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 IX

A farther Disadvantage of Republican Governments.—The People are necessarily betrayed by those in whom they trust.

However, those general assemblies of a People who were made to determine upon things which they neither understood nor examined,—that general confusion in which the Ambitious could at all times hide their artifices, and carry on their schemes with safety, were not the only evils attending the ancient Commonwealths. There was a more secret defect, and a defect that struck immediately at the very vitals of it, inherent in that kind of Government.

It was impossible for the People ever to have faithful defenders. Neither those whom they had expresly chosen, nor those whom some personal advantages enabled to govern the Assemblies (for the only use, I must repeat it, which the People ever make of their power, is either to give it away, or allow it to be taken from them) could possibly be united to them by any common feeling of the same concerns. As their influence put them, in a great measure, upon a level with those who were invested with the executive authority, they cared little to restrain oppressions out of the reach of which they saw themselves placed. Nay, they feared they should thereby lessen a power which they knew was one day to be their own; if they had not even already an actual share in it (a) .

Thus, at Rome, the only end which the Tribunes ever pursued with any degree of sin-cerity and perseverance, was to procure to the People, that is to themselves, an admission to all the different dignities in the Republic. After having obtained that a law should be enacted for admitting Plebeians to the Consulship, they procured for them the liberty of intermarrying with the Patricians. They afterwards rendered them admissible to the Dictatorship, to the office of military Tribune, to the Censorship: in a word, the only use they made of the power of the People, was to increase privileges which they called the privileges of all, though they and their friends alone were ever likely to have the enjoyment of them.1

But we do not find that they ever employed the power of the People in things really beneficial to the People. We do not find that they ever set bounds to the terrible power of its Magistrates, that they ever repressed that class of Citizens who knew how to make their crimes pass uncensured,—in a word that they ever endeavoured, on the one hand to regulate, and on the other to strengthen, the judicial power; precautions these, without which men might struggle to the end of time, and never attain true liberty (a) .

And indeed the judicial power, that sure criterion of the goodness of a Government, was always, at Rome, a mere instrument of tyranny. The Consuls were at all times invested with an absolute power over the lives of the Citizens. The Dictators possessed the same right: so did the Praetors, the Tribunes of the People, the judicial Commissioners named by the Senate, and so, of course, did the Senate itself; and the fact of the three hundred and seventy deserters whom it commanded to be thrown down at one time, as Livy relates, from the Tarpeian rock, sufficiently shews that it well knew how to exert its power upon occasion.2

It even may be said, that, at Rome, the power of life and death, or rather the right of killing, was annexed to every kind of authority whatever, even to that which results from mere influence, or wealth; and the only consequence of the murder of the Gracchi, which was accompanied by the slaughter of three hundred, and afterwards of four thousand unarmed Citizens, whom the Nobles knocked on the head, was to engage the Senate to erect a Temple to Concord.3 The Lex Porcia de tergo civium,4 which has been so much celebrated, was attended with no other effect but that of more completely securing against the danger of a retaliation, such Consuls, Praetors, Quaestors, &c. as, like Verres,5 caused the inferior Citizens of Rome to be scourged with rods, and put to death upon crosses, through mere caprice and cruelty (a) .

In fine, nothing can more completely shew to what degree the Tribunes had forsaken the interests of the People, whom they were appointed to defend, than the fact of their having allowed the Senate to invest itself with the power of taxation: they even suffered it to assume to itself the power, not only of dispensing with the laws, but also of abrogating them (a) .

In a word, as the necessary consequence of the communicability of power, a circumstance essentially inherent in the republican form of government, it is impossible for it ever to be restrained within certain rules. Those who are in a condition to control it, from that very circumstance, become its defenders. Though they may have risen, as we may suppose, from the humblest stations, and such as seemed totally to preclude them from all ambitious views, they have no sooner reached a certain degree of eminence, than they begin to aim higher. Their endeavours had at first no other object, as they professed, and perhaps with sincerity, than to see the laws impartially executed: their only view now is to set themselves above them; and seeing themselves raised to the level of a class of Men who pos-sess all the power, and enjoy all the advantages, in the State, they make haste to associate themselves with them (b) .

Personal power and independence on the laws, being, in such States, the immediate consequence of the favour of the People, they are under an unavoidable necessity of being betrayed. Corrupting, as it were, every thing they touch, they cannot show a preference to a Man, but they thereby attack his virtue; they cannot raise him, without immediately losing him and weakening their own cause; nay, they inspire him with views directly opposite to their own, and send him to join and increase the number of their enemies.

Thus, at Rome, after the feeble barrier which excluded the People from offices of power and dignity had been thrown down, the great Plebeians, whom the votes of the People began to raise to those offices, were immediately received into the Senate, as has been just now observed. From that period, their families began to form, in conjunction with the ancient Patrician families, a new combination or political association of persons (a) ; and as this combination was formed of no particular class of Citizens, but of all those in general who had influence enough to gain admittance into it, a single overgrown head was now to be seen in the Republic, which, consisting of all those who had either wealth or power of any kind, and disposing at will of the laws and the power of the People (b) soon lost all regard to moderation and decency.6

Every Constitution, therefore, whatever may be its form, which does not provide for inconveniences of the kind here mentioned, is a Constitution essentially imperfect. It is in Man himself that the source of the evils to be remedied, lies; general precautions therefore can alone prevent them. If it be a fatal error entirely to rely on the justice and equity of those who govern, it is an error no less dangerous to imagine, that, while virtue and moderation are the constant companions of those who oppose the abuses of Power, all ambition, all thirst after dominion, have retired to the other party.

Though wise Men sometimes may, led astray by the power of names and the heat of political contentions, lose sight of what ought to be their real aim, they nevertheless know that it is not against the Appii, the Coruncanii, the Cethegi,7 but against all those who can influence the execution of the laws, that precautions ought to be taken,—that it is not the Consul, the Praetor, the Archon, the Minister, the King, whom we ought to dread, nor the Tribune or the Representative of the People, on whom we ought implicitly to rely; but that all those persons, without distinction, ought to be the objects of our jealousy, who, by any methods, and under any names whatsoever, have acquired the means or turning against each individual the collective strength of all, and have so ordered things around themselves, that whoever attempts to resist them, is sure to find himself engaged alone against a thousand.

[(a) ]How could it be expected that Men who entertained views of being Praetors, would endeavour to restrain the power of the Praetors,—that Men who aimed at being one day Consuls, would wish to limit the power of the Consuls,—that Men whom their influence among the People made sure of getting into the Senate, would seriously endeavour to confine the authority of the Senate?

[1. ]De Lolme here returns to and expands upon a theme he first introduced in book 2, chapter 2; see p. 150, note a.

[(a) ]Without such precautions, laws must always be as Pope expresses it,

• Still for the strong too weak, the weak too strong.

[[De Lolme quotes Alexander Pope’s 1733 An Essay on Man, epistle 3, line 194.]]

[2. ]For Tarpeian Rock, see book 2, chapter 1, p. 148, note 3.

[3. ]The deaths of the Gracchi are described above, book 2, chapter 7, p. 181, note 2.

[4. ]The Lex Porcia (195 b.c.e.), secured by Marcus Porcius Cato, prohibited the punishment of Roman citizens by beating with rods (de tergo civium, on the back of citizens).

[5. ]Gaius Verres (ca. 120–43 bc) was a Roman magistrate and governor of Sicily, prosecuted by Cicero in 70 b.c.e., whose rule became notorious for political abuse and personal corruption.

[(a) ]If we turn our eyes to Lacedaemon, we shall see, from several instances of the justice of the Ephori, that matters were little better ordered there, in regard to the administration of public justice. [[The ephori of Sparta (or “Lacedaemon”) are described above, book 2, chapter 7, p. 179, note 1. And in Athens itself, which is the only one of the ancient Commonwealths in which the people seem to have enjoyed any degree of real liberty, we see the Magistrates proceed nearly in the same manner as they now do among the Turks: and I think no other proof needs to be given than the story of that Barber in the Piraeus, who having spread about the Town the news of the overthrow of the Athenians in Sicily, which he had heard from a stranger who had stopped at his shop, was put to the torture, by the command of the Archons, because he could not tell the name of his author.—See Plut. Life of Nicias. Plutarch’s “Life of Nicias” described the career of the Athenian politician and military commander Nicias (d. 414 b.c.e.). For Plutarch’s Lives, see above, book 2, chapter 7, p. 181, note a.

[(a) ]There are frequent instances of the Consuls taking away from the Capitol the tables of the laws passed under their predecessors. Nor was this, as we might at first be tempted to believe, an act of violence which success alone could justify; it was a consequence of the acknowledged power enjoyed by the Senate, cujus erat gravissimum judicium de jure legum [[“whose was the most solemn right of decision on the laws”, as we may see in several places in Tully. Nay, the Augurs themselves, as Tully informs us, enjoyed the same privilege. “If laws have not been laid before the people, in the legal form, they (the Augurs) may set them aside; as was done with respect to the Lex Tetia, by the decree of the College, and to the leges Liviae, by the advice of Philip, who was Consul and Augur.” Legem si non jure rogata est, tollere possunt;ut Tetiam, decreto Collegii, ut Livias, consilio Philippi, Consulis & Auguris—See De Legib. lib. ii. § 12. De Lolme quotes and translates Cicero, De legibus, 2.12.

[(b) ]Which always proves an easy thing. It is in Commonwealths the particular care of that class of Men who are at the head of the State, to keep a watchful eye over the People, in order to draw over to their own party any Man who happens to acquire a considerable influence among them; and this they are (and indeed must be) the more attentive to do, in proportion as the nature of the Government is more democratical.

The Constitution of Rome had even made express provisions on that subject. Not only the Censors could at once remove any Citizen into what Tribe they pleased, and even into the Senate, and we may easily believe that they made a political use of this privilege; but it was moreover a settled rule, that all persons who had been promoted to any public office by the People, such as the Consulship, the Edileship, or Tribuneship, became ipso facto, members of the Senate.—See Middleton’s Dissertation on the Roman Senate. [[De Lolme cites, but mistakenly titles, Conyers Middleton’s 1747 A Treatise on the Roman Senate.

[(a) ]Called Nobiles and Nobilitas.

[(b) ]It was, in several respects, a misfortune for the People of Rome, whatever may have been said to the contrary by the Writers on this subject, that the distinction between the Patricians and the Plebeians was ever abolished; though, to say the truth, this was an event which could not be prevented.

[6. ]De Lolme here returns to a theme initially considered in book 2, chapter 2, concerning the abuses which occurred when members of Rome’s plebeian ranks came to acquire political offices from which they were originally excluded; see book 2, chapter 2, p. 150, note a.

[7. ]De Lolme refers to the names of plebeian families whose members attained high public office in the Republic.