348

WHAT IS REPRESENTATION?

In other words, it is required to discover all the elements of legitimate power that are disseminated throughout society, and to organize them into an actual power; that is to say, to collect into one focus, and to realize, public reason and public morality, and to call them to the occupation of power.

What we call representation is nothing else than a means to arrive at this result:-it is not an arithmetical machine employed to collect and count individual wills, but a natural process by which public reason, which alone has a right to govern society, may be extracted from the bosom of society itself. No reason has in fact a right to say beforehand for itself that it is the reason of the community. If it claims to be such, it must prove that it is so, that is to say, it must accredit itself to other individual reasons which are capable of judging it. If we look at facts, we shall find that all institutions, all conditions of the representative system, flow from and return to this point. Election, publicity, and responsibility, are so many tests applied to individual reasons, which in the search for, or the exercise of, power, assume to be interpreters of the reason of the community; so many means of bringing to light the elements of legitimate power, and preventing usurpation.

In this system, it is true,-and the fact arises from the necessity of liberty as actual in the world-that truth and error, perverse and loyal wills, in one word, the good and evil which co-exist and contend in society as in the individual, will most probably express themselves; this is the condition of the world; it is the necessary result of liberty. But against the evil of this there are two guarantees: one is found in the publicity of the struggle, which always gives the right the best chance of success, for it has been recognized in all ages of the world that good is in friendship with the light, while evil ever shelters itself in darkness; this idea, which is common to all the religions of the world, symbolizes and indicates the first of all truths. The second guarantee consists in the determination of a certain amount of capacity to be possessed by those who aspire to exercise any branch of power. In the system of representing wills, nothing could justify such a limitation, for the will exists full and entire in all men, and confers on all an equal

right; but the limitation flows necessarily from the principle which attributes power to reason, and not to will.

So then, to review the course we have taken,—the power of man over himself is neither arbitrary nor absolute; as a reasonable being, he is bound to obey reason. The same principle subsists in the relations between man and man; in this case also, power is only legitimate in so far as it is conformed to reason.

Liberty, as existing in the individual man, is the power to conform his will to reason. On this account it is sacred; accordingly the right to liberty, in the relations of man with man, is derived from the right to obey nothing that is not

reason.

The guarantees due to liberty in the social state have, therefore, for their aim, to procure indirectly the legitimacy of actual power, that is to say, the conformity of its wills to that reason which ought to govern all wills, those which command as well as those which obey.

Therefore no actual power ought to be absolute, and liberty is guaranteed only in so far as power is bound to prove its legitimacy.

Power proves its legitimacy, that is to say, its conformity to the eternal reason, by making itself recognized and accepted by the free reason of the men over whom it is exercised. This is the object of the representative system.

So far then from representation founding itself on a right, inherent in all individual wills, to concur in the exercise of power, it on the other hand rests on the principle that no will has in itself any right to power, and that whoever exercises, or claims to exercise power, is bound to prove that he exercises, or will exercise it, not according to his own will, but according to reason. If we examine the representative system in all its forms,-for it admits of different forms according to the state of society to which it is applied,-we shall see that such are everywhere the necessary results and the true foundations of that which we call representation.

350

FORMATION OF A PARLIAMENT.

LECTURE XI.

Formation of a Parliament.-Introduction of county deputies into the Parliament.-Relations of the county deputies to the great barons.Parliament of Oxford (1258).-Its regulations, termed the Acts of Oxford.-Hesitancy of the county deputies between the great barons and the crown.

BEFORE we commenced the history of the charters, and after we had for some time fixed our attention on the AngloNorman government, we saw that this government was composed of but two great forces, royalty and the council of barons, a unique and central assembly, which alone shared with the king the exercise of power. Such was the state in which we found the government of England under William the Conqueror and his sons. But from their reigns to that of Edward I., a great change was being gradually evolved; after a laborious struggle, the charters were finally conceded, and the rights which they proclaim were definitively recognised. If, after this complete revolution, we cast a glance over the institutions of the country, we find them all changed; we perceive that the government has taken another form, that new elements have been introduced into it, that the Parliament, composed in one of its divisions of the lords spiritual and temporal, in the other of deputies from the counties and boroughs,-has taken the place of the great council of barons.

This transformation is a fact; how was it produced? what were its causes and its mode of advance ? what was the new Parliament after its formation? how far and in what respects did the introduction of these deputies change the character of the government? These are the questions that we have now to consider; and in order to answer them we must analyze and examine the principal individual facts which here combine to produce the common result.

The first of these facts is the introduction of county deputies into the national assembly. I shall first enquire

INTRODUCTION OF COUNTY DEPUTIES.

351

how this event was brought about; and I shall then propose similar enquiries with respect to the introduction of town and borough representatives into the same assembly.

Two causes effected the introduction of county deputies into Parliament: first, the privileges belonging to knights as immediate vassals of the king; secondly, their interference in county affairs by means of the county-courts.

The immediate vassals of the king had in that capacity two fundamental rights; that no extraordinary charge should be imposed without their consent, and that they should have a place in the king's court, either to give judgments, or to treat of public affairs. They were from both these circumstances, members of the general assembly by inheritance. They formed the political nation. They took a part in the government, and in the determination of public charges, as a personal right.

Although they were not elected and had received neither appointment nor mandate, we may nevertheless say that they were regarded as representing their own vassals, and that it was only in virtue of the power which was attributed to them in this fictitious representation that they exercised the right of levying imposts on all the proprietors in the kingdom.*

Perhaps they never could have fully organized themselves into a united body, and soon this became impossible. On the one hand, there rose up among the direct vassals of the king, some influential barons, who united a considerable number of knights' fiefs into one, and became by this cause much more powerful; and on the other hand, the number of knights with smaller wealth became much more considerable by the division of fiefs, which was itself the result of a vast variety of causes. However, the right of appearing at the general assembly and of giving their personal sanction to all extraordinary imposts, always remained to them. This is formally recognized in Magna Charta, Article 14.

This same article proves at the same time that there existed an evident inequality between different immediate vassals, for it ordains that the great barons should be sum

*This is expressly indicated by two writs, one in the reign of John, dated Feb. 17, 1208; the other issued by Henry III., July 12, 1237.

352

THE KNIGHTS OF SHIRES.

moned individually, while the others should be convoked en masse by means of the sheriffs. This is not the first time that such a difference in the mode of convocation is to be observed; it had already existed for some time, and was exemplified whenever the king required from his vassals the military service which they were bound to give him.

Thus, at the commencement of the thirteenth century, the right to take a seat in the national assembly belonged to all the immediate vassals of the king, but it was scarcely ever exercised on account of obstacles which increased every day. The assembly was almost entirely composed of the great barons.

But the other vassals, on the other hand, did not renounce their political existence; if their influence daily became more and more limited to their own county, there at least they exercised their rights and interfered actively in affairs. often find that knights were nominated, sometimes by the sheriff, sometimes by the court itself, to give their decision on matters connected with the county. Thus William the Conqueror charged two free men in each county with the business of collecting and publishing the ancient laws and local customs. The Great Charter provides that twelve knights shall be elected in each county to enquire into abuses. These examples are frequent in the reigns of Henry III. and Edward I. Two writs of Henry III.* prove that subsidies were at that time assessed, not, as previously, by the judges in their circuits, but by knights elected in the county-court. The knights in this way brought their influence to bear upon government by the offices they discharged in their provinces, while at the same time they preserved, though without exercising it, the right to appear at the general assemblies.

But, on the other hand, in proportion as they thus became separated from the great barons, the knights who were direct vassals of the king united themselves more closely to another class of men, with whose interests they after a time completely identified themselves. They did not alone occupy a position in the county courts; many freeholders, subordinate vassals of the king, also constantly presented themselves at these courts, and performed the same administrative or * One in 1220, the other in 1225.