excommunicated Harold. Nevertheless, William boldly repulsed the pretensions of Gregory VII, and forbade his subjects to recognize any one as Pope, until he had done so himself. The canons of every council were to be submitted to him for his sanction or rejection. No bull or letter of the Pope might be published without the permission of the king. He protected his ministers and barons against excommunication. He subjected the clergy to feudal military service. And finally, during his reign, the ecclesiastical and civil courts, which had previously been commingled in the county courts, were separated.

After the death of William, in 1087, his States were divided among his three sons, Robert, William, and Henry. William Rufus succeeded to the throne of England, and Robert to the dukedom of Normandy. William’s reign is remarkable only for acts of tyranny, for the extension of the royal forests, and for odious exactions; he would not appoint bishops to any of the vacant episcopal sees, but appropriated their revenues to his own use, considering them as fiefs whose possessors were dead.

William Rufus was almost constantly at war with his brother Robert. He ended by buying Normandy of him, or, to speak more correctly, he received it in pledge for thirteen thousand silver marks which he lent to Robert when about to join the Crusaders. In the year 1100, he made a similar bargain with William, Count of Poitou and Duke of Guienne. The Norman barons bitterly regretted that Robert was not King of England, as well as Duke of Normandy. They rebelled several times against William; and various facts indicate that the Saxon nation gained something by these revolts, and was rather better treated, in consequence, by its Norman monarch. But the relations of the two peoples were still extremely hostile when William Rufus was killed while hunting, on the 2nd of August, 1100.

Henry I. usurped the crown of England from his brother Robert, to whom it rightfully belonged; and the Norman barons, who preferred Robert, offered only a feeble resistance to Henry; he was crowned in London. His first act was a charter, in which, to gain forgiveness for his usurpation, he promised not to seize upon the revenues of the church during the vacancy of benefices; to admit the heirs of the crown vassals to the possession of their estates, without exposing them to such violent exactions as had been usual during the preceding reigns; to moderate the taxes, to pardon the past, and finally to confirm the authority of the laws of St. Edward, which were so dear to the nation. A short time after the concession of this charter, Henry married Matilda, the daughter of the King of Scotland, and niece of Edgar Atheling, the last heir of the Saxon dynasty; by this marriage he hoped to conciliate the attachment of the Saxon people. In order to marry him, Matilda was liberated from her vows, for she had taken the veil, not with the intention of becoming a nun, says Eadmer, but in order to escape from the brutal violence of the Normans.

In 1101, Robert returned from the Crusades, and invaded England, but a treaty soon put a stop to his progress, and he renounced his pretensions on receiving a pension of 3000 marks, and the promise of succeeding to Henry’s inheritance. The bad government of Robert in Normandy occasioned continual disturbances in that country, and maintained the ever-increasing tendency towards the union of Normandy with England. Henry, taking advantage of this state of things, invaded Normandy, where he had many powerful adherents, and after three years of war, in 1106, the battle of Tenchebray decided the fate of Robert, who was taken prisoner and confined in Cardiff Castle, where he languished twenty-eight years. Normandy was then united to England.

The reign of Henry I. was disturbed by continual quarrels with the clergy; he was obliged to renounce the right of investiture, which was held to confer spiritual dignity, but the bishops continued to swear to him fidelity and homage, by reason of their temporal possessions. In the midst of the obstacles which lay in his path, Henry governed with vigour and prudence; he humbled the great barons, restored order, and restrained the clergy; and these were the qualities which then constituted a great king. The pretended code which is ascribed to Henry I. is a later compilation; but he effected several important reforms, among others, by repressing the abuses of the right of purveyance, by which the socage tenants of the king were bound gratuitously to supply the court, while journeying, with provisions and carriages. It is also said that he substituted, for tenants of this class, the payment of a money rent instead of the rent in kind which they had formerly paid; but it is not probable that this was a general rule.

Henry I. died in 1135. His reign promoted, to some extent, the fusion of the two peoples: but the separation was still wide. His son William being dead, Henry had appointed as his successor his daughter Matilda, the wife of Geoffrey Plantagenet, Count of Anjou; and an assembly of barons had ratified his choice. But, during the absence of Matilda, Stephen, Count of Boulogne, the grandson of William the Conqueror by his mother Adela, the wife of Stephen, Count of Blois, usurped the crown of England; but only a few barons attended at his coronation, on the 22nd of December, 1135. Stephen was anxious, by making large concessions, to obtain pardon for his usurpation; and he published two charters, which promised all that those issued by Henry had promised, including the maintenance of the laws of Edward the Confessor. The clergy and barons, however, swore to him only a conditional oath; and wishing to make him pay dearly for their support, the church exacted from him the sanction of all its privileges, and the barons obtained permission to build fortresses upon their estates. The kingdom soon bristled with castles and ramparts. Eleven hundred and fifteen were erected during the reign of Stephen, and assured, far more effectually than his charters, the power and independence of the barons.

In 1139, an insurrection broke out in favour of Matilda. King Stephen was defeated and made prisoner at the battle of Lincoln, on the 26th of February, 1141. A synod of ecclesiastics, without the co-operation of any laymen, gave the crown to Matilda; the deputies of the city of London were the only laymen present, and they demanded the liberation of King Stephen, but in vain; they were admitted into the synod merely to receive orders. A conspiracy against Matilda overthrew, ere long, the bold work of the clergy; Stephen regained his liberty in 1142, and the civil war recommenced. But a new enemy had now arisen against him. Prince Henry, the son of Matilda, though still young, had already rendered himself remarkable for his bravery and prudence. His mother promised him the dukedom of Normandy; the death of his father, Geoffrey Plantagenet, had given him Maine and Poitou; and his marriage with Eleanor of Guienne had gained him two other vast provinces of France. In 1154, he appeared in England with an army, but a negotiation speedily terminated the conflict, and Henry was acknowledged as the successor of Stephen, who died a year afterwards, on the 25th of October, 1154.

A variety of circumstances were favourable to the power of Henry II. at his accession. He united in his own person the rights of both the Saxon and Norman dynasties. He possessed immense dominions on the Continent; he was Count of Anjou, Duke of Normandy, Duke of Guienne Maine, Saintonge, Poitou, Auvergne, Périgord, Augoumois and Limousin. He married his third son, Geoffrey, while still a child, to the infant heiress of the duchy of Brittany. He soon became engaged in war with the nobility and the clergy. He revoked all the gifts of the royal domains which had been granted by Stephen and Matilda, and regained by arms all that was not restored to him peaceably. He demolished a large number of the feudal fortresses. No coalition of the barons had as yet been formed, and their individual power was utterly unable to compete with that of Henry; they therefore submitted. The king also rallied around him a great number of interests by the maintenance of strict order, and by the appointment of itinerant justices to secure a more equitable administration of the laws. His struggle with the clergy was more stormy, and its success less complete; for the clergy, who were already constituted into a most powerful corporation, and were sustained from without by the Holy See, had found within their own body a chieftain capable of resisting even the greatest monarch. Thomas Becket, born in London in 1119, had advanced so far in the favour of Henry as to be appointed his Lord High Chancellor. His services, his devotedness, the magnificence of his mode of life, all combined to persuade Henry that, by elevating Becket to the highest ecclesiastical dignities, he would gain a powerful supporter in the church; he, therefore, had him appointed Archbishop of Canterbury and Primate of the kingdom. But no sooner was Becket appointed to this office than he devoted himself to the interests of his order, and boldly undertook to exercise, and even to extend the rights of his position. A clerk had committed a murder; Becket punished him according to the laws of the clergy: Henry desired to have him judged by the civil law; Becket resisted; and Henry seized this opportunity for attacking openly and systematically the ecclesiastical power. He assembled the bishops, and inquired of them whether they would submit to the ancient laws of the realm, or not; and they were forced to consent to do so. The famous Council of Clarendon was convoked in 1164 to define these laws, and fix the limits of the two powers. The king had conciliated the support of the lay barons. Sixteen articles resulted from the deliberations of this assembly; they are to the following effect:

1. All suits concerning the advowson and presentation of churches shall be determined in the civil courts. 2. Ecclesiastics, when accused of any crime, shall appear before the king’s justices, who shall determine whether the case ought to be tried in the secular or episcopal courts. The king’s justices shall inquire into the manner in which causes of this kind are judged by the ecclesiastical courts; and if the clerk is convicted or confesses his crime, he shall lose his benefit of clergy. 3. No archbishop, bishop, or ecclesiastic of high rank shall leave the kingdom without the king’s permission. If he should go abroad, he must give surety to the king for his return, and for his good conduct in all matters affecting the interests of the king. 4. Excommunicated persons shall not be bound to give security for continuing in their present place of abode, but merely for presenting themselves to suffer the judgment of the church and to receive absolution. 5. No tenant in chief of the king, no officer of his household, or of his demesnes, shall be excommunicated, or his lands put under an interdict, until application has been made to the king, or, in his absence, to the grand justiciary, in order to obtain justice at his hands. 6. All appeals in spiritual causes shall be carried from the archdeacon to the bishop, from the bishop to the primate, and from him to the king, and shall be carried no further without the king’s consent. 7. If any law-suit arise between a layman and an ecclesiastic concerning the nature of a fief, the question shall be decided by the king’s chief justice, by the verdict of twelve probi homines;1 and according as the nature of the fief may be determined, further proceedings shall be carried on before the civil or ecclesiastical courts. 8. Any inhabitant of a city, town, borough or manor in the king’s demesnes, who has been cited before an ecclesiastical court to answer for some offence, and who has refused to appear, may be placed under an interdict; but no one may be excommunicated till the chief officer of the place where he resides be consulted, that he may compel him by the civil authority to give satisfaction to the church. 9. The judgment of all causes, for debts contracted by oath or otherwise, is referred to the civil courts. 10. When any archbishopric, or bishopric, or abbey, or priory of royal foundation is vacant, the king shall enjoy its revenues; and when it becomes necessary to fill up a see, the king shall summon a chapter to proceed, in the royal chapel, to the election, which must obtain the sanction of the king, according to the advice of the prelates whom he may have thought proper to consult; and the bishop-elect shall swear fealty and homage to the king as to his lord, for all his temporal possessions, with the exception of the rights of his order. 11. Churches belonging to the king’s fee shall not be granted in perpetuity without his consent. 12. No layman shall be accused before a bishop, except by legal and reputable promoters and witnesses; and if the culprit be of such high rank that no one dares to accuse him, the sheriff, upon the demand of the bishop, shall appoint twelve lawful men of the neighbourhood, who, in presence of the bishop, shall pronounce upon the facts of the case, according to their conscience. 13. Archbishops, bishops, and other spiritual dignitaries who are immediate vassals of the king, shall be regarded as barons of the realm, and shall possess the privileges and be subjected to the burdens belonging to that rank, except in the case of condemnation to death or to the loss of a limb. 14. That if any person resist a sentence legally pronounced upon him by an ecclesiastical court, the king shall employ his authority in obliging him to make submission. In like manner, if any one throw off his allegiance to the king, the prelates shall assist the king with their censures in reducing him. 15. Goods forfeited to the king shall not be protected in churches or churchyards. 16. No villein shall be ordained a clerk without the consent of the lord on whose estate he was born.

When the constitutions of Clarendon had once been adopted, the king required that the bishops should affix their seals thereto; all consented with the exception of Becket, who resisted for a long while, but yielded at length, and promised “legally, with good faith, and without fraud or reserve,” to observe the constitutions. The king sent a copy of them to Pope Alexander, who approved only the last six articles, and annulled all the rest. Strong in the support of the Pope, Becket did penance for his submission, and renewed the conflict. It soon became desperate. The king harassed Becket with persecutions of all kinds, requiring him to give an account of his administration while Chancellor, and charging him with embezzlement; the bishops became alarmed and deserted the cause of the primate. Becket resisted with indomitable courage; but he was finally compelled to fly to the Continent. Henry confiscated all his property, and banished all his relatives and servants, to the number of four hundred. Becket excommunicated the servants of the king, and, from his retirement in a French monastery, made Henry totter on his throne. At length, the Pope with his legates, and the King of France, interfered to put an end to this conflict. Henry, who was embarrassed by a multitude of other affairs, yielded, and Becket returned to his see. But his conscience united with his pride to rekindle the war. He censured the prelates who had failed to support him, and excommunicated some of the king’s servants who had been active in their persecution of the clergy. “What!” cried Henry, in a transport of passion, “of the cowards who eat my bread, is there not one who will free me from this turbulent priest?” He was then at Bayeux; four of his gentlemen set out at once for Canterbury, and assassinated Becket on the steps of the altar of his cathedral, on the 29th of December, 1170. The king dispatched a courier in pursuit of them, but he arrived too late to prevent the consummation of the deed. Henry manifested the utmost grief at the death of Becket; we may, however, suppose his sorrow to have been feigned. In order to avert the consequences, he at once sent envoys to Rome to attest his innocence, and the Pope contented himself with fulminating a general excommunication against the authors, fautors, or instigators of the assassination.

Other events, wars with Scotland and France, and an expedition into Ireland, diverted the public attention from Becket’s death. In 1172, Henry resumed his negotiations with Rome, and concluded a treaty which, on the whole, ratified the enactments of the Council of Clarendon. When he had thus become reconciled with the Pope, he made his peace with his subjects, whose enmity he feared, by a public penance on the tomb of Becket, who was honoured by all England as a martyr.

In 1172, some English adventurers conquered without difficulty, and almost without a battle, a part of Ireland. Henry led an expedition into that country, and his authority was recognized. The remainder of his life was agitated by continual wars in defence of his possessions on the Continent, and by the rebellions of his children, who were anxious to divide his power and dominions before his death. He died of grief at their conduct on the 6th of July, 1189, at Chinon, near Saumur; and the corpse of one of the greatest kings of England and of his age was left for some time, deserted and stripped, upon the steps of an altar. His eldest son, Richard Coeur-de-Lion, succeeded him without difficulty.

In every age, and at every great epoch of history, we almost invariably witness the appearance of some individuals who seem to be the types of the general spirit and dominant dispositions of their time. Richard, the adventurer-king, is an exact representation of the chivalrous spirit of the feudal system and of the twelfth century. Immediately upon his accession, his only thought was the accumulation of money for the Crusades; he alienated his domains; he publicly sold offices, honours, and even the loftiest dignities, to the highest bidder; he even sold permissions not to go on the Crusade; and he was ready to sell London, he said, if he could find a purchaser. And while he was sacrificing everything to his passion for pious adventures, his people massacred the Jews because some of them had appeared at the coronation of the king, notwithstanding the prohibition.

Richard set out at length for the Crusades, leaving as Regent during his absence his mother Eleanor, who had excited the princes her sons to rebellion against the king their father; and he associated the Bishops of Durham and Ely with her in the regency. The tyranny of the Bishop of Ely spread confusion throughout England; he placed his colleague under arrest, and governed alone with boundless arrogance, until at last Prince John had him deposed by a council of barons and prelates. Richard, on his return from the Crusades, was, as is well known, detained prisoner in Austria, from the 20th of December, 1193, to the 4th of February, 1194, when he recovered his liberty by the devotedness of one of his vassals. The power of feudal feelings and ties was also manifested in the eagerness of his subjects to pay his ransom. Richard, when restored to his kingdom, spent the remainder of his life in continual wars in France, and died, on the 6th of April, 1199, of a wound received at the siege of the castle of Chalus, near Limoges, while endeavouring to gain possession of a treasure which, it was said, the Count of Limoges had found.

During the reign of Richard, the liberties of the towns and boroughs, which had commenced under William Rufus, made considerable progress, and prepared the way for that decisive advance of national liberties and representative government in England—the Great Charter of King John.

LECTURE 3

After having given a summary, in the preceding lecture, of the principal historical facts, we are now about to survey Anglo-Norman institutions during the period to which we have just turned our attention, namely, from the middle of the eleventh century until the end of the twelfth.

How came it that free institutions were established from this time forth among this people, and not in other countries? The answer to this question may be found in the general facts of English history, for institutions are much more the work of circumstances than of the texts of laws.

The States which were founded in Europe, from the fifth to the seventh century, were established by hordes of wandering Barbarians, the conquerors of the degraded Roman population. On the side of the victors, there existed no fixed and determinate form of social life; on the side of the vanquished, forms and institutions crumbled into dust; social life died of inanition. Hence arose long disorders, ignorance and impossibility of a general system of organization, the reign of force, and the dismemberment of sovereignty.

Nothing of the kind occurred in England in the eleventh century, in consequence of the Norman Conquest. A Barbarian people which had already been established in a country for two hundred years conquered another Barbarian people which had been territorially established for six hundred years. For this reason, many decisive differences may be observed between this conquest and those which took place on the Continent.

1. There was much more resemblance, and consequently much more equality, between the two peoples; their origin was the same, their manners and language were analogous, their civilization was almost identical, and the warlike spirit was as powerful among the vanquished as among the victors. Thus, two nations under almost similar conditions, found themselves in presence of one another, and the conquered nation was able, as well as disposed, to defend its liberties. Hence arose many individual evils, but no general and permanent abasement of one race before the other. Oppressed at first, but retaining its warlike character, the Saxon race offered an energetic resistance, and gradually raised itself from its inferior position.

2. The two peoples also possessed political institutions of a singularly analogous nature, whereas elsewhere, in France and in Italy, the Roman populations, to speak the truth, possessed no institutions at all. The communes and the clergy were required to maintain, even obscurely, the Roman law among societies on the Continent; whereas in England, Saxon institutions were never stifled by Norman institutions, but associated with them, and finally even changed their character. On the Continent, we behold the successful sway of barbarism, feudalism, and absolute power, derived either from Roman or ecclesiastical ideas. In England, absolute power was never able to obtain a footing; oppression was frequently practised in fact, but it was never established by law.

3. The two peoples professed the same religion; one had not to convert the other. On the Continent, the more Barbarian victor adopted the religion of the vanquished, and the clergy were almost entirely Romans; in England, they were both Saxons and Normans. Hence resulted an important fact. The English clergy, instead of enrolling themselves in the retinue of the kings, naturally assumed a place among the landed aristocracy, and in the nation. Thus the political order has almost constantly predominated in England over the religious order; and ever since the Norman Conquest, the political power of the clergy, always called in question, has always been on the decline.

This is the decisive circumstance in the history of England—the circumstance which has caused its civilization to take an altogether different course to that taken by the civilization of the Continent. Of necessity, and at an early period, a compromise and amalgamation took place between the victors and the vanquished, both of whom had institutions to bring into common use; institutions more analogous than existed anywhere else—stronger and more fully developed, because they belonged to peoples which had already been territorially established for a considerable time.

Thus, Saxon institutions and Norman institutions are the two sources of the English government. The English commonly refer their political liberties to the former source; they see that, on the Continent, feudalism did not produce liberty; and they attribute their feudalism to the Normans, and their liberty to the Saxons. This distinction has even become a symbol of modern political parties; the Tories, in general, affect a neglect of Saxon institutions, whilst the Whigs attach to them the greatest importance. This view of events appears to me to be neither exact nor complete. Saxon institutions were not, by themselves, the principle of English liberties. The forced assimilation of the two peoples and of the two systems of institutions, was their true cause. There is even room for doubt whether, without the Conquest, liberty would have resulted from Saxon institutions; and we may believe that they would have produced in England results analogous to those which occurred on the Continent. The Conquest inspired them with new virtue, and caused them to produce results which, if they had been left to themselves, they would not have produced. Political liberty issued from them, but was begotten by the influence of the Conquest, and in consequence of the position in which the Conquest placed the two peoples and their laws.

I will now recall to your recollection Anglo-Saxon institutions as they existed before the Conquest; and you will soon see that it was the forced approximation of the two peoples which gave them vitality, and brought forth the liberties of England.

Among local institutions, some were based upon common deliberation, and others upon hierarchical subordination; that is to say, some upon a principle of liberty, and others upon a principle of dependence. On one side, were the courts of hundred and the county-courts; on the other, the great landowners and their vassals: every man of fourteen years old and upwards was obliged to belong either to a hundred or to a lord, that is, to be free or vassal. These two hostile systems, then, placed in presence of one another, conflicted as upon the Continent. There is some doubt about the question whether, before the Conquest, feudalism existed with regard to lands: that it existed with regard to persons there can be no doubt, for their hierarchical classification was real and progressive. In localities, although the system of free institutions subsisted, the system of feudal institutions was gaining ground; seignorial jurisdictions were encroaching upon free jurisdictions; and almost the same process, in fact, was going on as upon the Continent.

If we look at central institutions, we observe the same phenomenon. On the Continent, feudalism was produced by the aggrandizement of the king’s vassals, and by the dislocation of the sovereignty. The national unity, which resided in the assembly of the nation, became dissolved; the monarchical unity was unable to resist; and monarchy and liberty perished together. Events had taken the same course among the Anglo-Saxons. Under Edward the Confessor, the decay of the royal authority is evident. Earl Godwin, Siward, Duke of Northumberland, Leofric, Duke of Mercia, and many other great vassals, are rivals rather than subjects of the king; and Harold usurping the crown from Edgar Atheling, the legitimate heir, bears a strong resemblance to Hugh Capet. The sovereignty tends to dismemberment. Monarchical unity is in danger; national unity is in the same declining state, as is proved by the history of the Wittenagemot. This general assembly of the nation was at first the assembly of the warriors; afterwards the general assembly of the land-owners, both great and small; and at a later period, the assembly of the great land-owners alone, or of the king’s thanes. Even these at last neglect to attend its meetings; and isolate themselves upon their estates, in which each of them exercises his share of the dismembered sovereignty. This is almost identical with the course of affairs on the Continent. Only, the system of free institutions still subsists in England with some energy in local institutions, and especially in the county-courts. The feudal system is in a less advanced state than on the Continent.

What would have happened if the Conquest had not occurred? It is impossible to say with certainty, but probably just what happened on the Continent. The same symptoms are manifested, the decay of the royal authority and of the national assembly; and the formation of a hierarchical landed aristocracy, almost entirely independent of the central power, and exercising almost undisputed sovereignty in its domains, excepting only feudal liberties.

While Anglo-Saxon institutions were in this state, the Normans conquered England. What new elements did they introduce, and what effect did the Conquest produce upon the Saxons?

The feudal system was completely established in Normandy; the relations of the duke with his vassals, the general council of the barons, the seignorial administration of justice, the superior courts of the duke, were all organized already. This system is impracticable in a large State, especially when manners have made but little progress; it leads to the dislocation of the State and of the sovereignty, and to a federation of powerful individuals, who dismember the royal power. But in a State of limited extent, like Normandy, the feudal system may subsist without destroying unity; and notwithstanding William’s continual wars with some of his vassals, he was in very reality the powerful chieftain of his feudal aristocracy. The proof of this is contained in the very enterprize upon which he led them. He had, say the chronicles, from forty to sixty thousand men, of whom twenty-five thousand were hired adventurers or men who joined his standard in the hope of obtaining booty. He was not a leader of Barbarians, but a sovereign undertaking an invasion at the head of his barons.

After the Conquest and their territorial establishment, the bonds which united the Norman aristocracy were necessarily drawn still closer together. Encamped in the midst of a people who regarded them with hostility and were capable of vigorous resistance, the conquerors felt the need of unity; so they linked themselves together, and fortified the central power. On the Continent, after the Barbarian invasions, we hear of hardly any insurrections of the original inhabitants: the wars and conflicts are between the conquerors themselves; but in England they are between the conquerors and the conquered people. We indeed meet, from time to time, with revolts of the Norman barons against the king; but these two powers generally acted in concert, for their interest was their bond of union. Moreover, William had found a royal domain of large extent, already in existence: and it received immense increase from confiscations of the lands of Anglo-Saxon rebels. Although the spoliation was not universal, it was carried out with unexampled promptitude and regularity. William soon had 600 direct vassals, nearly all of whom were Normans, and his landed property was divided into 60,215 knight’s fees, a large quantity of which frequently belonged to the same master; for example, Robert de Mortaigne alone possessed 973 manors, the Earl of Warrenne 278, and Roger Bigod 123; but they were all scattered through different counties, for though the prudent William was willing to make his vassals rich, he was not desirous of making them too powerful.

Another proof of the cohesion of the Norman aristocracy is supplied by the Doomsday Book; a statistical account of the royal fiefs, and register of the demesne lands and direct vassals of the king, which was begun in 1081 and terminated in 1086: it was compiled by royal commissioners. King Alfred had also directed the compilation of a similar register, but it has been lost. Nothing of the kind was ever done in any other country.

The same cause which rendered Norman feudalism in England more compact and regular than on the Continent, produced a corresponding effect upon the Saxons. Oppressed by a powerful and thoroughly united enemy, they formed in serried ranks, constituted themselves into a national body, and clung resolutely to their ancient laws. And in the first instance, the establishment of William did not appear to have been entirely the work of force; there were even some forms of election; after the battle of Hastings, the crown was offered to him by the Saxons, and at his coronation at Westminster, he swore to govern the Saxons and Normans by equal laws. After this period, we incessantly find the Saxons claiming to be ruled by the laws of Edward the Confessor, that is to say, by the Saxon laws, and they obtained this right from all the Norman kings in succession. These laws thus became their rallying point, their primitive and permanent code. The county-courts, which continued to exist, also served to maintain the Saxon liberties. Feudal jurisdiction had made but little progress among the Saxons; it received extension on the arrival of the Normans; but it had no time to strike deep root, for it found itself limited on the one hand by the county-courts, and on the other by the royal jurisdiction. On the Continent, the royal authority conquered judicial power from feudalism; in England, the royal authority was superimposed upon the county-courts. Hence arises the immense difference between the two judicial systems.

Lastly, the Saxons still possessed landed property, which they defended or claimed in reliance upon titles anterior to the Conquest, and the validity of these titles was recognised.

To sum up the whole matter, the Norman Conquest did not destroy right among the Saxons, either in political or civil order. It opposed in both nations that tendency to isolation, to the dissolution of society and of power, which was the general course of things in Europe. It bound the Normans to one another, and united the Saxons among themselves; it brought them into presence of each other with mutual powers and rights, and thus effected, in a certain measure, an amalgamation of the two nations and of the two systems of institutions, under the sway of a strong central power. The Saxons retained their manners as well as their laws; their interests were for a long time interests of liberty, and they were able to defend them. This position, far more than the intrinsic character of Saxon institutions, led to the predominance of a system of free government in England.

LECTURE 4

You have already seen what was the influence of the Norman Conquest on the political destinies of England; and what was the position in which the two peoples were placed by it. They did not unite, nor did they mutually destroy one another. They lived in a state of national and political conflict, the one people being invested with a large power of government, while the other was far from being destitute of the means of resistance. We have now to enquire what were those institutions upon which this struggle was founded. We shall not concern ourselves with all the institutions which then existed in society: we are now looking for the sources of representative government, and are therefore at present only interested in those in which the germs of a representative system existed.

In order to determine with some precision the object of our study, it will be necessary to form some idea of the different functions of the power which is applied to the government of society. In the foremost rank is presented the legislative power, which imposes rules and obligations on the entire mass of society and on the executive power itself. Next appears the executive power, which takes the daily oversight of the general business of society—war, peace, raising of men and of taxes. Then the judicial power, which adjusts matters of private interest according to laws previously established. Lastly, the administrative power, charged, under its own responsibility, with the duty of regulating matters which cannot be anticipated and provided for by any general laws.

During three centuries these powers have tended to centralization in France; so much so, that if we would study the government of the country we must attend to them all, for they were all united and limited to the same individuals. Richelieu, Louis XIV, the Revolution, Napoleon, though in different positions, seem to have inherited the same projects and moved in the same direction. Such has not been the case in England. The administrative power there, for example, is to the present time divided and subdivided; it belongs either to those who are themselves interested in its movements, or to local magistrates, independent of the central power of the State, and forming no corporation among themselves. The judicial power itself is divided. It was so to some extent, through another and stronger cause, in the earlier times of England’s social life, as in all societies which have made but small advancement. Different powers are then not only distributed but commingled. The legislative power is no more central than others: its functions are continually usurped by local powers. Judicial power is almost entirely local. Centralization commences with the executive power properly so called, and this for a long time remains the only one in which any centralizing tendency is found. The proof of this is furnished by the feudal system, when almost all powers—those connected with justice, militia, taxes, &c.—were local, although the feudal hierarchy had at its head the king, and the assembly of the most important possessors of fiefs.

In this distribution and confusion of powers at the period we are considering, the institutions which we have especially to study in order to find the origin of representative government, are those which were central, that is to say, the Parliament and the king. On the Continent, centralization has resulted from an absolute power which has broken up and absorbed all local powers. In England, on the other hand, local powers have subsisted after a thousand vicissitudes, while they have increasingly regulated and defined their own action. A central government has emanated from them by degrees—it has progressively formed and extended itself. We shall trace this formation step by step, and shall only study local institutions as they relate to this one fact; and we shall see that this circumstance has been the principal cause of the establishment of a free government in England.

It is easily presumed that, in such a state of society, no other central institution, properly so called, existed for a long time, except royalty. There are certain maxims, certain habits of central political action, but no constant rule: the facts are varied and contradictory. Men of considerable influence, almost sovereigns in their own domains, are much less desirous of any participation in the central power; they rather attempt to defend themselves from it as often as it infringes upon their interests, than endeavour at all to control it beforehand, and to act upon it in a general manner. As in France, at the end of the Carlovingian dynasty, a king can hardly be met with, so in England, under the first Norman kings, a Parliament can hardly be found. That which existed bearing any resemblance to one differs but little from the Saxon Wittenagemot in the form which belonged to it immediately before the Conquest, or from the Council of Barons in Normandy. We find in the works of historians, and in charters, the following names: Curia de more, Curia regis, Concilium, Magnum Concilium,Commune Concilium, Concilium regni. But these are to be regarded only as vague expressions which designate assemblies, without giving any clue by which to determine their constitution and their power. Hale sees in them “a Parliament as complete and as real as has ever been held in England.” Carte and Brady see in them only tribunals, privy councils dependent upon the king, or pompous gatherings for the celebration of certain solemnities. It will be better for us to examine each of these words, and seek for the actual facts which correspond to them in the period to which our attention is directed.

According to the Tories in general, the words Curia de more, or Concilium, Curia regis, Magnum or Commune Concilium, represent different assemblies. Concilium is a privy council composed of men chosen by the king to serve him in the government. This Concilium was at the same time Curia regis, a tribunal to judge of matters brought before the king, and presided over by him, or, in his absence, by the chief justice. It was called also Curia de more, because its assemblies were held, according to ancient usage, three times in the course of the year, at Easter, Whitsuntide, and Christmas, and was even adjourned regularly from one period to another, as is done to the present day by the Courts at Westminster.

According to the Whigs, all these words originally designated, and continued to the reign of Henry II. (1154‒1189) to designate the general assembly of the nobles of the kingdom, who necessarily assembled before the king in order to try cases, to make laws, and to give their concurrence to the government.

The first of these opinions puts too great a restraint upon the meaning of the words; the second generalizes too much on isolated facts, and assigns to them an importance which does not belong to them.

Curia de more, Curia regis, signi fied originally neither the merely privy council of the king nor his tribunal; it was evidently a grand assembly at which all the nobles of the kingdom were present, either to treat of the affairs of State, or to assist the king in the administration of justice. “The king,” says the Saxon Chronicle, “was wont to wear his crown three times a year—at Easter in Winchester; at Whitsuntide in Westminster; at Christmas in Gloucester; and then there were present with him all the great men of all England, archbishops and bishops, abbots and counts, thanes and knights.”—“A royal edict,” says William of Malmesbury, “called to the Curia de more all the nobles of every grade, in order that those sent from foreign countries might be struck with the magnificence of the company, and with the splendour of the festivities.”—“Under William Rufus,” says Eadmer, “all the nobles of the kingdom came, according to usage, to the king’s court, on the day of our Saviour’s nativity.” Anselm, Archbishop of Canterbury, having presented himself ad Curiam pro more, “was received with joy by the king and all the nobility of the kingdom.” In 1109, at Christmas, “the kingdom of England assembled at London, at the court of the king, according to custom.”

Curia regis designates generally the place of the king’s residence, and by an extension of meaning the assembly held in that place; this assembly was general, and not a mere gathering of permanent judges. William I., summoning the Dukes of Norfolk and Hereford to attend and receive judgment in Curia regis, “convoked,” says Ordericus Vitalis, “all the nobility to his court.” Several judicial assemblies held under William Rufus, are called ferme totius regni nobilitas, totius regni adunatio.1 Facts and expressions of the same kind are to be found in documents of the time of Stephen. Even under Henry II., when the Court of King’s Bench had already become a distinct tribunal, the expression Curia regis is applied to the general assembly collected for the transaction of public business. Henry convoked his Curia at Bermondsey, cum principibus suis de statu regni et pace reformanda tractans.2 The second of the Constitutions of Clarendon orders all the immediate vassals of the crown interesse judiciis curiae regis.3 The great Council of Northampton, which passed judgment in the complaints of the crown against Becket, is called Curia regis; it comprised not only the bishops, counts and barons, but besides these, the sheriffs and the barons secundae dignitatis.4 Lastly, under Richard I., the general assembly of the nobles of the kingdom is still called Curia regis in the trial of the Archbishop of York: “On this occasion there were present the Earl of Morton and almost all the bishops, earls and barons of the kingdom.”

A little consideration will show us the inferences to be drawn from all these facts. At this period the legislative and judicial powers were not separated; both of them belonged to the assembly of the nobles, as they had previously belonged to the Wittenagemot of the Saxons. When deliberations with reference to a subject or personage of importance were required, this was the assembly that judged, as it interposed on all great occasions in the government. Thus all these different expressions denote originally the same assembly, composed of the nobles of the kingdom who were called to bear their share in the government.

How did they interpose? What power, what functions belonged to them?—these are questions which were futile at that time: for no one then had determinate functions, but everything was decided according to fact and necessity. The facts are these: “It was the ancient usage that the nobles of England should at Christmas time meet at the king’s court, either to celebrate the festival, or to pay their respects to the king, or to deliberate concerning the affairs of the kingdom.” We find that these assemblies were occupied in legislation, in ecclesiastical affairs, in questions of peace and war, in extraordinary taxes, in the succession of the crown, in the domestic affairs of the king, his marriage, the nuptials of his children, dissensions in the royal family, in one word, in all matters of government, says Florence of Worcester, whenever the king did not feel himself strong enough to settle them without the assistance of the general assembly, or when the mode in which he had settled them had excited complaints in sufficient number to admonish him of the necessity of taking the advice of others.

As to the holding of these assemblies, they were not regular: the Whigs have attached too much importance to the three periods mentioned as the times of their annual convocation: these gatherings were rather of the nature of solemnities, or festivals, than public assemblies. The king at that time considered it very important that he should exhibit himself surrounded by numerous and wealthy vassals, species multitudinis;5 his force and dignity were thereby displayed, just as that of every baron was exhibited in his own dominions. Besides, under Henry II. and Stephen, these three epochs ceased to be regularly observed. The Tories, on the other hand, not considering the gatherings called Curiae de more and Curiae regis as political assemblies, have represented them as extremely infrequent, which they were not; there is not a single reign, from the Conquest to the times of King John, in which several instances of them are not to be found; only there was nothing settled and fixed in this respect.

The question of the constitution of these assemblies remains. Historians and charters say nothing definite on this point: they speak of their members as magnates, proceres, barones, sometimes as milites, servientes, liberi homines. There is every reason to suppose that the feudal principle was here applied, and that, as a matter of right, all the immediate vassals of the king owed to him service at court as well as in war. On the other hand, the number of the vassals attached to the crown under William I. exceeded 600; and there is no reason for believing that all these would present themselves at the assembly, nor are there any facts to indicate that they did so. It had already become, for the most part, rather an onerous service than a right; accordingly they only presented themselves in small numbers.

The word most frequently employed is barones: it would appear to have been originally applied to all the direct vassals of the crown, per servitium militare, by knightly service; we find that the use of the word was limited more and more till it was applied almost exclusively to those vassals of the crown who were sufficiently wealthy and large proprietors to have a court of justice established in the seat of their barony. It is even difficult to admit that this last principle was generally followed. The name of barones was finally applied only to those immediate vassals who were so powerful that the king felt himself obliged to convoke them. There was no primitive and constant rule to distinguish the barons from other vassals; but a class of vassals was gradually formed who were more rich, more important, more habitually occupied with the king in affairs of state, and who came at last to arrogate to themselves exclusively the title of barons.

The bishops and abbots also formed part of these assemblies, both as being heads of the clergy, and as immediate vassals of the king or of the barons.

No trace of election or of representation is to be found, either on the part of the king’s vassals who did not present themselves at the assembly, or on the part of the towns. These last had in general suffered very greatly by the Norman Conquest. In York the number of houses was reduced from 1607 to 967; in Oxford from 721 to 243: in Derby from 243 to 140; in Chester from 487 to 282.

These, then, are the essential facts which we may gather with reference to the constitution and power of the King’s Court, or general assembly of the nobles of the nation. We see how little influence must have been exerted by an assembly of so irregular a character; and we shall see this still more strikingly illustrated when we have brought it into comparison with the rights, the revenues, and all the powers which were at that time enjoyed by royalty.

LECTURE 5

In order to judge accurately of the power and importance of royalty at the period we are considering, we must first ascertain its actual position and resources; and we shall see by the extent of these resources, and by the advantages of this position, how feeble in its action on the royal power must have been the influence of the assembly of barons.

The riches of the Norman king were independent of his subjects; he possessed an immense quantity of domains, 1,462 manors, and the principal towns of the kingdom. These domains were continually being augmented, either by confiscations, causes for which were of frequent occurrence, or by the failure of lawful heirs. The king gave lands on a free tenure to those cultivators who would pay for them a determinate rent (free socage tenure). This was the origin of most of the freeholders, whether in the king’s domains or in those of his barons. The king, in his domains, imposed taxes at will; he also arbitrarily imposed custom-house regulations on the importation and exportation of merchandize; and he fixed the amount of fines and of the redemption money for crimes. He sold public offices, among others that of sheriff, which was a lucrative one on account of the share in fines which belonged to it. The county sometimes would pay for the right to nominate its sheriff, or to avoid a nomination already made. Lastly, the sale of royal protection and justice was a source of considerable revenue.

As to the immediate vassals of the king, they owed him, First, a military service of forty days whenever it was required; Secondly, pecuniary aid under three circumstances—to ransom the king when made prisoner, to arm his eldest son as a knight, or to marry his eldest daughter. The amount of this aid was undetermined up to the reign of Edward I.; it was then fixed at twenty shillings for the fief of a knight, and as much for every twenty pounds sterling value in land held in socage tenure. Thirdly, the king had a right to receive from his vassals a relief or fine on the death of the possessor of a fief; he was guardian if the heir were a minor, and enjoyed all the revenues of the fief till the majority of the heir; he also had a control over their marriages, that is to say, the vassal of a king could not marry without his consent. All these rights were indeterminate, and negotiations were substituted for them in which the greater force always had the advantage. Fourthly, the dispensation from feudal military service gave rise to an impost termed escuage, a kind of ransom-money fixed arbitrarily by the king, as representative of a service to which he had a claim; and he even imposed it in many cases on his vassals when they would have preferred to serve in person. Henry II., by his purely arbitrary will, levied five escuages in the course of his reign.

In addition to these taxes levied by the king, another must be mentioned called the danegeld, or tax paid for defence against the Danes; this tax was raised several times during this period on all lands throughout the kingdom. The last example of it is to be found in the twentieth year of the reign of Henry II.

By means of these independent revenues and arbitrary taxes, the Norman kings constantly kept up bodies of paid troops, who could enable them to exercise their power without restraint, which did not take place till a considerably later period on the Continent.

Lastly, from William the Conqueror till Henry II. the judicial power tended always to concentrate itself in the hands of the king. In this last reign the work was very nearly accomplished: how this came to pass, I will endeavour to show.

Originally the jurisdictions that co-existed were as follows: 1. The courts of hundred and the county-courts, or meetings of the freeholders of these territorial subdivisions, under the presidency of the sheriff: 2. The courts-baron, or feudal jurisdictions: 3. The grand court of the king, where the king and the assembled barons administered justice to the barons in cases between any of themselves, or in cases of appeal, which could only take place when justice had been refused in the court of the manor or county.

The Court of Exchequer, instituted by William the Conqueror, was, at first, only a simple court for receiving the accounts of the administration of the king’s revenues, and those of the sheriffs, bailiffs, &c., and for judging the suits that arose on this subject. It was composed of barons, chosen by the king to form his council, and to aid him in his government. In proportion as the larger assembly, the Curia regis, came to be held less frequently, so did the Court of Exchequer gain in importance. The barons who composed it began to judge on their own responsibility, and alone, in the absence and before the convocation of the assembly; this change was introduced by necessity, confirmed by custom, and finally sanctioned and established by law. About the year 1164, another royal court of justice, distinct from the Court of Exchequer, arose out of it, the members of which, however, were the same as those composing the Court of Exchequer. The kings lent their assistance to this change, because it benefited their revenues. At this period were established writs of chancery, which gave to purchasers the right to apply at once to the royal justice, without previously passing the subordinate courts of justice. Soon the ignorance of the freeholders, who composed the county-courts, necessitated the same extension of the royal justice there also, and, in the reign of Henry I., itinerant justices were sent into the counties, in order to administer there in the same way as was done by the Court of Exchequer. This institution was in full vigour only during the reign of Henry II.

In this way the predominant influence of the king, in judicial order, was established; this was a powerful instrument in producing centralization and unity, and yet, as the royal judges only interposed their services as supplementary to the institution of the jury, and did not substitute them for it—for questions of fact and questions of right remained distinct—the germ of free institutions, that existed in the judicial order, was not entirely destroyed.

A king invested with such powerful resources could with difficulty be restrained by an irregular assembly; accordingly the government of the Norman kings was almost always arbitrary and despotic. Persons and property were never in security; the laws, taxes, and judicial sentences were almost always merely an expression of the royal will.

When we consider these facts collectively, we may be led to two very opposite results, according to the point of view from which we regard them: on the one hand, we see the general assembly of the nation interfering pretty frequently in public affairs, not by virtue of any particular official character it possessed, nor for the purpose of exercising any one special right, such as that of making general laws, or of voting supplies, but on occasions widely differing from one another, and for the purpose of acquiescing in the entire course of government. Laws, external relations, peace, war, ecclesiastical affairs, the judgment of important cases, the administration of the royal domains, nominations to great public offices, even the interior economy and proceedings of the royal family, all seem to belong to the province of this national assembly. No matter is foreign to it, no function forbidden to it, no kind of investigation or of action refused to it. All distinction of provinces, all lines of demarcation between the prerogatives of the crown and those of the assembly, appear to be unknown; we might say that the entire government belonged to the assembly, and that it exercised in a direct way that activity, that general supervision, which belongs indirectly to the mature and perfected representative system, by virtue of its influence on the choice of those who are to be the depositaries of power, and by means of the principle of responsibility.

On the other hand, if we forget the assembly and examine the royal power, as isolated, we shall see it exercising itself in a multitude of cases, in as absolute and arbitrary a manner as if no assembly had existed to share in the government. The king, on his own responsibility, made laws, levied taxes, dispossessed proprietors, condemned and banished important persons, and exercised, in a word, all the rights of unlimited sovereignty. This sovereignty appears entire, sometimes in the hands of the assembly, sometimes in those of the king; when the assembly proceeds to interfere in all the details of government, we do not findany complaint from the king, as if an encroachment had been made on his prerogatives; and when, on the other hand, the king governs despotically, we do not find the assembly bestirring itself to protest against the extension of royal power, as a blow aimed at their rights.

Thus we are met by two classes of facts, simultaneously existing in this infancy of society—facts which seem to belong to a fully developed system of free institutions, and facts which are characteristic of absolute power. On the one hand, the aim of free governments, which is, that the nation should interfere, directly or indirectly, in all public affairs, seems to be attained; on the other hand, the independent and arbitrary domination of the royal power appears to be recognized.

This is a result that must necessarily arise in the disorder of a nascent and troubled stage of civilization. Society is then a prey to chaos—all the rights and all the powers of a community co-exist, but they are confounded, unregulated, unmarked by limits, and without any legal guarantee—freemen have not yet abdicated any of their liberties, nor has force yet renounced any of its pretensions. If any one had said to the barons of William, or of Henry I., that they had nothing to do with affairs of State, except to comply when the king demanded an impost, they would have been indignant. All the affairs of the State were theirs, because they were interested in them; and when they were called upon to deliberate concerning peace or war, they believed that they were exercising a right belonging to them, and not making a conquest over royal authority. No freeman, who was strong enough to defend his freedom, recognized any right in another person to dispose of him without his consent, and found it a very simple matter to give his advice on questions that were interesting to him. The king, in his turn, measuring his right by his force, did not recognize in any person, nor, consequently, in any assembly, the legal right to prevent him from doing that which he was able to do. There were then, properly speaking, no public rights or powers at all; they were almost entirely individual and dependent on circumstances; they are to be found, but in a state of isolation, unconscious of their own nature, and, indeed, of their very existence.

In this disorderly state of things, the able and energetic government of William I., Henry I. and Henry II. caused the royal power gradually to assume a much more general and consistent character. Accordingly, national assemblies became by degrees more rare and less influential; under Stephen, they almost entirely disappeared. The barons no longer had a common meeting-point, and were more occupied with the rule of their own domains than with any association with the royal power for the purpose of controlling or restraining it. Each devoted himself more exclusively to his own affairs, and the king, following this example, made himself almost the sole master of those of the State. He availed himself of the need of order and regularity that made itself felt every day, in order to constitute himself, in some sort, the dispenser of them. By these means he soon became the first in name, as well as the most powerful in fact. Through him, the roads became more secure; he protected the feeble, and repressed robbers. The maintenance of public order devolved upon the royal power, and became the means of extending and strengthening it more and more. Whatever the king had possessed himself of by conquest, he vindicated as his own by right. Thus was formed the royal prerogative.

But at the same time different circumstances concurred to draw the barons forth from their isolation, to unite them among themselves, and to form them into an aristocracy. The Anglo-Norman throne was successively occupied by three usurpers, William II., Henry I., and Stephen. Invested with a power whose title was doubtful, they felt the necessity of bringing the barons to recognize their claims; hence the first charters were conceded. No one of the barons was powerful enough, in himself, to restrain the threatened extension of royal power, but they formed the habit of making coalitions; and as each of the barons entering into such coalitions, felt the necessity of attaching his vassals to himself, concessions were made to them also. The absence of large fiefs, in England, served the cause both of power and of liberty; it allowed power to form itself into unity with greater facility, and it obliged liberty to seek for guarantees in the spirit of association. That which finally contributed in the most decided way to form and consolidate this aristocratic coalition, was the irregular and usurping conduct of John during the long absence of Richard Coeur-de-Lion, and the disorders and civil wars which were naturally the results of this absence. In the midst of these disorders the government fell into the hands of a council of barons, that is to say, of a portion of the aristocracy. Those who had no share whatever in the central power did not cease to control it, and to regard it as rightfully theirs; in this way, the one party formed a habit of governing, the other that of resisting a government which was in the hands of their equals, and not of the king himself. John, by his cowardice and ill-judged familiarity, had brought the throne into disrespect before he himself ascended it, and his barons much more easily conceived the idea of resisting as a king, one whom they had despised as a prince.

Thus, in the space of a hundred and thirty years, two elements in the State, which were at first confounded and had almost acted in common, were separated and formed into distinct powers—the royal power on the one hand, and on the other, the company of barons. The struggle between these two forces then commenced, and we shall see royalty continually occupied in defending its privileges, and the aristocracy as unweariedly busying itself in the endeavour to extort new concessions. The history of the English charters, from the reign of William I. to that of Edward I., who granted them a general confirmation, is the history of this struggle, to which England is indebted for the earliest appearance of the germs of a free government, that is to say, of public rights and political guarantees.

LECTURE 6

Liberties are nothing until they have become rights—positive rights formally recognized and consecrated. Rights, even when recognized, are nothing so long as they are not entrenched within guarantees. And lastly, guarantees are nothing so long as they are not maintained by forces independent of them, in the limit of their rights. Convert liberties into rights, surround rights by guarantees, entrust the keeping of these guarantees to forces capable of maintaining them—such are the successive steps in the progress towards a free government.1

This progress was exactly realized in England in the struggle, the history of which we are about to trace. Liberties first converted themselves into rights; when rights were nearly recognized, guarantees were sought for them; and lastly, these guarantees were placed in the hands of regular powers. In this way a representative system of government was formed.

We may date from the reign of King John as the period when the efforts of the English aristocracy to procure a recognition and establishment of their rights became conspicuous; they then demanded and extorted charters. During the reign of Edward I., the charters were fully recognized and confirmed; they became real public rights. And it was at the same epoch that a Parliament began to be definitely formed, that is to say, the organization of political guarantees commenced, and with it the creation of the regular power to which they are entrusted.

I have shown how the two great public forces—royalty and the council of barons, were formed, cemented, and brought into juxtaposition. We must now follow these forces into the combats in which they engaged their energies in order to have their reciprocal rights recognized and regulated; and to do this we must trace the history of English charters. I shall then enquire how the guarantees were organized, that is to say, how the Parliament was formed.

When William the Conqueror arrived in England, his position with respect to the Norman barons and knights had been already regulated on the Continent by the feudal law; their respective rights were fixed and recognized. After the Conquest, fear of the Anglo-Saxons kept the king and the Normans so far united, that neither of them cared much to extort concessions from the other. Very different, however, were the relations between William and his English subjects. He had to adjust these relations—here was a legislation to be created, and rights to be recognized or contested. The English made the most strenuous efforts to preserve their Saxon laws, and it appears to have been in the fourth year of William’s reign (the year 1071) that they succeeded in gaining an assurance that these laws should be maintained. There is reason to believe that on this occasion he granted the charter intituled, “ Charta regis de quibusdam statutis per totam Angliam firmiter observandis.”2 Some have asserted that this charter was not granted till nearly the end of William’s reign, but I see no reason for assigning any other period to it than that which I have mentioned.

This charter, the authenticity of which* has been sometimes questioned, I think on insufficient grounds, is a kind of vague declaration containing the general principles of feudal political law. William, in it, recognizes rights which he often allowed himself to violate; for his power rendered the violation of his promises easy. The Norman barons did not form themselves into any body, unless perhaps against the English; they were all too much occupied in the work of establishing themselves in their new domains. If they sometimes roused themselves to oppose the tyranny of William, their revolts were only partial, and the king adroitly used the English in order to put them down. His son, William Rufus, by adopting the same policy, obtained similar success. But Henry I. had to pay for his usurpation; the charter which he granted was the inevitable consequence of his possession of the throne.

This charter of Henry’s contains a solemn promise to respect all ancient rights. In it the king promises no more to follow all the evil practices by which the kingdom of England was oppressed under the king his brother, that is to say, not to appropriate the revenues of vacant abbacies and bishoprics, nor again to sell or farm ecclesiastical benefices, and to permit the heirs of his vassals to inherit their possessions on paying a just and legitimate fine. He assures to his barons their right to give their daughters or sisters in marriage to whomsoever they will, provided it be not to one of the king’s enemies; he grants to widows who are left without children the possession of their dowry and jointure, and liberty to marry again according to their free choice; and he renounces the right of guardianship, placing it in the hands either of the wife or some relative. He gives to all his vassals the right to dispose of their property either by gift or by will, renounces the right arbitrarily to levy taxes on the farms of his vassals, abandons the forests which William Rufus had usurped, and abolished feudal aids, even in the three cases which we have already speci fied. Lastly, he withdraws the right of coining from the towns and counties, pardons all the offences and crimes committed before his reign, and recommends his vassals to allow their vassals to enjoy all the advantages which he accords to them.

These concessions were merely recognitions of rights, without guarantees. Henry, accordingly, despite his oaths, violated these magnificent promises; and the abuses which they ought to have removed were not diminished in any degree, during the whole extent of his reign.

Another charter was granted by Henry I. to the city of London, by which it was authorized, among other things, to elect its own sheriff and chief magistrate, to hold its accustomed assemblies, not to pay either the danegeld or any other scot, or imposts for works along rivers, and not to give lodging to the retinue of the king.

Lastly, we find new promises and new concessions made by Henry I. in 1101, when his brother Robert laid claim to his rights. Wishing to assure himself of the fidelity of his barons, Henry assembled them at London, and delivered to them a speech, in which, after having given a hideous representation of Robert’s person, he added:—“As for me, I am truly a mild king, modest and pacific; I will preserve to you, and diligently guard your ancient liberties, which I have before sworn to maintain; I will listen with patience to your wise suggestions, and will govern you justly after the example of the best princes. If you desire it, I will confirm this promise by a written charter, and I will swear afresh to observe inviolably all the laws of the holy king Edward,” &c. &c.

These promises, made in a moment of danger, were always forgotten as soon as ever the danger had disappeared. During his entire reign, Henry continually violated the charter to which he had bound himself by oath, both as regards matters relating to feudal dependence, and in the levying of imposts. According to the historians, he levied each year a tax of twelve pence on every hide of land, a tax which was probably identical with the danegeld.

Stephen, Henry’s successor, granted charters to his subjects as Henry had done, and these charters were also the result of usurpation. He published two; the first only confirmed the liberties granted by Henry I., and the laws of Edward the Confessor. The second is remarkable as containing a promise made by Stephen to reform the abuses and exactions of his sheriffs. At this period public offices were farmed, and those who filled them, seeking to gain all the advantages possible from them, were far more oppressive on their own account than on account of the king. Accordingly it was no difficult matter to appeal to the king against his own officers. Such a mode of appeal, however, indicates that legal and regular guarantees were unrecognized and but little thought of. The barons however began to procure them, by force. They obtained from the king permission to fortify their castles and put themselves in a state of defence. And the clergy on their part, while taking the oath offidelity, attached to it a condition that they should be released from its obligation as soon as the king should trespass on ecclesiastical liberties.

The charter granted by Henry II., about the year 1154, still expresses nothing more than a recognition of rights; it does not contain any new promise, or any concession of guarantees. The reign of this prince, I need hardly remind you, was entirely occupied with his disputes with the clergy, with the revolts of his sons, and with his conquests, both on the Continent and in Ireland. No important differences were brought into discussion between him and his barons; no progress in existing institutions is visible, and we may say that the reign of Henry II., considered from this point of view, was orderly and stationary.

If, however, the king, so far as his relations to his barons were concerned, obtained an almost uninterrupted submission, and caused the demolition of most of those forti fied castles which had been constructed during the preceding reign, the towns on the other hand, and especially the city of London, increased in strength and importance, and the aristocracy became every day more compact by means of the fusion of the Normans and the English, a fusion which was almost completed during this reign, at least among the upper classes.

The fact of this period which bears most importantly upon the subject which we have under consideration, is the substitution of the escuage for the personal service of the vassals. It is under the reign of Henry II. that we find this impost collected for the first time, at least in the form of a general measure. The establishment and limitations of the escuage became soon the principal object of contention between the king and his barons. The use which the kings came to make of the resources derived from this impost was fatal to them, for they employed it in order to keep up armies of foreign mercenaries, especially Brabanters; and by these measures, they gave a new motive to the English barons to coalesce. The expulsion of foreign soldiers became at length one of the continually recurring demands of the barons.

Henry II. towards the close of his reign, imposed by his own authority a tax of one sixth on all moveable property. He abandoned the danegeld.

The reign of Richard, which was entirely occupied with his brilliant but unfortunate expeditions, offers nothing especially illustrative of the history of institutions. The absence of the king and the weakness of the royal power supplied the feudal aristocracy with opportunities for extending their importance; but they did not at that time take advantage of their superiority to procure a recognition of their rights—not until the reign of John did the struggle become violent and the victory decisive.

LECTURE 7

During King Richard’s absence, the administration of the kingdom had fallen into the hands of the barons: the feudal aristocracy had begun again to interfere directly in the government, both by way of encroachment and of resistance. Still, the acts of the barons had no longer the same character which they possessed under the preceding reigns; they no longer offered an open resistance; they did not demand any new charters; they did not petition for the observance of former ones: but they silently collected their forces in anticipation of astruggle which was to be decisive. We find them submitting to the exactions which Richard imposed on all classes of society, both for his crusade and for his ransom. Nevertheless, the old maxims as to the necessity of obtaining the consent of the barons to every extraordinary imposition, had revived with new vigour. This right of giving consent to tributes was vindicated with an increasingly determined firmness; and in the first assembly, which Richard held at Nottingham after his return from the East, he was unable to establish an im-post of two shillings on every hide of land until he had obtained the consent of his barons. Already every tribute that was levied on the sole authority of the king had begun to stir up a spirit of resistance. This resistance declared itself as soon as John ascended the throne, and the opposition which had been preparing during the reign of Richard then started into prominence.

The reign of John may be divided into three epochs: from 1199 till 1206, he was occupied with his quarrels with the king of France, and with the struggle which arose from the refusal of the barons to second him in his continental enterprises. From 1206 to 1213, John was occupied by his disputes with the Pope and the clergy. Lastly, from the year 1213 to the close of his reign, his position with reference to the barons and the clergy became more and more hostile; it revealed to him their power and his own feebleness; and constantly succumbing before them, we see him yielding one point after another to the clergy and barons, who were always united in their attacks upon him, until at length he granted that celebrated charta usually called Magna Charta, which is a lasting monument of John’s defeat and the abiding basis of the English constitution.

John was not the lawful heir to the crown; it belonged to his nephew, Arthur, Duke of Bretagne, whose rights were further confirmed by a testament of Richard. Nevertheless, by his largesses and his yielding disposition, John found no difficulty in usurping the throne of England. The opposition was stronger in his continental possessions; the feudal ideas there prevailing favoured the system of representation, and the people were more disposed to recognize the claims of a son than those of a brother. Anjou, Poitou, Maine and Touraine declared for Arthur. In 1201 (others say in 1204) John demanded of the barons, whom he had assembled at Oxford, that they should assist him in the war which he purposed carrying on in France. They required, as the price of their assistance, that the king should promise to restore to them their liberties and privileges. John, without having granted anything to them, succeeded in winning over one after another, until he had obtained from each individually what had been refused to him by all when assembled. Nevertheless, this opposition showed that the coalition among the barons had taken shape and consistence.

John, who had as yet done nothing to deserve that his usurpation should be overlooked, rendered himself odious by an imprudent divorce, and by vexatious indignities. He introduced into his retinue, bullies, whom he called champions of royalty; and he obliged the discontented barons to enter into the lists with them, and to settle, by these pretended judicial combats, their disputes with the crown. At length, his exactions, his tyrannical proceedings, and above all, the murder of Arthur, whom he is said to have assassinated with his own hand, excited against him an almost general rising. Abandoned by his barons, driven from Normandy, Anjou, Maine, Touraine, and a part of Poitou, John, instead of conciliating the minds of his people, only acted in such a manner as to alienate them more and more, and only defended himself by rendering himself more odious. A new escuage of two marks and a half for every knight’s fief was extorted from the barons. John had, therefore, to endure a new refusal when he asked them a second time to follow him to the Continent. In vain was it that he employed those means which had before succeeded; he was obliged to yield, and to allow Philip Augustus to take possession of Normandy, and reunite it to the crown of France.

It was not enough for John that he had entered into hostilities with the lay aristocracy; he still further made himself inimical to the clergy. On the death of the Archbishop of Canterbury, the Augustin monks had arrogated to themselves the right of appointing his successor without the consent of the king. John, nettled by this invasion of his prerogatives, united with the bishops, who also protested against an election in which they had taken no part, and in concert with them, nominated the Bishop of Norwich to the vacant see. Upon this, Innocent III. interfered in the dispute; but without confirming either of the two elections, he ordered the English clergy to choose Cardinal Stephen Langton. The king, enraged against the Court of Rome, drove all the monks from Canterbury, and made himself master of their revenues. Accordingly, the Pope excommunicated the monarch, placed the whole kingdom under his ban, and released his subjects from the oath offidelity which they had sworn to John. Moreover, he charged Philip Augustus to execute his decrees, and offered to him the crown of England. Philip eagerly accepted the present, while John, frightened by the double danger which pressed upon him, demanded, but in vain, assistance from his barons; he had acted unjustly towards them, and now he found them indifferent to his misfortunes. At last, stripped of all resources and left without hope, he sought safety in submission, and saved himself by means of base servility: he declared himself a vassal of the pope, and engaged to pay him annually a tribute of a thousand marks.

After John had thus ransomed his crown, he soon endangered it again by renewed acts of imprudence; his base tyranny, and his criminal attempts on the wife of Eustace de Vesci, roused the barons against him, and their opposition was directed and stimulated by the primate Langton.

It is not to be wondered at that the feudal aristocracy should act under the guidance of an ecclesiastic; the two orders made common cause, and this coalition, which preceding kings had always endeavoured to prevent, was one of the effects of John’s odious and absurd conduct. He forgot that the royal power could only maintain itself so long as the power of the clergy and that of the barons balanced one another; when they united, he was obliged to succumb. Their union was the result of John’s base submission to the Holy See; the English clergy, tired of the despotism of Rome, and regretting the loss of their privileges, openly embraced the cause of national liberty.

Such was the pervading feeling, when (August 25, 1213) an assembly of the barons was convened at London. In one of their meetings, Cardinal Langton informed them that he had found a copy of the charter of Henry I., which was then entirely forgotten; this charter was read to the assembly, and received with enthusiasm. Another meeting was held at Saint Edmundsbury (November 20, 1214), and there each baron, laying his hand upon the altar, took an oath that he would use his efforts to force the king to restore in full vigour the charter of Henry I. They soon presented themselves at London in arms, and on January 5, 1215, they demanded from John, in a formal and positive way, the renewal of this charter, as well as of the laws of Edward the Confessor. John, terrified by their firmness, requested that some leisure might be granted to him in order to think over these demands, and accordingly his answer was deferred till Easter. During this interval, he endeavoured to introduce division among his enemies, and in the first place, wishing to conciliate the clergy, he granted them by a charter the liberty of electing their own bishops and abbots, and sent William de Mauclerc to Rome to complain of the audacity of the barons. They too despatched Eustace de Vesci to Rome, to represent to the pontiff the justice and sacredness of their cause. This embassy, however, failed in its object; the Pope condemned the barons: but they were not to be intimidated from their purposes, and John, determining to make another effort in order to secure the support of the church, took the cross on the 2nd of February, 1215, and made a vow to lead an army into Palestine.

The respite, however, which the barons had granted to the king came to an end, and they met again at Stamford in Lincolnshire, on the 19th of April, 1215, being followed by nearly two thousand knights in arms. The king asked them what their claims were; they made at Stamford the same answer as they had made in London, and presented the charter which they had sworn to establish. “And why do they not demand my crown also?” exclaimed John in his fury; “by God’s teeth, I will not grant them liberties which will make me a slave.” This answer was taken as a declaration of war, and on the 5th of May following, the barons met at Wallingford, solemnly renounced their oath of allegiance, and at the same time named Robert Fitz-Walter general of the “army of God and of Holy Church.”

War was declared: in vain did the Pope address letters to the barons, in which he commanded them to desist from their enterprise; the hostilities which had been commenced only continued with greater vigour, and on the 24th of May, the triumphant barons took possession of London with the consent of the citizens. John left the city and retired to Odiham, in the county of Hampshire, with no other escort than seven knights. From his retreat he attempted, without success, to enter into negociations; he proposed the intervention of the Pope, but this was also refused: ba ffl ed in all his attempts, he was at length necessitated to acquiesce in the law which had been forcibly imposed on him.

On the 13th of June, a conference was opened in the plain called Runnymead, between Windsor and Staines. The two parties had separate encampments, as declared enemies; after some trifling debates, the king at first adopted the preliminary articles, and four days after, on the 19th of June, 1215, he made the grant of the famous act known by the name of the Great Charter—Magna Charta.

This charter, the most complete and important that had yet appeared, may be divided into three distinct parts; one referring to the interests of the clergy, another regulating those of the nobility, and the third, those belonging to the people. This methodical division is not taken from the order in which the articles of the actual charter are distributed, but I have here adopted it in order to render my account of it more natural and distinct.

The Great Charter refers but little to ecclesiastical interests, since they had been settled by the charter already granted to the clergy. All that was therefore required was that this should be confirmed. This accordingly is done in the first article, which grants a general confirmation to all ecclesiastical immunities and privileges.

The privileges of the laity, on the other hand, were more uncertain, and more strongly contested; it was therefore necessary that they should be minutely investigated and separately conceded. The Great Charter is almost entirely devoted to the settlement of the rights, and the confirmation of the privileges, claimed by the laity.

In the first place, it determines with precision what had been obscure and ambiguous in the feudal laws; and it fixes the amount of relief which the immediate or indirect inheritors of fiefs should pay. Hitherto this relief had been indeterminate. (Arts. 2 to 3.)

Then follow the precautions prescribed respecting the marriage of feudal wards, and those which regard the widows and children of vassals. (Arts. 6 to 8.)

The right and mode of collecting aids and escuages, are regulated by the two following articles:

This charter is the first document in which we find a distinction established between the greater and lesser barons, and the higher and lower clergy; an important fact, since it may perhaps be regarded as the original source of the separation between the two Houses of Parliament.

Lastly, several articles have for their object to limit the rights of the king on the lands of his tenants, to fix the amount of fine imposed on beneficiaries according to the gravity of their offence, to determine the length of time during which lands should remain sequestrated on account of felony; in one word, to give to the barons greater independence and security than they had ever before enjoyed.

These are the principal enactments of the Great Charter in favour of the nobility; up to this point, we find only sanctions given to particular privileges, we have only met with that which favours the interests of certain classes in society. But it contains also clauses of wider and more general application; it has for its object also the interests of the nation as a whole.

First of all, almost all the immunities granted to the barons with respect to the king, the vassals obtained with respect to their lords. These were not allowed from this time to collect aids and escuages on their lands, except in the same cases and in the same manner as the king. (Art. 15.)

Justice was for the future to be administered in a fixed and uniform manner; the following are the articles in which this important provision is expressed:

Moreover, the king promises to appoint only capable and upright judges (Art. 41); to forbid their condemning any person whatever, without having previously heard the witnesses (Art. 38); to reinstate every man who had been dispossessed without legal judgment (Art. 32); to repair the injuries committed under Henry II., and Richard I. (Art. 53); to put a stop to the imposts for the construction of bridges (Art. 23); and to interdict annoyances of all kinds inflicted either on townsmen, merchants, or villeins (Arts. 20, 26, 28, 30, 31).

He grants and assures to the city of London, as well as to all other cities, boroughs, towns, and harbours, the possession of their ancient customs and liberties (Art. 13).

Lastly, the 41st Article provides that all merchants shall have full and free liberty of entering England, of leaving it, of remaining there, and of travelling there by land and by water, to buy and to sell without being subject to any oppression (male tolta) according to the ancient and common usages, &c.

These, then, are the concessions made to promote the interests of all.

It is not, however, enough that rights should be recognized and promises made; it is further necessary that these rights should be respected, and that these promises should be fulfilled. The 61st and last article of the Great Charter is intended to provide this guarantee. It is there said that the barons shall elect twenty-five barons by their own free choice, charged to exercise all vigilance that the provisions of the Charter may be carried into effect; the powers of these twenty-five barons is unlimited: if the king or his agents allow themselves to violate the enactments of the Charter in the smallest particular, the barons will denounce this abuse before the king, and demand that it be instantly checked. If the king do not accede to their demand, the barons shall have the right, forty days after the summons has been issued by them, to prosecute the king, to deprive him of his lands and castles (the safety of his person, of the queen, and of their children, being respected), until the abuse has been reformed to the satisfaction of the barons.

Though such a right was granted, no guarantee was thereby given; it only authorized civil war; it was to perpetuate the struggle indefinitely, and formally to leave the ultimate decision of the question to force. It was still far from being a regularly constituted political guarantee; but the spirit of that age was not capable either of discovering or of comprehending such a guarantee—it could only understand the recognition of its rights. However, the forcible guarantee which the Great Charter established was so far valuable, inasmuch as it centralized the feudal aristocracy by organizing the council of barons.

It has been often said that the Great Charter would not have been supported by the barons had not it not been for its influence on their special interests. This opinion is untenable: how is it possible that at least a third of the articles should have related to promises and guarantees made on behalf of the people, if the aristocracy had only aimed at obtaining that which should benefit themselves? We have only to read the Great Charter in order to be convinced that the rights of all three orders of the nation are equally respected and promoted.

Another question has been raised, as to whether John did or did not grant a special charter relating to forests at the time when he granted the Great Charter. Mathew Paris is the only author who speaks of this charter of forests, and there are several reasons why his authority should in this matter be rejected. First of all, the preliminary articles of the Great Charter contain nothing on this point; in the second place, Articles 44, 47, and 48 in the Great Charter itself settle whatever relates to forests; and lastly, the king and the Pope, in their correspondence prior to these events, make no allusion to this twofold concession.

When the king had distinctly adopted each article of the Great Charter, the agreement between him and his barons, which had been concluded on the 15th of June, was executed in order to ensure the fulfilment of his engagements. The guarding of the city of London was entrusted to the barons till the 15th of August following, and that of the Tower to the Archbishop of Canterbury.

John dissembled at first, and appeared to submit without any reserve to all the sacrifices which were imposed upon him; but such a mask soon became intolerable to him. After a short time he broke out into complaints and threatenings, and retired in fury to the Isle of Wight. While there, he procured the enrolment of an army of Brabanters in order to regain his power by battle, and despatched a messenger to Rome beseeching for aid against the violence that had been done him. Innocent III., hearing what had occurred, and irritated by the audacity of the barons, whom he called his vassals, annulled the Great Charter, and excommunicated all the barons who had joined in the rebellion.

The king, trusting to this powerful support, threw aside the mask, and retracted all his engagements. But he speedily perceived that those spiritual weapons, which had recently been so potent when opposed to him, were now without value when placed in his own hands. Archbishop Langton refused to pronounce the sentence of excommunication. He was summoned to Rome and suspended, but in vain; the clergy sustained him in his disgrace, and confirmed his refusal. John attempted ineffectually to divide the two orders—whenever he made any preparations for fighting, they became inseparable allies.

John had now no other hope except in the support of his foreign mercenaries; he made one last effort, and in the month of October 1215, war was again enkindled between him and the barons. The attack was unforeseen; the barons being suddenly surprised retreated before the king, who advanced in triumph as far as Rochester Castle, of which he made himself master after an obstinately resisted siege. He made prisoner its governor, William d’Albiney, one of the twenty-five barons appointed to guard the maintenance of the charter, and the most distinguished captain among them: this was an irreparable loss to their party; and from this moment the king met with no regular resistance. His tyranny might now glut itself with vengeance; he let loose his satellites, and the entire kingdom was soon filled with the devastating effects of his rage.

Nevertheless, some barons in the north still resisted him manfully; and the remnants of the coalition combined with them; but feeling themselves too weak, they sought in their turn safety from a foreign ally. The crown of England was offered in their name to Prince Louis, son of Philip Augustus, who thereupon sent an army to attempt the conquest of England.

Louis had scarcely landed when the aspect of affairs entirely changed. John, abandoned by his friends and by his soldiers, lost in a short time all that he had recovered. The entire kingdom fell into the hands of his young rival, and Dover was the only town which remained faithful to John. Prince Louis, however, though he had so far succeeded, did not establish himself on his newly acquired throne. The predilection which he invariably manifested for the French nobles could not but be distasteful to the English barons, and the avowals of the Count of Melun, made on his deathbed, had the effect of detaching almost all the nobility of the kingdom from the side of Louis. This noble induced the barons to distrust the king, who, he affirmed, fully intended to dispossess all of them, and to distribute their lands among his favourites and natural subjects. This disclosure, whether it was true or false, had a powerful effect on the minds of the barons, and most of them renewed their allegiance to their former king.

John had now set his army on foot, and fortune seemed to promise him new successes, when death surprised him on the 17th of October, 1216. This event was more fatal to Louis than a lost battle could have been. The hatred of the English to their king died with him—they hastened to rally round his young son—a general defection quickly ruined the already tottering cause of the French prince, and after he had continued this useless struggle for a short time, he abandoned a throne for the offer of which he was indebted merely to the accidental distress of the English barons, and which he would never have been able to secure by the mere force of his arms.

LECTURE 8

Hitherto we have only seen, in the charters, recognitions of rights more or less open and complete; they are transactions between two rival powers, one of whom gives promises while the other establishes rights; but there is no power to guarantee that these promises shall be faithfully kept and these rights duly regarded. The only curb placed on royalty is the prospect of a civil war that is always threatening to break out—a remedy which is incompatible with order and stability, two elements which are indispensable to a free government.

Under the reign of Henry III., the feeling began to be entertained that civil war is an evil guarantee; and other means of preventing the violation of oaths were sought and dimly apprehended. The charters which were obtained in this reign have still as their chief aim the obtaining of new concessions and promises; but efforts towards the formation of guarantees are also apparent, and we may now trace the first attempts after a legal and efficient constitution.

This reign must be regarded under the two aspects which have been indicated. Our object at present being only to follow the history of English Charters, we shall examine the facts of this period only under the first point of view: when we come to treat of the formation of the Parliament, we shall search there for the first attempts after an organized constitution.

Henry, who was but a child when his father died, found an able protector in William, Earl of Pembroke, Marshal of England, who was then commander of the royal armies. Pembroke had been a faithful servant to King John, and transferred to the son that friendship which he had given to the father. His only thought was that Henry should succeed to the throne, and accordingly the ceremony of coronation was performed at Gloucester, on the 28th of October, 1216. Afterwards, in a council of barons assembled at Bristol, on the 11th of November, he assumed the title of Regent, and in order to render the cause of the young king popular he granted a new charter in his—the king’s—name. This charter corresponded, with the exception of a few modifications, to that given by King John. All the articles are omitted which refer to the establishment of escuages, to the liberty of entering and leaving the kingdom, to the preservation of forests and dykes, and to the customs of the counties; moreover, the article was suppressed which granted the right of resistance by armed force in case the king should violate his promises. These suppressions were not, however, definitely concluded; it is stated in the charter that “the prelates and lords have determined that these things shall remain open, until they have more fully deliberated concerning them.”*1

We see by this that the barons at that time showed themselves less exacting than they had been during John’s reign, or rather that they no longer stipulated for any other interests than those which personally affected themselves, neglecting those belonging to other classes in the nation.

However this may be, this new charter produced the effect which Pembroke had desired; it finally broke up the party which had been formed in favour of Prince Louis of France, and strengthened that of King Henry. The French, however, had still some adherents left; the city of London especially persisted, with an obstinate determination, in remaining faithful to them. But after numerous reverses, they could hold out no longer; a treaty was concluded between the two monarchs on the 11th of September, 1217; Louis abandoned all pretensions to the crown, left England with the remnant of his party, and Henry remained in quiet possession of the sovereignty.

The retreat of the French re-established harmony in the kingdom, but in order to render the concord more certain and immediate two more charters were granted. One was similar to the preceding; only one remarkable modification is to be found, namely the decision that the escuage should be levied as in the time of Henry II. The other is known under the name of the Charta de Foresta, being the same that has been erroneously attributed to King John: it has only one special aim, and contains nothing but a series of regulations as to the extent and limits of the forests belonging either to the nobility or to the crown.

These charters were perpetually violated by the agents of power. For several years these infractions did not occasion more than partial complaints, but at length, in the year 1223, the protestation became general and urgent. The council of barons was summoned to London, where they demanded a new confirmation of the charters. One of the councillors of the regency, William de Bri-were, ventured to oppose, saying that “all these liberties had been extorted from the king;” but the Archbishop of Canterbury smartly reproved him, telling him that if he loved the king, he at all events would not venture to trouble the kingdom. The young king promised that the charters should be henceforth observed, and twelve knights were appointed in each county, who should enquire what were, according to ancient usages, the rights of the king and the liberties of his subjects.

Still, new anxieties soon excited new protestations. Since the preceding reign the barons had held in trust most of the royal castles and domains, and this was the principal guarantee they had that their treaties should be observed. Suddenly their possession of this guarantee was threatened: a bull of Pope Honorius III., which declared Henry to be of age when he was seventeen years old, ordered at the same time that all those who had royal domains in their hands should restore them to the king. This bull occasioned many suspicions as to Henry’s intentions; fears began to be entertained lest, having obtained his majority, he should revoke the two charters to which he had sworn during his minority. The king and his advisers perceived the necessity of meeting this disturbed state of feeling, and on the 11th of February, 1225, the king granted of his own accord a new confirmation of the charters. As an acknowledgment of this they granted him a fifteenth part of all the moveable property of the kingdom as a subsidy.

But this mutual accommodation did not last long. At the end of two years, Henry, having obtained his true majority, revoked all the charters, under the pretext that they had been granted when he was not in the free possession of his body and of his seal; “ cum nec sui corporis nec sigilli aliquam potestatem habuerit.”

This revocation excited the most active discontent. The indignant barons turned their rage against the man whom the public voice accused as the author of these proceedings. This was Hubert de Burgh, the grand justiciary and intimate counsellor of Henry. This minister was from that time exposed to the most violent attacks, and did not cease to be persecuted by the rage of his opponents till at length, in 1232, the king yielded to the storm, withdrew his favour from the obnoxious minister, and exiled him from the court.

The murmurs of the barons were hardly appeased when Henry seemed as if desirous of exciting them afresh, by again surrounding himself with men who were hated by his subjects. This was a foreigner, a Poitevin, Peter des Roches, Bishop of Winchester, who became the king’s favourite on the disgrace of Hubert de Burgh. From that time, only foreigners were trusted with places and favours by the prince. Not content with draining the coffers of the State, they burdened the people with exactions—their insolence was perfectly unbridled. When the laws of England were appealed to against them, “we are not English,” they said, “we do not know what is the purport of these laws.” The indignant barons urgently demanded justice, and in the year 1234, two years after the disgrace of Hubert de Burgh, the king found himself compelled to abandon Peter des Roches and to dismiss the foreigners from his court. But shortly after, on his marriage with Eleanor, daughter of the Count of Provence, the Provençals took the place of the Poitevins, and in their turn drew on themselves the hatred of the English barons.

The irritation was general, when the king, who was in want of money, assembled the barons at Westminster, in the month of January, 1237, in order to demand of them a subsidy. The barons answered him with a refusal and with menaces. Henry, alarmed at this, had recourse to a remedy which had not yet lost its efficiency, namely, a new confirmation of the charters. Hardly was it granted before he obtained a subsidy of a thirtieth part of all moveable property.

But his prodigality soon dissipated these feeble resources; again was he obliged to resort to arbitrary and tyrannical means in order to provide himself with money—to exactions, to forced loans, a new kind of impost which is then for the first time to be met with in English history. It is remarkable, however, that Henry never dared to levy any general tribute on the nation on his own personal responsibility. Imposts that were really public were never collected except under the professed sanction of a council of the barons, and after the king had purchased their good will by a new confirmation of the charters.

On the 13th of May, 1253, a sentence of excommunication was solemnly pronounced against any person who should infringe the royal charters; and at the close of the ceremony the prelates threw down their extinguished but smoking tapers, exclaiming, “May the soul of every one who incurs this sentence so stink and be extinguished in hell!” And the king added, “So help me God! I will keep these charters inviolate, as I am a man, as I am a Christian, as I am a knight, and as I am a king crowned and anointed!”

Again were the charters violated, and at length it was seen that their repeated renewals were vain—civil war was therefore declared. The Earl of Leicester, at the head of a party of barons, took up arms, at first with the intention of effectually limiting, but afterwards of entirely usurping the royal authority. This rebellion had now no longer for its aim to obtain the renewal of charters, it tended also to found practical guarantees of recognized rights. Of these I shall speak more in detail when I come to consider the formation of the Parliament. At present I will content myself with observing that the result of the insurrection headed by the Earl of Leicester was a general renewal of the charters, granted on the 14th of March, 1264—a kind of treaty of peace between the king and the barons, the king’s object being to obtain from them the enlargement of Prince Edward, whom they retained as a hostage.

At length, three years after, on the 18th of November, 1267, some time before the departure of Prince Edward for Palestine, the king once more confirmed the charters in the Parliament assembled at Marlborough. This confirmation was the last granted by Henry III.; he died five years afterwards, on the 16th of November, 1272, having passed a long reign in making promises to be afterwards violated, renewed, retracted, and then renewed again.

LECTURE 9

During the two preceding reigns the struggle between the feudal aristocracy and the royal power has been really a civil war. Under Edward I. the struggle continued, but the civil war ceased. The barons did not protest in favour of their liberty with any less resolute determination than they had hitherto manifested, nor did the king defend his prerogatives less vigorously, but neither party appealed to arms. This is the general history of important struggles; they are begun by a trial of strength between the two contending parties, and when the problem of material forces has been resolved, the struggle changes its direction and its theatre; it becomes concentrated into an assembly, and the victorious party has no longer any other aim than to legalize the victory already gained, and thus add a constitutional validity to a material victory. Parliamentary debates follow civil war. When the parliamentary debates have lasted through a certain number of years, and have received the sanction of time, the struggle may be regarded as terminated. To this stage had matters arrived in the reign of Edward I.; the resistance which was shewn during his reign only displayed itself in Parliament; and, when it had lasted for thirty years, the rights which it had tended to consecrate were for ever recognized and tolerably respected.

At the time of Henry’s death, his son Edward was in Palestine; notwithstanding his absence, however, he was proclaimed king without any opposition. The capacity which he had displayed in the troubles of the kingdom, and the moderation which he had often shewn, had gained for him general favour. Upon his return to England, he justified the expectations which had been formed concerning him; many abuses were reformed, and a better order was introduced into the administration of justice.

I shall pass rapidly over the first twenty-four years of this reign. They were occupied with the conquest of Wales, and with Edward’s wars in Scotland, which were incessantly renewed by the insurrections of the Scotch. During all this time, although we hear of very frequent assemblies of Parliament, we scarcely hear anything even of the charters. The administration of the kingdom, which was vigorous and fair, excited few complaints, and public attention was absorbed by the expeditions and victories of the monarch.

Nevertheless the necessity of frequently raising subsidies, in order to keep up his numerous armies, soon obliged Edward to adopt violent and arbitrary measures. He limited the quantity of wool which might be exported, and placed on every sack of wool, that was exported, a duty of forty shillings, that is to say, more than a third of its value; all the rest of the wool and hides, that were ready for shipping, were confiscated to the service of the king. He demanded of each sheriff two thousand quarters of wheat, and as many of oats, authorising them to take the required wheat or oats wherever they could lay their hands upon them; besides which he caused a large quantity of cattle to be seized. Lastly, showing no regard for feudal right, he imposed on every landed proprietor, having a larger revenue than twenty pounds sterling, whatever might be the nature of his domains, the obligation to attend him in the war which he was about to prosecute in France.

The dissatisfaction among the people and barons was general, and it was soon redoubled, in consequence of a fraud to which Edward did not hesitate to resort in raising a subsidy, which had been granted to him by the Parliament, held at Saint Edmundsbury in the preceding year (1296). Instead of contenting himself with the eighth* of the moveable property, which had been granted to him, he assumed that the impost was much larger, and obliged his subjects to pay it.

In the midst of the excitement caused by these measures, Edward convoked his barons at Salisbury to arrange with them for the departure and march of his armies. He had intended to send one of his armies to Gascony, and to lead the other into Flanders, himself taking the command of the latter in person, while the former was to march under the direction of Humphrey Bohun, Earl of Hereford, and of Roger Bigod, Earl of Norfolk, the one the Constable, the other the Lord Marshal of England. These two men, who were vigorous champions of the national cause, refused to accept the mission which was offered to them. The object of their refusal was to compel the king to purchase their compliance by a renewed promise to confirm the charters, a promise which he had already made, but which he seemed in no haste to carry out. When Edward gave them the order to repair to Gascony, they answered that they were ready to follow him to Flanders, but that the character of their offices would not allow them to separate themselves from his person. “You shall go,” said the king, “whether I go with you or not.” Hereford replied that he would not go; upon which Edward exclaimed, “By the everlasting God, sir earl, you shall either go or hang.” “By the everlasting God, sir king,” replied Hereford, coolly, “I will neither go nor hang.” Edward did not feel himself sufficiently powerful to punish this haughty reply; and, fearing lest he should find the same spirit of resistance in all the barons, he abandoned his intention of sending an army into Gascony. The two earls quitted Salisbury with their retinue, and the king, after he had placed their offices in the hands of two other lords, prepared to embark for Flanders.

But before his departure, on the 12th of August, 1297, he addressed to all the sheriffs of the kingdom a singular kind of manifesto, one which was, perhaps, unique at that period, which he intended should be read before the assembled people. In it the king explained the causes of his quarrel with the two earls, excused the exactions he had made by pleading the necessities of war, and desired his subjects to maintain peace and order. This proclamation, or, perhaps, rather this appeal to the public, shews how greatly power already felt itself dependent upon the support of opinion, and constrained in some way to acknowledge a responsibility to it.

To this apology for his conduct, which the king put forth, the Earls of Norfolk and Hereford replied by another manifesto, which was presented to the king at Winchelsea, in which they recounted all the public wrongs and demanded redress. Edward answered that his council was dispersed, and that he could not attend to these protests till his return, and he accordingly went on his expedition, leaving his son regent of the kingdom.

Upon this the two earls, after having published their manifesto and the king’s reply to it, presented themselves before the treasurers and barons of the exchequer, and forbade them, as they would dread to excite a civil war, to collect, for the king, the tribute of one-eighth, which had been granted by the Parliament at Saint Edmundsbury, affirming that the granting of it had been illegal.

In order to bring these differences to a close, the prince-regent assembled a Parliament in London, on the 10th of October, 1297. The two earls were invited to take their place in the assembly, and came escorted by five hundred horse and a body of infantry, and would not consent to enter London until they had obtained permission to place a guard at each gate. They demanded a general confirmation of the charters, and, moreover, asked that several additions should be made to them. The prince-regent subscribed to all their demands, and the act of confirmation signed by him was immediately sent to the king, who was at Ghent. Edward, after he had taken three days to consider the matter, sanctioned the confirmation,* and granted an amnesty to the two earls, who, satis fied with this exhibition of generosity on the part of the king, went, subsequently, to Scotland to assist him in the war which he was carrying on there.

When Edward returned again to England, the barons demanded that he, in his own person, should confirm the charters which had been granted to them. The king evaded these demands, and retired to Windsor. Thither the barons followed him to renew their importunities and their complaints. The king excused himself on the ground of ill-health, and told them to return to London, where he would send them an answer. This answer was a new confirmation of the charters, but contained one restrictive clause: salvo jure coronae nostrae.1 At the public reading of the charter, which was made at St. Paul’s Cathedral, the assembly hearing how all their rights were definitely confirmed in it, made the most lively manifestations of joy; but hardly had the reserve clause been pronounced, when violent murmurs were raised on all sides; the people immediately left the church, and the angry barons retired to their domains, resolved once more to appeal to force.

Edward perceived that he had raised a storm of opinion against him, and, after innumerable delays and evasions, and complaining haughtily that he was too closely pressed, he, at length, decided upon convoking a Parliament on the 6th of March, 1300, and confirmed without any restriction all the concessions which he had already made; he even added new guarantees, which were contained in articles called articuli super chartas. The chief provisions contained in these additions consist in a regulation that the charters should be publicly read in the county courts four times every year, and that there should be elected in each county court, from among the knights of the court, three justices, sworn to receive all complaints of infractions of the charters, and to pronounce penalties against the offenders.

Lastly, in the following year, 1301, at a Parliament held at Lincoln, Edward, after having received its approval to a new limitation of the forests, which had been for a long time demanded and at length concluded, yet once more confirmed the charters.

From the time when this charter of confirmation was granted, the rights which it proclaimed were definitively recognized. The open and exterior struggle ceased at this period, but the secret and concealed did not. Edward endured impatiently the yoke which he had taken upon himself, and endeavoured to release himself from it. He did not, however, dare to raise the mask, but concealed all his efforts. Towards the close of the year 1304, he petitioned Pope Clement V. to release him from his oaths. The pontiff complied with his wishes, and by a bull, dated January 5, 1305, declared that all the promises and concessions made by Edward were abrogated, null and void.*

This prince did not dare, as John had formerly done, to take advantage of this bull, and he therefore kept it quite secret; but he still had recourse to secret manoeuvres. He began by a series of vile persecutions of those who had headed the confederation of the barons, and especially of the Earl of Norfolk and the Archbishop of Canterbury. These two men, though they were in former years so boldly courageous, now yielded with a feebleness that can only be excused by their great age. But it was too late; the authority of the king could no longer effect anything against the charters, and the feebleness even of their former defenders could not add to the power of royalty. Death soon after put a stop to all Edward’s efforts to carry out the designs he had formed: it surprised him suddenly while he was in Scotland, on the 7th of July, 1307. From that period the charters, notwithstanding all attacks made upon them, have remained as the immoveable basis of public right in England.

statute issued by edward i., in confirmation of the charters. november 5, 1297

Edward, by the grace of God, King of England, Lord of Ireland, and Duke of Guyan, to all those that these present letters shall hear or see, greeting. Know ye that we, to the honour of God and of Holy Church, and to the profit of our realm, have granted that, for us and for our heirs, the charter of liberties and the charter of the forest, which were made by common consent of all the realm, in the time of King Henry our father, shall be kept in every point without breach. And we will that the same charters shall be sent under our seal, as well to our justices of the forest as to others, and to all sheriffs of shires, and to all our other officers, and to all our cities throughout the realm, together with our writs in the which it shall be contained; that they cause the aforesaid charters to be published, and declare to the people that we have confirmed them in all points; and that our justices, sheriffs, and mayors, and other ministers, which, under us, have the laws of our land to guide, shall allow the said charters, pleaded before them in judgment, in all their points, that is to wit, the Great Charter as the common law, and the charter of the forest for the wealth of our realm.

And we will that if any judgment be given from henceforth contrary to the points or the charters aforesaid by the justices, or by any other our ministers, that hold pleas before them against the points of the charters, it shall be undone and holden for nought.

And we will that the same charters shall be sent, under our seal, to cathedral churches throughout our realm, there to remain, and shall be read before the people two times by the year.

And all archbishops and bishops shall pronounce the sentence of excommunication against all those that by word, deed, or counsel do contrary to the foresaid charters, or that in any point break, or undo them. And that the said curses be twice a year denounced and published, by the prelates aforesaid. And if the same prelates, or any of them, be remiss in the denunciation of the said sentences, the Archbishops of Canterbury and York, for the time being, shall compel and distrain them to the execution of their duties in form aforesaid:

And foresomuch as divers people of our realm are in fear that the aids and tasks which they have given us beforetime towards our wars, and other business, of their own grant and goodwill, howsoever they were made, might turn to a bondage to them and their heirs, because they might be at another time found in the Rolls, and likewise for the prises taken throughout the realm by our ministers, we have granted for us and for our heirs, that we will not draw such aids, tasks, nor prises into a custom, for any thing that hath been done heretofore, be it by Roll or any other precedent that may be found.

Moreover we have granted for us and for our heirs, as well to archbishops, bishops, abbots, priors, and other folk of Holy Church, as also to earls, barons, and all the commonality of the land, that for no business for henceforth we shall take such manner of aids, tasks, or prises, but by the common assent of the realm, and for the common profit thereof, saving the ancient aids and prises due and accustomed.

And foresomuch as the more part of the commonality of this realm find themselves sore grieved with the maletent of wool, that is to wit, a toll of forty shillings for every sack of wool, and have made petition for us to release the same; we at their requests, have clearly released it, and have granted, for us and our heirs, that we shall not take such things without their common consent and goodwill; saving to us and our heirs the custom of wools, skins, and leather, granted before by the commonality aforesaid. In witness of which things we have caused these our letters to be made patents. Witness, Edward, our son, at London, the 10th day of October, the five and twentieth year of our reign.

And be it remembered that this same charter, in the same terms, word for word, was sealed in Flanders, under the king’s great seal, that is to say, at Ghent, the 5th day of November, in the twenty-fifth year of the reign of our aforesaid lord the king, and sent into England.

letter of clement v. to edward i

Clement, bishop, servant of God’s servants, to our well-beloved son in Jesus Christ, Edward, illustrious king of England, health and apostolic benediction:

LECTURE 10

We have studied the primitive institutions of the Anglo-Norman government; we have traced the successive steps in the history of the charters, and of the struggle which was carried on by the barons to secure their confirmation by the royal power; but up to this point we have not seen anything of a representative government. We have, however, now arrived at the point when this government began to appear. Our attention is now to be called to the creation of a Parliament, that is to say, to the birth of a representative system.

As we approach this great historical question, a question in political philosophy presents itself before us:—what is the true and legitimate sense of this word representation as applied to the government of a community? It is not for us to pass over this question without noticing it: the history of political institutions is now no longer a bare recital of facts—it must rest on principles; it neither deserves the name nor possesses the authority of science, till it has sounded and placed in clear light the primary foundation in reason, from which the facts which it collects trace their origin. Political history cannot now be otherwise than philosophical; this is demanded by the stage of human culture which the mind of society has reached.

Let us now suppose a representative government, aristocratic or democratic, monarchical or republican, completely established and in action: if any one were to ask a citizen of such a State—supposing him to be a man of good sense but unversed in political speculations—“Why do you elect such a deputy?” he would answer, “Because in the consideration of public affairs, I believe him to be more capable than any other of sustaining the cause to which my opinions, my feelings, my interests, are allied.”

Now bring this man before the political theorists who have treated of representation; let his good sense be brought into contact with their systems—truth would soon be perplexed and obscured by the falsities of science.

One learned gentleman would thus address him:—“What have you done? You have supplied yourself with a representative—you are no longer free—you are no longer in truth a citizen of a free State. Liberty means a man’s sovereignty over himself, the right to be governed only by his individual will. And sovereignty cannot be represented, just because the will cannot be represented—it is either the same or something entirely different, there is no medium. Who has certified you that your representative will always and on all occasions have the same will as yourself? He will certainly not be so accommodating. So far then from your being represented, you have surrendered to him your will, your sovereignty, your liberty. You have given yourself up not to a representative, but to a master. And why? Because you are an indolent, grasping, cowardly individual, who pay far more regard to your own personal concerns than to public matters, who will rather pay for soldiers than go to war, who will rather appoint deputies and stay at home than go yourself and share in the deliberations of a national council.”

This is the way in which Rousseau conceives of representation: he considers that it is delusive and impossible, and that every representative government is in its own nature illegitimate.*

Let the same citizen be addressed by other doctors who, entertaining the same ideas of sovereignty and liberty as those held by Rousseau, and nevertheless believing in representation, endeavour to harmonize these different conceptions. They might say to him: “Most true; sovereignty resides in yourself and in yourself alone; but you may delegate without abandoning it;—you do so every day; to your steward you commit the management of your lands, to your physician the care of your health, and you place your legal affairs into the hands of your solicitor. Life is vast and complicated, your personal control is insufficient for all its activity and demands; everywhere you avail yourself of others in the exercise of your own power—you employ servants. This is only a new application of the same principle—you employ one servant more. If he swerve from your directions, if he fail in giving expression to your will, we grant that he abuses his trust. When you give him your suffrage, you do not surrender to him your liberty—he on the other hand in receiving them has renounced his own. The mandate which he holds from you makes him a slave while it makes you free. On this condition representation becomes legitimate, for the person represented does not cease to be sovereign.”

What will the citizen say to this? He must make his choice: such, he is told, is the nature of representation that, in one way or another, whenever he appoints a deputy he makes some one a slave, either his representative or himself. This was far from his intention; wishing to live at once in freedom and in security, he connected himself, acting in concert with his fellow citizens, with a man whom he regarded free as well as himself, and whom he judged capable of defending his liberty and ensuring his tranquillity; when he gave this man his suffrage he did not believe he was either enslaving himself or the object of his choice—he thought to enter into a relation of alliance with him, not of sovereignty or of servitude—he only did what is virtually done every day by men, who, having interests which are identical and not being able to manage them individually and directly, entrust them to that individual among their number who appears to be most capable of efficiently conducting them, thus shewing by their confidence their respect for his superiority, and preserving at the same time the right to judge, by his conduct, if the superiority is real and the confidence deserved. Regarded in itself, this is the fact of election—neither more nor less. What then is to be said of the theory which comes to denaturalize the fact, and to give it an import and significance which it never had in its origin either in the intention or the reason of the parties interested.

The source of all this confusion is to be found in a wrong apprehension of the word representation; and the word has been misunderstood, because false ideas have been entertained regarding sovereignty and liberty. We must therefore revert to earlier stages of the enquiry.

The fundamental principle of the philosophies which we oppose is, that every man is his own absolute master, that the only legitimate law for him is his individual will; at no time had any one, be his credentials what they may, any right over him, if he does not give his consent to it. Starting from this principle, Rousseau saw, and saw truly, that as the will is a purely individual fact, so all representation of the will is impossible. Assuming that the will is the sole source of the legitimate power which a man exercises over himself, it follows that no man can transmit this power to another, for he cannot determine that his will shall be conveyed to another man and cease to reside in himself. He cannot confer a power which would certainly involve the risk of his being obliged to obey another will than his own; for on this very account, if on no other, that power would be illegitimate. All thought of representation, therefore, is a delusion, and all power founded on representation is tyrannical, for a man only remains free so long as he obeys no law but that of his own will.

The conclusion is inevitable—Rousseau’s only fault was that he did not push it far enough. Going as far as this would lead him, he would have entirely abstained from seeking after the best government, he would have condemned all constitutions—he would have affirmed the illegitimacy of all law and all power. In fact, how does it concern me that a law emanated yesterday from my will, if today my will has changed? Yesterday my will was the only source of legitimacy for the law; why then should the law remain legitimate when it is no longer sanctioned by my will? Can I not will more than once? Does my will exhaust its rights by a single act? And because it is my only master, must I, therefore, submit slavishly to laws from which this master who has made them bids me to enfranchise myself? This was not overlooked by Rousseau: “It is absurd,” he says, “to suppose that the will should fetter itself with chains for the future.”*

This then is the consequence of the principle when fairly carried out. Rousseau did not see this, or did not dare to see it; it is destructive not only of all government, but also of all society. It imposes upon man an absolute and continued isolation, does not allow him to contract any obligations, or to bind himself by any law, and brings an element of dissolution even into the bosom of the individual himself, who can no more bind himself to his own nature than to any other person: for his past will, that is to say, what he no longer wills, has no more right over him than the will of a stranger.

Rousseau was at least sometimes doubtful as to the application of his principle, and he only lost sight of it when, if he had remained faithful to it, he would have been obliged to sacrifice all else to it. Minds less powerful than his, and therefore less able to cast off the yoke of social necessities, have believed that they could preserve the principle without admitting all its consequences. Like Rousseau, they have admitted that, every man being the sole master of himself, no law can be binding upon him which is not conformed to his will—an axiom which has become popular under this form: No one is bound to obey laws to which he has not given his consent. Reasoning with strict logical rigour, Rousseau would have perceived that this axiom did not leave any standing place for organized power. He had, at all events, clearly shown that all representation of power was condemned by it as illegitimate and delusive. Other political theorists have undertaken to deduce from it representation itself, and all the powers of which it is the basis. They have proceeded in some such manner as the following:—

They have placed themselves fearlessly in presence of existing facts, determined to regulate them according to their convenience by imposing alternately upon the facts a principle which they reject, and upon this principle consequences which it will not naturally admit. Given—society to maintain and government to construct, without ceasing to affirm that the will of man is the source of legitimacy for power. It is required that this work should follow from this principle—they determine that it shall.

But an impossibility confronts them at the outset; how to avoid imposing upon men any law without their consent. How shall all individual wills be consulted regarding each particular law? Rousseau did not hesitate; he pronounced great States to be illegitimate, and that it was necessary to divide society into small republics in order that, once at least, the will of each citizen might give its consent to the law. Even if that could be done, the problem would be far from being solved, so that the principle should appear fully exemplified, whatever tests might be applied to it. But still an impossibility had at length disappeared, and logical consistency was preserved. The political theorists of whom we are speaking, far more timid than Rousseau, have not dared to protest against the existence of large communities, but they have not feared to get over the impossibility by the aid of a new inconsistency. While they do not allow to individuals the right only to obey laws conformed to their will, they substitute for it the right only to obey laws which emanate from a power which has been constituted by their will; they have thought to pay respect to the principle, by basing the legitimacy of the law on the election of the legislative power. Thus the theory of representation, that is, of the representation of wills, has re-appeared, in spite of Rousseau’s logical reasonings: for, so long as the will of man is recognized as the only legitimate sovereign for him, if the creation of a power be attempted by means of representation, the kind of representation that will really be attempted will be the representation of wills.

But this theory must be carried out, and reduced to practice. Now, after having annulled, so far as the creation of the law is concerned, so many individual wills, the least that could be expected is that all should be called upon to give their voice in the nomination of those who shall be commissioned to make laws. Universal suffrage was therefore the inevitable consequence of the principle already so violently perverted; it has been sometimes professed, but never actually adopted. Here then once more a new impossibility has occasioned a new inconsistency. Nowhere has the right of voting for the legislative power belonged to more than a fragment of society; women, at least, have always been excluded from it. Thus then, while the will has been recognized as the sole legitimate sovereign in every individual, a large number of individuals have not even taken any part in the creation of that factitious sovereignty which representation has given to all.

We might pursue these investigations, and we should find at every step some new deviation from the principle which, it is pretended, is always to be respected as forming the abiding basis on which the formation of governments depends. The most remarkable of these deviations is certainly the supremacy which is everywhere attributed to the majority over the minority. Who does not see that, when the principle of the absolute sovereignty of the individual over himself has been once admitted, this supremacy is entirely false? And if false, how is society possible?

I have said enough, I think, to shew that this alleged principle is powerless for the legitimate creation of the government of society, and that it must incessantly yield to necessity, and finally vanish altogether. I will now consider it from another point of view. I will suppose that the work has been accomplished, that a government has been constructed; and I inquire what will be the influence of this principle upon the government which, it is affirmed, is derived from it, and which has only been created by the suffrance of numerous inconsistencies. What right will the government have over individuals, by whose will alone, it is said, it possesses any legitimacy? Here, as elsewhere, it is necessary that the principle should again be referred to; it must determine the right of the government when it has been established, just as it must have guided its formation.

Two systems present themselves. According to the one, the individual wills which have created a legislative power have not thereby lost their inherent sovereignty; they have provided themselves with servants and not with masters; it is true they have created this power in order that it may command, but on condition that it shall obey. In itself, and in relation to those from whom it holds its commission, it is nothing but a kind of executive power, appointed to put in form the laws which it has received, and constantly subordinated to that other power which remains diffused among the individuals with whom it originally resided, and which, although without form and without voice, is nevertheless the only absolute and permanently legitimate authority. In fact, there is a sovereign, which not only does not govern, but which obeys, while there is a government which commands, but is not sovereign.

According to the other system, those individual wills which have created the legislative and central power are, so to speak, absorbed into it; they have abdicated in favour of the power which represents them; and it represents them in the whole extent of their inherent sovereignty. This is, obviously, pure and un-mixed despotism, rigorously deduced from the principle that wills are to be represented in government, and which has in fact been assumed by all governments which have emanated from this source. “ The elect of the sovereign is itself sovereign”: such was the declaration both of the Convention and of Napoleon; hence the destruction of all responsibility in power, and of all the rights belonging to citizens. This certainly was not the consummation which the friends of liberty demanded of representation.

The first of these systems is the most plausible, and still possesses many conscientious advocates. This system is so far good, inasmuch as it ignores an inherent right to sovereignty as the possession of any government; its error is, that this right is allowed to exist elsewhere. I do not here examine it in relation to any other principle than that from which it professes to be derived; and if the individual wills which have created the legislative power are bound to obey its laws, what becomes of this principle? Every man, you say is free only in so far as he is left master of his own will. Those then alone will be free in your government, who, by a happy coincidence of sentiment with their legislators, approve the laws as thoroughly as if they had made them themselves; for whoever is bound to obey laws, whether he approve them or not, immediately loses his sovereignty over himself—his liberty. And if he has a right to disobey, if the will of the legislative power is not authoritative over the wills which have created it, what becomes of this power? What becomes of government? What becomes of society?

It must seem a somewhat super fluous expenditure of logical force to appeal so often to a principle while power is being gradually constructed, when the same principle, if once more appealed to when the business is apparently completed, is found to give a death-blow to this very power. Such, however, must be the result: for the principle has disavowed, from the outset, the power which was to be deduced from it.

If, then, we find that this principle, consistently pursued, can only result in the dissolution of society or the formation of a tyranny—if it can issue in no legitimate power whatever—if it finally lands us, after our inquiries after a free and reasonable political order, in the alternative of impossibility or inconsistency—must we not most evidently seek for the evil in the principle itself from which we started?

It is not true, then, that man is the absolute master of himself—that his will is the only legitimate law—that no one, at any time, under any circumstances, has any right over him unless he has consented thereto. When philosophers have considered man in himself, apart from all connection with his fellows, only regarding his active life in its relation to his own understanding, they have never thought of declaring that his will is for him the only legitimate law, or, which amounts to the same thing, that every action is just and reasonable merely because it is voluntary. All have recognized that a certain law which is distinct from the individual will encircles him—a law which is called either reason, morality, or truth, and from which he cannot separate his conduct without making the exercise of his liberty either absurd or criminal. All systems, on whatever principles they may found the laws of morality and reason—whether they speak of interest, feeling, general consent, or duty—whether they are spiritualistic or materialistic in their origin—whether they emanate from sceptics or from dogmatists—all admit that some acts are reasonable and others unreasonable, some just and others unjust, and that if the individual does in fact remain free to act either according to or in violation of reason, this liberty does not constitute any right, or cause any act which is in itself absurd or criminal to cease to be so because it has been performed voluntarily.

More than this: as soon as an individual prepared to act demands from his understanding some enlightenment for his liberty, he perceives the law which enjoins upon him that which is in itself true, and at the same time he recognizes that this law is not the product of his own individual nature, and that, by the volitions of his will, he can neither disown nor change it. His will remains free to obey or to disobey his reason: but his reason, in its turn, remains independent of his will, and necessarily judges, according to the law which it has recognized, the will which revolts against it.

Thus, speaking philosophically and rightfully, the individual considered in himself, may not dispose of himself arbitrarily and according to his solitary will. Laws which are obligatory are not created or imposed upon him by his will. He receives them from a higher source; they come to him from a sphere that is above the region of his liberty—from a sphere where liberty is not—where the question to be considered is not whether a thing is willed or not willed, but whether it is true or false, just or unjust, conformable or contrary to reason. When these laws descend from this sublime sphere in order to enter into that of the material world, they are constrained to pass through the region where liberty, which exists on the confines of these two worlds, has its sway; and here it is that the question arises whether the free will of the individual will or will not conform to the laws of this sovereign reason. But in whatever way this question is decided, sovereignty does not forsake reason and attach itself to will. In no possible case can will of itself confer upon the acts which it produces the character of legitimacy; they have, or they have not this characteristic, according as they are or are not conformed to reason, justice, and truth, from which alone legitimate power can spring.

To express the same thought in a different way—man has not an absolute power over himself in virtue of his will: as a moral and reasonable being he is a subject—subject to laws which he did not himself make, but which have a rightful authority over him, although, as a free agent, he has the power to refuse them, not his consent but his obedience.

If we look at all philosophical systems in their basis—if we rise above the differences that may exist in their forms—we shall be convinced that no one is to be found which has not admitted the principle which I have now expressed. How then does it arise that philosophers, when they leave man regarded as an isolated being, and look at him in his relations with other men, have started from a principle which they would not have dared to adopt as the foundation of their moral doctrines, but which has served as a basis to their political theories? How comes it that the will which, in the solitary individual, has never been raised to the position of an absolute and solely legitimate sovereign, does yet suddenly find itself invested with this title and its corresponding rights, as soon as the individual is brought into the presence of other individuals of like nature with himself?

The fact may be thus represented: In that commingling and collision of individuals which we call society, the philosophers of whom we speak have pertinaciously adhered to that which does in fact first present itself, namely, the commingling and collision of individual wills. A true instinct, unrecognized perhaps by them, has suddenly reminded them that the will is not, in itself, and by its essential constitution, the legitimate sovereign of man. If it does not occupy this position in the individual and so far as he is himself concerned, how should it be elevated to such a rank when another individual is concerned? How should that which, in its own acts, has nothing that is legitimate in the view of reason, when it says I will—how should it have any right to impose its will as the law for another person? No will, merely because it is a will, has any authority over another will:—this is evident; any opposite assumption is revolting; it is brute force, sheer despotism.

How shall these perplexities be removed? How shall individual wills be made to co-operate without conflicting, to shelter without overpowering one another? Philosophers have only seen one method of accomplishing this, and that is to attribute to each will an absolute sovereignty, an entire independence; they have declared that every individual is the absolute master of his own person; that is to say, they have elevated all individual wills to the rank and position of sovereignty. Accordingly the will which, in man considered apart and by himself, possesses no sovereign and legitimate power, has been invested with it as soon as man is viewed in his relations with other men. Thus the reply, my will does not consent, which, within the individual himself, cannot establish any right if it be contrary to the laws of the reason, has become, outside of the individual, the foundation of right, the ever-sufficient and finally authoritative reason.

Is it necessary that we should prove that a principle, which, in its application to man considered as an individual, is evidently false and destructive of all morality and of all law, is equally so in the relations between man and man; and that in the one case as in the other, the legitimacy of law and of power, that is to say, of obedience or of resistance, is derived from quite another source than the will?—Two facts shall serve us in the stead of arguments:

Who has ever denied the legitimacy of parental authority? it has its limits, and may be carried to excess like every other human power; but has it ever been alleged that it is illegitimate so often as the obedience of the child, whom it seeks to control, is not voluntary? An instinctive sense of the truth has in this case prevented any one from even maintaining such an absurdity. Nevertheless the will of the child, considered in itself, does not at all differ from that of the fully-grown man; it is of the same nature, and it is equally precious to the individual. Here then is an illustration of legitimate power in cases in which obedience to it is not voluntary. And from whence does this power borrow its legitimacy? evidently from the superiority of the father’s reason to that of the child, a superiority which indicates the position which the father is called to occupy by a law above him, and which establishes his right to assume that position. The rightful sway here does not belong to the will of the child, who wants the reason that is necessary for such sway, nor even does it belong to the mere will of the father, for will can never vindicate right from itself; it belongs to reason, and to him who possesses it. The mission which is given by God to the father to fulfil, is that he should teach his child what reason teaches him, and should bend his will to the claims of reason, until he shall be able to control his will for himself. The legitimacy of parental power is derived from the fact of this mission: this establishes its right and also determines its limits, for the father has no right to impose upon the child any laws except such as are just and reasonable. Hence the rules and processes of a judicious education, that is to say, of the legitimate exercise of parental power; but the principle of right is in the mission and the reason of the parent, and not in either of the wills which are here brought into relation one to the other.

Let me remind you of another fact. When any man is well known to be mad or idiotic, it is customary to deprive him of his full liberty. On what grounds? has his will perished? if it is the principle of legitimate power, is it not always there to exercise it? The will is still there; but the true sovereign of the man, the lord of the will itself, reasoning intelligence, has departed from the individual. It must therefore be supplied to him from another source—a reason external to himself must govern him, since his own has become incapable of controlling his will.

What is true concerning the child and the imbecile is true of man in general: the right to power is always derived from reason, never from will. No one has a right to impose a law because he wills it; no one has a right to refuse submission to it because his will is opposed to it; the legitimacy of power rests in the conformity of its laws to the eternal reason—not in the will of the man who exercises, nor of him who submits to power.

If therefore philosophers desired to give a principle of legitimacy to power, and to restrain it within the limits of right, instead of raising all individual wills to the position of sovereigns and of rivals in sovereignty, they should have brought them all into the condition of subjects, and appointed over them one sovereign. Instead of saying that every man is his own absolute master, and that no other man has a right over him against his will, they should proclaim that no man is the absolute master either of himself or of any other person, and that no action, no power exercised by man over man, is legitimate if it wants the sanction of reason, justice, and truth, which are the law of God. In one word, they should everywhere proscribe absolute power, instead of affording it an asylum in each individual will, and allow to every man the right, which he does in fact possess, of refusing obedience to any law that is not a divine law, instead of at tributing to him the right, which he does not actually possess, of obeying nothing but his own will.

I may now return to the particular question which I proposed in starting, and determine what representation truly is—thus justifying in its principle as in its results, the system of government to which this name is applied.

We are no longer concerned to represent individual wills, which is really an impossibility, as Rousseau has fully demonstrated, though he was mistaken in thinking that this is the aim of representation. We are not, therefore, careful to evade this impossibility, and so fall into inconsistency, as has been done by other political theorists. These attempts, illegitimate in principle and vain in their issues, are, besides, chargeable with the immense mischief of deceiving men; for they profess to establish themselves on a principle which they constantly violate; and by a culpable falsehood, they promise to every individual a respect for his individual will—whether enlightened or ignorant, reasonable or unreasonable, just or unjust—such as, in fact, they cannot give to it, and which they are of necessity obliged to deny.

The true doctrine of representation is more philosophical and more sincere. Starting from the principle that truth, reason, and justice—in one word, the divine law—alone possess rightful power, its reasoning is somewhat as follows:—Every society, according to its interior organization, its antecedents, and the aggregate of influences which have or do still modify it, is placed to a certain extent in a position to apprehend truth and justice as the divine law, and is in a measure disposed to conform itself to this law. Employing less general terms:—there exists in every society a certain number of just ideas and wills in harmony with those ideas, which respect the reciprocal rights of men and social relations with their results. This sum of just ideas and loyal wills is dispersed among the individuals who compose society, and unequally diffused among them on account of the infinitely varied causes which influence the moral and intellectual development of men. The grand concern, therefore, of society is—that, so far as either abiding infirmity or the existing condition of human affairs will allow, this power of reason, justice, and truth, which alone has an inherent legitimacy, and alone has the right to demand obedience, may become prevalent in the community. The problem evidently is to collect from all sides the scattered and incomplete fragments of this power that exist in society, to concentrate them, and from them, to constitute a government. In other words, it is required to discover all the elements of legitimate power that are disseminated throughout society, and to organize them into an actual power; that is to say, to collect into one focus, and to realize, public reason and public morality, and to call them to the occupation of power.

What we call representation is nothing else than a means to arrive at this result:—it is not an arithmetical machine employed to collect and count individual wills, but a natural process by which public reason, which alone has a right to govern society, may be extracted from the bosom of society itself. No reason has in fact a right to say beforehand for itself that it is the reason of the community. If it claims to be such, it must prove that it is so, that is to say, it must accredit itself to other individual reasons which are capable of judging it. If we look at facts, we shall find that all institutions, all conditions of the representative system, flow from and return to this point. Election, publicity, and responsibility, are so many tests applied to individual reasons, which in the search for, or the exercise of, power, assume to be interpreters of the reason of the community; so many means of bringing to light the elements of legitimate power, and preventing usurpation.

In this system, it is true—and the fact arises from the necessity of liberty as actual in the world—that truth and error, perverse and loyal wills, in one word, the good and evil which co-exist and contend in society as in the individual, will most probably express themselves; this is the condition of the world; it is the necessary result of liberty. But against the evil of this there are two guarantees: one is found in the publicity of the struggle, which always gives the right the best chance of success, for it has been recognized in all ages of the world that good is in friendship with the light, while evil ever shelters itself in darkness; this idea, which is common to all the religions of the world, symbolizes and indicates the first of all truths. The second guarantee consists in the determination of a certain amount of capacity to be possessed by those who aspire to exercise any branch of power. In the system of representing wills, nothing could justify such a limitation, for the will exists full and entire in all men, and confers on all an equal right; but the limitation flows necessarily from the principle which attributes power to reason, and not to will.

So then, to review the course we have taken, the power of man over himself is neither arbitrary nor absolute; as a reasonable being, he is bound to obey reason. The same principle subsists in the relations between man and man; in this case also, power is only legitimate in so far as it is conformed to reason.

Liberty, as existing in the individual man, is the power to conform his will to reason. On this account it is sacred; accordingly the right to liberty, in the relations of man with man, is derived from the right to obey nothing that is not reason.

The guarantees due to liberty in the social state have, therefore, for their aim, to procure indirectly the legitimacy of actual power, that is to say, the conformity of its wills to that reason which ought to govern all wills, those which command as well as those which obey.

Therefore no actual power ought to be absolute, and liberty is guaranteed only in so far as power is bound to prove its legitimacy.

Power proves its legitimacy, that is to say, its conformity to the eternal reason, by making itself recognized and accepted by the free reason of the men over whom it is exercised. This is the object of the representative system.

So far then from representation founding itself on a right, inherent in all individual wills, to concur in the exercise of power, it on the other hand rests on the principle that no will has in itself any right to power, and that whoever exercises, or claims to exercise power, is bound to prove that he exercises, or will exercise it, not according to his own will, but according to reason. If we examine the representative system in all its forms—for it admits of different forms according to the state of society to which it is applied—we shall see that such are everywhere the necessary results and the true foundations of that which we call representation.1

LECTURE 11

Before we commenced the history of the charters, and after we had for some time fixed our attention on the Anglo-Norman government, we saw that this government was composed of but two great forces, royalty and the council of barons, a unique and central assembly, which alone shared with the king the exercise of power. Such was the state in which we found the government of England under William the Conqueror and his sons. But from their reigns to that of Edward I., a great change was being gradually evolved; after a laborious struggle, the charters were finally conceded, and the rights which they proclaim were definitively recognised. If, after this complete revolution, we cast a glance over the institutions of the country, we find them all changed; we perceive that the government has taken another form, that new elements have been introduced into it, that the Parliament—composed in one of its divisions of the lords spiritual and temporal, in the other of deputies from the counties and boroughs—has taken the place of the great council of barons.

This transformation is a fact; how was it produced? what were its causes and its mode of advance? what was the new Parliament after its formation? how far and in what respects did the introduction of these deputies change the character of the government? These are the questions that we have now to consider; and in order to answer them we must analyze and examine the principal individual facts which here combine to produce the common result.

The first of these facts is the introduction of county deputies into the national assembly. I shall first enquire how this event was brought about; and I shall then propose similar enquiries with respect to the introduction of town and borough representatives into the same assembly.

Two causes effected the introduction of county deputies into Parliament: first, the privileges belonging to knights as immediate vassals of the king; secondly, their interference in county affairs by means of the county-courts.

The immediate vassals of the king had in that capacity two fundamental rights; that no extraordinary charge should be imposed without their consent, and that they should have a place in the king’s court, either to give judgments, or to treat of public affairs. They were from both these circumstances, members of the general assembly by inheritance. They formed the political nation. They took a part in the government, and in the determination of public charges, as a personal right.

Although they were not elected and had received neither appointment nor mandate, we may nevertheless say that they were regarded as representing their own vassals, and that it was only in virtue of the power which was attributed to them in this fictitious representation that they exercised the right of levying im-posts on all the proprietors in the kingdom.*

Perhaps they never could have fully organized themselves into a united body, and soon this became impossible. On the one hand, there rose up among the direct vassals of the king, some influential barons, who united a considerable number of knights’ fiefs into one, and became by this cause much more powerful; and on the other hand, the number of knights with smaller wealth became much more considerable by the division of fiefs, which was itself the result of a vast variety of causes. However, the right of appearing at the general assembly and of giving their personal sanction to all extraordinary imposts, always remained to them. This is formally recognized in Magna Charta, Article 14.

This same article proves at the same time that there existed an evident inequality between different immediate vassals, for it ordains that the great barons should be summoned individually, while the others should be convoked en masse by means of the sheriffs. This is not the first time that such a difference in the mode of convocation is to be observed; it had already existed for some time, and was exemplified whenever the king required from his vassals the military service which they were bound to give him.

Thus, at the commencement of the thirteenth century, the right to take a seat in the national assembly belonged to all the immediate vassals of the king, but it was scarcely ever exercised on account of obstacles which increased every day. The assembly was almost entirely composed of the great barons.

But the other vassals, on the other hand, did not renounce their political existence; if their influence daily became more and more limited to their own county, there at least they exercised their rights and interfered actively in affairs. We often find that knights were nominated, sometimes by the sheriff, some times by the court itself, to give their decision on matters connected with the county. Thus William the Conqueror charged two free men in each county with the business of collecting and publishing the ancient laws and local customs. The Great Charter provides that twelve knights shall be elected in each county to enquire into abuses. These examples are frequent in the reigns of Henry III. and Edward I. Two writs of Henry III.* prove that subsidies were at that time assessed, not, as previously, by the judges in their circuits, but by knights elected in the county-court. The knights in this way brought their influence to bear upon government by the offices they discharged in their provinces, while at the same time they preserved, though without exercising it, the right to appear at the general assemblies.

But, on the other hand, in proportion as they thus became separated from the great barons, the knights who were direct vassals of the king united themselves more closely to another class of men, with whose interests they after a time completely identi fied themselves. They did not alone occupy a position in the county courts; many freeholders, subordinate vassals of the king, also constantly presented themselves at these courts, and performed the same administrative or judicial functions. Service in the county court was an obligation imposed in common, by their tenure, on all freeholders, whether vassals of the king or of any other feudal lord. Many of the latter were more wealthy and influential than certain direct vassals of the king. The practice of sub-enfiefment augmented their number continually. Many who were simply socagers gradually became considerable freeholders by receiving free lands from different nobles. Thus, a body of freeholders was formed in every county, the county court being its centre. There they all discharged the same functions, and exercised the same rights; whatever, in other respects, might be their feudal relations with the crown. We thus see that the dissolution, on the one hand, of the ancient general assembly of immediate vassals of the king, and the localisation, on the other hand, of a great number of them in the county courts, while at the same time their interests were united with those of the freeholders, prepared the elements of a new nation, and consequently of a new political order.

Let us now see how this new nation manifested its existence, and was brought to a central position in the State by means of representation.

In 1214, while the discontented barons were preparing for revolution, John convoked a general assembly at Oxford. The writs of the king ordered the sheriffs to demand for that assembly the assistance of a certain number of armed knights; while other writs † ordered that the followers of the barons should present themselves at Oxford without arms, and enjoined besides that the sheriffs should send to Oxford four approved knights from each county “in order to consider, with us, the affairs of our kingdom.”

This is the first indication of knights being represented in Parliament, that is to say, of the admission of certain individuals, who should appear and act in the name of all.

Was then this idea at that time present to their minds? Probably not. How were these four knights nominated? Were they chosen by the sheriff, or elected by the county court? Were these writs actually executed? All this is uncertain. But that which admits of no doubt is the aim and tendency of this innovation. The contents of the writs themselves, and the circumstances in the midst of which they were issued, clearly indicate its object. It is evident that John wished to find in the knights of the shires a means of defence against the barons, and that consequently the former already formed a class so far distinct from the latter that the attempt to separate them entirely from it was not altogether unreasonable, while they were sufficiently important to be appealed to as powerful auxiliaries.

John’s attempt did not succeed. Facts prove that, in the struggle between the royal power and the barons, the knights and other freeholders espoused the cause of the latter, who, as they protested in favour of public rights, were acting no less for the interest of the knights than for their own.

The struggle continued during the whole of Henry the Third’s reign, and throughout this period we find the king constantly endeavouring to alienate the knights from the party of the barons and win them over to his own, while the barons exerted themselves to keep the knights attached to themselves.

The following is an illustration of the attempts made by the royal power. In 1225, one of the periods when the charters were confirmed by Henry III., we find that writs were addressed to the sheriffs of eight counties, requiring them to cause to be elected in each of these counties four knights who should present themselves at Lincoln, where the council of barons was then assembled, in order to set forth the grievances of their counties against the said sheriffs, who also should be present to explain or defend themselves. In this case, there is no reference except to merely local affairs of particular counties, and the four knights are not called upon to take any part in the general assembly, but they are elected and sent in order to treat of the affairs of their counties before the central council. Here the election is a positive fact in the case, and the nature of their commission—to protest against local grievances—is one of the principles of representation.

In 1240, we find a general assembly of barons meeting in London, in which, however, there is nothing remarkable except the name given to it by the chroniclers. In speaking of it, Matthew Paris employs for the first time, the word Parliament (parliamentum).

Lastly, in 1254, when Henry III. was in Gascony and wanted money, he ordered the convocation of an extraordinary Parliament in London in order to demand of it an extraordinary subsidy. At the same time, he addressed a writ to the sheriffs, enjoining them to cause two knights to be elected in the county courts, “in the stead of each and all of them” (vice omnium et singulorum eorumdem), to deliberate on the aid to be granted to the king. Here then is a real and positive instance of representation; deputies are elected, they are introduced into the assembly, and a deliberative voice is there given to them. Certain historians have maintained that these writs were not executed, but on this point no satisfactory information is to be had. However, as it is proved that a subsidy was granted to the king, there is reason to believe that it was consented to by this assembly, composed of barons and knights.

Up to this time, the great feudal aristocracy had retained the knights and other freeholders on their side; we have now to see how they became alienated from them, and how, after having been for a long time the allies of the barons, they became afterwards allies of the throne.

During the year 1254, a general irritation broke out in the kingdom on the occasion of the demand for an extraordinary subsidy. Henry III., who was misled by the artifices and promises of Pope Innocent IV., had engaged in an adventurous war against Manfred, the usurper of the throne of Naples—a war in which Henry must have borne all the expense, and of which the Pope would doubtless have reaped all the advantages, if it had succeeded. But there was no occasion that his good faith should be put to such a test, for the war was an entire failure. Henry, however, had contracted an enormous debt; his prodigality and extravagance had drained his resources; and he was obliged to appeal to his subjects in order to relieve himself of this burden. These demands for money, which indicate what progress the principle that the king cannot levy imposts on his sole responsibility had made, served as a pretext for the discontented barons to take arms against their king. Simon de Montfort, Earl of Leicester, placed himself at their head, and civil war was declared.

But the aristocracy were weary of these incessant combats, which only yielded momentary advantages. The insurgents formed the project of no longer contenting themselves with conquering the king—they determined so far to fetter him as that henceforth he should be fully dependent upon them. The barons who had wrested Magna Charta from King John had attempted, in order to provide themselves with guarantees, to give beforehand a legal organization to civil war, in case the charter should be violated. The barons who dictated the law to Henry III., went farther: they attempted to organize, not a resistance but a power, and to secure for themselves guarantees, not in civil war but in the very constitution of the government. Not being able to restrain the authority of the king within just limits, they undertook to deprive him of it altogether, and to assume it themselves—in one word, to substitute the government of an aristocracy for that of the king.

They had already made a similar attempt in 1244, when their design had been that four prominent members of their body should be admitted to the council of the king, who would have followed him constantly and governed under his name. At that time the attempt had been unsuccessful, but at the time which we are now considering, their endeavours were followed by better results. In the Parliaments convoked successively in 1255, 1257, and 1258, the most violent reproaches were heaped upon Henry III. as to his prodigality, his faults, his infatuated enterprises, and above all the violation of his oaths of fidelity to the Great Charter. Henry was intimidated, and, as he desired to appease his barons in order to obtain from them a subsidy, he promised to repair his errors and reform his government. It was determined that this reform should be regulated by a Parliament convoked at Oxford, June 11, 1258.

This is the first assembly that has received the official designation of Parliament. The barons attended it, armed and followed by a large retinue; Henry, on the contrary, not having taken any precautions against them, found himself their prisoner. Nevertheless they performed what had been agreed upon, that is to say, that they should commit the care of deciding on the projected reforms to twenty-four barons, of whom twelve were chosen by them, and twelve nominated by the king.1

An unlimited authority was conferred upon these twenty-four mediators. They began by making a complete change in the form of government. Their first concern was to form the king’s council, and four barons chosen by the confederation were commissioned to organize it. They composed it of fifteen members, and of these fifteen, nine at least were taken from the party of the barons, so that the chief power was placed entirely in the hands of these nine persons, and consequently, in the hands of the barons.

A large number of regulations, known under the name of the Acts of Oxford, were determined upon by this assembly, that is to say, by the council of twenty-four barons. No complete collection of them is to be found in any authentic document. The following may be gathered from different historians; among other things the barons demanded:

• 1. That the charters should be confirmed;
• 2. That they themselves should annually nominate the judges, the chancellor, the treasurer, and other officers of the king;
• 3. That they should have the keeping of the royal castles;
• 4. That three Parliaments should be convoked every year, in the months of February, June, and October;
• 5. That a permanent commission of twelve barons should be appointed, who should be present at these Parliaments, and assist the royal council in the transaction of all business;
• 6. That four knights should be appointed in each county, to receive all complaints against the sheriffs or other officers of the king, and to give an account of these to the next Parliament;
• 7. That, for the future, the sheriffs should be nominated by the county courts;
• 8. Lastly, that the king, his son Edward, his brothers, the archbishops, bishops, &c., should be obliged on oath to promise fidelity to the Acts of Oxford.

It was further agreed that the committee of twenty-four barons should reform all the abuses that had been committed in the kingdom, and administer, in the name of the king, the laws that were necessary for this purpose; and then allow the government thus regulated to proceed in an orderly way.

But after the separation of the Parliament, the barons, under the pretext that they had yet abuses to reform and laws to administer, refused to resign their power; and not content with retaining it illegally, they employed it to their own advantage. Their acts and laws had no other object than their own personal interest. Without knowing it, they were acting ruinously to themselves, for they detached from their party that part of the population which clearly apprehended their designs. Two laws especially alienated the minds of the people from them; one of these laws took away from the sheriffs the right to fine those barons who should refuse to present themselves at the county courts, or at the assizes held by the judges in circuit. The second decided that the judges’ circuits should only take place every seven years.

These measures opened the eyes of the people, and they speedily abandoned the authors of them. One fact may prove how far their tyranny had been already exercised at the expense of the country. A deputation was sent to Prince Edward in the name of the English bachelors (communitatis bachelariae Angliae), praying him to compel the barons to finish their work and fulfil their promises, as the king had fulfilled his. The prince replied that he had sworn fidelity to the Acts of Oxford, and that he was resolved to keep his oath. Nevertheless, he demanded of the barons that they should resign their power, threatening if they refused, to compel them to do so, and to take into his hands the interests of the community.

What was this communitas bachelariae Angliae? There is reason to believe that by this name, the body of knights of shires represented themselves. We see by this that the great barons had alienated from themselves this class of men, and that the king had begun to attach them to his party.

From these facts we see that besides the two great powers anciently established—the nobility and royalty—a third power had been formed at this period, which alternately inclined to one or other of these rival powers, and which already exercised a strong influence, since it ensured victory to the party in whose favour it might pronounce.

LECTURE 12

We have seen how, in the midst of the struggles between royalty and the feudal aristocracy, an intermediate class arose—a new but already imposing power—and how the two contending powers each felt the necessity of securing an alliance with this third power; we have now to follow, by the examination of authentic documents, that is to say, of the writs and laws of the period, the progress of this new class, which we shall find taking an increasingly active part in the government of the country.

We have seen how the twenty-four barons, who were commissioned to reform the constitution of the kingdom, abusing the power which they thus held in trust, had refused, in spite of the king and the country, to resign their dictatorship. This refusal soon excited violent dissensions between them and the king, and civil war was on the point of being again enkindled. In 1261, Henry sent writs to several sheriffs, enjoining them to send to him, at Windsor, the three knights of each shire who had been summoned to St. Albans by the Earl of Leicester and his party. These writs plainly show that the king and the barons endeavoured more than ever to conciliate the body of knights, and that the king had then succeeded in attaching them to his party.

Henry sought yet another assistance. On his entreaty, the Pope released him from his oath of fidelity to the Acts of Oxford. Delivered from his scruples, Henry now openly broke off his agreements with the barons, and again possessed himself of the reins of government. In 1262, he convoked a Parliament at Westminster, that his authority might be sustained by its sanction. He met with but little opposition: wishing, however, to deprive the barons of every motive for revolt, he agreed to leave the adjustment of their claims to the judgment of an arbitrator. The great renown for wisdom and equity which Saint Louis possessed pointed him out as the best judge in this important dispute. Accordingly Henry and his barons agreed to abide by his decision.

Saint Louis assembled his great council at Amiens, and after careful deliberations, he recorded a judgment by which the Acts of Oxford were to be annulled, and the king to be placed again in possession of his castles, as well as of the right to nominate his own counsellors. But as he was equally careful to preserve the lawful prerogatives of the English people and those of the crown, Saint Louis gave his formal approval to all the ancient privileges, charters, and liberties of England, and proclaimed an absolute and reciprocal amnesty for both parties.

Scarcely had this decision been made known than Leicester and his party refused to submit to it, and took up arms for the purpose of seizing by force that which had been refused to them by justice. Civil war was recommenced with much animosity, but it was not of long duration. Leicester surprised the royalist army at Lewes, in the county of Sussex, on the 14th of May, 1264. Henry and his son Edward, being vanquished and taken prisoners, were constrained to receive the terms offered them by the conqueror. The conditions which he imposed were severe, but he did not assume to himself the right of settling the reforms that were to be made in the government; he only retained as hostages the brother and son of the king, and left to Parliament the care of settling political questions. Ideas respecting the legal authority of Parliaments, and the illegitimacy of force in matters relating to government, must have made considerable progress, when we find that the victorious Earl of Leicester did not venture to regulate on his own sole responsibility the plan of administration for the kingdom.

He did not, however, scruple to exercise other rights which did not belong to him any more than these. Under the king’s name, who, though to all appearance set at liberty, did in fact remain his prisoner, Leicester governed the kingdom. In each county he created extraordinary magistrates, called preservers of the peace. Their duties were almost identical with those of the sheriffs, but their power was of much wider range. Leicester enjoined them to cause four knights to be elected in each county, and to send them to the Parliament which was to meet at London in June 1264.

This Parliament assembled and passed a decree which was designed to organize the government. This decree constrained the king to follow in everything the advice of a council composed of nine members, nominated by three principal electors, the Earls of Leicester and Gloucester, and the Bishop of Winchester.

Leicester still remained the real head of the State. In the midst of his power he was troubled by alarming disturbances; powerful preparations to oppose him were being made in France. These attempts were unsuccessful, and Leicester, in order to anticipate any fresh opposition, undisguisedly sought protection from that part of the population, which was every day becoming more numerous and powerful—the middle classes. On the 14th of December 1264, he summoned a Parliament, and gave to it all the extent which it has since preserved, that is to say, he called to it the peers, county deputies, and also borough deputies. This innovation was intended to conciliate popular favour, and Leicester did not relax in his endeavours to preserve it. Relieved from royal authority, he wished also to free himself from the aristocracy by whose assistance he had conquered the king. He turned his tyranny against the great barons who were not pliant to his caprices. He confiscated their lands, no longer summoned them to Parliament, and annoyed them in a thousand ways in their persons and their rights. But this was the infatuated course of a conqueror intoxicated by success. As soon as the royal power and the aristocracy combined against him, Leicester was obliged to yield. On the 28th of May, 1266, Prince Edward escaped from his confinement, raised an army against Leicester, and offered him battle on the 4th of August at Evesham. Leicester was defeated and killed in the combat. His conduct was, though factious, yet great and bold, so that he may be called the founder of representative government in England, for, while he struggled at one time against the king, at another time against the barons who were rivals to himself, he hastened the progress of the middle classes, and definitely established for them a place in the national assembly.

Henry, delivered from slavery by the death of Leicester, recovered his power and used it with moderation. Several Parliaments were convoked during the last years of his reign, but it is not proved that any deputies from the counties and boroughs sat in them. There is even reason for thinking that, in the midst of the disorder that then prevailed in the kingdom, the trouble of convoking them, which was always tedious and difficult, was dispensed with. The Parliament held at Winchester on the 8th of September 1265, in which the confiscation of the goods of the rebels was granted to the king, was composed entirely of prelates and barons. This also was the case with regard to that which was convened by the king at Kenilworth, the 22nd of August, 1266, in which, after the rigour of the confiscations had been somewhat moderated, the Acts of Oxford were annulled, but the charters were solemnly confirmed. Nor do we find that deputies were present at the Parliament held at St. Edmundsbury in 1267; but they were admitted to that held at Marlborough, convened in 1269, to which were called “the wisest in the kingdom, as well those belonging to a lower as to a higher rank.” Two years afterwards the deputies from counties and boroughs were summoned to a grand ceremony, in order to transfer the remains of Edward the Confessor to a tomb which the king had caused to be prepared in Westminster Abbey. After the ceremony a Parliament assembled; but it is uncertain whether or not the deputies had a place in it. This fact, however, does not the less prove the great importance which had at this time been acquired by the towns, and the habit which had been gradually established of summoning their deputies on all great occasions.

Such are the facts of the reign of Henry III. which relate to the introduction of county deputies into Parliament. No general act, no constitutional statute, called them thither. Indeed the idea of such political proceedings hardly existed at that period. Neither the government nor the people felt the need of regulating facts in a general manner, and fixing them on an absolute basis. The human mind had not arrived at that state of progress in which the conception of such a design is possible. Facts spontaneously developed themselves, in isolation and confusion, and according to the influence of existing circumstances. We may present a summary exhibiting the nature of their progress, and the causes by which the representation of counties was accomplished, in the following manner:—

All the king’s vassals originally formed one body, and were entitled to a seat in the general assembly.

This class of proprietors became divided; some became great barons, and continued to sit in the central assembly. Others continued to possess only a local influence. By this cause they were separated from the great barons, and became united by common interests to other free proprietors. The county courts became the point of convergence for this new class.

A struggle arose between the king and the great barons. Both of these sought support from the class of freeholders which existed in the counties. A part of these preserved, as direct vassals of the king, the right to take their seat in the central assembly. The great barons certainly alone exercised this right; but as their tendency was to possess themselves of authority, and to identify the great council of barons with the government, they felt the necessity of conciliating the body of freeholders who were vassals of the king or of themselves; and the idea of causing them to be represented by means of election was so much the more natural, inasmuch as elections had often taken place in the county courts, when there was any occasion to commit local affairs into the hands of certain proprietors. Thus the centralization of the higher aristocracy to resist the royal authority did of necessity involve and cause the centralization of the inferior proprietors, who could only exert their influence in the way of election.

Lastly, the principle that consent was necessary before any impost could be levied had prevailed; the charters established it to the advantage of the barons with regard to the king, and of the inferior vassals in reference to their lords. The more that power became centralized either in the hands of the king or of the assembly of barons, the more did the consent of the other proprietors to im-posts also necessarily centralize itself. That which had previously been local became general, and the centralization of the aristocracy of great barons involved the centralization of the aristocracy of free proprietors.

Another question now presents itself for examination: namely, the admission of town and borough deputies to parliament.

In general the towns possessed, before the Norman Conquest, considerable wealth and importance. We have seen them take a part in political events, and interfere actively in state affairs. The citizens of London concurred in the election of several Saxon kings; and those of Canterbury attended, under Ethelred II., at the county court. It is, however, nearly certain that the towns never sent deputies to the Wittenagemot. Their rights were limited within the circle of their own walls, and when they took part in politics, it was in an accidental and irregular manner.

After the Norman Conquest, the towns fell into decay, and lost not only their influence on general affairs, but even their local and individual rights. Their riches vanished with the commerce whence they had been derived, and the oppression of the conquerors completed their ruin.

They progressively recovered, especially after the reign of Henry II. At that time, considerable rights began to be granted or rather to be restored to them. The lord of the domain in which they were situated was at first the proprietor of them, and received tribute from their inhabitants; but they were allowed to ransom themselves from this burden by taking the town in fee-farm, a kind of tenure analogous to that of socage. Lastly, several towns obtained charters of incorporation, which gave them a more or less free municipal system.

The lord, whether king or baron, retained the right of imposing taxes upon them at will. This right, called the right of tallage, was at first exercised in an entirely arbitrary way, in virtue of the very superior force possessed by the lords; but in proportion as this superiority became enfeebled, and the towns, on the other hand, became strong enough to defend their independence, it was found necessary to make terms with them. In order to obtain money from them, privileges had to be granted to them; and if they did not exact concessions of this kind, they at least contended with their lord on behalf of their interests. Those towns especially which lay in the domain of the king, and were the most important of all, vindicated their rights with the greatest degree of vehemence. The royal judges had now no other occupation in their circuits than to obtain tribute from the towns and boroughs, leaving those which could resist pretty nearly to dictate their own terms, and making arbitrary charges on those which were not in a condition to defend themselves.

By these causes the admission of town deputies into the national assembly was delayed, while, on the other hand, the admission of county deputies was hastened. In the counties there was not that unity which is the natural characteristic of towns; there was hardly any possibility of treating separately and successively with proprietors scattered over their domains; and in order to obtain money from them, they had to be united. It was not so in the towns; the king dealt with them separately, made his advances upon them as they became isolated from one another, and always obliged them either to yield or to make him presents, to all appearance voluntarily.

However, some towns early acquired sufficient importance not only to gain and defend their liberties, but also to take part in general politics. Among these towns, London and the Cinque ports* must especially be mentioned. The importance which these possessed is established by a great number of facts, and we often find their inhabitants called nobiles and even barones. Indeed, their deputies appeared sometimes at the general assembly even before the Parliament of 1264, but in this there was no general principle, no public right recognized. There was this difference between the introduction into Parliament of county deputies, and that of town deputies—that the former is associated with a right, the right of the immediate vassals of the king, and therefore possessed from the first a character of generality; while the second, the introduction of town deputies, was dissevered from every idea of right, and resulted simply from isolated facts bearing no relation to one another. Representatives were granted to a particular town, but this did not involve any similar concession to all towns. Hence the arbitrariness that of necessity prevailed in the division of representation among towns and boroughs. Hence the vices which still actually exist in the electoral system of England.† There remain to the present day towns of considerable importance which send no deputies to the House of Commons; and these abuses arise from the fact that the elections of towns and boroughs have never been regulated in a general manner, and as public rights. In the first instance, all was decided by a solitary fact, and the right to representation has still continued as a right in the case of many boroughs and towns, although the primitive fact which originally suggested the right has disappeared—the fact, namely, of the importance of the town or borough. Through these causes the evil of rotten boroughs was introduced into the representative system of England.

However this may be, not till the parliament of 1264 do we see deputies from towns and boroughs appear in any large numbers in the Parliament. We do not know how many towns were then called upon to exercise this right; but the writs were addressed to them directly, and not by the intervention of the sheriffs. This innovation was doubtless a result of the policy of the Earl of Leicester. He had sought for protection against the king in the knights of the shires, and through these auxiliaries the king and the royal authority had fallen into his hands; but soon finding the want of another support against the barons, who had become his rivals, he found it in the towns, and called upon them to take a share in the exercise of power. This it was that rendered his memory so popular that the king was obliged especially to forbid his being spoken of as a saint.

We must then refer the complete formation of the English Parliament to the year 1264. Its existence was still very precarious; it rested on no law, on no public right; it was the creation of a time of faction. The first Parliament, in which Leicester had principally ruled (the Parliament of Oxford) was soon called the Mad Parliament—Parliamentum insanum. It might have been expected that the new form of Parliament, the presence of county and borough deputies, would have shared the same fate as that suffered by the other institutions which were introduced by Leicester for the purpose of organizing a purely aristocratic government, and which disappeared with him. But these rudiments of parliamentary organization were of a different character; they were veritably public institutions, which, instead of attaching themselves merely to particular interests, had for their basis the interests of the entire population. They survived Leicester, and his attempts against the royal power, which was itself obliged to adopt them. Under the reign of Edward I. they became definitely established, and acquired a consistency and stability which would no longer allow of their being attacked with success.

LECTURE 13

Great political institutions generally originate under feeble and incapable princes; in the midst of the troubles which arise in their reign, they are extorted from them. They are consolidated under more able princes, who know how to recognize the necessity for them, and to understand the advantages which they may derive from them.

This was the case in England under Henry III. and Edward I. Henry, who was entirely deficient in firmness, allowed, although quite against his inclination, all the concessions which were demanded of him to escape from his hands; his son, who was able and energetic, instead of setting himself to destroy the institutions which his father had permitted to come into being, made himself master of them, and turned them to his own advantage. Edward I. would not perhaps have allowed them to begin in his reign; but finding them in vigorous existence, he accepted them as they were, and instead of dreading or dispersing the new Parliament, he availed himself of it as an instrument to serve and strengthen a power which he exercised with intelligence. It was by the aid of the Parliament that Edward I. conferred, so to speak, a national character upon his wars and conquests—enterprises which might perhaps have excited his people against him, if he had reigned alone, and acted at once without public support and public control.

Two kinds of Parliament appeared under Edward I. The one kind was composed only of the higher barons, and seemed to form the grand council of the king; in the other, deputies from counties and boroughs had a seat.

No legal and fixed distinction existed between these assemblies; their attributes were almost identical, and they often exercised the same powers. However, the meetings of those Parliaments which were composed only of the higher barons were very frequent; they took place regularly four times a year. The other Parliaments, on the contrary, were only convened on extraordinary occasions, and when it was necessary to obtain from the freeholders, either of the counties or of the towns and boroughs, some general impost.

This, however, was not the only motive which could lead to the convocation of this last mentioned assembly, which, in truth, alone deserves the name of Parliament. Whenever business arose of so great importance that the concurrence of a great number of interests was judged necessary, the great Parliament was assembled, and by this cause its range of deliberation became more extended, and it assumed a greater consistency.

We may infer the moral force which the Parliament had already acquired at this period, by the political maxims which were generally admitted. Robert of Winchelsea, Archbishop of Canterbury, speaking to the Pope on behalf of the king and his barons, addressed to him this remarkable sentiment: “ It is the custom of the kingdom of England that, in matters which regard the state of that kingdom, the advice of all those interested in the matter should be consulted.”* There is no need that we should take this principle in its most rigorous application; it is not the fact that all those who were interested in these matters were consulted about them; but the sentiment is still a witness of the progress which had already been made by the ideas of a free and public government. This progress is still further attested by the answer which Edward himself made to the clergy, who demanded of him the repeal of a statute designed to restrain the accumulation of property in mortmain: “ This statute,” said he, “ had been made by the advice of his barons, and consequently it could not be recalled without their advice.” † In this case, also, the principle was very far from being strictly observed, and Edward himself, in 1281, on his own authority, altered several of the statutes which had been passed in 1278 by the Parliament at Gloucester. Nothing therefore was more irregular and uncertain than the rights of the public and the forms of government at this period. Principles were professed which were only very partially carried into practice, and which were often entirely neglected. But in the midst of this apparent disorder, great institutions were gradually being formed; the innovations of the preceding reign became habits, and these habits, sanctioned by time, became necessities. Thus rights were established.

As to the distinction which I have just made between the different assemblies which met at this period, as they are all equally called Parliaments, and exercised at various times the most different powers, it is difficult to fix precisely upon those which ought to be regarded as positive Parliaments. The boundaries which separate them are contracted and often imperceptible; it would be great temerity to pretend accurately to determine what was the real character of any particular assembly, and consequently whether it ought or ought not to be regarded as a Parliament. Whenever Tory writers have not found the presence of county and borough deputies attested by positive and official proof, such as the writs of convocation, they have denied the fact of their presence. But this is an excessive and partial exactness: very often the chronicles of the period supply the lack of writs, and indicate that these deputies were present. I will now point out the principal facts which have been omitted by these writers, which prove that complete Parliaments were frequently holden.

While Edward was still in Palestine, a Parliament was assembled in Westminster to take an oath of fidelity to the new king from the hands of the Archbishop of York, and, according to several chroniclers, four knights from each shire and four deputies from each city were summoned thither.

Edward, on his return to England, convened a new Parliament at Westminster, on the 25th of April, 1275. The preamble to the statutes which were on that occasion decreed has been preserved: it declares that “these statutes have been made by king Edward by the advice of his council, and with the consent of the archbishops, bishops, abbots, priors, barons, and of the commonalty of the kingdom.”

In the following year another Parliament was assembled in the same place; it was constituted in the same manner, and, to all appearance, consisted of the same members.

The year 1283 offers many proofs of the admission of deputies from the Commons into Parliament. In the month of January two extraordinary assemblies were convened, one at Northampton, the other at York, to raise the forces and obtain the subsidies that were necessary for the conquest of Wales. The writs of convocation have been preserved: in the one case, the sheriffs were ordered to send to Northampton all the freeholders who possessed a revenue of more than twenty pounds sterling; in the other case, they are enjoined to cause to be elected in each county, city, borough, and mercantile town (villa mercatoria), four knights and townsmen having full power “for the whole of the commonalty.” Lastly, in the month of June of this same year, a Parliament met at Shrewsbury, in order to decide on the fate of David, prince of Wales, who had been made prisoner, after the conquest of that country. The writs of convocation are of four kinds: the first are addressed individually to one hundred and eleven earls or barons; the second to the magistrates of twenty-one towns or boroughs; the third enjoin the sheriffs to cause two knights to be elected for each county; the fourth are addressed to seventeen members of the king’s privy council, among whom are the judges. From 1283 to 1290 we meet with several Parliaments, some of which are even celebrated by the statutes which emanated from them; however, there is no proof that any deputies from counties and boroughs were present at them.

But, in 1290, Edward on his return from France convened a Parliament at Westminster, in which it is certain that some county deputies sat. A writ has been preserved dated June 14th, 1290, addressed to the sheriff of Northumberland, and ordering him to cause two or three knights to be elected. There is every reason to believe that this county was not the only one thus privileged, and that there were others which also sent deputies to this Parliament. This convocation was probably intended to enable the county deputies to pronounce concerning the statute Quia emptores terrarum, which authorised the proprietors of fiefs to sell them at their discretion, and rendered the subsequent possessors direct vassals of the lord of the fief, while the sellers ceased to be such; this removed the necessity of sub-enfeofment, and must have considerably increased the number of the direct vassals of the king. Boroughs were not represented in this Parliament: probably because the matters of which it treated did not immediately concern them.

From 1290 to 1294 we find several Parliaments in which there is no indication that county and borough deputies had a seat. In these Parliaments the affairs of Scotland were considered. The magnates of the kingdom alone took part in them. In the Parliament held at Westminster in the month of October, 1294, only borough representatives are wanting; county deputies were admitted to it; they granted to the king a tenth of the moveable wealth of the kingdom.

In the following year we find that not only the boroughs and counties, but even the inferior clergy, exercised the right to be represented in the great assembly held at Westminster in the month of September, 1295. We possess the writs of convocation addressed to the bishops and archbishops, ordering them to cause a certain number of deputies for the chapters and for the clergy to be nominated; we have also those which summon forty-nine earls or barons individually, and those which enjoin the sheriffs to cause two knights to be elected for each county, and two deputies for each borough in the county. These boroughs were about a hundred and twenty in number. This assembly was more general in its character than any other that had as yet met; all classes of society had access to it, and we may truly say that the entire nation was represented. Accordingly the regular and complete establishment of the British Parliament is generally dated from this year, 1295.

This great assembly did not act as one single body; it was divided into two houses, the one containing lay representatives, the other ecclesiastical; and not only was the place of their meeting distinct, but their votes were distinct also. The barons and knights granted to the king an eleventh of their moveable wealth; the townsmen gave a seventh, and the clergy, after long disputes with the king, ended by only granting him a tenth, which was the offer originally made.

The Parliament which was held in the month of August, 1296, was constituted in the same way as its predecessor, and the votes in it were similarly divided. The barons and knights granted only a twelfth part of their moveable property, and the burgesses an eighth.

In 1297, a Parliament met at Salisbury, but the writs by which it was convened are lost; we do not therefore posess any direct proof of the presence of deputies from counties and boroughs in this assembly; however, there is extant a writ of the 30th of July, in the same year, in which Edward states that the towns and counties have granted him subsidies, and this indirect proof may supply the want of the writs of convocation.

During this same year (1297), the quarrel broke out between the aristocracy and the crown on the subject of the confirmation of the charters, and the Earls of Norfolk and Hereford, by their bold steadfastness, secured victory for the national cause, and extorted from the king a complete and definite sanction to the rights and institutions whose maintenance they vindicated. We find at this time that two deputies were summoned from each county to receive from the hands of the prince-regent those charters which had been confirmed by the king.

From the time when these charters were definitely confirmed, the convocation of deputies from the counties and boroughs was no longer an irregular and arbitrary transaction—it became a necessity. Accordingly, their presence in the Parliaments is constantly attested by authentic proofs.

Thus they were admitted to the Parliament convened at York, on the 15th of April, 1298; the writs of convocation of which are preserved. They were also present in the Parliament held at Lincoln on the 29th of December, 1299. The writs of convocation for this Parliament are similar to those which convened the preceding one. They summon the same deputies who had been present at the last Parliament, enjoining further that substitutes should be chosen in the place of any who had died since that time. We find, moreover, that writs were addressed to the chancellors of the Universities of Oxford and Cambridge, requiring them to send to the Parliament four or five deputies in the case of Oxford, and two or three from Cambridge; and directing them to select such deputies from among those who were most discreet and most learned in the law—de discretioribus et in jure scripto magis expertis praedictae Universitatis.

Lastly, the writs of convocation for the Parliament held at Westminster on the 24th of July, 1302, are in all respects similar to the preceding.

I will not further trace this series of facts, which henceforth ceases to be remarkable because of its unvarying uniformity. Suffice it to say that all the Parliaments which were held during the last five years of the reign of Edward I. were of the same nature and composed of the same members. Two of these, however, deserve special attention. The first is that held at Westminster in 1305. The particulars of its dissolution are preserved to us, as well as those which relate to the mode in which the petitions which already flowed into it were received. The second is that which met at Carlisle in 1307. We have the lists of the bishops, abbots, priors, earls, barons, &c., who sat in it. The number of earls or barons amounts to eighty-six, that of the bishops and abbots to sixty-eight. There were besides a great number of deputies from the inferior clergy, forming the lower house of the ecclesiastical convocation; and there were, moreover, two knights from each county, two citizens from each city, and two burgesses from each borough.

From all these facts it follows that, if at the commencement of the fourteenth century the Parliament was not yet constituted in an actual and definite form, yet it already rested on a fixed basis: moreover, as to its composition, we may deduce from the facts to which I have already referred, the following results:

I. The Parliament was composed, in the first place, of earls or lay barons convened individually by the king; secondly, of archbishops, bishops, abbots, and priors, also summoned individually; thirdly, of deputies from the knights or freeholders of the counties; fourthly, of deputies from cities, towns, and boroughs.

II. No law or statute, no ancient or recognized right, determined who were the earls, barons, abbots, &c., whom the king was bound to convoke individually. He acted somewhat arbitrarily in this respect, often omitting to summon those whom he had summoned on previous occasions.* These omissions were sometimes, though rarely, resisted by protests. The importance of a noble and of his family was the only guarantee of his convocation to the Parliament. Disorder, civil wars, and confiscations, prevented this convocation from being an incontestable and hereditary right, except in the case of a permanent feudal tenure.

III. The principal functionaries of the king, such as the judges and members of the privy council, were almost always convened to the Parliament by virtue of their official position; indeed, they were uniformly either earls or barons.

IV. The convocation of county and borough deputies was not a legal or public necessity; but it became an actual necessity by the predominance of the principle that consent in all matters of impost was a right.

V. The convocation of county deputies was more certain and regular than that of borough deputies; more certain, because it originated partly in a right which had not then been questioned, and which it was necessary to respect—the right, namely, of every immediate vassal to a seat in the general assembly; more regular, because the county courts, which were all composed of the same elements and possessed of the same interests, constituted a uniform and identical whole throughout England, so that some could not be admitted to the privilege of representation without all the rest being admitted also. As the towns and boroughs, on the other hand, only owed their admission into Parliament to varying causes without unity or connexion with each other, and were only called to assist in matters which concerned themselves individually; so the admission of a representative from one town did not at all involve the admission of representatives from other towns, nor even the continuance of this privilege in any one case.

VI. The number of town and borough deputies was not fixed. The king determined this arbitrarily. Nevertheless the convocation of two deputies for each county, and as many for each borough, passed into a rule.

VII. However irregular the convocation of borough deputies might be, there is no reason to think that the number of boroughs which were then represented in the assembly was as limited as has been assumed; there is no reason to think, as has been maintained by Tory historians, that only towns in the domains of the king originally sent deputies to Parliament. The assumption is, on the contrary, contradicted by facts which prove that, besides the towns belonging to the royal domain, those which had received a charter of incorporation, either from the king or from some great baron, were represented; as were also those which, without having received any such charter, were rich enough to pay the expenses of their deputies. However, the importance of particular towns, and the necessity that was felt for their concurrence in public business, was in this respect the only rule; and most frequently, the choice of the towns which should be represented was left to the arbitrary decision of the sheriffs.

LECTURE 14

We have seen how county and borough deputies were introduced into Parliament; but we are still far from having obtained a complete and correct idea of representative government as it existed in England at the period at which we have now arrived. We have yet to learn by whom and in what manner these members were nominated—in a word, what was then the electoral system, if we may be allowed to give this name to a collection of isolated customs and institutions unconnected with each other, and almost entirely destitute of any generality or unity of character.

The two political parties, whose opposition and debates are met with at every step in the study of English institutions, have not failed to resolve this question, each in a different manner. The Tories, always disposed to limit the boundaries of public liberty, maintain that the introduction of county members into Parliament arose primarily from the impossibility of uniting in the general assembly all the direct vassals of the king, the whole body of whom alone had the right to be present; and that landowners of this class were originally the sole electors of these representatives. The Whigs assert, on the other hand, that all the freeholders in the county, whether direct or indirect vassals of the king, have always taken part in this election.

I shall seek the solution of this question exclusively in the facts which have special reference to the introduction of county members into Parliament; and as this change has been the result not of secondary or unforeseen circumstances, but of the natural course of time and of events, it is needful first to call to mind the general facts which preceded it and gave it birth.

We have seen that, a large number of the direct vassals of the king having very early renounced, on account of their small wealth or influence, their attendance at the general assembly, their political existence became localized and restricted to county affairs, and to attendance at the county court, at which those affairs were transacted. The direct vassals of the king, however, were not the only persons interested in the affairs of the county. Many other freeholders, whether vassals of the great barons or originally simple socagers, possessed considerable wealth and influence;* and as actual possession at this period was almost the only arbiter of right, there is little doubt, a priori, that all the freeholders of any importance in the county were then admitted to the county-court, to direct the administration of justice and to discuss their common interests.

These probabilities are changed into absolute facts by the testimony of history. It is proved that the knights, who were direct vassals of the king, did not alone compose the county-courts. From the time of William the Conqueror to the end of the reign of Edward I. a multitude of deeds, laws, writs, and historic records prove that all the freeholders, or nearly all, sat in these courts; and that if there were some exceptions to this rule, they did not in the least proceed from any general distinction between the direct or indirect vassals of the king, but merely from particular conditions imposed on individual tenures. For it does not appear that all freemen-landholders were equally compelled to make their appearance at the county-courts, as this service was esteemed a burden rather than a privilege.

It may then be regarded as certain, that either by the fall of many of the direct vassals of the king, or by the elevation of a great number of the simple vassals of the nobles, there had arisen in every county a body of freeholders, all of whom, in reference to the affairs of the county, and independently of the nature of their feudal relations, possessed the same importance and equal rights.

The county-courts, thus composed, exercised the right of election long before the regular and definitive introduction of their representatives into Parliament. Here officers invested with the powers necessary for the transaction of the county business were sometimes elected; and sometimes knights were appointed to execute the measures of the central government, or sent thither as bearers of complaints or representations. Instances of such elections are numerous. The charters have frequently prescribed them, and they are continually spoken of in the chronicles.

It cannot be affirmed that this appointment of particular knights for the transaction of specific local business was always conducted in a regular manner and by a distinct election. It was sometimes done by the sheriffs alone: but it is certain that most generally it took place “by the community of the county, with the consent and by the advice of the county, per communitatem comitatus, de assensu et consilio comitatus.”

We gather from all these facts, first, that before the introduction of county-members into Parliament, the direct vassals of the king, who, on account of their inferior importance, had ceased to attend at the general assembly, did not form a distinct body in the county-courts, or a particular class of landowners invested with peculiar rights; but that, on the contrary, they were merged in the general class of freeholders, nearly all of whom also attended the county-court, and there exercised the same rights; and, secondly, it is unquestionable that this assembly of freeholders was in the habit, in certain cases, of appointing some one of its members either for the management of the county business, or for any other purpose.

Are we to believe that when the object in view was sending representatives of the county to Parliament, there was substituted, in place of the existing order of things, a new order by which to elect them? or, in other words, that those freeholders, who, though direct vassals of the king, were on the same footing with the other freeholders as regarded all the operations of the county-court, were distinguished from them by being alone called upon to elect members of Parliament? Nothing is less probable in itself, and in fact nothing is less true than that there was such a disorganization of the county-courts at election times.

It is not at all probable, because, in the state of society at this period, the status quo almost always ruled. We are greatly deceived if we expect to find the institutions of the time under the sway of some general rule, and issuing in the inevitable consequences of a principle. There was no such dominant general rule or principle. When a new law appears, it is the product of facts, not of a theory. When any new demand is made upon society, it is society in its actual condition, and not a systematically constituted society, which replies to the demand.

The freeholders in general formed the county-court on every occasion, and took part in all its acts. What reason could there be for suddenly setting aside an established custom in order to create a privilege in favour of certain landowners whose position, although special in some respects, was but little distinguished from that of others? Was there any occasion for an act so unusual that it could not be put in force without subverting the customs then in vogue? There was none: on the contrary, this act appeared to the county landowners as only another circumstance allied to the many existing facts of the same description: they neither foresaw all the importance which this fact could not fail to acquire, nor all the consequences to which it would necessarily lead. This election of knights summoned to Parliament, although somewhat more important than other elections, resembled all those which were frequently made in the county-court, and in which every freeholder took part. Why should the right of voting on such occasions have belonged exclusively to particular individuals among them? Were they not all equally interested, as the majority of the taxes were levied on their personal property; and the principal duty of the deputies was the settlement of the taxes? How is it possible to believe otherwise than that this, like every other election, was made by all the members of the county-court without distinction?

Facts, I repeat, confirm these probabilities. The writs addressed to the sheriffs by the king for the election of county members, are conceived in the same terms as those issued for elections relating exclusively to the administration of local affairs. They equally set forth that these knights shall be elected with the assent of the community of the county, de assensu communitatis comitatus. Further, the returns of the sheriffs declare that the election has been made “in full county, by the whole of the community of the county,” in pleno comitatu, per totam communitatem comitatus. Under the succeeding reigns, terms yet more formal were employed; thus, about the middle of the reign of Edward III. the writs contain, that the election ought to be made “according to the will, and with the consent, of the men of the county,” de arbitrio et consensu hominum comitatus. Finally, facts which have come down to us from later times prove that all freeholders possessed an equal right of participation in these elections. In 1405, a statute of Henry IV., intended to prevent certain abuses committed on these occasions by sheriffs under the preceding reign, orders among other things, that “all those who should be present at the county-court, even when they had not been duly summoned thither by the sheriff, should take part in the election.” Lastly, under Henry VI., the great number of the freeholders having given rise to many disturbances during the elections, two statutes (the first issued in 1429, and the second in 1432) limited the right of suffrage to freeholders possessing an annual income of forty shillings: this was the first and last limitation of the kind, and it still continues to subsist in England.

Thus, moral probabilities and historical facts alike indicate, that since the origin of the Parliament in its actual form, the representatives of counties have been elected not only by the direct vassals of the king, but by all the freeholders, whether mediate or immediate vassals, who composed the county court. In order definitively to establish this opinion, nothing remains but to examine the proofs that are alleged in favour of the opposite opinion. These may be reduced to two: first, it is said, that as the direct vassals of the king alone possessed originally the right of sitting in the general assembly, and as the election of knights of the shire arose entirely from the impossibility of assembling in Parliament all the direct vassals of the king, the latter alone must have been the electors of the representatives who were sent in their place. Secondly, the vassals of the barons long demanded exemption from the obligation of contributing to the payment of the fees allotted to the county members, which proves that they could not have shared in the election; for had they done so their claim would have been absurd. Both these proofs have the fault of being indirect, and of resting upon consequences deduced from general facts, and not upon special and positive facts, such as those I have just adduced in support of the contrary opinion. Moreover, the first argument supposes the existence of a general and absolute principle which was invariably followed; and that the county members were summoned to Parliament only to represent the direct vassals of the king. This supposition is neither probable nor conformable to facts. We again repeat, that there was at this period no general principle, no fixed and invariable rule. General principles and their consequences exist only in a calm and settled state of society; they are incompatible with a rude population and long-continued disorder. How, then, could social classifications and their corresponding rights have remained fixed and distinct in the midst of such chaotic confusion? Besides, the feudal system never exercised such complete sway in England as to insure anything like a strict observance of its principles. It is true that the right possessed by all the direct vassals of the king to appear in the central assembly, was one of the sources of county representation; but when this right, after having fallen into desuetude, began to revive in the persons of representatives, it was outweighed by an actual and more powerful circumstance, the formation of the general class of freeholders, meeting at the county-court, and there exercising the same functions and equal rights. This fact is incontestible; so the Tories are compelled to acknowledge that the deputies were elected by all present at the county-court. But how do they attempt to escape from the consequences of this confession? They maintain that the direct vassals alone sat in the county-court: an opinion too much opposed to the nature of things and to all the facts which I have brought forward, to require refutation.

There is another difficulty which perplexes Tory writers, and which they are equally unsuccessful in their attempts to surmount. It is impossible for them to deny that under the reigns subsequent to that of Edward I., and especially under Henry IV., all the freeholders in the county took part in the election: now, to avoid this embarrassment, it is pretended, that taking advantage of the disorder of the times they had usurped the right of suffrage, and that the statute of Henry IV. (in 1405) for the first time legalized this abuse, and lawfully summoned the freeholders to the election of deputies. There is no probability in this supposition, which is not supported by a single fact. Between the reigns of Edward I. and Henry IV., nothing can be discovered which indicates the usurpation of the electoral right by a portion of the freeholders who had remained till then strangers to the election. No trace of change in the composition of the county-courts is to be found, nor any alteration in the form or language of the writs of convocation. Everything indicates, on the contrary, that the elections continued to be conducted as in former times; and that the statute of Henry IV. has evidently no other object than to prevent the illegal practices of the sheriffs, which had become scandalous under the reign of Richard II. Thus, in whatever light it is viewed, this first argument is utterly valueless.

The second is of no greater worth. It is founded upon the supposition that those only who have a voice in the election of representatives ought to contribute to the payment of their salary. Now this supposition is explicitly contradicted by a writ of Edward III., which proves that even the villani, the simple husbandmen, who certainly took no part in the election, were required to contribute to the payment of the fees. If it appear, then, that the freeholders demanded release from this impost, it cannot thence be concluded that they had no share in the election.

In these demands there is nothing extraordinary. The office of member of Parliament was originally more an onerous burden than an advantage. The person elected was compelled to give security to guarantee his attendance at the assembly. A curious instance is mentioned of an elected knight who could not find the required bail; the sheriffs, therefore, seized his oxen and farm-horses to compel him to fulfil the duties of his office. In a short time, to render the charge less onerous it was made lucrative: fees being awarded to the representatives. These fees were levied on the entire county, with the exception of certain particular immunities. A writ of Edward III. proves this distinctly. It is true that the vassals of the barons, chiefly under the reign of Edward III., made frequent claims of exemption from payment of the salaries due to the members: but these were not founded upon the circumstance that they had had no share in the election; they rested on a pretext derived from feudal law, maintaining that, as their lords sat in Parliament in their own right, that is to say, in their quality of peers, they were represented by them, and ought not to pay the salaries of the county representatives. It is evident that these claims proceeded from confusing ideas of the ancient feudal representation (a fiction which rendered the noble in some sort the proxy of his vassals) with ideas of the new system of representation. These facts in no way prove that the vassals of the barons took no part in the election of the county members; all that they indicate is that the collection of the members’ salaries was very arbitrary, and was regulated by different customs in each county; no conclusion can, however, be drawn from them relative to electoral rights.

Now that I have reduced to their just value these two arguments, the sole support of the opinion which I oppose, it appears very nearly certain that all the freeholders who attended the county-court united in the election of the representatives, whatever might be the nature of their feudal relation to the crown.

Having completed our researches into the election of county members, let us next examine how the election of the representatives of boroughs was conducted.

Although in the county-courts no fixed rule nor systematic distinction regulated the distribution of electoral rights, there was at least something general and identical in them throughout England. The counties were territorial districts of the same nature; the county-courts, wherever situated, were the same institution, and the freeholders formed one class of men. Out of circumstances nearly everywhere alike, there naturally arose an electoral system in all places the same.

It was not, nor could it be thus with respect to the boroughs. They had acquired their liberties successively to a greater or less extent, and under a thousand different forms. The political state of one town gives no clue to that of other towns, as they were not at all correspondent to one another. Sometimes the municipal rights belonged to the more or less numerous corporation which held the town in fee-farm; sometimes to the general body of freeholders who held their houses in burgage-tenure, a kind of tenure analogous to the tenure in socage; sometimes to the entire body of householders; occasionally, but more rarely, to the whole of the inhabitants. When any particular borough was summoned to send deputies to Parliament, it occurred to no one to consider this new right as distinct from their municipal rights, and to regulate the electoral system on a separate basis. This summons had reference to the borough in its existing condition, and did not introduce the slightest innovation into the exercise of the civic authority. The citizens who, in virtue of their charter, enjoyed the right of managing the affairs of the borough, also exercised that of naming its representatives. There was then nothing general or uniform in the foundation of this new right, and it would be impossible to reduce the elections in towns and boroughs to any common principle. We can only examine a number of particular facts, and derive from them the following results:

I. The political right of electing members of Parliament was not distinct from the municipal rights of the borough, and was exercised in the same manner and by the same citizens.

II. From this it follows that the election was commonly made by the council, who directed the local interests of the borough: the number of electors, therefore, was very limited at the outset.

III. Where a corporation held a town in fee-farm, it also possessed the right of appointing the members of Parliament. These corporations were generally composed of a few individuals.

IV. As the freeholders of many boroughs sat in the county-courts, not a few of the elections of borough members took place originally in these very county-courts, and by the borough freeholders who repaired thither, and who exercised this power either on their own account, or as authorized by their fellow-citizens.

V. The writs or orders for the election of deputies were at first addressed directly to the borough magistrates themselves. This, at least, was the case in 1264, the period of the first convocation with which we are acquainted of the representatives of boroughs under Henry III. In 1283, the same procedure was followed by Edward I. for the convocation of the Shrewsbury Parliament, to which the representatives of twenty-one boroughs were summoned. In 1295, the writs were addressed to the sheriffs of the counties in which the boroughs were situated, and from that period, this has been the habitual and legal form of convening the boroughs. In 1352 and 1353, however, Edward III. addressed his writs directly to the municipal magistrates, on the first occasion for ten boroughs, and on the second for thirty-eight. These are the last examples of similar convocations. The Cinque-ports remained the only boroughs which received the writs directly.

These facts explain how borough-representation has been so easily corrupted in England, and remains so disgraceful to this day.* In every town political rights have remained restricted to the municipal bodies, who, originally, were usually comprised in a very narrow circle. The general tendency has been ever since, and especially at the period of the revolution of 1640, to extend electoral rights in boroughs, and thus to render the election more popular; but, on the whole, the choice is invariably made by the municipal powers, organized according to their ancient charters of incorporation. In the counties, electoral rights have adapted themselves to all the vicissitudes of property, and have become proportionably extended: in the boroughs, they have remained unaltered. Every unchangeable institution is vicious, because ultimately it will be sure to establish privileges in opposition to the actual state of society.

I should wish to be able to add to these researches into the electoral system of England in the thirteenth century some particular and circumstantial details concerning the forms of elections; but nothing can be discovered on this subject, either in history or in the laws. The laws did not mention the matter, because at this stage of civilization it is not thought that such things require to be either regulated or expressed. It is probable that the electors, who were generally very few in number, agreed among themselves, in presence of the sheriff, on the representatives they wished to appoint; and that the sheriff, by a writ, informed the Court of Chancery of the nomination. The only important circumstance in this mode of election was the open voting, which has been perpetuated to this day. Nobody then attached sufficient importance to his choice to think concealment necessary.

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

LECTURE 15

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

In the present day, political science has rarely considered questions in this point of view, though it is the first and most important of all; it has operated on society and its government by a process of dissection; it has taken all powers and rights one by one, and has endeavoured to define each separately, and with regard to itself alone; seeking first completely to disjoin them from one another, and then to make them to proceed together, confining each strictly to its own sphere. In this manner have we seen enumerated the legislative power, the executive power, the electoral power, the judicial power, and the administrative power, and every effort of science has been exerted to make these different powers co-exist, while maintaining among them a rigorous distinction, and enjoining upon them never to fall into confusion, nor even to assimilate their offices and action. The same system has been applied to the rights and liberties of citizens. It is easy here to discern the triumph of the fondness for analysis which characterized the last century. But analysis is a method of study, not of creation. The spirit of analysis is scientific, but never political. In politics, whether dealing with rights or powers, the object is to create real vital forces, capable either of enforcing obedience or resisting oppression. This can never be attained by analysis; for, in reality, actual life is a very complicated matter, requiring the union and amalgamation of a multitude of different elements, each modified and sustained by the others. Analysis elucidates and separates into parts, but never constructs. This truth is demonstrated by the political history of our own time. All these powers and rights, so carefully enumerated and distinguished by science, so narrowly enclosed within specified limits, were found in the time of action to be destitute of consistency, energy, and reality. It was decreed that the legislative power should be absolutely separated from the executive power, the judicial power from the administrative, the municipal from the electoral power: liberties and rights have been isolated and dissected just in the same way as powers; and ere long all these rights and powers, incapable of existence and action in their isolated condition, have become centralized or lost in the hand of an individual or collective despotism, which alone was powerful and real, because it alone was other than a theoretic design or a scientific conception.1

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

It is very evident that nothing of this kind occurred at the period of the formation of the British Parliament. Politics did not wear so scientific a character, nor lay claim to such consideration, as at present. It was necessary to summon together the principal men in the kingdom—merchants, landowners, and others—that they might assist in particular public business. But this was never imagined to be the creation of a new right, or of a new power. Established rights and existing powers were called upon to exercise this new function, and to appear under this new form. The freeholders, that is to say, every free and varitable landowner, used to assemble in the county-courts, to administer justice and to treat together of common interests; and these county-courts were charged with the nomination of representatives. In towns of any importance, the citizens, under forms more or less liberal, regulated their own affairs, chose their own magistrates, and exercised in common certain rights and powers; and these municipal corporations were required to send members to Parliament. Thus, the assemblies which we now designate electoral colleges were never at that period, as they now are, special and isolated assemblies, invested with a temporary duty, and in all other respects unconnected with the administration of the country. County courts and municipal corporations, which were already firmly planted and established, and possessed inherent strength, were constituted into electoral colleges. Thus the electoral system from its origin was united with every right and institution, and with almost every local and real power. It was the extension and development of existing liberties, a powerful force added to other forces previously in action and exercising government over other interests. It was not that in one place there were merely electors, in another administrators, and elsewhere judges; but there was a body of citizens who participated in the administration of local affairs, and in rendering justice; and who elected deputies for the transaction of general business. It is easily understood that—being thus deeply rooted in the community at large, and closely united to all other powers—the electoral power (to employ the language of the present day) was defended from every vicissitude through which we have seen it pass, when attempts have been made to establish it, by itself, in some particular aspect or combination.2

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

It is an error in modern politics immoderately to fear power, whatever may be its form or situation. It is divided and subdivided infinitesimally, until it no longer exists, so to speak, except as powder. This is not the way to establish liberty.3 Liberty cannot exist except by the possession of rights, and rights are worthless if they are not themselves powers—vital and strongly constituted powers. Placing right on one side and power on the other is not constituting a free government, but establishing a permanent tyranny, sometimes under the name of despotism, and sometimes under that of revolution; the problem is to place power everywhere in the hands of right, which can only be done by organizing or accepting at once, in the very centre of the government, and in every stage of its action, authority and resistance. Now resistance is only real and effectual when capable on all occasions of opposition to authority, when authority is compelled to treat with it at all times, to conquer or to yield. What then is the electoral right or power, if so it is called, when isolated from every other power? Its exercise is transient and infrequent; it is the crisis of a day imposed upon actual authority, which may, it is true, be defeated, but which, if it escapes, is afterwards perfectly free, and continues its course without the least obstruction, or sleeps in blind security. If, on the other hand, the electoral right is supported by other rights of more direct and frequent occurrence, if the electoral system is closely interwoven with the whole government, if the same citizens who have nominated the members, interfere in the affairs of the country under other forms but by the same title, if the central authority needs on other occasions their assent and support, if it finds them elsewhere also grouped and united for the exercise of other functions of power, then all rights serve as guarantees to one another; the electoral system is no longer suspended in air, and it becomes difficult to violate it in principle, or to elude it in its consequences.

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

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

All the elements and laws of every electoral system resolve themselves into these two questions: I. In whom are the electoral rights vested? that is to say, who are the electors? II. How are these rights exercised? that is to say, what are the modes of procedure and the forms of election?

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

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

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

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

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

There is nothing, then, that can be deduced from this in favour of an inequality among men called by virtue of the same principle to take part in a like action. Such an inequality never existed in the electoral administration of England in the fourteenth century. The difference that existed was derived from society itself, and was continued even to the very centre of representation, which did not present a more uniform whole than society itself.

The true, the sole general principle which is manifested in the distribution of electoral rights as it then existed in England, is this, that right is derived from, and belongs to, capacity. This requires some explanation.

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

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

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

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

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

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

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

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

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

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

The electoral system of England was less faulty, in this respect, at its commencement, than it has since become. It is very probable that, in the fourteenth century, all political capacity was almost entirely contained in the classes of the freeholders, the clergy, and the burgesses of the important towns. This kind of qualification corresponded, then, very nearly with the true external signs of capacity. It may even be said that if the representative system had then possessed all its energy, if the assembly of representatives had had power and importance to become the principal spring of government, and the object of individual ambition, it would very soon have been discovered that the legal conditions of capacity included a multitude of individuals in whom capacity did not truly exist. It was because many of those who possessed the right of sharing in elections took no part in them that the inconvenience of so much latitude was not at first experienced. The principle remained intact because it did not bear all its fruits. When the House of Commons occupied a higher place in the State, it became necessary to restrict the electoral right by requiring the freeholders themselves to possess an annual income of forty shillings. The action of Parliament in the government, and by consequence the importance of electoral rights, far surpassed the intelligence and independence of many of the men to whom ancient custom had accorded them. Thence arose the limitation established by the Parliament under Henry IV. Since that period, the progress of society and the changes which have occurred in the condition of property and industry, have altered in this respect the exactness, and therefore the excellence, of the electoral system. The legal signs of electoral capacity remain the same as to right, but, in fact, they have changed. Formerly, the freeholders were the only landowners who were truly free and capable of exercising political rights; the copyholders were then little better than villani: this has long ceased to be the case; although the legal distinction still subsists, it is merely nominal: copyholds are properties as free, as secured, and as fully hereditary as freeholds. The title of freeholder is now no longer, as formerly, the only one which designates a landowner capable of exercising political rights. The law, in its description of the external characters of electoral capacity, no longer corresponds really and truly with social facts. This inconvenience is not very great in practice, because there are few copy-holders of any importance who do not possess a freehold of forty shillings rent. It is however real, for it maintains a distinction between properties as to electoral rights, which is not founded upon any real difference between the nature of the properties, and the capacity of their possessors. The system has become much more vicious as regards electoral rights in boroughs. Here the external signs by which the law pretends to recognize capacity, are become, in many instances, utterly false. The importance of particular towns, and the material or intellectual development of their inhabitants, was originally the cause of their investiture with electoral rights. The capacity was there; the right followed. Now the principle has disappeared; there are some boroughs destitute of importance, the inhabitants of which possess neither wealth nor independence; capacity is no longer there, but nevertheless the right continues still. It might be supposed that the name of the borough, its site, or its walls, are the signs of an electoral capacity which ought to reside there for ever—that the privilege appertained to the stones. On the other hand there are other towns, which in the fourteenth century would not have failed to obtain their electoral rights, because in effect the capacities of their citizens would have been recognized, that do not yet possess them.

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

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

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

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

In summing up, we may deduce, from our examination of the electoral system of England in the fourteenth century, these three conclusions: I. The right ought to be co-extensive with the capability of judicious election, for it is its source. II. The conditions of electoral capacity should vary according to time, place, the internal state of society, public intelligence, &c. III. The external characteristics prescribed by the laws, as declaring the accomplishment of the conditions of electoral capacity, should neither be utterly immutable nor derived entirely from purely material facts.4

LECTURE 16

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From thence it necessarily follows that representatives ought to be the men most capable: 1. To discover, by means of their united deliberation, the law of reason, the truth which, on all occasions, the least as well as the greatest, exists, and ought to be the ground of decision; and 2. To enforce the recognition and observance, by the citizens in general, of this law when once discovered and expressed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Indirect election, on the contrary, effects beforehand a thorough purgation of the electoral capacities, and eliminates a certain number, solely on account of the opinions or interests which they may hold. It intrudes into the sphere of these capacities in order to exclude a part of the minority, so as to give to the majority a factitious force, and thus to destroy the true expression of the general opinion. We should exclaim loudly against a law which should say, a priori: “All the men, or only the third or fourth part of the men, attached to such an interest or such an opinion, shall be excluded from all participation in the election of representatives, whatever may otherwise be their importance and social position.” This is precisely what is done, a posteriori, by indirect election; and thereby it introduces into representative government positive disorder, for it creates a means of tyranny for the benefit of the majority. It may even happen, and examples of this are not wanting, that indirect election, when thus employed to eliminate a portion of the natural electoral capacities, may result in turning against the majority itself, and putting it in the minority. A supposition will clearly explain this idea. If, in the fourteenth century, it had been decreed in England, that “the copyholders and villeins should unite in nominating the electors of the members of Parliament,” is it not evident that their choice would have fallen on the lords whose lands they rented or cultivated by any particular title; and that the inhabitants of the towns, the citizens, would have been almost absolutely excluded from the House of Commons? Thus, this part of the nation, which had already attained so much importance, would have seen themselves deprived of the exercise of political rights by a system which urged, as its sole specious pretext, the extension of these rights to a greater number of individuals.

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

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

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

To sum up what I have said. Nearly all the fundamental principles of a free and reasonable electoral system may be discovered in the electoral system of England in the fourteenth century. Bestowal of electoral rights upon capacity; close union of electoral rights with all other rights; regard to natural influences and relations; absence of all arbitrary and factitious combinations in the formation and proceedings of electoral assemblies; prudent limitation in the number to be chosen by each assembly; direct election, and open voting; all are to be met with. These are entirely due to the decisive circumstance that the electoral system and representative government itself were in England the simple and natural result of facts, the consequence and development of real and powerful anterior liberties, which served as their basis, and guarded and nourished in their bosom the roots of the tree which is indebted to them for its growth.1

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

LECTURE 17

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is the great fact which has decided the political destiny of England. By themselves alone, the borough deputies would never have possessed sufficient power and importance to form a House of Commons capable of resisting sometimes the king, and sometimes the great barons, and of gaining an ever-increasing influence in public affairs. But the aristocracy, or rather, the feudal nation, being divided into two parts, and the new nation which was forming in the towns becoming combined with the county freeholders there, arose from the combination a competent and imposing House of Commons. There was a large body of the nation independent both of the king and of the great nobles. It happened also that the king could not, as in France, make use of the Commons to annihilate the political rights and privileges of the ancient feudal system, without substituting new liberties in their places. On the Continent, the enfranchisment of the Commons definitively led to absolute power. In England, a portion of the feudal class having united with the Commons, they combined to defend their liberties. On the other hand, the crown, supported by the great barons, who could not hope to set up as petty independent sovereigns in their own domains, possessed sufficient power to defend itself in its turn. The great barons consequently were obliged to rally round the throne. It is not true, though it is constantly reiterated, that the aristocracy and people have made common cause in England against the regal power, and that English liberty has arisen out of that circumstance. But it is true that the division of the feudal aristocracy having prodigiously augmented the power of the Commons, popular liberties at an early date possessed sufficient means of resistance, and the royal power received at the same time sufficient support.

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

LECTURE 18

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

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

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

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

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

Its two chief errors, in my opinion, are these: I. Its researches after right are misdirected; and, II. It mistakes the conditions under which right can be realised.

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

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

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 a priori, and of reducing them to certain general formulae which should comprise them all, and might thus be applied to every relation to which society gives birth. By this it has been led to overlook many very positive rights, and to create many pretended rights which have no reality. If it be true, as we have laid it down, that right is the legitimate rule of a relation, it is plain that the relation must be known before the right which ought to govern it can be understood. Now social relations, whether between one man and another, or between one and several, are neither simple nor identical. They are infinitely multiplied, varied, and interwoven; and right changes with relation. An example will best explain our meaning. We will select the most simple and natural of social relations, that of the father to the child. Nobody will presume to assert that here no right exists, that is to say, that neither the father nor the child have any respective rights to be mutually observed, and that their will alone should arbitrarily regulate their reciprocal relations. In the outset, whilst the child is devoid of reason, his will has little or no right: the right belongs entirely to the will of the father, which even then is, doubtless, legitimate only so far as it is conformable to reason, but which is not and cannot be subordinate to that of the child, on which it is exercised and which it directs. In proportion as reason becomes developed in the child, the right of the father’s will becomes restricted; this right is always derived from the same principle, and ought to be exercised according to the same law; but it no longer extends to the same limit, but becomes changed and narrowed day by day with the progress of the intellectual and moral development of the child, up to the age when at length the child, having become a man, finds himself in a totally different relationship to his father—a relationship in which another right holds sway, that is to say, in which the paternal right is enclosed within entirely different limits, and is no longer exercised in the same way.

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

It is not, then, a simple matter to determine right, nor can it be done once for all, and according to certain general formulae. Either these formulae 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 formulae 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.

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. 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.

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 a 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.

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.

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

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 judgment sfluctuate 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.

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.

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. 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 factsflows 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.

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.

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.

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.

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.

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.

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: where-ever 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.

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.

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

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

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 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.

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

LECTURE 19

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.

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 distinctious 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 in-fluences 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.

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

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

LECTURE 20

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.

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.

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

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

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.

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.

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 a ffl uence of petitions of all kinds, which called into action very different powers, then exercised indiscriminately. This original confusion was, undoubtedly, one of the principal causes of the universality of the power of the British Parliament. We cannot now examine into all the institutions which sprang from this source, and progressively disentangled themselves, assuming a distinct form. The question of the right of petition, in the sense which is attached to it at the present day, is in itself deserving of our careful examination, and will form the subject of our next lecture.

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.”* 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.

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 of the times.

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

LECTURE 21

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.

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.

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 proc lamation, 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.”*

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.

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 the 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.*

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. 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, petition 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 when ever he became the exponent, to the House, of the demand 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 has 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.

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.

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 revenue 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 citizen 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 tempted to deprive them.

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

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

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

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 in difference; 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.

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. 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.

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. 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.

LECTURE 22

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 in-fluence 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.

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.

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.

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.

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.

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 22 s. 3 d., 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 assemblés,” &c.* Or: “ Par assent des prélats, comtes, et barons, et de tote la commune du roïalme, au dit Parlement assemblés,” &c. † 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.” ‡

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.”* 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.

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.

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 a priori, in a philosophic and absolute manner.

LECTURE 23

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. 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.”* In 1341, after Edward’s first victories in France, the Parliament pressed him to continue the war, and furnished him with large subsidies; and all classes of society bestirred themselves to support the king in a conflict which had become national. In 1343, the Parliament was convoked to examine and advise what had best be done in the existing state of affairs, especially in regard to the treaty recently concluded by the king with his enemy the king of France. Sir Bartholomew Burghersh told the Parliament that “as the war was begun by the common advice of the prelates, great men, and commons, the king could not treat of, or make peace, without the like assent.”† The two houses deliberated separately, and gave their opinion that the king ought to make peace if he could obtain a truce that would be honourable and advantageous to himself and his friends; but if not, the Commons declared that they would aid and maintain his quarrel with all their power. In 1344, when the truce with the king of France had been broken off by him, the Parliament, on being consulted, manifested a desire for peace, but thought it could only be obtained by carrying on the war with energy, and voted large subsidies for the purpose. In 1348, the war had become increasingly burdensome; all the subsidies proved insufficient; and the king again consulted the Parliament “concerning the war undertaken with its consent.” The Commons, perceiving that they had gone rather too far in their language, now showed greater reserve and answered “that they were not able to advise anything concerning the war, and therefore desired to be excused as to that point; and that the king will be advised by his nobles and council, and what shall be by them determined, they would consent unto, confirm, and establish. ‡ In 1354, the Lord Chamberlain, by the king’s command, informed the Parliament: “That there was great hopes of bringing about a peace between England and France, yet the king would not conclude anything without the consent of his Lords and Commons. Wherefore he demanded of them, in the king’s name, whether they would assent and agree to a peace, if it might be had by treaty.” To this the Commons replied at first, “that what should be agreeable to the king and his council in making of this treaty, would be so to them”; but on being asked again, “If they consented to a perpetual peace, if it might be had,” they all unanimously cried out, Yea! Yea! § Finally, on the 25th of January, 1361, peace having been concluded by the treaty of Bretigny, the Parliament was convoked, the treaty was submitted to its inspection and received its approval, and on the 31st a solemn ceremony took place in the cathedral church at Westminster, when all the members of Parliament, both Lords and Commons, individually swore upon the altar to observe the peace.

In 1368, the negotiations with Scotland were submitted to the consideration of the Parliament; the king of Scotland, David Bruce, offered peace on condition of being relieved from all homage of his crown to the king of England. The Lords and Commons replied, “That they could not assent to any such peace, upon any account, without a disherison of the king, his heirs and crown, which they themselves were sworn to preserve, and therefore must advise him not to hearken to any such propositions”;* and they voted large subsidies to continue the war.

In 1369, the king consulted the Parliament as to whether he should recommence the war with France, because the conditions of the last treaty had not been observed; the Parliament advised him to do so, and votes subsidies.

These facts prove the most direct and constant intervention of the Commons in matters of peace and war. Nor did they seek to elude this responsibility, so long as the war was successful and national. When the subsidies became excessive, they manifested greater reserve in giving their opinion beforehand. When fortune turned decidedly against Edward III., at the close of his reign, the Commons, as we shall presently see, took advantage of the right of intervention which they had acquired, to possess themselves also of the right of impeaching the ministers to whom they attributed the misfortunes of the time. All this follows in the natural course of things, and clearly demonstrates the continually increasing influence of the Commons in political matters.

In regard to the internal administration of the country, their progress was not less perceptible. Until the reign of Edward III. all attempts to encroach upon the central government had originated with the barons; it was the barons who, under Henry III. and Edward II., had seized upon the right of appointing to great public offices, and of disposing of the revenues of the State. In 1342, the Commons ventured a similar endeavour, less direct and arrogant in its character, but tending towards the same object by more regular and better chosen means. Profiting by the necessities of the king, who was then destitute of funds, and utterly unable to continue the war with France, they presented to him the two following petitions: 1.“That certain by commission may hear the account of those who have received wools, moneys, or other aid for the king, and that the same may be enrolled in the chancery.” To this the king consented, upon condition that the treasurer and lord chief baron should be members of the commission. 2.“That the chancellor and other officers of state may be chosen in open Parliament, and at the same time be openly sworn to observe the laws of the land and Magna Charta.” To this also the king consented, but with these restrictions: “That if any such office, by the death or other failure of the incumbent, become void, the choice to remain solely in the king, he taking therein the assent of his council; but that every such officer shall be sworn at the next Parliament, according to the petition; and that every Parliament following the king shall resume into his hands all such offices, so as the said officers shall be left liable to answer all objections.”* These decisions were immediately converted into statutes. The chancellor and treasurer, with the judges and other officers of the crown, were required to swear to observe them upon the cross of Canterbury. The chancellor, treasurer, and several judges, protested against this act, as being contrary to their first oath and to the laws of the realm; their protest was entered upon the rolls of Parliament, but the statute was nevertheless definitively passed. The Commons had now obtained the most formal recognition of the responsibility of ministers to Parliament. The most pressing necessities alone had extorted consent from the king. Scarcely had the Parliament dissolved, when the king, by his own authority only, formally revoked the statute by writs addressed to all the sheriffs; and it is a most singular circumstance that so illegal an act excited no remonstrance, and that the statute was revoked by the Parliament itself in the year following.

The mere attempt, however, was a great step. It proves that two fundamental ideas had taken possession of the minds of the representatives of the Commons; first, that the Parliament ought to exercise some influence over the choice of the king’s ministers; secondly, that these ministers should be responsible to Parliament for their conduct. As to the first point, the Commons of the fourteenth century employed a very bad method of obtaining it, by claiming that their influence over the choice of the agents of the supreme power should be direct, and by interfering directly in the appointment of ministers; they prodigiously weakened, if they did not utterly destroy, ministerial responsibility: and the progress of representative government has proved that indirect in-fluence, exercised in such matters by a majority of the Parliament, is alone admissible and efficacious. But it was a great thing for the Commons to have attained such growth as to dare to entertain such an idea of their rights. They resumed the exercise of these rights, with greater success, at the close of this reign. The king was old and feeble; his arms were everywhere unsuccessful; abuses multiplied at his court; Edward had fallen beneath the sway of favourites; one of his sons, the Duke of Lancaster, alone enjoyed his favour, and abused it; a woman, named Alice Perers or Pierce, possessed a shameful in-fluence over him, which she employed chiefly in supporting the interest of her friends, in the courts of justice. She might often be seen, sitting within the precincts of the judicial tribunals, intimidating by her presence the judges whom she had pestered with her solicitations. A report was spread at the same time that the Duke of Lancaster intended to have himself declared heir to the crown, to the prejudice of the youthful son of the Black Prince, who was then in a dying state, and who possessed the affection of the whole nation. A Parliament was convoked in 1376 ; and a powerful party in both Houses pronounced against the ministers of the king. In the Upper House, the Black Prince himself led the attack, and in the Lower House, the opposition was headed by Peter de la Mare. The Commons demanded that the king’s council should be augmented by ten or twelve members, prelates, lords, or others; that no important matter should be decided without the consent of six or four of them; and finally, that all the officers of the crown should be sworn to receive no present, emolument, or reward beyond their legal salaries and expenses. The king consented to all these demands upon condition that he should himself appoint the new councillors, and that the chancellor, the treasurer, and the keeper of the privy seal should be allowed to discharge the duties of their office without their interference. The Commons next endeavoured to obtain that the justices of peace in each county should be appointed by the lords and knights of that county in Parliament, and should not be removed without their consent; but the king refused to grant this. The Commons continued to complain of the king’s evil counsellors, attributing to them the distress into which the king had fallen, the dilapidation of the subsidies, and so forth. Finally, with a view to the immediate application of the principles which they maintained, they formerly impeached the Lords Latimer and Nevil, who occupied posts in the king’s household, and four merchants of London, named Lyon, Ellis, Peachey, and Bury, who were farmers of the royal subsidies. This accusation had its effect; the accused persons were declared incapable of all public employment, and banished from the court and council, and their property was confiscated. As for Alice Perers, the Commons attacked her also, and the king was constrained to issue the following ordinance: “Whereas complaint has been brought before the king that some women have pursued causes and actions in the king’s court by way of maintenance, and for hire or reward, which thing displeases the king, the king forbids that any woman do it hereafter, and in particular Alice Perers, under the penalty of forfeiting all that the said Alice can forfeit, and of being banished out of the realm.”*

Nothing of this kind had previously been attempted by the Commons. This Parliament sat from the end of April to the 6th of July, 1376, that is, for a longer period than any preceding Parliament; the number of its petitions to the king was 223, and all its acts were so popular that it received the name of the Good Parliament.

But the Commons were not in a position to maintain unassisted so brilliant a success; their triumph had been due in great measure to the co-operation of the Black Prince and his party in the Upper House; and the Black Prince died before the closing of the Parliament. The king, by settling the crown upon his son Richard, dissipated many fears. A new Parliament was convoked on the 27th of January, 1377, and one of his first acts was to solicit the revocation of the sentence passed in the preceding year against Lord Latimer and Alice Perers; which request was granted. Six or seven only of those knights who had been members of the previous Parliament sat in the new one; and Peter de la Mare was imprisoned. Nevertheless, the new Parliament maintained the rights already acquired in several particulars; it insisted upon the proper appropriation of the subsidies, upon an account being given of the receipts, and so forth. The death of Edward III. which occurred on the 21st of June, 1377, put an end to a struggle which was probably about to arise once more between the Commons and the advisers of the crown.

In addition to this intervention of the House of Commons in the general affairs of the State, some particular facts prove the progress which its influence was making in all respects, and deserve to be remarked in this point of view.

I. The Commons began energetically to resist both the power which the Pope still assumed to exercise in England, and the internal influence of the English clergy themselves. In 1343, they protested against the right which the Pope claimed to have to appoint foreigners to certain vacant ecclesiastical benefices, and against other abuses of the same kind. They called upon his majesty and the lords to aid them in expelling the papal power from the kingdom, and addressed to the Pope himself a letter full of the most indignant remonstrances. Previously, the barons alone had actively interfered in affairs of this kind. In 1366, the king informed the Parliament that the Pope intended to cite him to Avignon to do homage for his crown, according to the terms of the treaty concluded with king John, and also to pay the tribute promised upon that occasion. The Lords on the one hand, and the Commons on the other, replied that king John had no right to contract such engagements without the consent of the Parliament, called upon the king to refuse to comply with the Pope’s citation, and promised to support him with all their power. In 1371, the Commons complained that the great offices of the State were occupied by ecclesiastics, to the great detriment of the king and the state, and demanded that in future they should be excluded therefrom, leaving to the king the right of choosing his officers, provided they were laymen. Finally, in 1377, they demanded that no ordinance or statute should be enacted upon petition of the clergy, without the consent of the Commons; and that the Commons should be bound by none of the constitutions which the clergy might make for its own advantage and without their consent, since the clergy would not be bound by the statutes or ordinances of the king to which they had not consented. This conflict between the national representatives and the clergy soon became a permanent habit, which contributed powerfully, in the sixteenth century, to the introduction of the Reformation.

II. In 1337, the Parliament turned its attention to the protection of the national industry. It prohibited the exportation of English wools, and granted great encouragement to those foreign clothworkers who should take up their residence in England. These regulations soon fell into desuetude in consequence of the wars with France; but they prove the disposition of the Parliament to give attention to all matters of public interest.

III. It was also during this reign that, for the first time, we find the Parliament manifesting anxiety about the abuses which were committed at elections, and seeking to prevent their recurrence. In 1372, an ordinance, passed at the suggestion and by the advice of the Commons, prohibited the election of sheriffs during the continuance of their functions, and also of lawyers, because they made use of their authority to procure their own election, and afterwards cared only for their own private interests.*

IV. Finally, it is under this reign that we first find committees of the two Houses uniting to investigate certain questions in common, and afterwards reporting the result of their investigations to their respective Houses. It is remarkable that this usage, so necessary to facilitate the progress of the representative system and to procure good deliberations, should have arisen precisely at that period when the Parliament became divided into two Houses. It was the natural consequence of their former combination in a single assembly. There was no regular or invariable plan with regard to the mode of the formation of these committees. Sometimes the king himself appointed a certain number of lords, and invited the Commons to choose a certain number of their own members to confer with them; sometimes the Commons named the lords with whom they wished to confer; and sometimes each House appointed its own committee.

It is remarkable that most of the parliamentary sessions of this reign begin with a confirmation of Magna Charta and the Charta de Foresta, which were always regarded as the foundation of the public rights and liberties, and also violated with sufficient frequency to render it necessary incessantly to renew their concession.

All these facts prove the immense progress made by representative government in general, and by the House of Commons in particular, during the course of this reign.

LECTURE 24

It is a remarkable fact in the history of England that, during the interval which elapsed between the years of 1216 and 1399, an able monarch always succeeded an incapable king, and vice versa. This circumstance proved very favourable to the establishment of free institutions, which never had time either to fall beneath the yoke of an energetic despotism or to dissolve in anarchy.

The reign of Richard II. does not present, like that of Edward III., the spectacle of the struggle of the Commons in defending their rights, and extending them by the very fact that they were defending them against the royal power, which was incessantly striving to evade those rights because they checked its authority, but which was nevertheless sufficiently acute to perceive that it stood in need of the assistance of the people, and could not afford to quarrel with their representatives. During the reign of Richard, the conflict assumes a more general character; it now involves far more than special or occasional acts of resistance. The question at issue now is, whether the king shall govern according to the advice and under the control of his Parliament, or rule alone and in an almost arbitrary manner. A positive conflict arose between parliamentary government and purely royal government; a violent conflict, full of reciprocal iniquities, but in which the question between liberty in general and absolute power was laid down more clearly and completely than it had ever been before.

The vicissitudes of this struggle are broadly outlined in facts. The reign of Richard II. may be divided into two parts. From 1377 to 1389, the government was parliamentary, that is to say, the Parliament exercised the supreme control and really directed all public affairs, notwithstanding the attempts at resistance on the part of the king and his favourites. From 1389 to 1399, this state of things underwent a change, and the king progressively regained the upper hand. Not that the Parliament abandoned or lost all its rights; for that of voting the taxes, in particular, was boldly maintained, and even respected to a certain extent. But generally speaking, the government was arbitrary, the king had the sole disposal of it, and the Parliament, which had lost its preponderating influence, interfered only as an instrument. This state of things was contrary to the desires and instincts of the country, and it was terminated by a tragical event. Richard was deposed by a proscribed exile who landed in England with sixty men, but found both the Parliament and the entire nation disposed to support him, or at all events, not to oppose him. The deposition of Richard and the elevation of the House of Lancaster were the work of force, but of force supported by that powerful adhesion which the silence and immobility of the public afford to enterprises which tend to overthrow an odious or despised government.

Such was the general aspect of this reign. I shall not linger to detail its events, but merely select and bring to light those facts which relate to the condition of the public institutions of the country, and which prove the truth of that which I have just affirmed.

As you have already seen, during the last years of the reign of Edward III., the influence of the Commons in the government had rapidly augmented; and its further progress was favoured by the minority of Richard II. Sixty years before, the nonage of the king would have placed the State under the control of some faction of barons; but during the latter half of the fourteenth century, the Commons take the initiative in all things, and plainly say how they think the government should be administered.

A first Parliament was convoked in the month of September, 1377. Peter de la Mare, formerly the leader of the opposition, was liberated from prison, and chosen speaker of the House of Commons. Three lords selected by the Commons were appointed to confer with them regarding the public necessities. Three propositions were submitted by the Commons to the king and lords: 1. the formation of a council of government; 2. the appointment of “men of virtuous and honest conversation” to guard the person and conduct the education of the king, and to take care “that the charge of the king’s household should be borne by the revenues of the crown, so that what was granted to the wars might be expended that way only”; 3. the strict observance of the common law and statutes of the realm, “that they might not be defeated by the singularity of any about the king.”* The Lords granted the first proposition, rejected the first part of the second as too harsh and interfering too much with the liberty of the royal person, promised to deliberate upon the second part with the great officers of the king’s household, and gave their unhesitating assent to the third proposition.

The second of these propositions contains the germ of the distinction between the civil list and taxes voted for the public expenditure. A subsidy was voted by the Commons, after the establishment of the administration. It was agreed that moneys thus raised should be lodged in the keeping of special treasurers, who should give an account of their receipts and disbursements, in such manner as the king and council should order. Two London merchants, William Walworth and John Philpot, were appointed to this office by the king.

Several other petitions were presented by this Parliament. 1. That the evil councillors of the late king Edward might be removed from the royal councils—which was granted. 2. That, during the king’s minority, all the ministers and other great functionaries of State, might be appointed by Parliament; and that if an office fell vacant, while Parliament was not sitting, it should be filled up by the king’s council, subject to the approval of the next Parliament—which was granted in the case of the greater officers, but refused in respect to those of less importance. 3. That Parliament should be holden once a year—in reply to which it was promised that “the statutes made for that purpose shall be observed and kept.”* It is clear that, in all these matters, the initiative and general direction of the government belonged to the Commons.

On the 25th of April, 1378, a second Parliament met, and voted a poll-tax, as the king had involved himself by loans. The chancellor concluded his speech by saying that, for all past and probable expenditure, the treasurers were prepared to give account.

On the 20th of October, 1378, a third Parliament met, and a fresh subsidy was demanded. The Commons maintained that the king ought not to be in want of one, and that a promise had been made that no further imposts should be levied for a long time. The chancellor, Richard le Scroop, denied that any such promise had been made; and long and violent debates ensued upon this question. The Commons demanded that an account should be given them of the way in which the last subsidy had been spent. The chancellor asserted that they had no right to require this, but finally yielded, under protest that it should not be considered a precedent. The Commons accordingly examined the accounts.

The Commons next requested that five or six lords or prelates should be deputed to confer with them respecting the public charges: thus aspiring to make their own body the centre of deliberation, and affecting to regard the lords only as a part of the king’s council. The lords refused their request, and proposed that, according to ancient usage, each house should appoint certain of its members to confer together. This suggestion was adopted, and a subsidy voted. The Commons further demanded the appointment of special treasurers to receive and disburse its proceeds; which was granted.

On the 15th of January, 1380, a fourth Parliament was held, for the purpose of demanding fresh subsidies, rendered necessary by the wars with France and Scotland, the revolts in Gascony, and other causes. The chancellor concluded his speech by saying “that the lords of the great council were ready to lay before the Commons the receipts of the last subsidial grants, and the disbursements of the same.”

The Commons demanded: 1. That the counsellors given to the king at his accession, should be dismissed (probably because they suspected them of unfaithfulness in the management of the public revenue); 2. That the five chief officers of State should not be changed until the next Parliament; 3. That a commission should be formed to survey and examine, in all his courts and palaces, the state of the king’s household, and the expenses and receipts in all the offices—which was granted, and the commission composed of six lords and six members of the House of Commons; 4. That some of the most discreet barons should be placed about the king, in order to give wise answers to foreign ministers. One baron only, the Earl of Warwick, was appointed for this purpose. A subsidy was then voted.

In November, 1380, a fifth Parliament met to vote further subsidies; and a long discussion arose between the Commons and the Lords regarding the amount. A fixed sum of £ 16, 000 was required; to meet which the Commons voted a poll-tax of 15 groats on every individual above 15 years of age, mendicants alone excepted; and annexed to their vote the condition that the rich should help the poor to pay the tax. The Commons moreover voted that “no knight, citizen, or burgess of the present Parliament should be collector of this money”; apparently in order to avoid every suspicion of partiality in its assessment. A violent popular insurrection broke out in consequence of this tax; and in order to quell it, the king was obliged to make promises of general enfranchisement.

On the 14th of September, 1382, a sixth Parliament assembled; but was adjourned on account of a quarrel between the Duke of Lancaster and the Earl of Northumberland, who had both come thither in arms, with a numerous retinue. The importance of these great barons was such that the Parliament could not meet until the king had succeeded in reconciling them. Great agitation was felt in this Parliament, as it did not know how to calm the disturbance in the country. The charter of manumission which had been extorted from the king was revoked. The Commons accused the bad government of the king of having caused the insurrection, and drew a melancholy picture of the deplorable state of the people. A committee of inquiry was appointed in consequence. The Commons refused to grant a subsidy, basing their refusal upon the disposition of the country to revolt. The king declared that he would not grant his amnesty for all the offences committed during the late insurrection, unless a subsidy were granted; and under the influence of this threat, the Commons yielded.

At the opening of this Parliament, the Commons demanded that the prelates, the lords temporal, the knights, the judges, in a word, the various estates of the realm, should examine, each for their own class, the charges which should be brought; and should report the same to the Commons, who would deliberate upon it. This was an attempt to make themselves a sovereign and undivided assembly; but the king maintained the ancient usage, which required that the Commons should deliberate first of all, and communicate their propositions to the king and lords.

This Parliament was twice prorogued; from the 15th of December to the 15th of January, 1383, and again from the latter date to the 7th of May.

Seven sessions of the Parliament were held from the 7th of May 1383, to the 1st of October 1386. The king endeavoured to free himself from the control of the Parliament. In 1383, he dismissed a very popular chancellor, Richard le Scroop, because he had refused to seal some inconsiderate gifts of property which had become confiscated to the crown. During the same year, the clergy obtained from the king a violent statute against the Lollards or disciples of Wickliffe. The Commons complained of this, saying that the statute was surreptitious; that it had never received their consent, and that “it was not their meaning to bind themselves, or their successors, to the prelates, any more than their ancestors had done before them.” They, therefore, demanded and obtained the revocation of the statute; but after their departure, the act of revocation was set aside, and the statute maintained.

In 1383, also, the Commons having demanded to confer with a committee of lords whom they mentioned by name, the king consented to their request, but added that it belonged to him alone to appoint the lords whom he thought fit to send to such conferences. In the same Parliament the Commons prayed the king “to place the most discreet and valuable officers about his person,” and to regulate his household in such a way that his revenues might be well administered, and prove sufficient to meet his wants. The king answered that he would summon to him the persons who suited him, and that he would regulate his household by the advice of his council. In 1386, the Commons petitioned that the state of the king’s household should be examined every year by the chancellor, the treasurer, and the keeper of the privy seal; and that they should be authorized to reform its abuses. The king replied that he would order such an examination when it pleased him. The Commons next inquired who were the ministers and chief officers of State whom the king intended to place at the head of affairs. The king replied that he had officers sufficient at present, and would change them at his pleasure. All these facts indicate an effort on the part of the king and his council to free themselves from the control of Parliament. In proportion as this desire became apparent, the Commons became, in certain respects, more timid and reserved. In 1383, the king consulted them as to whether he should march in person at the head of his army against France; and they replied that it was not in their province to decide upon such a question, but that it should be referred to the council. In 1385, they were consulted on the question of peace or war with France: and refused to give an opinion. The king insisted upon having an answer, but all that he could obtain from them was that “if they were in the king’s place, they would prefer peace.” Every circumstance, on both sides, indicates an imminent separation, or at least a progressive estrangement. The king was desirous to escape from the guidance of the Parliament; and the Parliament refused to share the responsibility of the king’s council.

Richard was under the sway of two favourites, Robert de Vere, Marquis of Dublin, and Michael de la Pole, Earl of Suffolk. Hence the government was courtly, capricious, destructive, and laid claim to an insolent and frivolous exercise of arbitrary authority. The haughty tone of the chancellor Suffolk was extremely offensive in the speeches with which he opened the Parliaments of 1384 and 1385. The Commons could endure the government (though often tyrannical) of a council of barons with much greater willingness than that of a pack of court favourites. The great feudal aristocracy were deeply rooted in the associations of the country; but the arrogance and frivolity of favourites were unspeakably offensive to the people. The storm broke out in the Parliament which met on the 1st of October, 1386. The Commons, “with one accord,” impeached the Earl of Suffolk. The king withdrew to Eltham. The two Houses sent to him to demand the dismissal of the lord treasurer and of the chancellor, relating to whom, they said, they had matters to treat of which could not be safely done whilst he remained in his office. The king sent an evasive answer; and the Parliament declared that it would do nothing so long as the king continued absent, and the Earl of Suffolk remained minister. The king proposed that they should depute forty knights of their number to confer with him. The Parliament refused. After a long and singular correspondence, the king was constrained to yield and to choose new ministers.

Doubt has been cast upon several of these facts, and especially upon the king’s correspondence with the Parliament. Knyghton is the only historian who records it, but there is reason to believe it authentic. The Earl of Suffolk was impeached and condemned. The charges brought against him were of little weight as legal crimes, but of great importance as abuses in the government. A committee of eleven lords was appointed by Parliament to regulate all public affairs, and to govern in concert with the king. The Parliament enacted the penalties of high treason against any person who should advise the king not to follow the counsels of this committee, and constrained the king to confirm these resolutions by letters-patent. The king, on his part, made protestation in full Parliament, with his own mouth, “that for any thing which was done in that Parliament he would not any prejudice should come to him or his crown; but that the prerogative and liberties of it should be safe and preserved.”

In 1387, the king travelled through the west and north of England; and assembled at Nottingham a council composed of partisans of his favourites. He inquired of the sheriffs of the neighbouring counties what forces they could raise for his assistance, if he should find it necessary to oppose the committee of eleven lords. The sheriffs replied that the people were convinced that the lords were friends to the king, and desired the welfare of the country, and that therefore few persons would be found willing to take up arms against them. The king then commanded the sheriffs to elect to the next Parliament those persons only whom he should nominate. They answered that they could not undertake to secure the election of any persons but those who were to the people’s liking. The king then summoned the judges to Nottingham, and proposed to them various questions concerning the rights and prerogatives of the crown. The judges, either intimidated or guided by Sir Robert Tressillian, gave answers tending to establish the arbitrary power of the king and to free his government from the control of the Parliament. This was the evident object of the whole of this struggle.

Dissension now broke out between the king and the lords. A Parliament was convoked. The king inserted in his writs an order to return those persons who were debatis modernis magis indifferentes;1 but he was soon obliged to erase this clause, and to declare it illegal in new writs. The Parliament met on the 3rd of February, 1388, and took precautions to ensure that it should alone decide upon all great public matters, and that it should not be dissolved after having voted a subsidy. An accusation was lodged by five lords, called appellants, against the favourites of the king, and the judges. This accusation really conceals a great party conflict beneath the forms of judicial procedure. The Upper House declared that, on such grave occasions, the Parliament alone could judge, and was bound by none of the laws which regulate the proceedings of other courts. Eighteen persons were condemned, most of them to death, and many by default. The Parliament separated after having sat five months. It was called the Wonderful Parliament, and also the Pitiless Parliament. It had been careful to declare that the condemnation of the favourite councillors and judges, did not in any way throw discredit upon the king himself.

The authority of the committee of eleven lords over the government was exercised without opposition for a year. In May, 1389, the king assembled his council, and declared that, being now of full age, he was capable of governing his inheritance himself, and that it was not fitting that he should be in a worse condition than every subject in his dominions who could freely dispose of his goods. “It is well known,” he said, “that for several years I have lived under your guardianship, and I thank you for the trouble you have taken on my account; but now that I have reached my majority, I am determined to remain no longer under tutelage, but to take in hand the government of my kingdom and to appoint or revoke my ministers and other officers according to my pleasure.” He changed the chancellor and other great officers, and dismissed from his council several of the eleven lords.

Here began the second epoch in this reign—the epoch of reaction against the Parliament. Great obscurity prevails as to the causes which placed Richard II. in a position to effect such a revolution; but he was most probably emboldened to do so by division in the committee of eleven lords, and by the bad use which some of them had made of their power. The king and his new council governed at first with prudence, and manifested great respect for the Parliament. On the 16th of January, 1390, a Parliament was convoked. The new ministers resigned their offices, and submitted their conduct to its scrutiny. The Parliament declared that it found no cause for complaint, and the ministers resumed their functions. Seven Parliaments were held from 1390 to 1397. They became more and more timid and docile, and the king’s authority assumed an increasingly extended and arbitrary character. These are the principal facts which characterize this reaction:—

In 1391, the Parliament assured the king that the royalty and prerogatives of his crown should ever remain intact and inviolable; that if they had in any way been infringed, it should be reformed; and that the king should enjoy as large liberty as any of his predecessors ever did: “which prayer seemed to our lord the king honest and reasonable,” and he consented to it. In 1391 and 1392, the Parliament admitted the king’s power to dispense with the observance of certain statutes in ecclesiastical matters, on condition that these statutes should not be held to be thereby revoked. In 1392, the king, being off ended with the city of London, withdrew from it its liberties and imprisoned its magistrates; but shortly afterwards he restored its liberties to the city, and imposed on it a fine of £ 1000 sterling. In 1394, the judges who had been banished to Ireland by the Parliament of 1388, were recalled. In 1397, a bill was brought forward in the House of Commons, proposing that all extravagant expenditure should be avoided in the royal household; and that those bishops and ladies who had nothing to do at court should not have permission to reside there. The king was incensed at this bill before it was presented to him, and said in the Upper House, “that it was directed against those liberties and royalties which his progenitors had enjoyed, and which he was resolved to uphold and maintain.” He ordered the Lords to inform the Commons of his resolution, and directed the Duke of Lancaster to command Sir John Bussy, the Speaker of the Commons, to inform him what member had introduced the bill into Parliament. The Commons became alarmed, and humbly besought the king’s pardon. At a conference, they placed the bill in the king’s hands, and delivered up to him its proposer, Thomas Haxey. The king forgave them, and the Parliament itself declared Haxey guilty of treason. The clergy saved his life by claiming him as a clerk—which proves that at this period ecclesiastics were not excluded from Parliament.

In September, 1397, Richard II. at length judged himself in a position to assume the plenitude of his power, to annul all that had been done in 1388 to limit his authority, and to avenge his injuries.

A Parliament was convoked. Every precaution had been taken to ensure its docility. The sheriffs had been changed; and all sorts of practices had been put in force to influence the elections. Numerous bodies of troops formed the royal guard. The Parliament was opened with great solemnity. The chancellor, the Bishop of Exeter, took as the text of his speech: Rex unus erit omnibus.2 Subsequent events fully corresponded with these preliminaries. All the acts of the Parliament of 1388 were revoked, and their authors accused of treason; five of them were condemned to death. The principal leader of the opposition, the Duke of Gloucester, was assassinated in prison at Calais, after having been constrained to acknowledge his past crimes in a confession in which he formerly accused himself of having “restrained the king of his freedom.” After these condemnations the same Parliament held a second session at Shrewsbury, in which the answers of the judges in 1387 were declared good and legitimate, and precisely the same measures were taken to render these new decisions inviolable, which had been employed by the Parliament of 1388 to ensure the observance of its own resolutions. These two sessions lasted sixteen days. In less than two years afterwards, Richard was dethroned.

He thought himself, however, well secured against such a contingency; for he had taken all sorts of precautions firmly to establish the power which he had just regained. The Parliament had granted him, for his lifetime, the duty upon wools and hides, upon condition only that this concession should not be regarded as a precedent by the kings his successors. As several of the petitions and other matters laid before the Parliament during its last session had not been fully terminated, the Parliament at its dissolution appointed a permanent committee of twelve lords and six members of the House of Commons, to whom it transferred its powers to regulate and decide, in concert with the king, all affairs of public business. Richard thus remained surrounded by the men who had just assisted him to regain arbitrary power; and although the mission of this committee was limited to the settlement of those affairs only which the Parliament had not had time to arrange, it did not hesitate to take possession of the entire government. In concert with the king, it issued ordinances, and declared the penalties of high treason against any person who should attempt to resist its authority; and it imposed on all the lords the obligation, under oath, to respect and maintain all that it should enact. All the powers of Parliament were thus usurped by this committee. Private vexations were added to this general usurpation; in spite of the amnesty which had been proclaimed, even by the last Parliament, Richard continued to wreak his vengeance upon the adherents of the Parliament of 1388. He extorted money from seventeen counties under the pretence that they had taken part in the rebellion; and he forced wealthy citizens to sign blank cheques in order to ransom themselves from prosecutions for treason, which blanks he filled up at his pleasure.

Such acts as these could not fail to produce general hatred and indignation; and an accidental cause led to their manifestation. A quarrel existed between the Dukes of Hereford and Norfolk; and the last Parliament had left the dispute to the decision of the king and his committee. A single combat between the two dukes was appointed to take place at Coventry; but the king anticipated the duel, and banished both the dukes, one for ten years, and the other for life. By letters patent, he expressedly authorized the Duke of Hereford to sue, during his banishment, for the livery of any lands that might be bequeathed to him. In 1399, John of Gaunt, Duke of Lancaster and father of Hereford, died. The king and his committee annulled the letters-patent, and confiscated the property of the Duke of Lancaster. Richard then set out for Ireland. On the 4th of July, 1399, the Duke of Hereford, who had become Duke of Lancaster by the death of his father, landed in England. He made rapid progress, and when Richard returned to England, he soon found himself abandoned and taken prisoner. A Parliament was convoked in his name on the 30th of September. Richard abdicated. An accusation in thirty-three articles was drawn up against him; and his deposition was pronounced by the Parliament. Henry of Lancaster claimed the crown in virtue of a pretended right of birth. It was granted to him on the 6th of August, 1399, and new writs were issued for the convocation of a Parliament within six days. This was impossible: so the same Parliament met again, and became the Parliament of Henry IV. Richard, who had been kept prisoner in Pomfret Castle, was put to death on the 23rd of October, 1399.

This royal catastrophe was the work of force, just as the deposition of Edward II. had been; but public opinion and public passion had a much greater share in it. efforts were made to impart even to these acts of violence an appearance of constitutional regularity, and the progress of parliamentary government may be discerned even in its tragical excitements.

Such were, in a political point of view, the character and progress of this reign. A few particular facts are worthy of notice.

1. The extension of the practice of forced loans. In 1378, a petition was presented that no man should be constrained to lend money to the king; and it was granted. Nevertheless, in 1386, a writ addressed to several inhabitants of Boston enjoins them to make every person possessing property of more than twenty pounds in value contribute to the loan of £ 200 which the town had promised to grant to the king, and which would be received in deduction from the subsidies of the present Parliament.

2. The principle of the appropriation of subsidies becomes increasingly prevalent.

3. The Commons make efforts to ensure that their petitions should not be altered when passed into statutes. In 1382, they requested the communication of one of the king’s ordinances before it was registered: and desired that some of their members should be present during the preparation of the rolls. The affair of Thomas Haxey gives us reason to believe that the practice commenced, during this reign, of proceeding in the form of bills discussed and adopted by both Houses before they were submitted for the sanction of the king. Nevertheless, in 1382, the House of Commons having requested the opinion of the House of Lords on a question which then occupied their attention, the Lords replied that ancient usage required that the Commons should first communicate their opinion to the king and assembled lords. This very fact, however, proves that the present form of initiative was about to introduce itself.

4. In 1384, the town of Shaftesbury addressed a petition to the king, lords and commons, against the sheriff of Dorsetshire, who had made a false return of an election, and left out the name of the person really elected. We are not aware of the result of this petition, but this is the first instance of the official intervention of the Commons in the matter of contested elections. Only three examples of analogous petitions are to be met with in previous times, viz. under Edward II. in 1319, under Edward III. in 1363, and under Richard II. in 1384. Until then, the king alone had examined the petition, and referred its judgment to the ordinary tribunals.

5. In 1382, a statute ordains, under penalty of fine or other punishment, that all the lords and deputies of the Commons shall repair to Parliament when they are summoned; and that all the sheriffs shall cause all due and accustomed elections to be made, without omitting any borough or city.

These particular acts, as well as the general course of events, attest the progress of constitutional maxims and practices.

LECTURE 25

It is impossible to comprehend the entire scope of the character and influence of great events. Some occurrences, which procure order and liberty for the present, prepare the way for tyranny and confusion in the future; while others, on the contrary, establish absolute power at first, and subsequently give birth to full political freedom. We cannot fail to be struck by this reflection when we consider the prodigious difference which exists between the immediate results and the remote consequences of the deposition of Richard II. It delivered England from an arbitrary, insolent, and disorderly government; but sixty years afterwards it gave rise to the wars of the Red and White Roses, and to all those cruel internal distractions which facilitated the establishment of the Tudor despotism: so that the decay of English liberties, from 1461 to 1640, had its primary source in the event which, in 1399, had consummated their triumph.

In considering the general character of the state of the government from 1399 to 1461, under the first three kings of the House of Lancaster, Henry IV., Henry V., and Henry VI., we must admit that this period was remarkable neither for the unchangeableness nor for the progress of institutions. During this epoch, the Parliament gained none of those signal victories which distinguished the reigns of Edward III. and Richard II.; no really new right, no fundamental and previously unknown guarantee, were added to those already possessed. Neither did arbitrary power again assume the offensive, and obtain the advantage; and the crown and Parliament engaged in no serious conflict calculated to compromise the existence of either party, or notably to change their degree of political importance. In truth, the work of this period was to regularize the results of previous struggles. The Parliament exercised, without much opposition, the right for which it had fought during the fourteenth century, viz., the voting of taxes, the appropriation of the subsidies, the investigation of the public accounts, intervention in the legislature, and the impeachment of the great officers of the crown. The kings, though frequently seeking to elude the application of these rights, never ignored them completely, or braved them openly. The whole of the political machine remained almost unaltered; but though it underwent no great revolutions, it received many important developments in its internal organization. Practical ameliorations were sought after and attained; further consequences were deduced from established principles; and this epoch is more remarkable for various improvements in the springs of parliamentary government, than for the conquest of great rights, or the formation of fundamental institutions.

The internal constitution of the Parliament, especially during the course of this period, made important progress; from this time we may date, with some degree of accuracy, its principal forms of procedure and its most essential privileges.

One of the most essential is, certainly, liberty of speech. During the reign of Henry IV., we find the speaker of the House of Commons demanding it of the king at the opening of every session. One of the first acts of the first Parliament held during this reign, in 1399, was to obtain the revocation of the sentence passed upon Thomas Haxey, in the reign of Richard II. Every circumstance proves that, under Henry IV., the Commons used greater liberty of speech than they had previously enjoyed. It was, indeed, made a subject of special praise to Sir John Tibetot, speaker in the Parliament of 1406. The king soon manifested great distrust of the extension given to this right, which was probably exercised with all the rudeness which characterized the manners of that time. In 1410, he told the Commons that he hoped that they would no longer use unbecoming language, but act with moderation. In 1411, the speaker, Sir Thomas Chaucer, having made the usual demand at the opening of the session, the king replied that he would allow the Commons to speak as others before had done, but that “he would have no novelties introduced, and would enjoy his prerogative.” The speaker requested three days to give a written answer to this observation, and then replied “that he desired no other protestation than what other speakers had made; and that if he should speak anything to the king’s displeasure, it might be imputed to his own ignorance only, and not to the body of the Commons,”* which the king granted.

We meet with no infringement upon the liberty of speech enjoyed by the Commons until the Parliament of 1455, at which time a deputy from Bristol, Thomas Young, complained that he had been arrested and imprisoned in the Tower, six years before, on account of a motion which he had brought forward in the House. The object of this motion had been to declare that, as the king then had no children, the Duke of York was the legitimate heir to the throne. The Commons transmitted this petition to the Lords, and the king commanded his council to do whatever might be judged fitting on behalf of the petitioner.

In all official transactions with the king and the lords, the Speaker was the mouthpiece of the House of Commons, and for him especially liberty of speech was then demanded. He acted in the name, and on the behalf, of the House, on almost all occasions. In 1406, we find him giving his consent, in this capacity, to the act which regulated the succession of the crown.

The inviolability of the members of Parliament was a right of no less importance than liberty of speech. The ancient Saxon laws granted protection and security to the members of the Wittenagemot, in going and returning from the place of meeting, provided they were not notorious robbers and brigands. From the formation of the new Parliament, the same right was claimed by its members, who, as they came to transact the business of the king in his national council, were entitled to exemption from arrest or hindrance. In 1403, Sir Thomas Brooke repaired to Parliament as a representative of Somersetshire; and one of his suite, Richard Cheddre, was maltreated and beaten by John Salage. A statute ordained that Salage should pay double damages to Cheddre, according to the award of the Court of Queen’s Bench; and “moreover, it is granted by the said Parliament that the same shall be done in times to come, in similar cases.” This circumstance gave rise to a petition of the Commons, who prayed that all lords, knights, citizens, and burgesses, coming to Parliament and residing there, might be, as well as their followers and domestics, under the special protection and defence of the king, until their return home; and that they might be arrested for no debt, contract, or suit, or imprisoned in any manner during that time, under penalty of a fine to be paid to the king, and damages to the person injured. The king replied that provision should be made to this effect. The statute of 1403 was renewed in 1433, during the reign of Henry VI.

In 1430, a complaint was laid before the House of Commons on account of the imprisonment, for debt, of William Lake, the servant of William Mildred, one of the members for London. He was set at liberty by a special act of Parliament.

In 1453, the Commons complained to the king and to the lords of the imprisonment of Thomas Thorpe, their speaker, who had been arrested for debt at the suit of the Duke of York. The Lords referred the matter to the judges, who replied through Sir John Fortescue: “That it was not their part to judge of the Parliament’s actions, who were judges and makers of the laws themselves; only they said there were divers supersedeas of privilege of Parliament brought into courts; but a general supersedeas, to suppress all proceedings, there was not. For, if there should, it would seem as if the High Court of Parliament, that ministered all justice and equity, should hinder the process of the common law, and so put the party complainant without remedy, inasmuch as actions at common law are not determinable in Parliament; but if any member of Parliament be arrested for such cases as are not for treason, felony, or surety of the peace, or for a judgment had before Parliament, it was usual for such person to be quitted of such arrest, and set at liberty to attend his service in Parliament.”*

Notwithstanding this answer of the judges, the Lords decided that Thorpe should remain in prison: and ordered the Commons, in the king’s name, to elect another speaker, which they did. But this was a party quarrel; Thorpe was attached to the House of Lancaster, and the Duke of York was then in the ascendant. The privilege then existed, but still in a precarious manner, and a special act of Parliament was necessary on every occasion to ensure its being put into practice.

It was also during this period that the right of parliamentary initiative superseded the right of petition. We have already noticed the abuses originated by the initiative which the House of Commons exercised by means of its petitions; and that the petitions were not always faithfully reproduced in the statutes which they had suggested. We have also seen what efforts had already been put forth by the Commons to prevent these trickeries. In 1414, during the reign of Henry V., they complained of them in a special petition, to which the king replied by promising that in future the statutes should correspond exactly to the petitions granted. But this guarantee was very insecure, and the Commons had already begun to obtain more effectual securities by accustoming themselves to draw up in the form of complete bills, the statutes which they had previously suggested by petitions; and sending them to the House of Lords, that they might be discussed and adopted by that House, before they were presented to the king, who then had nothing more to do than to give or refuse his sanction. It is impossible to indicate with precision the period at which this important change took place; for it was accomplished gradually, and was not remarked by the historians of the time. The usage of petitions co-existed for some time with that of bills. The following facts indicate the progress of the change. Under Richard II., in 1382 (and I have already alluded to this fact), the Commons attempted to obtain the opinion of the Lords, upon a certain question, before bringing under the notice of the king. The attempt was repulsed by the Lords, who staked their honour upon not separating from the king, and upon receiving simultaneously and in concert with him, the propositions of the Commons. The complete initiative of the Houses of Parliament arose, naturally and necessarily, from the voting of taxes. Originally, as you have seen, each class of deputies voted alone those taxes which were destined to weigh especially upon themselves; and the knights of the shire deliberated and voted upon this matter with the Lords. When the knights of the shire had fully combined with the deputies of the boroughs—when the House of Commons deliberated and voted, in a body, upon the same taxes—it became necessary that the votes on such matters should receive the consent of the Lords, who would also have to bear the consequences. Bills passed in reference to subsidies were thencefor-ward discussed and voted by both Houses before they were laid before the king; and the initiative, in its present form, was thus fully established in this particular case. In 1407, a remarkable incident brought this form of proceeding to light, gave it final sanction, and deduced from it at the same time two other parliamentary rights of great importance. In consequence of a debate which arose between the House of Lords and the House of Commons with regard to the initiative of subsidies, three principles were recognised, and have since remained firmly established: 1. Parliamentary initiative in its present form; 2. The exclusive initiative of the Commons in the matter of subsidies; 3. The right of the Houses, that the king should take no cognizance of the subject of their deliberations until they had come to a decision upon it, and were in a position to lay it before him as the desire of the Lords and Commons in Parliament assembled.

It was natural that that which was practised with regard to subsidies should soon extend to all matters; and that the propositions of Parliament, whatever might be their object, should reach the king as emanating from both Houses instead of being merely the petitions of one of them. Mr. Hallam affirms, without giving any particulars, that this practice became general during the reign of Henry VI., and from this period he dates the real division of the legislature into three branches. I am inclined to think that this practice had commenced at an earlier date, although it was rarely carried into effect; and it is certain, from the very constitution of Parliament at this epoch, that it did not become constant and general until a later period.

In 1406, I find the Commons demanding, by the mouth of the speaker, Sir John Tibetot, the right of withdrawing their bills from the House of Lords, at any stage of the deliberation upon them, in order to introduce amendments; which was granted. The Commons were therefore already in the habit of occasionally drawing up their petitions in the form of bills, and of passing them through the House of Lords before presenting them to the king.

At this period, the House of Lords was still regarded as the great council of the king, and as a sort of intermediary between the privy council and the entire Parliament; and a number of propositions on matters of government, and even of legislation, still emanated from the Commons alone, and were presented, in the form of petitions, to the king and lords. The practice of initiative by way of bills adopted by both Houses could not, therefore, have been general. The periods of the king’s minority or absence tended increasingly to impart the character of a great council of government to the House of Lords. Accordingly these epochs, and especially the reign of Henry VI., abound in propositions or petitions of the Commons to the Lords. It was at a later period, when the king and his privy council had regained a more independent power than their predecessors had enjoyed—that is to say, under the Tudor dynasty—that the Upper House became entirely disjoined from the government properly so called, and found itself placed, with respect to the king, in almost the same position as the House of Commons. Then alone did the practice of proceeding by bills discussed in both Houses before they were laid before the king, assume a constant and general character, that is to say, the parliamentary initiative was definitively substituted for the ancient right of petition possessed by each House, and especially by the Commons.

With regard to the order of the debates in Parliament, it was an ancient custom that the king should not reply to the petitions of the Commons until the last day of the session; which rendered it impossible to make the concession of subsidies dependent upon the king’s answers. They endeavoured to reverse this order, probably during the reign of Richard II.; for the sixth question which he proposed to the judges was whether, when the king had called the attention of Parliament to any subject, the Parliament might attend to other matters before deciding upon the propositions of the king. The judges replied that such a proceeding was an act of treason. The answers of the judges of Richard II. having been declared illegitimate in the Parliament of 1399, the foregoing dictum was comprised in the general reprobation. Accordingly, in 1401, the Commons maintained that it was not their custom to grant any subsidy until the king had replied to their petitions, and they demanded that this course should be pursued. The king said that he would confer on the subject with the Lords, and on the last day of the session, he replied “that there was never such use known, but that they should first go through with all other business before their petitions were answered; which ordinance the king intended not to alter.” We do not find that the Commons then resisted, or attempted to procure the recognition, in a general manner, of the principle which they asserted. But this principle was frequently put into practice in subsequent Parliaments, and the king was forced not to throw any hindrance in its way. In 1407, Parliament opened on the 20th of October. On the 9th and 14th of November, the Commons presented themselves before the king, explained their numerous grievances, received his answer, and granted no subsidies until the 2nd of December following. In 1410, Parliament met on the 27th of January; and it was not until the 9th of May, after it had obtained satisfaction on several points, among others on the dismissal of two members of the privy council, that it granted a subsidy. This practice became almost constant during the reign of Henry VI. We find an evident proof of this in the Parliament held in November 1455. The Commons sent several times to demand of the Lords the appointment of a Protector for the kingdom, on account of the imbecility of Henry VI.; and the Archbishop of Canterbury urged the Lords to give a definitive answer, “for it is well known that the Commons will not give attention to any affairs of the Parliament until they have obtained an answer, and satisfaction of their request.”

The principle had, therefore, become a fact, and was generally admitted as a fact.

It was also during the course of this period that elections to Parliament, and the rights of Parliament in the matter of elections, began to be regulated. I have already observed in treating of the formation of the Parliament, that the electoral system had been definitively established by statutes of Henry IV. in 1405, and of Henry VI. in 1429 and 1432. Many facts prove that at this date the importance of the House of Commons had become so great, that the elections were a subject of frequent frauds. A number of statutes of detail, during the reign of Henry VI., were passed to prevent such frauds, and to regulate the procedure by which they should be investigated and punished. Then also, for the first time, we find conditions imposed on the choice of the electors. The ancient spirit of electoral institutions required that the persons elected should be inhabitants of the county or town which they were chosen to represent. This was converted into an express law by a statute of Henry V. in 1413, which was renewed by a statute of Henry VI., in 1444 ; but the law has fallen into desuetude by the force of circumstances, without ever having been formally repealed.

The judgment of elections continued to belong, during this period, to the lords and the king’s council, who were frequently urged to exercise this prerogative by petitions from the Commons.

It was also at this epoch that the judicial power, which originally resided in the entire Parliament, was declared to belong exclusively to the House of Lords. This declaration was made in 1399, at the suggestion of the Commons themselves, and by the mouth of the Archbishop of Canterbury, who said: “That the Commons were only petitioners, and that all judgment belonged to the king and lords; unless it was in statutes, grants of subsidies, and such like.” Since this period the Commons, when they desired to interfere in judgments otherwise than by impeachment, were obliged to employ the means of bills of attainder. They adopted this plan in the case of the Duke of Suffolk in 1450, and very frequently afterwards.

These are the most notable marks of progress made, during this period, by the constitution and forms of Parliament. If we now consider Parliament, no longer in itself and its own internal proceedings, but in its relations to the government properly so called, we shall find that its rights and influence in matters of taxation, legislation, and public administration were the same as it had won under Edward III. and Richard II., and that it merely exercised them with greater assurance and less opposition. Henry IV. tried more than once to resist the power of the House of Commons; but it had set him upon the throne, and felt itself in a position to confine him within the limit of his authority. In 1404, it demanded of him the dismissal of four officers of his household; and he replied with singular humility “that he knew no cause why they should be removed, but as the Lords and Commons judged it for the interest of the kingdom and his own advantage, he would remove them, and would do as much in future to any minister who should incur the hatred of his people.” In 1406, the Commons submitted for the approbation of the king thirty articles which, they said, they had drawn up to ensure the better administration of public affairs, and which they demanded that the king’s officers should swear to observe. These articles, though of a temporary nature, were intended to repress many existing abuses, and to restrict the royal prerogative in certain respects. The king thought that he could not refuse his assent. Towards the end of his reign, Henry IV. appeared more bold, and less disposed to yield unresistingly to the control of the Parliament; but his death prevented all serious conflict. The glory of Henry V. and the passion for wars with France filled up his somewhat brief reign; the Parliament sustained him in all his measures, and even went so far as to grant him, in 1415, a subsidy for life, with power to use it arbitrarily and at his pleasure. During the minority of Henry VI., or rather during all that part of his reign which was not stained with civil war, and was in fact a long minority, the power of Parliament reached its climax, and absorbed the entire government. All matters were decided between the Lords and Commons; but it was too soon for the nation, thus left to its own guidance, to provide itself with a regular government. Violent factions arose among the aristocracy, which the House of Commons was not in a condition to repress. That great development of public institutions and liberties which had commenced under king John, and continued with such regularity since the reign of Edward III., was suddenly interrupted, and England plunged into the violent anarchy of the wars of the Red and White Roses, to emerge only into the despotism of the House of Tudor.

How came it that institutions, already so strong and active, at least in appearance, decayed so rapidly? How came it that parliamentary government, which seemed in possession of all its essential rights and principles, paused in its progress, and yielded for more than a century to the rule of an almost absolute monarchy? Now that I have reached the conclusion of this course of lectures, I cannot investigate with you the causes of this apparently singular fact; but they may be discerned in another very remarkable fact—in the analogy which prevails between the history of England and the history of France at this period. In France, also, during the fourteenth and fifteenth centuries, we discern the appearances of attempts at representative government; these incoherent and superficial essays were succeeded by the wars of religion, the League, and the great disorders of the sixteenth century; and order was not restored, France did not regain repose and vigour, until the establishment of absolute power by Cardinal Richelieu and Louis XIV., and by the annihilation, as a political power, of that ancient feudal aristocracy who had been able neither to procure for the country, nor to assume for themselves, in the government of France, their legitimate and lasting position.

In England, as you have just seen, representative government, originating in the thirteenth and fourteenth centuries did not confine itself to incoherent and feeble essays; but established itself upon its essential foundations, and speedily obtained considerable development. The sanguinary conflicts for the succession to the throne, the protracted dissensions of the Red and White Roses, abruptly arrested its progress. Just as in France, from the reign of Louis XI., we hear nothing of attempts at the establishment of free institutions, so in England, during the reigns of Edward IV. and Richard III., the Parliament has no history. In the intervals of the civil war, it appears only as the instrument of the vengeance of the victorious party, and to pass bills of attainder against the leaders of the vanquished faction. It voted a few taxes, but this was the only one of its rights which it still maintained, and even this was eluded by the practice of Benevolences, or gifts in appearance voluntary, but in reality compulsory, of which we meet with a few examples in antecedent times, but which received great extension under Edward IV. Finally, more than once several years elapsed without a Parliament being convoked, especially from 1477 to 1482 ; such a suspension had been unprecedented since 1327.

The civil wars of the fifteenth century, however, are only the superficial, and as it were, external cause of this sudden decadence of representative government in England; in order to discover its true cause, we must penetrate deeper into the state of society.

Until this period, the three great forces in English society—the royal power, the aristocracy, and the Commons—had maintained intimate and continual relations amongst themselves, and had served each other by turns, either as an obstacle or as a means of success. It was by the aid of the great barons that the Commons had been enabled to win their liberties. The royal power, though strong in itself, had nevertheless been obliged to resort sometimes to the barons, and sometimes to the Commons. From the political concurrence of these three great social forces, and from the vicissitudes of their alliances and fortunes, the progress of representative government had resulted. Liberty can be established only where there does not exist in the State any constituted power sufficiently preponderant to usurp absolute authority.1

In the latter half of the fifteenth century, the equipoise of these three forces ceased. The royal power disappeared in some sort, in consequence of the imbecility of Henry VI. and afterwards by the uncertainty of the right of succession to the crown. The government fell into the hands of the high aristocracy, who were divided and distracted by their intestine quarrels. The Commons were not in a condition to act the part of mediators between these terrible factions, and to impose upon them respect for public order. The knights of the shire took part in the train of the great barons with whom they were still dependently connected by a multitude of ties: and the towns, thus left alone, could do nothing, but were carried away in the general stream. In this state of disorder and violence, the Commons disappeared, or if they were not materially annihilated, their political power vanished. The high aristocracy worked its own dissolution; many great families were destroyed, and many more were ruined. Henry VII., at his accession, found only the wreck of that nobility which had made his predecessors tremble. The great barons, wearied with their own excesses, and stripped of a great part of their resources, were no longer inclined or able to continue that struggle against the royal power, which had been headed by their ancestors ever since the days of king John. On this side therefore, the royal power no longer had any powerful antagonists. On the other side, the Commons, wasted and enervated by civil war, were not in a condition to take the place of the high aristocracy in the struggle against the royal authority. They had taken part in the government as followers of the nobles; and when they found themselves standing almost alone in presence of the crown, it did not even occur to them that this interference was their right: they, therefore, contented themselves with defending a few special rights, particularly that of consenting to large subsidies; and, in other respects, they allowed themselves to be governed. Hence arose the government of Henry VIII., and at a later period, that of Elizabeth.

More than a century was requisite to enable the English Commons—reinvigorated and strengthened, in a material point of view, by long years of order and prosperity, and in a moral point of view, by the reformation of religion—to acquire sufficient social importance and intellectual elevation to place themselves, in their turn, at the head of the resistance against despotism, and to draw the ancient aristocracy in their train. This great revolution in the state of society broke out in the reign of Charles I., and determined that political revolution, which, after fifty years of conflict, finally established representative government in England.

the end

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[1. ]These passages are important for understanding the relation between history and politics in Guizot’s writings. Guizot’s method combines broad philosophical views with historical narratives; he writes a political history that seeks to offer political instruction by explaining how rights and liberties were acquired and how various opinions and interests could be combined in political life. In Guizot’s view, a thorough acquaintance with the history of free peoples is necessary to every citizen who wants to get involved in politics.

[2. ]Not only is a kingly, but a lawful and civil power.

[3. ]The emphasis on the division and limitation of power and sovereignty is central to Guizot’s liberalism. He pointed out that the limitation of powers and the affirmation of the right of resistance to oppression were matters of public right in England. Guizot also mentioned that, in England, local powers subsisted and successfully defined and regulated their own action vis-à-vis the central power, while on the Continent, centralization resulted from the vanishing of local powers and the rise of absolute power (HORG, p. 240‒47). Not surprisingly, Guizot believed that, if France were to build a true representative government, the country ought to reinvent local autonomy and local institutions. Madame de Staël’s book Considerations on the French Revolution is essential reading for understanding how England became an object of praise and admiration during the Bourbon Restoration in France. For more details on Guizot’s understanding of English constitutionalism, see HORG, pp. 300‒305, 353‒58, 377‒81, as well as the note on p. 43.

[1. ]Upright men.

[1. ]The nobility of almost the entire kingdom, the union of the entire kingdom.

[2. ]With his princes discussing the state of the kingdom and restoring peace.

[3. ]To be among the judges of the king’s court.

[4. ]Of second rank.

[5. ]The spectacle of a multitude.

[1. ]This passage is important for understanding the relation between rights and liberties in Guizot’s political thought. The key idea is that liberties must be duly protected by rights if they are to be effective; free government requires not only liberties and rights (as guarantees), but also forces capable of maintaining them in practice. Not surprisingly, Guizot was a great admirer of Magna Charta, “the most complete and important [charter] that had yet appeared” (HORG, pp. 266‒67), by virtue of which the rights of all three orders of the English nation were equally respected and promoted.

[2. ]Charter of the king concerning certain laws to be observed steadfastly throughout all England.

[* ]The original is lost, but a copy of it exists in the Red Book of the Exchequer, which gives a strong presumption for its authenticity. Besides, the charter of Henry I. makes a distinct allusion to it.

[* ]The original of this charter still exists in the archives of Durham Cathedral.

[1. ]These passages explain Guizot’s opposition to Rousseau’s ideas on liberty, representation, sovereignty, and social contract. It is worth noting that Guizot’s critique of Rousseau differed, for example, from Constant’s. If the latter criticized the author of the Social Contract for advocating aflawed theory of (absolute) sovereignty that threatened individual freedom, Guizot loathed Rousseau’s “individualism,” which he believed to be “destructive not only of all government, but also of all society” (HORG, p. 288). Unlike Rousseau, Guizot believed that popular sovereignty might lead to despotism and anarchy instead of liberty. Reason, he argued, is superior to individual will; that is why, for Guizot, Rousseau’s famous definition of liberty as obedience to the laws we have prescribed to ourselves was mistaken. For a comprehensive discussion of the legacy of Rousseau, see Jean Roussel, Jean-Jacques Rousseau en France après la Révolution (Jean-Jacques Rousseau in Post-revolutionary France) (Paris: Armand Collin, 1972).

[* ]An eighth, a tenth, &c. was a money tax levied on counties, cities, boroughs, or other towns, and so called because it was the eighth, tenth, &c. of the sum at which these counties, towns, &c. had been anciently valued under the reign of William I. Thus each town knew what it had to contribute. The valuations were contained in the Doomsday Book. (Parliam. Hist., vol. i. p. 83.)

[* ]A copy of this charter will be found, in a note, at the end of this lecture. It is of all others the most explicit in favour of public liberties. It was given at Ghent, Nov. 5, 1297; the original is preserved in the British Museum.

[1. ]With the law of our crown preserved.

[* ]A copy of this bull will be found in a note at the end of this lecture.

[* ]Du Contrat Social, b. iii. c. xv.

[* ]Du Contrat Social, b. ii. c. i.

[1. ]This lecture, a true tour de force, is one of the most important theoretical chapters of the book and could be seen as an excellent outline of Guizot’s political vision. Here Guizot elaborates on “true” representation, the distinction between reason and will, the object of representative system, Rousseau’s “mistake,” the role of publicity, and political capacity. For another statement of Guizot’s political philosophy, see his Philosophie politique: de la souveraineté (Political Philosophy: On Sovereignty). For more details on Guizot’s reading of Rousseau’s Social Contract, see n. 1 on p. 273.

[* ]This is expressly indicated by two writs, one in the reign of John, dated Feb. 17, 1208; the other issued by Henry III., July 12, 1237.

[* ]One in 1220, the other in 1225.

[† ]Dated November 15, 1214.

[1. ]These pages contain important insights on the formation of Parliament as a fundamental institution of representative government. Also see HORG, pp. 311‒19, 399‒435.

[* ]The five towns of Dover, Sandwich, Romney, Hastings and Hythe, were called the Cinque ports.

[† ]It must not be forgotten that this course of lectures was delivered in 1821, ten years before the passing of the Reform Bill.

[* ]“Consuetudo est regni Angliae quod in negotiis contingentibus statum ejusdem regni, requiritur consilium omnium quos res tangit.”

[† ]“Consilio magnatum suorum factum crat, et ideo absque eorum consilio non crat revocandum.”

[* ]Thus Edward summoned to the Parliament of Shrewsbury (1283) a hundred and eleven earls or barons; to the Parliament of Westminster (1295), he only summoned fifty-three; and out of the hundred and eleven who were present in 1283, sixty were absent in 1295. The latter Parliaments of his reign furnish several instances of similar irregularities. Thus we find at this time ninety-eight lay proceres who were only once summoned to the Parliament, and fifty who were summoned once, twice, or three times. There was a distinction among the barons who were summoned individually: some were summoned by virtue of their feudal tenure, others, only in virtue of the writ of convocation, whether they were or were not immediate vassals of the king. These last exercised in the Parliament the same rights as the former, only it does not appear that the sole fact of a writ of convocation conferred upon them a hereditary right. There are even several examples of ecclesiastical peers who were convened by special writs, and who obtained a discharge from the obligation to attend the Parliament by proving that they held no fief of the king. The practice of creating barons or peers was of later introduction: first, by a statute of the Parliament (under Edward III.); secondly, by letters patent from the king (under Richard II.).

[* ]It may be seen in the Black Book of the Exchequer that Godfrey Fitzwilliam, in Bucking-hamshire, held twenty-seven knights’ fiefs of Earl Walter Gifford, whilst Guilbon Bolbech, in the same county, held of the king only one knight’s fief.

[* ]Before the reform of Parliament in 1832.

[1. ]This is a good illustration of Guizot’s views on the division (separation) of powers. He believed that the art of politics requires the harmonious co-existence of various powers and principles that would limit and control each other.

[2. ]Guizot’s views on what a “sound” electoral system should look like are worth examining in detail. He admired the English electoral system because it was linked to local liberties, rights, and strong habits of self-government. Those who had the right to vote, claimed Guizot, were not merely electors, but also citizens who participated in the direction of local affairs; in other words, the right to vote must be rooted in the mores and practices of society. That is why Guizot argued that it is not sufficient to summon the electors together and ask them to choose their representatives; instead, they must know each other well, understand thoroughly what they are supposed to do, and be entirely familiar with those who compete for office. The key idea is that electors must not listen to their transient passions and impulses that might distort their judgment, but must be united by common interests and ties. On this topic, also see HORG, pp. 340‒52.

[3. ]The originality of Guizot’s theory of power must be underscored here. He criticized those classical liberals who wanted government to be a humble servant and its tasks to be strictly limited. In Guizot’s opinion, to ask the state to be nothing but a passive and powerless umpire would amount to subverting authority and society alike. Believing in the virtues of wise political crafting, Guizot defended a more nuanced theory of power that was supposed to replace the negative view of state power held by classical liberals. He believed that it would be mistaken to claim that power is a priori (intrinsically) bad, for this would amount to misunderstanding the dignity of power properly exercised. What we should fear, he concluded, is not power tout court, but unaccountable, absolute power; this explains the need to prevent actual power-holders from using their influence in order to transform their de facto power into an inherent right. For a clear statement of Guizot’s constitutionalism, see HORG, pp. 371‒76, where he speaks about individual rights, the separation of powers, and the need to divide the legislative power into two houses. “There is not then,” writes Guizot, “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” (ibid., p. 371). An excellent summary of Guizot’s theory of power can also be found in his Des moyens de gouvernement et d’opposition (1821) and HCE, pp. 228‒45.

[4. ]This lecture and the next one (16) are particularly important for understanding Guizot’s views on the relation between political capacity and representative government. He was keen on pointing out that it would be dangerous and futile to try to regulate once and forever the conditions and signs of electoral capacity, because these qualifications change as new capacities arise and impose themselves. The key point is that capacity confers right, since capacity is a fact which is independent of law and which law cannot destroy or ignore. It is also worth noting that, in Guizot’s opinion, the individual superiorities who will seek a place in government ought not to obtain it for their personal interest, but must always follow what the public interest and the common good dictate (HORG, p. 369‒71). In Guizot’s view, representatives ought to be those who are most capable to discover, by means of their common deliberations, and translate into practice the dictates of reason, truth, and justice (also see ibid., pp. 346‒48). Their capacity must, however, be constantly legitimated and proved in front of the entire nation.

[1. ]This is a clear statement of Guizot’s views on what good government requires: union of electoral right with all other rights; inclusion of “natural superiorities” in the direction of political affairs; political prudence in promoting reforms; direct elections; bestowal of electoral rights according to political capacity. This was, in fact, Guizot’s juste milieu theory, a cautious middle ground between the ideal of Revolution and Reaction. As he wrote in his Mémoirs: “Ce fut à ce mélange d’élévation philosophique et de modération politique, à ce respect rationnel des droits et des faits divers, à ces doctrines à la fois nouvelles et conservatrices, antirévolutionnaires sans être rétrogrades et modestes au fond, quoique souvent hautaines dans leur langage, que les doctrinaires dûrent leur importance comme leur nom.... Les doctrinaires répondaient à un besoin réel et profond quoique obscurément senti des esprits en France, ils avaient à coeur l’honneur intel-lectuel comme le bon ordre de la société, leurs idées se présentaient comme propres à régénerer en même temps qu’à clore la Révolution. (Guizot, Mémoires, Vol. 1, pp. 157‒58).

[* ]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.

[* ]Parliamentary History, vol. iv. p. 1174.

[* ]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.

[* ]“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.”

[† ]“By the assent of the prelates, earls and barons, and of all the commons of the realm, in the said Parliament assembled.”

[‡ ]“These are the things which our lord the king, the prelates, lords, and commons have ordained in this present Parliament.”

[* ]Parliamentary History, vol. i. p. 128.

[* ]Parliamentary History, vol. i. p. 93.

[† ]Ibid. p. 106.

[‡ ]Ibid. p. 115.

[§ ]Ibid. p. 122.

[* ]Parliamentary History, vol. i. p. 131.

[* ]Parliamentary History, vol. i. p. 104.

[* ]Rot. Parl. ii. 329.

[* ]The influence of the king upon elections was manifested at this period in a direct manner, or nearly so. Two edicts of Edward III., passed at an interval of more than forty years, prove this. The first, dated on the 3rd of November, 1330, concludes thus: “And because that, before this time, several knights, representatives for counties, were people of ill designs and maintainers of false quarrels, and would not suffer that our good subjects should show the grievances of the common people, nor the matters which ought to be redressed in Parliament, to the great damage of us and our subjects;—we, therefore, charge and command that you cause to be elected, with the common consent of your county, two, the most proper and most sufficient knights, or sergeants of the said county, that are the least suspected of ill designs, or common maintainers of parties, to be of our said Parliament, according to the form of our writ which you have with you. And this we expect you shall do, as you will eschew our anger and indignation.” (Parl. Hist. vol. i. p. 84.) This writ was issued at the time when the young king had just delivered himself from the yoke of Mortimer and his faction. The second writ, dated in 1373, orders the sheriffs “to cause to be chosen two dubbed knights, or the most worthy, honest, and discreet esquires of that county, the most expert in feats of arms, and no others; and of every city two citizens, of every borough two burgesses, discreet and sufficient, and such who had the greatest skill in shipping and merchandizing.”—Parl. Hist. vol. i. p. 137.

[* ]Parliamentary History, vol. i. p. 160.

[* ]Parliamentary History, vol. i. pp. 161, 162.

[1. ]Who were in present debates indifferent.

[2. ]There will be one king among all.

[* ]Parliamentary History, vol. i. p. 313.

[* ]Parliamentary or Constitutional History of England, vol. ii. p. 287.

[1. ]This is yet another illustration of Guizot’s emphasis on antagonism and competition in a free society. It will be recalled that for Guizot, it was the equilibrium between various political powers and principles of social organization that had led to the preservation and strengthening of liberty in England. He concludes his historical investigation by arguing that liberty can be established only when there is no single power capable of stifling the development of others to the point of usurping authority and becoming absolute. The same idea can be found in HCE: “Nothing but the general freedom of all rights, all interests, and all opinions, the free manifestation and legal coexistence of all these forces, can ever restrain each force and each power within its legitimate limits, prevent it from encroaching on the rest” (HCE, p. 244).