Front Page Titles (by Subject) CHAPTER XIV: Right of Resistance. - The Constitution of England; Or, an Account of the English Government
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CHAPTER XIV: Right of Resistance. - 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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Right of Resistance.
But all those privileges of the People, considered in themselves, are but feeble defences against the real strength of those who govern. All those provisions, all those reciprocal Rights, necessarily suppose that things remain in their legal and settled course: what would then be the resource of the People, if ever the Prince, suddenly freeing himself from all restraint, and throwing himself as it were out of the Constitution, should no longer respect either the person or the property of the subject, and either should make no account of his conventions with his Parliament, or attempt to force it implicitly to submit to his will?—It would be resistance.
Without entering here into the discussion of a doctrine which would lead us to enquire into the first principles of Civil Government, consequently engage us in a long disquisition, and with regard to which, besides, persons free from prejudices agree pretty much in their opinions, I shall only observe here (and it will be sufficient for my purpose) that the question has been decided in favour of this doctrine by the Laws of England, and that resistance is looked upon by them as the ultimate and lawful resource against the violences of Power.
It was resistance that gave birth to the Great Charter, that lasting foundation of English Liberty; and the excesses of a Power established by force, were also restrained by force (a) . It has been by the same means that, at different times, the People have procured the confirmation of the same Charter. Lastly, it has also been the resistance to a King who made no account of his own engagements, that has, in the issue, placed on the Throne the family which is now in possession of it.
This is not all; this resource which, till then, had only been an act of force, opposed to other acts of force, was, at that aera, expresly recognized by the Law itself. The Lords and Commons, solemnly assembled, declared, that “King James the Second, having endeavoured to subvert the Constitution of the Kingdom, by breaking the original contract between King and People, and having violated the fundamental laws, and withdrawn himself, had abdicated the Government; and that the Throne was thereby vacant” (a) .1
And lest those principles to which the Revolution thus gave a sanction, should, in process of time, become mere arcana of State, exclusively appropriated, and only known, to a certain class of Subjects, the same Act, we have just mentioned, expresly insured to in-dividuals the right of publicly preferring complaints against the abuses of Government, and moreover, of being provided with arms for their own defence. Judge Blackstone expresses himself in the following terms, in his Commentaries on the Laws of England. (B. I. Ch. i.)
“And lastly, to vindicate those rights, when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the Courts of law; next, to the right of petitioning the King and Parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defence.”2
Lastly, this right of opposing violence, in whatever shape, and from whatever quarter, it may come, is so generally acknowledged, that the Courts of law have sometimes grounded their judgments upon it. I shall relate on this head a fact which is somewhat remarkable.
A Constable, being out of his precinct, arrested a woman whose name was Anne Dekins; one Tooly took her part, and in the heat of the fray, killed the assistant of the Constable.
Being prosecuted for murder, he alleged, in his defence, that the illegality of the imprisonment was a sufficient provocation to make the homicide excusable, and intitle him to the benefit of Clergy. The Jury having settled the matter of fact, left the criminality of it to be decided by the Judge, by returning a special verdict. The cause was adjourned to the King’s Bench, and thence again to Serjeants Inn, for the opinion of the twelve Judges. Here follows the opinion delivered by Chief Justice Holt, in giving judgment.
“If one be imprisoned upon an unlawful authority, it is a sufficient provocation to all people, out of compassion, much more so when it is done under colour of justice; and when the liberty of the subject is invaded, it is a provocation to all the subjects of England. A Man ought to be concerned for Magna Charta and the laws; and if any one against law imprison a Man, he is an offender against Magna Charta.” After some debate, occasioned chiefly by Tooly’s appearing not to have known that the Constable was out of his precinct, seven of the Judges were of opinion that the prisoner was guilty of Manslaughter, and he was admitted to the benefit of Clergy (a) .
But it is with respect to this right of an ultimate resistance, that the advantage of a free press appears in a most conspicuous light. As the most important rights of the People, without the prospect of a resistance which overawes those who should attempt to violate them, are little more than mere shadows,—so this right of resisting, itself, is but vain, when there exists no means of effecting a general union between the different parts of the People.
Private individuals, unknown to each other, are forced to bear in silence injuries in which they do not see other people take a concern. Left to their own individual strength, they tremble before the formidable and ever-ready power of those who govern; and as these latter well know, nay, are apt to over-rate the advantages of their own situation, they think they may venture upon any thing.
But when they see that all their actions are exposed to public view,—that in consequence of the celerity with which all things become communicated, the whole Nation forms, as it were, one continued irritable body, no part of which can be touched without exciting an universal tremor, they become sensible that the cause of each individual is really the cause of all, and that to attack the lowest among the People, is to attack the whole People.
Here also we must remark the error of those who, as they make the liberty of the people to consist in their power, so make their power consist in their action.
When the People are often called to act in their own persons, it is impossible for them to acquire any exact knowledge of the state of things. The event of one day effaces the notions which they had begun to adopt on the preceding day; and amidst the continual change of things, no settled principle, and above all no plans of union, have time to be established among them.—You wish to have the People love and defend their laws and liberty; leave them, therefore, the necessary time to know what laws and liberty are, and to agree in their opinion concerning them;—you wish an union, a coalition, which cannot be obtained but by a slow and peaceable process, forbear therefore continually to shake the vessel.
Nay farther, it is a contradiction, that the People should act, and at the same time retain any real power. Have they, for instance, been forced by the weight of public oppression to throw off the restraints of the law, from which they no longer received protection, they presently find themselves suddenly become subject to the command of a few Leaders, who are the more absolute in proportion as the nature of their power is less clearly as certained: nay, perhaps they must even submit to the toils of war, and to military discipline.
If it be in the common and legal course of things that the People are called to move, each individual is obliged, for the success of the measures in which he is then made to take a concern, to join himself to some party; nor can this party be without a Head. The Citizens thus grow divided among themselves, and contract the pernicious habit of submitting to Leaders. They are, at length, no more than the clients of a certain number of Patrons; and the latter soon becoming able to command the arms of the Citizens in the same manner as they at first governed their votes, make little account of a People with one part of which they know how to curb the other.
But when the moving springs of Government are placed entirely out of the body of the People, their action is thereby disengaged from all that could render it complicated, or hide it from the eye. As the People thenceforward consider things speculatively, and are, if I may be allowed the expression, only spectators of the game, they acquire just notions of things; and as these notions, amidst the general quiet, get ground and spread themselves far and wide, they at length entertain, on the subject of their liberty, but one opinion.
Forming thus, as it were, one body, the People, at every instant, has it in its power to strike the decisive blow which is to level every thing. Like those mechanical powers the greatest efficiency of which exists at the instant which precedes their entering into action, it has an immense force, just because it does not yet exert any; and in this state of stillness, but of attention, consists its true momentum.3
With regard to those who (whether from personal privileges, or by virtue of a commission from the People) are intrusted with the active part of Government, as they, in the mean while, see themselves exposed to public view, and observed as from a distance by Men free from the spirit of party, and who place in them but a conditional trust, they are afraid of exciting a commotion which, though it might not prove the destruction of all power, yet would surely and immediately be the destruction of their own. And if we might suppose that, through an extraordinary conjunction of circumstances, they should resolve among themselves upon the sacrifice of those laws on which public liberty is founded, they would no sooner lift up their eyes towards that extensive Assembly which views them with a watchful attention, than they would find their public virtue return upon them, and would make haste to resume that plan of conduct out of the limits of which they can expect nothing but ruin and perdition.
In short, as the body of the People cannot act without either subjecting themselves to some Power, or effecting a general destruction, the only share they can have in a Government with advantage to themselves, is not to interfere, but to influence,—to be able to act, and not to act.
The Power of the People is not when they strike, but when they keep in awe: it is when they can overthrow every thing, that they never need to move; and Manlius included all in four words, when he said to the People of Rome, Ostendite bellum, pacem habebitis.4
[(a) ]Lord Lyttelton says extremely well in his Persian Letters, “If the privileges of the People of England be concessions from the Crown, is not the power of the Crown itself, a concession from the People?” It might be said with equal truth, and somewhat more in point to the subject of this Chapter,—If the privileges of the People be an encroachment on the power of Kings, the power itself of Kings was at first an encroachment (no matter whether effected by surprize) on the natural liberty of the people. [[George Lord Lyttleton, Letters from a Persian in England to His Friend at Ispahan (1735), letter 59.]]
[(a) ]The Bill of Rights has since given a new sanction to all these principles.
[1. ]De Lolme quotes from the “Declaration of the Lords Spiritual and Temporal, and Commons,” issued on February 13, 1688/89. The Parliamentary Bill of Rights, enacted soon afterward, contained a slightly altered formulation of this claim.
[2. ]William Blackstone, Commentaries on the Laws of England, 1:140.
[(a) ]See Reports of Cases argued, debated, and adjudged in Banco Reginae, in the time of the late Queen Anne. [[De Lolme cites, with deletions and slight variations, Chief Justice Sir John Holt’s comments in the 1709 case of R. v. Tooley, Arch and Lawson. “Benefit of clergy”—a medieval privilege that originally enabled members of the clergy who had been convicted in the royal courts to receive lesser punishment from the ecclesiastical courts—in the eighteenth century typically functioned to mutate a capital felony into a noncapital offense.]]
[3. ]“Movement” or “power” (figurative).
[4. ]“Make but a show of war, and you shall have peace.” De Lolme quotes the statement attributed to the Roman consul Marcus Manlius Capitolinus, who was credited with saving Rome from attack by the Gauls in 390 b.c.e. and who later led a rebellion of plebeian debtors against their patrician creditors. (Livy gives a slightly different version of the statement in Ab urbe condita, book 6, chapter 18.7.)