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CHAPTER III: The Subject continued. - Jean Louis De Lolme, The Constitution of England; Or, an Account of the English Government [1784]

Edition used:

The Constitution of England; Or, an Account of the English Government, edited and with an Introduction by David Lieberman (Indianapolis: Liberty Fund, 2007).

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


CHAPTER III

The Subject continued.

The Representatives of the Nation, and of the whole Nation, were now admitted into Parliament: the great point therefore was gained, that was one day to procure them the great influence which they at present possess; and the subsequent reigns afford continual instances of its successive growth.

Under Edward the Second, the Commons began to annex petitions to the bills by which they granted subsidies: this was the dawn of their legislative authority. Under Edward the Third, they declared they would not, in future, acknowledge any law to which they had not expressly assented. Soon after this, they exerted a privilege in which consists, at this time, one of the great balances of the Constitution: they impeached, and procured to be condemned, some of the first Ministers of State.1 Under Henry the Fourth, they refused to grant subsidies before an answer had been given to their petitions. In a word, every event of any consequence was attended with an increase of the power of the Commons; increases indeed but slow and gradual, but which were peaceably and legally effected, and were the more fit to engage the attention of the People, and coalesce with the ancient principles of the Constitution.

Under Henry the Fifth, the Nation was entirely taken up with its wars against France; and in the reign of Henry the Sixth began the fatal contests between the houses of York and Lancaster. The noise of arms alone was now to be heard: during the silence of the laws already in being, no thought was had of enacting new ones; and for thirty years together, England presents a wide scene of slaughter and desolation.

At length, under Henry the Seventh, who, by his intermarriage with the house of York, united the pretensions of the two families, a general peace was re-established, and the prospect of happier days seemed to open on the Nation. But the long and violent agitation under which it had laboured, was to be followed by a long and painful recovery. Henry, mounting the throne with sword in hand, and in great measure as a Conqueror, had promises to fulfil, as well as injuries to avenge. In the mean time, the People, wearied out by the calamities they had undergone, and longing only for repose, abhorred even the idea of resistance; so that the remains of an almost exterminated Nobility beheld themselves left defenceless, and abandoned to the mercy of the Sovereign.

The Commons, on the other hand, accustomed to act only a second part in public affairs, and finding themselves bereft of those who had hitherto been their Leaders, were more than ever afraid to form, of themselves, an opposition. Placed immediately, as well as the Lords, under the eye of the King, they beheld themselves exposed to the same dangers. Like them, therefore, they purchased their personal security at the expence of public liberty; and in reading the history of the two first Kings of the house of Tudor, we imagine ourselves reading the relation given by Tacitus, of Tiberius and the Roman Senate (a) .

The time, therefore, seemed to be arrived, at which England must submit, in its turn, to the fate of the other Nations of Europe. All those barriers which it had raised for the defence of its liberty, seemed to have only been able to postpone the inevitable effects of Power.

But the remembrance of their ancient laws, of that great charter so often and so solemnly confirmed, was too deeply impressed on the minds of the English, to be effaced by transitory evils. Like a deep and extensive ocean, which preserves an equability of temperature amidst all the vicissitudes of seasons, England still retained those principles of liberty which were so universally diffused through all orders of the People, and they required only a proper opportunity to manifest themselves.

England, besides, still continued to possess the immense advantage of being one undivided State.

Had it been, like France, divided into several distinct dominions, it would also have had several National Assemblies. These Assemblies, being convened at different times and places, for this and other reasons, never could have acted in concert; and the power of withholding subsidies, a power so important when it is that of disabling the Sovereign and binding him down to inaction, would then have only been the destructive privilege of irritating a Master who would have easily found means to obtain supplies from other quarters.

The different Parliaments or Assemblies of these several States, having thenceforth no means of recommending themselves to their Sovereign but their forwardness in complying with his demands, would have vied with each other in granting what it would not only have been fruitless, but even highly dangerous, to refuse. The King would not have failed soon to demand, as a tribute, a gift he must have been confident to obtain; and the outward form of consent would have been left to the People only as an additional means of oppressing them without danger.

But the King of England continued, even in the time of the Tudors, to have but one Assembly before which he could lay his wants, and apply for relief. How great soever the increase of his power was, a single Parliament alone could furnish him with the means of exercising it; and whether it was that the members of this Parliament entertained a deep sense of their advantages, or whether private interest exerted itself in aid of patriotism, they at all times vindicated the right of granting, or rather refusing, subsidies; and, amidst the general wreck of every thing they ought to have held dear, they at least clung obstinately to the plank which was destined to prove the instrument of their preservation.

Under Edward the Sixth, the absurd tyrannical laws against High Treason, instituted under Henry the Eighth, his predecessor, were abolished.2 But this young and virtuous Prince having soon passed away, the blood-thirsty Mary astonished the world with cruelties, which nothing but the fanaticism of a part of her subjects could have enabled her to execute.

Under the long and brilliant reign of Elizabeth, England began to breathe anew; and the Protestant religion, being seated once more on the throne, brought with it some more freedom and toleration.

The Star-Chamber, that effectual instrument of the tyranny of the two Henries, yet continued to subsist; the inquisitorial tribunal of the High Commission was even instituted; and the yoke of arbitrary power lay still heavy on the subject. But the general affection of the people for a Queen whose former misfortunes had created such a general concern, the imminent dangers which England escaped, and the extreme glory attending that reign, lessened the sense of such exertions of authority as would, in these days, appear the height of Tyranny, and served at that time to justify, as they still do excuse, a Princess whose great talents, though not her principles of government, render her worthy of being ranked among the greatest Sovereigns.

Under the reign of the Stuarts, the Nation began to recover from its long lethargy. James the First, a prince rather imprudent than tyrannical, drew back the veil which had hitherto disguised so many usurpations, and made an ostentatious display of what his predecessors had been contented to enjoy.

He was incessantly asserting, that the authority of Kings was not to be controuled, any more than that of God himself. Like Him, they were omnipotent; and those privileges to which the people so clamorously laid claim, as their inheritance and birthright, were no more than an effect of the grace and toleration of his royal ancestors (a) .

Those principles, hitherto only silently adopted in the Cabinet, and in the Courts of Justice, had maintained their ground in consequence of this very obscurity. Being now announced from the Throne, and resounded from the pulpit, they spread an universal alarm. Commerce, besides, with its attendant arts, and above all that of printing, diffused more salutary notions throughout all orders of the people; a new light began to rise upon the Nation; and that spirit of opposition frequently displayed itself in this reign, to which the English Monarchs had not, for a long time past, been accustomed.

But the storm, which was only gathering in clouds during the reign of James, began to mutter under Charles the First, his successor; and the scene which opened to view, on the accession of that Prince, presented the most formidable aspect.

The notions of religion, by a singular concurrence, united with the love of liberty: the same spirit which had made an attack on the established faith, now directed itself to politics: the royal prerogatives were brought under the same examination as the doctrines of the Church of Rome had been submitted to; and as a superstitious religion had proved unable to support the test, so neither could an authority pretended unlimited, be expected to bear it.

The Commons, on the other hand, were recovering from the astonishment into which the extinction of the power of the Nobles had, at first, thrown them. Taking a view of the state of the Nation, and of their own, they became sensible of their whole strength; they determined to make use of it, and to repress a power which seemed, for so long a time, to have levelled every barrier. Finding among themselves Men of the greatest capacity, they undertook that important task with method and by constitutional means; and thus had Charles to cope with a whole Nation put in motion and directed by an assembly of Statesmen.

And here we must observe how different were the effects produced in England, by the annihilation of the power of the Nobility, from those which the same event had produced in France.

In France, where, in consequence of the division of the People and of the exorbitant power of the Nobles, the people were accounted nothing, when the Nobles themselves were suppressed, the work was compleated.

In England, on the contrary, where the Nobles ever vindicated the rights of the People equally with their own,—in England, where the People had successively acquired most effectual means of influencing the motions of the Government, and above all were undivided, when the Nobles themselves were cast to the ground, the body of the People stood firm, and maintained the public liberty.

The unfortunate Charles, however, was totally ignorant of the dangers which surrounded him. Seduced by the example of the other Sovereigns of Europe, he was not aware how different, in reality, his situation was from theirs: he had the imprudence to exert with rigour an authority which he had no ultimate resources to support: an union was at last effected in the Nation; and he saw his enervated prerogatives dissipated with a breath (a) . By the famous act, called the Petition of Right, and another posterior Act,3 to both which he assented, the compulsory loans and taxes, disguised under the name of Benevolences, were declared to be contrary to law; arbitrary imprisonments, and the exercise of the martial law, were abolished; the Court of High Commission, and the Star-Chamber, were suppressed (a) ; and the Constitution, freed from the apparatus of despotic powers with which the Tudors had obscured it, was restored to its ancient lustre. Happy had been the People if their Leaders, after having executed so noble a work, had contented themselves with the glory of being the benefactors of their Country. Happy had been the King, if obliged at last to submit, his submission had been sincere, and if he had become sufficiently sensible, that the only resource he had left was the affection of his subjects.

But Charles knew not how to survive the loss of a power he had conceived to be indisputable: he could not reconcile himself to limitations and restraints so injurious, according to his notions, to sovereign authority. His discourse and conduct betrayed his secret designs; distrust took possession of the Nation; certain ambitious persons availed themselves of it to promote their own views; and the storm, which seemed to have blown over, burst forth anew. The contending fanaticism of persecuting sects, joined in the conflict between regal haughtiness and the ambition of individuals; the tempest blew from every point of the compass; the Constitution was rent asunder, and Charles exhibited in his fall an awful example to the Universe.

The Royal power being thus annihilated, the English made fruitless attempts to substitute a republican Government in its stead. “It was a curious spectacle,” says Montesquieu, “to behold the vain efforts of the English to establish among themselves a Democracy.”4 Subjected, at first, to the power of the principal Leaders in the Long Parliament, they saw that power expire, only to pass, without bounds, into the hands of a Protector. They saw it afterwards parcelled out among the Chiefs of different bodies of troops; and thus shifting without end from one kind of subjection to another, they were at length convinced, that an attempt to establish liberty in a great Nation, by making the people interfere in the common business of Government, is of all attempts the most chimerical; that the authority of all, with which Men are amused, is in reality no more than the authority of a few powerful individuals who divide the Republic among themselves; and they at last rested in the bosom of the only Constitution which is fit for a great State and a free People; I mean that in which a chosen number deliberate, and a single hand executes; but in which, at the same time, the public satisfaction is rendered, by the general relation and arrangement of things, a necessary condition of the duration of Government.

Charles the Second, therefore, was called over; and he experienced, on the part of the people, that enthusiasm of affection which usually attends the return from a long alienation. He could not however bring himself to forgive them the inexpiable crime of which he looked upon them to have been guilty. He saw with the deepest concern that they still entertained their former notions with regard to the nature of the royal prerogative; and, bent upon the recovery of the ancient powers of the Crown, he only waited for an opportunity to break those promises which had procured his restoration.

But the very eagerness of his measures frustrated their success. His dangerous alliances on the Continent, and the extravagant wars in which he involved England, joined to the frequent abuse he made of his authority, betrayed his designs. The eyes of the Nation were soon opened, and saw into his projects; when, convinced at length that nothing but fixed and irresistible bounds can be an effectual check on the views and efforts of Power, they resolved finally to take away those remnants of despotism which still made a part of the regal prerogative.

The military services due to the Crown, the remains of the ancient feudal tenures, had been already abolished: the laws against heretics were now repealed; the Statute for holding parliaments once at least in three years was enacted; the Habeas Corpus Act, that barrier of the Subject’s personal safety, was established; and, such was the patriotism of the Parliaments, that it was under a King the most destitute of principle, that liberty received its most efficacious supports.5

At length, on the death of Charles, began a reign which affords a most exemplary lesson both to Kings and People. James the Second, a prince of a more rigid disposition, though of a less comprehensive understanding, than his late brother, pursued still more openly the project, which had already proved so fatal to his family. He would not see that the great alterations which had successively been effected in the Constitution, rendered the execution of it daily more and more impracticable: he imprudently suffered himself to be exasperated at a resistance he was in no condition to overcome; and, hurried away by a spirit of despotism and a monkish zeal, he ran headlong against the rock which was to wreck his authority.

He not only used, in his declarations, the alarming expressions of Absolute Power and Unlimited Obedience—he not only usurped to himself a right to dispense with the laws; but moreover sought to convert that destructive pretension to the destruction of those very laws which were held most dear by the Nation, by endeavouring to abolish a religion for which they had suffered the greatest calamities, in order to establish on its ruins a mode of faith which repeated Acts of the Legislature had proscribed; and proscribed, not because it tended to establish in England the doctrines of Transubstantiation and Purgatory, doctrines in themselves of no political moment, but because the unlimited power of the Sovereign had always been made one of its principal tenets.

To endeavour therefore to revive such a Religion, was not only a violation of the laws, but was, by one enormous violation, to pave the way for others of a still more alarming nature. Hence the English, seeing that their liberty was attacked even in its first principles, had recourse to that remedy which reason and na-ture point out to the People, when he who ought to be the guardian of the laws becomes their destroyer: they withdrew the allegiance which they had sworn to James, and thought themselves absolved from their oath to a King who himself disregarded the oath he had made to his People.

But, instead of a revolution like that which dethroned Charles the First, which was effected by a great effusion of blood, and threw the state into a general and terrible convulsion, the dethronement of James proved a matter of short and easy operation. In consequence of the progressive information of the People, and the certainty of the principles which now directed the Nation, the whole were unanimous. All the ties by which the People were bound to the throne, were broken, as it were, by one single shock; and James, who, the moment before, was a Monarch surrounded by subjects, became at once a simple individual in the midst of the Nation.

That which contributes, above all, to distinguish this event as singular in the annals of Mankind, is the moderation, I may even say, the legality which accompanied it. As if to dethrone a King who sought to set himself above the Laws, had been a natural consequence of, and provided for by, the principles of Government, every thing remained in its place; the Throne was declared vacant, and a new line of succession was established.6

Nor was this all; care was had to repair the breaches that had been made in the Constitution, as well as to prevent new ones; and advantage was taken of the rare opportunity of entering into an original and express compact between King and People.

An Oath was required of the new King, more precise than had been taken by his predecessors; and it was consecrated as a perpetual formula of such oaths. It was determined, that to impose taxes without the consent of Parliament, as well as to keep up a standing army in time of peace, are contrary to law. The power which the Crown had constantly claimed, of dispensing with the laws, was abolished. It was enacted, that the subject, of whatever rank or degree, had a right to present petitions to the King (a) . Lastly, the key-stone was put to the arch, by the final establishment of the Liberty of the Press7(a) .

The Revolution of 1689 is therefore the third grand aera in the history of the Constitution of England. The great charter had marked out the limits within which the Royal authority ought to be confined; some outworks were raised in the reign of Edward the First; but it was at the Revolution that the circumvallation was compleated.

It was at this aera, that the true principles of civil society were fully established. By the expulsion of a King who had violated his oath, the doctrine of Resistance, that ultimate resource of an oppressed People, was confirmed beyond a doubt. By the exclusion given to a family hereditarily despotic, it was finally determined, that Nations are not the property of Kings. The principles of Passive Obedience, the Divine and indefeasible Right of Kings, in a word, the whole scaffolding of false and superstitious notions by which the Royal authority had till then been supported, fell to the ground, and in the room of it were substituted the more solid and durable foundations of the love of order, and a sense of the necessity of civil government among Mankind.

[1. ]De Lolme refers to the parliamentary impeachment and conviction of Lord Latimer in 1377, which was conventionally treated as the first recorded instance of the impeachment process.

[(a) ]Quanto quis illustrior, tanto magis falsi ac festinantes. [[“The more exalted the personage, the grosser his hypocrisy and his haste.” De Lolme cites the Annals, book 1, chapter 7, of the Roman historian Publius, or Gaius, Cornelius Tacitus (ca. 56–ca. 117 c.e.).

]]

[2. ]The Treasons Act of 1547, passed in the first year of Edward VI’s reign, repealed several Henrician laws granting the crown new legal powers, including provisions of the 1534 statute concerning high treason.

[(a) ]See his Declaration made in Parliament, in the years 1610 and 1621. [[De Lolme refers to two extended criticisms of parliamentary deliberations by James I that extolled the divine origins and power of kings and gained reputation as unqualified statements of royal absolutism. See “Speech to Parliament of . . . 1610” and “His Majesties Declaration, Touching his Proceedings in the Late . . . Parliament,” in King James VI and I, Political Writings, ed. Johann P. Sommerville (Cambridge: Cambridge University Press, 1994), 179–203, 250–67.

]]

[(a) ]It might here be objected, that when, under Charles the First, the regal power was obliged to submit to the power of the People, the king possessed other dominions besides England, viz. Scotland and Ireland, and therefore seemed to enjoy the same advantage as the Kings of France, that of reigning over a divided Empire or Nation. But, to this it is to be answered, that, at the time we mention, Ireland, scarcely civilized, only increased the necessities, and consequently the dependance, of the King; while Scotland, through the conjunction of peculiar circumstances, had thrown off her obedience. And though those two States, even at present, bear no proportion to the compact body of the Kingdom of England, and seem never to have been able, by their union with it, to procure to the King any dangerous resources, yet, the circumstances which took place in both at the time of the Revolution, or since, sufficiently prove that it was no unfavourable circumstance to English liberty, that the great crisis of the reign of Charles the First, and the great advance which the Constitution was to make at that time, should precede the period at which the King of England might have been able to call in the assistance of two other Kingdoms.

[3. ]The 1628 Petition of Right, promulgated by Parliament, technically was not an act or statute, but a statement of liberties that the king’s current policies violated. The “posterior Act” refers to several statutes enacted in 1641–42 in the years immediately prior to the outbreak of civil war.

[(a) ]The Star-Chamber differed from all the other Courts of Law in this: the latter were governed only by the common law, or immemorial custom, and Acts of Parliament; whereas the former often admitted for law the proclamations of the King in Council, and grounded its judgments upon them. The abolition of this Tribunal, therefore, was justly looked upon as a great victory over regal Authority. [[De Lolme’s characterization here is too casual. Star Chamber was not the only court in England that did not adhere to common law customs and procedures; however, it was distinctive in its relation to the royal prerogative and the perceived threats of monarchic tyranny. The legislation abolishing the court was enacted in 1641.

]]

[4. ]Montesquieu’s comments appeared in his 1748 The Spirit of the Laws, book 3, chapter 3.

[5. ]De Lolme refers to the following measures: the 1660 statute for the Abolition of Military Tenures, the 1672 Declaration of Indulgence, the 1664 Triennial Act, and the 1679 Habeas Corpus Amendment Act.

[6. ]De Lolme’s characterization of the removal of James II follows the purposefully moderate language of the 1688/89 Bill of Rights, which similarly emphasized the vacancy of the crown that resulted when James II “abdicated the government.”

[(a) ]The Lords and Commons, previous to the Coronation of King William and Queen Mary, had framed a Bill which contained a declaration of the rights which they claimed in behalf of the People, and was in consequence called the Bill of Rights. This Bill contained the Articles above, as well as some others, and having received afterwards the Royal assent, became an Act of Parliament, under the title of An Act declaring the Rights and Liberties of the Subject, and settling the Succession of the Crown.—A. 1 William and Mary, Sess. 2. Cap. 2. [[As a measure adopted by the Lords and Commons in the period after the “abdication” of James II but before the coronation of William and Mary, the 1688/89 Bill of Rights could not receive royal assent and therefore did not qualify as an Act of Parliament. Its subsequent inclusion in the 1689 statute “settling the succession of the crown” served to overcome this legal obstacle. The Bill of Rights, to which De Lolme refers frequently, served as a constitutional cornerstone of the Glorious Revolution, which transferred the crown from the Catholic James II to the Protestant William and Mary.

]]

[7. ]De Lolme returns to the topic of liberty of the press in book 2, chapter 12, where he explains at length the novelty and importance of this form of public freedom.

[(a) ]The liberty of the press was, properly speaking, established only four years afterwards, in consequence of the refusal which the Parliament made at that time to continue any longer the restrictions which had before been set upon it. [[Liberty of the press was not directly treated in any of the legislation enacted at the time of the Glorious Revolution. De Lolme’s note refers to the parliamentary decision of 1695 not to renew the Licensing Act of 1685 that guided the system of prepublication censorship of printed materials. De Lolme’s dating of the development (“only four years afterwards”) appears to confuse the final lapsing of the Licensing Act in 1695 with the 1692 statute that renewed the act for a two-year period.

]]