Appendix, A. (2)

The first article in a wise plan of reformation, would, in our opinion, be the immediate addition of twenty Members to the House of Commons, to be chosen by the most opulent and populous of the communities which are at present without direct representation; with such varieties in the right of suffrage as the local circumstances of each community might suggest, but in all of them on the principle of a widely diffused franchise. In Scotland, Glasgow ought to be included: in Ireland we think there are no unrepresented communities to which the principle could be applied.

In endeavouring to show that this proposal is strictly constitutional, according to the narrowest and most cautious use of that term,—that it requires only the exercise of an acknowledged right, and the revival of a practice observed for several ages, we shall abstain from those controverted questions which relate to the obscure and legendary part of our Parliamentary history. A very cursory review of the authentic annals of the House of Commons, is sufficient for the present purpose. In the writs of summons of the 11th of Edward I., the Sheriffs were directed (as they are by the present writ) to send two Members from each city and borough within their respective bailiwicks. The letter of this injunction appears, from the beginning, to have been disobeyed; The Crown was, indeed, desirous of a full attendance of citizens and burgesses, a class of men then subservient to the Royal pleasure, and who, it was expected, would reconcile their neighbours in the provinces to the burthen of Parliamentary grants; but to many boroughs, the wages of burgesses in Parliament were a heavy and sometimes an insupportable burthen: and this struggle between the policy of the Crown and the poverty of the boroughs, occasioned great fluctuation in the towns who sent Members to the House of Commons, in the course of the fourteenth century. Small boroughs were often excused by the Sheriff on account of their poverty, and at other times neglected or disobeyed his order. When he persisted, petitions were presented to the King in Parliament, and perpetual or temporary charters of exemption were obtained by the petitioning boroughs. In the 1st of Edward III. the county of Northumberland, and the town of Newcastle, were exempted, on account of the devastations of the Scotch war. The boroughs in Lancashire sent no Members from the reign of Edward III. to that of Henry VI.; the Sheriff stating, in his returns, that there was no borough in his bailiwick able to bear the expense. Of one hundred and eighty-four cities and boroughs, summoned to Parliament in the reigns of the three first Edwards, only ninety-one continued to send Members in the reign of Richard II. In the midst of this great irregularity in the composition of the House of Commons, we still see a manifest, though irregular, tendency to the establishment of a constitutional principle,—viz. that deputies from all the most important communities, with palpably distinct interests, should form part of a national assembly. The separate and sometimes clashing interests of the town and the country, were not intrusted to the same guardians. The Knights of the Shire were not considered as sufficient representatives even of the rude industry and infant commerce of that age.

The dangerous discretion of the Sheriffs was taken away by the statutes for the regulation of elections, passed under the princes of the House of Lancaster. A seat in the House of Commons had now begun to be an object of general ambition. Landed gentlemen, lawyers, even courtiers, served as burgesses, instead of those traders,—sometimes, if we may judge from their names, of humble occupation,—who filled that station in former times. Boroughs had already fallen under the influence of neighbouring proprietors: and, from a curious passage in the Paston Letters, (vol. i. p. 96,) we find, that in the middle of the fifteenth century, the nomination of a young gentleman to serve for a borough, by the proprietor, or by a great man of the Court, was spoken of as not an unusual transaction. From this time the power of the Crown, of granting representation to new boroughs, formed a part of the regular practice of the government, and was exercised without interruption for two hundred years.

In the cases of Wales, Chester, and long after of Durham, representation was bestowed by statute, probably because it was thought that no inferior authority could have admitted Members from those territories, long subject to a distinct government, into the Parliament of England. In these ancient grants of representation, whether made by the King or by Parliament, we discover a great uniformity of principle, and an approach to the maxims of our present constitution. In Wales and Chester, as well as in England, the counties were distinguished from the towns; and the protection of their separate interests was committed to different representatives: the rights of election were diversified, according to the local interests and municipal constitution of the several towns. In the preamble of the Chester Act, representation is stated to be the means of securing the county from the wrong which it had suffered while it was unrepresented. It was bestowed on Wales with the other parts of the laws of England, of which it was thought the necessary companion: and the exercise of popular privileges is distinctly held out as one of the means which were to quiet and civilize that principality. In the cases of Calais and Berwick, the frontier fortresses against France and Scotland,—where modern politicians would have been fearful of introducing the disorders of elections,—Henry the VIIIth granted the elective franchise, apparently for the purpose of strengthening the attachment, and securing the fidelity of their inhabitants. The Knights of the Shire for Northumberland were not then thought to represent Berwick sufficiently.

While we thus find in these ancient examples so much solicitude for an adequate representation of the separate interests of classes and districts, it is particularly worthy of remark, that we find no trace in any of them of a representation founded merely on numbers. The statute that gave representatives to Wales, was within a century of the act of Henry VI. for regulating the qualifications for the voters in counties; and on that subject, as well as others, may be regarded as no inconsiderable evidence on the ancient state of the constitution. Had universal suffrage prevailed till the fifteenth century, it seems wholly incredible, that no trace of it should be found in the numerous Royal and Parliamentary grants of representation, which occur in the early part of the sixteenth. Mere accident must have revived it in some instances; for it certainly had not then become an argument of jealousy or apprehension.

In the reigns of Edward the VIth, Mary, and Elizabeth, the struggles between the Catholic and Protestant parties occasioned a great and sudden increase of the House of Commons. Fourteen boroughs were thus privileged by the first of these Sovereigns, ten by the second, and twenty-four by Elizabeth. The choice, in the reign of Edward and Elizabeth, was chiefly in the western and southern counties, where the adherents of the Reformation were most numerous, and the towns were most under the influence of the Crown. By this extraordinary exertion of prerogative, a permanent addition of ninety-four Members was made to the House in little more than fifty years. James and Charles, perhaps, dreading the accession of strength which a more numerous House might give to the popular cause, made a more sparing use of this power. But the popular party in the House, imitating the policy of the ministers of Elizabeth, began to strengthen their Parliamentary influence by a similar expedient. That House had, indeed, no pretensions to the power of making new Parliamentary boroughs; but the same purpose was answered, by the revival of those which had long disused their privilege. Petitions were obtained from many towns well effected to the popular cause, alleging that they had, in ancient times, sent Members to Parliament, and had not legally lost the right. These petitions were referred to the Committee of Privileges; and, on a favourable report, the Speaker was directed to issue his warrant for new writs. Six towns (of which Mr. Hampden’s borough of Wendover was one) were in this manner empowered to send Members to Parliament in the reign of James. Two were added in 1628 by like means, and six more by the Long Parliament on the very eve of the civil war.

No further addition was made to the representation of England except the borough of Newark, on which Charles II., in 1672, bestowed the privilege of sending burgesses to the House of Commons, as a reward for the fidelity of the inhabitants to his father. The right of the first burgesses returned by this borough in 1673 was questioned,—though on what ground our scanty and confused accounts of the Parliamentary transactions of that period do not enable us to determine. The question was suspended for about three years; and at last, on the 26th of March, 1676, it was determined by a majority of one hundred and twenty-five against seventy-three, that the town had a right to send burgesses. But on a second division, it was resolved, by a majority of one, that the Members returned were not duly elected. And thus suddenly, and somewhat unaccountably, ceased the exercise of a prerogative which, for several centuries, had continued to augment, and, in some measure, to regulate the English representation.

Neither this, nor any other constitutional power, originated in foresight and contrivance. Occasional convenience gave rise to its first exercise: the course of time gave it a sanction of law. It was more often exercised for purposes of temporary policy, or of personal favour, than with any regard to the interest of the constitution. Its entire cessation is, however, to be considered as forming an epoch in the progress of our government. However its exercise might have been abused, its existence might be defended, on the ground that it was the constitutional means of remedying the defects of the representation. It was a tacit acknowledgment that a representative system must, from time to time, require amendment. Every constitutional reasoner must have admitted, that it was rightly exercised only in those cases where it contributed to the ends for the sake of which alone it could be justified. Its abuse consisted much more in granting the suffrage to insignificant villages, than from withholding it from large towns. The cases of the latter sort are very few, and may be imputed to accident and negligence, which would probably have been corrected in process of time. No such instance occurs with respect to any town of the first, or even of the second class. And, indeed, it cannot be supposed, that, before the disuse of that prerogative, four or five of the principal towns in the kingdom should have continued without representatives for more than a century. Whatever the motive might have been for granting representatives to Westminster by Edward VI., no reason could have been assigned for the grant, but the growing importance of that city. Lord Clarendon’s commendation of the constitution of Cromwell’s Parliament, to which Manchester, Leeds, and Halifax, then towns of moderate size, sent representatives, may be considered as an indication of the general opinion on this subject.

In confirmation of these remarks, we shall close this short review of the progress of the representation before the Revolution, by an appeal to two legislative declarations of the principles by which it ought to be governed.

The first is the Chester Act, (34 & 35 Hen. 8. c. 13,) the preamble of which is so well known as the basis of Mr. Burke’s plan for conciliation with America. It was used against him, to show that Parliament might legislate for unrepresented counties; but it was retorted by him, with much greater force, as a proof from experience, and an acknowledgment from the Legislature, that counties in that situation had no security against misrule. The Petition of the inhabitants of Cheshire, which was adopted as the preamble of the Act, complained that they had neither knight nor burgess in Parliament for the said county-palatine; and that the said inhabitants, “for lack thereof, have been oftentimes touched and grieved with acts and statutes made within the said court.” On this recital the Statute proceeds:—“For remedy thereof may it please your Highness, that it may be enacted, that from the end of this present session, the said county-palatine shall have two knights for the said county-palatine, and likewise two citizens to be burgesses for the city of Chester.”

The Statute enabling Durham to send knights and burgesses to Parliament, which has been less frequently quoted, is still more explicit on the purposes of the present argument:—

“Whereas the inhabitants of the said county-palatine of Durham have not hitherto had the liberty and privilege of electing and sending any knights and burgesses to the High Court of Parliament, although the inhabitants of the said county-palatine are liable to all payments, rates, and subsidies granted by Parliament, equally with the inhabitants of other counties, cities, and boroughs in this kingdom, who have their knights and burgesses in the Parliament, and are therefore concerned equally with others the inhabitants of this kingdom to have knights and burgesses in the said High Court of Parliament, of their own election, to represent the condition of their county, as the inhabitants of other counties, cities, and boroughs of this kingdom have . . . . Wherefore, be it enacted, that the said county-palatine of Durham may have two knights for the same county, and the city of Durham two citizens to be burgesses for the same city, for ever hereafter, to serve in the High Court of Parliament . . . The elections of the knights to serve for the said county, from time to time hereafter, to be made by the greater number of freeholders of the said county-palatine, which from time to time shall be present at such elections, accordingly as is used in other counties in this your Majesty’s kingdom; and the election of the said burgesses for the city of Durham, to be made from time to time by the major part of the mayor, aldermen, and freemen of the said city of Durham, which from time to time shall be present at such elections.” This Statute does not, like the Chester Act, allege that any specific evil had arisen from the previous want of representatives; but it recognises, as a general principle of the English constitution, that the interests of every unrepresented district are in danger of being overlooked or sacrificed, and that the inhabitants of such districts are therefore interested to have knights and burgesses in Parliament, “of their own election, to represent the condition of their country.”

The principle is in effect, as applicable to towns as to counties. The town of Newcastle had then as evident an interest in the welfare of the county of Durham, as the county of Warwick can now have in the prosperity of the town of Birmingham; but the members for Newcastle were not considered, by this statute, as sufficient guardians of the prosperity of the county of Durham. Even the knights who were to serve for the county, were not thought to dispense with the burgesses to serve for the city. As we have before observed, the distinct interests of country and town were always, on such occasions, provided for by our ancestors; and a principle was thereby established, that every great community, with distinct interest, ought to have separate representatives.

It is also observable, that the right of suffrage is not given to all the inhabitants, nor even to all the taxable inhabitants, but to the freeholders of the county, and freemen of the city,—who have a common interest and fellow-feeling with the whole. As these electors were likely to partake the sentiments of the rest of the inhabitants, and as every public measure must affect both classes alike, the members chosen by such a part of the people were considered as virtually representing all.—The claim to representation is acknowledged as belonging to all districts and communities, to all classes and interests,—but not to all men. Some degree of actual election was held necessary to virtual representation. The guardians of the interest of the country were to be, to use the language of the preamble, “of their own election;” though it evidently appears from the enactments, that these words imported only an election by a considerable portion of them. It is also to be observed, that there is no trace in this Act of a care to proportion the number of the new representatives to the population of the district, though a very gross deviation on either side would probably have been avoided.

When we speak of principles on this subject, we are not to be understood as ascribing to them the character of rules of law, or of axioms of science. They were maxims of constitutional policy, to which there is a visible, though not a uniform, reference in the acts of our forefathers. They were more or less regarded, according to the character of those who directed the public councils: the wisest and most generous men made the nearest approaches to their observance. But in the application of these, as well as of all other political maxims, it was often necessary to yield to circumstances,—to watch for opportunities,—to consult the temper of the people, the condition of the country, and the dispositions of powerful leaders. It is from want of due regard to considerations like these, that the theory of the English representation has, of late years, been disfigured by various and opposite kinds of reasoners. Some refuse to acknowledge any principles on this subject, but those most general considerations of expediency and abstract justice, which are applicable to all governments, and to every situation of mankind. But these remote principles shed too faint a light to guide us on our path; and can seldom be directly applied with any advantage to human affairs. Others represent the whole constitution, as contained in the written laws; and treat every principle as vague or visionary, which is not sanctioned by some legal authority. A third class, considering (rightly) the representation as originating only in usage, and incessantly though insensibly altered in the course of time, erroneously infer, that it is altogether a matter of coarse and confused practice, incapable of being reduced to any theory. The truth is, however, that out of the best parts of that practice have gradually arisen a body of maxims, which guide our judgment in each particular case; and which, though beyond the letter of the law, are better defined, and more near the course of business, than general notions of expediency or justice. Often disregarded, and never rigorously adhered to, they have no support but a general conviction, growing with experience, of their fitness and value. The mere speculator disdains them as beggarly details: the mere lawyer asks for the statute or case on which they rest: the mere practical politician scorns them as airy visions. But these intermediate maxims constitute the principles of the British constitution, as distinguished, on the one hand, from abstract notions of government, and, on the other, from the provisions of law, or the course of practice. “Civil knowledge,” says Lord Bacon, “is of all others the most immersed in matter, and the hardliest reduced to axioms.” Politics, therefore, if they should ever be reduced to a science, will require the greatest number of intermediate laws, to connect its most general principles with the variety and intricacy of the public concerns. But in every branch of knowledge, we are told by the same great Master, (Novum Organum,) “that while generalities are barren, and the multiplicity of single facts present nothing but confusion, the middle principles alone are solid, orderly, and fruitful.”

The nature of virtual representation may be illustrated by the original contioversy between Great Britain and America. The Americans alleged, perhaps untruly, that being unrepresented they could not legally be taxed. They, added, with truth, that being unrepresented, they ought not constitutionally to be taxed. But they defended this true position, on a ground untenable in argument. They sought for the constitution in the works of abstract reasoners, instead of searching for it in its own ancient and uniform practice. They were told that virtual, not actual, representation, was the principle of the constitution; and that they were as much virtually represented as the majority of the people of England. In answer to this, they denied that virtual representation was a constitutional principle, instead of denying the fact, that they were virtually represented. Had they chosen the latter ground, their case would have been unanswerable. The unrepresented part of England could not be taxed, without taxing the represented: the laws affected alike the members who passed them, their constituents, and the rest of the people. On the contrary, separate laws might be, and were, made for America: separate taxes might be, and were, laid on her. The case of that country, therefore, was the very reverse of virtual representation. Instead of identity, there was a contrariety of apparent interest. The English land-holder was to be relieved by an American revenue. The prosperity of the English manufacturer was supposed to depend on a monopoly of the American market. Such a system of governing a great nation was repugnant to the principles of a constitution which had solemnly pronounced, that the people of the small territories of Chester and Durham could not be virtually represented without some share of actual representation.—Edinburgh Review, vol. xxxiv. p. 477.