Division Of The Legislative Power.
In order to judge in itself of the division of the legislative power into two Chambers, and to estimate its merit, we must first detach it from certain particular and purely local characteristics, which are not essentially inherent in it; and which have associated it in England with causes which are not in all times and places to be met with. Not a few writers have fallen into grave errors, on this and many other questions, by neglecting to take this step at the outset. Some have formed their judgment of this institution entirely from a few of the causes which led to its establishment in England in the fourteenth century; and as, generally speaking, they did not approve either of these causes or their effects, and had a bad opinion of the social condition of which they formed part, they have condemned the institution itself, appearing to believe that it was derived solely from that social condition, and could not possibly be detached from it. Others, on the contrary, struck either with the general reasons which may be urged in favour of the institution, or with the good effects which it has produced in England and elsewhere, have adopted it exactly in that particular form in which it was introduced among our neighbours by their ancient social condition, asserting that all the characteristics which it there presents are essential to it, and even constitute it. Thus, the institution has sometimes been censured on account of particular facts which accompanied its establishment and combined to produce it, and sometimes these facts and their special consequences have been adopted as principles, simply because they were associated with an institution deemed intrinsically good.
Philosophic And Historic Schools.
These two modes of judgment, both of which are equally erroneous, characterize the two schools, which may be called distinctively the philosophic school and the historic school. As this twofold method of considering political questions has warped them, sometimes in one sense and sometimes in another, it appears to me that it would be useful to offer some general observations on this subject, which may afterwards be applied to the particular question with which we are now occupied.
One idea reigns in the philosophic school—that of Right. Right is constantly taken both as its starting-point, and as its goal. But right itself requires to be investigated; before adopting it as a principle or pursuing it as an object, we must know what it is. To discover right, the philosophic school commonly confines itself to the individual. It takes hold of man, considers him isolatedly and in himself, as a rational and free being, and deduces from an examination of his nature that which it denominates his rights. Once in possession of these rights, they are advanced as a requirement of justice and reason, which ought to be applied to social facts as the sole rational and moral rule by which these facts should be judged, if judgment only be required—or instituted, if the object be to institute government.
The historic school is held in bondage by another idea—that of Fact. It does not, if possessed of any good sense, deny right: it even proposes right as its goal, but it never adopts it as its starting-point. Fact is the ground to which everything is brought; and as facts cannot be considered isolatedly, as they are all bound up together; and as the past itself is a fact with which the facts of the present are connected, it professes great respect for the past and admits right only so far as it is founded on anterior facts; or at least this school seeks to establish right, only by uniting it closely with these facts, and striving to deduce it from them. Such are the points of view, not exclusively, for that cannot be, but dominantly, of the two schools. How much is true, and how much erroneous in each? That is to say, what is there incomplete in both?
The philosophic school is correct in adopting Right not only as its end but also as its starting-point. It is right in maintaining that an institution is not good, simply because it exists or has existed, and that there are rational principles by which all institutions should be judged, and rights superior to all facts,—rights which cannot be violated unless the facts which violate them are illegitimate, although real, and even powerful.