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 IX

Of private Liberty, or the Liberty of Individuals.

We have hitherto only treated of general liberty, that is of the rights of the Nation as a Nation, and of its share in the Government. It now remains that we should treat particularly of a thing without which this general liberty, being absolutely frustrated in its object, would be only a matter of ostentation, and even could not long subsist, I mean the liberty of individuals.

Private Liberty, according to the division of the English Lawyers, consists, first, of the right of Property, that is of the right of enjoying exclusively the gifts of fortune, and all the various fruits of one’s industry. Secondly, of the right of Personal Security. Thirdly, of the Loco-motive Faculty, taking the word Liberty in its more confined sense.1

Each of these rights, say again the English Lawyers, is inherent in the person of every Englishman: they are to him as an inheritance, and he cannot be deprived of them, but by virtue of a sentence passed according to the laws of the land. And indeed, as this right of inheritance is expressed in English by one word (birth-right) the same as that which expresses the King’s title to the Crown, it has, in times of oppression, been often opposed to him as a right, doubtless of less extent, but of a sanction equal to that of his own.

One of the principal effects of the right of Property is, that the King can take from his subjects no part of what they possess; he must wait till they themselves grant it him: and this right, which, as we have seen before, is, by its consequences, the bulwark that protects all the others, has moreover the immediate effect of preventing one of the chief causes of oppression.

In regard to the attempts to which the right of property might be exposed from one individual to another, I believe I shall have said every thing, when I have observed, that there is no Man in England who can oppose the irresistible power of the Laws,—that, as the Judges cannot be deprived of their employments but on an accusation by Parliament, the effect of interest with the Sovereign, or with those who approach his person, can scarcely influence their decisions,—that, as the Judges themselves have no power to pass sen-tence till the matter of fact has been settled by Men nominated, we may almost say, at the common choice of the parties (a) , all private views, and consequently all respect of persons, are banished from the Courts of Justice. However, that nothing may be wanting which may help to throw light on the subject I have undertaken to treat, I shall relate, in general, what is the law in civil matters, that has taken place in England.

When the Pandects were found at Amalphi,2 the Clergy, who were then the only Men that were able to understand them, did not neglect that opportunity of increasing the influence they had already obtained, and caused them to be received in the greater part of Europe. England, which was destined to have a Constitution so different from that of other States, was to be farther distinguished by its rejecting the Roman Laws.

Under William the Conqueror, and his immediate successors, a multitude of foreign Ecclesiastics flocked to the Court of England. Their influence over the mind of the Sovereign, which, in the other States of Europe, as they were then constituted, might be considered as matter of no great importance, was not so in a Country where the Sovereign being all-powerful, to obtain influence over him, was to obtain power itself. The English Nobility saw with the greatest jealousy, Men of a condition so different from their own, vested with a power to the attacks of which they were immediately exposed, and thought that they would carry that power to the height, if they were ever to adopt a system of laws which those same men sought to introduce, and of which they would necessarily become both the depositaries and the interpreters.

It happened, therefore, by a somewhat singular conjunction of circumstances, that, to the Roman laws, brought over to England by Monks, the idea of ecclesiastical power became associated, in the same manner as the idea of regal Despotism became afterwards annexed to the Religion of the same Monks, when favoured by Kings who endeavoured to establish an arbitrary government. The Nobility at all times rejected these laws, even with a degree of ill humour (a) ; and the usurper Ste-phen, whose interest it was to conciliate their affections, went so far as to prohibit the study of them.3

As the general disposition of things brought about, as hath been above observed, a sufficient degree of intercourse between the Nobility or Gentry, and the People, the aversion to the Roman Laws gradually spread itself far and wide; and those laws, to which their wisdom in many cases, and particularly their extensiveness, ought naturally to have procured admittance when the English laws themselves were as yet but in their infancy, experienced the most steady opposition from the Lawyers: and as those persons who sought to introduce them, frequently renewed their attempts, there at length arose a kind of general combination amongst the Laity, to confine them to Universities and Monasteries (a) .

This opposition was carried so far, that Fortescue, Chief Justice of the King’s Bench, and afterwards Chancellor under Henry VI. wrote a Book intitled De Laudibus Legum Angliae, in which he proposes to demonstrate the superiority of the English laws over the Civil; and, that nothing might be wanting in his arguments on that subject, he gives them the advantage of superior antiquity, and traces their origin to a period much anterior to the foundation of Rome.4

This spirit has been preserved even to much more modern times; and when we peruse the many paragraphs which Judge Hale has writ-ten in his History of the Common Law,5 to prove, that in the few cases in which the Civil Law is admitted in England, it can have no power by virtue of any deference due to the orders of Justinian (a truth which certainly had no need of proof) we plainly see that this Chief Justice, who was also a very great Lawyer, had, in this respect, retained somewhat of the heat of party.

Even at present the English Lawyers attribute the liberty they enjoy, and of which other Nations are deprived, to their having rejected, while those Nations have admitted, the Roman law; which is mistaking the effect for the cause. It is not because the English have rejected the Roman laws that they are free; but it is because they were free, or at least because there existed among them causes which were, in process of time, to make them so, that they have been able to reject the Roman laws. But even though they had admitted those laws, the same circumstances that have enabled them to reject the whole, would have likewise enabled them to reject those parts which might not have suited them; and they would have seen, that it is very possible to receive the decisions of the Civil law on the subject of the servitutes ur-banae & rusticae,6 without adopting its principles with respect to the power of the Emperors (a) .

Of this the Republic of Holland, where the Civil law is adopted, would afford a proof, if there were not the still more striking one, of the Emperor of Germany, who, though in the opinion of his People he is the successor to the very Throne of the Caesars(b) , has not by a great deal so much power as a King of England; and the reading of the several treaties which deprive him of the power of nominating the principal offices of the Empire, sufficiently shews that a spirit of unlimited submission to Monarchical power, is no necessary consequence of the admission of the Roman Civil Law.

The Laws therefore that have taken place in England, are what they call the Unwritten Law, also termed the Common Law, and the Statute Law.

The Unwritten Law is thus called, not because it is only transmitted by tradition from generation to generation; but because it is not founded on any known act of the Legislature. It receives its force from immemorial custom, and, for the most part, derives its origin from Acts of Parliament enacted in the times which immediately followed the Conquest, (particularly those anterior to the time of Richard the First) the originals of which are lost.

The principal objects settled by the Common Law, are the rules of descent, the different methods of acquiring property, the various forms required for rendering contracts valid; in all which points it differs, more or less, from the Civil Law. Thus, by the Common Law, lands descend to the eldest son, to the exclusion of all his brothers and sisters; whereas, by the Civil Law, they are equally divided between all the children: by the Common Law, property is transferred by writing; but by the Civil Law, tradition, or actual delivery, is moreover requisite, &c.

The source from which the decisions of the Common Law are drawn, is what is called praeteritorum memoria eventorum,7 and is found in the collection of judgments that have been passed from time immemorial, and which, as well as the proceedings relative to them, are carefully preserved under the title of Records. In order that the principles established by such a series of judgments may be known, extracts from them are, from time to time, published under the name of Reports; and these re-ports reach, by a regular series, so far back as the reign of Edward the Second, inclusively.

Besides this collection, which is pretty voluminous, there are also some ancient Authors of great authority among Lawyers; such as Glanvil, who wrote under the reign of Henry the Second—Bracton, who wrote under Henry the Third,—Fleta, and Lyttelton. Among more modern Authors, is Sir Edward Coke, Lord Chief Justice of the King’s Bench under James the First, who has written four books of Institutes, and is at present the Oracle of the Common Law.8

The Common Law moreover comprehends some particular customs, which are fragments of the ancient Saxon laws, escaped from the disaster of the Conquest; such as that called Gavelkind, in the County of Kent, by which lands are divided equally between the Sons; and that called Borough English, by which, in some particular districts, lands descend to the youngest Son.

The Civil Law, in the few instances where it is admitted, is likewise comprehended under the Unwritten Law, because it is of force only so far as it has been authorised by immemorial custom. Some of its principles are fol-lowed in the Ecclesiastical Courts, in the Courts of Admiralty, and in the Courts of the two Universities; but it is there nothing more than lex sub lege graviori;9 and these different Courts must conform to Acts of Parliament, and to the sense given to them by the Courts of Common Law; being moreover subjected to the controul of these latter.

Lastly, the Written Law is the collection of the various Acts of Parliament, the originals of which are carefully preserved, especially since the reign of Edward the Third. Without entering into the distinctions made by Lawyers with respect to them, such as public and private Acts, declaratory Acts, or such as are made to extend or restrain the Common Law, it will be sufficient to observe, that being the result of the united wills of the Three Constituent Parts of the Legislature, they, in all cases, supersede both the Common Law and all former Statutes, and the Judges must take cognizance of them, and decide in conformity to them, even though they had not been alledged by the parties (a) .

The different Courts for the Administration of Justice, in England, are

I. The Court of Common Pleas. It formerly made a part of the Aula Regis; but as this latter Court was bound by its institution always to follow the person of the King, and private individuals experienced great difficulties in obtaining relief from a Court that was ambulatory, and always in motion, it was made one of the articles of the Great Charter, that the Court of Common Pleas should thenceforwards be held in a fixed place (a) ; and since that time it has been seated at Westminster. It is composed of a Lord Chief Justice, with three other Judges; and appeals from its judgments, usually called Writs of Errour, are brought before the Court of King’s Bench.

II. The Court of Exchequer. It was originally established to determine those causes in which the King, or his servants, or accomptants, were concerned, and has gradually become open to all persons. The confining the power of this Court to the above class of persons, is therefore now a mere fiction; only a man must, for form’s sake, set forth in his declaration that he is debtor to the King, whether he be so, or no. The Court of Exchequer is composed of the Chief Baron of the Exchequer, and three other Judges.

III. The Court of King’s Bench forms that part of the Aula Regis which continued to subsist after the dismembering of the Common Pleas. This Court enjoys the most extensive authority of all other Courts: it has the superintendence over all Corporations, and keeps the various jurisdictions in the Kingdom within their respective bounds. It takes cognizance, according to the end of its original institution, of all criminal causes, and even of many causes merely civil. It is composed of the Lord Chief Justice of the Court of King’s Bench, and three other Judges. Writs of errour against the judgments passed in that Court in civil matters, are brought before the Court of the Exchequer Chamber, or, in most cases, before the House of Peers.

IV. The Court of the Exchequer Chamber. When this Court is formed by the four Barons, or Judges of the Exchequer, together with the Chancellor and Treasurer of the same, it sits as a Court of Equity; a kind of institution on which some observations will be introduced in a following Chapter. When this Court is formed by the twelve Judges, to whom sometimes the Lord Chancellor is joined, its office is to deliberate, when properly referred and applied to, and give an opinion on important and difficult causes, before judgments are passed upon them, in those Courts where the causes are depending.

[1. ]De Lolme here adopts the classification of the liberties of the English subject presented by Blackstone in Commentaries on the Laws of England, 1:125.

[(a) ]Owing to the extensive right of challenging jurymen, which is allowed to every person brought to his trial, though not very frequently used.

[2. ]The legendary discovery in Amalfi in 1135 of a manuscript copy of Justinian’s Digest (or “Pandects”) of classical Roman law was routinely credited, as here, with the revival of Roman law studies in the medieval period.

[(a) ]The nobility, under the reign of Richard II. declared in the French language of those times, “Purce que le roialme d’Engleterre n’étoit devant ces heures, ne à l’entent du Roy notre Seignior, & Seigniors du Parlement, unques ne sera, rulé ne governé par la loy civil.” viz. Inasmuch as the Kingdom of England was not before this time, nor according to the intent of the King our Lord, and Lords of Parliament, ever shall be, ruled or governed by the civil law.—In Rich. Parlamento Westmonasterii, Feb. 3. Anno 2. [[The 1378 declaration of the House of Lords was frequently treated by English jurists, as by De Lolme here, as designed to block the efforts of the clergy and bishops to promote the advancement of Roman law at the expense of common law.

[3. ]The “usurper Stephen” ascended the English throne in 1135, following the death of his uncle, Henry I, and against the claims of Henry I’s daughter, Matilda. He issued a charter at the beginning of his reign, granting various concessions to the nobility and clergy.

[(a) ]It might perhaps be shewn, if it belonged to the subject, that the liberty of thinking in religious matters, which has at all times remarkably prevailed in England, is owing to much the same causes as its political liberty: both perhaps are owing to this, that the same Men, whose interest it is in other Countries that the people should be influenced by prejudices of a political or religious kind, have been in England forced to inform and unite with them. I shall here take occasion to observe, in answer to the reproach made to the English, by President Henault, in his much esteemed Chronological History of France [[De Lolme refers to Nouvel abrégé chronologique de l’histoire de France by Charles Jean François Hénault (1685–1770), president of the Parliament of Paris. Hénault’s History first appeared in 1744 and later was reissued in several expanded editions., that the frequent changes of religion which have taken place in England, do not argue any servile disposition in the people; they only prove the equilibrium between the then existing Sects: there was none but what might become the prevailing one, whenever the Sovereign thought proper to declare for it; and it was not England, as people may think at first sight, it was only its Government, which changed its religion.

[4. ]Sir John Fortescue composed De laudibus legum Angliae (In praise of the laws of England) ca. 1468–71. The work, in the form of a dialogue between the Prince of Wales and the Lord Chancellor, contains extensive discussion of the superiority of English law to Roman (“the Civil”) law.

[5. ]For Hale’s History of the Common Law of England, see above, book 1, chapter 2, p. 38, note 3.

[6. ]“Civic and rustic burdens.”

[(a) ]What particularly frightens the English Lawyers is Lib. 1. Tit. 4. Dig.—Quod Principi placuerit legis habet vigorem. [[De Lolme quotes the controversial formula appearing in Justinian’s Digest, which was commonly renderd by English commentators, “that which pleases the prince has the force of law.” The more technical, modern translation is, “A decision given by the emperor has the force of a statute.” See Corpus Juris Civilis. Digest, 1.4.1.

[(b) ]The German word to express the Emperor’s dignity, is, Caesar, Kaiser.

[7. ]“The record of past events.”

[8. ]De Lolme invokes the following legal authorities: De Legibus et Consuetudinibus Angliae (Of the Laws and Customs of England), standardly attributed to Ranulf de Glanvill and composed ca. 1187; De Legibus et Consuetudinibus Angliae (Of the Laws and Customs of England), standardly attributed to Henry de Bracton and likely composed in the 1220s and 1230s; Fleta, of unknown authorship and composed in the late thirteenth century; Sir Thomas Littleton’s New Tenures, first printed in 1481; and Sir Edward Coke’s four-part Institutes of the Laws of England, the first part of which appeared in 1628 and the later parts of which were first printed posthumously in the 1640s.

[9. ]“Law derived from higher law.”

[(a) ]Unless they be private Acts. [[In the case of a private act of Parliament, the enactment needed to be formally pleaded and introduced into evidence before the common law judges were required to take notice of it.

[(a) ]Communia Placita non sequantur Curiam nostram, sed teneantur in aliquo loco certo. Magna Charta, cap. 11. [[“Common Pleas shall not follow our court, but shall be held in some place certain.”