mistake of fancying the three estates to be king, lords and commons.
The ecclesiastical members of the House of Lords kept their seats
there; but the parliamentary representation of the clergy as an
estate came to nothing. So far as the clergy kept any parliamentary
owers, they exercised them in the two provincial convocations.
These anomalous assemblies, fluctuating between the character of
an ecclesiastical synod and of a parliamentary estate, kept, from
Edward I. to Charles II., the parliamentary power of self-taxation.
For a long time lords and commons taxed themselves separately.
So did the clergy; so sometimes did other bodies. . . .
“During the reign of Henry III. assemblies were constantly held, and their constitution is often vaguely described. But in a great many cases phrases are used which, however vague, imply a popular element. We read of knights, of tenants in chief, of freemen, sometimes even of freemen and villeins, sometimes, more vaguely still, of ‘universi,’ ‘universitas Angliae,’ and the like. In some cases we are able better to interpret these vague phrases. For instance, in 1224 each shire sends four knights chosen by the ‘milites et probi homines.’ Whether these knights were or were not to vote along with the magnates, they were at all events to transact business with them. We must always remember that in these times formal voting in the modern sense is not to be looked for.”[1] (Ibid. pp. 314, 315.)
This summary shows clearly how the idea of “representation” as opposed to “ presence in person ” was applied to the English parliament, so as to give the commons a Theory of proper voice in it as well as the lords. It is unnecessary here to trace further the gradual increase in power ofThe Theory of Representation. the House of Commons till it became the predominant partner in the English bicameral constitution (see Parliament). But from the point of View of historical theory it is important to note that its representative character does not essentially depend upon the particular method (election by vote) by which its members have for so long been chosen. It is a common error to regard the House of Commons as having a national authority higher than that of the House of Lords merely on the ground that it is composed of elected members, and to stigmatize the House of Lords as “unrepresentative” because it is not elected. But in strictness the question of election, as such, has nothing to do with the matter.[2] The proper distinction (ignoring for the moment the later inclusion in the House of Lords of a certain representative element—strictly so regarded—in the Scotch and Irish peers) is that the House of Lords, as still constituted in 1910, remained a presentative chamber, while the House of Commons was essentially a representative one; in the former the members, summoned personally as individuals, were entitled to speak in the great council of the nation, while in the latter the members were returned as the mouthpieces of whole communicates, to whom, in the person of the sheriffs, the summons had been directed to send persons to speak for them.[3] The preponderant authority of the House of Commons is due not to itsi members being elected-that is only one way of settling who the mouthpieces of the commons shall be—but to the progress of popular government. The two British houses have historically existed as assemblies of the separate estates of the realm-the House of Lords of the two estates of lords spiritual and temporal, and the House of Commons of the commons. The third estate has so increased in power as to become predominant in the country; but the authority of its own assembly simply depends on the powers of those it represents. If the balance of political power had not been shifted in the country itself, the authority and competence of the peers, speaking for themselves in a primary assembly, would in theory actually appear higher, so far as their order is concerned, than that of members of the House of Commons, who can only “represent” the popular constituencies. Moreover, the fact that most members of the House of Commons are elected by a party vote is apt to make them very often even less authoritative spokesmen of their constituencies—the communitates—than if they were selected by some method which would indicate that they had the lull confidence of the whole body they “represent.” It is notorious that many members of a modern House of Commons, or of any other “representative” assembly, have only been elected by the votes of a minority of their constituency, or (where there have been more than two candidates) a minority even of those who voted; and there always comes a time when it is certain that if a representative has to come again before the electorate for their votes he will be defeated; he, in fact, no longer reflects their views, while he still sits and legislates. The real desires of the commons in a certain British constituency may even be more faithfully, even if only accidentally, reflected by a local peer whose only right to speak in parliament is technically preventative. In his Vindication of the British Constitution (1835), Disraeli, writing of the Reform Bill of 1832, observed that “ in the effort to get rid of representation without election, it will be Well if eventually we do not discover that we have only obtained election without representation.” A truer word was never spoken. A man may be representative, practically consensu omnium, although no vote, resulting from a division of opinion, has been taken for the purpose of selecting him. The vote is merely a method of selection when there is a definite division of opinion involving an uncertainty; and even in the modern House of Commons many members are returned “unopposed,” no actual voting taking place. A well-recognized representative character (as regards the functions involved) attaches, for instance, in British public life to other persons in whose selection the method of popular voting has had no place; such as the king himself, the Cabinet (in relation to the political party in power), or the bishops (as regards the Church of England).
The question of remodelling the constitution of the British House of Lords was prominently before the country in 1910; and a large number even of those who were prepared to defend its actions in the past were ready to accept changes which would make it in form and composition The British Houses of Parliament. a Second Chamber representative of the nation rather than preventative of its historic order. But it is important to remember, in connexion with the House of Lords question, that, in a country like England, where the constitution has provided for a Second Chamber which is composed of members of an estate or estates distinct in the nation from the estate of the commons, these persons may to a predominant degree nevertheless be really representative men by common consent; while their being so, though not theoretically the reason for their legislative power, is substantially the reason why it has so long persisted. In the absence of a written constitution, theoretical considerations have in England always been second to the force of circumstances. Most people regarded the House of Lords, as still unreformed in 1910, as purely a hereditary body; its members had been summoned to parliament as peers (the important question of their right to a summons need not here be discussed), and most peers enjoyed their titles by hereditary succession. But the constant creation of peers by both political parties had in fact introduced even into the constitution of the House of Lords
- ↑ “Election” in these early times has its simple meaning of “choice.” “We must guard ourselves from supposing that the citizens and burgesses, who were summoned to Parliament, were absolutely elected by the inhabitants of the towns as their representatives. Their presence in Parliament is another instance of representation without election. They were often nominated by the sheriff of the county, and even when that great officer, from negligence or favour, permitted the return to be made by those interested in the transaction, the nomination was confined to the small governing body, who returned two of their members, in general very unwilling missionaries, to the great council” (Disraeli, Vindication of the British Constitution, 1835).
- ↑ There was at one time, it may be noted, a sort of “representative” element even in the case of the House of Lords, in so far as peers (including peeresses in their own right, abbesses, &c.) could send deputies or proxies. But it must be remembered that the privilege flowed directly from the personal and preventative character of the summons to a peer, who as such could name a deputy. It is quite illegitimate to strain from it an analogy with the election of a representative by the commons. who had no personal right to a summons.
- ↑ In the American federal system the bicameral legislature is divided into a “House of Representatives,” composed of members elected by popular vote in each state, and a “ Senate, " composed of members elected by the legislature in each state. In spite of the nomenclature, both houses are really composed of “ representatives." But under a republican system there is no room for a purely preventative assembly, and the term “representative” comes to impl a more direct choice by the “commons.”
