t/ *>T Iff LA LIdKIj 'III :/ :-J I.L..DE I.OEME. Jf/M/tj/t'i/ a* //>< frt rr/j 7t///i (/. if&i . / (/. '7it>////jt //.(j r /., /(////'(til. ' T H k CONSTITUTION O F ENGLAND, O R AN ACCOUNT OF THE ENGLISH GOVERNMENT; In which it is compared, both with the Republican Form of Government, and the other Monarchies in Europe. By J.L. DE LOLME, Advocate, Member of the Council of the Two Hunbred in the Republic of Geneva. A NEW EDITION, Corrected. Ponderibue librata fuia, .... Ovid. Met. L. I, 13, LONDON, Printed for G. G. J. & J. Robinson, Paternofter-Row j and J. Murray, Fleet-ftreet. MDOCLXXXVIII. \ A. 15 0CI1920' ; ;-V] V/ TO T HB . I c \7U KING. SIRE, TH E approbation with which the Public have been pleafed to favour this Work, together with the nature of the fubject, embolden me to lay the prefent fourth and en- j larged Edition of the fame at your w Majefty's feet, both as an homage, and an expreflion of the defire I en- ter tain , the Book may for a few minutes engage the attention of a ^ perfon of your deep and extenflve knowledge. o Your Majefty's reign has, for many years parr, afforded proofs ^ in more refpecls than one, that, |j though human wifdom may not al- ways be able to anticipate difficul- ties, yet, aflifted by fortitude, it can A 2 DEDICATION. fucceed in terminating them in a more favourable manner than it feemed at firfl poflible to be expect- ed, or even in bringing them to an happy iffae. According to the com- mon courfe of Nature, your Majefty has only yet feen the lefs confider- able part of the years of which your reign is to be compofed : that the part which now opens before your Majefty, may be attended with a degree of fatis faction proportionate to your Majefty's public and private virtues, to your dilinterefted go- vernment, and religious regard for your royal engagements, is the fond hope of Your Majefty's Moil humble and Mod devoted Servant, And thefe many Years Subject by Choice, jV&y, 1784, j. L. DE LOLME. CONTENTS. Page Introduction - - i Chap. I. Caufes of the Liberty of the Englijh Nation. Reafons of the difference between the Government of France, and that of England hi England the great power of the Crown, ef- pecially under the firjl Norman Kings, created art Union between the Nobility and the People 6 Chap. II. A fecond Advantage England had over France: it formed one undivided State 24 Chap. III. The Subjetl continued 41 Chap. IV. Of the Legijlative Power 60 Chap. V. Of the Executive Power - 71 Chap. VI. The Boundaries which the Confutation has fet to the Royal Prerogative 74 C h a p . V 1 1 . The fame fubjeft continued < 7 S Chap. VIII. Nezv Rejlr idiom 84 Chap. IX. Of private Liberty, or the Liberty of Individuals 10a Chap. X. On the Law in regard to Civil Matters that is obferved' in England 113 Chap. XI. The SubjeR continued. The Courts of Equity j 26 Chap. XIL Of Criminal Juftke 154 Chap. XIII. The Subject continued 169 Chap. XIV. The Subject concluded Laws relative to Imprifonments 188 CONTENTS, BOOK II. Chap. I. Some Advantages peculiar to tlo Englifl) Confiituthn. i. The Unity of the Executive Power 195 Chap. II. The Suhjetl concluded. The Executive Power is more eafily confined when it is one 215 Chap. III. A fecond Peculiarity. T he Dhifion of the Legiflative Power 218 Chat. IV. A third Advantage peculiar to the EngliJJj Government. The Bufinefs of pro- pofing Laws, lodged in the Hands of the People. 229 Chap. V. /// which an Inquiry is made, whether it. would be an Advantage to public Liberty that the Laws fioould be enabled by the Fetes of the Peo- ple at large 240 Chap. VI. Advantages that accrue to the People from appointing Reprefentathes 256 Chap. VII. The SubjeS continued The Advan- tages thai accrue to the People from their ap- pointing Reprefentatives, ere very inconfiderable, unlefs they alfo entirely trv.fi their Legiflative Authority to tbtnu -7- 2 ^ CONTENTS. Chap. VIII. The Subjecl concluded Eff efts that have refilled in the Englifh Government 9 from the 'People's Power being 6ompletely delegated to their Reprefentatives 166 Chap. IX. A farther Difadvantage of Republican Governments. The People are necejfarily betrayed by thofe in whom they trvfl 271 Chap. X. Fundamental difference between the EnglifJj Government and the Governments jujl defcribed. In England all Executive Authority is placed out of the hands of thofe in whom the People trujl. Ufefulnefs of the Pozver of the Crozun 280 Chap. XI. The Pozver s which the People them- felves exercife. The Election of Members of Parliament 288 Chap. XII. The Subjett continued. Liberty of the Prefs 291 Chap. XIII. The Subjetl continued 305 Chap. XIV. Right of Rejijlance 314 Chap. XV. Proofs drawn from Faffs of the Truth of the Principles laid down in this Work.- I. The peculiar Manner in which Revolutions have always been concluded in England 324 Chap. XVI. Second Difference. The Manner after which the Laws for the Liberty of the Subjeft are executed in England 343 CONTENTS. Chap. XVII. A more inward Viezv of the Englijh Government than has hitherto -been offered to the Reader in the courfe of this Work. Very effen- iial differences between the Englijh Monarchy, as a Monarchy, and all thofe with which we art acquainted 387 Chap. XVIII. How far the examples of Nations that have loft their liberty, are applicable to Eng- land 472 Chap. XIX. A few thoughts on the attempts that may at particular times be made to abridge the power of the Crown, and on fome of the dangers by which fuch attempts may be attended 498 Chap. XX. A few additional Thoughts on the right of taxation, lodged in the Hands of the Reprefentatives of the People. What kind of danger this Right may be expojed to 513 Chap. XXI. Conclujion. A few Words on the Nature of the Divifwns that take Place in Eng- land 5 2 & ADVERTI SEMEN T. TH E Book on the Englifh Conflitution, of Svhich a new Edition is here offered to the Public was firft written in French, and published in Holland. Several perfons have a Iked me the queftion, how I came to think of treating fuch a fubje& ? One of the firft things in this Country, that engages the attention of a Stranger who is in the habit of obferving the objects before him, is the peculiarity of its Government : I had moreover been lately a witnefs of the broils which had for fome time prevailed in the Republic in which I was born, and of the revolution by which they were terminated. Scenes of that kind, in a State which, though fmall, is indepen- dent, and contains within itfelf the principles of its motions, had naturally given me fome compe- tent infight into the firft real principles of Go- vernments : owing to this circumftance, and per- haps alfo to fome moderate fhare of natural abi- A ji ADVERTISEMENT* Ikies, I was enabled to perform the ta fie I had un- dertaken, with tolerable fuccefs. I was twenty- feven years old when I firft came to this Country: after having been in it only a year, I began to write my work, which I pubiifhed about nine months afterwards : and have fince been furprifld to find that I had committed fo few errors of a certain kind : I certainly was fortunate in avoiding to enter deeply into thofe articles with which I was not fufficicntly acquainted. The Book met with rather a favourable recep- tion on the Continent ; feveral fucceffive Editions having been made of it. And it alfo met here with approbation, even from Men of eppofite parties ; which, in this Country was no fmall luck for a Bock on fyftematical politics. Al- lowing trnt there was fome connexion and clear- nefs, as well as novelty, in the arguments, I think the work was of fome peculiar utility, if the epoch at which it was pubiifhed, is confidered ; which was, though without any defign from me, at the time when the difputes with the Colonies were beginning to take a ferious turn, both here and in America. A work which contained a fpe- cious, if not thoroughly true, confutation of thofe political notions by the help of which a difunion of the Empire was endeavoured to be promoted (which confutation was moreover no- ticed by Men in the higheft places) mould have procured to the Author fome fort of real enecu- ADVERTISEMENT iii ragernent j at leaft the publication of it fhould not have drawn him into any inconvenient fituu- tion. When my enlarged Englifh Edition was ready for the prefs, had I acquainted Miniflers that I was preparing to boil my tea-kettle with it, for want of being able conveniently to afford the eexpence of printing it, I do not pretend to fay what their anfwer would have been , but I am firmly of opinion, that, had the like arguments in favour of the cxifting Government of this Country, again ft republican principle?, been (hewn to Charles the Firft, or his Miniflers, at a cer- tain period of his reign, they would have very willingly defrayed the expences of the publica- tion. In defect of encouragement from Great Men (and even from Bookfeilers) I had recnurfe to a fubfeription , and my having expected any fuccefs from fuch a plan, (hews that my know- ledge of this Country was at that time but very in- complete (a). (a) In regard to two Subfciibers In particular, I was, I confefs, fadly difippointed. Though all the Bookfeilers in London had at lint refufed to have any thing to do with, my Englifli Edition (notwithftanding the French Work was extremely well known), yet, foon after I had thought of the expedient of a Subfcription, I found that two of them, who are both living, had begun a traafhtion, on the re- commendation, as they told me, of a noble Lord, whom they named, who had, till a few years before, filled one of the higheft offices under the Crown. I paid them ten po.inds, in order to engage them to drop their under- A x iv ADVERTISEMENT. After mentioning the advantages with which my Work has not been favoured, ic is however juft I fliould give an account of thofe by which it has been attended. In the firft place, as is above taking, about which I underftood they already had bees at fome expence. Had the Noble Lord in queftion favoured me with his fubfcription, I wo uld have celebrated the generosity and munificence of my Patron ; but as he did not think proper ib to do, [ fhall only obfsrve that his recom- mending my Work to a Bookfeller, coil me ten pounds. At the time the above fubfcription for my Englifh Edi- tion was advertifing, a copy of the French Work was afked of me for a Noble Earl, then inveiled with a high office in the State ; none being at that time to be found at any Bookseller's in London. I gave the only copy I had (the confequencc was, that 1 was obliged to borrow one, to make my Englifh Edition from) ; and I added, that 1 noped his Lordfhip would honour me with his fubfcrip- tion. However, my hopes were here again confounded. As a gentleman, who continues to fill an important office undjr the Crown, accidentally informed me about a year afterwards, that the Noble Lord here alluded to, had lent him my French work, I had no doubt left that the copy I had delivered, had reached hi; Lordlhip's hand ; I therefore prefuned to remind him by a letter, that the Book in queftion had never been paid for ; at the fame time apologizing for fuch liberty from the circumftances in which my late Englifh Edition had been published, which did not allow me to lofe one copy. I muft do his Lcrdfhip (who is moreover a Knight of the Garter) thejuftice to acknow- ledge, that no later than a week afterwards, he fent two half crowns for me to a Bookfeller's in Fleet-fircet. A Lady brought them in a coach, who took a receipt. As f!ie ADVERTISEMENT. faid, Men of high rank have condescended to give their approbation to it ; and I take this opportunity of returning them my moft humble acknowledgments. In the fecond place, after the difficulties by which the publication of the Book had been attended and followed^ were over- come, I began to (hare with Bookfellers in the profits arifing from the fale of it. Thefe profits I indeed thought to be but fcanty and flow : but then I confidered this was no more than the com- mon complaint made by every Trader in regard to his g^in, as well as by every Great A4an in regard to his emoluments and his penfions. After a courfe of fome years, the net balance formed by the profits in queflion, amounted to a certain fum, propoitioned to the bignefs of the performance. And, in fine, I muft add to the account of the many favours I have received, that I was allowed to carry on the abeve bufinefs of fell- ing my book, without any objection being formed was, by the Bookfciler's account, a fine Lady, though not a Peerefs, it gave me much concern that J was not prcfent to deliver the receipt to her myfelf. At the fame time I mention the noble Earl's great punc- tuality, I think I may be allowed to fay a word of my own merits. I waited, before I prcfumed to trouble his Lord- fhip, till I was informed that a penfion of four thoufand pounds waj fettled upon him (I could have wiflied much my own Creditors, had, about that time, fiievvu the like tendernefs to me), and I moreover gave him time to receive the firft quarter. A 3 vi ADVERTISEMENT. againft me from my not having ferved a regular a.rprenticefhip and without being molefted by the Inquisition Several Authors have chofen to relate, in Writings publiflied after death, the perfonal advantages by which their performances had been followed : as for me, I have thought Otherwife ; and, fearing that during the latter part of my life I may be otherwife engaged, I have pre- ferred to write now the account of my fucceffes in this Country, and to fee it printed while I am yet living. I mall add to the above narrative (whatever the Pieader may be pleafed to think of it) a few obfer- vations of rather a more ferious kind, for the fake of thofe perfons who, judging themfelves to be pof- feiTed of abilities, find they are negleaed by thofe having it in their power to do them occafional fer- vices, and fiuTer themfelves to be mortified by it. To hope that men will in earneft afhft in fetting forth the mental qualifications of others, is an ex- pedition which, generally fpeaking, muft needs be difappointed. To procure one's notions- and opi- nions to be attended to, and approved, by the circle of one's acquaintance, is the univerfal wifh of Mankind. To diffufe thefe notions farther, to nu- merous Parts of the Public, by means of the prefs or by others, becomes an object of real ambition : nor h this ambition ahvr.ys propottioned to the real abi- lities of thofe who feel it ; very far from it. When the approbation of Mankind is in queftion, all per. ADVERTISEMENT. vii fons, whatever their different ranks may be, confi- jder themfclves as being engaged in the fame ca- reer : they look upon themfclves as being candi- dates for the very fame kind of advantage : high and low, all are in that refpect in a ftate of pri- maeval equality , nor are thofe who are likely to obtain fome prize, to expect much favour from the others. This defire of having their ideas communicated to, and approved by, the Public, was very preva- lent among the Great Men of the Roman Com- monwealth, and afterwards with the Roman Em- perors ; however imperfect the means of obtaining thefe ends might be in thofe days, compared with thofe which ar ufed in our's. The fame deOre has been equally remarkable among modern European kings, not to fpeak cf other parts of the World ; and a long catalogue of Royal Authors may be pro- duced. Minitters, efpecially after having loft their places, have (hewn no lefs inclination than their Matters, to convince Mankind of the reality of their knowledge. Noble Perfcns of all denomina- tions, have increaf d the catalogue. And to fpeak of the Country in which we arc, there is it feerns no good re^fon to make any e\certion in regard to it ; and Great Men in it, or in general thofe who are at the head of the People, are we find fufliciently anxious about the fuccefs of their Speeches, or cf the printed performances which they A 4 x'm ADVERTISEMENT. fometimes condcfcend to lay before the Public; nor has it been every Great Man wifhing that a compliment may be paid to his perfonal knowledge, that has ventured to give fuch lading fpecimtns. Several additions were made to this Work, at the time I gave the firtt Englifh Edition of it. Be- sides a more accurate divifion of the chapters, fe- yeril new notes and paragraphs were inferred in it ; for inflance in the nth chapter of the 2d Book ; and three new chapters, the 15th, 16th, and 17th, amounting to about ninety pages, were added to the fame Book. Thefe three additional chapters, never having been written by me in French, have been inferted in the third Edition made at Amfler- tlam, tranflated by aPerfon whom the Dutch Book- feller employed for that purpofe : as I never had an opportunity to perufe a copy of that Edition, I cannot fay how well the Tranflator has performed his talk. Having now parted with the copy-right of the Book, I have farther added four new chapters to it (10, II, B. I. 19, 20, B. II.) by way of taking a final leave of it ; and in order the more com- pletely to effect this, I may perhaps give, in a few months, a French Edition of the fame (which I cannot tell why I have not done fooner) in which all the above mentioned additions, tranflated by inyfelf, (hall be inferted. ADVERTISEMENT. ix In one of the former additional Chapters (the 17th, B. II.) mention is made of a peculiar cir- cumftance attending the Englifh Government, con- fidered as a Monarchy, which is the foiidity of the power of the Crown. As one proof of this pecu- liar foiidity, it is remarked, in that Chapter, that all the Monarchs who ever exifted, in any part of the World, were never able to maintain their .ground againft certain powerful fubje&s (or a combination of them) without the afTiftance of re- gular forces at their cenftant command ; whereas it is evident that the power of the Crown, in Eng- land, is not at this day* fupported by fuch means ; nor even had the Englifh Kings a guard of more than a few fcores of Men, when their power, and the exertions they at times made of it, were equal to what has ever been related of the mod abfolute Roman Emperors. The caufe of this peculiarity in the Englifh Go- vernment is faid in the fame Chapter, to lie in the circuftance of the great or powerful iVIen, in Eng- land, being divided into two dittinct AiTemblies, and at the fame time, in the principles on which fuch a divifion is formed. To attempt to gU-e a de- monftration of this aflertion other wife than by facls (as is done in the Chanter here alluded to) would lead into difficulties which the reader is little aware of. In genera!, the Science of Politics, confidered as an ex-nl Science, that is to fay, as a Science capa- ble of actual demonftration, is infinitely deeper than {he reader fo much perhaps as fufpecls. The know- x ADVERTISEMENT. ledge of Man, on which fuch a Science, with its preliminary axioms and definition^ is to be ground- ed, has hitherto remained furprifingly imperfect : as one inftance, how little Man is known to him- feif it might be mentioned that no tolerable ex- planation of that continual human phenomenon, laughter, has been given, as yet ; and the power- ful complicate fenfation which each fex produces in the other, (till remains an equally inexplicable myfiery. To conclude the above digreffion (which may do very well for a Preface ) I fhall only add, that thofe Speculators who will amufe themfelves in feeking for the demonflration of the political Theorem above expreffed, will thereby be led through a field of obfervations which they will at fir ft little expect ; and in their way towards attaining fuch demonstra- tion, will find the Science, commonly called Me- taphyfics, to be at bed but a very fuperficial one, and that the Mathematics, or at lead the mathematical reafonings hitherto ufed hy. Men, are not fo completely free from error as has been thought (a). (a) Certain errors that are not difcovercd, arc, in feve- ral cafes, compenfated by others, which arc equally un- perceived. Continuing to avail myfelf of the indulgence an Au- thor has a right to claim in a Preface, I fnali mention, r.s ADVERTISEMENT, xi Out of the four Chapters added to the prefent Edition, two (the ioth and nth, B.I.) contain among other thing?, a few ilrictures on the Courts of Equity ; in which I wifn it may be found I have not been miflaken : of the two others, the one (19th, B. II.) contains a few obfervations on the attempts that may in different circumftances be made, to fet new limits on the authority of the Crown , and in the 20th, a few general thoughts are introduced on the right of taxation, and on the claim of the American Colonies in that refoecT:. Any farther obfervations I may hereafter make on the Englifh Government, fuch as comparing it with the other Governments of Europe, and exa- mining what difference in the manners of the inha- bitants of this Country may have refulted from it, muft come in a new Work, if I ever undertake to treat thefe fubje&s. In regard to the American uif- putes, what I may hereafter write on that account, will be introduced in a Work which I may at feme future time publifn, under the title of Hijioirc de George Trots, Roi d' Artgleterre, or, perhaps, of Hif- toire a Angleterre, depuis Vannu 1765 (that in which a farther explanation of the peculiarity in the Englifh Go- vernment above alluded to, and which is again touched upon in the poftfeript to this Advenifement, thar a Go- vernment may be confitJered as a great Billet or Dance, in which, the fame as in other Ballets, every thin*' de- pends on the difpofition of the figures. xii ADVERTISE M E N T. the American Stamp duty was laid) jufqucs a T annie 178 , meaning that in which an end fhall be put to the prefent corners {a). Nov. 1781-. P O S T C R I P T. Notwithstanding the intention above exprcfled, of making no additions to the prefent Work, I have found it necefiary, in the prefent new Edition, to render fomewhat more complete the xviith Chapter, B. II. p. 587. On the peculiar foundations cf the Eng- lijb Monarchy > as a Monarchy , as I found its ten- dency not to be very well underftood ; and in fact, that Chapter contained little more than hints on the fubjecl: mentioned in it : the talk, in the courfe of writing, has increafed beyond my expectation, and has fwelled the Chapter to about fixty pages beyond what it was in the former Edition, fo as almoft to make it a kind of a feparate Book by itfelf. The reader will now find in it feveral remarkable new in- flances to prove the fact: of the peculiar futility of the executive power of the Britifh Crown ; and efpecially a much more complete delineation of the advantages that refult from the liability in favour of public liberty (b). [a) A certain Book written in French, on the fubjec~t of the American difputcs, was, I have been told, lately attributed to me, in which I had no (hare. (b) Fcr rhe fake of thofe Readers who like exactly to ADVERTISEMENT. xin Thefe advantages may be enumerated as fol- lows. I. The numerous reflaints the governing authority is able to bear, and extenfive freedom it. can afford to allow the Subject, at its expence. II. The liberty of fpeaking and writing, carried to the great extent it is in England. III. The un- bounded freedom of the Debates in the Lcgiflature. IV. The power to bear the conftant union of all rders of Subjects againfl its prerogative. V. The freedom allowed to all individuals to take an active part in Government concerns. VI. The Uriel im- partiality with which Juflice is dealt to all Sub- jects, without any refpeCT whatever of perfons. VII. The lenity of the criminal law, both in re- gard to the mildnefs of punifhments, and the fre- quent remitting of them. VIII. The flricl compli- ance of the governing Authority with the letter of the law. IX. The needlefTuefs of an armed force to fup- port itfelf by, and as a confequence, the lingular fub- jettion of the Military to the Civil power. The above mentioned advantages are peculiar to the Englifh Government. To attempt to imitate them, or transfer them into other Countries, with that degree of extent to which they are carried know in what one Edition of a Book differs from another. I fhall mention, that five new pages have alfo been added in the xviiith Chapter, viz. page 482 486, befides a few (hott notes in the courfe of the Work ; for inftancc in P-ge I4> 5 8 4> &c. *iv ADVERTISEMENT. in*England, without at the fame time transferring the whole Order and conjunction of circumflances in the Englifh Government, would prove unfuccefs- ful attempts. Several articles of Englifh liberty already appear impracticable to be preferved in the new American Commonwealths. The Irifh Na- tion have of late fucceeded to imitate feveral very- important regulations in the Englifh Government, and are very defirous to render the aflimilation complete : yet, it is poflible, they will find many inconveniences to arife from their endeavours, which do not take place in England, pothwithftand- ing the very great general fimilarity of circumflances in the two kingdoms in many refpecls, and even alfo, we might add, notwithstanding the refpeclable power and weight the Crown derives from its 13ri- tifh dominions, both for defending its prerogative in Ireland, and preventing anarchy. I fay, the fimila- rity in many refpcSls between the two kingdoms *, for this refem'olance may perhaps fail in regard to fome important points : however, this is a fubjeci about which I (hall not attempt to fay any thing, not having the necefliiry information. The lad Chapter in the Work, concerning the nature of the Divijions that take place in this Coun- try, I have left in every Englifh Edition as I wrote it at full in French. With refpect to the exact manner of the Debates in Parliament, mentioned in that Chapter, I mould not be able to fay more at pre- sent than I was at that time, as I never had an oppor- tunity to hear the Debates in either Houfe. In re- ADVERTISEMENT, x* gard to the Divifzons in general to which the fpirit of party gives rife, I did perhaps the bulk of the People fomewhat more honour than they really de- ferve, when I reprefented them as being free from any violent difpofitions in that refpeft : I have fince found, that, like the bulk of Mankind in all Coun- tries, they fuffer themfelves to be influenced by vehe- ment prcpoffeffions for this or that fide of public queftion-, commonly in proportion as their know- ledge of the fubjecls, is imperfect. It is however a fact, that their political prepofieffions and party fpirit are not productive in this Country, of thof.: dangerous confequences which might be feared from the warmth with which they are fome- timcs manifcfted. But this fubject, or in general the fubjedl of the political quarrels and divilions in this Country is not an article one may venture to meddle with in a fingle Chapter ; I have therefore let this fubfift, without touching it, I fhall however obferve, before I conclude, that there is an accidental circumftance in the Englifh Government, which prevents the party fpirit by which the Public are ufualiy influenced, from pro- ducing thofe lading and rancorous divifions in the Community which have peftered fo many other free States, making of the fame Nation as it were two diftincl: People, in a kind of conftant warfare with each other. The circumftance I mean, is, the frequent reconciliations (commonly to quarrel again afterward) that take place between the Leaders of parties, by which the moil violent and ignorant xvi * ADVERTISEMENT. Clafs of their partizans are bewildered, and made t lofe the fcent. By the frequent coalitions between Whig and Tory Leaders, even that party diftin&ion, the mod famous in the Englifh Hiftory, has now be- come ufelefs : the meaning of the words has thereby been rendered fo perplexed that nobodycan any longer give a tolerable definition of them ; and thofe per- fons who now and then aim at gaining popularity by claiming the merit of belonging to either party, are fcarcely understood. The late Coalition between two certain Leaders has done away and prevented from fettling, that violent party fpirit to which the adminiftration of Lord Bute had given rife, and which the American difputes had carried ftill far- ther. Though this Coalition has met with much obloquy, I take the liberty to rank myfelf in the number of its advocates, fo far as the circumftancc here mentioned. May y 1784. THE CONSTITUTION O F ENGLAND. INTRODUCTION. ^*~] ~*A H E fpirit of Philofophy which pe- culiarly diftinguilhes the prefent age, -** after having corrected a number of errors fatal to Society, feems now to be directed towards the principles of Society itfelf; and we fee prejudices vanifli, which are difficult to overcome, in proportion as it is dangerous to attack them (a). This rifing freedom of fen- (a) As every popular notion which may contribute to the fupport of an arbitrary Government, is at all times vigilantly prote&ed by the whole ftrength of it, political B 2 THE CONSTITUTION timent, the necefTary forerunner of political freedom, led me to imagine that it would not be unacceptable to the Public, to be made ac- quainted with the principles of a Conftitution on which the eye of curiofity feems now to be univerfally turned; and which, though cele- brated as a model of perfection, is yet but little known to its admirers. I am aware that it will be deemed prefump- tuous in a Man who has parTed the greateft part of his life out of England, to attempt a de- lineation of the Englifn Government j a fyfteci which is fuppofed to be fo complicated as not to be underltood or developed, but by thofe who have been initiated in the mvfteries of it J from their infancy. But, though a foreigner in England, yet, as a native of a free Country, I am no ftranger to thofe circumfrances which conftitute or cha- racterife liberty. Even the great difpropor- tion between the Republic of which I am prejudices are, lr.fi of all, if ever, fhaken off by a Nation fubjetted to fuch a Government. A great change in this yefped, however, has of late taken place in France, where this book was nrfl publifhed, and opinions are low difcufled there, and tenets avowed, which in the time of Lewis the Fourteenth, would have appeared downright blafphemy : it is to this an allufion is made above. Of ENGLAND, 3 a member, and in which I formed my prin- ciples, and the Britiih Empire, has perhaps only contributed to facilitate my political in- quiries. As the Mathematician the better to difcover the proportions he invefligates, begins with freeing his equation from coefficients, or fuch other quantities as only perplex without properly conitituting it, fo it may be advantageous to the inquirer after the caufes that produce the equilibrium of a government, to have previously ftudied them, difengaged from the apparatus of fleets, armies, foreign trade, diftant and extenfive dominions, in a word, from all thofe brilliant circumftances which fo greatly afreet the external appearance of a powerful Society. but have no eifcntial connection with the real principles of it. It is upon the pafiions of Mankind, that is upon caufes which are unalterable, that the ac- tion of the various parts of a State depends. The machine may vary as to its dimenfions, but its movement and acting fprings {till re- main intrinfically the fame; and that time can- not be confidered as loft, which has been fpent in feeing them act and move in a narrower circle. 4 THE CONSTITUTION One other confidcration I will fuo-p-efh which is, that the very circumftance of being a to- reigner, may of itfelf be attended, in this cafe, with a degree of advantage. The Englim themfelves (the obfervation cannot give them any offence) having their eyes open, as I may lay, upon their libeity, from their firft entrance into life, arc perhaps too much familiarifed with its enjoyment, to enquire, with real con- cern, into its caufes. Having acquired practi- cal notions of their government, long before they have meditated on it, and thefe notions beim r flowlv and gradually imbibed, thev at length behold it without any high degree of fenfibility; and they feern to me, in this refpedt, to be like the reclnfe inhabitant of a palace, who is perhaps in the worft lunation for attain- ing a complete idea of the whole, and never experienced the finking effect of its external ftrudture and elevation; or, if you pleafe, like a Man who, having always had a beautiful and extenfive iccm before his eyes, continues for ever to view it with indifference. But a ftranp-er, behold mi at once the vari- ous parts of a Conftitution difplayed before him, which at the fame time that it carries liberty to its height, has guarded againft in- OF ENGLAND. $ conveniences feeminelv inevitable, behold ins: in lhort thoie things carried into execution, which he had ever regarded as more defirable than poffible, he is ftruck with a kind of ad- miration; and it is neceiTary. to be thus frrongly affected by objects, to be enabled to reach the general principle which governs them. Not that I mean to inlinuate that I have pe- netrated with more acutenefs into the Conit'i- tution of England than others; my only de- fign in the above obfervations, was to obviate an unfavourable, though natural, prepoiTeflion ; and if, either in treating of the caufes which originally produce the EngliOi liberty, or of thole by which it continues to be maintained, my obfervations mould be found new or iineu- lar, I hope the Englith reader will not condemn them, but where they mall be found incon- fiftent with Hiitory, or with daily experience. Of readers in general I alfo rcqueft, that they will not judge of the principles I mall lay down, but from their relation to thofe of hu- man nature: a confideration which is almott the only one effential, and has been hitherto too much neglected by the Writers on the fubjedfc pf government. 6 THE CONSTITUTION CHAP. I. Caufes of the liberty of the Englijb Nation. Reafons of the difference between the Govern- ment of England, and that of France, In England, the great power of the Crozvn, under the Norman kings, created an union between the Nobility and the People. J HEN the Romans, attacked on all fides by the Barbarians, were reduced to the neceffity of defending the centre of their Empire, they abandoned Great Britain as well as feveral other of their diftant provinces. The ifland, thus left to itfelf, became a prey to the Nations inhabiting the fhores of the Baltic j who, having fir ft deftroyed the ancient inhabitants, and for a long time reciprocally annoyed each other, eftablifhed feveral Sove- reignties in the fouthern part of the Ifland, af- terwards called England, which at length were united, under Egbert, into one Kingdom. The fucceffors of this Prince, denominated the Anglo-Saxon Princes, among whom Alfred the Great and Edward the ConfefTor are particu- larly celebrated, reigned for about two hundred years: but, though our knowledge of the prii}- OF ENGLAND. 7 cipal events of this early period of the Englifh Hiftory is in fome degree exact, yet we have but vague and uncertain accounts of the nature of the Government which thofe Nations intro- duced. It appears to have had little more affinity with the prefent Conftitution, than the general relation, common indeed to all the Govern- ments eftablifhed by the Northern Nations, that of having a King and a Body of Nobi- lity; and the ancient Saxon Government is ( Jeft us in (lory (to ufe the expreffions of ec . fir William Temple on the fubject) but like Cf fo many antique, broken, or defaced pic- e( tures, which may {till reprefent fomething " of the cuftoms and fafhions of thofe ages, <( though little of the true lines, proportions, iC or refemblance (a)." It is at the era of the Conqueft, that we are to look for the real foundation of the Enpdifh Conftitution. From that period, fays Spelman, novus feclorum nafcitur ordo (). William of Nor- mandy, having defeated Harold, and made {a) See his Introduction to the Hiftory of England. {b) See Spelman, Of Parliaments. It has been a favourite thefis with many Writer., to pretend that the Saxon. Government was, at the time of the Concjueft, by B4 8 THE CONSTITUTION himfelf mafler of the Crown, fubverted the ancient fabric of the Saxon Lejriflation : he no means fubverted ; that William of Normandy le- gally acceded to the Throne, and confequently to the en- gagements of the Saxon Kings; and much argument has in particular been employed with regard to the word Con- quefi, which, it has been faid, in the feudal fcnfe only meant aequijition. Thefe opinions have been particularly infilled upon in times of popular oppofition: and, indeed, there uas a far greater probability of fuccefs, in raifing among the People the notions familiar to them of legal claims and long eitablifhed culbms, than in arguing with them from the no lefs rational, but lefs determinate, and fomewhat dangerous doctrines, concerning the original rights of Mankind, and the lawfulnefs of at all times x>p- pofir.g force to an oppreflive Government. But if we confider that the manner in which the public Power is formed in a State, is fo very effential a part of its Government, and that a thorough change in this refpecl was introduced into England by the Concmeft, we (hall not fcruple to allow that a new Government was eftablifhed. Nay, as almoft the whole landed property in the Kingdom was at that time transferred to other hands, a new Syftem of criminal Juftice introduced, and the language of the law moreover altered, the revolution may be faid to have been fuch as is not perhaps to be paralleled in the Hiilory of any other Country. Some Saxon laws, favourable to the liberty of the people, were indeed again eftabhflied under the fuc- ceffors of William ; but the introduction of fome new modes of proceeding in the Courts of Juilice, and of a few particular laws, cannot, fo long as the ruling P&\yer OFENGLAND. 9 exterminated, or expelled, the former occu- piers of lands, in order to distribute their pof- ieffions among his followers; and ellablilhed the feudal fyftem of Government, as better adapted to his fituation, and indeed the only one of which he poffeffed a competent idea. in the State remains the fame, be fa id to be the intro- duction of a new Government ; and as when the laws in queftion were again eftabliihed, the public power in. England continued in the fame channel where the Con- queil has placed it, they were more properly new modi- fications of the Anglo-Norman Conltitution, than they were the abolition of it ; or fince they were again adopted from the Saxon Legiflatlon, they were rather imitations of that legiflation, than the reftoration of the Saxon Go- vernment. Contented, however, with the two authorities I have above quoted (Spehnan and Temple), I (hall dwell no longer on a difcuffion of the preciie identity, or differ- ence, of two Governments, that is of two ideal fy- ftems, which only exift. in the conceptions cf men. Nor do 1 wifh to explode a doctrine, which, in the opinion of fome perfons, giving an additional fanclion and dig- nity to the Englilh Government, contributes to increafe their love and refpedt for it. It will be fufricient for my purpofe, if the reader fhail be plsafed to grant that a material change was, at the time of the Conquer!:, c ffected. in the Government then exifting, and is accordin lv dif- pofed to admit the proofs that will prefently be la^l before him, of fuch cban e having prepared the effablilhment of the prefent Engiifn Conftitutipn. io THE CONSTITUTION This fort of Government prevailed alfo in almoft all the other parts of Europe. But, inftead of being eftablifhed by dint of arms and all at once, as in England, it had only t>een eftablifhed on the Continent, and particu- larly in France, through a long feries of flow fucceflive events; a difference of circumftances this, from which confequences were in time to arife, as important as they were at firfl difficult to be forefeen. The German Nations who palled the Rhine to conquer Gaul, were in a great degree inde- pendent. Their Princes had no other title to their power, but their own valour and the free election of the people; and as the latter had aequired in their forefts but contracted notions of fovereign authority, they followed a Chief, lefs in quality of fubjccls, than as companions in conqueft. Befides, this conqueft was not the irruption of a foreign army, which only takes poiTeffion of fortified towns. It was the general invafion of a whole People, in fearch of new habitations; and as the number of the Conquerors bore a great proportion to that of the conquered, who were at the fame time enervated by long peace, the expedition was no fooner completed thai; OF ENGLAND. it ell danger was -at an end, and of courfe their union alfo. After dividing among themfelves what lands they thought proper to occupy, they feparated; and though their tenure was at firft only precarious, yet in this particular, they de- pended not on the King, but on the general aflembly of the Nation (a). Under the Kings of the firjl race, the fiefs, by the mutual connivance of the Leaders, at firft became annual; afterwards, held for life. Under the defcendants of Charlemain, they be- came hereditary (), And when at length Hugh Capet effected his own election to the prejudice of Charles of Lorrain, intended to render the Crown, which in fadt was a fief, hereditary in his own family (c), he eftablifhed the hereditari- fhip of fiefs as a general principle; and from (a) The fiefs were originally called, terra jure beneficii concejfte ; and it was not till under Charles le Grcs the term fief began to be in ufe. See Beneficium, Glojf. J)u Cange. {b) Apud Francos the inftruments, never produced any advan- tageous confequence in their favour, nor did it eftablilh any principle of freedom that was in any cafe applicable to them. The inferior Nobles, who fhared in the inde- pendence of the fuperior Nobility, added alfo the effects of their own infolence to the defpot- ifm of fo many Sovereigns; and the people, wearied out by fufferings, and rendered defperate by oppreffion, at times attempted to revolt. But being parcelled out into fo many different States, they could never perfectly agree, either in the nature, or the times of their complaints. The infurredtions, which ought to have been general, were only fncceffive and particular. In the mean time the Lords, ever uniting to avenge their common canfe as Mailers, fell with irre- liltible advantage on Men who were divided; the People were thus feparately, and by force, brought back to their former yoke; and Li- berty, that precious offspring, which requires fo many favourable circumilances to fofter it, was every where flifled in its birth {a), [a) It may be feen in Mezeray, how the Flemings, at the time of the great revolt which was caufed, as he fays, " by the inveterate hatred of the Nobles (les Gentils- ** hornmes) againft the people of Ghent, 1 ' were crulhed c i* THE CONSTITUTION At length, when by conquefts, by efcheats, or by Treaties, the feveral Provinces came to be re-united (a) to the extenfive and continually in- creafing dominions of the Monarch, they be- came fubjed: to their new Mailer, already trained by the union of almoft all the Nobility of France. 5> which with others united, or re -unit id, after a like manner, now compofe the French Monarchy, not only thus conferred on their refpective Sovereigns different titles, but alfo differed from each other with refped to the laws which they followed, and Hill follow: the one are governed by the Roman law, and are called Pays de Droit ecrit; the others follow par- ticular cuftoms, which in procefs of time have been fet down in writing, and are called Pays de Droit Coutumier. In thofe Provinces the people had, at times, purchafed pri- vileges from their Princes, which in the different Provinces were alfo different, according to the wants and temper of the Princes who granted them : C 2 2 THE CONSTITUTION As a farther confequence of thefc differences between the times of the re-unions, the feveral parts of the Kingdom entertained no views of affifling each other. When fome reclaimed their privileges, the others, long fince reduced to fubjedtion, had already forgotten their's. Be- tides, thefe privileges, by reafon of the differ- ences of the Governments under which the Provinces had formerly been held, were alfo almoft every where different: the circumftances which happened in one place, thus bore little affinity to thofe which fell out in another; the fpirit of union was loft, or rather had never ex- iffced : each Province, reftrained within its parti- cular bounds, only ferved to infure the general fubmiflionj and the fame caufes which had re- duced that warlike, fpiritcd Nation, to a yoke of fubjecaion, concurred alfo to keep them under it. 1 hus Liberty perifhed in France, becaufe it wanted a favourable culture and proper fitua- tion. Planted, if I may i'o exprefs myitlf, but juft beneath the furface, it prclently expanded, and fent forth fome larp-e fhoots; but having: taken no root, it was loon plucked up. In England, on the contrary, the feed lying at a great depth, and being covered with an enor- mous weight, feemed at firft to be fmothered; OF ENGLAND. 21 but it vegetated with the greater force; it im- bibed a more rich and abundant nourifhmentj its fap and juice became better aflimilated, and it penetrated and filled up with its roots the whole body of the foil. It was the excefiive power of the King which made England free, becanfe it was this very excefs that gave rife to the fpirit of union, and of concerted remittance. PoiTefTed of extenfive demefnes, the King found himfelf independent; veiled with the moft formidable prerogatives, he crufhed at pleafure the moil powerful Barons in the Realm : it was only by clofe and numerous confederacies therefore, that thefe could refill his tyranny j they even were compelled to affociate the Peo- ple in them, and make them partners of public Liberty. Aflembled with their Vaffals in their great Halls, where they difpenfed their hofpitality, deprived of the amufements of more polifhed Nations, naturally inclined, befides, freely to expatiate on objects of which their hearts were full, their converfation naturally turned on the injutlice of the public impositions, on the ty- ranny of the judicial proceedings, and, above all, on the detefted foreft laws. c 3 22 THE CONSTITUTION Deftitute of an opportunity of cavilling about the meaning of laws the terms of which were precife, or rather difdaining the refource of fophiftry, they were naturally led to examine into the firfl principles of Society; they en- quired into the foundations of human authority^ and became convinced, that Power, when its object is not the good of thofe who are fubject XQ it, is nothing more than the right of the fjongeft, and may be reprelTed by the exertion of a fimilar right. The different orders of the feudal Govern- ment, as eftablifhed in England, being con- nected by tenures exactly fimilar^ the fame maxims which were laid down as true againfl the Lord paramount in behalf pf the Lord of an upper fief, were likewife to be admitted againft the latter, in behalf of the owner of an inferior fief. The fame maxims were alfo to be applied to the poffefTor of a ftill lower fief: they farther defcended to the freeman, and to the peafantj and the fpirit of liberty, after having circulated through the different branches of the feudal fubordination, thus continued to flow through fucceflive homogeneous channels; it forced a paffage to itfelf into the remoteft rami- fications, and the principle of primeval equa- 8 OF ENGLAND, 23 lity became every where diffufed and eftablilhed. A facred principle, which neither injuftice nor ambition can erafe; which exifts in every breaft, and, to exert itfelf, requires only to be awaken- ed among the numerous and opprefTed claries of Mankind. But when the Barons, whom their perfonal confequence had at firft caufed to be treated with caution and regard by the Sovereign, be- gan to be no longer To, when the tyrannical laws of the Conqueror became {till more tyrannically executed, the confederacy, for which the gene- ral opprefl]on had paved the way, inftantly took place, The L,ord, the Vaflal, the inferior Vaf- fal, all united, They even implored the afllft- ance of the peafants and cottagers; and that haughty averfion with which on the Continent the Nobility repaid the induftrions hands which fed them, was, in England, compelled to yield to the prefTIng neceffity of fetting bounds to the Royal authority. The People, on the other hand, knew that the caufe they were called upon to defend, was a caufe common to all; and they were fenfible, befides, that they were the necefTary fupporters of it. Inftructed by the example of their Leaders, they fpoke and ftipulatec^ c 4 24 THE CONSTITUTION conditions for themfelves: they infilled that, for the future, every individual Ihould be inti- tled to the protection of the law; and thus did thofe rights with which the Lords had ftrength- ened themfelves, in order to oppofe the tyranny of the Crown, become a bulwark which was, in time, to reftrain their own. CHAP. II. A fecond advantage England had over France : - it formed one undivided State, T was in the reign of Henry the Firft, about forty years after the Conquer!:, that we ict the above caufes begin to operate, This Prince having afcended the throne to the ex- clufion of his elder brother, was fenfible that he had no other means to maintain his power than by gaining the affection of his fubjects ; but, at the fame time, he perceived that it muft be the affection of the whole nation: he, therefore* not only mitigated the rigour of the feudal laws in favour of the Lords, but alfo annexed as a condicion to the Charter he granted, that the Loids ihould allow the fame freedom to their r^fpe&ive Vafials* Care was even taken to, O F E N G L A N D, 25 abolifh thofe laws of the Conqueror which lay heavielt on the lower claries of the People (a). Under Henry the Second, liberty took a farther ftride; and the ancient 'Trial by Jury, a mode of procedure which is at prefent one of the moft valuable parts of the Englifh law, made again, though imperfectly, its ap- pearance. But thefe caufes, which had worked but filently and {lowly under the two Henrys, who were Princes in fome degree juil, and of great capacity, manifested themfelves, at once, under the defpotic reign of King John. The royal prerogative, and the foreft laws, having been exerted by this Prince to a degree of ex- fa) Amongld others, the law of the Curfeu. It might be matter 01 curious difcuffion to inquire what the Anglo- Saxon Government would in procefs of time have become, and of courfe the Government of England be, at this pre- fent time, if the event of the Conquer! had never taken place ; which, by conferring an immense as well as unufual power on the head or the feudal Syftem, compelled the Nobility to contract a lading and fincere union with the People. It is very probable that the Englifh Government y/ould at this day be the fame as that which long prevailed in Scotland, where the King and Nobles engroiTed, jointly, or by turns, the whole power in the State, the fame as in Sweden, the fame as in Denmark, Countries whence the Anglo-Saxons came, s THE CONSTITUTION ceffive feverity, he foon beheld a general con- federacy formed againfl him : and here we muft obferve another circumftance, highly advan- tageous, as well as peculiar to England. England was not, like France, an aggre- gation of a number of different Sovereignties: it formed but one State, and acknowledged but one Mailer, one general title. The fame laws, the fame kind of dependence, confe- quently the fame notions, the fame interefts, prevailed throughout the whole, The extre- mities of the kingdom could, at all times, unite to give a check to the exertions of an unjuft power. From the river Tweed to Portf- mouth, from Yarmouth to the Land's End, all was in motion: the agitation increaied from the diftance like the rolling waves of an exten- five fea; and the Monarch left to himfelf, and deftitute of refources, faw himfelf at- tacked on all fides by an univerfal combination of his fubjects. No fooner was the ftandard fet up againft John, than his very Courtiers forfook him. In this fituation, finding no part of his king- dom iefs irritated againft him than another, having no detached province which he could engage in his defence by promifes of pardon, OF ENGLAND. a; or of peculiar conceffions, the trivial though never-failing refources of Government, he was compelled with feven of his attendants, all that remained with him, to fubmit himfelf to the difpofal of his fubje&s; and he figned at Run- ing Mead (#) the Charter of the Foreft, toge- ther with that famous charter, which, from its fuperior and extenfive importance, is denomU nated Magna Charta. By the former the mod tyrannical part of the foreft laws was abolifhed ; and by the lat- ter, the rigour of the feudal laws was greatly- mitigated in favour of the Lords. But this Charter did not flop there; conditions were alfo ftipulated in favour of the numerous body of the people who had concurred to obtain it, and who claimed, with fword in hand, a fhare in that fecurity it was meant to eftablifh. It was hence instituted by the Great Charter, that the fame fervices which were remitted in favour of the Barons, fhould be in like manner remitted in favour of their VafTals. This Charter more- over eftablifhed an equality of weights and meafures throughout England ; it exempted the jMerchants from arbitrary impofts, and gave (#) Anno 1 21 5. sS THE CONSTITUTION them liberty to enter and depart the Kingdom at pleafure : it even extended to the loweit or- ders of the State, fince it enacted, that the Vil- lain, or Bondman, fhould not be fubject to the forfeiture of his implements of tillage. Laftly, by the twenty-ninth article of the fame Char- ter, it was enacted, that no fubjedt mould be exiled, or in any fhape whatever molefted, either in his perfon or effects, otherwife rhia by judgment of his peers, and according to ihe law of the land (a) : an article lb impoi tar.t, that it jnay be faid to comprehend the whole end and delign of political focieties; and from that moment the Englifh would have been a free People, if there were not an immenfe diftance between the making of laws, and the obferving of them. But though this Charter wanted moft of thofe fupports which were necefiary to infure refpeCt to it, though it did not fecure to the (a) " Nullus liber homo capiatur, vel imprifonetur, vel i difTefietur de libero tenemento fuo, vel libertatibus, vel " liberis confuetudinibus fuis ; aut utlagetur, aut exulecur, " aut aliquo modo deftruatizr; nee fupt-r eum ibimus, nee * fuper eum mittemus, nili per legale judicium parium *< fuorum, vel per legem terra;. Nulli vendemus, nulli negabimus, aut differernus, juftitiam vel rectum." Magna Chart, cap. xxix, OF ENGLAND. 29 poor and friendlefs any certain and legal me- thods of obtaining the execution of it (pro- vifions which numberlefs tranfgreffions alone could, in procefs of time point out), yet it was a prodigious advance towards the efta- bliihment of public liberty. Inflead of the general maxims refpecting the rights of the People and the duties of the Prince (maxims againft which ambition perpetually contends, and which it fometimes even openly and abfo- lutely denies), here was fubftituted a written law, that is, a truth admitted by all parties, which no longer required the fupport of argu- ment. The rights and privileges of the indi- vidual, as well in his perfon as in his property, became fettled axioms. The Great Charter, at firft enacted with fo much folemnity, and after- wards confirmed at the beginning of every fuc- ceeding reign, became like a general banner perpetually let up for the union of all clafTes of the people; and the foundation was laid on which thole equitable laws were to rife, which offer the fame afiiftance to the poor and weak, as to the rich and powerful (#). (a) The reader, to be more fully convinced of the reality of the caufes to which the liberty of England has been here afcribed, as well as to the truth of the obfer- 5