Front Page Titles (by Subject) CHAPTER III: A second Peculiarity.—The Division of the Legislative Power. - The Constitution of England; Or, an Account of the English Government
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CHAPTER III: A second Peculiarity.—The Division of the Legislative Power. - 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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A second Peculiarity.—The Division of the Legislative Power.
The second peculiarity which England, as an undivided State and a free State, exhibits in its Constitution, is the division of its Legislature. But, in order to make the reader more sensible of the advantages of this division, it is necessary to desire him to attend to the following considerations.
It is, without doubt, absolutely necessary, for securing the Constitution of a State, to restrain the Executive power; but it is still more necessary to restrain the Legislative. What the former can only do by successive steps (I mean subvert the laws) and through a longer or shorter train of enterprizes, the latter does in a moment. As its bare will can give being to the laws; so its bare will can also annihilate them: and, if I may be permitted the expression,—the Legislative power can change the Constitution, as God created the light.
In order therefore to insure stability to the Constitution of a State, it is indispensably necessary to restrain the Legislative authority. But here we must observe a difference between the Legislative and Executive powers. The latter may be confined, and even is the more easily so, when undivided: the Legislative, on the contrary, in order to its being restrained, should absolutely be divided. For, whatever laws it may make to restrain itself, they never can be, relatively to it, any thing more than simple resolutions: as those bars which it might erect to stop its own motions, must then be within it, and rest upon it, they can be no bars. In a word, the same kind of impossibility is found, to fix the Legislative power, when it is one, which Archimedes objected against his moving the Earth (a) .
Nor does such a division of the Legislature only render it possible for it to be restrained, since each of those parts into which it is divided, can then serve as a bar to the motions of the others; but it even makes it to be actually so restrained. If it has been divided into only two parts, it is probable that they will not in all cases unite, either for doing, or undoing:—if it has been divided into three parts, the chance that no changes will be made, is thereby greatly increased.
Nay more; as a kind of point of honour will naturally take place between these different parts of the Legislature, they will therefore be led to offer to each other only such propositions as will at least be plausible; and all very prejudicial changes will thus be prevented, as it were, before their birth.
If the Legislative and Executive powers differ so greatly with regard to the necessity of their being divided, in order to their being restrained, they differ no less with regard to the other consequences arising from such division.
The division of the Executive power necessarily introduces actual oppositions, even violent ones, between the different parts into which it has been divided; and that part which in the issue succeeds so far as to absorb, and unite in itself, all the others, immediately sets itself above the laws. But those oppositions which take place, and which the public good requires should take place, between the different parts of the Legislature, are never any thing more than oppositions between contrary opinions and intentions; all is transacted in the regions of the understanding; and the only contention that arises is wholly carried on with those inoffensive weapons, assents and dissents, ayes and noes.
Besides, when one of these parts of the Legislature is so successful as to engage the others to adopt its proposition, the result is, that a law takes place which has in it a great probability of being good: when it happens to be defeated, and sees its proposition rejected, the worst that can result from it is, that a law is not made at that time; and the loss which the State suffers thereby, reaches no farther than the temporary setting aside of some more or less useful speculation.
In a word, the result of a division of the Executive power, is either a more or less speedy establishment of the right of the strongest, or a continued state of war (a) :—that of a division of the Legislative power, is either truth, or general tranquillity.
The following maxim will therefore be admitted. That the laws of a State may be permanent, it is requisite that the Legislative power should be divided:—that they may have weight, and continue in force, it is necessary that the Executive power should be one.
If the reader conceived any doubt as to the truth of the above observations, he need only cast his eyes on the history of the proceedings of the English Legislature down to our times, to find a proof of them. He would be surprised to see how little variation there has been in the political laws of this Country, especially during the last hundred years, though, it is most important to observe, the Legislature has been as it were in a continual state of action, and, no dispassionate Man will deny, has generally promoted the public good. Nay, if we except the Act passed under William III. by which it had been enacted that Parliaments should sit no longer than three years, and which was repealed by a subsequent Act, under George I. which allowed them to sit for seven years, we shall not find that any law, which may really be called Constitutional, and which has been enacted since the Restoration, has been changed afterwards.1
Now, if we compare this steadiness of the English Government with the continual subversions of the Constitutional laws of some ancient Republics, with the imprudence of some of the laws passed in their assemblies (a) , and with the still greater inconsiderateness with which they sometimes repealed the most salutary regulations, as it were the day after they had been enacted,—if we call to mind the extraordinary means to which the Legislature of those Republics, at times sensible how its very power was prejudicial to itself and to the State, was obliged to have recourse, in order, if possible, to tie its own hands (b) , we shall remain convinced of the great advantages which attend the constitution of the English Legislature (c) .
Nor is this division of the English Legislature accompanied (which is indeed a very fortunate circumstance) by any actual division of the Nation: each constituent part of it possesses strength sufficient to insure respect to its resolutions, yet no real division has been made of the forces of the State. Only, a greater proportional share of all those distinctions which are calculated to gain the reverence of the People, has been allotted to those parts of the Legislature which could not possess their confidence, in so high a degree as the others; and the inequalities in point of real strength between them, have been made up by the magic of dignity.
Thus, the King, who alone forms one part of the Legislature, has on his side the majesty of the kingly title: the two Houses are, in appearance, no more than Councils entirely dependent on him; they are bound to follow his person; they only meet, as it seems, to advise him; and never address him but in the most solemn and respectful manner.
As the Nobles, who form the second order of the Legislature, bear, in point both of real weight and numbers, no proportion to the body of the People (a) , they have received as a compensation, the advantage of personal honours, and of an hereditary title.
Besides, the established ceremonial gives to their Assembly a great pre-eminence over that of the Representatives of the People. They are the upper House, and the others are the lower House. They are in a more special manner considered as the King’s Council, and it is in the place where they assemble that his Throne is placed.
When the King comes to the Parliament, the Commons are sent for, and make their appearance at the bar of the House of Lords. It is moreover before the Lords, as before their Judges, that the Commons bring their impeachments. When, after passing a bill in their own House, they send it to the Lords to desire their concurrence, they always order a number of their own Members to accompany it (b) ; whereas the Lords send down their bills to them, only by some of the Assistants of their House (a) . When the nature of the alterations which one of the two Houses desires to make in a bill sent to it by the other, renders a conference between them necessary, the Deputies of the Commons to the Committee which is then formed of Members of both Houses, are to remain uncovered. Lastly, those bills which (in whichever of the two Houses they have originated) have been agreed to by both, must be deposited in the House of Lords; there to remain till the Royal pleasure is signified.
Besides, the Lords are Members of the Legislature by virtue of a right inherent in their persons, and they are supposed to sit in Parliament on their own account, and for the support of their own interests.2 In consequence of this they have the privilege of giving their votes by proxies(b) ; and, when any of them dissent from the resolutions of their House, they may enter a protest against them, containing the reasons of their particular opinion. In a word, as this part of the Legislature is destined frequently to balance the power of the People, what it could not receive in real strength, it has received in outward splendor and great-ness; so that, when it cannot resist by its weight, it overawes by its apparent magnitude.
In fine, as these various prerogatives by which the component parts of the Legislature are thus made to balance each other, are all intimately connected with the fortune of State, and flourish and decay according to the vicissitudes of public prosperity or adversity, it thence follows, that, though differences of opinions may at some times take place between those parts, there can scarcely arise any, when the general welfare is really in question. And when, to resolve the doubts that may arise in political speculations of this kind, we cast our eyes on the debates of the two Houses for a long succession of years, and see the nature of the laws which have been proposed, of those which have passed, and of those which have been rejected, as well as of the arguments that have been urged on both sides, we shall remain convinced of the goodness of the principles on which the English Legislature is formed.
[(a) ]He wanted a spot whereupon to fix his instruments. [[There are several classical sources for the statement attributed to the mathematician of Syracuse, Archimedes (ca. 287–212 b.c.e.), that he could transport the earth if only he could find a fixed point to locate his instruments. Descartes invoked the statement in his 1641 Meditations on First Philosophy, meditation II.1.]]
[(a) ]Every one knows the frequent hostilities that took place between the Roman Senate and the Tribunes. In Sweden there have been continual contentions between the King and the Senate, in which they have overpowered each other by turns. And in England, when the Executive power became double, by the King allowing the Parliament to have a perpetual and independent existence, a civil war almost immediately followed. [[De Lolme cites examples of unstable competition between political institutions that shared executive powers. In the case of England, he connects the outbreak of the Civil War in 1642 with the enactment of the 1641 Triennial Act, which curtailed the crown’s control over the summoning and dissolution of Parliament.]]
[1. ]The 1694 Triennial Act limited the duration of a parliament to three years before holding new parliamentary elections. The 1716 Septennial Act extended this maximum to seven years.
[(a) ]The Athenians, among other laws, had enacted one to forbid applying a certain part of the public revenues to any other use than the expences of the Theatres and public Shews. [[De Lolme likely refers to the law, as described by Montesquieu, “to punish by death anyone who might propose that the silver destined for the theaters be converted to the uses of war.” See The Spirit of the Laws, book 3, chapter 3, note 6.]]
[(b) ]In some ancient Republics, when the Legislature wished to render a certain law permanent, and at the same time mistrusted their own future wisdom, they added a clause to it, which made it death to propose the revocation of it. Those who afterwards thought such revocation necessary to the public welfare, relying on the mercy of the People, appeared in the public Assembly with a halter about their necks. [[The Greek orator Demosthenes (384–322 b.c.e.), in his speech “Against Timocrates,” refers to the practice of the Locrian lawmakers who wore ropes around their necks when they repealed previous legislation.]]
[(c) ]We shall perhaps have occasion to observe, hereafter, that the true cause of the equability of the operations of the English Legislature, is the opposition that happily takes places between the different views and interests of the several bodies that compose it: a consideration this, without which all political inquiries are no more than airy speculations, and is the only one that can lead to useful practical conclusions.
[(a) ]It is for want of having duly considered this subject, that Mr. Rousseau exclaims, somewhere, against those who, when they speak of General Estates of France, “dare to call the people, the third Estate.” At Rome, where all the order we mention was inverted,—where the fasces were laid down at the feet of the People,—and where the Tribunes, whose function, like that of the King of England, was to oppose the establishment of new laws, were only a subordinate kind of Magistracy, many disorders followed. In Sweden, and in Scotland (before the union), faults of another kind prevailed: in the former kingdom, for instance, an overgrown body of two thousand Nobles frequently over-ruled both King and People. [[De Lolme likely refers to Jean-Jacques Rousseau’s passing comment on the third estate in book 3, chapter 15, of the 1762 Du contrat social (The social contract). In Rome, the fasces (literally, “bundle”)—a tied bundle of wooden rods surrounding an axe—was an ancient symbol of political authority. For tribunes (tribuni plebis), see above, book 2, chapter 2, p. 151, note 1.]]
[(b) ]The Speaker of the House of Lords must come down from his woolpack to receive the bills which the Members of the Commons bring to their House.
[(a) ]The twelve Judges and the Masters in Chancery. There is also a ceremonial established with regard to the manner, and marks of respect, with which those two of them, who are sent with a bill to the Commons, are to deliver it.
[2. ]This applies to the English peers, but not to the sixteen Scottish peers who served in the House of Lords as representatives under the terms of the 1707 Act of Union.
[(b) ]The Commons have not that privilege, because they are themselves proxies for the People.—See Coke’s Inst. iv. p. 41. [[Edward Coke, Institutes of the Laws of England, pt. 4, p. 12. (De Lolme’s note mistakes the page.)]]