Chapter XVIII: Part II: Essays Of Representative Government In England, (4)

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 manœuvres. 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 Of Edward I.

_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.

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And we will that if any judgment be given from henceforth contrary to the points on 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.

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Bull Of Pope Clement V.

_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:

The purity of thy loyal devotion, which is and has been uniform and conspicuous in thy unwearied attention to the desires of the Holy See, well deserves that the Holy See itself should remove all that is hostile to thy welfare, should suppress whatever displeases thee, and should ever secure for thee the enjoyment of all good.

We have learnt recently, by an account worthy of credit, that lately, when thou wert in Flanders, and even before thy arrival there, when thy efforts were being used to maintain thy prerogatives against thy enemies and rivals, that then certain magnates and nobles of thy kingdom, and other persons who are hostile to thy authority, taking advantage of the opportunity when thou wert occupied in fighting against those in another kingdom, who were opposed to thy rule, threatened that, unless thou wouldst make certain concessions of a diverse and unjust character, both relating to forest and other rights, which have, from time immemorial, belonged to the crown, and the dignity of thy rank, (which also, previously, they had importunately sought before thy departure from the said kingdom,) they would conspire against thee, would excite the people, and disseminate various scandals:

And that thou, prudently treating their conspiracy, and wishing then to avoid the dangers that were pressing upon thee, didst grant these concessions, more by constraint than with thy free consent:

And that, finally, on thy return to thy kingdom, the wars not having then terminated, the said magnates, and others, through their importunate and presumptuous suggestions, did obtain from thee the renewal of these concessions; and that they have, moreover, extorted royal orders to the effect that in every cathedral church in the kingdom there should be pronounced, twice every year, a sentence of excommunication against those who should violate the said concessions, as is expounded formally and in detail in the said commands, under the authority of the royal seal:

As, therefore, the Holy Apostolic See regards thy kingdom favourably, even above all other kingdoms, and entertains for thee, personally, the most friendly feelings, and recognizes that all these concessions have been made and extorted at the expense of thine honour, and to the detriment of thy royal sovereignty:

So by the apostolic authority, and by our full power, we revoke, annul, and dissolve the said concessions and all their effects, and all that can result from them, as also the sentences of excommunication which have or may be pronounced in order to their observance, either in the said churches or elsewhere, we declare them abolished, null, and without authority; annulling also the orders and letters to which they have given occasion; we decree for thee and for thy successors on the throne of England, that ye neither are nor ever shall be bound to observe them, even although ye may have engaged yourselves so by oath; besides that, as thou hast assured us, at the time when thy coronation was solemnized, thou didst swear to maintain the honours and the prerogatives of thy crown; so that, if even thou hast bound thyself to any penalty on this account, we absolve thee therefrom, as well as from the accusation of perjury if it should be made against thee.

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To ensure the execution of our desires, we expressly forbid our venerable brethren, the archbishops, bishops, and others, ecclesiastical as well as secular, who are settled in thy kingdom, to do or attempt anything against the tenor of the present annulment, abrogation, revocation, and abolition, under penalty, as regards the archbishops and bishops, of suspension from their offices and benefices; and, if they persist for one month, under penalty of excommunication, which shall be, for this sole reason, pronounced against them, and all who are accessory to their designs.

We declare beforehand that every attempt against our present decree is null and void.

If, however, there is any right belonging to the inhabitants of the said kingdom, which they possess by virtue of previous letters and concessions so made by thee, we mean not to withdraw these from them.

It shall not be allowed to any one absolutely to violate in any particular, or only to contradict the present act of abrogation, revocation, annulment, and abolition.

If any one dare to allow this in himself let him know that he incurs the indignation of the Almighty, and of the blessed apostles Peter and Paul. (Rymer, _Acta Publica_, vol. ii., p. 372.)

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Lecture X.

Necessity of inquiring into the political sense of the word
_representation_ at the time when a representative
government began to be formed.

Mistaken theories on this subject.

Rousseau's theory, which denies representation and insists on
individual sovereignty.

Theories of writers who attempt to reconcile the principle of
representation with that of individual sovereignty.

Erroneousness of the idea that the sovereignty belongs to the
majority.

True idea of representation.

Meaning Of Representation.

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.

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Rousseau's Theory.

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. [Footnote 24]

[Footnote 24: _Du Contrat Social_, b. iii. c. xv.]

Theory Of Individual Sovereignty.

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. {336} 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.

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Consequences Of These Theories.

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 to-day 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." [Footnote 25]

[Footnote 25: _Du Contrat Social_, b. ii. c. i.]

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Theory Of Reconciliation.

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.

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Representation Of Wills.

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.

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Theory Of Executive Power.

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.

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Theory Of Despotic Power.

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 unmixed 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 superfluous 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.

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Fallacy Of The Principle

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 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. {343} 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.

Of Will-Representation.

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? {344} 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?

Province Of The Will.

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.

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Argument From Parental Authority.

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.

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Reason The Source Of Power.

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 attributing to him the right, which he does not actually possess, of obeying nothing but his own will.

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True Doctrine Of Representation.

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. {348} 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 Is Representation?

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.

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Summary.

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.

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Lecture XI.

Formation of a Parliament.

Introduction of county deputies into the Parliament.

Relations of the county deputies to the great barons.

Parliament of Oxford (1258).

Its regulations, termed the Acts of Oxford.

Hesitancy of the county deputies between the great barons and
the crown.

Formation Of A Parliament.

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.

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Of County Deputies.

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 imposts on all the proprietors in the kingdom. [Footnote 26]

[Footnote 26: 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.]

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.

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The Knights Of Shires.

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.