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 IV

A third Advantage peculiar to the English Government. The Business of proposing Laws, lodged in the Hands of the People.

A third circumstance which I propose to show to be peculiar to the English Government, is the manner in which the respective offices of the three component parts of the Legislature have been divided, and allotted to each of them.

If the Reader will be pleased to observe, he will find that in most of the ancient free States, the share of the People in the business of Legislation, was to approve, or reject, the propositions which were made to them, and to give the final sanction to the laws. The function of those Persons, or in general those Bodies, who were intrusted with the Executive power, was to prepare and frame the Laws, and then to propose them to the People: and in a word, they possessed that branch of the Legislative power which may be called the initiative, that is, the prerogative of putting that power in action (a) .

This initiative, or exclusive right of proposing, in Legislative assemblies, attributed to the Magistrates, is indeed very useful, and perhaps even necessary, in States of a republican form, for giving a permanence to the laws, as well as for preventing the disorders and struggles for power which have been mentioned before; but upon examination we shall find that this expedient is attended with inconveniences of little less magnitude than the evils it is meant to remedy.

These Magistrates, or Bodies, at first indeed apply frequently to the Legislature for a grant of such branches of power as they dare not of themselves assume, or for the removal of such obstacles to their growing authority as they do not yet think it safe for them peremptorily to set aside. But when their authority has at length gained a sufficient degree of extent and stability, as farther manifestations of the will of the Legislature could then only create obstructions to the exercise of their power, they begin to consider the Legislature as an enemy whom they must take great care never to rouse. They consequently convene the Assembly of the People as seldom as they can. When they do it, they carefully avoid proposing any thing favourable to public liberty. Soon they even entirely cease to convene the Assembly at all; and the People, after thus losing the power of legally asserting their rights, are exposed to that which is the highest degree of political ruin, the loss of even the remembrance of them; unless some indirect means are found, by which they may from time to time give life to their dormant privileges; means which may be found, and succeed pretty well in small States, where provisions can more easily be made to answer their in-tended ends, but in States of considerable extent, have always been found, in the event, to give rise to disorders of the same kind with those which were at first intended to be prevented.

But as the capital principle of the English Constitution totally differs from that which forms the basis of Republican Governments, so is it capable of procuring to the People advantages that are found to be unattainable in the latter. It is the People in England, or at least those who represent them, who possess the initiative in Legislation, that is to say, who perform the office of framing laws, and proposing them. And among the many circumstances in the English Government, which would appear entirely new to the Politicians of antiquity, that of seeing the person intrusted with the Executive power bear that share in Legislation which they looked upon as being necessarily the lot of the People, and the People that which they thought the indispensable office of its Magistrates, would not certainly be the least occasion of their surprize.

I foresee that it will be objected, that, as the King of England has the power of dissolving, and even of not calling Parliaments, he is hereby possessed of a prerogative which in fact is the same with that which I have just now represented as being so dangerous.

To this I answer, that all circumstances ought to be combined together. Doubtless, if the Crown had been under no kind of dependence whatever on the people, it would long since have freed itself from the obligation of calling their Representatives together; and the British Parliament, like the National Assemblies of several other Kingdoms, would most likely have no existence now, except in History.

But, as we have above seen, the necessities of the State, and the wants of the Sovereign himself, put him under a necessity of having frequently recourse to his Parliament; and then the difference may be seen between the prerogative of not calling an Assembly, when powerful causes nevertheless render such a measure necessary, and the exclusive right, when an Assembly is convened, of proposing laws to it.

In the latter case, though a Prince, let us even suppose, in order to save appearances, might condescend to mention any thing besides his own wants, it would be at most to propose the giving up of some branch of his prerogative upon which he set no value, or to reform such abuses as his inclination does not lead him to imitate; but he would be very careful not to touch any points which might materially affect his authority.

Besides, as all his concessions would be made, or appear to be made, of his own motion, and would in some measure seem to spring from the activity of his zeal for the public welfare, all that he might offer, though in fact ever so inconsiderable, would be represented by him as grants of the most important nature, and for which he expects the highest gratitude. Lastly, it would also be his province to make restrictions and exceptions to laws thus proposed by himself; he would also be the person who were to chuse the words to express them, and it would not be reasonable to expect that he would give himself any great trouble to avoid all ambiguity (a) .

But the Parliament of England is not, as we said before, bound down to wait passively and in silence for such laws as the Executive power may condescend to propose to them. At the opening of every Session, they of themselves take into their hands the great book of the State; they open all the pages, and examine every article.

When they have discovered abuses, they proceed to enquire into their causes:—when these abuses arise from an open disregard of the laws, they endeavour to strengthen them; when they proceed from their insufficiency, they remedy the evil by additional provisions (b) .

Nor do they proceed with less regularity and freedom, in regard to that important object, subsidies. They are to be the sole Judges of the quantity of them, as well as of the ways and means of raising them; and they need not come to any resolution with regard to them, till they see the safety of the Subject completely provided for. In a word, the making of laws, is not, in such an arrangement of things, a gratuitous contract, in which the People are to take just what is given them, and as it is given them:—it is a contract in which they buy and pay, and in which they themselves settle the different conditions, and furnish the words to express them.

The English Parliament have given a still greater extent to their advantages on so important a subject. They have not only secured to themselves a right of proposing laws and remedies, but they have also prevailed on the Executive power to renounce all claim to do the same.1 It is even a constant rule that neither the King, nor his Privy Council, can make any amendments to the bills preferred by the two Houses; but the King is merely to accept or reject them: a provision this, which, if we pay a little attention to the subject, we shall find to have been also necessary for completely securing the freedom and regularity of the parliamentary deliberations (a) .

I indeed confess that it seems very natural, in the modelling of a State, to intrust this very important office of framing laws, to those persons who may be supposed to have before acquired experience and wisdom, in the management of public affairs. But events have unfortunately demonstrated, that public employments and power improve the understanding of Men in a less degree than they pervert their views; and it has been found in the issue, that the effect of a regulation which, at first sight, seems so perfectly consonant with prudence, is to confine the People to a mere passive and defensive share in Legislation, and to deliver them up to the continual enterprizes of those who, at the same time that they are under the greatest temptations to deceive them, possess the most powerful means of effecting it.

If we cast our eyes on the History of the ancient Governments, in those times when the persons entrusted with the Executive power were still in a state of dependence on the Legislature, and consequently frequently obliged to have recourse to it, we shall see almost continual instances of selfish and insidious laws proposed by them to the Assemblies of the people.

And those Men in whose wisdom the law had at first placed so much confidence, became, in the issue, so lost to all sense of shame and duty, that when arguments were found to be no longer sufficient, they had recourse to force; the legislative Assemblies became so many fields of battle, and their power, a real calamity.

I know very well, however, that there are other important circumstances besides those I have just mentioned, which would prevent disorders of this kind from taking place in England (a) . But, on the other hand, let us call to mind that the person who, in England, is invested with the Executive authority, unites in himself the whole public power and majesty. Let us represent to ourselves the great and sole Magistrate of the Nation, pressing the acceptance of those laws which he had proposed, with a vehemence suited to the usual importance of his designs, with the warmth of Monarchical pride, which must meet with no refusal, and exerting for that purpose all his immense resources.

It was therefore a matter of indispensable necessity, that things should be settled in England in the manner they are. As the moving springs of the Executive power are, in the hands of the King a kind of sacred depositum, so are those of the Legislative power, in the hands of the two Houses. The King must abstain from touching them, in the same manner as all the subjects of the kingdom are bound to submit to his prerogatives. When he sits in Parliament, he has left, we may say, his executive power without doors, and can only assent, or dissent. If the Crown had been allowed to take an active part in the business of making laws, it would soon have rendered useless the other branches of the Legislature.

[(a) ]This power of previously considering and approving such laws as were afterwards to be propounded to the People, was, in the first times of the Roman Republic, constantly exercised by the Senate: laws were made, Populi jussu, ex auctoritate Senatûs. Even in cases of elections, the previous approbation and auctoritas of the Senate, with regard to those persons who were offered to the suffrages of the People, was required. Tum enim non gerebat is magistratum qui ceperat, si Patres auctores non erant facti. Cic. pro Plancio, 3. [[De Lolme cites Cicero’s 54 b.c.e. speech, Pro Plancio (On behalf of Plancius). The quoted passages read: “In accordance with the decree of the Senate and the will of the people” and “For in the old days, the man who had been elected to an office did not enter upon it if the patricians withheld their assent.”

At Venice the Senate also exercises powers of the same kind, with regard to the Grand Council or Assembly of the Nobles. In the Canton of Bern, all propositions must be discussed in the Little Council, which is composed of twenty-seven Members, before they are laid before the Council of the Two hundred, in whom resides the sovereignty of the whole Canton. And in Geneva, the law is, “that nothing shall be treated in the General Council, or Assembly of the Citizens, which has not been previously treated and approved in the Council of the Two hundred; and that nothing shall be treated in the Two hundred, which has not been previously treated and approved in the Council of the Twenty-five.” Geneva’s General Council (Conseil General), an institution dating from the medieval period, was an assembly comprising the entire Genevan citizenry. During the course of the sixteenth century, its power was eclipsed by the small Council of the Twenty-Five (or Petit Conseil [Little Council]). The Council of the Twenty-Five also dominated the Council of the Two Hundred, a political body introduced in the early sixteenth century. In De Lolme’s own era, opposition to the political power of Geneva’s ruling families typically took the form of demands for the restoration of the authority of the General Council. See De Lolme’s further discussion below, book 2, chapter 5, pp. 174–75, note a, and the editorial introduction, pp. x–xi.

[(a) ]In the beginning of the existence of the House of Commons, bills were presented to the King under the form of Petitions. Those to which the King assented, were registered among the rolls of Parliament, with his answer to them; and at the end of each Parliament, the Judges formed them into Statutes. Several abuses having crept into that method of proceeding, it was ordained that the Judges should in future make the Statute before the end of every Session. Lastly, as even that became, in process of time, insufficient, the present method of framing bills was established; that is to say, both houses now frame the Statutes in the very form and words in which they are to stand when they have received the Royal assent. [[De Lolme’s periodization of English legislative practice summarizes the fuller account set out by Matthew Hale in his History of the Common Law of England, chapter 1.

[(b) ]No popular Assembly ever enjoyed the privilege of starting, canvassing, and proposing new matter, to such a degree as the English Commons. In France, when their General Estates were allowed to sit, their remonstrances were little regarded, and the particular Estates of the Provinces dare now hardly present any. In Sweden, the Power of proposing new subjects was lodged in an Assembly called the Secret Committee, composed of Nobles, and a few of the Clergy; and is now possessed by the King. In Scotland, until the Union, all propositions to be laid before the Parliament, were to be framed by the persons called the Lords of the Articles. In regard to Ireland, all bills must be prepared by the King in his Privy Council, and are to be laid before the Parliament by the Lord Lieutenant, for their assent or dissent: only, they are allowed to discuss, among them, what they call Heads of a bill, which the Lord Lieutenant is desired afterwards to transmit to the King, who selects out of them what clauses he thinks proper, or sets the whole aside; and is not expected to give at any time, any precise answer to them. And in republican Governments, Magistrates are never at rest till they have entirely secured to themselves the important privilege of proposing; nor does this follow merely from their ambition; it is also the consequence of the situation they are in, from the principles of that mode of Government.

[1. ]De Lolme’s language here is potentially misleading. The described distribution of legislative functions between Parliament and crown emerged as a matter of developed constitutional convention. At no specific point did the king formally “renounce” the authority to propose legislation, just as the crown’s failure after 1708 to exercise its legislative veto never involved a formal renunciation of the veto power.

[(a) ]The King indeed at times sends messages to either House; and nobody, I think, can wish that no means of intercourse should exist between him and his Parliament. But these messages are always expressed in very general words; they are only made to desire the House to take certain subjects into their consideration; no particular articles or clauses are expressed; the Commons are not to declare, at any settled time, any solemn acceptation or rejection of the proposition made by the King; and, in short, the House follows the same mode of proceeding, with respect to such messages, as they usually do in regard to petitions presented by private individuals. Some member makes a motion upon the subject expressed in the King’s message; a bill is framed in the usual way; it may be dropt at every stage of it; and it is never the proposal of the Crown, but the motions of some of their own Members, which the House discuss, and finally accept or reject.

[(a) ]I particularly mean here, the circumstance of the People having entirely delegated their power to their Representatives: the consequences of which Institution will be discussed in the next Chapter.