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Alfred de Grazia:

PUBLIC & REPUBLIC : Political Representation in America


Part A


We may begin our story of English representation by discussing the early role of the Commons and the Crown. Virtual representation is defined as representation founded upon a vaguely drawn subjective constituency with little active power. The term came into use in the late eighteenth century to justify the acts of a House of Commons, elections to which were controlled by a few men. The Parliament was alleged to provide all Englishmen with virtual representation. It is applied here to the ideas of the Crown also in order to follow better the shift in sovereignty from Crown to Commons, from the Crown's virtual representation of the people to the Parliament's virtual representation of the people. The Crown first used the idea to keep the popular representatives in their place as mere delegates. [2] Then the Crown co-opted Parliament as an organ of the body politic, the whole of which virtually represented the nation. Finally, when oligarchy triumphed, the idea of virtual representation passed from the monarch to the Parliament.

The House of Commons did not start its career as the community of the nation. The early principle was that the representation should be accomplished by the counties and boroughs sending agents under rigid instructions to consult with the King and to render him financial aid. As Sir George Lewis put it when writing of legal agents:

"Representatives of this description were the deputies anciently chosen in England by the counties and boroughs to treat with the King concerning the amount of money required for the service of the state and the wants of the crown, which the several bodies, of whom they were the several organs, would agree to grant to the King. So completely was this transaction considered in the light of a bargain between two parties, that in early times the grant was made in the form of an indenture, each estate granting separately; and the King's assent (as in the case of a common grantee) was presumed without being formally given. This proceeding less resembled the making of a law, than a contract between an individual on the one part, and the committee of a company or a body corporate on the other." [3]

These earliest representatives, who came as agents of their counties or corporations, differed from the magnates who became eventually the House of Lords. The latter were their own agents; their status was one of "presentation" rather than representation.[4] The commoners came as attornati with sealed letters to justify their actions on behalf of their constituents.[5] There was no question of their representing the whole nation; they represented only those who sent them there, explicitly by "election, according to the King's writ summoning the Parliament of 1295.

The electorate in these early days was perhaps broader than at any time afterward until the nineteenth-century reform acts. In the opinion of the Porritts, any freeholder in the shire was entitled to vote for a member of Parliament." [6] The electoral system was decentralized to a great extent; the practice in each corporation depended on its charter and usages.[7] In some boroughs all householders voted. In others only a few men could vote. On the whole, the first three centuries of parliamentary representation in England more closely resembled the middle nineteenth century than they resembled the intervening centuries. The vote was possessed by many, and the control over representatives was close. Until the sixteenth century, parliamentary office was not highly sought. The poor conditions of travel, the lack of perquisites beyond the rather irregular stipend which the constituency was forced to furnish, and the straitened quality of the position made necessary the invention of an officer called the "manucaptor," whose task it was to escort the newly elected member to the gates of Parliament.

The representative system, beginning in the fifteenth century, saw great changes which, once accomplished, lasted until the Great Reform Bill of 1832. The enclosures cut off large numbers of yeomen from their roots in the community and so changed the character of the electorate. In 1430 the 40-shilling Freeholder Act (8 H. VI, c.7), by limiting the franchise in the county to such persons as had lands or tenements of the yearly value of at least forty shillings, deprived a considerable groups of the vote. Towns which began to flourish as trade and commerce increased were not represented in Parliament. The first burgess to become Speaker of the House of Commons was appointed during the reign of Henry VIII.[8] This symbolized the increasing political importance of the town representation.

In the early sixteenth century Parliamentary office became more

desirable and the influence of money in elections began to be felt.[9] Payment of members became less frequent; instead, money was tendered for the privilege of holding office. The large landlords and the Crown went into the business of influencing elections. At the end of the fifteenth century local bills were numerous and members of Parliament, in order to gain local privileges, were actively seeking favor with the Crown. The influence of local landlords in politics increased.[10] A large number of the seats in the Commons came under the control of patrons; quite a few were held by the Crown, who bought and sold them in competition with private boroughmongers; a large number were the property of closed corporations with a suffrage restricted to a handful of the most influential men in the community; and in some cases the seats were the property of popular boroughs and subject to some contest at election time. From the return of the writ in the constituency to the seating of the elected member in Parliament, the election process was subject to the greatest degree of manipulation. The work of the Long Parliament in the middle of the seventeenth century was hampered because it was the scene of so many election contests.[11]

Under the changed conditions, Parliament had need of justification as a representative body. An institution which notoriously derived its representation from a few families and groups in the whole of the land hardly embodied the ancient idea of representation as mere agency, a delegation of powers from the constituency to a representative who would reflect its desires consciously and energetically in Parliament and who would be continuously accountable for his conduct.

A major show of authority would occur if Parliament were to take over the theory of virtual representation from the Crown. The King, like the Commons, had originally in England no theory of representing a corporate community. He was a personal sovereign, dealing with individual barons and subjects. Slowly, by a variety of means, he achieved a new role as head of a community with unified interests. Between the time of Henry VIII and that of Elizabeth, the theory of the virtual representation of a corporate community of the nation by the Crown seems to have matured. An early example of the sort of thinking that would in time produce the idea of virtual representation is found in a homily which the Commons offered the King in 1401, comparing Parliament to a Trinity, the members of which were the person of the King, the Lords, and the Commons.[12]

But historical evidence seems to regard such early cases as unusual, and favors the sixteenth century as the date for the vogue of the idea. In 1522, Fineux, C.J., declared: "The parliament of the king and the lords and the commons are a corporation." Henry VIII himself declared that, as head, he was joined and knit together with the members of parliament in a single body politic. In 1583, Sir Thomas Smith wrote that the Parliament "...representeth and hath the power of the whole realme both the head and the bodie.

... The consent of Parliament is taken to be everie man's consent."[13]

The corporate idea, in itself, cannot reveal which of the corporate members is most powerful in practice. In its legal theory and imagery, of course, the Crown is the head. And history reveals clearly the strength of the Tudor monarchs under whom the idea flourished. Parliament was yet weak.

It should be said, however, that all of those factors cited previously, factors which had so changed the character of the representative system on the level of the constituency, may have contributed indirectly to the establishment of the very necessary theory of parliamentary virtual representation. Those many changes that transformed the character of representation from delegation to oligarchy allowed the creation of a role for Parliament as virtual representative of the nation. To external political change can be added internal change in the Commons. The idea that the Commons had an existence apart from its individual members, evidenced certainly by changes in representative relationships, is also manifested by such events as the conscious adoption of the majority vote to carry an issue in the Commons, noted during the reign of Mary.

Von Gierke's generalization fits here: "In default of a matured concept of the unitary personality of the State, and while the prevailing conception of the people was 'collective,' all such relations of representation could be construed no otherwise than in the sense of a true Surrogation or Agency." But once the "matured concept" was achieved, representation become a "specialized political function" in which the organism was represented by "its constitutionally appointed member-persons."[14]

Shorn of their delegative, contractual character, the members of the Commons might contest more freely with the Monarch the right to "virtually' represent the national community. Neither the new Parliamentarists nor the Monarch required "popular" representative devices in the contest for power. The fiction of virtual representation enabled Parliament as well as the Crown to defend itself against those critics who demanded reform in the name of representation.

Edward Coke, privy councillor to Elizabeth, would have as little to do with devices for securing representation to the unrepresented as would the great Queen herself. Apart from the Lords who have their own House, everyone in England is represented in the Commons, he wrote in his Institutes. But Coke was already heralding the age of Parliamentary supremacy and the Crown could find little consolation in his theories.[15]

Both the Parliamentary Party and the Crown, upholding the fiction of virtual representation, descended into the political arena, cash in hand, jobs in pocket, to buy or trade boroughs. James I, in looking about for means of influencing the electorate, made political pamphlets of the writs calling his first Parliament.[16] Not only were the constituencies notified of the election, but at the same time they were given all manner of extraordinary paternal advice on how the elections should be conducted, including an exhortation that representatives be chosen for the strength of their monarchical sentiments.

By this time, most of the county seats were held by the King's party. The constituencies that gave the Stuarts the most trouble were the boroughs in which the Dissenters and commercial interests were strong. Charles I, in particular, complained of the active commercial elements in Parliament and set about campaigning against them.[17] But before he had had time to complete his tasks, the Commonwealth Revolution was upon him, precipitated by the foolish aggressions of Archbishop Laud against the Dissenters and the need finally to call a parliamentary session.

The prolonged confusion that followed nourished the imagination of Hobbes as he wrote Leviathan (1651). At heart a timid man, Hobbes was capable, like Machiavelli, of the grossest blasphemies and most scathing cynicism with his pen. He was concerned with order far more than with justice. Of the fierce and democratic utopianism of the Levellers, he had only this to say: "Had it not been much better that those seditious ministers, which were not perhaps 1000, had been all killed before they had preached? It had been, I confess, a great massacre; but the killing of 100,000 [in the Civil War] is a greater."[18]

His contempt for representation, born of the fear of disorder, resembles the ideas of the modern Fascists. Representation is not a process of extracting consensus by molding the state in the image of the subjects; rather, the state molds the individuals into a cohesive body. "A multitude of men, are made One Person, when they are by one man, or one Person, Represented... For it is the Unity of the Representer, not the Unity of the Represented, that maketh the Person One."[19] As Gentile, in Che Cosa e il Fascismo, states the fascist idea," The will of the free man coincides with the will of the state."[20]

Historically, Hobbes may have been more concerned with bolstering the position of the Stuarts than with justifying any form of government that existed de facto, but he had no quarrel to pick with Parliament as a supreme governing "Representor."[21] He saw anarchy all about him if the actual power of the moment were taken away, and the unintegrated condition of English political institutions during his time gave strong grounds for a lack of faith in any ordering of privileges, prerogatives, and rights through "the rules of the game." No testing of the general will is possible, if subject and ruler conflict -- "there is in this case, no judge to decide the controversie: It returns therefore to the Sword again."[22]

The old materialist found little popular acceptance. Suspect to both King and Parliament, and anathema to the Churchmen, his influence waited on the historians of political theory, who may point out that Hobbes' ideas of representation are prone to develop in a period of violent and rapid fluctuations among elites. Unfortunately, as a result, Locke chose to devote some of his talent to the destruction of a dull work of Filmer, Patriarcha, a highly popular defense of Divine Rights of Kings which traced royal descent from Adam as the first absolute pater familias.[23]

The monarchists were beset on two sides, on the one by the Parliamentarists representing the upper middle classes, and on the other by the radical Republican soldier-agitators. An initial combination of the two broke monarchical strength. Parliament's quarrel with the Monarch was economic and religious; its Presbyterian leaders wanted security of religion and property. That their differences with the King were so limited becomes clear when we examine their difficulties with the radicals of the Commonwealth army.

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