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LECTURE 15 - François Guizot, The History of the Origins of Representative Government in Europe [1861]

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The History of the Origins of Representative Government in Europe, trans. Andrew R. Scoble, Introduction and notes by Aurelian Craiutu (Indianapolis: Liberty Fund, 2002).

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LECTURE 15

Philosophical examination of the electoral system in England in the fourteenth century. ~ The system was the natural result of facts. ~ Who were the electors? ~ Four principles which determine the solution of this question.

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

[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.