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 VII

The same Subject continued.

But this force of the prerogative of the Commons, and the facility with which it may be exerted, however necessary they may have been for the first establishment of the Constitution, might prove too considerable at present, when it is requisite only to support it. There might be the danger, that, if the Parliament should ever exert their privilege to its full extent, the Prince, reduced to despair, might resort to fatal extremities; or that the Constitution, which subsists only by virtue of its equilibrium, might in the end be subverted.

Indeed this is a case which the prudence of Parliament has foreseen. They have, in this respect, imposed laws upon themselves; and without touching their prerogative itself, they have moderated the exercise of it. A custom has for a long time prevailed, at the beginning of every reign, and in the kind of overflowing of affection which takes place between a King and his first Parliament, to grant the King a revenue for his life; a provision which, with respect to the great exertions of his power, does not abridge the influence of the Commons, but yet puts him in a condition to support the dignity of the Crown, and affords him, who is the first Magistrate in the Nation, that independence which the laws insure also to those Magistrates who are particularly intrusted with the administration of Justice (a) .

This conduct of the Parliament provides an admirable remedy for the accidental disorders of the State. For though, by the wise distribution of the powers of Government, great usurpations are become in a manner impracticable, nevertheless it is impossible but that, in consequence of the continual, though silent efforts of the Executive power to extend itself, abuses will at length slide in. But here the powers, wisely kept in reserve by the Parliament, afford the means of remedying them. At the end of each reign, the civil list, and consequently that kind of independence which it procured, are at an end. The successor finds a Throne, a Sceptre, and a Crown; but he finds neither power, nor even dignity; and before a real possession of all these things is given him, the Parliament have it in their power to take a thorough review of the State, as well as correct the several abuses that may have crept in during the preceding reign; and thus the Constitution may be brought back to its first principles.

England, therefore, by this means, enjoys one very great advantage, one that all free States have sought to procure for themselves; I mean that of a periodical reformation. But the expedients which Legislators have contrived for this purpose in other Countries, have always, when attempted to be carried into practice, been found to be productive of very disadvantageous consequences. Those laws which were made in Rome, to restore that equality which is the essence of a Democratical Government, were always found impracticable:1 the attempt alone endangered the overthrow of the Republic; and the expedient which the Florentines called ripigliar il stato,2 proved nowise happier in its consequences. This was because all those different remedies were destroyed beforehand, by the very evils they were meant to cure; and the greater the abuses were, the more impossible it was to correct them.

But the means of reformation which the Parliament of England has taken care to reserve to itself, is the more effectual, as it goes less directly to its end. It does not oppose the usurpations of prerogative, as it were, in front—it does not encounter it in the middle of its career, and in the fullest flight of its exertion: but it goes in search of it to its source, and to the principle of its action. It does not endeavour forcibly to overthrow it; it only enervates its springs.

What increases still more the mildness of the operation, is, that it is only to be applied to the usurpations themselves, and passes by, what would be far more formidable to encounter, the obstinacy and pride of the usurpers.

Every thing is transacted with a new Sovereign, who, till then, has had no share in public affairs, and has taken no step which he may conceive himself bound in honour to support. In fine, they do not wrest from him what the good of the State requires he should give up: he himself makes the sacrifice.

The truth of all these observations is remarkably confirmed by the events that followed the reign of the two last Henries. Every barrier that protected the People against the excursions of Power had been broke through. The Parliament, in their terror, had even enacted that proclamations, that is the will of the King, should have the force of laws (a) : the Constitution seemed really undone. Yet, on the first opportunity afforded by a new reign, liberty began to make again its appearance (b) . And when the Nation, at length recovered from its long supineness, had, at the accession of Charles the First, another opportunity of a change of Sovereign, that enormous mass of abuses, which had been accumulating, or gaining strength, during five successive reigns, was removed, and the ancient laws were restored.

To which add, that this second reformation, which was so extensive in its effects, and might be called a new creation of the Constitution, was accomplished without producing the least convulsion. Charles the First, in the same manner as Edward had done in former times (a) , assented to every regulation that was passed; and whatever reluctance he might at first manifest, yet the Act called the Petition of Right (as well as the Bill which afterwards completed the work) received the Royal Sanction without bloodshed.3

It is true, great misfortunes followed; but they were the effects of particular circumstances. During the time which preceded the reign of the Tudors, the nature and extent of regal authority having never been accurately defined, the exorbitant power of the Princes of that House had gradually introduced political prejudices of even an extrava-gant kind: those prejudices, having had a hundred and fifty years to take root, could not be shaken off but by a kind of general convulsion; the agitation continued after the action, and was carried to excess by the religious quarrels which arose at that time.

[(a) ]The twelve Judges.—Their commissions, which in former times were often given them durante bene placito, now must always “be made quamdiu se bene gesserint, and their salaries ascertained; but upon an address of both Houses it may be lawful to remove them.”—Stat. 13. Will. III. c. 2. [[The 1701 Act of Settlement provided the judges of the central courts of Westminster Hall with increased security of tenure and thereby strengthened the independence of the judiciary. Whereas earlier judges served “at the pleasure” of the crown, judges now held their positions “for so long as they shall well conduct themselves.” In the first year of the reign of his present Majesty, it has been moreover enacted, that the commissions of the Judges shall continue in force, notwithstanding the demise of the King; which has prevented their being dependent, with regard to their continuation in office, on the heir apparent. De Lolme refers to the statute of 1760, enacted by the first Parliament of George III, that preserved the judges’ tenure in office following the death of the monarch who first appointed the judges.

[1. ]Republican Rome had frequently enacted sumptuary laws, limiting private consumption and expenditures, in the contentious effort to preserve equality among the citizens.

[2. ]“To recover the state.”

[(a) ]Stat. 31 Hen. VIII. chap. 8. [[The legislation was enacted in 1539 and empowered the crown to issue proclamations that had the legal force of acts of Parliament and made it treasonous to disobey such edicts.

[(b) ]The laws concerning Treason, passed under Henry the Eighth, which Judge Blackstone calls “an amazing heap of wild and new-fangled treasons,” were, together with the statute just mentioned, repealed in the beginning of the reign of Edward VI. [[Blackstone, Commentaries on the Laws of England, 4:424. The legislation repealing many of the treason laws introduced under Henry VIII was enacted by the first Parliament of Edward VI in 1547.

[(a) ]Or, which is equally in point, the Duke of Somerset his uncle, who was the Regent of the Kingdom, under the name of Protector. [[Edward VI ascended the throne at the age of nine. In response, the Privy Council appointed the Duke of Somerset, Edward’s uncle, to the position of Protector of the Realm.

[3. ]The 1628 Petition of Right set out the violations of right created by the crown’s practice of using prerogative powers to raise funds in the absence of parliamentary taxation. De Lolme’s emphasis on the ease with which the measure was adopted by Parliament and accepted by the crown gives little acknowledgment of the political clashes between Charles I and the House of Commons at the opening of his reign.