The Online Library of Liberty

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• Introduction
• De Lolme’s Life and Early Writings
• The Constitution of England
• Later Writings
• Editions of the Constitution of England
• A Note On the Text
• Acknowledgments
• The Constitution of England
• To the King.
• Book I
• Chapter I: Causes of the Liberty of the English Nation.—reasons of the Difference Between the Government of England, and That of France.—in England, the Great Power of the Crown, Under the Norman Kings, Created an Union Between the Nobility and the People
• Chapter II: A Second Advantage England Had Over France:—it Formed One Undivided State.
• Chapter III: The Subject Continued.
• Chapter IV: Of the Legislative Power.
• Chapter V: Of the Executive Power.
• Chapter VI: The Boundaries Which the Constitution Has Set to the Royal Prerogative.
• Chapter VII: The Same Subject Continued.
• Chapter VIII: New Restrictions.
• Chapter IX: Of Private Liberty, Or the Liberty of Individuals.
• Chapter X 1: On the Law In Regard to Civil Matters, That Is Observed In England.
• Chapter Xi 1: The Subject Continued. the Courts of Equity.
• Chapter XII: Of Criminal Justice.
• Chapter XIII: The Subject Continued.
• Chapter XIV: The Subject Concluded.—laws Relative to Imprisonment.
• Book Ii
• Chapter I: Some Advantages Peculiar to the English Constitution. 1. The Unity of the Executive Power.
• Chapter II: The Subject Concluded.—the Executive Power Is More Easily Confined When It Is One.
• Chapter III: A Second Peculiarity.—the Division of the Legislative Power.
• Chapter IV: A Third Advantage Peculiar to the English Government. the Business of Proposing Laws, Lodged In the Hands of the People.
• Chapter V: In Which an Inquiry Is Made, Whether It Would Be an Advantage to Public Liberty, That the Laws Should Be Enacted By the Votes of the People At Large.
• Chapter VI: Advantages That Accrue to the People From Appointing Representatives.
• Chapter VII: The Subject Continued—the Advantages That Accrue to the People From Their Appointing Representatives, Are Very Inconsiderable, Unless They Also Entirely Trust Their Legislative Authority to Them.
• Chapter VIII: The Subject Concluded.—effects That Have Resulted, In the English Government, From the People’s Power Being Completely Delegated to Their Representatives.
• Chapter IX: A Farther Disadvantage of Republican Governments.—the People Are Necessarily Betrayed By Those In Whom They Trust.
• Chapter X: Fundamental Difference Between the English Government, and the Governments Just Described.—in England All Executive Authority Is Placed Out of the Hands of Those In Whom the People Trust. Usefulness of the Power of the Crown.
• Chapter XI: The Powers Which the People Themselves Exercise.—the Election of Members of Parliament.
• Chapter XII: The Subject Continued.—liberty of the Press.
• Chapter XIII: The Subject Continued.
• Chapter XIV: Right of Resistance.
• Chapter Xv 1: Proofs Drawn From Facts, of the Truth of the Principles Laid Down In the Present Work.—1. the Peculiar Manner In Which Revolutions Have Always Been Concluded In England.
• Chapter Xvi 1: Second Difference—the Manner After Which the Laws For the Liberty of the Subject Are Executed In England.
• Chapter Xvii 1: A More Inward View of the English Government Than Has Hitherto Been Offered to the Reader In the Course of This Work.—very Essential Differences Between the English Monarchy, As a Monarchy, and All Those With Which We Are Acquainted.
• Chapter XVIII: How Far the Examples of Nations Who Have Lost Their Liberty, Are Applicable to England.
• Chapter Xix 1: A Few Additional Thoughts On the Attempts That At Particular Times May Be Made to Abridge the Power of the Crown, and On Some of the Dangers By Which Such Attempts May Be Attended.
• Chapter Xx 1: A Few Additional Observations On the Right of Taxation Which Is Lodged In the Hands of the Representatives of the People. What Kind of Danger This Right May Be Exposed To.
• Chapter XXI: Conclusion.—a Few Words On the Nature of the Divisions That Take Place In England.
• Guide to Further Reading
• Bibliography
• De Lolme’s Principal Publications
• Works Cited By De Lolme
• Classical Sources
• Modern Sources

CHAPTER I

Causes of the liberty of the English Nation.—Reasons of the difference between the Government of England, and that of France.—In England, the great power of the Crown, under the Norman kings, created an union between the Nobility and the People.

When the Romans, attacked on all sides by the Barbarians, were reduced to the necessity of defending the centre of their Empire, they abandoned Great Britain as well as several other of their distant provinces. The Island, thus left to itself, became a prey to the Nations inhabiting the shores of the Baltic; who, having first destroyed the ancient inhabitants, and for a long time reciprocally annoyed each other, established several Sovereignties in the southern part of the Island, afterwards called England, which at length were united, under Egbert, into one Kingdom.

The successors of this Prince, denominated the Anglo-Saxon Princes, among whom Alfred the Great and Edward the Confessor are particularly celebrated, reigned for about two hundred years; but, though our knowledge of the prin-cipal events of this early period of the English History is in some degree exact, yet we have but vague and uncertain accounts of the nature of the Government which those Nations introduced.

It appears to have had little more affinity with the present Constitution, than the general relation, common indeed to all the Governments established by the Northern Nations, that of having a King and a Body of Nobility; and the ancient Saxon Government is “left us in story” (to use the expressions of Sir William Temple on the subject) “but like so many antique, broken, or defaced pictures, which may still represent something of the customs and fashions of those ages, though little of the true lines, proportions, or resemblance” (a) .

It is at the era of the Conquest, that we are to look for the real foundation of the English Constitution.1 From that period, says Spelman, novus seclorum nascitur ordo.2(b) William of Normandy, having defeated Harold, and made himself master of the Crown, subverted the ancient fabric of the Saxon Legislation: he exterminated, or expelled, the former occupiers of lands, in order to distribute their possessions among his followers; and established the feudal system of Government, as better adapted to his situation, and indeed the only one of which he possessed a competent idea.

This sort of Government prevailed also in almost all the other parts of Europe. But, instead of being established by dint of arms and all at once, as in England, it had only been established on the Continent, and particularly in France, through a long series of slow successive events; a difference of circumstances this, from which consequences were in time to arise, as important as they were at first difficult to be foreseen.

The German Nations who passed the Rhine to conquer Gaul, were in a great degree independent. Their Princes had no other title to their power, but their own valour and the free election of the People; and as the latter had acquired in their forests but contracted notions of sovereign authority, they followed a Chief, less in quality of subjects, than as companions in conquest.

Besides, this conquest was not the irruption of a foreign army, which only takes possession of fortified towns. It was the general invasion of a whole People, in search of new habitations; and as the number of the Conquerors bore a great proportion to that of the conquered, who were at the same time enervated by long peace, the expedition was no sooner completed than all danger was at an end, and of course their union also. After dividing among themselves what lands they thought proper to occupy, they separated; and though their tenure was at first only precarious, yet, in this particular, they depended not on the King, but on the general assembly of the Nation (a) .

Under the Kings of the first race, the fiefs, by the mutual connivance of the Leaders, at first became annual; afterwards, held for life. Under the descendants of Charlemain, they became hereditary (b) . And when at length Hugh Capet effected his own election to the prejudice of Charles of Lorrain, intending to render the Crown, which in fact was a fief, hereditary in his own family (c) , he established the hereditariship of fiefs as a general principle; and from this epoch, authors date the complete establishment of the feudal system in France.

On the other hand, the Lords who gave their suffrages to Hugh Capet, forgot not the interest of their own ambition. They completed the breach of those feeble ties which subjected them to the royal authority, and became every where independent. They left the King no jurisdiction either over themselves, or their Vassals; they reserved the right of waging war with each other; they even assumed the same privilege, in certain cases, with regard to the King himself (a) ; so that if Hugh Capet, by rendering the Crown hereditary, laid the foundation of the greatness of his family, and of the Crown itself, yet he added little to his own authority, and acquired scarcely any thing more than a nominal superiority over the number of Sovereigns who then swarmed in France (b) .

But the establishment of the feudal system in England, was an immediate and sudden consequence of that conquest which introduced it. Besides, this conquest was made by a Prince who kept the greater part of his army in his own pay, and who was placed at the head of a people over whom he was an hereditary Sovereign: circumstances which gave a totally different turn to the Government of that kingdom.

Surrounded by a warlike, though a conquered Nation, William kept on foot part of his army. The English, and after them the Normans themselves, having revolted, he crushed both; and the new King of England, at the head of victorious troops, having to do with two Nations laying under a reciprocal check from the enmity they bore to each other, and moreover equally subdued by a sense of their unfortunate attempts of resistance, found himself in the most favourable circumstances for becoming an absolute Monarch; and his laws, thus promulgated in the midst as it were of thunder and lightning, imposed the yoke of despotism both on the victors and the vanquished.

He divided England into sixty thousand two hundred and fifteen military fiefs, all held of the Crown; the possessors of which were, on pain of forfeiture, to take up arms, and repair to his standard on the first signal: he subjected not only the common people, but even the Barons, to all the rigours of the feudal Government: he even imposed on them his tyrannical forest laws (a) .

He assumed the prerogative of imposing taxes. He invested himself with the whole executive power of Government. But what was of the greatest consequence, he arrogated to himself the most extensive judicial power, by the establishment of the Court which was called Aula Regis; a formidable tribunal, which received appeals from all the Courts of the Barons, and decided in the last resort on the estates, honour, and lives of the Barons themselves, and which, being wholly composed of the great officers of the Crown, removeable at the King’s pleasure, and having the King himself for President, kept the first Nobleman in the Kingdom under the same controul as the meanest subject.

Thus, while the Kingdom of France, in consequence of the slow and gradual formation of the feudal government, found itself, in the issue, composed of a number of parts simply placed by each other, and without any reciprocal adherence, the Kingdom of England on the contrary, in consequence of the sudden and violent introduction of the same system, became a compound of parts united by the strongest ties, and the regal Authority, by the pressure of its immense weight, consolidated the whole into one compact indissoluble body.

To this difference in the original Constitution of France and England, that is, in the original power of their Kings, we are to attri-bute the difference, so little analogous to its original cause, of their present Constitutions. This it is which furnishes the solution of a problem which, I must confess, for a long time perplexed me, and explains the reason why, of two neighbouring Nations, situated almost under the same climate, and having one common origin, the one has attained the summit of liberty, the other has gradually sunk under an absolute Monarchy.

In France, the royal Authority was indeed inconsiderable; but this circumstance was by no means favourable to the general liberty. The Lords were every thing; and the bulk of the Nation were accounted nothing. All those wars which were made on the King, had not liberty for their object; for of this the Chiefs already enjoyed but too great a share: they were the mere effect of private ambition or caprice. The People did not engage in them as associates in the support of a cause common to all; they were dragged, blindfold and like slaves, to the standard of their Leaders. In the mean time, as the laws by virtue of which their Masters were considered as Vassals, had no relation to those by which they were themselves bound as subjects, the resistance of which they were made the instruments, never produced any advantageous consequence in their favour, nor did it establish any principle of freedom that was in any case applicable to them.

The inferior Nobles, who shared in the independence of the superior Nobility, added also the effects of their own insolence to the despotism of so many Sovereigns; and the People, wearied out by sufferings, and rendered desperate by oppression, at times attempted to revolt. But being parcelled out into so many different States, they could never perfectly agree, either in the nature, or the times of their complaints. The insurrections, which ought to have been general, were only successive and particular. In the mean time the Lords, ever uniting to avenge their common cause as Masters, fell with irresistible advantage on Men who were divided; the People were thus separately, and by force, brought back to their former yoke; and Liberty, that precious offspring, which requires so many favourable circumstances to foster it, was every where stifled in its birth (a) .

At length, when by conquests, by escheats, or by Treaties, the several Provinces came to be re-united(a) to the extensive and continually increasing dominions of the Monarch, they became subject to their new Master, already trained to obedience. The few privileges which the Cities had been able to preserve, were little respected by a Sovereign who had himself entered into no engagement for that purpose; and as the re-unions were made at different times, the King was always in a condition to overwhelm every new Province that accrued to him, with the weight of all those he already possessed.

As a farther consequence of these differences between the times of the re-unions, the several parts of the Kingdom entertained no views of assisting each other. When some reclaimed their privileges, the others, long since reduced to subjection, had already forgotten their’s. Besides, these privileges, by reason of the differences of the Governments under which the Provinces had formerly been held, were also almost every where different: the circumstances which happened in one place, thus bore little affinity to those which fell out in another; the spirit of union was lost, or rather had never existed: each Province, restrained within its particular bounds, only served to insure the general submission; and the same causes which had reduced that warlike, spirited Nation, to a yoke of subjection, concurred also to keep them under it.

Thus Liberty perished in France, because it wanted a favourable culture and proper situation. Planted, if I may so express myself, but just beneath the surface, it presently expanded, and sent forth some large shoots; but having taken no root, it was soon plucked up. In England, on the contrary, the seed lying at a great depth, and being covered with an enormous weight, seemed at first to be smothered; but it vegetated with the greater force; it imbibed a more rich and abundant nourishment; its sap and juice became better assimilated, and it penetrated and filled up with its roots the whole body of the soil. It was the excessive power of the King which made England free, because it was this very excess that gave rise to the spirit of union, and of concerted resistance. Possessed of extensive demesnes, the King found himself independent; vested with the most formidable prerogatives, he crushed at pleasure the most powerful Barons in the Realm: it was only by close and numerous confederacies, therefore, that these could resist his tyranny; they even were compelled to associate the People in them, and make them partners of public Liberty.

Assembled with their Vassals in their great Halls, where they dispensed their hospitality, deprived of the amusements of more polished Nations, naturally inclined, besides, freely to expatiate on objects of which their hearts were full, their conversation naturally turned on the injustice of the public impositions, on the tyranny of the judicial proceedings, and, above all, on the detested forest laws.

Destitute of an opportunity of cavilling about the meaning of laws the terms of which were precise, or rather disdaining the resource of sophistry, they were naturally led to examine into the first principles of Society; they enquired into the foundations of human authority, and became convinced, that Power, when its object is not the good of those who are subject to it, is nothing more than the right of the strongest, and may be repressed by the exertion of a similar right.

The different orders of the feudal Government, as established in England, being connected by tenures exactly similar, the same maxims which were laid down as true against the Lord paramount in behalf of the Lord of an upper fief, were likewise to be admitted against the latter, in behalf of the owner of an inferior fief. The same maxims were also to be applied to the possessor of a still lower fief: they farther descended to the freeman, and to the peasant; and the spirit of liberty, after having circulated through the different branches of the feudal subordination, thus continued to flow through successive homogeneous channels; it forced a passage to itself into the remotest ramifications, and the principle of primeval equa-lity became every where diffused and established. A sacred principle, which neither injustice nor ambition can erase; which exists in every breast, and, to exert itself, requires only to be awakened among the numerous and oppressed classes of Mankind.

But when the Barons, whom their personal consequence had at first caused to be treated with caution and regard by the Sovereign, began to be no longer so, when the tyrannical laws of the Conqueror became still more tyrannically executed, the confederacy, for which the general oppression had paved the way, instantly took place. The Lord, the Vassal, the inferior Vassal, all united. They even implored the assistance of the peasants and cottagers; and that haughty aversion with which on the Continent the Nobility repaid the industrious hands which fed them, was, in England, compelled to yield to the pressing necessity of setting bounds to the Royal authority.

The People, on the other hand, knew that the cause they were called upon to defend, was a cause common to all; and they were sensible, besides, that they were the necessary supporters of it. Instructed by the example of their Leaders, they spoke and stipulated conditions for themselves: they insisted that, for the future, every individual should be intitled to the protection of the law; and thus did those rights with which the Lords had strengthened themselves, in order to oppose the tyranny of the Crown, become a bulwark which was, in time, to restrain their own.

[(a) ]See his Introduction to the History of England. [[William Temple, Introduction to the History of England (1695). Composed in the period after William of Orange (William III) and Mary’s accession to the English throne, most of Temple’s history was devoted to the reign in England of William of Normandy.

[1. ]In the paragraphs that follow, De Lolme introduces one of his major themes concerning the creation of England’s political freedom. England’s constitutional history begins with the Norman Conquest of 1066, which introduced oppressive feudal law and near-absolute royal powers. The concentration of so much political capacity in the hands of the monarch ultimately served constitutional liberty by uniting the English nobility and the people in opposition to absolute power.

[2. ]“A new series of ages arises.”

[(b) ]See Spelman, Of Parliaments. [[De Lolme refers to Henry Spelman’s essay “Of Parliaments,” which appeared in the 1723 Reliquiae Spelmannianae: The Posthumous Works of Sir Henry Spelman Kt. Spelman (1563?–1641), a distinguished legal antiquarian, published several studies indicating a major transformation of English law at the time of the Norman Conquest.—It has been a favourite thesis with many Writers, to pretend that the Saxon Government was, at the time of the Conquest, by no means subverted; that William of Normandy legally acceded to the Throne, and consequently to the engagements, of the Saxon Kings; and much argument has in particular been employed with regard to the word Conquest, which, it has been said, in the feudal sense only meant acquisition. These opinions have been particularly insisted upon in times of popular opposition: and, indeed, there was a far greater probability of success, in raising among the People the notions familiar to them of legal claims and long established customs, than in arguing with them from the no less rational, but less determinate, and somewhat dangerous, doctrines, concerning the original rights of Mankind, and the lawfulness of at all times opposing force to an oppressive Government.

But if we consider that the manner in which the public Power is formed in a State, is so very essential a part of its Government, and that a thorough change in this respect was introduced into England by the Conquest, we shall not scruple to allow that a new Government was established. Nay, as almost the whole landed property in the Kingdom was at that time transferred to other hands, a new System of criminal Justice introduced, and the language of the law moreover altered, the revolution may be said to have been such as is not perhaps to be paralleled in the History of any other Country.

Some Saxon laws, favourable to the liberty of the people, were indeed again established under the successors of William; but the introduction of some new modes of proceeding in the Courts of Justice, and of a few particular laws, cannot, so long as the ruling Power in the State remains the same, be said to be the introduction of a new Government; and, as when the laws in question were again established, the public power in England continued in the same channel where the Conquest has placed it, they were more properly new modifications of the Anglo-Norman Constitution, than they were the abolition of it; or, since they were again adopted from the Saxon Legislation, they were rather imitations of that legislation, than the restoration of the Saxon Government.

Contented, however, with the two authorities I have above quoted, (Spelman and Temple) I shall dwell no longer on a discussion of the precise identity, or difference, of two Governments, that is, of two ideal systems, which only exist in the conceptions of men. Nor do I wish to explode a doctrine, which, in the opinion of some persons, giving an additional sanction and dignity to the English Government, contributes to increase their love and respect for it. It will be sufficient for my purpose, if the Reader shall be pleased to grant that a material change was, at the time of the Conquest, effected in the Government then existing, and is accordingly disposed to admit the proofs that will presently be laid before him, of such change having prepared the establishment of the present English Constitution.

[(a) ]The fiefs were originally called, terrae jure beneficii concessae; and it was not till under Charles le Gros the term fief began to be in use.—See Beneficium,Gloss. Du Cange. [[“Lands granted by right of free (gratuitous) donation.” De Lolme cites here, and in the following note, material from Charles du Fresne Du Cange’s authoritative Glossarium mediae et infimae Latinitatis (Glossary of medieval and late Latin), which first appeared in 1678.

[(b) ]Apud Francos vero, sensim pedetentimque, jure haereditario ad haeredes transierunt feuda; quod labente saeculo nono incipit. [[“The custom slowly and progressively prevailed among the Franks, that the fiefs passed by hereditary right directly to the heirs. This commenced in the course of the ninth century.” See Feudum—Du Cange.

[(c) ]Hottoman has proved beyond a doubt, in his Francogallia, that under the two first races of Kings, the Crown of France was elective. The Princes of the reigning family had nothing more in their favour, than the custom of chusing one of that house. [[De Lolme refers to François Hotman’s controversial 1573 Francogallia. Hotman, a Huguenot opponent of French royal absolutism, argued that the monarch in France enjoyed limited powers under the design of the historic French constitution and that the kingship remained elective under the Merovingian and Carolingian dynasties (the “two first races” of French kings).

[(a) ]The principal of these cases was when the King refused to appoint Judges to decide a difference between himself and one of his first Barons; the latter had then a right to take up arms against the King; and the subordinate Vassals were so dependent on their immediate Lords, that they were obliged to follow them against the Lord Paramount. St. Louis [[“St. Louis” is the French king Louis IX, who reigned from 1226 to 1270, though the power of the Crown was in his time much increased, was obliged to confirm both this privilege of the first Barons, and this obligation of their Vassals.

[(b) ]“The Grandees of the Kingdom,” says Mezeray, “thought that Hugh Capet ought to put up with all their insults, because they had placed the Crown on his head: nay, so great was their licentiousness, that on his writing to Audebert, Viscount of Perigueux, ordering him to raise the siege he had laid to Tours, and asking him, by way of reproach, who had made him a Viscount? that Nobleman haughtily answered, Not you, but those who made you a King. [Non pas vous, mais ceux qui vous ont fait Roi.]” [[De Lolme cites François Eudes de Mézeray’s multivolume Abrégé chronologique de l’histoire de France. The history was first published in Paris in 1668 and was later republished and expanded in several French-language editions. English editions of the work appeared in the late seventeenth and the eighteenth centuries under the title A General Chronological History of France.

[(a) ]He reserved to himself an exclusive privilege of killing game throughout England, and enacted the severest penalties on all who should attempt it without his permission. The suppression, or rather mitigation of these penalties, was one of the articles of the Charta de Foresta, which the Barons afterwards obtained by force of arms, Nullus de cetero amittat vitam, vel membra, pro venatione nostrâ. Ch. de Forest. Art. 10. [[“No man henceforth shall lose either life or limb for killing our deer.” The Charter of Forests, adopted in 1215 during the reign of King John and reconfirmed by later English monarchs, was traditionally associated with Magna Charta as a fundamental statement of English liberties. De Lolme invokes the measure as evidence of the absolute power of the Norman kings in England, which the later Charter of Forests was designed to curtail. He explores the theme more fully below, book 1, chapter 2.

[(a) ]It may be seen in Mezeray, how the Flemings, at the time of the great revolt which was caused, as he says, “by the inveterate hatred of the Nobles (les Gentils-hommes) against the people of Ghent,” were crushed by the union of almost all the Nobility of France.—See Mezeray, Reign of Charles VI. [[De Lolme cites Mézeray, Abrégé chronologique de l’histoire de France; see above, p. 27, note b.

[(a) ]The word re-union expresses in the French law, or History, the reduction of a Province to an immediate dependence on the Crown. The French lawyers, who were at all times remarkably zealous for the aggrandisement of the Crown (a zeal which would not have been blameable, if it had been exerted only in the suppression of lawless Aristocracy) always contended, that when a province once came into the possession of the King, even any private dominion of his before he acceded to the Throne, it became re-united for ever: the Ordonnance of Moulins, in the year 1566, has since given a thorough sanction to these principles. The re-union of a province might be occasioned, first, by the case just mentioned, of the accession of the possessor of it to the throne: thus, at the accession of Henry IV. (the sister of the late King being excluded by the Salic law) Navarre and Bearn were re-united. Secondly, by the felony of the possessor, when the King was able to enforce by dint of arms, the judgment passed by the Judges he had appointed: thus the small Lordship of Rambouillet was seized upon by Hugh Capet; on which authors remark that it was the first dominion that was re-united: and the duchy of Normandy was afterwards taken in the same manner by Philip Augustus from John King of England, condemned for the murder of Arthur Duke of Britanny. Thirdly, by the last will of the possessor: Provence was re-united in this manner, under the reign of Lewis XI. Fourthly, by intermarriages: this was the case of the county of Champagne, under Philip the Fair; and of Britanny under Francis I. Fifthly, by the failure of heirs of the blood, and sometimes of heirs male: thus Burgundy was seized upon by Lewis XI. after the death of Charles the Bold, Duke of that Province. Lastly, by purchases: thus Philip of Valois purchased the Barony of Montpellier; Henry IV. the Marquisat of Saluces; Lewis XIII. the Principality of Sedan, &c.

These different Provinces, which, with others united, or re-united, after a like manner, now compose the French Monarchy, not only thus conferred on their respective Sovereigns different titles, but also differed from each other with respect to the laws which they followed, and still follow: the one are governed by the Roman law, and are called Pays de Droit écrit; the others follow particular customs, which in process of time have been set down in writing, and are called Pays de Droit Coutumier. In those Provinces the people had, at times, purchased privileges from their Princes, which in the different Provinces were also different, according to the wants and temper of the Princes who granted them.