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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 II

A second advantage England had over France:—it formed one undivided State.

It was in the reign of Henry the First, about forty years after the Conquest, that we see the above causes begin to operate. This Prince having ascended the throne to the exclusion of his elder brother, was sensible that he had no other means to maintain his power than by gaining the affection of his subjects; but, at the same time, he perceived that it must be the affection of the whole nation: he, therefore, not only mitigated the rigour of the feudal laws in favour of the Lords, but also annexed as a condition to the Charter he granted, that the Lords should allow the same freedom to their respective Vassals. Care was even taken to abolish those laws of the Conqueror which lay heaviest on the lower classes of the People (a) .

Under Henry the Second, liberty took a farther stride; and the ancient Trial by jury, a mode of procedure which is at present one of the most valuable parts of the English law, made again, though imperfectly, its appearance.

But these causes, which had worked but silently and slowly under the two Henrys, who were Princes in some degree just, and of great capacity, manifested themselves, at once, under the despotic reign of King John. The royal prerogative, and the forest laws, having been exerted by this Prince to a degree of excessive severity, he soon beheld a general confederacy formed against him: and here we must observe another circumstance, highly advantageous, as well as peculiar to England.

England was not, like France, an aggregation of a number of different Sovereignties: it formed but one State, and acknowledged but one Master, one general title. The same laws, the same kind of dependence, consequently the same notions, the same interests, prevailed throughout the whole. The extremities of the kingdom could, at all times, unite to give a check to the exertions of an unjust power. From the river Tweed to Portsmouth, from Yarmouth to the Land’s End, all was in motion: the agitation increased from the distance like the rolling waves of an extensive sea; and the Monarch, left to himself, and destitute of resources, saw himself attacked on all sides by an universal combination of his subjects.

No sooner was the standard set up against John, than his very Courtiers forsook him. In this situation, finding no part of his kingdom less irritated against him than another, having no detached province which he could engage in his defence by promises of pardon, or of particular concessions, the trivial though never-failing resources of Government, he was compelled, with seven of his attendants, all that remained with him, to submit himself to the disposal of his subjects; and he signed at Running Mead (a) the Charter of the Forest, together with that famous charter, which, from its superior and extensive importance, is denominated Magna Charta.

By the former, the most tyrannical part of the forest laws was abolished; and by the latter, the rigour of the feudal laws was greatly mitigated in favour of the Lords. But this Charter did not stop there; conditions were also stipulated in favour of the numerous body of the people who had concurred to obtain it, and who claimed, with sword in hand, a share in that security it was meant to establish. It was hence instituted by the Great Charter, that the same services which were remitted in favour of the Barons, should be in like manner remitted in favour of their Vassals. This Charter moreover established an equality of weights and measures throughout England; it exempted the Merchants from arbitrary imposts, and gave them liberty to enter and depart the Kingdom at pleasure: it even extended to the lowest orders of the State, since it enacted, that the Villain, or Bondman, should not be subject to the forfeiture of his implements of tillage. Lastly, by the twenty-ninth article of the same Charter, it was enacted, that no Subject should be exiled, or in any shape whatever molested, either in his person or effects, otherwise than by judgment of his peers, and according to the law of the land (a) : an article so important, that it may be said to comprehend the whole end and design of political societies; and from that moment the English would have been a free People, if there were not an immense distance between the making of laws, and the observing of them.

But though this Charter wanted most of those supports which were necessary to insure respect to it, though it did not secure to the poor and friendless any certain and legal methods of obtaining the execution of it (provisions which numberless transgressions alone could, in process of time, point out), yet it was a prodigious advance towards the establishment of public liberty. Instead of the general maxims respecting the rights of the People and the duties of the Prince (maxims against which ambition perpetually contends, and which it sometimes even openly and absolutely denies), here was substituted a written law, that is, a truth admitted by all parties, which no longer required the support of argument. The rights and privileges of the individual, as well in his person as in his property, became settled axioms. The Great Charter, at first enacted with so much solemnity, and afterwards confirmed at the beginning of every succeeding reign, became like a general banner perpetually set up for the union of all classes of the people; and the foundation was laid on which those equitable laws were to rise, which offer the same assistance to the poor and weak, as to the rich and powerful (a) .

Under the long reign of Henry the Third, the differences which arose between the King and the Nobles, rendered England a scene of confusion. Amidst the vicissitudes which the fortune of war produced in their mutual conflicts, the People became still more and more sensible of their importance, and so did in consequence both the King and the Barons also. Alternately courted by both parties, they obtained a confirmation of the Great Charter, and even the addition of new privileges, by the statutes of Merton and of Marlebridge.1 But I hasten to reach the grand epoch of the reign of Edward the First; a Prince, who, from his numerous and prudent laws, has been denominated the English Justinian.

Possessed of great natural talents, and succeeding a Prince whose weakness and injustice had rendered his reign unhappy, Edward was sensible that nothing but a strict administration of justice could, on the one side, curb a Nobility whom the troubles of the preceding reign had rendered turbulent, and on the other, appease and conciliate the people, by securing the property of individuals. To this end, he made jurisprudence the principal object of his attention; and so much did it improve under his care, that the mode of process became fixed and settled; Judge Hale going even so far as to affirm, that the English laws arrived at once, & quasi per saltum,2 at perfection, and that there has been more improvement made in them during the first thirteen years of the reign of Edward, than all the ages since his time have done.3

But what renders this aera particularly interesting, is, that it affords the first instance of the admission of the Deputies of Towns and Boroughs into (a) Parliament.4

Edward, continually engaged in wars, either against Scotland or on the Continent, seeing moreover his demesnes considerably diminished, was frequently reduced to the most pressing necessities. But though, in consequence of the spirit of the times, he frequently indulged himself in particular acts of injustice, yet he perceived that it was impossible to extend a general oppression over a body of Nobles, and a People, who so well knew how to unite in a common cause. In order to raise subsidies therefore, he was obliged to employ a new method, and to endeavour to obtain through the consent of the People, what his Predecessors had hitherto expected from their own power. The Sheriffs were ordered to invite the Towns and Boroughs of the different Counties to send Deputies to Parliament; and it is from this aera that we are to date the origin of the House of Commons (a) .

It must be confessed, however, that these Deputies of the People were not, at first, possessed of any considerable authority. They were far from enjoying those extensive privileges which, in these days, constitute the House of Commons a collateral part of the Government: they were in those times called up only to provide for the wants of the King, and approve of the resolutions taken by him and the assembly of the Lords (b) . But it was nevertheless a great point gained, to have obtained the right of uttering their complaints, assembled in a body and in a legal way—to have acquired, instead of the dangerous resource of insurrections, a lawful and regular mean of influencing the motions of the Government, and thenceforth to have become a part of it. Whatever disadvantage might attend the station at first allotted to the Representatives of the People, it was soon to be compensated by the preponderance the People necessarily acquire, when they are enabled to act and move with method, and especially with concert (c) .

And indeed this privilege of naming Representatives, insignificant as it might then appear, presently manifested itself by the most considerable effects. In spite of his reluctance, and after many evasions unworthy of so great a King, Edward was obliged to confirm the Great Charter; he even confirmed it eleven times in the course of his reign. It was moreover enacted, that whatever should be done contrary to it, should be null and void; that it should be read twice a year in all Cathedrals; and that the penalty of excommunication should be denounced against any one who should presume to violate it (a) .

At length, he converted into an established law a privilege of which the English had hitherto had only a precarious enjoyment; and, in the statute de Tallagio non concedendo, he decreed, that no tax should be laid, nor impost levied, without the joint consent of the Lords and Commons (b) . A most important Statute this, which, in conjunction with Magna Charta, forms the basis of the English Constitution. If from the latter the English are to date the origin of their liberty, from the former they are to date the establishment of it; and as the Great Charter was the bulwark that protected the freedom of individuals, so was the Statute in question the engine which protected the Charter itself, and by the help of which the People were thenceforth to make legal conquests over the authority of the Crown.

This is the period at which we must stop, in order to take a distant view, and contemplate the different prospect which the rest of Europe then presented.

The efficient causes of slavery were daily operating and gaining strength. The independence of the Nobles on the one hand, the ignorance and weakness of the people on the other, continued to be extreme: the feudal government still continued to diffuse oppression and misery; and such was the confusion of it, that it even took away all hopes of amendment.

France, still bleeding from the extravagance of a Nobility incessantly engaged in groundless wars, either with each other, or with the King, was again desolated by the tyranny of that same Nobility, haughtily jealous of their liberty, or rather of their anarchy (a) . The people, oppressed by those who ought to have guided and protected them, loaded with insults by those who existed by their labour, revolted on all sides. But their tumultuous insurrections had scarcely any other object than that of giving vent to the anguish with which their hearts were full. They had no thoughts of entering into a general combination; still less of changing the form of the Government, and laying a regular plan of public liberty.

Having never extended their views beyond the fields they cultivated, they had no conception of those different ranks and orders of Men, of those distinct and opposite privileges and prerogatives, which are all necessary ingredients of a free Constitution. Hitherto confined to the same round of rustic employments, they little thought of that complicated fabric, which the more informed themselves cannot but with difficulty comprehend, when, by a concurrence of favourable circumstances, the structure has at length been reared, and stands displayed to their view.

In their simplicity, they saw no other remedy for the national evils, than the general establishment of the Regal power, that is, of the authority of one common uncontrouled Master, and only longed for that time, which, while it gratified their revenge, would mitigate their sufferings, and reduce to the same level both the oppressors and the oppressed.

The Nobility, on the other hand, bent solely on the enjoyment of a momentary independ-ence, irrecoverably lost the affection of the only Men who might in time support them; and equally regardless of the dictates of humanity and of prudence, they did not perceive the gradual and continual advances of the royal authority, which was soon to overwhelm them all. Already were Normandy, Anjou, Languedoc, and Touraine, re-united to the Crown: Dauphiny, Champagne, and part of Guienne, were soon to follow: France was doomed at length to see the reign of Lewis the Eleventh; to see her general Estates first become useless, and be afterwards abolished.

It was the destiny of Spain also, to behold her several Kingdoms united under one Head: she was fated to be in time ruled by Ferdinand and Charles the Fifth (a) . And Ger-many, where an elective Crown prevented the re-unions(b) , was indeed to acquire a few free Cities; but her people, parcelled into so many different dominions, were destined to remain subject to the arbitrary yoke of such of her different Sovereigns as should be able to maintain their power and independence. In a word, the feudal tyranny which overspread the Continent, did not compensate, by any preparation of distant advantages, the present calamities it caused; nor was it to leave behind it, as it disappeared, any thing but a more regular kind of Despotism.

But in England, the same feudal system, after having suddenly broken in like a flood, had deposited, and still continued to deposit, the noble seeds of the spirit of liberty, union, and sober resistance. So early as the times of Edward, the tide was seen gradually to subside; the laws which protect the person and property of the individual, began to make their appearance; that admirable Constitution, the result of a threefold power, insensibly arose (a) ; and the eye might even then discover the verdant summits of that fortunate region that was destined to be the seat of Philosophy and Liberty, which are inseparable companions.

[(a) ]Amongst others, the law of the Curfeu. [[The Norman law of curfew, limiting the movement of the inhabitants of towns at night, was relaxed during the reign of William the Conqueror’s son Henry I. It might be matter of curious discussion to inquire what the Anglo-Saxon Government would in process of time have become, and of course the Government of England be, at this present time, if the event of the Conquest had never taken place; which, by conferring an immense as well as unusual power on the Head of the feudal System, compelled the Nobility to contract a lasting and sincere union with the People. It is very probable that the English Government would at this day be the same as that which long prevailed in Scotland, where the King and Nobles engrossed, jointly, or by turns, the whole power in the State, the same as in Sweden, the same as in Denmark, Countries whence the Anglo-Saxons came.

[(a) ]Anno 1215.

[(a) ]“Nullus liber homo capiatur, vel imprisonetur, vel dissesietur de libero tenemento suo, vel libertatibus vel liberis consuetudinibus suis; aut utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae. Nulli vendemus, nulli negabimus, aut differemus, justitiam vel rectum.” Magna Chart. cap. xxix. [[“No freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful judgment of his peers, or by law of the land. We will sell to no man, we will not deny or defer to any man, either justice or right.”

[(a) ]The reader, to be more fully convinced of the reality of the causes to which the liberty of England has been here ascribed, as well as of the truth of the observations made at the same time on the situation of the people of France, needs only to compare the Great Charter, so extensive in its provisions, and in which the Barons stipulated in favour even of the Bondman, with the treaty concluded between Lewis the Eleventh and several of the Princes and Peers of France, intitled, A Treaty made at St. Maur, between the Dukes of Normandy, Calabre, Bretagne, Bourbonnois, Auvergne, Nemours;the Counts of Charolois, Armagnac, and St. Pol, and other Princes of France, risen up in support of the public good, of the one part;and King Lewis the Eleventh of the other, October 29, 1465. In this Treaty, which was made in order to terminate a war that was called the war for the Public good (pro bono Publico), no provision was made but concerning the particular power of a few Lords: not a word was inserted in favour of the people. This treaty may be seen at large in the pieces justificatives annexed to the Mémoires de Philippe de Comines. [[Mémoires de Philippe de Comines, cited here by De Lolme, was subtitled “l’histoire des rois de France Louis XI. et Charles VIII.” The author, Philippe de Comines (or Commynes) (1447–1511), served as a key advisor to Louis XI. His Mémoires became a standard source of information concerning French politics in the late medieval period.

[1. ]In 1225 the Magna Carta and the Charter of Forests were reenacted under Henry III, and these revised versions of the charters became authoritative in the English legal tradition. The Statute of Merton (1236) and Statute of Marlebridge (1267) covered a variety of matters concerning the legal privileges of the nobility and the crown.

[2. ]“And as though by a leap.”

[3. ]The influential common law judge and jurist Matthew Hale celebrated Edward I’s legal achievements in chapter 7 of his History of the Common Law of England. The history was composed in the 1670s and first published in 1713.

[(a) ]I mean their legal origin; for the Earl of Leicester, who had usurped the power during part of the preceding reign, had called such Deputies up to Parliament before.

[4. ]In the paragraphs that follow, De Lolme discusses the controversial question of whether the representatives of the Commons formed part of England’s original constitutional order. He acknowledges the weakness of the Commons within the structure of medieval government in England but emphasizes how much more authority the Commons then enjoyed in comparison with the other monarchic governments of Europe.

[(a) ]Anno 1295.

[(b) ]The end mentioned in the Summons sent to the Lords, was de arduis negotiis regni tractaturi, & consilium impensuri: the Summons sent to the Commons was, ad faciendum & consentiendum. The power enjoyed by the latter was even inferior to what they might have expected from the Summons sent to them: “In most of the ancient Statutes they are not so much as named; and in several, even when they are mentioned, they are distinguished as petitioners merely, the Assent of the Lords being expressed in contradistinction to the Request of the Commons.” See on this subject the Preface to the Collection of the Statutes at large, by Ruffhead, and the authorities quoted therein. [[The first Latin passage means: “Concerning weighty affairs of the kingdom to deliberate and afford counsel”; the second: “To do and consent.” De Lolme cites the standard eighteenth-century collection of English legislation edited by Owen Ruffhead, The Statutes of the Realm, from Magna Charta to the end of the Last Parliament, which was first published, in eight volumes, in 1769.

[(c) ]France had indeed also her assemblies of the General Estates of the Kingdom, in the same manner as England had her Parliament; but then it was only the Deputies for the Towns within the particular domain of the Crown, that is, for a very small part of the Nation who, under the name of the Third Estate, were admitted in those Estates; and it is easy to conceive that they acquired no great influence in an assembly of Sovereigns who gave the law to their Lord Paramount. Hence, when these disappeared, the maxim became immediately established, The will of the King is the will of the Law. In old French, Qui veut le Roy, si veut la Loy.

[(a) ]Confirmationes Chartarum, cap. 2, 3, 4. [[Confirmation of the Charters (1297).

[(b) ]“Nullum tallagium vel auxilium, per nos, vel haeredes nostros, in regno nostro ponatur seu levetur, sine voluntate & assensu Archiepiscoporum, Episcoporum, Comitum, Baronum, Militum, Burgensium, & aliorum liberorum hom’ de regno nostro.” Stat. an. 24 Ed. I. [[“No tallage or aid shall be taken or levied by us or our heirs in our realm, without the good will and assent of archbishops, bishops, earls, barons, knights, burgesses, and other freemen of the land.”

[(a) ]Not contented with oppression, they added insult. “When the Gentility,” says Mezeray [[for Mézeray, see above, p. 27, note b, and p. 29, note a, “pillaged and committed exactions on the peasantry, they called the poor sufferer, in derision, Jaques bonhomme (Good man James). This gave rise to a furious sedition, which was called the Jaquerie. It began at Beauvais in the year 1357, extending itself into most of the Provinces of France, and was not appeased but by the destruction of part of those unhappy victims, thousands of whom were slaughtered.”

[(a) ]Spain was originally divided into twelve Kingdoms, besides Principalities, which by Treaties, and especially by Conquests, were collected into three Kingdoms; those of Castile, Aragon, and Granada. Ferdinand the Fifth, King of Aragon, married Isabella, Queen of Castile; they made a joint Conquest of the Kingdom of Granada, and these three Kingdoms, thus united, descended, in 1516, to their grandson Charles V. and formed the Spanish Monarchy. At this aera, the Kings of Spain began to be absolute; and the States of the Kingdoms of Castile and Leon, “assembled at Toledo, in the month of November 1539, were the last in which the three orders met, that is, the Grandees, the Ecclesiastics, and the Deputies of the Towns.” See Ferrera’s General History of Spain. [[De Lolme refers to Historia de España by Juan de Ferreras (1652–1735), which was published in sixteen volumes from 1700 to 1727.

[(b) ]The Kingdom of France, as it stood under Hugh Capet and his next Successors, may, with a great degree of exactness, be compared with the German Empire, as it exists at present, and also existed at that time: but the Imperial Crown of Germany having, through a conjunction of circumstances, continued elective, the German Emperors, though vested with more high-sounding prerogatives than even the Kings of France, laboured under very essential disadvantages: they could not pursue a plan of aggrandisement with the same steadiness as a line of hereditary Sovereigns usually do; and the right to elect them, enjoyed by the greater Princes of Germany, procured a sufficient power to these, to protect themselves, as well as the lesser Lords, against the power of the Crown.

[(a) ]“Now, in my opinion,” says Philipe de Comines, in times not much posterior to those of Edward the First, and with the simplicity of the language of his times, “among all the Sovereignties I know in the world, that in which the public good is best attended to, and the least violence exercised on the people, is that of England.” Memoires de Comines, tom. I. lib. v. chap. xix. [[For Mémoires de Comines, see above, p. 37, note a.