This is the only one of the essential characteristics of the system of representative government, which the government of England presents, until the fourteenth century. During the course of this epoch, the division of power, far from efficiently repressing despotism, served only to render it more changeful and more dangerous. The council of barons was no more capable than the king himself, of comprehending and establishing a stable political order and true liberty; these two forces were incessantly in conflict, and their conflict was war, that is to say, the devastation of the country, and the oppression of the mass of the inhabitants. But from this there resulted, in process of time, two decisive facts, from which liberty took its origin; they were these:
1. From the very fact that power was divided, it followed that absolute power, sovereignty as a right, was never attributed to the king, nor supposed to be in itself legitimate. Now, this is the very principle of representative government; but this principle was far from being understood, or even suspected, philosophically speaking. It was incessantly stifled by force, or else it was lost in the confusion of the ideas of the time regarding divine right, the origin of power, and so forth; but it existed in the depths of the public mind, and became by slow degrees a fundamental maxim. We find this principle formally expressed in the writings of Bracton, Lord Chief Justice under Henry III., and of Fortescue, who held the same office under Henry VI. "The king," says Bracton, "should be subject to no man, but only to God and to the law, for the law makes him king; he can do nothing upon earth but that which, by law, he may do; and that which is said in the Pandects, that that which pleases the king becomes law, is no objection; for we see by the context, that these words do not mean the pure and simple will of the prince, but that which has been determined by the advice of his councils, the king giving the sanction of his authority to their deliberations upon the subject."
Character Of The English Monarchy.
"The English monarchy," says Fortescue, "non solum est regalis, sed legalis et politica, potestas," and he frequently develops this idea. The limitation of powers was, thus, at a very early period, a matter of public right in England; and the legitimacy of sole and absolute power was never recognized. Thus was established and preserved, for better times, the generative principle of all legitimate power as well as of all liberty; and by the virtue of this principle alone was maintained, in the souls of the people, that noble sentiment of right which becomes extinguished and succumbs wherever man finds himself in presence of an unlimited sovereignty, whatever may be its form and name.
Importance Of The Towns.
2. The division of the supreme power produced yet another result. When the towns had acquired greater wealth and importance, when there had been formed, beyond the circle of the king's immediate vassals, a nation capable of taking part in political life, and which the government found it necessary to treat with consideration, this nation naturally adjoined itself to the great council of the king, which had never ceased to exist. In order to gain itself a place in the central government, it had no need abruptly to create new institutions; a place was already prepared to receive it, and although its entrance into the national council ere long changed its nature and forms, it at least was not under the necessity of asserting and re-animating its existence. There was a fact capable of receiving extension, and of admitting into its bosom new facts, together with new rights. The British Parliament, to say truth, dates only from the formation of the House of Commons; but without the presence and importance of the council of Barons, the House of Commons would, perhaps, never have been formed.
Thus, on the one hand, the permanence of the idea that the sovereignty ought to be limited, and, on the other, the actual division of the central power, were the germs of representative government in England. Until the end of the thirteenth century we met with no other of its characteristics; and the English nation, until that period, was not perhaps actually more free and happy than any of the peoples of the Continent. But the principle of the right of resistance to oppression was already a legal principle in England; and the idea of the supremacy which holds dominion over all others, of the supremacy of the law, was already connected, in the mind of the people and of the jurisconsults themselves, not with any particular person, or with any particular actual power, but with the name of the law itself. Already the law was said to be superior to all other powers; sovereignty had thus, in principle at least, left that material world in which it could not fix itself without engendering tyranny, to place itself in that moral world, in which actual powers ought constantly to seek it. Many favourable circumstances were doubtless necessary to fecundate these principles of liberty in England.