Origin of the division of the English Parliament into two
Houses.
Its original constitution.
Reproduction of the classifications of society in the
Parliament.
Causes which led the representatives of counties to separate
from the barons, and coalesce with the representatives of
boroughs.
q
Effects of this coalition.
Division of the Parliament into two Houses in the fourteenth
century.
Our attention has hitherto been directed only to the elements of which the Parliament was composed, and to the proceedings that took place at its formation, that is to say, to the process of election: we have now to consider another question; we must enquire what were the internal and external constitution and organisation of the Parliament thus composed.
The Parliament at the beginning of the fourteenth century was not divided, as at present, into the House of Lords and the House of Commons; nor did it, on the other hand, consist of a single body. Accounts vary regarding the date at which it assumed its present form. Carte fixes it in the seventeenth year of the reign of Edward III. (1344); the authors of the Parliamentary History, in the sixth year of the same reign (1333); Mr. Hallam in the first year of the reign of Edward III. (1327), or, perhaps, even in the eighth year of the reign of Edward II. (1315).
The principal cause of this diversity of opinion is the different circumstance with which each author connects the fact of the union of county and borough members into one single assembly. This fact is deduced by some from the date of their assembling together in the same place; by others, from the period of their common deliberation; and by others again, from the union of their votes upon the same question. And as each of these circumstances occurred in one particular Parliament independently of the others, the period when Parliament first existed in its present form is carried back or forward according to the circumstance which is regarded as decisive in this respect. However this may be, it may be affirmed that the division of Parliament into two Houses,—one comprising the lords or great barons individually summoned, and the other all the elected representatives of counties and boroughs; and both these houses deliberating and voting together in all matters of business—was not completely and definitively effected, until towards the middle of the fourteenth century. It is necessary to trace the steps by which this fact was gradually accomplished. This is the only way thoroughly to comprehend its nature and its causes.
Originally, as we have seen, all the immediate vassals of the king had the same right of repairing to Parliament and taking part in its deliberations. Mere knights, therefore, when they repaired thither, sat, deliberated, and voted, with the great barons.
When election was substituted for this individual right in the case of the knights of shires, and only those elected by the county-courts were entitled to attend the Parliament, they still continued to be members of the class to which they had previously belonged. Although elected and deputed not only by those knights who were immediate vassals of the king, but also by all the freeholders of their county, they continued to sit, deliberate, and vote, together with the great barons who were individually summoned.
The representatives of the boroughs, on the contrary, whose presence in Parliament was a novel circumstance (which was not connected with any anterior right exercised merely under a new shape), formed a distinct assembly from their first appearance in Parliament, sitting apart, deliberating and voting on their own account, and as thoroughly separated from the knights of the shire as from the great barons.
This separation is evident from the votes of Parliament at this period. At the Parliament held at Westminster under Edward I., in 1295, the earls, barons, and knights of the shire granted the king an eleventh part of their personal property, the clergy a tenth part, and the citizens and burgesses a seventh. In 1296, the former granted a twelfth part, and the latter an eighth. In 1305, the former gave a thirtieth part, and the clergy, the citizens, and burgesses a twentieth. Under Edward II., in 1308, the barons and knights granted one twentieth, the clergy a fifteenth, the citizens and burgesses a fifteenth. Under Edward III., in 1333, the knights of the shire granted a fifteenth, the same as the prelates and the nobles, and the citizens and burgesses a tenth; and yet the records of this Parliament expressly declare that the knights of the shire and the burgesses deliberated in common. In 1341, the prelates, earls, and barons, on the one hand, and the knights of the shire on the other, granted a ninth of their sheep, lambs, and fleeces; and the burgesses, a ninth of all their personal property. In 1345, the knights of the shire granted two-fifteenths, the burgesses a fifth: the lords granted nothing, but promised to follow the king in person. Thus, at this latter period, the knights of the shire no longer voted in common with the lords, but they still voted apart from the burgesses.
In 1347, the commons without distinction granted two fifteenths, to be levied in two years in the cities, the boroughs, the ancient domains of the crown, and the counties. At this period, then, the fusion of the two elements of the Commons House was complete: and it continued so ever afterwards, although a few examples are still found of special taxes, voted by the representatives of the towns and boroughs alone in the case of customs, especially in 1373.
The original separation, then, was between the representatives of the counties and those of the boroughs. The recollections of feudal law allied the former to the great barons during more that [than?] fifty years. This separation was not confined solely to voting the supplies. Everything indicates, although it is nowhere proved by written evidence, that the knights of the shire and the representatives of the boroughs did not deliberate together any more on other affairs, either legislative or otherwise, which interested only one of the two classes. When mercantile interests were in question, the king and his council discussed them solely with the representatives of the towns and boroughs. Thus, there is reason to believe that the statute entitled The Statute of Acton-Burnel, passed in 1283, was enacted in this manner on the advice of the borough representatives alone, who met for this purpose at Acton-Burnel, whilst the knights of the shire sat with the great barons at Shrewsbury, to assist at the trial of David, Prince of Wales, then a prisoner. The separation of the two classes of representatives could therefore be carried thus far, that each class may have sat in different, though neighbouring towns.
When they sat in the same town, and especially at Westminster, the whole Parliament met together, most probably in the same chamber; but the great barons and knights of the shire occupied the upper end, and the borough representatives the lower part, of the chamber.
A distinction existed even among the borough members. Until the reign of Edward III., the representatives of those boroughs which formed part of the ancient domain of the crown constituted a separate class, and voted distinct supplies.
The division of Parliament, then, far from having originated in the forms which prevailed fifty years later, arose from principles altogether different. No idea then existed of truly general interests and a national representation. The particular interests which were of sufficient importance to take part in the government, intervened in it solely on their own account, and treated separately of their own affairs. Did the matter in hand relate exclusively to things in which the great barons appeared to be interested, and where the king required their assistance alone—they alone assembled and deliberated. Was the question one of modifications in the nature or mode of the transmission of feudal territorial property—the knights of the shire were summoned; and in this way the statute Quia emptores was enacted under Edward I. Were commercial interests concerned—the king treated of them with the borough representatives only. In these various cases, as in the matter of supplies, the deliberation and vote of the different classes of members of Parliament were distinct. These classes were formed in reference to their common interests, and took no part in each other's affairs: and very rarely, probably never, at this period, was there any matter of sufficiently general and common importance to all, for all to have been summoned to deliberate and vote in common.
Thus the classification of society was perpetuated in the Parliament, and was the true principle of the division between the members of Parliament.
This state of things did not long continue, because the classification of society itself, in which it originated, also tended to its own effacement. The county members could not fail to separate themselves altogether from the great barons, and completely to combine with the borough representatives; and for the following reasons.
If the knights of the shire continued for some time to sit and vote with the great barons, this was merely the effect of old association, a relic of the ancient parity of their feudal position. This equality had already received a severe check by the substitution of election for individual right of presence. The cause which had led to this change continued at work; the disparity of importance and wealth between the great barons and plain knights of the shire went on increasing; the remembrance of feudal political right became weakened; and the social position of the knights of the shire daily became more different from that of the great barons. Their parliamentary position could not fail to follow the same course. All things combined to separate them more and more.
At the same time every circumstance tended to associate the representatives of the counties with those of the boroughs. They had the same origin, and appeared in Parliament by virtue of the same title—election. The tie which had attached the county elections to feudal right became progressively enfeebled. Furthermore, these two classes of deputies were alike correspondent to certain local interests. These interests were often identical or of the same nature. The inhabitants of the towns situated in a county, and the rural landowners of the county, were often engaged in the same affairs, and frequently entertained the same claims and desires. Besides, the county-courts were a common centre at which they habitually assembled together. Both the county and borough elections frequently took place in these courts. Thus, while certain causes increasingly separated the knights of the shire from the great barons, other causes approximated them more closely to the borough representatives. The analogy of social positions naturally hastened the fusion of parliamentary positions.
Lastly, the great barons constituted the chief council of the king. They often assembled around him in this capacity, and independently of any convocation of the elected deputies. By reason of their personal importance, they engaged in public affairs, and took part in the government in an habitual and permanent manner. The representatives of the counties and boroughs, on the contrary, interfered in the administration of public affairs only from time to time, in certain particular cases. They possessed rights and liberties, but they neither governed, nor contested with each other for the government, nor were they constantly associated in it. Their political position was in this respect the same, and was therefore very different from that of the great barons. All things tended, then, broadly to distinguish them from the latter class, and to connect them together.
The constitution of Parliament in its present form is the result of all the above causes. It was accomplished in the middle of the fourteenth century, although some instances of separation between the two elements of the House of Commons may subsequently be met with. These cases very soon disappeared and the union became complete. One fact alone remained, and that was the superiority in importance and influence of the county representatives over the representatives of boroughs, notwithstanding the habitual inferiority of their numbers. This fact, with the exception of only a few intervals, is met with throughout the whole course of the history of Parliament.
Thus was effected, on the one side, the separation of the Houses of Peers and Commons, and on the other, the union of the different elements of the House of Commons into a single assembly, composed of members exercising the same rights and voting on all occasions in common.
This is the great fact which has decided the political destiny of England. By themselves alone, the borough deputies would never have possessed sufficient power and importance to form a House of Commons capable of resisting sometimes the king, and sometimes the great barons, and of gaining an ever-increasing influence in public affairs. But the aristocracy, or rather, the feudal nation, being divided into two parts, and the new nation which was forming in the towns becoming combined with the county freeholders there, arose from the combination a competent and imposing House of Commons.
There was a large body of the nation independent both of the king and of the great nobles. It happened also that the king could not, as in France, make use of the Commons to annihilate the political rights and privileges of the ancient feudal system, without substituting new liberties in their places. On the Continent, the enfranchisement of the Commons definitively led to absolute power. In England, a portion of the feudal class having united with the Commons, they combined to defend their liberties. On the other hand, the crown, supported by the great barons, who could not hope to set up as petty independent sovereigns in their own domains, possessed sufficient power to defend itself in its turn. The great barons consequently were obliged to rally round the throne. It is not true, though it is constantly reiterated, that the aristocracy and people have made common cause in England against the regal power, and that English liberty has arisen out of that circumstance. But it is true that the division of the feudal aristocracy having prodigiously augmented the power of the Commons, popular liberties at an early date possessed sufficient means of resistance, and the royal power received at the same time sufficient support.
Thus, considering the division of Parliament into two houses under the historic point of view, we see both how it was effected, and how favourable it has been to the establishment of popular liberty. Is this, then, all? Are this fact and its results mere accidents arising out of circumstances peculiar to England, and to the state in which society happened to be in the fourteenth century? Or is this division of legislative power into two houses a constitutional form intrinsically good, and everywhere as well founded in reason as it was, in England, in the necessities of the times? This question must be examined in order properly to appreciate the influence which this form has exercised on the development of the constitutional system in England, and rightly to understand its causes.
Examination of the division of the legislative power into two
Houses.
Diversity of ideas on this subject.
Fundamental principle of the philosophic school.
Source of its errors.
Characteristics of the historic school.
Cause of the division of the British Parliament into two
Houses.
Derivation of this division from the fundamental principle of
representative government.
Its practical merit.
In order to judge in itself of the division of the legislative power into two Chambers, and to estimate its merit, we must first detach it from certain particular and purely local characteristics, which are not essentially inherent in it; and which have associated it in England with causes which are not in all times and places to be met with. Not a few writers have fallen into grave errors, on this and many other questions, by neglecting to take this step at the outset. Some have formed their judgment of this institution entirely from a few of the causes which led to its establishment in England in the fourteenth century; and as, generally speaking, they did not approve either of these causes or their effects, and had a bad opinion of the social condition of which they formed part, they have condemned the institution itself, appearing to believe that it was derived solely from that social condition, and could not possibly be detached from it. Others, on the contrary, struck either with the general reasons which may be urged in favour of the institution, or with the good effects which it has produced in England and elsewhere, have adopted it exactly in that particular form in which it was introduced among our neighbours by their ancient social condition, asserting that all the characteristics which it there presents are essential to it, and even constitute it. Thus, the institution has sometimes been censured on account of particular facts which accompanied its establishment and combined to produce it, and sometimes these facts and their special consequences have been adopted as principles, simply because they were associated with an institution deemed intrinsically good.
These two modes of judgment, both of which are equally erroneous, characterize the two schools, which may be called distinctively the philosophic school and the historic school. As this twofold method of considering political questions has warped them, sometimes in one sense and sometimes in another, it appears to me that it would be useful to offer some general observations on this subject, which may afterwards be applied to the particular question with which we are now occupied.
One idea reigns in the philosophic school—that of Right. Right is constantly taken both as its starting-point, and as its goal. But right itself requires to be investigated; before adopting it as a principle or pursuing it as an object, we must know what it is. To discover right, the philosophic school commonly confines itself to the individual. It takes hold of man, considers him isolatedly and in himself, as a rational and free being, and deduces from an examination of his nature that which it denominates his rights. Once in possession of these rights, they are advanced as a requirement of justice and reason, which ought to be applied to social facts as the sole rational and moral rule by which these facts should be judged, if judgment only be required—or instituted, if the object be to institute government.
The historic school is held in bondage by another idea—that of Fact. It does not, if possessed of any good sense, deny right: it even proposes right as its goal, but it never adopts it as its starting-point. Fact is the ground to which everything is brought; and as facts cannot be considered isolatedly, as they are all bound up together; and as the past itself is a fact with which the facts of the present are connected, it professes great respect for the past and admits right only so far as it is founded on anterior facts; or at least this school seeks to establish right, only by uniting it closely with these facts, and striving to deduce it from them. Such are the points of view, not exclusively, for that cannot be, but dominantly, of the two schools. How much is true, and how much erroneous in each? That is to say, what is there incomplete in both?
The philosophic school is correct in adopting Right not only as its end but also as its starting-point. It is right in maintaining that an institution is not good, simply because it exists or has existed, and that there are rational principles by which all institutions should be judged, and rights superior to all facts,—rights which cannot be violated unless the facts which violate them are illegitimate, although real, and even powerful.
But though right in standing upon this foundation, which is its principal characteristic, the philosophic school is often mistaken when it attempts to go farther. We say that it is mistaken, philosophically speaking, and independently of all ideas of application and practical danger.
Its two chief errors, in my opinion, are these:
I. Its researches after right are misdirected; and,
II. It mistakes the conditions under which right can be
realised.
It is not by considering man in isolation, in his single nature, and individually, that his rights may be discovered. The idea of right implies that of relation. Right can be declared only when relation is established. The fact of a connexion, of an approximation, in a word, of society, is implied in the very word right. Right originates with society. Not that society, at its origin, created right by an arbitrary convention. Just as truth exists before man becomes acquainted with it, so does right exist before it is realised in society. It is the legitimate and rational rule of society in every step of its development, and at every moment of its existence. Rules exist before their application; they would still exist even if they were never applied. Man does not make them. As a reasonable being, he is capable of discovering and understanding them. As a free being, he can either obey or violate them; but whether he be ignorant of them or knowingly violate them, their reality, so far as they are rules, that is to say, their rational and moral reality, is independent of him, superior and antecedent to his ignorance or his knowledge, to the respect or neglect with which he treats them. Laying down this principle then on the one side, that rule virtually exists before the relation or society to which it corresponds, and on the other side, that it is not manifested and declared until society is established, that is to say, that it can only be applied when society really exists, we inquire, What is this right and how can it be discovered?
Right, considered in itself, is the rule that each individual is morally bound to observe and respect in his relations with another individual; that is to say, the moral limit at which his lawful liberty is arrested and ceases in his action on that individual; or, in other words, the right of a man is the limit beyond which the will of another man cannot morally be exercised over him in the relation which unites them.
Nothing can be more certain than that every man in society has a right to expect that this limit will be maintained and respected as regards himself by other men and by society itself. This is the primitive and unalterable right which he possesses in virtue of the dignity of his nature. If the philosophic school had confined itself to laying down this principle, it would have been perfectly correct, and would have reminded society of the true moral rule. But it has attempted to go further: it has pretended to determine, beforehand and in a general way, the exact limit in every instance in which the will of individuals over each other, or of society over individuals, ceases to be legitimate. It has not contented itself with establishing right in principle, but has considered itself capable of enumerating all social rights à priori, and of reducing them to certain general formulæ which should comprise them all, and might thus be applied to every relation to which society gives birth. By this it has been led to overlook many very positive rights, and to create many pretended rights which have no reality. If it be true, as we have laid it down, that right is the legitimate rule of a relation, it is plain that the relation must be known before the right which ought to govern it can be understood. Now social relations, whether between one man and another, or between one and several, are neither simple nor identical. They are infinitely multiplied, varied, and interwoven; and right changes with relation. An example will best explain our meaning. We will select the most simple and natural of social relations, that of the father to the child. Nobody will presume to assert that here no right exists, that is to say, that neither the father nor the child have any respective rights to be mutually observed, and that their will alone should arbitrarily regulate their reciprocal relations. In the outset, whilst the child is devoid of reason, his will has little or no right: the right belongs entirely to the will of the father, which even then is, doubtless, legitimate only so far as it is conformable to reason, but which is not and cannot be subordinate to that of the child, on which it is exercised and which it directs. In proportion as reason becomes developed in the child, the right of the father's will becomes restricted; this right is always derived from the same principle, and ought to be exercised according to the same law; but it no longer extends to the same limit, but becomes changed and narrowed day by day with the progress of the intellectual and moral development of the child, up to the age when at length the child, having become a man, finds himself in a totally different relationship to his father—a relationship in which another right holds sway, that is to say, in which the paternal right is enclosed within entirely different limits, and is no longer exercised in the same way.
If, in the most simple of social relations, the right, though immutable in its principle, suffers so many vicissitudes in its application,—if the limit at which it stops is so continually altered, according as this relation changes in nature and character—to a far greater extent will this be the case in all other social relations, which are infinitely more changeful and complicated. Every day old rights will perish; every day new ones will arise; that is to say, different applications will daily be made of the principle of right; and each occasion will vary at the limits at which the right ceases, either on one side or the other, in the innumerable relations which constitute society.
It is not, then, a simple matter to determine right, nor can it be done once for all, and according to certain general formulae. Either these formulæ must be reduced to this dominant truth, that no will, whether that of man over man, of society over the individual, or of the individual over society, ought to be exercised contrary to justice and reason—or else these formulæ are vain; that is to say, they confine themselves to expressing the principle of right, or try unsuccessfully to enumerate and regulate beforehand all its applications.
In this there consists the first error of the philosophic school, that, proud of having re-established the principle of right (a matter, certainly, of immense importance), it has thenceforth esteemed itself, by continuing the same process, in a condition to recognise and define all rights; that is to say, all applications of the principle to social relations; an attempt which is most dangerous because it is impossible.
It is not granted to man thus to discern, beforehand and at a glance, the whole extent of the rational laws which ought to regulate the relations of men both among themselves and with society in general. Doubtless, in each of these relations and in all the vicissitudes which they undergo, there is a principle which is their legitimate rule, and which determines rights; and it is this principle which must be discovered. But it is in the relation itself, over which this principle should hold sway, that it is contained and may be discovered; it is intimately connected with the nature and object of this relation, and these are the first data that must be studied in order to arrive at a knowledge of the principle. The philosophic school almost constantly neglects this labour. Instead of applying itself to the discovery of the true rights which correspond to the various social relations, it arbitrarily constructs rights while pretending to deduce them from the general and primitive principle of right; an attempt the reverse of philosophical, for special rights are applications, not consequences logically deduced from this principle; which is perfectly exhibited in each particular case, but which does not contain within itself all the elements or all the data required for the discovery of the right in every case.
The second error of the philosophic school is that of mistaking the conditions under which right may be realised, that is to say, under which it may become associated with facts, so as to regulate them.
It has long been said that two powers, right and might, truth and error, good and evil, dispute the mastery of the world. What is not so often said, though it is no less true, is this—they dispute for it because they simultaneously possess it, because they co-exist in it everywhere at the same time. These two powers, so opposite in their nature, are never separated; in fact, they meet and mingle everywhere, forming by their co-existence and conflict that sort of impure and troubled unity which is the condition of man on earth; and which is reproduced in society as well as in individuals. All mundane facts bear this character: there are none that are completely devoid of truth, justice, and goodness; none that are wholly and purely right, good, or true. The simultaneous presence, and at the same time the struggle, of might and right, forms the primitive and dominant fact which is reproduced in all other facts.
The philosophical school habitually loses sight of this intimate and inevitable amalgamation of might and right in all that exists and takes place upon the earth. Because these two powers are hostile, it thinks them separate. When it recognises some great violation of right in an institution, a power, or a social relation, it concludes that right is utterly absent from it; and imagines, at the same time, that if it can succeed in laying hold of this fact, and shaping and regulating it according to its own will, it will secure the undisputed sway of right in that fact. Hence the contempt, one might almost say the hatred, with which it judges and treats facts. Hence also, the violence with which it pretends to impose upon them those rules and forms which constitute right in its eyes: what regard is due to that which is only the work of might? what sacrifices are not due to that which will be the triumph of right and reason? and the firmer the minds and the more energetic the characters of these reasoners, the more will they be ruled and the further misguided by this method of viewing human things. Facts past and present do not deserve so much disdain, nor do future ones merit so much confidence. We do not here adopt the views of the sceptics, nor would we regard all facts as equally good or bad, and equally invested with or destitute of reason and right. Nothing can be more contrary to our opinion. We firmly believe in the reality and legitimacy of right, in its struggle against might, and in the utility as well as the moral obligation of sustaining right in this eternal but progressive combat. We only ask that, in this struggle, nothing may be forgotten, and nothing confounded; and that indiscriminate attacks may not be made. We ask that because a fact may contain many illegitimate elements, it is not therefore to be supposed à priori to contain nothing besides, for such is not the case. Right exists everywhere more or less, and everywhere right ought to be respected. There is also more or less falsity and incompleteness in the speculative idea which we form to ourselves of right, and there will be unjust force and violence employed in the strife in which this idea is made to prevail, and in the new facts which will result from its triumph. This is not saying that the combat ought to be suspended, or that the triumph ought not to be pursued. It is only necessary truthfully to recognise the condition of human things, and never to lose sight of it, whether the question be one of judgment or of action.
This is what the philosophic school can rarely consent to do. Taking right for the point at which it sets out, and also that at which it aims, it forgets that facts subsist between these two extremes—actual and existing facts, independent data; a condition which of imperative necessity must be submitted to, when the extension of right is sought after, since these facts are the very matters to which right must be applied. This school begins by neglecting one of the fundamental elements of the problem which it has to solve; it falls into reverie, and constructs imaginary facts, whilst it ought to be operating on real facts. And when compelled to quit hypotheses, and deal with realities, it becomes irritated at the obstacles which it meets, and unreasonably condemns the facts which throw them in its way. Thus, through having desired impossibilities, it is led to forget a part of that which is actually true. Society at every period swerves more or less from the general type of right; that is to say, the facts which constitute its material and moral condition are more or less regulated according to right, and also become in a greater or less degree susceptible of receiving a more absolute form, a more perfect rule, and of continually assimilating more closely to reason and truth; and this it is which must be absolutely studied and understood before passing a judgment on these facts, or endeavouring to effect their change and improvement. Perfection is the aim of human nature and of human society; perfection is the law of their existence, but imperfection is its condition. The philosophic school does not accept this condition; and is thus misled in its endeavours towards attaining perfection, and even in its own idea of the perfection to which it aspires.
The historic school possesses other characteristics, and falls into different errors. With the utmost respect for facts, it easily allows itself to be induced to attribute to them merits to which they are not entitled; to see more reason and justice, that is to say, more right, in them than they really contain, and to resist even the slightest bold attempt to judge and regulate them according to principles more conformable to general reason. It is even inclined to deny these principles, to maintain that there is no rational and invariable type of right that man can take for a guide in his efforts or his opinions: an error of great magnitude, and sufficient to place this school, philosophically considered, in a subordinate rank. What then is perfection, if there is no ideal perfection to be aimed at? What is the progress of real rights, if there is no rational right to comprehend them all? What is the human mind, if it is incapable of penetrating far beyond actual realities in its knowledge of this rational right? and how can it judge of them except by comparing them with this sublime type, which it never holds in full possession, but which it cannot deny without abnegating itself, and losing every fixed rule and guiding thread? Doubtless, facts command respect, because they are a condition, a necessity; and they deserve it, because they always contain a certain measure of right. But the judgment ought never to be enslaved by them, nor should it attribute absolute legitimacy to reality. Is it so difficult, then, to perceive that evil is evil even when it is powerful and inevitable? The historic school constantly endeavours to evade this confession. It tries to explain every institution, and to abstain from giving judgment upon them, as if explanation and judgment were not two distinct acts, which possess no right over one another. It never suffers the institution of a comparison between the real state of any society and the rational state of society in general; as if the real, or even the possible, were the limit of reason; as if, when judging, reason should be deposed, because when applied it is compelled to undergo conditions and to yield to obstacles which it cannot conquer. The historic school would be perfectly right if it confined itself to the careful study of facts, bringing to light that portion of right which they contain, and searching out the degree of perfection which they are capable of receiving, and if it restricted itself to maintaining that it is not easy to distinguish real rights, unjust to condemn facts en masse, and impossible and dangerous to neglect them altogether. But when it undertakes to legitimise facts by facts; when it refuses to apply the invariable law of justice and rational right to all, it abandons every principle, falls into a sort of absurd and shameful fatalism, and disinherits man and society of that which is most pure in their nature, most legitimate in their pretensions, and most noble in their aspirations.
To sum up, the philosophic school possesses the merit of everywhere acknowledging the principle of right, and adopting it as the unchangeable rule of its judgment on facts. Its errors consist in its knowledge of facts being slight, imperfect, and precipitate; and in not allowing to facts the power which is inseparable from them, and the degree of legitimacy which they always contain. The historic school is better acquainted with facts, appreciates their causes and consequences more equitably, effects a more faithful analysis of their elements, and arrives at a more exact knowledge of particular rights as well as at a more just estimate of practicable reforms. But it is deficient in general and fixed principles: its judgments fluctuate according to chance; and accordingly it almost always hesitates to come to a conclusion, and never succeeds in satisfying the mind, which the philosophic school, on the contrary, always impresses strongly, at the risk of leading it astray.
We have insisted on the distinctive characters and opposite errors of these two schools, because we meet with them unceasingly when investigating how institutions and social facts have been appreciated and understood. Of this we have given an example by indicating the two points of view under which the division of the legislative power into two Chambers has been commonly considered. The historic school approves and recommends it; but it often founds its reasons on illegitimate facts, and adheres too absolutely to the forms which this institution has assumed in the past, while it refrains from attaching itself to any rigorous and rational principle. The philosophic school has long maintained, and many of its disciples still believe, that this is an accidental and arbitrary institution, which is not founded on reason and the very nature of things.
Let us now consider this institution in itself, after having disentangled it from that which, in England, has related merely to its actual origin, and to the local circumstances in the midst of which it took its rise.
It is beyond doubt that the immense inequality of wealth and credit,—in a word, of power and social importance, which existed between the great barons and the other political classes of the nation, whether freeholders or burgesses, was in England the sole cause of the institution of the House of Peers. No political combination or idea of public right had anything to do with its formation. The personal importance of a certain number of individuals, in this case, created their right. Political order is necessarily the expression, the reflection, of social order. In this stage of civilisation especially, power is indisputably conveyed from society into the government. There was a House of Peers because there were men who, bearing no comparison with others, could not remain confounded with them, exercising only the same rights, and possessing no greater amount of authority.
To the same cause must be ascribed several of the leading characteristics of the House of Peers; the hereditary transmission of social importance, wealth, and power (the result of the feudal system as regards property), carried with it the inheritance of political importance. This is proved by the fact, that originally the sole hereditary peers were the barons by feudal tenure. Hereditary right did not originally belong to the barons by writ; although individually summoned to the Upper House, they exercised, when sitting there, the same rights. The judicial functions of the House of Peers also had the same source. At first they belonged to the general assembly of the direct vassals of the king. When the greater number of these vassals ceased to attend that assembly, the great barons who alone attended, continued to exercise nearly all its functions, and especially its judicial authority. Of this they continued to hold possession when the knights re-entered Parliament by means of election. Thus, a right, which originally devolved upon the general assembly of the political nation, became concentrated in the new House of Peers, at least in every case unaffected by the new jurisdictions instituted by the king. On examining in all its details the political part now performed in England by the House of Peers, it will be found that a great number of its attributes are only the results of ancient facts, that they are not inherent in the institution itself, but solely derived from the social position of the great barons; and at the same time it will be perceived that all these facts are connected with the general and primitive fact of the great inequality then subsisting between the great barons and the citizens.
As this inequality really existed, and could not fail to re-appear in the government, it was very fortunate for England that it assumed the form of the House of Peers. Inequality is never more oppressive and fatal than when displayed solely for its own advantage, and in an individual interest. This is the invariable result when the upper ranks are dispersed over the country, and are brought into contact with, and into the presence of, their inferiors alone. If, instead of uniting in the House of Peers to exercise, as members of that assembly, the power they possessed over society, the great barons had each remained on his own estates, their superiority and power would have weighed heavily on all their vassals and farmers, and social emancipation would have been very much retarded. Every baron would then have had to do with his inferiors alone. In the House of Peers, on the contrary, he had to deal with his equals; and to obtain influence in that assembly, and effect his will, he was obliged to have recourse to discussion, to the advancement of public reasons, and to constitute himself the exponent of some interest superior to his own personal interest, and of opinions around which it would be possible for men to unite together. Thus men, who, had they remained isolated on their domains, would have acted only upon inferiors and for their own interest, were constrained, when they had met together, to act upon their equals, and for the interests of the masses, whose support alone could increase their power in the frequent struggles which this new situation imposed upon them. Thus by the single fact of its concentration, the high feudal aristocracy insensibly changed its character. Each of its members possessed rights originally derived entirely from his own power, which he came to the House of Peers to exercise solely for his own interest; but when once brought together into each other's presence, all these individual interests experienced the necessity of seeking new means of obtaining credit and authority elsewhere than in themselves. Personal powers were constrained to sink themselves into a public power. An assembly composed of individual superiorities, jealous only to preserve and increase their power, became gradually converted into a national institution, compelled to adapt itself, in many points, to the interest of all.