Front Page Titles (by Subject) 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. - The Constitution of England; Or, an Account of the English Government
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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. - Jean Louis De Lolme, The Constitution of England; Or, an Account of the English Government 
The Constitution of England; Or, an Account of the English Government, edited and with an Introduction by David Lieberman (Indianapolis: Liberty Fund, 2007).
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A 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.
The Doctrine constantly maintained in this Work, and which has, I think, been sufficiently supported by facts and comparisons drawn from the History of other Countries, is, that the remarkable liberty enjoyed by the English Nation, is essentially owing to the impossibility under which their Leaders, or in general all Men of power among them, are placed, of invading and transferring to themselves any branch of the Governing Executive authority; which authority is exclusively vested, and firmly secured, in the Crown. Hence the anxious care with which those Men continue to watch the exercise of that authority. Hence their perseverance in observing every kind of engagement which themselves may have entered into with the rest of the People.
But here a consideration of a most important kind presents itself.—How comes the Crown in England, thus constantly to preserve to itself (as we see it does) the Executive authority in the State, and moreover to preserve it so completely as to inspire the great Men in the Nation with that conduct so advantageous to public Liberty, which has just been mentioned? All these are effects which we do not find, upon examination, that the power of Crowns has hitherto been able to produce in other Countries.
In all States of a Monarchical form, we indeed see that those Men whom their rank and wealth, or their personal power of any kind, have raised above the rest of the people, have formed combinations among themselves to oppose the power of the Monarch. But their views, we must observe, in forming these combinations, were not by any means to set general and impartial limitations on the Sovereign authority. They endeavoured to render themselves entirely independent of that authority; or even utterly to annihilate it, according to circumstances.
Thus we see that in all the States of ancient Greece, the Kings were at last destroyed and exterminated. The same event happened in Italy, where in remote times there existed for a while several kingdoms, as we learn both from the ancient Historians, and the Poets. And in Rome, we even know the manner and circumstances in which such a revolution was brought about.
In more modern times, we see the numerous Monarchical Sovereignties which had been raised in Italy on the ruins of the Roman Empire, to have been successively destroyed by powerful factions; and events of much the same nature have at different times taken place in the Kingdoms established in the other parts of Europe.
In Sweden, Denmark, and Poland, for instance, we find that the Nobles have commonly reduced their Sovereigns to the condition of simple Presidents over their Assemblies,—of mere ostensible Heads of the Government.
In Germany, and in France, Countries where the Monarchs being possessed of considerable demesnes, were better able to maintain their independence than the Princes just mentioned, the Nobles waged war against them, sometimes singly, and sometimes jointly; and events similar to these have successively happened in Scotland, Spain, and the modern Kingdoms of Italy.
In fine, it has only been by means of standing armed forces that the Sovereigns of most of the Kingdoms we have mentioned, have been able in a course of time to assert the prerogatives of their Crown. And it is only by continuing to keep up such forces, that, like the Eastern Monarchs, and indeed like all the Monarchs that ever existed, they continue to be able to support their authority.
How therefore can the Crown of England, without the assistance of any armed force, maintain, as it does, its numerous prerogatives? How can it, under such circumstances, preserve to itself the whole Executive power in the State? For here we must observe, the Crown in England does not derive any support from what regular forces it has at its disposal; and if we doubted this fact, we need only look to the astonishing subordination in which the military is kept to the civil power, to become convinced that an English King is not indebted to his army for the preservation of his authority (a) .
If we could suppose that the armies of the Kings of Spain or of France, for instance, were, through some very extraordinary circumstance, all to vanish in one night, the power of those Sovereigns, we must not doubt, would, ere six months, be reduced to a mere shadow. They would immediately behold their prerogatives, however formidable they may be at present, invaded and dismembered (b) : and supposing that regular Governments continued to exist, they would be reduced to have little more influence in them, than the Doges of Venice, or of Genoa, possess in the Governments of those Republics (c) .
How, therefore, to repeat the question once more, which is one of the most interesting that can occur in politics, how can the Crown in England, without the assistance of any armed force, avoid those dangers to which all other Sovereigns are exposed?
How can it, without any such force, accomplish even incomparably greater works than those Sovereigns, with their powerful armies, are, we find, in a condition to perform?—How can it bear that universal effort (unknown in other Monarchies) which, we have seen, is continually and openly exerted against it? How can it even continue to resist it so powerfully as to preclude all individuals whatever, from ever entertaining any views besides those of setting just and general limitations to the exercise of its authority? How can it enforce the laws upon all Subjects, indiscriminately, without injury or danger to itself? How can it, in fine, impress the minds of all the great Men in the State with so lasting a jealousy of its power, as to necessitate them, even in the exercise of their undoubted rights and privileges, to continue to court and deserve the affection of the rest of the People?
Those great Men, I shall answer, who even in quiet times prove so formidable to other Monarchs, are in England divided into two Assemblies; and such, it is necessary to add, are the principles upon which this division is made, that from it results, as a necessary consequence, the solidity and indivisibility of the power of the Crown (a) .
The Reader may perceive that I have led him, in the course of this Work, much beyond the line within which Writers on the subject of Government have confined themselves, or rather, that I have followed a track entirely different from that which those Writers have pursued. But as the observation just made on the stability of the power of the Crown in England, and the cause of it, is new in its kind, so do the principles from which its truth is to be demonstrated, totally differ from what is commonly looked upon as the foundation of the science of Politics. To lay these principles here before the Reader, in a manner completely satisfactory to him, would lead us into philosophical discussions on what really constitutes the basis of Governments and Power amongst Mankind, both extremely long, and in a great measure foreign to the subject of this book. I shall therefore content myself with proving the above observations by facts; which is more, after all, than political Writers usually undertake to do with regard to their speculations.
As I chiefly proposed to shew how the extensive liberty the English enjoy, is the result of the peculiar frame of their Government, and occasionally to compare the same with the Republican form, I even had at first intended to confine myself to that circumstance, which both constitutes the essential difference between those two forms of Government, and is the immediate cause of English liberty; I mean the having placed all the executive authority in the State out of the hands of those in whom the People trust. With regard to the remote cause of that same liberty, that is to say, the stability of the power of the Crown, this singular solidity without the assistance of any armed force, by which this executive authority is so secured, I should perhaps have been silent, had I not found it absolutely necessary to mention the fact in this place, in order to obviate the objections which the more reflecting part of Readers might otherwise have made, both to several of the observations before offered to them, and to a few others which are soon to follow.
Besides, I shall confess here, I have been several times under apprehensions, in the course of this Work, lest the generality of Readers, misled by the similarity of names, should put too extensive a construction upon what I said with regard to the usefulness of the power of the Crown in England;—lest they should think, for instance, that I attributed the superior advantages of the English mode of Government over the Republican form, merely to its approaching nearer to the nature of the Monarchies established in the other parts of Europe, and that I looked upon every kind of Monarchy, as being in itself preferable to a Republican Government: an opinion, which I do not by any means or in any degree entertain; I have too much affection, or if you please, prepossession, in favour of that form of Government under which I was born; and as I am sensible of its defects, so do I know how to set a value upon the advantages by which it compensates for them.
I therefore have, as it were, made haste to avail myself of the first opportunity of explaining my meaning on this subject,—of indicating that the power of the Crown in England stands upon foundations entirely different from those on which the same Power rests in other Countries,—and of engaging the Reader to observe (which for the present will suffice) that as the English Monarchy differs in its nature and main foundations, from every other, so all that is said here of its advantages, is peculiar and confined to it.
But, to come to the proofs (derived from facts) of the solidity accruing to the power of the Crown in England, from the co-existence of the two Assemblies which concur to form the English Parliament, I shall first point out to the Reader several open acts of these two Houses, by which they have by turns effectually defeated the attacks of each other upon its prerogative.
Without looking farther back for examples than the reign of Charles the Second, we see that the House of Commons had, in that reign, begun to adopt the method of adding (or tacking, as it is commonly expressed) such bills as they wanted more particularly to have passed, to their money bills. This forcible use they made of their undoubted privilege of granting money, if suffered to have grown into common practice, would have totally destroyed the aequilibrium that ought to subsist between them and the Crown. But the Lords took upon themselves the task of maintaining that aequilibrium: they complained with great warmth of the several precedents that were made by the Commons, of the practice we mention: they insisted that Bills should be framed “in the old and decent way of Parliament”; and at last have made it a standing order of their House, to reject, upon the sight of them, all bills that are tacked to money bills.2
Again, about the thirty-first year of the same reign, a strong party prevailed in the House of Commons; and their efforts were not entirely confined, if we may credit the Historians of those times, to serving their Constituents faithfully, and providing for the welfare of the State. Among other bills which they proposed in their House, they carried one to exclude from the Crown the immediate Heir to it; an affair this, of a very high nature, and with regard to which it may well be questioned whether the legislative Assem-blies have a right to form a resolution, without the express and declared concurrence of the body of the People. But both the Crown and the Nation were delivered from the danger of establishing such a precedent, by the interposition of the Lords, who threw out the bill on the first reading.3
In the reign of King William the Third, a few years after the Revolution, attacks were made upon the Crown from another quarter. A strong party was formed in the House of Lords; and, as we may see in Bishop Burnet’s History of his Own Times, they entertained very deep designs. One of their views, among others, was to abridge the prerogative of the Crown of calling Parliaments, and judging of the proper times of doing it (a) . They accordingly framed and carried in their House a bill for ascertaining the sitting of Parliament every year: but the bill, after it had passed in their House, was rejected by the Commons (b) .
Again, we find, a little after the accession of King George the First, an attempt was also made by a party in the House of Lords, to wrest from the Crown a prerogative which is one of its finest flowers; and is, besides, the only check it has on the dangerous views which that House (which may stop both money bills and all other bills) might be brought to entertain; I mean the right of adding new members to it, and judging of the times when it may be necessary to do so. A bill was accordingly presented, and carried, in the House of Lords, for limiting the members of that House to a fixed number, beyond which it should not be increased; but after great pains taken to insure the success of this bill, it was at last rejected by the House of Commons.4
In fine, the several attempts which a majority in the House of Commons have in their turn made to restrain, farther than it now is, the influence of the Crown arising from the distribution of preferments and other advantages, have been checked by the House of Lords; and all place-bills have, from the beginning of this Century, constantly miscarried in that House.5
Nor have these two powerful Assemblies only succeeded in thus warding off the open attacks of each other, on the power of the Crown. Their co-existence, and the principles upon which they are severally framed, have been productive of another effect much more extensive, though at first less attended to, I mean the preventing even the making of such attacks; and in times too, when the Crown was of itself incapable of defending its authority: the views of each of these two Houses, destroying, upon these occasions, the opposite views of the other, like those positive and negative equal quantities (if I may be allowed the comparison) which destroy each other on the opposite sides of an equation.
Of this we have several remarkable examples; as for instance, when the Sovereign has been a minor. If we examine the History of other Nations, especially before the invention of standing armies, we shall find that the event we mention never failed to be attended with open invasions of the Royal authority, or even sometimes with complete and settled divisions of it. In England, on the contrary, whether we look at the reign of Richard II. or that of Henry VI. or of Edward VI. we shall see that the Royal authority has been quietly exer-cised by the Councils that were appointed to assist those Princes; and when they came of age, the same has been delivered over to them undiminished.
But nothing so remarkable can be alledged on this subject, as the manner in which these two Houses have acted upon those occasions when the Crown being without any present possessor, they had it in their power, both to settle it on what Person they pleased, and to divide and distribute its effectual prerogatives, in what manner, and to what set of Men, they might think proper. Circumstances like those we mention, have never failed in other Kingdoms, to bring on a division of the effectual authority of the Crown, or even of the State itself. In Sweden, for instance, (to speak of that kingdom which has borne the greatest outward resemblance to that of England) when Queen Christina was put under a necessity of abdicating the Crown, and it was transferred to the Prince who stood next to her in the line of Succession, the Executive authority in the State was immediately divided, and either distributed among the Nobles, or assigned to the Senate, into which the Nobles alone could be admitted; and the new King was only to be a President over it.6
After the death of Charles the Twelfth, who died without male heirs, the disposal of the Crown (the power of which Charles the Eleventh had found means to render again absolute) returned to the States, and was settled on the Princess Ulrica, and the Prince her Husband. But the Senate, at the same time it thus settled the possession of the Crown, again assumed to itself the effectual authority which had formerly belonged to it. The privilege of assembling the States was vested in that Body. They also secured to themselves the power of making war and peace, and treaties with foreign powers,—the disposal of places,—the command of the army and of the fleet,—and the administration of the public revenue. Their number was to consist of sixteen Members. The majority of votes was to be decisive upon every occasion. The only privilege of the new King, was to have his vote reckoned for two: and if at any time he should refuse to attend their meetings, the business was nevertheless to be done as effectually and definitively without him (a) .7
But in England, the revolution of the year 1689 was terminated in a manner totally dif-ferent. Those who at that interesting epoch had the guardianship of the Crown,—those in whose hands it lay vacant, did not manifest so much as a thought to split and parcel out its prerogative. They tendered it to a single indivisible possessor, impelled as it were by some secret power that was, unseen, operating upon them, without any salvo, without any article, to establish the greatness of themselves, or of their families. It is true, those prerogatives destructive of public liberty which the late King had assumed, were retrenched from the Crown; and thus far the two Houses agreed. But as to any attempt to transfer to other hands any part of the authority of the Crown, no proposal was even made about it. Those branches of prerogative which were taken from the kingly office, were annihilated and made to cease to exist in the State; and all the Executive authority that was thought necessary to be continued in the Government, was, as before, left undivided in the Crown.
In the very same manner was the whole authority of the Crown transferred afterwards to the Princess who succeeded King William the Third, and who had no other claim to it but what was conferred on her by the Parliament. And in the same manner again was it settled, a long time beforehand, on the Princes of Hanover who have since succeeded her (a) .8
Nay, one more extraordinary fact, and to which I desire the Reader to give attention—Notwithstanding all the Revolutions we mention, and although Parliament hath sat every year since the beginning of this century, and though they have constantly enjoyed the most unlimited freedom both as to the subjects and the manner of their deliberations, and numberless proposals have in consequence been made,—yet, such has been the efficiency of each House, in destroying, preventing, or qualifying, the views of the other, that the Crown has not been obliged during all that time to make use, even once, of its negative voice; and the last Bill rejected by a King of England, has been that rejected by King William the Third in the year 1692 for Triennial Parliaments (a) .9
There is another instance yet more remarkable of this forbearing conduct of the Parliament in regard to the Crown, to whatever open or latent cause it may be owing, and how little their esprit de corps in reality leads them, amidst the apparent heat sometimes of their struggles, to invade its governing executive authority; I mean, the facility with which they have been prevailed upon to give up any essential branch of that authority, even after a conjunction of preceding circumstances had caused them to be actually in possession of it; a case this, however, that has not frequently happened in the English History. After the Restoration of Charles the Second, for instance, we find the Parliament to have of their own accord passed an Act, in the first year that followed that event, by which they annihilated, at one stroke, both the independent legislative authority, and all claims to such authority, which they had assumed during the preceding disturbances:—By the Stat. 13 Car. II. c. 1. it was forbidden, under the penalty of a praemunire (see p. 194)10 to affirm that either of the two Houses of Parliament, or both jointly, possess, without the concurrence of the King, the Legislative authority. In the fourth year after the Restoration, another capital branch of the governing authority of the Crown was also restored to it, without any manner of struggle:—by the Stat. 16 Car. II. c. 1. the Act was repealed by which it had been enacted, that, in case the King should neglect to call a Parliament once at least in three years, the Peers should issue the writs for an election; and that should they neglect to issue the same, the Constituents should of themselves assemble to elect a Parliament.
It is here to be observed, that, in the same reign we mention, the Parliament passed the Habeas Corpus Act, as well as the other Acts that prepared the same, and in general shewed a jealousy in watching over the liberty of the subject, superior perhaps to what has taken place at any other period of the English History: this is another striking confirmation of what has been remarked in a preceding Chapter, concerning the manner in which public disturbances have always been terminated in England. Here we find a series of Parliaments to have been tenaciously and perseverantly jealous of those kinds of popular universal provisions, which great Men in other States ever disdained seriously to think of, or give a place to, in those treaties by which internal peace was restored to the Nation; and at the same time these Parliaments cordially and sincerely gave up those high and splendid branches of Governing authority, which the Senates or Assemblies of great Men who surrounded the Monarchs in other limited Monarchies, never ceased anxiously to strive to assume to themselves,—and which the Monarchs, after having lost them, never were able to recover but by military violence aided by surprize, or through National com-motions. All these are political singularities, certainly remarkable enough. It is a circumstance in no small degree conducive to the solidity of the executive authority of the English Crown (which is the subject of this Chapter) that those persons who seem to have it in their power to wrest the same from it, are, somehow, prevented from entertaining thoughts of doing so (a) .
As another proof of the peculiar solidity of the power of the Crown, in England, may be mentioned the facility, and safety to itself and to the State, with which it has at all times been able to deprive any particular Subjects of their different offices, however overgrown, and even dangerous, their private power may seem to be. A very remarkable instance of this kind occurred when the great Duke of Marlborough was suddenly removed from all his employments: the following is the account given by Dean Swift, in his “History of the Four last Years of the Reign of Queen Anne.”
“So that the Queen found herself under a necessity, by removing one person from so great a trust, to get clear of all her difficulties at once: her Majesty determined upon the latter expedient, as the shorter and safer course; and during the recess at Christmas, sent the Duke a letter to tell him she had no farther occasion for his service.
“There has not perhaps in the present age been a clearer instance to shew the instability of power which is not founded on virtue; and it may be an instruction to Princes who are well in the hearts of their People, that the overgrown power of any particular person, although supported by exorbitant wealth, can, by a little resolution, be reduced in a moment, without any dangerous consequences. This Lord, who was, beyond all comparison, the greatest subject in Christendom, found his power, credit and influence crumble away on a sudden; and, except a few friends and followers, the rest dropped off in course, &c.” (B. I. near the end.)11
The ease with which such a Man as the Duke was suddenly removed, Dean Swift has explained by the necessary advantages of Princes who possess the affection of their People, and the natural weakness of power which is not founded on virtue. However, these are very unsatisfactory explanations. The History of Europe, in former times, offers us a continued series of examples to the contrary. We see in it numberless instances of Princes incessantly engaged in resisting in the field the competition of Subjects invested with the eminent dignities of the Realm, who were not by any means superior to them in point of virtue,—or at other times, living in a continued state of vassalage under some powerful Man whom they durst not resist, and whose power, credit, and influence they would have found it far from possible to reduce in a moment, or crumble on a sudden, by the sending of a single letter, even though assisted by a little resolution, to use Dean Swift’s expressions, and without any dangerous consequences.
Nay, certain Kings, such as Henry the Third, of France, in regard to the Duke of Guise, and James the Second, of Scotland, in regard to the two Earls of Douglas successively, had at last recourse to plot and assassination; and expedients of a similar sudden violent kind, are the settled methods adopted by the Eastern Monarchs; nor is it very sure they can always easily do otherwise (a) .
Even in the present Monarchies of Europe, notwithstanding the awful force by which they are outwardly supported, a discarded Minister is the cause of more or less anxiety to the governing Authority; especially if, through the length of time he has been in office, he happens to have acquired a considerable degree of influence. He is generally sent and confined to one of his estates in the country, which the Crown names to him: he is not allowed to appear at Court, nor even in the Metropolis; much less is he suffered to appeal to the People in loud complaints, to make public speeches to the great Men in the State and intrigue among them, and in short to vent his resentment by those bitter, and sometimes desperate, methods, which, in the Constitution of this Country, prove in great measure harmless.
But a Dissolution of the Parliament, that is, the dismission of the whole body of the great Men in the Nation, assembled in a Legislative capacity, is a circumstance, in the English Government, in a much higher degree remarkable and deserving our notice, than the depriving any single individual, however powerful, from his public employments. When we consider in what easy and complete manner such a dissolution is effected in England, we must needs become convinced that the power of the Crown bears upon foundations of very uncommon, though perhaps hidden, strength; especially, if we attend to the several facts that take place in other Countries.
In France, for example, we find the Crown, notwithstanding the immense outward force by which it is surrounded, to use the utmost caution in its proceedings towards the Parliament of Paris: an Assembly only of a judiciary nature, without any Legislative authority or avowed claim, and which, in short, is very far from having the same weight in the kingdom of France, as the English Parliament has in England. The King never repairs to that Assembly, to signify his intentions, or hold a Lit de Justice, without the most over-awing circumstances of military apparatus and preparation, constantly choosing to make his appearance among them rather as a military General, than as a King.
And when the late King, having taken a serious alarm at the proceedings of this Parliament, at length resolved upon their dismission, he fenced himself, as it were, with his army; and military Messengers were sent with every circumstance of secrecy and dispatch, who, at an early part of the day and at the same hour, surprised each Member in his own house, causing them severally to depart for distant parts of the country which were prescribed to them, without allowing them time to consider, much less to meet, and hold any consultation together.12
But the Person who is invested with the kingly office, in England, has need of no other weapon, no other artillery, than the Civil Insignia of his dignity, to effect a dissolution of the Parliament. He steps into the middle of them, telling them they are dissolved; and they are dissolved:—he tells them, they are no longer a Parliament; and they are no longer so. Like Popilius’s wand (a) , a dissolution instantly puts a stop to their warmest debates and most vio-lent proceedings. The wonderful words by which it is expressed have no sooner met their ears, than all their legislative faculties are benumbed: though they may still be sitting on the same benches, they look no longer upon themselves as forming an Assembly; they no longer consider each other in the light of Associates or of Colleagues. As if some strange kind of weapon, or a sudden magical effort, had been exerted in the midst of them, all the bonds of their union are cut off; and they hasten away, without having so much as the thought of continuing for a single minute the duration of their Assembly (a) .
To all these observations concerning the peculiar solidity of the authority of the Crown, in England, I shall add another that is supplied by the whole series of the English History; which is, that, though bloody broils and disturbances have often taken place in England, and war often made against the King, yet, it has scarcely ever been done but by persons who positively and expressly laid claim to the Crown. Even while Cromwell contended with an armed force against Charles the First, it was, as every one knows who has read that part of the English history, in the King’s own name he waged war against him.
The same objection might be expressed in a more general manner and with strict truth, by saying, that no war has been waged, in England, against the governing authority, except upon national grounds; that is to say, either when the title to the Crown has been doubtful, or when general complaints, either of a political or religious kind, have arisen from every part of the Nation: as instances of such complaints may be mentioned those which gave rise to the war against King John, which ended in the passing of the Great Charter,—the civil wars in the reign of Charles the First,—and the Revolution of the year 1689. From the facts just mentioned it may also be observed as a conclusion, that the Crown cannot depend on the great security we have been describing any longer than it continues to fulfil its engagements to the Nation, and to respect those laws which form the compact between it and the People. And the imminent dangers, or at least the alarms and perplexities, in which the Kings of England have constantly involved themselves, whenever they have attempted to struggle against the general sense of the Nation, manifestly shew that all that has been above observed concerning the security and remarkable stability some how annexed to their Office, is to be understood, not of the capricious power of the Man, but of the lawful authority of the Head of the State (a) .
Second Part of the same Chapter.
There is certainly a very great degree of singularity in all the circumstances we have been describing here: those persons who are acquainted with the history of other Countries, cannot but remark with surprise, that stability of the power of the English Crown,—that mysterious solidity,—that inward binding strength with which it is able to carry on with certainty its legal operations, amidst the clamorous struggle and uproar with which it is commonly surrounded, and without the medium of any armed threatening force. To give a demonstration of the manner in which all these things are brought to bear and operated, is not, as I said before, my design to attempt here: the principles from which such demonstration is to be derived, suppose an enquiry into the nature of Man, and of human affairs, which rather belongs to Philosophy (though to a branch hitherto unexplored) than to Politics: at least such an enquiry certainly lies out of the sphere of the common Science of Politics (a) . However, I had a very material reason in introducing all the above mentioned facts concerning the peculiar stability of the governing authority in England, in that they lead to an observation of a most important political nature; which is, that this stability allows several essential branches of English liberty to take place which without it could not exist. For there is a very essential consideration to be made in every Science, though speculators are sometimes apt to lose sight of it, which is, that in order that things may have existence, they must be possible; in order that political regulations of any kind may obtain their effect, they must imply no direct contradiction, either open or hidden, to the nature of things, or to the other circumstances of the Government. In reasoning from this principle, we shall find that the stability of the Governing executive authority in England, and the weight it gives to the whole machine of the State, has actually enabled the English Nation, considered as a free Nation, to enjoy several advantages which would really have been totally unattainable in the other States we have mentioned in former Chapters, whatever degree of public virtue we might even suppose to have belonged to those who acted in those States as the Advisers of the People, or in general who were trusted with the business of framing the Laws (a) .
One of these advantages resulting from the Solidity of the Government, is, the extraordinary personal freedom which all ranks of individuals in England, enjoy at the expence of the governing authority.13 In the Roman Commonwealth, for instance, we see the Senate to have been vested with a number of powers totally destructive of the liberty of the Citizens; and the continuance of these powers was, no doubt, in a great measure owing to the treacherous remissness of those Men in whom the People trusted for repressing them, or even to their determined resolution not to abridge those prerogatives. Yet, if we attentively consider the constant situation of affairs in that Republic, we shall find that, though we might suppose those persons to have been ever so truly attached to the cause of the People, it would not really have been possible for them to procure to the People an entire security. The right enjoyed by the Senate, of suddenly naming a Dictator with a power unrestrained by any law, or of investing the Consuls with an authority of much the same kind, and the power it at times assumed of making formidable examples of arbitrary Justice, were resour-ces of which the Republic could not, perhaps, with safety have been totally deprived; and though these expedients frequently were used to destroy the just liberty of the People, yet they were also very often the means of preserving the Commonwealth.
Upon the same principle we should possibly find that the Ostracism, that arbitrary method of banishing Citizens, was a necessary resource in the Republic of Athens. A Venetian Noble would perhaps also confess, that however terrible the State Inquisition established in his Republic, may be even to the Nobles themselves, yet it would not be prudent entirely to abolish it. And we do not know but a Minister of State in France, though we might suppose him ever so virtuous and moderate a Man, would say the same with regard to the secret imprisonments, the lettres de cachet, and other arbitrary deviations from the settled course of law which often take place in that Kingdom, and in the other Monarchies of Europe. No doubt, if he was the Man we suppose, he would confess the expedients we mention have in numberless instances been villainously prostituted to gratify the wantonness and private revenge of Ministers, or of those who had any interest with them; but still perhaps he would continue to give it as his opinion, that the Crown, notwithstanding its apparently immense strength, cannot avoid recurring at times to expedients of this kind; much less could it publicly and absolutely renounce them for ever.
It is therefore a most advantageous circumstance in the English Government, that its security renders all such expedients unnecessary, and that the Representatives of the People have not only been constantly willing to promote the public liberty, but that the general situation of affairs has also enabled them to carry their precautions so far as they have done. And indeed, when we consider what prerogatives the Crown, in England, has sincerely renounced,—that in consequence of the independence conferred on the Judges and of the method of Trial by Jury, it is deprived of all means of influencing the settled course of the law both in civil and criminal matters,—that it has renounced all power of seizing the property of individuals, and even of restraining in any manner whatsoever, and for the shortest time, the liberty of their persons, we do not know what we ought most to admire, whether the public virtue of those who have deprived the supreme Executive Power of all those dangerous prerogatives, or the nature of that same Power, which has enabled it to give them up without ruin to itself—whether the happy frame of the English Government, which makes those in whom the People trust, continue so faith-ful in the discharge of their duty, or the solidity of that same Government, which really can afford to leave to the People so extensive a degree of freedom (a) .
Again, the Liberty of the press, that great advantage enjoyed by the English Nation, does not exist in any of the other Monarchies of Europe, however well established their power may at first seem to be; and it might even be demonstrated that it cannot exist in them.14 The most watchful eye, we see, is constantly kept in those Monarchies upon every kind of publication; and a jealous attention is paid even to the loose and idle speeches of individuals. Much unnecessary trouble (we may be apt at first to think) is taken upon this subject; but yet if we consider how uniform the conduct of all those Governments is, how constant and unremitted their cares in those respects, we shall become convinced, without looking farther, that there must be some sort of necessity for their precautions.
In Republican States, for reasons which are at bottom the same as in the before mentioned Governments, the People are also kept under the greatest restraints by those who are at the head of the State. In the Roman Commonwealth, for instance, the liberty of writing was curbed by the severest laws (a) : with regard to the freedom of speech, things were but little better, as we may conclude from several facts; and many instances may even be produced of the dread with which the private Citizens, upon certain occasions, communicated their political opinions to the Consuls, or to the Senate. In the Venetian Republic, the press is most strictly watched: nay, to forbear to speak in any manner whatsoever on the conduct of the Government, is the fundamental maxim which they inculcate on the minds of the People throughout their dominions (a) .
With respect therefore to this point, it may again be looked upon as a most advantageous circumstance in the English Government, that those who have been at the head of the People, have not only been constantly disposed to procure the public liberty, but also that they have found it possible for them to do so; and that the remarkable strength and steadiness of the Government has admitted of that extensive freedom of speaking and writing which the People of England enjoy. A most advantageous privilege, this; which affording to every Man a means of laying his complaints before the Public, procures him almost a certainty of redress against any act of oppression that he may have been exposed to: and which leaving, moreover, to every Subject a right to give his opinion on all public matters, and by thus influencing the sentiments of the Nation, to influence those of the Legislature itself (which is sooner or later obliged to pay a deference to them), procures to him a sort of Legislative authority of a much more efficacious and bene-ficial nature than any formal right he might enjoy of voting by a mere yea or nay, upon general propositions suddenly offered to him, and which he could have neither a share in framing, nor any opportunity of objecting to, and modifying.
A privilege which, by raising in the People a continual sense of their security, and affording them undoubted proofs that the Government, whatever may be its form, is ultimately destined to insure the happiness of those who live under it, is both one of the greatest advantages of Freedom, and its surest characteristic. The kind of security as to their persons and possessions which Subjects who are totally deprived of that privilege, enjoy at particular times, under other Governments, perhaps may intitle them to look upon themselves as the well administered property of Masters who rightly understand their own interests; but it is the right of canvassing without fear the conduct of those who are placed at their head, which constitutes a free Nation (a) .
The unbounded freedom of debate possessed by the English Parliament, is also a consequence of the peculiar stability of the Government. All Sovereigns have agreed in their jealousy of Assemblies of this kind, in their dread of the privileges of Assemblies who attract in so high a degree the attention of the rest of the People, who in a course of time become connected by so many essential ties with the bulk of the Nation, and acquire so much real influence by the essential share they must needs have in the management of public affairs, and by the eminent services, in short, which they are able to perform to the Community (b) . Hence it has happened that Monarchs, or single Rulers, in all Countries, have endeavoured to dispense with the assistance of Assemblies like those we mention, notwithstanding the capital advantages they might have derived from their services towards the good government of the State; or if the circumstances of the times have rendered it expedient for them to call such Assemblies together, they have used the utmost endeavours in abridging those privileges and legislative claims which they soon found to prove so hostile to their security: in short, they have ever found it impracticable to place any unreserved trust in public Meetings of this kind.15
We may here name Cromwell, as he was supported by a numerous army, and possessed more power than any foreign Monarch who has not been secured by an armed force. Even after he had purged, by the agency of Colonel Pride and two regiments, the Parliament that was sitting when his power became settled, thereby thrusting out all his opponents to the amount of about two hundred, he soon found his whole authority endangered by their proceedings, and was at last under a necessity of turning them out in the military manner with which every one is acquainted. Finding still a Meeting of this kind highly expedient to legalize his military authority, he called together that Assembly which was called Barebone’s Parliament. He had himself chosen the Members of this Parliament to the number of about an hundred and twenty, and they had severally received their summons from him; yet, notwithstanding this circumstance, and the total want of personal weight in most of the Members, he began in a very few months, and in the midst of his powerful victorious army, to feel a serious alarm at their proceedings; he soon heard them talk of their own divine commission, and of the authority they had received from the Lord; and in short, finding he could not trust them, he employed the offices of a second Colonel, to effect their dismission. Being now dignified with the legal appellation of Protector, he ventured to call a Parliament elected by considerable parts of the people; but though the existence of this Parliament was grounded, we might say grafted, upon his own; and though bands of Soldiers were even posted in the avenues to keep out all such Members as refused to take certain personal engagements to him, he made such haste in the issue, to rid himself of their presence, as to contrive a mean quibble or device to shorten the time of their sitting by ten or twelve days (a) . To a fourth As-sembly he again applied; but, though the elections had been so managed as to procure him a formal tender of the Crown during the first sitting, he put a final end to the second with resentment and precipitation (a) .
The example of the Roman Emperors, whose power was outwardly so prodigious, may also be introduced here. They used to shew the utmost jealousy in their conduct with respect to the Roman Senate; and that Assembly which the prepossession of the People, who looked upon it as the ancient remains of the Republic, had made it expedient to continue, were not suffered to assemble but under the drawn scymitars of the Pretorian guards.
Even the Kings of France, though their authority is so unquestioned, so universally respected, as well as strongly supported, have felt frequent anxiety from the claims and proceedings of the Parliament of Paris; an Assembly of so much less weight than the English Parliament. The alarm has been mentioned which the late King at last expressed concerning their measures, as well as the expedient to which he resorted, to free himself from their presence. And when the present King thought proper to call again this Parliament together, a measure highly prudent in the beginning of his reign, every jealous precaution was at the same time taken to abridge those privileges of deliberating and remonstrating upon which any distant claim to, or struggle for, a share in the Supreme authority might be grounded.16
It may be objected that the pride of Kings, or single Rulers, makes them averse to the existence of Assemblies like those we mention, and despise the capital services which they might derive from them for the good government of their Kingdoms. I grant it may in some measure be so. But if we examine into the general situation of affairs in different States, and into the examples with which their History supplies us, we shall also find that the pride of those Kings agrees in the main with the interest and quiet of their Subjects, and that their preventing the Assemblies we speak of from meeting, or, when met, from assuming too large a share in the management of public affairs, is in a great measure, matter of necessity.
We may therefore reckon it as a very great advantage, that, in England, no such necessity exists. Such is the frame of the Government, that the Supreme executive authority can, both give leave to assemble, and shew the most unreserved trust, when assembled, to those two Houses which concur together to form the Legislature.
These two Houses, we see, enjoy the most complete freedom in their debates, whether the subject be grievances, or regulations concerning government matters of any kind: no restriction whatever is laid upon them; they may start any subject they please. The Crown is not to take any notice of their deliberations: its wishes, or even its name, are not to be introduced in the debates. And in short, what makes the freedom of deliberating, exercised by the two Houses, really to be unlimited, unbounded, is the privilege, or sovereignty we may say, enjoyed by each within its own walls, in consequence of which nothing done or said in Parliament, is to be questioned in any place out of Parliament. Nor will it be pretended by those persons who are acquainted with the English History, that those privileges of Parliament we mention are nominal privileges, only privileges upon paper, which the Crown has disregarded whenever it has thought proper, and to the violations of which the Parliament have used very tamely to submit. That these remarkable advantages,—that this total freedom from any compulsion or even fear, and in short this unlimited liberty of debate, so strictly claimed by the Parliament, and so scrupulously allowed by the Crown, should be exercised year after year during a long course of time, without producing the least relaxation in the execution of the laws, the smallest degree of anarchy, are certainly very singular political phenomena.
It may be said that the remarkable Solidity of the governing Executive authority, in England, operates to the advantage of the People with respect to the objects we mention, in a twofold manner. In the first place, it takes from the great Men in the Nation all serious ambition to invade this authority, thereby preventing those anarchical and more or less bloody struggles to result from their debates, which have so constantly disturbed other Countries. In the second place, it inspires those Great Men with that salutary jealousy of the same authority which leads them to frame such effectual provi-sions for laying it under proper restraints. On which I shall observe, by way of a short digression, that this distinguished stability of the executive authority of the English Crown, affords an explanation for the peculiar manner in which public commotions have constantly been terminated in England, compared with the manner in which the same events have been concluded in other Kingdoms. When I mentioned, in a former Chapter,17 this peculiarity in the English Government, I mean the accuracy, impartiality, and universality, of the provisions by which peace, after internal disturbances, has been restored to the Nation, I confined my comparisons to instances drawn from Republican Governments, purposely postponing to say any thing of Governments of a Monarchical form, till I had introduced the very essential observation contained in this Chapter, which is, that the power of Crowns, in other Monarchies, has not been able, by itself, to produce the same effects it has in England, that is, has not been able to inspire the Great Men in the State with any thing like that salutary jealousy we mention, nor of course to induce them to unite in a real common cause with the rest of the People. In other Monar-chies (a) , those Men who, during the continuation of the public disturbances, were at the head of the People, finding it in their power, in the issue, to parcel out, more or less, the Supreme governing authority, (or even the State itself) and to transfer the same to themselves, constantly did so, in the same manner, and from the very same reasons, as it constantly happened in the ancient Commonwealths; those Monarchical Governments being in reality, so far as that, of a Republican nature: and the governing authority was left, at the conclusion, in the same undefined extent it had before (a) . But in England, the great Men in the Nation finding themselves in a situation essentially different, lost no time in pursuits like those in which the great Men of other Countries used to indulge themselves on the occasion we mention. Every Member of the Legislature plainly perceived, from the general aspect of affairs and his feelings, that the Supreme executive authority in the State must in the issue fall some where undivided, and continue so; and being moreover sensible, that neither personal advantages of any kind, nor the power of any faction, but the law alone, could afterwards be an effectual restraint upon its motions, they had no thought or aim left, except the framing with care those laws on which their own liberty was to continue to depend, and to restrain a power which they, somehow, judged it so impracticable to transfer to themselves or their party, or to render themselves independent of. These observations I thought necessary to be added to those in the xv. Chapter, to which I now refer the Reader.
Nor has the great freedom of canvassing political subjects we have described, been limited to the Members of the Legislature, or confined to the walls of Westminster, that is, to that exclusive spot on which the two Houses meet: the like privilege is allowed to the other orders of the People; and a full scope is given to that spirit of party, and a complete security insured to those numerous and irregular meetings, which, especially when directed to matters of government, create so much uneasiness in the Sovereigns of other Countries. Individuals even may, in such meetings, take an active part for procuring the success of those public steps which they wish to see pursued: they may frame petitions to be delivered to the Crown, or to both Houses, either to procure the repeal of measures already entered upon by Government, or to prevent the passing of such as are under consideration, or to obtain the enacting of new regulations of any kind: they may severally subscribe their names to such petitions: the law sets no restriction on their numbers; nor has it, we may say, taken any precaution to prevent even the abuse that might be made of such freedom.
That mighty political engine, the press, is also at their service: they may avail themselves of it to advertise the time and place, as well as the intent, of the meetings, and moreover to set off and inculcate the advantages of those notions which the wish is to see adopted.
Such meetings may be repeated; and every individual may deliver what opinion he pleases on the proposed subjects, though ever so directly opposite to the views or avowed designs of the Government. The Member of the Legislature may, if he chooses, have admittance among them, and again enforce those topics which have not obtained the success he expected, in that House to which he belongs. The disappointed Statesman, the Minister turned out, also find the door open to them: they may bring in the whole weight of their influence and of their connections: they may exert every nerve to enlist the Assembly in the number of their supporters: they are bid to do their worst: they fly through the Country from one place of meeting to another: the clamour increases: the Constitution, one may think, is going to be shaken to its very foundations:—but these mighty struggles, by some means or other, always find a proportionate degree of re-action: new difficulties, and at last insuperable impediments, grow up in the way of those who would take advantage of the general ferment to raise themselves on the wreck of the governing Authority: a secret force exerts itself, which gradually brings things back to a state of moderation and calm; and that sea so stormy, to appearance so deeply agitated, constantly stops at certain limits which it seems as if it wanted the power to pass.
The impartiality with which justice is dealt to all orders of Men in England, is also in great measure owing to the peculiar stability of the Government: the very remarkable, high degree, to which this impartiality is carried, is one of those things which, being impossible in other Countries, are possible under the Government of this Country. In the ancient Commonwealths, from the instances that have been introduced in a former place, and from others that might be quoted, it is evident that no redress was to be obtained for the acts of injustice or oppression committed by the Men possessed of influence or wealth upon the inferior Citizens. In the Monarchies of Europe, in former times, abuses of a like kind prevailed to a most enormous degree. In our days, notwithstanding the great degrees of strength acquired by the different Governments, it is matter of the utmost difficulty for subjects of the inferior classes to obtain the remedies of the law against certain individuals: in some Countries it is impossible, let the abuse be ever so flagrant; an open attempt to pursue such remedies being moreover attended with danger. Even in those Monarchies of Europe in which the Government is supported both by real strength, and by civil Institutions of a very advantageous nature, great differences prevail between individuals in regard to the facility of obtaining the remedies of the law; and to seek for redress is at best in many cases, so arduous and precarious an attempt as to take from injured individuals all thoughts of encountering the difficulty. Nor are these abuses we mention, in the former or present Governments of Europe, to be attributed only to the want of resolution in the Heads of these Governments. In some Countries, the Sovereign by an open design to suppress these abuses, would have endangered at once his whole authority; and in others, he would find obstructions multiply so in his way as to compel him, and perhaps soon enough too, to drop the undertaking.—How can a Monarch make, alone, a persevering stand against the avowed expectations of all the great Men by whom he is surrounded, and against the loud claims of powerful classes of individuals? In a Commonwealth, what is a Senate to do when they find that their refusing to protect a powerful Offender of their own class, or to indulge some great Citizen with the impunity of his friends, is likely to be productive of serious divisions among themselves, or perhaps of disturbances among the People?
If we cast our eyes on the strict and universal impartiality with which justice is administered in England, we shall soon become convinced that some inward essential difference exists between the English Government, and those of other Countries, and that its power is founded on causes of a distinct nature. Individuals of the most exalted rank do not entertain so much as the thought to raise the smallest direct opposition to the operation of the law. The complaint of the meanest Subject, if preferred and supported in the usual way, immediately meets with a serious regard. The Oppressor of the most extensive influence, though in the midst of a train of retainers, nay, though in the fullest flight of his career and pride, and surrounded by thousands of applauders and partisans, is stopped short at the sight of the legal paper which is delivered into his hands, and a Tipstaff is sufficient to bring him away, and produce him before the Bench.
Such is the greatness and uninterrupted prevalence of the law (a) , such is in short the continuity of omnipotence, of resistless superiority, it exhibits, that the extent of its effects at length ceases to be a subject of observation to the Public.
Nor are great or wealthy Men to seek for redress or satisfaction of any kind, by any other means than such as are open to all: even the Sovereign has bound himself to resort to no other: and experience has shewn that he may without danger, trust the protection of his per-son, and of the places of his residence, to the slow and litigious assistance of the law (b) .
Another very great advantage attending this remarkable stability of the English Government we are describing, is, that the same is operated without the assistance of an armed standing force: the constant expedient this, of all other Governments. On this occasion I shall introduce a passage of Doctor Adam Smith (c) , in a Work published since the present Chapter was first written, in which passage an opinion certainly erroneous is contained: the mistakes of persons of his very great abilities deserve attention. This Gentleman, struck with the necessity of a sufficient power of re-action, of a sufficient strength, on the side of Government, to resist the agitations attending on liberty, has looked round, and judged the English Government derived the singular stability it manifests from the standing force it has at its disposal: the following are his expressions. “To a Sovereign who feels himself supported, not only by the natural Aristocracy of the Country, but by a well regulated standing army, the rudest, the most groundless, and the most licentious remonstrances can give little disturbance. He can safely pardon or neglect them, and his consciousness of his superiority naturally disposes him to do so. That degree of liberty which approaches to licentiousness, can be tolerated only in Countries where the Sovereign is secured by a well regulated standing army”(a) .
The above positions are grounded on the notion that an army places in the hand of the Sovereign an united irresistible strength, a strength liable to no accident, difficulties, or exceptions; a supposition this, which is not conformable to experience. If a Sovereign was endued with a kind of extraordinary power attending on his person, at once to lay under water whole legions of insurgents, or to repulse and sweep them away by slashes and shocks of the electrical fluid, then indeed he might use the great forbearance above described:—though it is not perhaps very likely he would put up with the rude and groundless remonstrances of his subjects, and with their licentious freedom, yet, he might, with safety, do or not do so, at his own choice. But an army is not that simple weapon which is here supposed. It is formed of Officers and Soldiers who feel the same passions with the rest of the People, the same disposition to promote their own interest and importance, when they find out their strength, and proper opportunities offer. What will therefore be the resource of the Sovereign, if, into that army on the assistance of which he relies, the same party spirit creeps by which his other Subjects are actuated? whereto will he take his refuge, if the same political caprices, abetted by the serious ambition of a few leading Men, the same restlessness, and at last perhaps the same disaffection, begin to pervade the smaller kingdom of the army, by which the main Kingdom or Nation are agitated?
The prevention of dangers like those just mentioned, constitutes the most essential part of the precautions and state craft of Rulers, in those Governments which are secured by standing armed forces. Mixing the troops formed of natives with foreign auxiliaries, dispersing them in numerous bodies over the country, and continually shifting their quarters, are among the methods that are used; which it does not belong to our subject to enumerate, any more than the extraordinary expedients employed by the Eastern Monarchs for the same purposes. But one caution very essential to be mentioned here, and which the Governments we allude to, never fail to take before every other, is to retrench from their unarmed Subjects, a freedom which, transmitted to the Soldiery, would be attended with so fatal consequences: hindering so bad examples from being communicated to those in whose hands their power and life are trusted, is what every notion of self-preservation suggests to them: every weapon is accordingly exerted to suppress the rising and spreading of so awful a contagion.
In general, it may be laid down as a maxim, that, where the Sovereign looks to his army for the security of his person and authority, the same military laws by which this army is kept together, must be extended over the whole Nation: not in regard to military duties and exercises; but certainly in regard to all that relates to the respect due to the Sovereign and to his orders. The martial law, concerning these tender points, must be universal. The jealous regulations concerning mutiny and contempt of orders, cannot be severely enforced on that part of the Nation which secures the subjection of the rest, and enforced too through the whole scale of military subordination, from the Soldier to the Officer, up to the very Head of the military System,—while the more numerous and inferior part of the People are left to enjoy an unrestrained freedom:—that secret disposition which prompts Mankind to resist and counteract their Superiors, cannot be surrounded by such formidable checks on the one side, and be left to be indulged to a degree of licentiousness and wantonness, on the other.
In a Country where an army is kept, capable of commanding the obedience of the Nation, this army will, both imitate for themselves the licentiousness above mentioned, and check it in the People. Every Officer and Soldier, in such a Country, claim a superiority in regard to other individuals; and in proportion as their assistance is relied upon by the Government, expect a greater or less degree of submission from the rest of the People (a) .
The same Author concludes his above quoted observations concerning the security of the power of an armed Sovereign, by immediately adding: “It is in such Countries only that it is unnecessary that the Sovereign should be trusted with any discretionary power for suppressing even the wantonness of this licentious liberty.”18 The idea here expressed coinciding with those already discussed, I shall say nothing farther on the subject. My reason for introducing the above expressions, has been, that they lead me to take notice of a remarkable circumstance in the English Government. From the expressions, it is unnecessary the Sovereign should be trusted with any discretionary power, the Author appears to think that a Sovereign at the head of an army, and whose power is secured by this army, uses to wait to set himself in motion, till he has received leave for that purpose, that is, till he has been trusted with a power for so doing. This notion in the Author we quote, is borrowed from the steady and thoroughly legal Government of this Country; but the like law doctrine, or principle, obtains under no other Government. In all Monarchies, (and it is the same in Republics) the Executive power in the State is supposed to possess, originally and by itself, all manner of lawful authority: every one of its exertions is deemed to be legal; and they do not cease to be so, till they are stopped by some express and positive regulation. The Sovereign, and also the civil Magistrate, till so stopped by some positive law, may come upon the Subject when they choose; they may question any of his actions; they may construe them into unlawful acts; and inflict a penalty, as they please: in these respects they may be thought to abuse, but not to exceed, their power. The authority of the Government, in short, is supposed to be unlimited so far as there are no visible boundaries set up against it: behind and within these boundaries, lies whatever degree of liberty the Subject may possess.
In England, the very reverse obtains. It is not the authority of the Government, it is the liberty of the Subject, which is supposed to be unbounded. All the Individual’s actions are supposed to be lawful, till that law is pointed out which makes them to be otherwise. The onus probandi19 is here transferred from the Subject to the Prince. The Subject is not at any time to shew the grounds of his conduct. When the Sovereign or Magistrate think proper to exert themselves, it is their business to find out and produce the law in their own favour, and the prohibition against the Subject (a) .
This kind of law principle, owing to the general spirit by which all parts of the Government are influenced, is even carried so far, that any quibble, or trifling circumstance, by which an Offender may be enabled to step aside and escape, though ever so narrowly, the reach of the law, are sufficient to screen him from punishment, let the immorality or intrinsic guilt of his conduct be ever so openly admitted (a) .
Such a narrow circumscription of the exertions of the Government, is very extraordinary: it does not exist in any Country but this; nor could it. The situation of other Governments is such that they cannot thus allow themselves to be shut out of the unbounded space unoccupied by any law, in order to have their motions confined to that spot which express and previously declared provisions have chalked out. The power of these Governments being constantly attended with more or less precariousness, there must be a degree of discretion answerable to it (a) .
The foundation of that law principle, or doctrine, which confines the exertion of the power of the Government to such cases only as are expressed by a law in being, was laid when the great Charter was passed: this restriction was implied in one of those general impartial articles which the Barons united with the People to obtain from the Sovereign. The Crown, at that time, derived from its foreign dominions, that stability and inward strength in regard to the English Nation, which is now in a secret hidden manner annexed to the Civil branch of its Office, and which, though operating by different means, continues to maintain that kind of confederacy against it, and union between the different Orders of the People. By the article in Magna Charta here alluded to, the Sovereign bound itself neither to go, nor send, upon the Subject, otherwise than by the Trial of Peers, and the Law of the land (b) . This Article was however afterwards disregarded in practice, in consequence of the lawful efficiency which the King claimed for his Proclamations, and especially by the institution of the Court of Star Chamber, which grounded its proceedings not only upon these Proclamations, but also upon the particular rules it chose to frame within itself. By the abolition of this Court (and also of the Court of High Commission) in the reign of Charles the First, the above provision of the Great Charter was put in actual force; and it has appeared by the event, that the very extraordinary restriction upon the governing authority we are alluding to, and its execution, are no more than what the intrinsic situation of things, and the strength of the Constitution, can bear (a) .
The law doctrine we have above described, and its being strictly regarded by the High governing authority, I take to be the most characteristic circumstance in the English Government, and the most pointed proof that can be given of the true freedom which is the consequence of its frame. The practice of the Executive authority thus to square its motions upon such laws, and such only, as are ascertained and declared beforehand, cannot be the result of that kind of stability which the Crown might derive from being supported by an armed force, or as the above mentioned Author has expressed it, from the Sovereign being the General of an army: such a rule of acting is even contradictory to the office of a General: the operations of a General eminently depend for their success, on their being sudden, unforeseen, attended by surprize.
In general, that stability of the power of the English Crown we have described, cannot be the result of that kind of strength which arises from an armed force: the kind of strength which is conferred by such a weapon as an army, is too uncertain, too complicate, too liable to accidents; in a word, it falls infinitely short of that degree of steadiness which is necessary to counterbalance, and at last quiet, those extensive agitations in the People which sometimes seem to threaten the destruction of order and Government. An army, if its support be well directed, may be useful to prevent this restlessness in the People from beginning to exist; but it cannot keep it within bounds, when it has once taken place.
If from general arguments and considerations, we pass to particular facts, we shall actually find that the Crown, in England, does not rely for its support, nor ever has relied, upon the army of which it has the command. From the earliest times, that is, long before the invention of standing armies among European Princes, the Kings of England possessed an authority certainly as full and extensive as that which they do now enjoy. After the weight they derived from their possessions beyond sea had been lost, a certain arrangement of things began to be formed at home which supplied them with a strength of another kind, though not less solid: and they began to derive from the Civil branch of their regal Office that secure power which no other Monarchs had ever possessed, except through the assistance of Legions and Praetorian guards, or of armies of Janissaries, or of Strelitzes.20
The Princes of the House of Tudor, to speak of a very remarkable period in the English History,21 though they had no other visible present force than inconsiderable retinues of servants, were able to exert a power equal to that of the most absolute Monarchs who ever did reign, equal to that of the Domitians or Commoduses, or of the Amuraths or Bajazets: nay, it even was superior, if we consider the slow steadiness and outward show of legality with which it was attended throughout.22
The stand which the Kings of the House of Stuart were able to make, though unarmed, and only supported by the civil authority of their Office, during a long course of years, against the restless spirit which began to actuate the Nation, and the vehement political and religious notions that broke out in their time, is still more remarkable than even the exorbibitant power of the Princes of the House of Tudor, during whose reign prepossessions of quite a contrary nature were universal.
The struggle opened with the reign of James the First: yet, he peaceably weathered the beginning storm, and transmitted his authority undiminished to his Son. Charles the First was indeed at last crushed under the ruins of the Constitution; but if we consider that, after making the important national concessions contained in the Petition of right, he was able, single and unarmed, to maintain his ground without loss or real danger during a space of eleven years, that is, till the year 1640 and those that followed, we shall be inclined to think that, had he been better advised, he might have avoided the misfortunes that befell him at length.
Even the events of the reign of James the Second afford a proof of that solidity which is annexed to the authority of the English Crown. Notwithstanding the whole Nation, not excepting the army, were in a manner unanimous against him, he was able to reign full four years, standing single against all, without meeting with any open resistance. Nor was such justifiable and necessary resistance easily brought about at length (a) . Though it is not to be doubted that the dethroning of James the Second would have been effected in the issue, and perhaps in a very tragical manner, yet, if it had not been for the assistance of the Prince of Orange, the event would certainly have been postponed till a few years later. That authority on which James relied with so much con-fidence, was not annihilated at the time it was, otherwise than by a ready and considerable armed force being brought against it from the other side of the Sea, like a solid Fortress, which, though without any visible out-works, requires, in order to be compelled to surrender, to be battered with cannon.
If we look into the manner in which this Country has been governed since the Revolution, we shall evidently see that it has not been by means of the army the Crown has under its command, that it has been able to preserve and exert its authority. It is not by means of their Soldiers that the Kings of Great Britain prevent the manner in which elections are carried on, from being hurtful to them; for, these Soldiers must move from the places of election one day before such elections are begun, and not return till one day after they are finished. It is not by means of their military force that they prevent the several kinds of civil Magistracies in the Kingdom from invading and lessening their prerogative; for this military force is not to act till called for by these latter, and under their direction. It is not by means of their army that they lead the two Branches of the Legislature into that respect of their regal authority we have before described; since each of these two Branches, severally, is possessed with an annual power of disbanding this army (a) .
There is another circumstance, which abstractedly of all others, makes it evident that the executive authority of the Crown is not supported by the army: I mean the very singular subjection in which the military is kept in regard to the civil power in this Country.
In a Country where the governing authority in the State is supported by the army, the military profession, who, in regard to the other professions, have on their side the advantage of present force, being now moreover countenanced by the law, immediately acquire, or rather assume, a general ascendency; and the Sovereign, far from wishing to discourage their claims, feels an inward happiness in seeing that instrument on which he rests his authority, additionally strengthened by the respect of the People, and receiving a kind of legal sanction from the general outward consent.
And not only the military profession at large, but the individuals belonging to it, also claim personally a pre-eminence: chief Commanders, Officers, Soldiers or Janissaries, all claim in their own spheres, some sort of exclusive privilege: and these privileges, whether of an honorific, or of a more substantial kind, are violently asserted, and rendered grievous to the rest of the Community, in proportion as the assistance of the military force is more evidently necessary to, and more frequently employed by, the Government. These things cannot be otherwise.
Now, if we look into the facts that take place in England, we shall find that a quite different order prevails from what is above described. All Courts of a military kind are under a constant subordination to the ordinary Courts of Law. Officers who have abused their private power, though only in regard to their own Soldiers, may be called to account before a Court of Common Law, and compelled to make proper satisfaction. Even any flagrant abuse of authority committed by Members of Courts Martial, when sitting to judge their own people, and determine upon cases of a bare mi-litary kind, makes them liable to the animadversion of the civil Judge (a) .
To the above facts concerning the pre-eminence of the Civil over the Military Power at large, it is needless to add that all offences com-mitted by persons of the military profession, in regard to individuals belonging to the other classes of the People, are to be determined upon by the Civil Judge. Any use they may make of their force, unless expressly applied to, and directed by, the Civil Magistrate, let the occasion be what it may, makes them liable to be convicted of murder for any life that may have been lost. Pleading the duties or customs of their profession in extenuation of any offence, is a plea which the Judge will not so much as understand. Whenever claimed by the Civil power, they must be delivered up immediately. Nor can it, in general, be said, that the countenance shewn to the military profession by the Ruling power in the State, has constantly been such as to inspire the bulk of the People with a disposition tamely to bear their acts of oppression, or to raise in Magistrates and Juries any degree of pre-possession sufficient to lead them always to determine with partiality in their favour (a) .
The subjection of the Military to the Civil power, carried to that extent it is in England, is another characteristic and distinctive circumstance in the English Government.
It is sufficiently evident that a King does not look to his army for his support, who takes so little pains to bribe and unite it to his interest.
In general, if we consider all the different circumstances in the English Government, we shall find that the army cannot possibly procure to the Sovereign any permanent strength, any strength upon which he can rely, and from it expect the success of any future and distant measures.
The public notoriety of the Debates in Parliament, induces all individuals, Soldiers as well as others, to pay some attention to political subjects; and the liberty of speaking, printing, and intriguing, being extended to every order of the Nation by whom they are surrounded, makes them liable to imbibe every notion that may be directly contrary to the views of that Power which keeps them.
The case would be still worse if the Sovereign was engaged in a contest with a very numerous part of the Nation. The general concern would increase in proportion to the vehemence of the Parliamentary Debates: Individuals, in all the different classes of the Public, would try their eloquence on the same subjects; and this eloquence would be in great measure exerted, during such interesting times, in making converts of the Soldiery: these evils the Sovereign could not obviate, nor even know, till it should be in every respect too late. A Prince engaged in the contest we suppose, would scarcely have completed his first preparations,—his project would scarcely be half ripe for execution, before his army would be taken from him. And the more powerful this army might be, the more adequate, seemingly, from its numbers, to the task it is intended for, the more open it would be to the danger we mention.
Of this, James the Second made a very remarkable experiment. He had augmented his army to the number of thirty thousand. But when the day finally came in which their support was to have been useful to him, some deserted to the enemy; others threw their arms; and those who continued to stand together, shewed more inclination to be spectators of, than agents in, the contest. In short, he gave all over for lost, without making any manner of trial of their assistance (a) .
From all the facts before introduced, it is evident that the power of the Crown, in England, bears upon foundations that are quite peculiar to it, and that its security and strength are obtained by means totally different from those by which the same advantages are so incompletely procured, and so deeply paid for, in other Countries.
It is without the assistance of an armed force that the Crown, in England, is able to manifest that fearlessness of particular individuals, or whole classes of them, with which it discharges its legal functions and duties. It is without the assistance of an armed force, it is able to counterbalance the extensive and unrestrained freedom of the People, it is able to exert that resisting strength which constantly keeps increasing in a superior proportion to the force by which it is opposed, that ballasting power by which, in the midst of boisterous winds and gales, it recovers and rights again the Vessel of the State (a) .
It is from the Civil branch of its Office, the Crown derives that strength by which it subdues even the Military power, and keeps it in a state of subjection to the Laws unexampled in any other Country. It is from an happy arrangement of things, it derives that uninterrupted steadiness, that invisible solidity, which procures to the Subject both so certain a protection, and so extensive a freedom. It is from the Nation, it receives the force with which it governs the Nation. Its resources are, accord, and not compulsion,—free action, and not fear,—and it continues to reign through the play, the struggle, of the voluntary passions of those who pay obedience to it (b) .
[1. ]This chapter first appeared in the original English-language edition of 1775 and was considerably expanded in the 1784 edition.
[(a) ]Henry VIII. the most absolute Prince, perhaps, who ever sat upon a Throne, kept no standing army. [[The absence of a large standing army in England was conventionally associated with the preservation of English liberty. Given its increasing involvement in Continental and overseas wars throughout the period after 1688, England in fact regularly maintained a large land force. However, the parliamentary legislation which funded the army and provided for its military discipline through the Mutiny Act was enacted and renewed on a temporary basis, usually for the period of one year.]]
[(b) ]As was the case in the several Kingdoms into which the Spanish Monarchy was formerly divided; and, in not very remote times, in France itself.
[(c) ]Or than the Kings of Sweden were allowed to enjoy, before the last Revolution in that Country. [[De Lolme refers to the political events in Sweden in 1772, when the new king, Gustavus III, successfully restored much of the monarchic power that had been surrendered in the constitutional settlement of 1720; see below, pp. 264–65 and p. 265, note 7. The doges of Venice and of Genoa served as the chief magistrates in a system where political power was principally held by an oligarchy of leading families.]]
[(a) ]I have not flattered myself, in writing this Chapter that it would be perfectly understood, nor is it designed for the generality of readers.
[2. ]See De Lolme’s earlier reference to these conflicts and to the Lords’ order concerning “tacking” bills, at book 1, chapter 6, p. 66, note a.
[3. ]Exclusion bills, designed to exclude from the royal succession the Catholic heir, James, Duke of York (later James II), were passed by the House of Commons in 1679, 1680, and 1681. The legislation of 1680 was rejected by the House of Lords. The two other bills failed because of the dissolution of Parliament.
[(a) ]They, besides, proposed to have all money bills stopped in their House, till they had procured the right of taxing, themselves, their own estates; and to have a Committee of Lords, and a certain number of the Commons, appointed to confer together concerning the State of the Nation; “which Committee (says Bishop Burnet) would soon have grown to have been a Council of State, that would have brought all affairs under their inspection, and never had been proposed but when the Nation was ready to break into civil wars.”—See Burnet’s History, anno 1693. [[De Lolme refers to a variety of measures proposed in the years immediately following the 1688 Glorious Revolution, and often initiated by Whig leaders in the House of Lords, that would have further strengthened the political independence of Parliament by constraining the prerogatives of the crown. For Burnet’s History, see above, book 2, chapter 16, p. 245, note a.]]
[(b) ]Nov. 28, 1693.
[4. ]The unsuccessful legislation was introduced in 1719. George I’s predecessor, Queen Anne, in 1711 created twelve new peers in order to ensure majority support in the House of Lords for the government peace policy that led to the 1713 Treaty of Utrecht.
[5. ]“Place bills” were designed to secure the independence of the House of Commons by disqualifying any member who held a profitable office (or “place”) under crown appointment. De Lolme’s discussion is slightly misleading. Opposition by the House of Lords prevented the passage of several place bills in the period 1710–15, but a limited measure was enacted in 1716.
[6. ]Maria Christina Alexandra became queen of Sweden in 1632. She was forced to abdicate in 1654 in favor of her cousin Charles Gustavus.
[(a) ]The Senate had procured a Seal to be made, to be affixed to their official resolutions, in case the King should refuse to lend his own. The reader will find a few more particulars concerning the former government of Sweden, in the nineteenth Chapter.
[7. ]Sweden’s Charles XII died without a direct male heir in 1718. A new constitutional order, which sharply reduced the power of the crown in favor of the Council of Estates, was consolidated in 1720.
[(a) ]It may not be improper to observe here, as a farther proof of the indivisibility of the power of the Crown (which has been above said to result from the peculiar frame of the English Government) that no part of the Executive authority of the King is vested in his Privy Council, as we have seen it was in the Senate of Sweden: the whole business centers in the Sovereign; the votes of the Members are not even counted, if I am well informed: and in fact the constant style of the Law, is the King in Council, and not the King and Council. A proviso is indeed sometimes added to some Bills, that certain acts mentioned in them are to be transacted by the King in Council: but this is only a precaution taken in the view that the most important affairs of a great Nation may be transacted with proper solemnity, and to prevent, for instance, all objections that might, in process of time, be drawn from the uncertainty whether the King has assented, or not, to certain particular transactions. The King names the Members of the Privy Council; or excludes them, by causing their names to be struck out of the Book. [[A Royal Council—or more commonly, Privy Council—was a regular institution of royal government from the medieval period. The size and membership of the council was generally under the discretion of the crown. By the time of De Lolme’s writing, the council’s most important government functions had been replaced by the smaller committee of royal ministers and advisors referred to as the cabinet.]]
[8. ]The 1688/89 Bill of Rights settled the crown on Anne of Denmark (the future Queen Anne) in the absence of a biological heir of William and Mary. The 1701 Act of Settlement settled the crown on the House of Hanover in the absence of a biological heir of Queen Anne.
[(a) ]He assented a few years afterwards to that Bill, after several amendments had been made in it. [[William assented to the Triennial Act of 1694, which limited the time between parliamentary elections to a maximum of three years. The legislation he vetoed in 1692 restricted even further the crown’s control over the timing of parliamentary sessions and elections. The final exercise of the royal legislative veto occurred in 1708, when Queen Anne vetoed a bill for a Scottish militia.]]
[9. ]This paragraph and the succeeding discussion to the end of part 1 (p. 274) first appeared in the fourth edition of 1784.
[10. ]See book 1, p. 138, note a.
[(a) ]I will mention another instance of this real disinterestedness of the Parliament in regard to the power of the Crown,—nay, of the strong bent that prevails in that Assembly, to make the Crown the general depository of the executive authority in the Nation; I mean to speak of the manner in which they use to provide for the execution of those resolutions of an active kind they may at times come to: it is always by addressing the Crown for that purpose, and desiring it to interfere with its own executive authority. Even, in regard to the printing of their Journals, the Crown is applied to by the Commons, with a promise of making good to it the necessary expences. Certainly, if there existed in that Body any latent anxiety, any real ambition (I speak here of the general tenor of their conduct) to invest themselves with the executive authority in the State, they would not give up the providing by their own authority at least for the object just mentioned: it might give them a pretence for having a set of Officers belonging to them, as well as a Treasury of their own, and in short for establishing in their favour some sort of beginning or precedent: at the same time that a wish on their part, to be the publishers of their own Journals, could not be decently opposed by the Crown, nor would be likely to be found fault with by the Public. To some readers the fact we are speaking of may appear trifling; to me it is not so: I confess I never happen to see a paragraph in the newspapers, mentioning an address to the Crown for borrowing its executive prerogative in regard to the inconsiderable object here alluded to, without pausing for half a minute on the article. Certainly there must needs exist causes of a very peculiar nature which produce in an Assembly possessed of so much weight, that remarkable freedom from any serious ambition to push their advantages farther,—which inspire it with the great political forbearance we have mentioned, with so sincere an indifference in general, in regard to arrogating to themselves any branch of the executive authority of the Crown:—they really seem as if they did not know what to do with it after having acquired it, nor of what kind of service it may be to them.
[11. ]On Marlborough’s removal from office in 1711, see above, book 2, chapter 1, p. 149, note a. De Lolme’s source is Jonathan Swift’s History of the Last Four Years of the Queen, which was published posthumously in 1758.
[(a) ]We might also mention here the case of the Emperor Ferdinand II. and the Duke of Valstein, which seems to have at the time made a great noise in the world.—The Earls of Douglas were sometimes attended by a retinue of two thousand horse. See Dr. Robertson’s History of Scotland.—The Duke of Guise was warned some hours before his death, of the danger of trusting his person into the King’s presence or house; he answered, On n’ oseroit;—They durst not.
[12. ]The “late King” is Louis XV. De Lolme refers to the events of 1771, when the king issued lettres de cachet exiling magistrates who resisted the recent campaign under the direction of Chancellor Maupeou to curb the authority of the Parlements. On the “Lit de Justice,” see above, book 1, chapter 4, p. 60, note a.
[(a) ]He who stopt the army of King Antiochus. [[According to Livy and other classical authors, Popilius convinced Antiochus to abandon his military campaign in Egypt against Rome’s ally, Ptolemy. His “wand” was a stick he used to draw a circle in the sand around Antiochus, ordering him to remain in the circle until he finished delivering his message from Rome.]]
[(a) ]Nor has London post-horses enough to drive them far and near into the Country, in case the declaration by which the Parliament is dissolved, also mentions the calling of a new one.
[(a) ]One more observation might be made on the subject; which is, that, when the kingly dignity has happened in England to be wrested from the possessor, through some revolution, it has been recovered, or struggled for, with more difficulty than in other Countries: in all the other Countries upon earth, a King de jure (by claim) possesses advantages in regard to the King in being, much superior to those of which the same circumstance may be productive in England. The power of the other Sovereigns in the World, is not so securely established as that of an English King; but then their character is more indelible; that is to say,—till their Antagonists have succeeded in cutting them off and their families, they possess in a high degree a power to renew their claims, and disturb the State. Those family pleas or claims of priority, and in general those arguments to which the bulk of Mankind have agreed to allow so much weight, cease almost entirely to be of any effect, in England, against the person actually invested with the Kingly office, as soon the constitutional parts and springs have begun to move, and in short as soon as the machine of the Government has once begun to be in full play. An universal national ferment, similar to that which produced the former disturbances, is the only time of real danger. [[De Lolme refers obliquely to the failure of the two Jacobite rebellions to restore the Stuart dynasty in 1715–16 and 1745–46.
[(a) ]It may, if the reader pleases, belong to the Science of Metapolitics; in the same sense as we say Metaphysics; that is, the Science of those things which lie beyond physical, or substantial, things. A few more words are bestowed upon the same subject, in the Advertisement, or Preface, at the head of this Work.
[(a) ]I should be very well satisfied though only the more reflecting class of readers were fully to understand the tendency of this Chapter: in the mean time it is considerably illustrated beyond what it was in the former Editions.
[13. ]De Lolme here and in the following paragraphs summarizes themes he explored at length above (book 1, chapters 6–14, and book 2, chapter 16) concerning the English government’s exceptional avoidance of arbitrary acts of executive power and equally rare fidelity to legal norms securing individual liberty.
[(a) ]At the times of the invasions of the Pretender, assisted by the forces of hostile Nations, the Habeas Corpus Act was indeed suspended (which by the bye may serve as one proof, that in proportion as a Government is any how in danger, it becomes necessary to abridge the liberty of the subject); but the executive power did not thus of itself stretch its own authority; the precaution was deliberated upon and taken by the Representatives of the People; and the detaining of Individuals in consequence of the suspension of the Act, was limited to a certain fixed time. [[The Habeas Corpus Act was temporarily suspended by Parliament in 1715 and in 1746 in response to the Jacobite invasions. Notwithstanding the just fears of internal and hidden enemies which the circumstances of the times might raise, the deviation from the former course of the law was carried no farther than the single point we have mentioned: Persons detained by order of the Government, were to be dealt with in the same manner as those arrested at the suit of private individuals: the proceedings against them were to be carried on no otherwise than in a public place: they were to be tried by their Peers, and have all the usual legal means of defence allowed to them, such as calling of witnesses, peremptory challenge of Juries, &c.]]
[14. ]De Lolme here and in the following paragraphs returns to themes he explored more fully above, book 2, chapters 12–13.
[(a) ]The Law of the Twelve Tables had established the punishment of death against the author of a Libel: nor was it by a Trial by Jury that they determined what was to be called a Libel. Si quis carmen occentassit, actitassit, condidissit, quod alteri flagitium faxit, capital esto. [[“If anyone should sing, act, or compose a song, which shall cause dishonor or disgrace to another, he shall suffer a capital penalty.” For the Twelve Tables, see above, book 1, chapter 10, p. 95, and note 8.]]
[(a) ]Of this I have myself seen a proof somewhat singular, which I beg leave of the Reader to relate. Being, in the year 1768, at Bergamo, the first Town of the Venetian State, as you come into it from the State of Milan, about an hundred and twenty miles distant from Venice, I took a walk in the evening in the neighbourhood of the Town; and wanting to know the name of several places which I saw at a distance, I stopped a young Countryman to ask him information. Finding him to be a sensible young Man, I entered into some farther conversation with him; and as he had himself a great inclination to see Venice, he asked me, whether I proposed to go there? I answered, that I did: on which he immediately warned me when I was at Venice not to speak of the Prince (del Prencipe) an appellation assumed by the Venetian Government, in order, as I suppose, to convey to the People a greater idea of their union among themselves. As I wanted to hear him talk farther on the subject, I pretended to be entirely ignorant in that respect, and asked for what reason I must not speak of the Prince? But he, (after the manner of the common People in Italy, who, when strongly affected by any thing, rather choose to express themselves by some vehement gesture, than by words) ran the edge of his hand, with great quickness, along his neck, meaning thereby to express, that being strangled, or having one’s throat cut, was the instant consequence of taking such liberty.
[(a) ]If we consider the great advantages to public liberty which result from the institution of the Trial by Jury, and from the Liberty of the Press, we shall find England to be in reality a more Democratical State than any other we are acquainted with. The Judicial power, and the Censorial power, are vested in the People. [[For De Lolme’s fuller exposition of this point, see above, book 1, chapter 13, and book 2, chapters 12–13.]]
[(b) ]And which they do actually perform, till they are able to throw off the restraints of impartiality and moderation; a thing which, being Men, they never fail to do when their influence is generally established, and proper opportunities offer. Sovereigns know these things, and dread them.
[15. ]This paragraph and the succeeding discussion through p. 302 first appeared in the fourth edition of 1784.
[(a) ]They were to have sat five months; but Cromwell pretended that the months were to consist of only twenty-eight days; as this was the way of reckoning time used in paying the army, and the fleet. [[De Lolme refers in this note to the premature dissolution of the first Parliament of the Cromwellian Protectorate in 1655. In the paragraph to which his note refers, De Lolme discusses the 1648 purge of Parliament by Colonel Pride, which removed those opposed to the trial of Charles I; the Barebones’ Parliament of 1653 (named after the London radical, Praise-God Barebones); the 1653 appointment of Cromwell as Lord Protector; and the second and final meeting of the Parliament of the Protectorate in 1656–57.]]
[(a) ]The history of the conduct of the deliberating and debating Assemblies we are alluding to, in regard to the Monarchs, or single Rulers, of any denomination, who summon them together, may be expressed in a very few words. If the Monarch is unarmed, they over-rule him so as almost entirely to set him aside: if his power is of a military kind, they form connections with the army.
[16. ]De Lolme earlier in the chapter discussed Louis XV’s efforts to combat the authority of the Parlements; see note 11 in this chapter. Louis XVI first summoned the Parlements within weeks of coming to the throne in 1775.
[17. ]See above, book 2, chapter 15.
[(a) ]I mean, before the introduction of those numerous standing armies which are now kept by all the Crowns of Europe: since that epoch, which is of no very ancient date, no Treaty has been entered into by those Crowns with any Subjects.
[(a) ]As a remarkable instance of such a Treaty may be mentioned that by which the War for the Public good was terminated in France. It is quoted in page 30 of this Work. [[See above, book 1, chapter 2, p. 37, note a.]]
[(a) ]Lex magna est & praevalebit.
[(b) ]I remember, during the time after my first coming to this Country, I took notice of the boards set up from place to place behind the inclosure of Richmond park, “Whoever trespasses upon this ground will be prosecuted.”
[(c) ]An Inquiry into the Nature and Causes of the Wealth of Nations. Book V. Chap. I. Vol. II. p. 313, 314. [[De Lolme quotes Adam Smith’s 1776 An Inquiry into the Nature and Causes of the Wealth of Nations, book 5, chapter 1, part 1, paragraph 41 (emphasis added by De Lolme).]]
[(a) ]The Author’s design in the whole passage, is to shew that standing armies, under proper restrictions, cannot be hurtful to public liberty; and may in some cases be useful to it, by freeing the Sovereign from any troublesome jealousy in regard to this liberty.
[(a) ]In the beginning of the passage which is here examined, the Author says, “Where the Sovereign is himself the General, and the principal Nobility and Gentry of the Country, the chief Officers of the army,—where the military force is placed under the command of those who have the greatest interest in the support of the civil authority, because they have the greatest share of that authority, a standing army can never be dangerous to liberty. On the contrary, it may in some cases be favourable to liberty, &c. &c.” [[Wealth of Nations, book 5, chapter 1, part 1, paragraph 41.—In a Country so circumstanced, a standing army can never be dangerous to liberty: no, not the liberty of those principal Nobility and Gentry, especially if they have wit enough to form combinations among themselves against the Sovereign. Such an union as is here mentioned, of the civil and military powers, in the Aristocratical body of the Nation, leaves both the Sovereign and the People without resource. If the former Kings of Scotland had imagined to adopt the expedient of a standing army, and had trusted this army thus defrayed by them, to those Noblemen and Gentlemen who had rendered themselves hereditary Admirals, hereditary High Stewarts, hereditary High Constables, hereditary great Chamberlains, hereditary Justices General, hereditary Sheriffs of Counties, &c. they would have but badly mended the disorders under which the Government of their Country laboured: they would only have supplied these Nobles with fresh weapons against each other, against the Sovereign, and against the People.
[18. ]De Lolme quotes, with minor alteration, the concluding sentence of Smith, Wealth of Nations, book 5, chapter 1, part 1, paragraph 41.
[19. ]“Burden of proof.”
[(a) ]I shall take the liberty to mention another fact respecting myself, as it may serve to elucidate the above observations; or at least my manner of expressing them. I remember when I was beginning to pay attention to the operations of the English Government, I was under a prepossession of quite a contrary nature to that of the Gentleman whose opinions have been above discussed: I used to take it for granted that every article of liberty the Subject enjoys in this Country, was grounded upon some positive law by which this liberty was insured to him. In regard to the freedom of the press I had no doubt but it was so, and that there existed some particular law, or rather series of laws or legislative paragraphs, by which this freedom was defined and carefully secured: and as the liberty of writing happened at that time to be carried very far, and to excite a great deal of attention, (the noise about the Middlesex Election had not yet subsided) I particularly wished to see those laws I supposed, not doubting but there must be something remarkable in the wording of them. I looked into those Law Books I had opportunities to come at, such as Jacob’s and Cunningham’s Law Dictionaries, Wood’s Institutes, and Judge Blackstone’s Commentaries. I also found means to have a sight of Comyn’s Digest of the Laws of England, and I was again disappointed: this Author, though his Work consists of five folio Volumes, had not had, any more than the Authors just mentioned, any room to spare for the interesting law I was in search of. [[The “Middlesex Election” refers to the political controversies of 1768–70, when the House of Commons refused to seat John Wilkes, who had been elected to represent the county of Middlesex in a series of elections and special by-elections. For the publications by Blackstone, Jacob, and Cunningham, respectively, see above, book 1, chapter 4, p. 60, note 6, and chapter 10, p. 98, note a, and p. 99, note a. De Lolme refers also to Thomas Wood’s 1720 An Institute of the Laws of England and to John Comings’s Digest of the Laws of England, which was published posthumously in 1762–67. At length it occurred to me, though not immediately, that this Liberty of the press was grounded upon its not being prohibited,—that this want of prohibition was the sole, and at the same time solid, foundation of it. This led me, when I afterwards thought of writing something upon the Government of this Country, to give the definition of the freedom of the press which is contained in p. 296, 297 see book 2, chapter 12, p. 202: adding to it the important consideration of all actions respecting publications being to be decided by a Jury.]]
[(a) ]A number of instances, some even of a ludicrous kind, might be quoted in support of the above observation. Even only a trifling flaw in the words of an Indictment, is enough to make it void. The reader is also referred to the fact mentioned in the note, p. 180 [[see book 1, chapter 13, p. 130, note a, and to that in p. 317, 318 see book 2, chapter 14, p. 216, of this Work.
[(a) ]It might perhaps also be proved, that the great lenity used in England in the administration of criminal Justice, both in regard to the mildness, and to the frequent remitting, of punishments, is essentially connected with the same circumstance of the stability of the Government. Experience shews that it is needless to use any great degree of harshness and severity in regard to Offenders; and the Supreme governing authority is under no necessity of shewing the subordinate Magistracies any bad example in that respect.
[(b) ]. . . Nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium vel per legem terrae. Cap. XXIX. [[“. . . nor will we pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land.” Magna Carta, chapter 29; and see above, book 1, chapter 2, p. 36, note a.]]
[(a) ]The Court of Star Chamber was like a Court of Equity in regard to criminal matters: it took upon itself to decide upon those cases of offence upon which the usual Courts of Law, when uninfluenced by the Crown, refused to decide, either on account of the silence of the laws in being, or of the particular rules they had established within themselves; which is exactly the office of the Court of Chancery (and of the Exchequer) in regard to matters of property. (See back, p. 138 [[p. 105). For the court of Star Chamber, see above, book 1, chapter 3, p. 50, note a. For the equity jurisprudence of the Courts of Chancery and Exchequer, see above, book 1, chapter 11, p. 110, note a. The great usefulness of Courts of this kind, has caused the Courts of Equity in regard to civil matters, to be supported and continued; but experience has shewn, as is above observed, that no essential inconvenience can arise from the Subject being indulged with the very great freedom he has acquired by the total abolition of all arbitrary or provisional Courts in regard to criminal matters.]]
[20. ]De Lolme refers, in turn, to military forces of the Roman emperors, Ottoman sultans, and Russian czars.
[21. ]For De Lolme’s more detailed discussion of the critical constitutional developments under the Tudor and Stuart monarchs, which he summarizes in the following paragraphs, see above, book 1, chapter 3.
[22. ]“Domitians or Commoduses” refers to Roman emperors of the first and second centuries; “Amuraths [or ‘Murads’] or Bajazets [or ‘Beyazids’]” refers to Ottoman sultans from the fifteenth to seventeenth centuries.
[(a) ]Mr. Hume is rather too anxious in his wish to exculpate James the Second. He begins the conclusive character he gives of him, with representing him as a Prince whom we may safely pronounce more unfortunate than criminal. If we consider the solemn engagements entered into, not by his predecessors only, but by himself, which this Prince endeavoured to break, how cool and deliberate his attack on the liberties and religion of the People was, how unprovoked the attempt, and in short how totally destitute he was of any plea of self-defence or necessity, a plea to which most of the Princes who have been at variance with their Subjects had some sort of more or less distant claim, we shall look upon him as being perhaps the guiltiest Monarch that ever existed. [[David Hume’s judgment of James II appeared in the final chapter (chap. 71) of his multivolume The History of England, which was first published in 1754–62.]]
[(a) ]The generality of the People have from early times been so little accustomed to see any display of force used to influence the debates of the Parliament, that the attempt made by Charles the First to seize the five Members, attended by a retinue of about two hundred Servants, was the actual spark that set in a blaze the heap of combustibles which the preceding contests had accumulated. The Parliament, from that fact, took a pretence to make military preparations in their turn; and then the civil war began. [[The incident, in which the king attempted the arrest of five parliamentary opponents in the chamber of the House of Commons, occurred in January 1642.]]
[(a) ]A great number of instances might be produced to prove the above mentioned subjection of the Civil to the Military power, I shall introduce one which is particularly remarkable: I meet with it in the periodical publications of the year 1746.
[(a) ]The Reader may see in the publications of the year 1770, the clamour that was raised on account of a General in the army (Gen. Gansell) having availed himself of the vicinity of his Soldiers to prevent certain Sheriff’s Officers from executing an arrest upon his person, at Whitehall. It however appeared that the General had done nothing more than put forth a few of his Men in order to perplex and astonish the Sheriff’s Officers; and in the mean time he took an opportunity for himself to slip out of the way. The violent clamour we mention, was no doubt owing to the party spirit of the time; but it nevertheless shews what the notions of the bulk of the People were on the subject.
[(a) ]The army made loud rejoicings on the day of the acquittal of the Bishops, even in the presence of the King, who had purposely repaired to Hounslow Heath on that day. He had not been able to bring a single regiment to declare an approbation of his measures in regard to the Test and penal Statutes. The celebrated ballad lero lero lillibulero, which is reported to have had such an influence on the minds of the people at that time, and of which Bishop Burnet says, “never perhaps so slight a thing had so great an effect” originated in the army: “the whole army, and at last people both in City and Country, were perpetually singing it.” [[De Lolme describes incidents in the summer of 1688 which preceded James II’s flight from England.
[(a) ]There is a number of circumstances in the English Government which those persons who wish for speculative meliorations, such as Parliamentary reform, or other changes of a like kind, do not perhaps think of taking into consideration. If so, they are, in their proceedings, in danger of meddling with a number of strings, the existence of which they do not suspect. While they only mean reformation and improvement, they are in danger of removing the Talisman on which the existence of the Fabric depends, or, like King Nisus’s daughter, of cutting off the fatal hair with which the fate of the City is connected. [[In Greek mythology, the daughter of Nisus of Megara cut off the king’s lock of red hair, which had kept him and his city invincible.]]
[(b) ]Many persons, satisfied with seeing the elevation and upper parts of a building, think it immaterial to give a look under ground, and notice the foundation. Those Readers therefore who choose, may consider the long Chapter that has just been concluded, as a kind of foreign digression, or parenthesis, in the course of the Work.