Chapter XXIII: Part II: Essays Of Representative Government In England, (9)

Having this [thus?] established the principle, it would be easy to consider it in practice, and to demonstrate its good effects. It would be easy to prove that it is indispensible for realising the responsibility of the executive power; for curbing inordinate ambition, and turning every kind of superiority to the profit of the State; for preventing fundamental institutions, the public rights of citizens, and all the higher branches of legislation, from being treated as simple measures of government, and made subject to the instability of political experience: but these considerations would lead me too far; I wished to establish this constitutional form in principle, because it is owing to the want of such foundations that it has long been regarded with mistrust and doubt by many enlightened men. Its utility is never disputed; its good results are acknowledged; but men are generally ignorant how it can be made to agree with the general principles of a free government; and it has been found, not without reason, that these principles would be weakened by any derogation from them. In times when the human race is subject to regenerative influences, empiricism is never the ruling spirit: man then requires some rational and rigorous principles which may furnish a solution to every difficulty; and he mistrusts experience when he finds her counsels at variance with those primitive axioms which his reason has firmly adopted. This is our natural disposition: let us not lament it, it characterises all great epochs; it is then only necessary rigidly to examine principles themselves, and to grant dominion to those ideas only which truly deserve it.

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How Should It Be Effected?

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

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Lecture XIX.

Power and attributes of the British Parliament in the
fourteenth century.

At its origin, and subsequent to its complete development, the
Parliament retained the name of the Great Council of the
kingdom.

Difference between its attributes and its actual power at these
two epochs.

Absorption of almost the entire government by the Crown;
gradual resumption of its influence by the Parliament.

Original Name Of The Parliament.

The first name borne in England by the assembly which was succeeded by the Parliament, was, as you have seen, that of the great council, the common council of the kingdom, _magnum commune consilium regni_. The same name has also been given to the Parliament in England for the last two centuries, when it is desired to indicate completely the nature of its interference in the government, and the part which it there performs. It is called the great national council: the king governs in Parliament, that is to say, with the advice and consent of the great council of the nation.

Thus, both at the origin of the British government, and since it has attained its complete development, the same idea has been attached to the assembly, or union of the great public assemblies; and they have both been designated by the same word.

At both these periods, the Parliament or the corresponding assembly which preceded it, has never actually been, and, indeed, could not be considered as a special power, distinct from the government properly so called,--an accessory limited in its action to a certain number of affairs or emergencies. The government itself has resided in it. All superior powers have there been concentrated and called into exercise.

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The Great National Council.

At the origin of modern States, and especially of England, it was very far from being thought that the whole and sole right of the body of capable citizens, of the political nation, consisted in consenting to the imposition of taxes; that they were otherwise subjected to an independent authority, and were not authorized in any way to interfere, either directly or indirectly, in the general affairs of the State. Whatever these affairs might be, they were their affairs, and they always occupied themselves with them, when their importance naturally called for their intervention. This is testified by the history of the Saxon _Wittenagemot_, of the Anglo-Norman _Magnum Consilium_ and of all the national assemblies of the German peoples, in the earliest period of their existence. These assemblies were truly the great national council, deliberating and deciding on the affairs of the nation in concert with the king.

When the representative system has achieved all its mighty conquests, and borne its essential fruits, it has invariably resorted to this; and returned in fact to the point from which it set out. In spite of all distinctions and apparent limitations, the power of Parliament has extended to everything, and has exercised a more or less immediate, but in reality a decisive influence on all the affairs of the State. Parliament has again become the great national council in which all the national interests are debated and regulated, sometimes by means of anterior deliberation, at other times by those of responsibility.

When this first and last condition of free governments has been recognized, it will be perceived that a very different intermediate condition is to be met with, in which Parliament, although sometimes styled the great national council, exercises none of its functions, does not in a permanent manner interfere in political affairs, and is not, in a word, the seat and habitual instrument of government. During the whole of this period, the government is separate from the Parliament, and resides altogether in the royal power, around which are grouped the principal members of the great aristocracy. The Parliament is necessary in certain cases, but it is not the centre, the focus, of political action. It exercises rights, defends its liberties, and labours for their extension; but influences the government in no decisive way: and principles which belong only to absolute monarchy co-exist with the more or less frequent convocation of the representatives of the nation.

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Parliament In The Fourteenth Century.

Such was the state of the British Parliament, from its formation in the thirteenth century until nearly the end of the seventeenth. It was only at the end of the seventeenth century that it resumed all the characteristics of a great national council, and became once more the seat of the entire government.

The British Parliament was not, then, in the fourteenth century either what the public assemblies of the German peoples had originally been, nor what it is in the present day. In order properly to comprehend what, at that period, was the nature of its power and the scope of its influence, we must follow the progress of events.

Common deliberation on common affairs is the principle, as well as the most simple form, of political liberty. This principle fully obtained at the infancy of modern nations. The national assembly was the great council in which public affairs of every kind were transacted. The king, the natural head of this council, was required to convoke it, and to follow its advice.

By the dispersion of the nation over an extended territory, the great national council became dispersed, and could not be assembled: for some time, however, it retained its ancient form, and the full extent of its ancient rights; but power is attached to continual presence, and the great council became of rare occurrence. Its numbers rapidly thinned; and it was very soon composed of great landowners alone, whom wealth, political importance, and that ambition which increases with the growth of power, frequently assembled round the king. The government, which formerly resided in the great national council, now resided only in this new council, formed of the king and the great barons, who became daily further separated from the body of the nation. The same words continued to be employed: the king always governed with his great council; but this was no longer the same assembly; the government and the body of the nation had become disjoined.

The king endeavoured to free himself from the great barons, and to govern alone; they resisted; and in the struggle in which they engaged for the defence of their liberties or the preservation of their influence in the central government, they were compelled to seek support from the body of the nation, the freeholders and the burgesses.

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Admission Of The Commons.

The issue of this struggle was favourable to liberty; the freeholders and the burgesses, who were become almost strangers to the central government, renewed their connection with it by the formation of Parliament; and this great council of the king, which for two centuries had been continually contracting, once more began to extend.

But at their return, the new citizens were very far from taking the same place which their ancestors had occupied. The development of inequality is always the first result of the progress of the social state. Royalty had extended and fortified its power; it now existed by itself, powerful and independent, and claiming distinct rights proportionate to its own strength. It was the same with the great barons, who also were strong and independent in themselves. If it had been possible to congregate in a single assembly all the descendants of those ancient Saxons or Normans who had originally formed the great common council, a very different spectacle would have been presented. Instead of finding an assembly of warriors, not enjoying perfect equality, certainly, but sufficiently equal for each to preserve his personal importance, and to consider himself in a condition to defend it; instead of seeing a chief at their head, too little distinguished from the principal men among them to be powerful without their adherence,--there would have been a king invested with great wealth and power, mighty barons followed by a multitude of retainers almost entirely dependent upon them, and a body of citizens obliged to unite and act collectively for the recovery of some influence over those measures which interested them most directly. In this new composition of society and of the national assembly, the deputies of the counties and boroughs were very far from pretending to associate themselves with the government properly so called, or from thinking to control or direct the central power in all public affairs; several centuries necessarily elapsed before their ideas could acquire so much generality, and their interference in Parliament became so comprehensive. They assembled there for the sole purpose of defending themselves, and those whom they represented, against the most crying abuses of power, against the violent and arbitrary invasion of their persons and their possessions.

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Vicissitudes Of The Parliament.

Discussing the demands for supplies that were addressed to them, and presenting their complaints to the government against the most perilous acts of injustice of the agents of the king or of the great nobles, constituted the whole of their mission, and, in their own opinion, the full extent of their rights. Their personal importance was too trivial, and their intellectual activity too limited, for them to imagine themselves called to discuss and regulate the general affairs of the State. They resisted power when it directly attacked them, or required great sacrifices from them; but royalty and its prerogatives, the ordinary council of the king, and his measures in regard to legislation, peace and war, or general politics, in a word, the government properly so called, were entirely beyond their interference. They had not the power, or even the wish, to meddle with such matters; it was all discussed and decided between the king, his ministers, and the great nobles who were naturally called to take part therein by the elevation and importance of their social position.

Both the ancient assembly of the Saxon or Norman warriors, then, and the existing Parliament, would be vainly sought for in the Parliament of the fourteenth century. No violence is done to facts: a new society had been formed which could only engender a political order in accordance with its own character. Great inequality prevailed, and this inequality would naturally reappear between the powers to which it gave birth. The primitive and simple unity which exists in an uncivilized community had disappeared; the wise unity to which a state of civilised society can elevate itself by the diffusion of wealth and intelligence, was still far distant. There was a king, a House of Lords, and a House of Commons: but there was not a Parliament in the political sense which is now attached to that word.

The permanent co-existence of royalty and a great public council, through all these vicissitudes of government and liberty, is an important fact. This council, formed at first by the general assembly of the nation, afterwards restricted to the great barons, and speedily admitting within its circle the representatives of other social conditions, has always been in England the principal organ of the central government. The English monarchy has never succeeded in isolating and enfranchising itself therefrom.

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Its Gradual Increase.

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

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

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Lecture XX.

Condition and attributes of the Parliament during the reign of
Edward II. (1307-1327).

Empire of favourites.

Struggle of the barons against the favourites.

Aristocratic factions.

Petitions to the king.

Forms of deliberations on this subject.

Deposition of Edward II.

Reign Of Edward I.

In order to explain the manner in which the British Parliament was formed, I have found it necessary, up to this point, to follow history step by step,--to enter into all the details, and to collect all the facts, that might serve as proofs either of its existence, or of its participation in public affairs. I have now another object to attain, and I must therefore pursue another course. The Parliament is now definitively formed; and if I were to continue to narrate all the facts which relate to it, and to keep a register, as it were, of all its acts, I should write the history of the country, and not that of its institutions. What I am seeking to describe, is the development of representative government; and I shall avoid all questions unconnected with this object. The extension which the Parliament received, the revolutions which it underwent,--in a word, its personal and internal life, will constitute the subject to which our attention must be directed.

On considering the reign of Edward I. from a political point of view, it is evident that, notwithstanding the agitations by which it was disturbed, there was, during that reign, some wholeness and unity in the exercise of power. Edward was a firm and capable prince, who well knew how to concentrate and direct the various forces of society; in him, the State possessed a centre and a chief. Under Edward II., the English government lost all solidity and unity: no intelligent and determined will presided over it; the nation had no rallying-point; the string of the bundle was broken; all forces and all passions were displayed at hap-hazard, and came into conflict upon the interests of individuals or factions.

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Empire Of Favourites.

In such a state of things, what could the Parliament be? Nothing, or next to nothing, unless it were an instrument of factions. The body of barons was then, and long continued to be, the preponderant portion of the assembly: the Commons, though strong enough sometimes to defend themselves when their own interests were at stake, were not sufficiently powerful to interfere, in a decisive manner, in public affairs, and to become the centre of the government. All matters were, therefore, arranged between the court and the barons, or rather between the different factions into which the body of barons was divided. The Commons appeared in the train of one or other party, to give their alternate triumphs the appearance of a national adhesion, but without ever determining the course of events, or even modifying them in any effectual manner. The supreme power and the country were a prey to the conflicts and schisms of the high aristocracy.

In order clearly to demonstrate that such was the state of institutions and of the central government at this period, it will be sufficient to refer to the three principal events of this reign.

Rebellions Of The Barons.

The first is the conflict which the English barons maintained against the king, with regard to a favourite, Piers Gaveston, whom, in spite of his father's advice, Edward II. had persisted in retaining in his confidence. The favourite and his creatures absorbed all the power and advantages of the court; and in 1311, the barons, desiring their share of riches and favours, after having attempted all other means for his overthrow, demanded his dismissal with arms in their hands. Their enterprise was evidently intended neither to promote the interests of the people nor those of the king; it was a revolt of courtiers. They fought, not to assert the inviolability of charters or rights, but to obtain the employments and treasures of a favourite. Nevertheless, they attempted to give a national colour to their rebellion. {456} The plans and measures of the great rebel Parliament held at Oxford during the reign of Henry III. were revived; Lords Ordainers were appointed to reform the State; they bid for public favour by the abolition of a few abuses; they enacted that the possessors of landed property alone should be appointed sheriffs; they limited the right of purveyance, which was held by the crown; and they prohibited all grants of royal letters-patent ordering the suspension of the regular course of justice. But these were merely outward appearances intended to conceal the selfish egotism of the great barons; their only object was to make themselves masters of the royal authority, of the right of appointing to the chief offices of state, and of the revenues of the crown. They put Gaveston to death, and seized upon the whole power. The representatives of counties and boroughs, who were present in the Parliament by which these designs were executed, gave their consent; but they were mere followers of the rebellion, and had no influence upon the government. The great barons, who came to Parliament in arms and accompanied by their troops, had the entire management of everything in their own hands.

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

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Deposition Of Edward II.

Moreover, it is evident that the riches which were amassed by court favours and the exercise of royal power were a constant subject of jealousy and faction., The petition presented to the king in 1322 by Hugh Spencer the elder against the barons who had condemned him, sets forth that they had devastated sixty-three of his manors or domains in fifteen different counties,--that they had carried off 28,000 sheep, 22,000 head of cattle, two harvests, one from his barns and granaries, and one of standing corn, 600 horses, a great quantity of provisions of all kinds, and complete suits of armour to equip 200 men,--and that they had moreover done damage, in his castles and lands, to the amount of more than 30,000_l._ sterling. Such was then the wealth of a great English baron; and herein resided an inexhaustible source of rebellions.

A third event, the deposition of Edward II., presents a spectacle of the same character as the two preceding occurrences. This was the result of a new confederation of the barons, at whose head the queen, Isabella, had placed herself. A Parliament, convoked at Westminster, on the 7th of January, 1327, declared the incapacity of the king, then a prisoner in Kenilworth Castle. A deputation, composed of four bishops, two earls, four barons, three deputies from each county, and several burgesses of London, of the Cinque Ports, and of other cities, was sent to acquaint him with the resolution of the Parliament, and formally to renounce the oath of fidelity. This deputation received from Edward II. his abdication in favour of his son Edward III., then fourteen years of age, under whose name the dominant faction expected to wield the supreme power to its own advantage.

Notwithstanding the interference of the Commons in this and the preceding acts, it is clear that the whole affair was managed between aristocratic factions influenced by personal interests, and profiting by the king's incapacity to appropriate to themselves the government and all its advantages. There is nothing to indicate any progress of political institutions and triumph of national liberties. The government of the barons, after such scenes, was even more arbitrary and oppressive than that of the king.

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Progress Of The Parliament.

It is, nevertheless, a remarkable fact that, in all these occurrences, the sanction of the Parliament was always regarded as necessary, and as the only means of terminating and legalizing the works of violence. The Parliament, or at least the House of Commons, was merely a passive instrument in the matter; but it was already thought impossible to dispense with its concurrence. Now, as it is part of the nature of this instrument to serve the cause of public liberties and to lead, sooner or later, to their extension, every circumstance that augmented its importance and established its necessity may be considered as a progress of the representative system.

I will now bring under your notice the principal parliamentary facts of this period, and inquire in what respects the principles of a free government were manifested or introduced in them.

It was at this time that the Parliament decidedly became the centre towards which all demands for the reform of abuses, the redressing of grievances, the modification of laws, in a word, all petitions, were directed; it had possessed this character from its origin, but in a less extended measure. When the Parliament, or rather the body of barons in Parliament assembled, had begun once more to act as the great council of the king, a host of applications which had previously never been made, or had been addressed to the king alone, were addressed to the king in Parliament, and became a subject for deliberation at its meetings. Thus, in the Parliament held at Westminster, in 1315, we find that 268 petitions were presented.

These petitions were of two kinds. Some were presented by the Commons to the king in council, and had reference to demands or complaints of general interest. Others were presented by individuals, corporations, or towns, and had reference to private or local interests. The former class gave birth to the right of initiative; the latter to the right of petition. Both classes were addressed to the king, in whom the actual power resided; and upon whom, on this account, it devolved not only to provide for the general necessities of the State, but also to do justice to special interests.

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Practice Regarding Petitions.

On the opening of each Parliament, a certain number of days were fixed for the reception of petitions. A certain number of persons, chiefly judges or councillors of the king, were appointed to receive them, to investigate their nature, to classify them according to their objects, to set aside those which were to form the subject of discussion in the Parliament itself, and finally to present them to Parliament. This discussion was almost confined to the House of Barons, who were supposed to form a great intermediary council between the privy council of the king and the entire Parliament. The barons, when assembled in the privy council, deliberated and decided upon the demands of the Commons relative to matters of general interest. If these demands referred to certain complaints against abuses of the exercise of the royal power, or against the conduct of the sheriffs, for example, the king answered them in his own name alone, after having taking the advice of his privy council, of the judges, or of the barons, according to circumstances. If the petitions prayed for some interpretation or declaration of the existing law, the answer was given in the same manner. If they suggested the enactment of a new law, the king, when he judged it convenient, proposed this law to the Parliament; but in early times, this was very rarely the case; and when the petition had once been presented, the Commons ordinarily had nothing further to do with the matter than to receive the answer of the king.

As to those petitions which originated from individuals or from bodies unconnected with the Parliament, and which related only to matters of private interest, the meeting of Parliament was merely chosen as the occasion of their presentation, because it was more favourable than any other period for obtaining a reply. The royal council decided upon all those petitions which did not require the intervention of the barons or of the entire Parliament.

The presentation of petitions at this period is, therefore, a very complex fact with which are connected not only the right of petition to the Houses of Parliament, but also the right of petition to the government generally, the right of initiative, the jurisdiction of the Houses of Parliament, in short, a host of institutions essential to the representative system, and each of which it is necessary to consider separately. They all existed, but in a confused and embryo state, in this affluence of petitions of all kinds, which called into action very different powers, then exercised indiscriminately. {460} This original confusion was, undoubtedly, one of the principal causes of the universality of the power of the British Parliament. We cannot now examine into all the institutions which sprang from this source, and progressively disentangled themselves, assuming a distinct form. The question of the right of petition, in the sense which is attached to it at the present day, is in itself deserving of our careful examination, and will form the subject of our next lecture.

Conditions Of Granting Subsidies.

One particular fact attests the progress which the Commons were beginning to make in the comprehension of their power and rights. It is beyond doubt that, originally, the voting of supplies always furnished them with an opportunity of obtaining some concessions or the redress of their grievances; this is proved by the history of English charters. But, in 1309, when granting Edward II. a twentieth part of their moveable goods, they expressly attached the condition that "the king should take into consideration, and should grant them the redress of certain grievances of which they had to complain." [Footnote 36]

[Footnote 36: These grievances were eleven in number, viz:
1. That the king's purveyors took all kinds of provisions
without giving any security for the payment;
2. That additional duties had been imposed on wine, on
cloth, and on other foreign imports;
3. That by the debasement of the coin, the value of all
commodities had been advanced;
4. That the stewards and marshals of the king's household
held pleas, which did not fall under their cognizance;
5. And exercised their authority beyond the verge, that is,
a circuit of twelve leagues round the king's person;
6. That no clerks were appointed, as they had been under
the last monarch, to receive the petitions of the Commons
in Parliament;
7. That the officers appointed to take articles for the
king's use in fairs and markets, took more than they ought,
and made a profit of the surplus;
8. That in civil suits, men were prevented from obtaining
their right by writs under the privy seal;
9. That felons eluded the punishment of their crimes by the
ease with which charters of pardon were obtained;
10. That the constables of the castles held common pleas at
their gates without any authority; and
11. That the escheators ousted men of their inheritances,
though they had appealed to the king's courts.
_Rot. Parl._ i. 441.]

These grievances had existed for a long while, and were perpetuated for a considerable period afterwards; but the Commons had begun to look them full in the face, and to insist year after year upon their redress, as the only condition upon which they would grant the supplies.

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Statute Of 1322.

A statute passed in 1322, by the Parliament at York, which revoked the sentence against the two Spencers, declared that "thenceforward all laws respecting the estate of the crown, or of the realm and people, must be treated, accorded, and established in Parliament by the king, by and with the assent of the prelates, earls, barons, and commonalty of the realm." This is a formal recognition of the right of the Commons to interfere in the legislation of the country, and in all great public affairs.

Many English publicists attach great importance to this statute, and regard it as the first act which officially sanctioned the fundamental principle of the British government. This importance appears to me to be exaggerated. The principle enunciated by this statute had been put into practice on many previous occasions, and a sufficiently clear knowledge was not then possessed of that which constituted matter of legislation and general interest to obtain conformity to it in practice. It is, therefore, far from being the case that the Commons, from this time forth, always exercised the power allotted to them by this statute. Nevertheless, the official exposition of the principle indicates progress in the ideas ol the times.

Whig And Tory Errors.

Such are the principal facts of the reign of Edward II., with regard to the condition and action of the Parliament. They contained no very important innovation, but they announce the consolidation and natural progress of the institutions definitively established under Edward I. Tory writers, taking their stand upon the preponderant influence exercised by the great barons during the reign of Edward II., have attempted to cast doubts even upon the presence of the Commons at several of the Parliaments of this period. Whig writers, on their side, endeavour to deduce, from the proofs which are extant of the presence of the Commons, an argument for their great importance and decisive participation in events. The former are mistaken when they deny the presence of the Commons in Parliament, from their having been unable to find any writs of convocation addressed to the sheriffs; for the writs which order the payment of the salaries of the representatives are extant for nearly all the Parliaments of this period. {462} The latter deduce too extensive results from the presence of the Commons in the Parliament: it is beyond all doubt that the high aristocracy, who sat in the House of Lords, then managed and directed affairs almost entirely alone. The progress of liberty is not so rapid; the most important point is, that it be certain. Thenceforward it was certain, and it received great development during the two following reigns.

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Lecture XXI.

Of petitions during the early times of representative
government.

Regulations on the subject.

Transformation of the right of petition possessed by the Houses
of Parliament into the right of proposition and initiative.

Petitions ceased to be addressed to the king, and are presented
to Parliament.

Origin of the right of inquiry.

Necessity for representative government to be complete.

Artifices and abuses engendered by the right of petition.

Right Of Petition.

The circumstances which occur at the origin of an institution are well calculated to make us acquainted with its nature. At such periods, events are simple, and produce themselves spontaneously. No effort has yet been made either to evade them or to change their nature, and the state of society is not sufficiently complicated to render it impossible to attain the object aimed at by any but subtle and indirect means.

To say truth, in what does the right of petition consist? It is the right to demand the reparation of an injury, or to give expression to a desire. Such a demand must naturally be addressed to the power which is capable of satisfying the desire or repairing the injury,--which has authority, and power enough to grant the prayer of the petition.

Accordingly, in the fourteenth century, all petitions, whether they emanated from the two Houses of Parliament, or from individuals unconnected with those Houses, whether they had reference to general or private interests, were addressed to the king. No one had any idea of petitioning the Houses themselves; the king governed; in him resided both the right and the power to redress public or private grievances, and to satisfy the requirements of the nation. To him the barons, commons, corporations, and citizens applied whenever they had need.

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Presentation Of Petitions.

The king governed in his council: and of all his councils, the Parliament was the most eminent and the most extensive. In certain cases, the advice and acquiescence of the Parliament, as a whole or in part, were necessary to the exercise of the royal authority. The meeting of Parliament was, therefore, the natural opportunity for the presentation of all petitions. It was, as it were, the moment at which the nation and the government met face to face, either to transact in common those affairs which required their concurrence, or to make those reciprocal demands of which they mutually stood in need. Private citizens naturally availed themselves of this opportunity for presenting their own petitions, either because the co-operation of the great powers of the State was necessary to grant their prayers, or because they referred to demands upon which the king was competent to decide alone, but to which his attention would then be more effectually directed, as they might receive support from the patronage of the barons or deputies met in council with the king.

In all cases, it was to the king in his council, that is to say, to the government itself, that petitions were addressed; and far from the Houses of Parliament, after having received and examined them, referring them to the government for decision, it was the king who, by officers specially appointed for the purpose, received and examined them, and afterwards called the attention of both Houses to those with whose prayers he could not comply without their sanction. All complaints and demands were thus forwarded directly to the power entrusted with the duty of coming to a definitive decision regarding them; and the Houses of Parliament interfered subsequently only in certain cases, and then as a necessary council.

Such was the primitive and natural fact. The progress of the representative system, however, completely changed its course and character.

We have seen that, in the fourteenth century, petitions were of two kinds; first, those drawn up or presented to the king, by one or both Houses, and relating to grievances of a more or less general character; secondly, those addressed to the king by corporations or citizens, and relating to collective or private interests. We have now nothing further to do with the first class of these petitions. As far as the Houses of Parliament are concerned, they have become transformed into a right of initiative, more or less efficacious and more or less direct. This right, its importance and its forms, give rise to questions of an entirely distinct character. At the present day, the complaints or demands addressed by private citizens to the legislative authorities, are alone called by the name of petitions.

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Assertion Of The Right Of Petition.

There is now no further question about the right of addressing such demands to the executive power itself,--to the government properly so called. No one thinks of contesting the right of citizens to seek in this manner the redress of their grievances, or the satisfaction of their desires. Nor that this right, in itself so simple and incontestable, has not sometimes assumed great political importance, and thereby occasioned animated discussions. In 1680, Charles II., having ceased for several years to convoke a Parliament, a great number of petitions were addressed to him demanding its convocation. The king, by proclamation, declared them seditious, and refused to receive them; but the Parliament having met at last, the House of Commons enacted, on the 27th of October, 1680;

"1. That it is, and ever hath been, the undoubted right of the
subjects of England to petition the king for the calling and
sitting of Parliaments, and redressing of grievances.

2. That to traduce such petitioning as a violation of duty, and
to represent it to his Majesty as tumultuous or seditious, is
to betray the liberty of the subject, and contribute to the
design of subverting the ancient legal constitution of this
kingdom, and introducing arbitrary power.

3. That a committee be appointed to enquire after all such
persons, that have offended against the right of the subject."
[Footnote 37]

[Footnote 37: Parliamentary History, vol. iv. p. 1174.]

A state of crisis could alone lead to such an attempt to destroy the most natural of the right of citizens--the right of addressing the government itself in order to make known to it their desires--and the Charter, reasonably, neither sanctioned nor limited it. The right to which it gave sanction, and which alone now bears the name of the _right of petition_, is the right of applying to the two Houses of Parliament to urge their interference, either in some matter of general legislation, or for the redress of private grievances. To this right the question which we have now under consideration is restricted. We must enquire how it became introduced into the representative system of government, and in what respects the various forms which it has successively assumed correspond to the various stages of the development of that system.

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Petitions To Parliament.

In fact, this right did not exist in the fourteenth century; that is to say, nobody thought either of exercising or of demanding it. The Houses of Parliament, and particularly the House of Commons, were themselves the great public petitioner. They had quite enough to do to present and obtain the reception of their own demands, without incurring the labour of interfering on behalf of private interests, which at that time were treated generally with much less consideration. They were, moreover, too slightly connected with the government thus to meddle with the details of its action. They were neither the seat nor the centre of power. Their assembly lasted only for a short period. The king's answers to their own demands were ordinarily given only during the next session. In such a state of things, it was natural that all private petitions should go directly to the king in council, for from that source alone could redress be expected.

When the Houses had acquired greater importance, sat for a longer period, and interfered in all great public affairs--when, in full and secure possession of their fundamental rights, they began to apply them to practice instead of limiting their efforts to defend their existence--when, in a word, they had acquired, in public opinion and in reality, the consistency of public powers associated in the government of the State, it became natural that petitions should be presented to them against the abuses or errors of that government which they were appointed to control. The right of petition to the Houses of Parliament was then regarded as a natural consequence of the right of petition to the king. The Parliament was always considered and called the great council of the king. This council, it is true, was habitually in opposition and conflict with the government of the king, which still remained exterior to it, and endeavoured to free itself from its control: but ancient traditions retained their sway; complaint was made to one part of the government against the injuries committed by the other part. The new mode of petitioning did not, therefore, appear extraordinary, and no attempt was made either to authorize or prohibit it. It was brought into use without opposition. [Footnote 38]

[Footnote 38: Mr. Hallam is of opinion that the interference
of the Commons in regard to petitions relating to matters of
private interest originated solely in this desire to repress
the encroachments of the Privy Council.
"From the first years of Henry V.," he says, "though not, I
think, earlier, the Commons began to concern themselves
with the petitions of individuals to the Lords or Council.
... Many of the requests preferred to them were such as
could not be granted without transcending the boundaries of
law. A just inquietude as to the encroachments of the
king's council had long been manifested by the Commons: and
finding remonstrances ineffectual, they took measures for
preventing such usurpations of legislative power, by
introducing their own consent to private petitions. These
were now presented by the hands of the Commons, and in very
many instances passed in the form of statutes with the
express assent of all parts of the legislature. Such was
the origin of private bills, which occupy the greater part
of the rolls in Henry V. and VI.'s Parliament."
(Hallam's Middle Ages, vol. ii. p. 224.)

Beginning from the reign of Edward III. (1322), or, as Mr.
Hallam thinks, from that of Edward II. (1310), we find both
Houses, at the opening of the session, each appoint a
committee for the purpose, not only of receiving, but of
examining petitions, in order to enquire into the truth of
the facts stated, before the petitions became the subject of
deliberation in Parliament. (Parliamentary History, vol. i.
p. 230.) It is doubtful whether the committees received
directly the petitions addressed to the king in council, or
whether those which fell under the cognizance of the
Parliament were referred to them by the officers of the king.
In 1410, we meet with an instance of a private petition,
addressed to the Commons, and transmitted by them to the
king, with their recommendation. (Report of the Lords
Commissioners, p. 362.) For the mode of the presentation of
petitions, both to the Privy Council, and to the House of
Lords, see Hallam's dissertation on the Privy Council, in the
second volume of his History of the Middle Ages.]

{467}
Right Of Initiative.

But when this practice was introduced, the Houses of Parliament themselves had undergone great change of form, and received considerable development, as regarded their internal constitution, their proceedings, and their privileges. Instead of those petitions which, at the outset, they had been accustomed to present to the king, the right of initiative had been substituted, and this right belonged to every member of either of the two Houses of Parliament who might exercise it by bringing forward, with such formalities and delays as were required by usage, any motion with which he thought it fitting to occupy the assembly.

{468}
Mode Of Presenting Petitions.

With the right of initiative was connected the right of enquiry into all such facts or acts as appeared to the House of sufficient importance to induce it to desire a thorough knowledge of them, and afterwards to adopt a resolution regarding them, either of prosecution or of censure, or simply to declare its opinion. On coming before Houses invested with such rights, petitions necessarily took another course than would have been the case had those rights been wanting. And in the first place, it passed into a custom that they must be presented by a member; this custom was not, originally, a precaution against the abuse of the right of petition, but the natural form of its exercise. As every member enjoyed the right to call the attention of the House, by motion, to any particular subject, it was natural that he should make use of this right whenever he became the exponent, to the House, of the demands of his constituents or his friends. By this means, they acquired an authority which they could not otherwise have obtained; the House was thus made to deliberate, not upon the petition, but upon the motion of the member who had presented it, and who had based upon it a proposition either for an enquiry, or for an address, or for a prosecution, or for a law, or for any other act which the House was entitled to accomplish. And whatever this motion might be, it was subjected to all the formalities and all the delays which, on every occasion, regulated the debates and deliberations of the assembly.

Thus invested with all the rights necessary for exercising over the government, by one mode or another, the influence which properly belonged to them, the English Houses of Parliament regarded the petitions which were presented to them merely as an opportunity for exercising this influence in virtue of these rights. They did not act as a sort of patron placed between the petitioners and the government from which the redress of the grievance was definitively demanded; nor did they refer the petition to the government, with a postscript of their own to request the passing of any act of which they were unable to superintend or compel the execution. After its presentation, they no longer had anything whatever to do with the petition; if the motion to which it had given rise were adopted, then began an act of the House itself, accomplished with all the usual formalities, and terminated by a resolution which specially belonged to it, and which placed the government in presence of the thoroughly-discussed and clearly-expressed opinion or will of the assembly which shared with it in the exercise of the supreme power in the nation.

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Course Of The Right Of Petition.

When, by a further progress, the government found itself at last obliged to fix its seat within the Houses of Parliament, when they had become once more the great national council, discussing and deciding public affairs in public, petitions also were restored to their natural state, to their primary condition,--that is to say, being addressed to the Houses of Parliament, they were addressed to the king in council, to the government itself, which consisted in the royal power, surrounded by the parliamentary majority, and compelled to justify its wishes and acts against the attacks of the opposition, which sat in the same council, by virtue of the same title, and with the same rights. What has been the consequence of this? Every petition, when converted into a motion by a member of the House, gives rise to a regular combat, conducted according to the usual formalities, between the ministry and the opposition. The issue of this conflict fully decides the fate of the petition, that is to say, the result at which it aims; it has not to go elsewhere in search of a solution; the House has neither compromised itself frivolously, nor given its verdict inconsiderately; and, with the exception of the case of appeal to a new House after a dissolution, all its acts, after having been accomplished in obedience to those formalities which give pledge of their maturity, directly attain their object.

Such has been the course of the right of petition in England. Closely connected with the whole system of representative government, it has kept pace with the progress of that system, adapting itself to its various successive stages, and holding the same rank with the other rights of deliberative assemblies. It has thus been brought back to its true nature, which is incessantly to proclaim and assert, in the centre of the government itself, the grievances and the requirements of citizens, so as to ensure, after mature deliberation, the redress of the former and the satisfaction of the latter.

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Abuses Of The Right Of Petition.

I do not say that this result is always attained in England; other causes have, in certain respects, neutralized the natural virtue of representative government, and prevented it from producing all its legitimate results. I merely say that the right of petition has there assumed its reasonable form, and that, but for the action of causes which effect a general change of the system, it would by that form attain the object which its advocates should propose to themselves.

Let us now enquire what must happen in a different state of things, when representative government, though perhaps less changed in certain particulars, is nevertheless much more incomplete. It will be seen how the right of petition may introduce disorder among the public powers of a State, and yet remain almost illusory.

This is the hypothesis upon which I stand. I suppose the Houses of Parliament invested, by right, with great power, associated in the legislation of the country, voting taxes, receiving accounts of the administration of the revenues of the State, carrying on their discussions in public, and enjoying a large amount of liberty in these debates. It is beyond a doubt that, in the public opinion, they will be held to possess the mission and the power to obtain the redress of all grievances, and the satisfaction of all legitimate requirements, and to compel the executive power to act, on all occasions, in accordance with justice, the laws, and the general interests of the country. It is from the action of the Houses of Parliament that the public and the citizens will expect all that they desire or hope; and towards them they will turn their eyes to obtain it.

Such being the disposition of the public mind, if these same Houses do not possess the right of initiative, or the right of enquiry, or any positive external jurisdiction--if it is not in their power to set themselves in motion and to pursue their own objects--in a word, if their means of direct action are far below their written mission and the public expectation, what will be the consequence?