The Online Library of Liberty

A project of Liberty Fund, Inc.

• 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 IV

Of the Legislative Power.

In almost all the States of Europe, the will of the Prince holds the place of law; and custom has so confounded the matter of right with the matter of fact, that their Lawyers generally represent the legislative authority as essentially attached to the character of King; and the plenitude of his power seems to them necessarily to flow from the very definition of his title.

The English, placed in more favourable circumstances, have judged differently: they could not believe that the destiny of Mankind ought to depend on a play of words, and on scholastic subtilties; they have therefore annexed no other idea to the word King, or Roy, a word known also to their laws, than that which the Latins annexed to the word Rex, and the northern Nations to that of Cyning.

In limiting therefore the power of their King, they have acted more consistently with the etymology of the word; they have acted also more consistently with reason, in not leaving the laws to the disposal of the person who is already invested with the public power of the State, that is, of the person who lies under the greatest and most important temptations to set himself above them.

The basis of the English Constitution, the capital principle on which all others depend, is that the Legislative power belongs to Parliament alone; that is to say, the power of establishing laws, and of abrogating, changing, or explaining them.

The constituent parts of Parliament are the King, the House of Lords, and the House of Commons.

The House of Commons, otherwise the Assembly of the Representatives of the Nation, is composed of the Deputies of the different Counties, each of which sends two; of the Deputies of certain Towns, of which London, including Westminster and Southwark, sends eight,—other Towns, two or one: and of the Deputies of the Universities of Oxford and Cambridge, each of which sends two.

Lastly, since the Act of Union,1 Scotland sends forty-five Deputies; who, added to those just mentioned, make up the whole number of five hundred and fifty-eight. Those Deputies, though separately elected, do not solely represent the Town or County that sends them, as is the case with the Deputies of the United Provinces of the Netherlands, or of the Swiss Cantons; but, when they are once admitted, they represent the whole body of the Nation.

The qualifications required for being a Member of the House of Commons are, for representing a County, to be born a subject of Great Britain, and to be possessed of a landed estate of six hundred pounds a year; and of three hundred, for representing a Town, or Borough.

The qualifications required for being an elector in a County, are, to be possessed, in that County, of a Freehold of forty shillings a year (a) . With regard to electors in Towns or Boroughs, they must be Freemen of them; a word which now signifies certain qualifications expressed in the particular Charters.

When the King has determined to assemble a Parliament, he sends an order for that purpose to the Lord Chancellor, who, after receiving the same, sends a writ under the great seal of England to the Sheriff of every County, directing him to take the necessary steps for the election of Members for the County, and the Towns and Boroughs contained in it. Three days after the reception of the writ, the Sheriff must, in his turn, send his precept to the Magistrates of the Towns and Boroughs, to order them to make their election within eight days after the reception of the precept, giving four days notice of the same. And the Sheriff himself must proceed to the election for the County, not sooner than ten days after the receipt of the writ, nor later than sixteen.

The principal precautions taken by the law, to insure the freedom of elections, are, that any Candidate, who after the date of the writ, or even after the vacancy, shall have given entertainments to the electors of a place, or to any of them, in order to his being elected, shall be incapable of serving for that place in Parliament. That if any person gives, or promises to give, any money, employment, or reward, to any voter, in order to influence his vote, he, as well as the voter himself, shall be condemned to pay a fine of five hundred pounds, and for ever disqualified to vote and hold any office in any corporation; the faculty however being reserved to both, of procuring their indemnity for their own offence, by discovering some other offender of the same kind.

It has been moreover established, that no Lord of Parliament, or Lord Lieutenant of a County, has any right to interfere in the elections of members; that any officer of the excise, customs, &c. who shall presume to intermeddle in elections, by influencing any voter to give or withhold his vote, shall forfeit one hundred pounds, and be disabled to hold any office. Lastly, all soldiers quartered in a place where an election is to be made, must move from it, at least one day before the election, to the distance of two miles or more, and re-turn not till one day after the election is finished.

The House of Peers, or Lords, is composed of the Lords Spiritual, who are the Archbishops of Canterbury and of York, and the twenty-four Bishops; and of the Lords Temporal, whatever may be their respective titles, such as Dukes, Marquises, Earls, &c.

Lastly, the King is the third constitutive part of Parliament: it is even he alone who can convoke it; and he alone can dissolve, or prorogue it. The effect of a dissolution is, that from that moment the Parliament completely ceases to exist; the commission given to the Members by their Constituents is at an end; and whenever a new meeting of Parliament shall happen, they must be elected anew. A prorogation is an adjournment to a term appointed by the King; till which the existence of Parliament is simply interrupted, and the function of the Deputies suspended.

When the Parliament meets, whether it be by virtue of a new summons, or whether, being composed of Members formerly elected, it meets again at the expiration of the term for which it had been prorogued, the King either goes to it in person, invested with the insignia of his dignity, or appoints proper persons to represent him on that occasion, and opens the session by laying before the Parliament the state of the public affairs, and inviting them to take them into consideration. This presence of the King, either real or represented, is absolutely requisite at the first meeting; it is it which gives life to the Legislative Bodies, and puts them in action.

The King, having concluded his declaration, withdraws. The Parliament, which is then legally intrusted with the care of the National concerns, enters upon its functions, and continues to exist till it is prorogued, or dissolved. The House of Commons, and that of Peers, assemble separately: the former, under the presidence of the Lord Chancellor; the latter, under that of their Speaker: and both separately adjourn to such days as they respectively think proper to appoint.

As each of the two Houses has a negative on the propositions made by the other, and there is, consequently, no danger of their encroaching on each other’s rights, nor on those of the King, who has likewise his negative upon them both, any question judged by them conducive to the public good, without exception, may be made the subject of their respec-tive deliberations. Such are, for instance, new limitations, or extensions, to be given to the authority of the King; the establishing of new laws, or making changes in those already in being. Lastly, the different kinds of public provisions, or establishments, the various abuses of administration, and their remedies, become, in every Session, the object of the attention of Parliament.

Here, however, an important observation must be made. All Bills for granting Money must have their beginning in the House of Commons: the Lords cannot take this object into their consideration but in consequence of a bill presented to them by the latter; and the Commons have at all times been so anxiously tenacious of this privilege, that they have never suffered the Lords even to make any change in the Money Bills which they have sent to them; and the Lords are expected simply and solely either to accept or reject them.

This excepted, every Member, in each House, may propose whatever question he thinks proper. If, after being considered, the matter is found to deserve attention, the person who made the proposition, usually with some others adjoined to him, is desired to set it down in writing. If, after more complete discussions of the subject, the proposition is carried in the affirmative, it is sent to the other House, that they may, in their turn, take it into consideration. If the other House reject the Bill, it remains without any effect: if they agree to it, nothing remains wanting to its complete establishment, but the Royal Assent.

When there is no business that requires immediate dispatch, the King usually waits till the end of the Session, or at least till a certain number of bills are ready for him, before he declares his royal pleasure. When the time is come, the King goes to Parliament in the same state with which he opened it; and while he is seated on the Throne, a Clerk, who has a list of the Bills, gives or refuses, as he reads, the Royal Assent.

When the Royal Assent is given to a public Bill, the Clerk says, le Roy le veut.2 If the bill be a private Bill, he says, soit fait comme il est désiré.3 If the Bill has subsidies for its object, he says, le Roy remercie ses loyaux Subjects, accepte leur bénévolence, & aussi le veut.4 Lastly, if the King does not think proper to assent to the Bill, the Clerk says, le Roy s’advisera;5 which is a mild way of giving a refusal.

It is, however, pretty singular, that the King of England should make use of the French language to declare his intentions to his Parliament. This custom was introduced at the Conquest (a) , and has been continued, like other matters of form, which sometimes subsist for ages after the real substance of things has been altered; and Judge Blackstone expresses himself, on this subject in the following words. “A badge, it must be owned (now the only one remaining) of Conquest; and which one would wish to see fall into total oblivion, unless it be reserved as a solemn memento to remind us that our liberties are mortal, having once been destroyed by a foreign force.”6

When the King has declared his different intentions, he prorogues the Parliament. Those Bills which he has rejected, remain without force: those to which he has assented, become the expression of the will of the highest power acknowledged in England: they have the same binding force as the Edits enrégistrés have in France (a) , and as the Populiscita had in ancient Rome:7 in a word, they are Laws. And, though each of the constituent parts of the Parliament might, at first, have prevented the existence of those laws, the united will of all the Three is now necessary to repeal them.

[1. ]The 1707 Act of Union created the “Parliament of Great Britain,” which replaced the previously independent parliaments of England and Scotland.

[(a) ]This Freehold must have been possessed by the elector one whole year at least before the time of election, except it has devolved to him by inheritance, by marriage, by a last will, or by promotion to an office.

[2. ]“The king wills it.”

[3. ]“Let it be as it is desired.”

[4. ]“The king thanks his loyal subjects, accepts their benevolence, and also wills it.”

[5. ]“The king will consider it.”

[(a) ]William the Conqueror added to the other changes he introduced, the abolition of the English language in all public, as well as judicial, transactions, and substituted to it the French that was spoke in his time: hence the number of old French words that are met with in the style of the English laws. It was only under Edward III, that the English language began to be re-established in the Courts of Justice. [[De Lolme refers to a statute of 1356, enacted in the reign of Edward III, that replaced French with English as the language for pleadings in court and with Latin as the language for written court records.

[6. ]Blackstone’s comments appeared in his chapter “Of the Parliament” in William Blackstone, Commentaries on the Laws of England, 4 vols. (1765–69), 1:177. De Lolme’s own account of Parliament’s composition and procedures drew heavily on this chapter.

[(a) ]They call in France, Edits enrégistrés, those Edicts of the King which have been registered in the Court of Parliament. The word Parliament does not however express in France, as it does in England, the Assembly of the Estates of the Kingdom. The French Parlemens are only Courts of Justice: that of Paris was instituted in the same manner, and for the same purposes, as the Aula Regis was afterwards in England, viz. for the administration of public Justice, and for deciding the differences between the King and his Barons: it was in consequence of the Judgments awarded by that Court, that the King proceeded to seize the dominions of those Lords or Princes against whom a sentence had been passed, and when he was able to effect this, united them to the Crown. The Parliament of Paris, as do the other Courts of Law, grounds its judgments upon the Edits or Ordonnances of the King, when it has once registered them. When those Ordonnances are looked upon as grievous to the Subject, the Parliament refuses to register them: but this they do not from any pretension they have to a share in the Legislative authority; they only object that they are not satisfied that the Ordonnance before them is really the will of the King, and then proceed to make remonstrances against it: sometimes the King defers to these; or, if he is resolved to put an end to all opposition, he comes in person to the Parliament, there holds what they call un Lit de Justice, declares that the Ordonnance before them is actually his will, and orders the proper Officer to register it. [[De Lolme here distinguishes the different functions and authority exercised by the institution named “Parliament” in England and in France. The French “Parlements” functioned primarily as judicial bodies. The capacity of the Parliament of Paris to criticize and delay the official registration of proposed royal legislation was not to be confused with the “share in the Legislative authority” enjoyed by the two houses of Parliament in England. The “Lit de Justice” (literally, “Bed of Justice”) denoted the session of the Parlement of Paris, under the presidency of the king, for the registration of royal edicts.

[7. ]Populiscita (or “decrees of the people”) was not a standard term of Roman law. De Lolme presumably refers to legislation approved by any one of Rome’s popular assemblies (comitia curiata, comitia centuriata, comitia tributa), in contradistinction to the plebiscitum (or “decrees of the plebs”) adopted by the concilium plebis.