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 XVI1

Second Difference—The Manner after which the Laws for the Liberty of the Subject are executed in England.

The second difference I mean to speak of, between the English Government and that of other free States, concerns the important object of the execution of the Laws. On this article, also, we shall find the advantage to lie on the side of the English Government; and, if we make a comparison between the History of those States and that of England, it will lead us to the following observation, viz. that, though in other free States the laws concerning the liberty of the Citizens were imperfect, yet the execution of them was still more defective. In England, on the contrary, the laws for the security of the Subject, are not only very extensive in their provisions, but the manner in which they are executed, carries these advantages still farther; and English Subjects enjoy no less liberty from the spirit both of justice and mildness, by which all branches of the Government are influenced, than from the accuracy of the laws themselves.

The Roman Commonwealth will here again supply us with examples to prove the former part of the above assertion. When I said, in the foregoing Chapter, that, in times of public commotion, no provisions were made for the body of the People, I meant no provisions that were likely to prove effectual in the event. When the People were roused to a certain degree, or when their concurrence was necessary to carry into effect certain resolutions, or measures, that were particularly interesting to the Men in power, the latter could not, with any prudence, openly profess a contempt for the political wishes of the People; and some declarations expressed in general words, in favour of public liberty, were indeed added to the laws that were enacted on those occasions. But these declarations, and the principles which they tended to establish, were afterwards even openly disregarded in practice.

Thus, when the People were made to vote, about a year after the expulsion of the Kings, that the Regal Government never should be again established in Rome, and that those who should endeavour to restore it, should be devoted to the Gods, an article was added which, in general terms, confirmed to the Citizens the right they had before enjoyed under the Kings, of appealing to the People from the sentences of death passed upon them. No punishment (which will surprise the Reader) was decreed against those who should violate this law; and indeed the Consuls, as we may see in Dionysius of Halicarnassus and Livy,2 concerned themselves but little about the appeals of the Citizens, and in the more than military exercise of their functions, continued to sport with rights which they ought to have respected, however imperfectly and loosely they had been secured.

An article to the same purport with the above, was afterwards also added to the laws of the Twelve Tables; but the Decemvirs,3 to whom the execution of those laws was at first committed, behaved exactly in the same manner, and even worse than the Consuls had done before them; and after they were expelled (a) the Magistrates who succeeded them, appear to have been as little tender of the lives of the Citizens. I shall, among many instances, relate one which will shew upon what slight grounds the Citizens were exposed to have their lives taken away.—Spurius Maelius being accused of endeavouring to make himself King, was summoned by the Master of the Horse, to appear before the Dictator, in order to clear himself of this somewhat extraordinary imputation. Spurius took refuge among the People; the Master of the Horse pursued him, and killed him on the spot. The multitude having thereupon expressed a great indignation, the Dictator had them called to his Tribunal, and declared that Spurius had been lawfully put to death, even though he might be innocent of the crime laid to his charge, for having refused to appear before the Dictator, when summoned to do so by the Master of the Horse (a) .

About one hundred and forty years after the times we mention, the law concerning the appeals to the People, was enacted for the third time. But we do not see that it was better observed afterwards than it had been before: we find it frequently violated, since that period, by the different Magistrates of the Republic, and the Senate itself, notwithstanding this same law, at times made formidable examples of the Citizens. Of this we have an instance in the three hundred soldiers who had pillaged the Town of Rhegium. The Senate, of its own authority, ordered them all to be put to death. In vain did the Tribune Flaccus remonstrate against so severe an exertion of public justice on Roman Citizens; the Senate, says Valerius Maximus, nevertheless persisted in its resolution (b) .

All these laws for securing the lives of the Citizens, had hitherto been enacted without any mention being made of a punishment against those who should violate them. At last the celebrated Lex Porcia was passed, which subjected to banishment those who should cause a Roman Citizen to be scourged and put to death. From a number of instances posterior to this law, it appears that it was not better observed than those before it had been: Caius Gracchus, therefore, caused the Lex Sempronia to be enacted, by which a new sanction was given to it.4 But this second law did not secure his own life, and that of his friends, better than the Lex Porcia had done that of his brother, and those who had sup-ported him: indeed, all the events which took place about those times, rendered it manifest that the evil was such as was beyond the power of any laws to cure.—I shall here mention a fact which affords a remarkable instance of the wantonness with which the Roman Magistrates had accustomed themselves to take away the lives of the Citizens. A Citizen, named Memmius, having put up for the Consulship, and publicly canvassing for the same, in opposition to a Man whom the Tribune Saturninus supported, the latter caused him to be apprehended, and made him expire under blows in the public Forum. The Tribune even carried his insolence so far, as Cicero informs us, as to give to this act of cruelty, transacted in the presence of the whole People assembled, the outward form of a lawful act of public Justice (a) .

Nor were the Roman Magistrates satisfied with committing acts of injustice in their political capacity, and for the support of the power of that Body of which they made a part. Avarice and private rapine were at last added to political ambition. The Provinces were first oppressed and plundered. The calamity, in process of time, reached Italy itself, and the centre of the Republic; till at last the Lex Calpurnia de repetundis was enacted to put a stop to it. By this law an action was given to the Citizens and Allies for the recovery of the money extorted from them by Magistrates, or Men in power; and the Lex Junia afterwards added the penalty of banishment to the obligation of making restitution.5

But here another kind of disorder arose. The Judges proved as corrupt, as the Magistrates had been oppressive. They equally betrayed, in their own province, the cause of the Republic with which they had been intrusted; and rather chose to share in the plunder of the Consuls, the Praetors, and the Proconsuls, than put the laws in force against them.

New expedients were, therefore, resorted to, in order to remedy this new evil. Laws were made for judging and punishing the Judges themselves; and above all, continual changes were made in the manner of composing their Assemblies. But the malady lay too deep for common legal provisions to remedy. The guilty Judges employed the same resources in order to avoid conviction, as the guilty Magistrates had done; and those continual changes at which we are amazed, were made in the constitution of the judiciary Bodies (a) , instead of obviating the cor-ruption of the Judges, only transferred to other Men the profit arising from becoming guilty of it. It was grown to be a general complaint, so early as the times of the Gracchi, that no Man who had money to give, could be brought to punishment (a) . Cicero says that in his time, the same opinion was become settled and universally received (b) ; and his Speeches are full of his lamentations on what he calls the levity, and the infamy, of the public Judgments.

Nor was the impunity of corrupt Judges, the only evil under which the Republic laboured. Commotions of the whole Empire at last took place. The horrid vexations, and afterwards the acquittal, of Aquilius, Proconsul of Syria, and of some others who had been guilty of the same crimes, drove the Provinces of Asia to desperation: and then it was that that terrible war of Mithri-dates arose, which was ushered in by the death of eighty thousand Romans, massacred in one day, in all the Cities of Asia (c) .6

The Laws and public Judgments not only thus failed of the end for which they had been established: they even became, at length, new means of oppression added to those which already existed. Citizens possessed of wealth, persons obnoxious to particular Bodies, or the few Magistrates who attempted to stem the torrent of the general corruption, were accused and condemned; while Piso, of whom Cicero in his speech against him relates facts which make the Reader shudder with horror, and Verres, who had been guilty of enormities of the same kind, escaped unpunished.7

Hence a war arose still more formidable than the former, and the dangers of which we wonder that Rome was able to surmount. The greatest part of the Italians revolted at once, exasperated by the tyranny of the public Judgments; and we find in Cicero, who informs us of the cause of this revolt, which was called the Social war, a very expressive account both of the unfortunate condition of the Republic, and of the perversion that had been made of the methods taken to remedy it. “—An hundred and ten years are not yet elapsed (says he) since the law for the recovery of money extorted by Magistrates was first propounded by the Tribune Calpurnius Piso. A number of other laws to the same effect, continually more and more severe, have followed: but so many persons have been accused, so many condemned, so formidable a war has been excited in Italy by the terror of the public Judgments, and when the laws and Judgments have been suspended, such an oppression and plunder of our Allies have prevailed, that we may truly say that it is not by our own strength, but by the weakness of others, that we continue to exist” (a) .

I have entered into these particulars with regard to the Roman Commonwealth, because the facts on which they are grounded, are remarkable of themselves, and yet no just conclusion could be drawn from them, unless a series of them were presented to the Reader. Nor are we to account for these facts, by the luxury which prevailed in the latter ages of the Republic, by the corruption of the manners of the Citizens, their degeneracy from their ancient principles, and such like loose general phrases, which may perhaps be useful to express the manner itself in which the evil became manifested, but by no means set forth the causes of it.

The above disorders arose from the very nature of the Government of the Republic,—of a Government in which the Executive and Supreme Power being made to centre in the Body of those in whom the People had once placed their confidence, there remained no other effectual Power in the State that might render it necessary for them to keep within the bounds of justice and decency. And in the mean time, as the People, who were intended as a check over that Body, continually gave a share in this Executive authority to those whom they intrusted with the care of their interests, they increased the evils they complained of, as it were at every attempt they made to remedy them, and instead of raising up Opponents to those who were become the enemies of their liberty, as it was their intention to do, they continually supplied them with new Associates.

From this situation of affairs, flowed as an unavoidable consequence, that continual desertion of the cause of the People, which, even in time of Revolutions, when the passions of the People themselves were roused, and they were in a great degree united, manifested itself in so remarkable a manner. We may trace the symptoms of the great political defect here mentioned, in the earliest ages of the Commonwealth, as well as in the last stage of its duration. In Rome, while small and poor, it rendered vain whatever rights or power the People possessed, and blasted all their endeavours to defend their liberty, in the same manner as, in the more splendid ages of the Commonwealth, it rendered the most salutary regulations utterly fruitless, and even instrumental to the ambition and avarice of a few. The prodigious fortune of the Republic, in short, did not create the disorder, it only gave full scope to it.

But if we turn our view towards the History of the English Nation, we shall see how, from a Government in which the above defects did not exist, different consequences have followed:—how cordially all ranks of Men have always united together to lay under proper re-straints this Executive power, which they knew could never be their own. In times of public Revolutions, the greatest care, as we have before observed, was taken to ascertain the limits of that Power; and after peace had been restored to the State, those who remained at the head of the Nation, continued to manifest an unwearied jealousy in maintaining those advantages which the united efforts of all had obtained.

Thus it was made one of the Articles of Magna Charta,8 that the Executive Power should not touch the person of the Subject but in consequence of a judgment passed upon him by his peers; and so great was afterwards the general union in maintaining this law, that the Trial by Jury, that admirable mode of proceeding which so effectually secures the Subject against all the attempts of Power, even (which seemed so difficult to obtain) against such as might be made under the sanction of the Judicial authority, hath been preserved to this day. It has even been preserved in all its original purity, though the same has been successively suffered to decay, and then to be lost, in the other Countries of Europe, where it had been formerly known (a) . Nay, though this privilege of being tried by one’s peers, was at first a privilege of Conquerors and Masters, exclusively appropriated to those parts of Nations which had originally invaded and subdued the rest by arms, it has in England been successively extended to every Order of the People.

And not only the person, but also the property, of the individual, has been secured against all arbitrary attempts from the Executive power, and the latter has been success-ively restrained from touching any part of the property of the Subject, even under pretence of the necessities of the State, any otherwise than by the free grant of the Representatives of the People. Nay, so true and persevering has been the zeal of these Representatives, in asserting on that account the interests of the Nation, from which they could not separate their own, that this privilege of taxing themselves, which was in the beginning grounded on a most precarious tenure, and only a mode of governing adopted by the Sovereign for the sake of his own convenience, has become, in time, a settled right of the People, which the Sovereign has found it at length necessarily solemnly and repeatedly to acknowledge.

Nay more, the Representatives of the People have applied this right of Taxation to a still nobler use than the mere preservation of property; they have in process of time, succeeded in converting it into a regular and constitutional means of influencing the motions of the Executive Power. By means of this Right, they have gained the advantage of being constantly called to concur in the measures of the Sovereign,—of having the greatest attention shewn by him to their requests, as well as the highest regard paid to any engagements that he enters into with them. Thus has it become at last the peculiar happiness of English Subjects, to whatever other People either ancient or modern we compare them, to enjoy a share in the Government of their Country, by electing Representatives, who, by reason of the peculiar circumstances in which they are placed, and of the extensive rights they possess, are both willing faithfully to serve those who have appointed them, and able to do so.

And indeed the Commons have not rested satisfied with establishing, once for all, the provisions for the liberty of the People which have been just mentioned: they have afterwards made the preservation of them, the first object of their care (a) , and taken every opportunity of giving them new vigour and life.

Thus, under Charles the First, when attacks of a most alarming nature were made on the privilege of the People to grant free supplies to the Crown, the Commons vindicated, without loss of time, that great right of the Nation, which is the Constitutional bulwark of all others, and hastened to oppugn, in their beginning, every precedent of a practice that must in the end have produced the ruin of public liberty.

They even extended their care to abuses of every kind. The judicial authority, for instance, which the Executive Power had imperceptibly assumed to itself, both with respect to the person and property of the individual, was abrogated by the Act which abolished the Court of Star Chamber; and the Crown was thus brought back to its true Constitutional office, viz. the countenancing, and supporting with its strength, the execution of the Laws.9

The subsequent endeavours of the Legislature have carried even to a still greater extent the above privileges of the People. They have moreover succeeded in restraining the Crown from any attempt to seize and confine, even for the shortest time, the person of the Subject, unless it be in the cases ascertained by the Law, of which the Judges of it are to decide.

Nor has this extensive unexampled freedom at the expence of the Executive Power, been made, as we might be inclinable to think, the exclusive appropriated privilege of the great and powerful. It is to be enjoyed alike by all ranks of Subjects. Nay, it was the injury done to a common Citizen that gave existence to the Act which has completed the security of this interesting branch of public liberty.—The oppression of an obscure individual, says Judge Blackstone, gave rise to the famous Habeas Corpus Act: Junius has quoted this observation of the Judge; and the same is well worth repeating a third time, for the just idea it conveys of that readiness of all Orders of Men, to unite in defence of common liberty, which is a characteristic circumstance in the English Government (a) .10

And this general union in favour of public liberty, has not been confined to the framing of laws for its security: it has operated with no less vigour in bringing to punishment such as have ventured to infringe them; and the Sovereign has constantly found it necessary to give up the violators of those laws, even when his own Servants, to the Justice of their Country.

Thus we find, so early as the reign of Edward the First, Judges who were convicted of having committed exactions in the exercise of their offices, to have been condemned by a sentence of Parliament (b) . From the immense fines which were laid upon them, and which it seems they were in a condition to pay, we may indeed conclude that, in those early ages of the Constitution, the remedy was applied rather late to the disorder; but yet it was at last applied.

Under Richard the Second, examples of the same kind were renewed. Michael de la Pole, Earl of Suffolk, who had been Lord Chancellor of the kingdom, the Duke of Ireland, and the Archbishop of York, having abused their power by carrying on designs that were subversive of public liberty, were declared guilty of High-treason; and a number of Judges who, in their judicial capacity, had acted as their instruments, were involved in the same condemnation (a) .

Under the reign of Henry the Eighth, Sir Thomas Empson, and Edmund Dudley, who had been the promoters of the exactions committed under the preceding reign, fell victims to the zeal of the Commons for vindicating the cause of the People.11 Under King James the First, Lord Chancellor Bacon experienced that neither his high dignity, nor great personal qualifications, could screen him from having the severest censure passed upon him, for the corrupt practices of which he had suffered himself to become guilty. And under Charles the First, the Judges having attempted to imitate the example of the Judges under Richard the Second, by delivering opinions subversive of the rights of the People, found the same spirit of watchfulness in the Commons, as had proved the ruin of the former. Lord Finch, keeper of the Great Seal, was obliged to fly beyond sea. The Judges Davenport and Crawley were imprisoned: and Judge Berkeley was seized while sitting upon the Bench, as we find in Rushworth.12

In the reign of Charles the Second, we again find fresh instances of the vigilance of the Commons. Sir William Scroggs, Lord Chief Justice of the King’s-Bench, Sir Francis North, Chief Justice of the Common Pleas, Sir Thomas Jones, one of the Judges of the King’s-Bench, and Sir Richard Weston, one of the Barons of the Exchequer, were impeached by the Commons, for partialities shewn by them in the administration of justice; and Chief Justice Scroggs, against whom some positive charges were well proved, was removed from his employments.13

The several examples offered here to the Reader, have been taken from several different periods of the English History, in order to shew that neither the influence, nor the dignity, of the infractors of the laws, even when they have been the nearest Servants of the Crown, have ever been able to check the zeal of the Commons in asserting the rights of the People. Other examples might perhaps be related to the same purpose; though the whole number of those to be met with, will, upon enquiry, be found the smaller, in proportion as the danger of infringing the laws has always been indubitable.

So much regularity has even (from all the circumstances above mentioned) been introduced into the operations of the Executive Power in England,—such an exact Justice have the People been accustomed, as a consequence, to expect from that quarter, that even the Sovereign, for his having once suf-fered himself personally to violate the safety of the Subject, did not escape severe censure. The attack made by order of Charles the Second, on the person of Sir John Coventry, filled the Nation with astonishment; and this violent gratification of private passion, on the part of the Sovereign (a piece of self-indulgence with regard to inferiors, which whole classes of individuals in certain Countries almost think that they have a right to) excited a general ferment. “This event (says Bishop Burnet) put the House of Commons in a furious uproar. . . . It gave great advantages to all those who opposed the Court; and the names of the Court and Country party, which till now had seemed to be forgotten, were again revived” (a) .

There are the limitations that have been set, in the English Government, on the operations of the Executive Power: limitations to which we find nothing comparable in any other free States, ancient or modern; and which are owing, as we have seen, to that very circumstance which seemed at first sight to prevent the possibility of them, I mean the greatness and unity of that Power; the effect of which has been, in the event, to unite upon the same object, the views and efforts of all Orders of the People.

From this circumstance, that is, the unity and peculiar stability of the Executive Power in England, another most advantageous consequence has followed, that has been before noticed, and which it is not improper to mention again here, as this Chapter is intended to confirm the principles laid down in the former ones,—I mean the unremitted continuance of the same general union among all ranks of Men, and the spirit of mutual justice which thereby continues to be diffused through all orders of Subjects.

Though surrounded by the many boundaries that have just now been described, the Crown, we must observe, has preserved its Prerogative undivided: it still possesses its whole effective strength, and is only tied by its own engagements, and the consideration of what it owes to its dearest interests.

The great, or wealthy Men in the Nation, who, assisted by the body of the People, have succeeded in reducing the exercise, of its au-thority within such well defined limits, can have no expectation that it will continue to confine itself to them, any longer than they themselves continue, by the justice of their own conduct, to deserve that support of the People which alone can make them appear of consequence in the eye of the Sovereign,—no probable hopes that the Crown will continue to observe those laws by which their wealth, dignity, liberty, are protected, any longer than they themselves also continue to observe them.

Nay more, all those claims of their rights which they continue to make against the Crown, are encouragements which they give to the rest of the People to assert their own rights against them. Their constant opposition to all arbitrary proceedings of that Power, is a continual declaration they make against any acts of oppression which the superior advantages they enjoy, might entice them to commit on their inferior fellow-subjects. Nor was that severe censure, for instance, which they concurred in passing on an unguarded violent action of their Sovereign, only a restraint put on the personal actions of future English Kings: no, it was a much more extensive provision for the securing of public liberty;—it was a solemn engagement entered into by all the powerful Men in the State to the whole body of the People, scrupulously to respect the person of the lowest among them.

And indeed the constant tenor of the conduct even of the two Houses of Parliament shews us, that the above observations are not matters of mere speculation. From the earliest times we see the Members of the House of Commons to have been very cautious not to assume any distinction that might alienate from them the affections of the rest of the People (a) . Whenever those privileges which were necessary to them for the discharge of their trust have proved burdensome to the Community, they have retrenched them. And those of their Members who have applied either these privileges, or in general that influence which they derived from their situation, to any oppressive purposes, they themselves have endeavoured to bring to punishment.

Thus, we see, that in the reign of James the First, Sir Giles Mompesson, a Member of the House of Commons, having been guilty of monopolies and other acts of great oppression on the People, was not only expelled, but impeached and prosecuted with the greatest warmth by the House, and finally condemned by the Lords to be publicly degraded from his rank of a Knight, held for ever an infamous person, and imprisoned during life.

In the same reign, Sir John Bennet, who was also a Member of the House of Commons, having been found to have been guilty of several corrupt practices, in his capacity of Judge of the Prerogative Court of Canterbury, such as taking exorbitant fees, and the like, was expelled the House, and prosecuted for these offences.14

In the year 1641, Mr. Henry Benson, Member for Knaresborough, having been detected in selling protections, experienced likewise the indignation of the House, and was expelled.15

In fine, in order as it were to make it completely notorious, that neither the condition of Representative of the People, nor even any degree of influence in their House, could excuse any one of them from strictly observing the rules of justice, the Commons did on one occasion pass the most severe censure they had power to inflict, upon their Speaker himself, for having, in a single instance, attempted to convert the discharge of his duty as Speaker into a means of private emolument.—Sir John Trevor, Speaker of the House of Commons, having, in the sixth year of the reign of King William, received a thousand guineas from the City of London, “as a gratuity for the trouble he had taken with regard to the passing of the Orphan Bill,” was voted guilty of a High crime and misdemeanour, and expelled the House. Even the inconsiderable sum of twenty guineas which Mr. Hungerford, another Member, had been weak enough to accept on the same score, was looked upon as deserving the notice of the House; and he was likewise expelled (a) .16

If we turn our view towards the House of Lords, we shall find that they have also constantly taken care that their peculiar privileges should not prove impediments to the common justice which is due to the rest of the People (b) . They have constantly agreed to every just proposal that has been made to them on that subject by the Commons: and indeed, if we consider the numerous and oppressive privileges claimed by the Nobles in most other Countries, and the vehement spirit with which they are commonly asserted, we shall think it no small praise to the body of the Nobility in England (and also to the nature of that Government of which they make a part) that it has been by their free consent that their privileges have been confined to what they now are; that is to say, to no more, in general, than what is necessary to the accomplishment of the end and constitutional design of that House.

In the exercise of their Judicial authority with regard to civil matters, the Lords have manifested a spirit of equity nowise inferior to that which they have shewn in their Legislative capacity. They have, in the discharge of that function, (which of all others is so liable to create temptations) shewn an uncorruptness really superior to what any judicial Assembly in any other Nation can boast. Nor do I think that I run any risk of being contradicted, when I say that the conduct of the House of Lords, in their civil judicial capacity, has constantly been such as has kept them above the reach of even suspicion or slander.

Even that privilege which they enjoy, of exclusively trying their own Members, in case of any accusation that may affect their life (a privilege which we might at first sight think repugnant to the idea of a regular Government, and even alarming to the rest of the People) has constantly been made use of by the Lords to do justice to their fellow-subjects; and if we cast our eyes either on the collection of the State Trials, or on the History of England, we shall find very few examples, if any, of a Peer, really guilty of the offence laid to his charge, that has derived any advantage from his not being tried by a Jury of Commoners.

Nor has this just and moderate conduct of the two Houses of Parliament in the exercise of their powers (a moderation so unlike what has been related of the conduct of the powerful Men in the Roman Republic) been the only happy consequence of that salutary jealousy which those two Bodies entertain of the power of the Crown. The same motive has also engaged them to exert their utmost endeavours to put the Courts of Justice under proper restraints: a point of the highest importance to public liberty.

They have, from the earliest times, preferred complaints against the influence of the Crown over these Courts, and at last procured Laws to be enacted by which such influence has been intirely prevented: all which measures, we must observe, were at the same time strong declarations that no Subjects, however exalted their rank might be, were to think themselves exempt from submitting to the uniform course of the Law, or hope to influence or over-awe it. The severe examples which they have united to make on those Judges who had rendered themselves the instruments of the passions of the Sovereign, or of the designs of the Ministers of the Crown, are also awful warnings to the Judges who have succeeded them, never to attempt to deviate in favour of any, the most powerful individuals, from that strait line of Justice which the joint Wisdom of the Legislature has once marked out to them.

This singular situation of the English Judges relatively to the three Constituent Powers of the State, (and also the formidable support which they are certain to receive from them as long as they continue to be the faithful Ministers of Justice) has at last created such an impartiality in the distribution of public Justice in England, has introduced into the Courts of Law the practice of such a thorough disregard of either the influence or wealth of the contending Parties, and procured to every individual, both such an easy access to these Courts, and such a certainty of redress, as are not to be paralleled in any other Government.—Philip de Comines, so long as three hundred years ago, commended in strong terms the exactness with which Justice is done in England to all ranks of Subjects (a) ; and the impartiality with which the same is administered in these days, will with still more reason create the surprize of every Stranger who has an opportunity of observing the customs of this Country (b) .

Indeed, to such a degree of impartiality has the administration of public Justice been brought in England, that it is saying nothing beyond the exact truth, to affirm that any violation of the laws, though perpetrated by Men of the most extensive influence, nay, though committed by the special direction of the very first Servants of the Crown, will be publicly and completely redressed. And the very lowest of subjects will obtain such redress, if he has but spirit enough to stand forth, and appeal to the laws of his Country.—Most extraordinary circumstances these! which those who know the difficulty that there is in establishing just laws among Mankind, and in providing afterwards for their due execution, only find credible because they are matters of fact, and can begin to account for, only when they look up to the constitution of the Government itself; that is to say, when they consider the circumstances in which the Executive Power, or the Crown, is placed in relation to the two Bodies that concur with it to form the Legislature,—the circumstances in which those two Assemblies are placed in relation to the Crown, and to each other, and the situation in which all the Three find themselves with respect to the whole Body of the People (a) .

In fine, a very remarkable circumstance in the English Government (and which alone evinces something peculiar and excellent in its Nature), is that spirit of extreme mildness with which Justice in criminal cases, is administered in England; a point with regard to which England differs from all other Countries in the World.

When we consider the punishments in use in the other States in Europe, we wonder how Men can be brought to treat their fellow-creatures with so much cruelty; and the bare consideration of those punishments would sufficiently convince us (supposing we did not know the fact from other circumstances) that the Men in those States who frame the laws, and preside over their execution, have little apprehension that either they, or their friends, will ever fall victims to those laws which they thus rashly establish.

In the Roman Republic, circumstances of the same nature with those just mentioned, were also productive of the greatest defects in the kind of criminal Justice which took place in it. That class of Citizens who were at the head of the Republic, and who knew how mutually to exempt each other from the operation of any too severe laws or practice, not only allowed themselves great liberties, as we have seen, in disposing of the lives of the inferior Citizens, but had also introduced into the exercise of the illegal powers they assumed to themselves in that respect, a great degree of cruelty (a) .

Nor were things more happily conducted in the Grecian Republics. From their Democratical nature, and the frequent Revolutions to which they were subject, we naturally expect to see that authority to have been used with mildness, which those who enjoyed it must have known to have been but precarious; yet, such were the effects of the violence attending those very Revolutions, that a spirit both of great irregularity and cruelty had taken place among the Greeks, in the exercise of the power of inflicting punishments. The very harsh laws of Draco are well known, of which it was said that they were not written with ink, but with blood.17 The severe laws of the Twelve Tables among the Romans, were in great part brought over from Greece. And it was an opinion commonly received in Rome, that the cruelties practised by the Magistrates on the Citizens, were only imitations of the examples which the Greeks had given them (b) .

In fine, the use of Torture, that method of administering Justice in which folly may be said to be added to cruelty, had been adopted by the Greeks, in consequence of the same causes which had concurred to produce the irregularity of their criminal Justice. And the same practice continues, in these days, to prevail on the continent of Europe, in consequence of that general arrangement of things which creates there such a carelessness about remedying the abuses of public Authority.

But the nature of that same Government which has procured to the People of England all the advantages we have before described, has, with still more reason, freed them from the most oppressive abuses which prevail in other countries.

That wantonness in disposing of the dearest rights of Mankind, those insults upon human Nature, of which the frame of the Governments established in other States, unavoidably becomes more or less productive, are entirely banished from a Nation which has the happiness of having its interests taken care of by Men who continue to be themselves ex-posed to the pressure of those laws which they concur in making, and of every tyrannic practice which they suffer to be introduced,—by Men whom the advantages which they possess above the rest of the People, render only more exposed to the abuses they are appointed to prevent, only more alive to the dangers against which it is their duty to defend the Community (a) .

Hence we see that the use of Torture has, from the earliest times, been utterly unknown in England. And all attempts to introduce it, whatever might be the power of those who made them, or the circumstances in which they renewed their endeavours, have been strenuously opposed and defeated (b) .

From the same cause also arose that remarkable forbearance of the English Laws, to use any cruel severity in the punishments which experience shewed it was necessary for the preservation of Society to establish: and the utmost vengeance of those laws, even against the most enormous Offenders, never extends beyond the simple deprivation of life (a) .18

Nay, so anxious has the English Legislature been to establish mercy, even to convicted Offenders, as a fundamental principle of the Government of England, that they made it an express article of that great public Compact which was framed at the important aera of the Revolution, that “no cruel and unusual punishments should be used” (b) .—They even endeavoured, by adding a clause for that purpose to the Oath which Kings were thenceforward to take at their Coronation, as it were to render it an everlasting obligation of English Kings, to make Justice to be “executed with mercy” (c) .19

[1. ]This chapter first appeared in the original English-language edition of 1775.

[2. ]For Livy see above, book 2, chapter 2, p. 150, note a; for Dionysius see book 2, chapter 15, p. 221, note 2.

[3. ]See above, book 2, chapter 15, pp. 224, note 6.

[(a) ]At the time of the expulsion of the Decemvirs, a law was also enacted, that no Magistrate should be created from whom no appeal could be made to the People (Magistratus sine provocatione. Tit. Liv. book iii. § 55.) [[“A magistrate without appeal.” See Titus Livius (Livy), Ab urbe condita, book 3, chapter 55.5. The decemvirs were expelled from Rome in 449 b.c.e. by which the people expressly meant to abolish the Dictatorship: but, from the fact that will just now be related, and which happened about ten years afterwards, we shall see that this law was not better observed than the former ones had been.

[(a) ]“Tumultuantem deinde multitudinem, incerta existimatione facti, ad concionem vocari jussit, & Maelium jure caesum pronunciavit, etiamsi regni crimine insons fuerit, qui vocatus à Magistro equitum, ad Dictatorem non venisset. Tit. Liv. lib. iv. § 15. [[Titus Livius (Livy), Ab urbe condita, book 4, chapter 15.1. De Lolme’s text provides an approximate translation of the passage cited in his note.

[(b) ]Val. Max. book ii. c. 7. [[Valerius Maximus, Factorum ac dictorum memorabilium libri IX, book 2, chapter 7, section 15t. For Valerius Maximus, see above, book 2, chapter 7, p. 179, note b. This Author does not mention the precise number of those who were put to death on this occasion; he only says that they were executed fifty at a time, in different successive days; but other Authors make the number of them amount to four thousand. Livy speaks of a whole Legion.—Legio Campana quae Rhegium occupaverat, obsessa, deditione factâ, securi percussa est.—Tit. Liv. lib. xv. Epit. “The Campanian legion, which had forcibly taken possession of Rhegium, besieged there, lay down their arms, and are punished with death.” In modern editions of Livy’s Ab urbe condita, an account of the incident (but not the precise sentence quoted by De Lolme) appears in the summary to book 12.—I have here followed Polybius, who says that only three hundred were taken and brought to Rome. De Lolme refers to Polybius (ca. 203–ca. 120 b.c.e.), the Greek historian whose Historiae (Histories) covered the history of Rome from 220 to 146 b.c.e. Polybius’s account appears in book 1, chapter 7.

[4. ]For Lex Porcia, see above, book 2, chapter 9, p. 188, note 4. The Lex Sempronia de Provocatione (123 b.c.e.) strengthened the rules that granted Roman citizens the right to appeal before a popular assembly the criminal convictions and punishments imposed by a magistrate, including capital sentences.

[(a) ]The fatal forms of words (cruciatús carmina) used by the Roman Magistrates when they ordered a Man to be put to death, resounded (says Tully in his speech for Rabirius) in the Assembly of the People, in which the Censors had forbidden the common Executioner ever to appear. I Lictor, colliga manus. Caput obnubito. Arbori infelici suspendito. [[De Lolme quotes from the oration of Marcus Tullius Cicero, Pro Rabirio perduellionis reo. The passage reads: “Lictor, go bind his hands. Veil his head. Hang him from the tree of shame.”—Memmius being a considerable Citizen, as we may conclude from his canvassing with success for the Consulship, all the great Men in the Republic took the alarm at the atrocious action of the Tribune: the Senate, the next day, issued out its solemn mandate, or form of words, to the Consuls, to provide that the Republic should receive no detriment; and the Tribune was killed in a pitched battle that was fought at the foot of the Capitol. The killing of Gaius Memmius occurred in 99 b.c.e.

[5. ]Lex Calpurnia de repetundis was adopted in 149 b.c.e. De Lolme’s reference to the Lex Junia appears somewhat confused. The Lex Junia of 59 b.c.e. reformed the Lex Calpurnia de repetundis by extending its application to additional groups of magistrates. An earlier Lex Junia of 126 b.c.e. established the punishment of banishment, but for a different set of offenses.

[(a) ]The Judges (over the Assembly of whom the Praetor usually presided) were taken from the body of the Senate, till some years after the last Punic War; when the Lex Sempronia, proposed by Caius S. Gracchus, enacted that they should in future be taken from the Equestrian Order. The Consul Caepio procured afterwards a law to be enacted, by which the Judges were to be taken from both orders, equally. The Lex Servilia soon after put the Equestrian Order again in possession of the Judgments; and after some years, the Lex Livia restored them entirely to the Senate.—The Lex Plautia enacted afterwards, that the Judges should be taken from the three Orders; the Senatorian, Equestrian, and Plebeian. The Lex Cornelia, framed by the Dictator Sylla, enacted again that the Judges should be entirely taken from the body of the Senate. The Lex Aurelia ordered anew, that they should be taken from the three Orders. Pompey made afterwards a change in their number, which he fixed at seventy-five, and in the manner of electing them. And lastly, Caesar entirely restored the Judgments to the Order of the Senate. [[De Lolme’s survey of the changing composition of the Roman judiciary covers over seventy years of development, from the passage of the Lex Sempronia Judiciaria in 122 b.c.e. to the adoption of Julius Caesar’s Lex Judiciaria in 46 b.c.e.

[(a) ]App. de Bell. Civ. [[De Lolme refers to the work of the Roman historian Appian of Alexandria (ca. 95–ca. 165 c.e.), part of whose Roman History was devoted to the civil wars (De bello civile).

[(b) ]Act. in Verr. i. § 1. [[De Lolme cites Marcus Tullius Cicero, Verrine Orations, First Part of the Speech Against Gaius Verres at the First Hearing, 1.1. De Lolme previously treated the abuses of power in Rome exemplified in the case of Gaius Verres; see above, book 2, chapter 9, p. 188, note 5.

[(c) ]Appian.

[6. ]Mithridates VI of Pontus (132–63 b.c.e.) fought a series of wars against Rome in the years 88–84 b.c.e., 83–81 b.c.e., and 75–65 b.c.e. The massacre of Roman citizens in Anatolia led to the outbreak of the first war.

[7. ]The abuses committed by Lucius Calpurnius Piso Caesoninus in his administration of Macedonia, 57–55 b.c.e., were condemned by Cicero in two speeches to the Roman Senate, De provinciis consularibus and In Pisonem.

[(a) ]See Cic. de Off. lib. ii. § 75. [[Cicero, De officiis, book 2, section 75. Cicero, at the start of the quotation, refers to the adoption of the Lex Calpurnia in 149 b.c.e.

[8. ]Magna Carta, chapter 29.

[(a) ]The Trial by Jury was in use among the Normans long before they came over to England; but it is now utterly lost in that Province: it even began very early to degenerate there from its first institution: we see in Hale’s History of the Common Law of England, that the unanimity among Jurymen was not required in Normandy for making a verdict, a good verdict; but when Jurymen dissented, a number of them was taken out, and others added in their stead, till an unanimity was procured.—In Sweden, where, according to the opinion of the Learned in that Country, the Trial by Jury had its first origin, only some forms of that Institution are now preserved in the lower Courts in the Country, where sets of Jurymen are established for life, and have a salary accordingly. See Robinson’s State of Sweden.—And in Scotland, the vicinity of England has not been able to preserve to the Trial by Jury its genuine ancient form: the unanimity among Jurymen is not required, as I have been told, to form a Verdict; but the majority is decisive. [[Hale’s account of the Norman practice concerning jury voting appeared in chapter 6 of his History of the Common Law of England. De Lolme’s source concerning juries in Sweden is John Robinson’s 1694 An account of Sweden; together with an extract of the history of that kingdom. He correctly reports that juries in Scotland, which were used only in cases involving the most serious forms of criminal offense, were not required to reach unanimous verdicts.

[(a) ]The first operation of the Commons, at the beginning of a Session, is to appoint four grand Committees. The one is a Committee of Religion, another of Courts of Justice, another of Trade, and another of Grievances: they are to be standing Committees during the whole Session.

[9. ]De Lolme discussed these episodes, including the 1641 statute abolishing the Star Chamber, in book 1, chapter 3, pp. 47–50.

[(a) ]The individual here alluded to was one Francis Jenks, who having made a motion at Guildhall, in the year 1676, to petition the King for a new Parliament, was examined before the Privy Council, and afterwards committed to the Gate-house, where he was kept about two months, through the delays made by the several Judges to whom he applied, in granting him a Habeas Corpus.—See the State Trials, vol. vii. anno 1676. [[Francis Jenks (or Jenkes) was held by order of the Privy Council from June 29 to August 18, 1676, notwithstanding repeated legal efforts to secure his release. De Lolme refers to the report of his case in A Collection of State-Trials and Proceedings upon High-Treason and other Crimes and Misdemeanours . . ., 8 vols. (London, 1730–35), 7:468–76.

[10. ]Blackstone, Commentaries on the Laws of England, 3:135. Junius’s discussion of the Habeas Corpus Act appeared in his letter of January 21, 1772, addressed to “Lord Chief Justice Mansfield.” For the Letters of Junius, see above, book 1, chapter 13, p. 127, note a.

[(b) ]Sir Ralph de Hengham, Chief Justice of the King’s Bench, was fined 7,000 marks; Sir Thomas Wayland, Chief Justice of the Common Pleas, had his whole estate forfeited; and Sir Adam de Stratton, Chief Baron of the Exchequer, was fined 34,000 marks. [[The trials and convictions occurred in 1289, under the initiative of King Edward I, who was credited by Matthew Hale and other legal historians with major reforms of English law and justice.

[(a) ]The most conspicuous among these Judges were Sir Robert Belknap, and Sir Robert Tresilian, Chief Justice of the King’s Bench. The latter had drawn up a string of questions calculated to confer a despotic authority on the Crown, or rather on the Ministers above named, who had found means to render themselves entire Masters of the person of the King. These questions Sir Robert Tresilian proposed to the Judges, who had been summoned for that purpose, and they gave their opinions in favour of them. One of these opinions of the Judges, among others, tended to no less than to annihilate, at one stroke, all the rights of the Commons, by taking from them that important privilege mentioned before, of starting and freely discussing whatever subjects of debate they think proper:—the Commons were to be restrained, under pain of being punished as traitors, from proceeding upon any articles besides those limited to them by the King. All those who had had a share in the above declarations of the Judges, were attainted of high-treason. Some were hanged; among them was Sir Robert Tresilian; and the others were only banished, at the intercession of the Bishops.—See the Parl. History of England, vol. i. [[The trial and conviction of Richard II’s judges and ministers occurred in 1388, as part of the political contest between the crown and the supporters of the Duke of Gloucester. De Lolme refers to the account of these proceedings in The Parliamentary or Constitutional History of England; being a faithful account of all the most remarkable transactions in Parliament . . . Collected . . . by Several Hands, 24 vols. (London, 1751–61), 1:427–35.

[11. ]Richard (not Thomas) Empson and Edmund Dudley were executed for treason in 1510 and posthumously condemned by parliamentary attainder the following year.

[12. ]Francis Bacon was impeached on charges of bribery, to which he confessed, in 1621. Sir John Finch fled to Holland following his impeachment by Parliament in 1640. The parliamentary actions against the common law judges Davenport, Crawley, and Berkeley occurred that same year and formed part of the parliamentary attack on royal ministers who supported the extension of the crown’s prerogative powers. De Lolme cites John Rushworth’s Historical Collections of Private Passages of State, which covered the period 1618–48 and originally appeared in 8 volumes from 1659 to 1701. Rushworth discussed the sentencing of Berkeley in volume 5, p. 361.

[13. ]The House of Commons prepared articles of impeachment against the judges in 1680. The following year, Scroggs was tried but not convicted by the House of Lords, and soon after he was removed from the chief justiceship of King’s Bench.

[(a) ]See Burnet’s History, vol. i. anno 1669.—An Act of Parliament was made on this occasion, for giving a farther extent to the provisions before made for the personal security of the Subject; which is still called the Coventry Act. [[Sir John Coventry, whose satiric remarks in the House of Commons angered Charles II, was attacked and injured by officers of the royal guard. The 1671 Coventry Act, enacted in response, made maiming a capital crime and specified that those who assaulted Coventry should not be eligible to receive a pardon from the crown. De Lolme’s authority for this incident is A History of My Own Time by Gilbert Burnet (1643–1715), which was published posthumously in 1724–34.

[(a) ]In all cases of public offences, down to a simple breach of the peace, the Members of the House of Commons have no privilege whatever above the rest of the People: they may be committed to prison by any Justice of the peace; and are dealt with afterwards in the same manner as any other Subjects. With regard to civil matters, their only privilege is to be free from Arrests during the time of a Session, and forty days before, and forty days after; but they may be sued, by process against their goods, for any just debt during that time.

[14. ]The parliamentary impeachments of Mompesson and Bennet both occurred in 1621 (the same year as the prosecution of Francis Bacon, discussed above, p. 243, note 12). Mompesson was charged with abuses in the conduct of his office as licenser of inns. Bennet was charged with judicial abuses in his administration of intestate estates.

[15. ]“Protections” were legal documents shielding an individual from arrest or legal process. Benson was both expelled from the 1641 session and declared “unfit and uncapable ever to sit in Parliament.”

[(a) ]Other examples of the attention of the House of Commons to the conduct of their Members, might be produced, either before, or after, that which is mentioned here. The reader may, for instance, see the relation of their proceedings in the affair of the South Sea Company Scheme; and a few years after, in that of the Charitable Corporation; a fraudulent scheme particularly oppressive to the poor, for which several Members were expelled. [[The 1720 crash of shares in the South Sea Company, a financial and trading corporation licensed in 1711, caused large financial losses to many elite investors. In the subsequent public scandal and parliamentary investigation, several prominent political leaders, including company directors and others accused of accepting bribes from the company, were forced to resign their offices and expelled from the House of Commons. In 1732 three members were expelled from the House of Commons for their participation in the fraudulent scheme to divert for personal gain funds of the Charitable Corporation, which had been established “for Relief of industrious Poor.”

[16. ]Trevor was convicted and expelled, along with Hungerford, in 1695. The episode ended Trevor’s parliamentary career, though he returned to public office in 1702 under the patronage of Queen Anne.

[(b) ]In case of a public offence, or even a simple breach of the peace, a Peer may be committed, till he finds bail, by any Justice of the peace: and Peers are to be tried by the common course of law, for all offences under felony. With regard to civil matters, they are at all times free from arrests; but execution may be had against their effects, in the same manner as against those of other Subjects.

[(a) ]See page 36 of this Work. [[The testimony of Philippe de Comines, in fact, appears above in book 1, chapter 2, p. 37, note a, and p. 43, note a.

[(b) ]A little after I came to England for the first time (if the Reader will give me leave to make mention of myself in this case) an action was brought in a Court of Justice against a Prince very nearly related to the Crown; and a Noble Lord was also, much about that time, engaged in a law-suit for the property of some valuable lead-mines in Yorkshire. I could not but observe that in both these cases a decision was given against the two most powerful parties; though I wondered but little at this, because I had before heard much of the impartiality of the law proceedings in England, and was prepared to see instances of that kind. But what I was much surprised at, was that nobody appeared to be in the least so, not even at the strictness with which the ordinary course of the law had, particularly in the former case, been adhered to,—and that those proceedings which I was disposed to consider as great instances of Justice, to the production of which some circumstances peculiar to the times, at least some uncommon virtue or spirit on the part of the Judges, must have more or less co-operated, were looked upon by all those whom I heard speak about it, as being nothing more than the common and expected course of things. This circumstance became a strong inducement to me to enquire into the nature of a Government by which such effects were produced. [[The first law case De Lolme mentions was the extensively publicized 1770 case of Richard Lord Grosvenor versus Henry Frederick, Duke of Cumberland, before the Court of King’s Bench, in which the brother of King George III was found guilty of “criminal conversation” for his adulterous relationship with Lady Grosvenor. De Lolme’s second case has not been identified.

[(a) ]The assertion above made with respect to the impartiality with which Justice is, in all cases, administered in England, not being of a nature to be proved by alledging single facts, I have entered into no particulars on that account. However, I have subjoined here two cases which, I think, cannot but appear remarkable to the Reader.

The first is the case of the prosecution commenced in the year 1763, by some Journeymen Printers, against the King’s Messengers, for apprehending and imprisoning them for a short time, by virtue of a General Warrant from the Secretaries of State; and that which was afterwards carried on by another private individual, against one of the Secretaries themselves.—In these actions, all the ordinary forms of proceeding used in cases of actions between private Subjects, were strictly adhered to; and both the Secretary of State, and the Messengers, were, in the end, condemned. Yet, which it is proper the Reader should observe, from all the circumstances that accompanied this affair, it is difficult to propose a case in which Ministers could, of themselves, be under greater temptations to exert an undue influence to hinder the ordinary course of Justice. Nor were the Acts for which those Ministers were condemned, Acts of evident oppression, which nobody could be found to justify. They had done nothing but follow a practice of which they found several precedents established in their Offices; and their case, if I am well informed, was such, that most individuals, under similar circumstances, would have thought themselves authorised to have acted as they had done. [[General Warrants, effectively made illegal in a series of famous cases before the Courts of Common Pleas and King’s Bench in the 1760s and condemned in a 1766 resolution of the House of Commons, were issued for the arrest of unnamed persons or for the seizure of unspecified papers. De Lolme appears to refer to the case of Entick v. Carrington, which was decided in the Court of Common Pleas in 1765. John Entick, a printer involved in the publication of several seditious numbers of the journal The Monitor, or British Freeholder, brought the case against Nathan Carrington, who had entered his home and seized his property under the authority of a General Warrant. In dating the case to 1763, De Lolme may have confused this litigation with the well-known General Warrants case of that year, Rex v. Wilkes, which grew out of the government prosecution of John Wilkes for seditious libel in connection with his authorship and publication of issue no. 45 of the journal North Britain.

The second case I propose to relate, affords a singular instance of the confidence with which all Subjects in England claim what they think their just rights, and of the certainty with which the remedies of the law are in all cases open to them. The fact I mean, is the Arrest executed in the reign of Queen Anne, in the year 1708, on the person of the Russian Ambassador, by taking him out of his Coach for the sum of fifty pounds—And the consequences that followed this fact are still more remarkable. The Czar highly resented this affront, and demanded that the Sheriff of Middlesex, and all others concerned in the Arrest, should be punished with instant death. “But the Queen,” (to the amazement of that despotic Court, says Justice Blackstone, from whom I borrow this fact) “the Queen directed the Secretary of State to inform him that she could inflict no punishment upon any, the meanest, of Her Subjects, unless warranted by the law of the land.”—An act was afterwards passed to free from arrests the persons of foreign Ministers, and such of their servants as they have delivered a list of, to the Secretary of State. A copy of this Act elegantly engrossed and illuminated, continues Judge Blackstone, was sent to Moscow, and an Ambassador extraordinary commissioned to deliver it. Blackstone’s account of this episode appears in Commentaries on the Laws of England, 1:246–47.

[(a) ]The common manner in which the Senate ordered Citizens to be put to death, was by throwing them head-long from the top of the Tarpeian Rock. The Consuls, or other particular Magistrates, sometimes caused Citizens to expire upon a cross; or, which was a much more common case, ordered them to be beaten to death, with their heads fastened between the two branches of a fork; which they called cervicem furcae inserere [[“to put the neck upon the fork”.

[17. ]The legal compilation of Draco (ca. 621 b.c.e.), a legislator of ancient Athens, was written “with blood” on account of the notorious severity of its penal sanctions.

[(b) ]Caesar expressly reproaches the Greeks with this fact, in his speech in favour of the accomplices of Catiline, which Sallust has transmitted to us.—Sed eodem illo tempore, Graeciae morem imitati, (Majores nostri) verberibus animadvertebant in cives, de condemnatis ultimum supplicium sumptum. [[“In that early period, and with that generous disposition, they looked toward Greece, and from that nation imported the custom of punishing some offenses by the lictor’s rod, and in capital cases they pronounce judgment of death.” De Lolme cites the account of the Cataline conspiracy of 63 b.c.e.(Bellum Catilinae), published by Gaius Sallustius Crispus (86–34 b.c.e.).

[(a) ]Historians take notice that the Commons, in the reign of Charles II. made haste to procure the abolition of the old Statute, De Haeretico comburendo, (For burning Heretics) as soon as it became to be publicly known that the presumptive Heir to the Crown was a Roman Catholic. [[Parliament repealed De Haeretico comburendo in 1677. Perhaps they would not have been so diligent and earnest, if they had not been fully convinced that a Member of the House of Commons, or his friends, may be brought to trial as easily as any other individuals among the people, so long as an express and written law may be produced against them,

[(b) ]The Reader may on this subject see again the Note in page 181 [[p. 130 of this Work, where the opposition is mentioned, that was made to the Earl of Suffolk, and the Duke of Exeter, when they attempted to introduce the practice of Torture: this even was one of the causes for which the latter was afterwards impeached.—The Reader is also referred to the Note following that which has just been quoted, in which the solemn declaration is related, that was given by the Judges against the practice of Torture, in the case of Felton, who had assassinated the Duke of Buckingham. See above, book 1, chapter 13, p. 130, note b, and p. 131, note a.

[(a) ]A very singular instance occurs in the History of the year 1605, of the care of the English Legislature not to suffer precedents of cruel practices to be introduced. During the time that those concerned in the Gun-powder plot were under sentence of death; a motion was made in the House of Commons to petition the King, that the execution might be staid, in order to consider of some extraordinary punishment to be inflicted upon them: but this motion was rejected. A proposal of the same kind was also made in the House of Lords, where it was dropped.—See the Parliamentary History of England, vol. v. anno 1605. [[De Lolme refers to parliamentary discussions reported in Parliamentary or Constitutional History of England, 5:143–45.

[18. ]De Lolme here exaggerates the mildness of England’s legal sanctions; see above, book 1, chapter 13, p. 134, note 10.

[(b) ]See the Bill of Rights, Art. x.—“Excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.” [[On the 1688/89 Bill of Rights, see above, book 1, chapter 3, p. 53, note a.

[(c) ]Those same dispositions of the English Legislature, which have led them to take such precautions in favour even of convicted offenders, have still more engaged them to make provisions in favour of such persons as are only suspected and accused of having committed offences of any kind. Hence the zeal with which they have availed themselves of every important occasion, such for instance as that of the Revolution, to procure new confirmations to be given to the institution of the Trial by Jury, to the laws on imprisonments, and in general to that system of criminal Jurisprudence of which a description has been given in the first part of this Work, to which I refer the Reader. [[See above, book 1, chapters 12–14.

[19. ]De Lolme quotes, with slight alteration, the 1689 “Act for Establishing the Coronation Oath.” The clause and phrase did not, in fact, constitute one of the several changes to the Coronation Oath introduced by the statute.