Front Page Titles (by Subject) CHAPTER VIII: New Restrictions. - The Constitution of England; Or, an Account of the English Government
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CHAPTER VIII: New Restrictions. - Jean Louis De Lolme, The Constitution of England; Or, an Account of the English Government 
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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The Commons, however, have not intirely relied on the advantages of the great prerogative with which the Constitution has intrusted them.
Though this prerogative is, in a manner, out of danger of an immediate attack, they have nevertheless shewn at all times the greatest jealousy on its account. They never suffer, as we have observed before, a money-bill to begin any where but with themselves; and any alteration that may be made in it, in the other House, is sure to be rejected. If the Commons had not most strictly reserved to themselves the exercise of a prerogative on which their very existence depends, the whole might at length have slidden into that other body which they might have suffered to share in it equally with them. If any other persons besides the Representatives of the People, had had a right to make an offer of the produce of the labour of the people, the executive Power would soon have forgot, that it only exists for the advantage of the public (a) .
Besides, though this prerogative has of itself, we may say, an irresistible efficiency, the Parliament has neglected nothing that may increase it, or at least the facility of its exercise; and though they have allowed the general prerogatives of the Sovereign to remain undisputed, they have in several cases endeavoured to restrain the use he might make of them, by entering with him into divers express and solemn conventions for that purpose (a) .
Thus, the King is indisputably invested with the exclusive right of assembling Parliaments: yet he must assemble one, at least once in three years; and this obligation on the King, which was, we find, insisted upon by the People in very early times, has been since confirmed by a act passed in the sixteenth year of the reign of Charles the Second.1
Moreover, as the most fatal consequences might ensue, if laws which might most materially affect public liberty, could be enacted in Parliaments abruptly and imperfectly summoned, it has been established that the Writs for assembling a Parliament must be issued forty days at least before the first meeting of it. Upon the same principle it has also been enacted, that the King cannot abridge the term he has once fixed for a prorogation, except in the two following cases, viz. of a rebellion, or of imminent danger of a foreign invasion; in both which cases a fourteen days notice must be given (a) .
Again, the King is the head of the Church; but he can neither alter the established religion, or call individuals to an account for their religious opinions (b) . He cannot even profess the religion which the Legislature has particularly forbidden; and the Prince who should profess it, is declared incapable of inheriting, possessing, or enjoying, the Crown of these Kingdoms(c) .
The King is the first Magistrate; but he can make no change in the maxims and forms consecrated by law or custom: he cannot even influence, in any case whatever, the decision of causes between subject and subject; and James the First, assisting at the Trial of a cause, was reminded by the Judge, that he could deliver no opinion (d) .2 Lastly, though crimes are prosecuted in his name, he cannot refuse to lend it to any particular persons who have complaints to prefer.
The King has the privilege of coining money; but he cannot alter the standard.
The King has the power of pardoning offenders; but he cannot exempt them from making a compensation to the parties injured. It is even established by law, that, in a case of murder, the widow, or next heir, shall have a right to prosecute the murderer; and the King’s pardon, whether it preceded the Sentence passed in consequence of such prosecution, or whether it be granted after it, cannot have any effect (a) .
The King has the military power; but still with respect to this, he is not absolute. It is true, in regard to the sea-forces, as there is in them this very great advantage, that they cannot be turned against the liberty of the Nation, at the same time that they are the surest bulwark of the island, the King may keep them as he thinks proper; and in this respect he lies only under the general restraint of applying to Parliament for obtaining the means of doing it. But in regard to land forces, as they may become an immediate weapon in the hands of Power, for throwing down all the barriers of public liberty, the King cannot raise them without the consent of Parliament. The guards of Charles the Second were declared anti-constitutional (b) ; and James’s army was one of the causes of his being at length dethroned (c) .3
In these times however, when it is become a custom with Princes to keep those numerous armies which serve as a pretext and means of oppressing the People, a State that would maintain its independence, is obliged, in great measure, to do the same. The Parliament has therefore thought proper to establish a standing body of troops, which amounts to about thirty thousand Men, of which the King has the command.
But this army is only established for one year; at the end of that term, it is (unless re-established) to be ipso facto disbanded; and as the question which then lies before Parlia-ment, is not, whether the army shall be dissolved, but whether it shall be established anew, as if it had never existed, any one of the three branches of the Legislature may, by its dissent, hinder its continuance.
Besides, the funds for the payment of this body of troops, are to be raised by taxes that never are established for more than one year (a) ; and it becomes likewise necessary, at the end of this term, again to establish them (b) . In a word, this instrument of defence, which the circumstances of modern times have caused to be judged necessary, being capable, on the other hand, of being applied to the most dangerous purposes, has been joined to the State by only a slender thread, the knot of which may be slipped, on the first appearance of danger (c) .
But these laws which limit the King’s authority, would not, of themselves, have been sufficient. As they are, after all, only intellectual barriers, which it is possible that the King might not at all times respect, as the check which the Commons have on his proceedings, by a refusal of subsidies, affects too much the whole State, to be exerted on every particular abuse of his power; and lastly, as even this means might in some degree be eluded, either by breaking the promises which have procured subsidies, or by applying them to uses different from those for which they were appointed, the Constitution has besides supplied the Commons with a means of immediate opposition to the misconduct of Government, by giving them a right to impeach the Ministers.
It is true, the King himself cannot be arraigned before Judges; because, if there were any that could pass sentence upon him, it would be they, and not he, who must finally possess the executive power: but, on the other hand, the King cannot act without Ministers; it is therefore those Ministers, that is, those indispensable instruments, whom they attack.
If, for example, the public money has been employed in a manner contrary to the declared intention of those who granted it, an impeachment may be brought against those who had the management of it. If any abuse of power is committed, or in general any thing done contrary to the public weal, they prosecute those who have been either the instruments, or the advisers of the measure (a) .
But who shall be the Judges to decide in such a cause? What Tribunal will flatter itself, that it can give an impartial decision, when it shall see, appearing at its bar, the Government itself as the accused, and the Representatives of the People, as the accusers?
It is before the House of Peers that the Law has directed the Commons to carry their accusation; that is, before Judges whose dignity, on the one hand, renders them independent, and who, on the other, have a great honour to support in that awful function where they have all the Nation for spectators of their conduct.
When the impeachment is brought to the Lords, they commonly order the person accused to be imprisoned. On the day appointed, the Deputies of the House of Commons, with the person impeached, make their appearance: the impeachment is read in his presence; Counsel are allowed him, as well as time, to prepare for his defence; and at the expiration of this term, the trial goes on from day to day, with open doors, and every thing is communicated in print to the public.
But whatever advantage the law grants to the person impeached for his justification, it is from the intrinsic merits of his conduct that he must draw his arguments and proofs. It would be of no service to him, in order to justify a criminal conduct, to alledge the commands of the Sovereign; or, pleading guilty with respect to the measures imputed to him, to produce the Royal pardon (a) . It is against the Administration itself that the impeachment is carried on; it should therefore by no means interfere: the King can neither stop nor suspend its course, but is forced to behold, as an inactive spectator, the discovery of the share which he may himself have had in the illegal proceedings of his servants, and to hear his own sentence in the condemnation of his Ministers.
An admirable expedient! which, by removing and punishing corrupt Ministers, affords an immediate remedy for the evils of the State, and strongly marks out the bounds within which Power ought to be confined; which takes away the scandal of guilt and authority united, and calms the people by a great and awful act of Justice: an expedient, in this respect especially, so highly useful, that it is to the want of the like, that Machiavel attributes the ruin of his Republic.4
But all these general precautions to secure the rights of the Parliament, that is, those of the Nation itself, against the efforts of the executive Power, would be vain, if the Members themselves remained personally exposed to them. Being unable openly to attack, with any safety to itself, the two legislative bodies, and by a forcible exertion of its prerogatives, to make, as it were, a general assault, the executive power might, by subdividing the same prerogatives, gain an entrance, and sometimes by interest, and at others by fear, guide the general will, by influencing that of individuals.
But the laws which so effectually provide for the safety of the People, provide no less for that of the Members, whether of the House of Peers, or that of the Commons. There are not known in England, either those Commissaries, who are always ready to find those guilty whom the wantonness of ambition points out, nor those secret imprisonments which are, in other Countries, the usual expedients of Government. As the forms and maxims of the Courts of Justice are strictly prescribed, and every individual has an invariable right to be judged according to Law, he may obey without fear the dictates of public virtue. Lastly, what crowns all these precautions, is its being a fundamental maxim, “That the freedom of speech, and debates and proceedings in Parliament, ought not to be impeached or questioned in any Court or place out of Parliament” (a) .
The legislators, on the other hand, have not forgot that interest, as well as fear, may impose silence on duty. To prevent its effects, it has been enacted, that all persons concerned in the management of any taxes created since 1692, commissioners of prizes, navy, victualling office, &c. comptrollers of the army accounts, agents for regiments, the clerks in the different offices of the revenue, any persons that hold any new office under the Crown, created since 1705, or having a pension under the Crown, during pleasure, or for any term of years, are incapable of being elected Members. Besides, if any Member accepts an office under the Crown, except it be an Officer in the army or navy accepting a new commission, his seat becomes void; though such Member is capable of being re-elected.5
Such are the precautions hitherto taken by the Legislators, for preventing the undue influence of the great prerogative of disposing of rewards and places; precautions which have been successively taken, according as circumstances have shewn them to be necessary; and which we may thence suppose, are owing to causes powerful enough to produce the establishment of new ones, whenever circumstances shall point out the necessity of them (a) .
[(a) ]As the Crown has the undisputed prerogative of assenting to, and dissenting from, what bills it thinks proper, as well as of convening, proroguing, and dissolving, the Parliament, whenever it pleases, the latter have no assurance of having a regard paid to their Bills, or even of being allowed to assemble, but what may result from the need the Crown stands in of their assistance: the danger, in that respect, is even greater for the Commons than for the Lords, who enjoy a dignity which is hereditary, as well as inherent to their persons, and form a permanent Body in the State; whereas the Commons completely vanish, whenever a dissolution takes place: there is, therefore, no exaggeration in what has been said above, that their very being depends on their power of granting subsidies to the Crown.
[(a) ]Laws made to bind such Powers in a State, as have no superior power by which they may be legally compelled to the execution of them (for instance, the Crown, as circumstanced in England) are nothing more than general conventions, or treaties, made with the Body of the People.
[1. ]De Lolme refers to a statute of 1664, which modified the earlier Triennial Act of 1641 and required the king to summon Parliament at least every three years.
[(a) ]Stat. 30 Geo. II. c. 25. [[The statute—“An Act of the better ordering of the Militia”—was enacted in 1757. De Lolme refers to provisions contained in section 46 of the act.]]
[(b) ]The Convocation, or assembly of the Clergy, of which the King is the head, can only regulate such affairs as are merely ecclesiastical; they cannot touch the Laws, Customs, and Statutes, of the Kingdom.—Stat. 25 Hen. VIII. c. 19. [[De Lolme refers to the 1534 “Act for the Submission of the clergy to the King’s Majesty,” which was one of the series of Henrician statutes that helped secure the separation of the church and clergy in England from the Roman Catholic Church and the constitutional supremacy of the monarch over the Anglican Church.]]
[(c) ]1 Will. and M. Stat. 2. c. 2. [[De Lolme refers to the 1688/89 Bill of Rights that specifically excluded a Roman Catholic, or anyone married to a Roman Catholic, from occupying the throne.]]
[(d) ]These principles have since been made an express article of an Act of Parliament; the same which abolished the Star Chamber. “Be it likewise declared and enacted, by the authority of this present Parliament, That neither his Majesty, nor his Privy Council, have, or ought to have any jurisdiction, power, or authority, to examine or draw into question, determine, or dispose of the lands, tenements, goods, or chattels, of any of the subjects of this Kingdom.”—Stat. A. 16. ch. i. cap. 10. § 10. [[De Lolme refers (though his citation is incorrect) to the 1641 legislation that limited the legal authority of the king’s Privy Council and abolished the court of Star Chamber and other courts associated with the king’s prerogative power.]]
[2. ]De Lolme likely refers to a celebrated incident of 1607, posthumously reported in the Twelfth Part of the Reports of Sir Edward Coke (1656), when Coke, then chief justice of the Court of Common Pleas, informed James I “that the King in his own person cannot adjudge any case betwixt party and party. . . . but this ought to be determined and adjudged in some Court of Justice, according to the Law and Custom of England” (The Selected Writings of Sir Edward Coke, ed. Steve Sheppard, 3 vols. [Indianapolis: Liberty Fund, 2003], 1:479).
[(a) ]The method of prosecution mentioned here, is called an Appeal; it must be sued within a year and a day after the completion of the crime. [[The appeal of murder was one of several (largely obsolete) forms of criminal prosecution in which a private party, as opposed to the state represented by the crown, initiated the proceeding. Since in these cases the king did not prosecute the offense, the power of royal pardon could not be exercised.]]
[(b) ]He had carried them to the number of four thousand Men.
[(c) ]A new sanction has been given to the above restriction, in the sixth Article of the Bill of Rights: “A standing army, without the consent of Parliament, is against law.”
[3. ]The size of the king’s army during periods of war and the existence of a standing army during periods of peace were frequent objects of political controversy during the reigns of Charles II (1660–85) and James II (1685–88). The “anti-constitutional” nature of Charles II’s guards may refer to grievances sent by the House of Commons to the king in 1673 and 1674, protesting Charles’s army policies.
[(a) ]The land-tax, and malt tax.
[(b) ]It is also necessary that the Parliament, when they renew the Act called the Mutiny Act, should authorise the different Courts Martial to punish military offences, and desertion. It can therefore refuse the King even the necessary power of military discipline.
[(c) ]To these laws, or rather conventions, between King and People, I shall add here the Oath which the King takes at his Coronation; a compact which, if it cannot have the same precision as the laws we have related above, yet in a manner comprehends them all, and has the farther advantage of being declared with more solemnity.The archbishop or bishop shall say, Will you solemnly promise and swear to govern the people of this Kingdom of England, and the dominions thereto belonging, according to the Statutes in Parliament agreed on, and the laws and customs of the same?—The king or queen shall say, I solemnly promise so to do.Archbishop or bishop. Will you to your power cause law and justice, in mercy, to be executed in all your judgments?—King or queen. I will.Archbishop or bishop. Will you to the utmost of your power maintain the laws of God, the true profession of the gospel, and the protestant reformed religion established by the law? And will you preserve unto the bishops and clergy of this realm, and to the churches committed to their charge, all such rights and privileges as by law do or shall appertain unto them, or any of them?—King or queen. All this I promise to do.After this the king or queen, laying his or her hand upon the holy gospels, shall say, The things which I have here before promised I will perform and keep: so help me God. And then shall kiss the book. [[De Lolme quotes the revised form of the Coronation Oath adopted by statute for the accession of Queen Mary and King William III in 1688/89.]]
[(a) ]It was upon these principles that the Commons, in the beginning of this century, impeached the Earl of Oxford, who had advised the Treaty of Partition, and the Lord Chancellor Somers, who had affixed the great-seal to it. [[Admiral Edward Russell, the Earl of Orford, and Lord Chancellor Sir John Somers were impeached in 1701 as part of the political attack on the Partition Treaties of 1698 and 1700, which had been secretly negotiated by Britain, France, and the United Provinces. (De Lolme’s note mistakenly identifies “the Earl of Oxford” for “the Earl of Orford.” Robert Harley, the Earl of Oxford, was impeached in 1717, in a proceeding that did not concern the Partition Treaty.)]]
[(a) ]This point in ancient times was far from being clearly settled. In the year 1678, the Commons having impeached the Earl of Danby, he pleaded the King’s pardon in bar to that impeachment: great altercations ensued on that subject, which were terminated by the dissolution of that Parliament. It has been since enacted, (Stat. 12 and 13 W. III. c. 2) “that no pardon under the great-seal can be pleaded in bar to an impeachment by the House of Commons.” [[De Lolme quotes from Article 3 of the 1701 Act of Settlement, which settled the previously unresolved issue of whether a royal pardon could be pleaded to prevent a Parliamentary impeachment.
[4. ]By “his Republic” De Lolme apparently references Machiavelli’s native Florence. The repeated failures in Florence to control the abuses of powerful citizens were treated by Machiavelli in his 1525 History of Florence, book 3, chapters 5–6.
[(a) ]Bill of Rights. Art. 9. [[De Lolme refers to the 1688/89 Bill of Rights, which identified this freedom as one of Parliament’s “ancient rights and liberties.”]]
[5. ]In the period after 1688, Parliament frequently debated and enacted legislation designed to preserve the independence and integrity of Parliament by preventing those holding profitable office in the king’s administration from serving in the House of Commons. De Lolme refers here to the provisions of the 1701 Act of Settlement and its 1706 statutory revision.
[(a) ]Nothing can be a better proof of the efficacy of the causes that produce the liberty of the English, and which will be explained hereafter, than those victories which the Parliament from time to time gains over itself, and in which the Members, forgetting all views of private ambition, only think of their interest as subjects.