History of the Origin of Representative Government in Europe

Lecture XIV.

Mode of election of the deputies of counties and boroughs.

Who were the electors?

No uniform principle to regulate elections in boroughs and towns.

Voting in public.

Who Were The Electors?

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

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

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

Origin Of County Freeholders.

We have seen that, a large number of the direct vassals of the king having very early renounced, on account of their small wealth or influence, their attendance at the general assembly, their political existence became localized and restricted to county affairs, and to attendance at the county court, at which those affairs were transacted. The direct vassals of the king, however, were not the only persons interested in the affairs of the county. Many other freeholders, whether vassals of the great barons or originally simple socagers, possessed considerable wealth and influence; [Footnote 34] and as actual possession at this period was almost the only arbiter of right, there is little doubt, à priori, that all the freeholders of any importance in the county were then admitted to the county-court, to direct the administration of justice and to discuss their common interests.

[Footnote 34: It may be seen in the Black Book of the Exchequer that Godfrey Fitzwilliam, in Buckinghamshire, held twenty-seven knights' fiefs of Earl Walter Gifford, whilst Guilbon Bolbech, in the same county, held of the king only one knight's fief.]

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

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

Functions Of The County Courts.

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

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

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

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

Rights Of The Freeholders.

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

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

Facts, I repeat, confirm these probabilities. The writs addressed to the sheriffs by the king for the election of county members, are conceived in the same terms as those issued for elections relating exclusively to the administration of local affairs.

Forty-Shilling Freeholders.

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

Thus, moral probabilities and historical facts alike indicate, that since the origin of the Parliament in its actual form, the representatives of counties have been elected not only by the direct vassals of the king, but by all the freeholders, whether mediate or immediate vassals, who composed the county court. In order definitively to establish this opinion, nothing remains but to examine the proofs that are alleged in favour of the opposite opinion. These may be reduced to two: first, it is said, that as the direct vassals of the king alone possessed originally the right of sitting in the general assembly, and as the election of knights of the shire arose entirely from the impossibility of assembling in Parliament all the direct vassals of the king, the latter alone must have been the electors of the representatives who were sent in their place. Secondly, the vassals of the barons long demanded exemption from the obligation of contributing to the payment of the fees allotted to the county members, which proves that they could not have shared in the election; for had they done so their claim would have been absurd.

Refutation Of Tory Theories.

Both these proofs have the fault of being indirect, and of resting upon consequences deduced from general facts, and not upon special and positive facts, such as those I have just adduced in support of the contrary opinion. Moreover, the first argument supposes the existence of a general and absolute principle which was invariably followed; and that the county members were summoned to Parliament only to represent the direct vassals of the king. This supposition is neither probable nor conformable to facts. We again repeat, that there was at this period no general principle, no fixed and invariable rule. General principles and their consequences exist only in a calm and settled state of society; they are incompatible with a rude population and long-continued disorder. How, then, could social classifications and their corresponding rights have remained fixed and distinct in the midst of such chaotic confusion? Besides, the feudal system never exercised such complete sway in England as to insure anything like a strict observance of its principles. It is true that the right possessed by all the direct vassals of the king to appear in the central assembly, was one of the sources of county representation; but when this right, after having fallen into desuetude, began to revive in the persons of representatives, it was outweighed by an actual and more powerful circumstance, the formation of the general class of freeholders, meeting at the county-court, and there exercising the same functions and equal rights. This fact is incontestible; so the Tories are compelled to acknowledge that the deputies were elected by all present at the county-court. But how do they attempt to escape from the consequences of this confession? They maintain that the direct vassals alone sat in the county-court: an opinion too much opposed to the nature of things and to all the facts which I have brought forward, to require refutation.

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

Payment Of Representatives.

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

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

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

Election Of Borough Representatives.

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

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

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

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

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

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

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

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

Corruption Of Borough Representation.

These facts explain how borough-representation has been so easily corrupted in England, and remains so disgraceful to this day. [Footnote 35] In every town political rights have remained restricted to the municipal bodies, who, originally, were usually comprised in a very narrow circle. The general tendency has been ever since, and especially at the period of the revolution of 1640, to extend electoral rights in boroughs, and thus to render the election more popular; but, on the whole, the choice is invariably made by the municipal powers, organized according to their ancient charters of incorporation. In the counties, electoral rights have adapted themselves to all the vicissitudes of property, and have become proportionably extended: in the boroughs, they have remained unaltered. Every unchangeable institution is vicious, because ultimately it will be sure to establish privileges in opposition to the actual state of society.

[Footnote 35: Before the reform of Parliament in 1832.]

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

Forms Of Borough Elections.

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

Lecture XV.

Philosophical examination of the electoral system in England in the fourteenth century.

The system was the natural result of facts.

Who were the electors?

Four principles which determine the solution of this question.

Character Of The English Electoral System.

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

Modern Political Science.

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

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

Object Of The British Parliament.

It is very evident that nothing of this kind occurred at the period of the formation of the British Parliament. Politics did not wear so scientific a character, nor lay claim to such consideration, as at present. It was necessary to summon together the principal men in the kingdom—merchants, landowners, and others—that they might assist in particular public business. But this was never imagined to be the creation of a new right, or of a new power. Established rights and existing powers were called upon to exercise this new function, and to appear under this new form. The freeholders, that is to say, every free and veritable landowner, used to assemble in the county-courts, to administer justice and to treat together of common interests; and these county-courts were charged with the nomination of representatives. In towns of any importance, the citizens, under forms more or less liberal, regulated their own affairs, chose their own magistrates, and exercised in common certain rights and powers; and these municipal corporations were required to send members to Parliament.

Combination Of Public Rights.

Thus, the assemblies which we now designate electoral colleges were never at that period, as they now are, special and isolated assemblies, invested with a temporary duty, and in all other respects unconnected with the administration of the country. County courts and municipal corporations, which were already firmly planted and established, and possessed inherent strength, were constituted into electoral colleges. Thus the electoral system from its origin was united with every right and institution, and with almost every local and real power. It was the extension and development of existing liberties, a powerful force added to other forces previously in action and exercising government over other interests. It was not that in one place there were merely electors, in another administrators, and elsewhere judges; but there was a body of citizens who participated in the administration of local affairs, and in rendering justice; and who elected deputies for the transaction of general business. It is easily understood that,—being thus deeply rooted in the community at large, and closely united to all other powers—the electoral power (to employ the language of the present day) was defended from every vicissitude through which we have seen it pass, when attempts have been made to establish it, by itself, in some particular aspect or combination.

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

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

Independence Of Public Rights.

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

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

Two Classes Of Electors.

All the elements and laws of every electoral system resolve themselves into these two questions:

I. In whom are the electoral rights vested? that is to say, who are the electors?

II. How are these rights exercised? that is to say, what are the modes of procedure and the forms of election?

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

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

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

Right Derived From Capacity.

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

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

There is nothing, then, that can be deduced from this in favour of an inequality among men called by virtue of the same principle to take part in a like action. Such an inequality never existed in the electoral administration of England in the fourteenth century. The difference that existed was derived from society itself, and was continued even to the very centre of representation, which did not present a more uniform whole than society itself. The true, the sole general principle which is manifested in the distribution of electoral rights as it then existed in England, is this, that right is derived from, and belongs to, capacity. This requires some explanation.

What Is Electoral Capacity?

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

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

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

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

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

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

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

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

Exterior Signs Of Electoral Capacity.

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

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