The Constitution Of England

Front matter

THE

CONSTITUTION OF ENGLAND;

OR,

Dedication

TO

THE KIN Gr.

8l RE,

Contents

Page

Advertisement, by M Be Lolme . t \i

Postscript, by M Be Lolme . mu

Book I

A SURVEY OP 'THE VARIOUS POWERS INCLUDED IN* THE ENGLISH CONSTITUTION, AND OP THE LAWS BOTH IN CIVIL AND CHIMIN Kh CASES

Chapter

I Causes of the Liberty of the English Nation.—Seasons of the Difference between the Government of England and that of France,—In England, the great Power of the Crown, under the first Norman Kings, created an Union between the Nobility and the People . 12

II A second Advantage had over France. it formed one undi*

III. The Subject continued ....... 3t

X

CONTENTS.

Chapter

XYIII How far the Example of Nations who have lost their Liberty are applicable to England XIX A few additional Thoughts on the Attempts that may at particular Times be made to abridge the Power of the Crown, and some of the Dangers by which such Attempts may be attended .

XX A few additional Observations on the Eight of Taxation, which is lodged m the hands of the Eepresentatives of the People —What kind of Danger this Eight may be exposed to

XXI Conclusion —A few Words on the Nature of the Divisions that take place in. England Supplementary Notes .

Page

ADVERTISEMENT.

Tub Eook on the English Constitution, of which a new edition is here offered to the public, was first written m Trench, and published m Holland. Several persons have asked mo the question, How f came to think of treating of such a subject? One of the first things in this country, that engage the attention of a stranger who is m the habit of observing the objects before him, is the peculiarity of its government. 1 had moreover been lately a witness of the broils which had for some time prevailed in the [Republic m which I was born, and of the revolution by which they were terminated. Beenes of that kind, m a state which, though small, is independent, and contains within itself the principles of its motions, had naturally given me some competent insight into the first real principles of governments * owing to this circumstance, and perhaps also to some moderate share of natural abilities, 1 was enabled to perform the task I had undertaken with tolerable success. I was twenty-seven years old when 1 came to this country; after having been m it only a year 1 began to write my work, which I published about tune months afterwards; and have since been surprised to find that 1 bad committed so few errors of a certain kind; I certainly was fortunate m avoiding to enter deeply into those articles with which 1 was not sufficiently acquainted.

The hook met with rather a favourable reception on the continent, several successive editions having been made of xii

it. And it also met here with approbation, even from men of opposite parties, which, in this country, was no small luck for a book on systematical politics Allowing that the arguments had some connection and clearness, as well as novelty, I think the work was of peculiar utility, if the epoch at which it was published is considered; which was, though without any design from me, at the time when the disputes with the colonies were beginning to take a serious turn, both here and m America A work which contained a specious, if not thoroughly true, confutation of those poli¬ tical notions, by the help of which a disunion of the empire was endeavoured to be promoted (which confutation was moreover noticed by men m the highest places), should have procured to the author some sort ot real encouragement, at least the publication of it should not have drawn him into any inconvenient situation When my enlarged English edition was ready for the press, had I acquainted ministers that I was preparing to boil my tea-kettle with it, for want of being able conveniently to afford the expense of printing it, I do not pretend to say what their answer w r ould have been, but I am firmly of opinion, that, bad the like argu¬ ments m favour of the existing government of this country, against republican principles, been shown to Charles the Eirst, or his ministers, at a certain period of his reign, they would have very willingly defrayed the expenses of the pub¬ lication In defect of encouragement from great men (and even from booksellers) I had recourse to a subscription ; and my having expected any success from such a plan, shows that my knowledge of this country was at that time very in¬ complete.*

# In regard to two subscribers m particular, I was, I confess, sadly disappointed Though all the booksellers m London had at first refused to have any thing to do with my English edition (notwithstanding the Erench work was extremely well known), yet, soon after I had thought of the expedient of a subscription, I found that two of them, who are both living, had begun a translation, on the recommendation, as they told me, of a noble Lord, whom they named, who had, till a few years before, filled one of the highest offices under the Crown I paid them ten pounds, m order to engage them to drop their undertaking, about which I understood they already had been at some expense Had the noble Lord m question favoured me with Ins subscription, I would

ADYEETISEMENT im

After mentioning the advantages with which my work has not been favoured, it is however just that I should give an account of those by which it has been attended In the first place, as is above said, men of high rank have condescended to give their approbation to it; and I take this opportunity of returning them my most humble acknowledgments. In the second place, after the difficulties, by which the publication of the book had been attended and followed^ were overcome, I began to share with booksellers m the profit arising from the sale of it. These profits I indeed, thought to he but scanty and slow: but then 1 considered this w r as no more than the common complaint made by every trader in regard to his gam, as well as by every great man m regard to his emoluments and his pensions. After

have celebrated the geneiosity and munificence of my patron, but as lie did not think proper so to do, I shall only observe that lus recom¬ mending my work to a bookseller cost me ten pounds

At the time the above subscription foi my .English edition was ad¬ vertising, a copy of the French work was asked of me for a noble Earl, {a) then invested with a high office m the state, none being at that tune to be found at any bookseller's m London I gave the only copy 1 had (the consequence was that 1 was obliged to borrow one, to make my English edition from), and I added, that I hoped his Lordship would honour me with his subscription. However, my hopes were here again confounded As a gentleman who continues to fill an impoitanl office under the Crown accidentally informed me, about a your afterwards, that the noble Lord here alluded to had lent him my Eiench work, 1 had no doubt left that the copy 1 had delivered had reached his Lordship's hand, 1 therefore presumed to remind him, by a letter, that the book m question had never been paid for, at the same time apologising for such liberty from the circumstances m which my late English edi¬ tion had been published, which did not allow me to lose one copy I must do his Lordship (who is moreover a Knight of the (farter) the justice to acknowledge, that, no later than a week afterwards, ho sent two half crowns for me to a bookseller’s m Fleet Btroefc. A lady brought them m a coach, who took a receipt As she was, by the bookseller’s account, a fine lady, though not a peeress, it gave mo much concern that I was not piesent to deliver the receipt to her myself

At the same time I mention the noble Earl’s great punctuality, I think I may bo allowed to say a word of my own merits. X waited, be¬ fore I presumed to trouble las Lordship, till I was informed that a pen¬ sion of four thousand pounds was settled upon lum (X could have w ished much my own creditors had, about that time, shown the like tenderness to me), and l moreover gave him tune to receive the first quarter,

(a) Do Lolme seem© here to allude to the Earl of Eochford ,—Md

ADVERTISEMENT.

xiv

a course of some years, the net balance, formed by the profits m question, amounted to a certain sum, proportioned to the size of the performance. And, m fine, I must add to the account of the many favours I have received, that I was allowed to carry on the above business of selling my book, without any objection being formed against me from my not having served a regular apprenticeship, and without being molested by the inquisition. Several authors have chosen to relate, m writings published after death, the personal advantages by which their performances had been followed as for me, I have thought otherwise , and, fearing that during the latter part of my life I may be otherwise engaged, I have preferred to write now the account of my successes m this country, and to see it printed while I am yet living

I shall add to the above narrative (whatever the reader may be pleased to think of it) a few observations of rather a more serious kind, for the sake of those persons who, judging themselves to he possessed of abilities, find they are neglected by such as have it m their power to do them occasional services, and suffer themselves to be mortified by it To hope that men will m earnest assist m setting forth the mental qualification of others, is an expectation which, generally speaking, must needs be disappointed. To procure one’s notions and opinions to he attended to, and approved by the circle of one’s acquaintance, is the universal wish of mankind To diffuse these notions farther, to numerous parts of the public, by means of the press or by others, be¬ comes an ob]ect of real ambition nor is this ambition always proportioned to the real abilities of those who feel it very far from it When the approbation of mankind is m question, all persons, whatever their different ranks may be, consider themselves as being engaged in the same career; they look upon themselves as being candidates for the very same kind of advantage high and low, all are m that respect m a state of primaeval equality; nor are those who are likely to obtain some prize, to expect much favour from the others.

This desire of having their ideas communicated to, and approved by, the public, was very prevalent among the great men of the Xtoman commonwealth, and afterwards

XV

■with the Eoman emperors ; however imperfect the means of obtaining those ends might be m those days, compared with those which are used m ours The same desire has been equally remarkable among modern European kings, not to speak’of other parts of the world , and a long catalogue of royal authors may be produced Ministers, especially after having lost their places, have shown no less inclination than their masters, to convince mankind of the reality of their knowledge. Noble persons of all denominations have in¬ creased the catalogue. And, to speak of the country in which we are, there is, it seems, no good reason to make any exception m regard to it, and great men m it, or m general those who arc at the head ol the people, are, we find, suffi¬ ciently anxious about the success of their speeches, or of the printed performances which they sometimes condescend to fay before the pubhe nor has it been every great man, wishing that a compliment may he paid to his personal knowledge, that has ventured to give such lasting specimens.

Several additions were made to this w f ork at the time T gave the first English edition of it. Besides a more accurate division of the chapters, several new notes and paragraphs were inserted m it, for instance, m the J 1th chapter of the 2d book and three new chapters, the 15th, Kith, and 17th, amounting to about ninety pages, were added to the same book These three additional chapters, never having been written by me m French, were inserted m the third edition made at Amsterdam, translated by a person whom the Butch bookseller employed for that purpose* as 3 never had an opportunity to peruse a copy of that edition, 1 can¬ not say how well the translator performed Ins task. Having now parted with the copyright of the book, 1 have farther added four new chapters to it (10,11, B. I.; 19, 20, B. IT.) by way of taking a final leave of it, and m order the more completely to effect this, 1 may perhaps give, m a few months, a French edition of the same (winch 1 cannot tell why I have not done sooner),m which all the above-mentioned additions, translated by my self*, shall be inserted.

XVI

ADVERTISEMENT.

In one of the former additional chapters (the 17 th, E II) mention is made of a peculiar circumstance attending the English government, considered as a monarchy, which is the solidity of the power of the Crown As one proof of this peculiar solidity, it is remarked, m that chapter, that all the monarchs who ever existed, m any part of the world, were never able to maintain their ground against certain powerful subjects (or a combination of them) without the assistance of regular forces at their constant command , whereas it is evident that the power of the Crown, m England, is not at this day supported by such means ; nor even had the Eng¬ lish kings a guard of more than a few scores of men, when their power, and the exertions they at times made of it, were equal to what has ever been related of the most absolute Boman emperors

The cause of this peculiarity m the English government, is said, m the same chapter, to lie m the circumstance of the great or powerful men, in England, being divided into two distinct assemblies, and, at the same time, m the principles on which such a division is formed To attempt to give a demonstration of this assertion otherwise than by facts (as is done m the chapter hero alluded to) would lead into difficulties which the reader is little aware of In general, the science of politics, considered as an exact science ,—that is to say, as a science capable of actual demonstration,—is infinitely deeper than the reader suspects The knowledge of man, on which such a science, with its preliminary axioms and definitions, is to he grounded, has hitherto remained surprisingly imperfect * as one instance how little man is known to himself, it might bo mentioned that no tolerable explanation of that continual human phenomenon, laughter, has been yet given , and the powerful complicate sensation which each sex produces m the other, still remains an equal inexplicable mystery.

To conclude the above digression (which may do very well for a preface), I shall only add, that those speculators who wall amuse themselves m seeking for the demonstration of the political theorem above expressed, will thereby be led through a field of observations which they will at first little expect, and m their way towards attaining such demonstration, will find the science, commonly called

ADVERTISEMENT.

XVil metaphysics, to be at best but a very superficial one, and that the mathematics, or at least the mathematical reasonings hitherto used by men, are not so completely free from error as has been thought #

Out of four chapters added to the present edition, two (the 10th and 11th, B I.) contain, among other things, a lew strictures on the Courts of Equity, m which I wish it may be found I have not been mistaken . of the two others, one (19th, B. II) contains a few observations on the at¬ tempts that may, in different circumstances, be made, to set new limits to the authority of the Crown ; and, m the 20th, a few general thoughts are introduced on the right of taxation, and on the claim of the American colonies in that respect. Any farther observations I may make on tbe English government, such as comparing it with the other governments of Europe, and examining what difference m the manners of the inhabitants of this country may have resulted from it, must come in a new work, if I ever un¬ dertake to treat these subjects. In regard to the American disputes, what I may hereafter write on that account will bo introduced m a work which I may at some future time publish, under the title of Hutoire de George Trots , Roi d? Angleterre, or, perhaps, of Uistoire $ Any let err e, depute VAnnee 1705 (that m which the American stamp-duty was f laid) jusques a VAnnee 178—*, meaning that m which an , end shall be put to the present contest +

* Certain errors that are not discovered, are, m several cases, com¬ pensated by otters, which are equally unpercoived.

Continuing to avail myself of the indulgence an author has a right to claim in a preface, I shall mention, as a farther explanation of the pecu¬ liarity in the English government above alluded to, and which is again touched upon m the postscript to this advertisement, that a government may be considered as a groat ballet or dance, in which, as in other ballets, every thing depends on the disposition of the figures t A certain book, written m Erench, on the subject of the American dispute, was, I have been told, lately attributed to me, in which 1 had no share.

ADYEBTISEMIKT.

XYXH

POSTSCRIPT.

N otwithstakdik a the intention above expressed, of making no additions to the present work, I have found it necessary, in this new edition, to render somewhat more complete the 17th chapter, Book II, On the peculiar foundations of the English monarchy s as I found its tendency not to be very well understood, and, in fact, that chapter contained little more than hints on the subject mentioned m it * the task, id the course of writing, has increased beyond my expectation, and has swelled the chapter to about sixty pages above what it was in the former edition, so as almost to make it a kmd of separate book by itself The reader will now find, that m several remarkable new instances, it proves the fact of the peculiar stability of the executive power of the British crown, and exhibits a much more complete delineation of the advan¬ tages that result from that stability m favour of public liberty.

These advantages may be enumerated m the following order —I. The numerous restraints the governing authority is able to bear, and the extensive freedom it can afford to allow the subject, at its own expense. II. The liberty of speaking and writing, earned to the great extent it is m Eng¬ land. III. The unbounded freedom of the debates in the legislature. IY. The power to bear the constant union of all orders of subjects against its prerogatives. Y. The freedom allowed to all individuals to take an active part in government concerns. VI. The strict impartiality with which justice is dealt to all subjects, without any respect whatever of persons VII. The lenity of the criminal law, both in regard to the mildness of punishments, and the fre¬ quent remission of them. VIII The strict compliance of the governing authority with the letter of the law. IX. The needlessness of an armed force to support itself by, and, as a consequence, the singular subnotion of the military to the civil power.

ABYEKTISEMEM.

XIX

The above mentioned advantages are peculiar to the English government. To attempt to imitate them, or transfer them to other countries, with that degree of extent to which they are carried in England, without at the same time transferring the whole order and conjunction of circumstances in the English government, would prove unsuccessful attempts. Several articles of English liberty already appear impracti¬ cable to be preserved m the new American commonwealths. The Irish nation have of late succeeded m imitating several very important regulations rathe English government, and are very desirous to render the assimilation complete, yet, it is possible, they will find many inconveniences arise from their endeavours, which do not take place m England, notwith¬ standing the very great general similarity of circumstances m the two kingdoms m many respects ; and even, also, we might add, notwithstanding the respectable power jand weight the Crown derives from its British dominions, “both for de¬ fending its prerogative in Ireland, and preventing anarchy; I say, the similarity m many respects between the two king¬ doms ; for this resemblance may perhaps fail m regard to some important points however, this is a subject about which I shall not attempt to say anything, not having the necessary information.

The last chapter m the work, concerning the nature of the divisions that take place m this country , 1 have left m every English edition as I wrote it at first in French. With respect to the exact manner of the debates in parliament, mentioned m that chapter, I cannot well say more at present than I did at that time, as I never had an opportunity to hear the debates in either honse. In regard t6 the divisions in general to which the spirit of party gives rise, I did per¬ haps the hulk of the people somewhat more honour than they really deserve, when I represented them as being free from any violent dispositions m that respect; I have since found, that, like the bulk of mankind m all countries, they suffer them¬ selves to be influenced by vehement prepossessions for this or that side of public questions, commonly in proportion as their knowledge of the subject is imperfect. It is, however, a fact that political prepossessions and party spirit are not productive, m this country, of those dangerous consequences which might be feared from the warmth with which they

XX

ADVEETISEMENT.

are sometimes manifested But tins subject, or in general the subjects of tbe political quarrels and divisions m this, country, is not an article one may venture to meddle with in a single chapter, I have therefore let this subsist, without touching it

I shall however observe, before I conclude, that an acci¬ dental circumstance m the English government prevents the party spirit by which the public are usually influenced, from producing those lasting and rancorous divisions m the com¬ munity which have pestered so many other free states, making of the same nation, as it were, two distinct people, in a kind of constant warfare with each other The circum¬ stance I mean is, the frequent reconciliations (commonly to quarrel agam afterward) that take place between the leaders of parties, by which the most violent and ignorant class of their partisans are bewildered, and made to lose the scent. By the frequent coalitions between whig and ton/ leaders, even that party ‘distinction, the most famous in the English history, has now become useless the meaning of the words has thereby been rendered so perplexed that nobody can any longer give a tolerable definition of them; and those persons who now and them aim at gaining popularity by claiming the merit of belonging to either party, are scarcely under¬ stood. The late coalition between two certam leaders has done away, and prevented from settling, that violent party spirit to which the administration of Lord Bute had given rise, and which the American disputes had carried still farther. Though this coalition has met with much obloquy, 1 take the liberty to ratok myself m the number of its advo¬ cates, so far as the circumstance here mentioned.

LIFE

OB’

JOHN LOUIS DE LOLME.

John Louis de Holme was bom at Genova in the year 1740. He was educated for the bar, and became an advo¬ cate, but m consequence of a work which ho published, intituled Easamen de Trots Point# de Droit, he was, m the disordered condition of the canton at that tune, either ex¬ pelled from, or he found if necessary to quit, Switzerland. He arrived m England, according to his own account, at the ago of 27 years The very brief account of him gi\en m the Bwyraphie Unwtrselle states “that he led an irregular life, and was soon reduced to indigence j that sometimes he w f rote m the journals,—then haunted the most common taverns, and gave himself up to gambling and all sorts of dissipation,” but that ho still persevered in acquiring a knowledge of the language, law’s, history, and political insti¬ tutions of England

His Essay on the English Constitution was first written in French, and published in Holland m the year 1770. it would appear that m the following year he attempted to publish an English translation, but without success. The work did not appear m an English form until the year 1775, and did not prove successful m a pecuniary point of view, although published by subscription Hr. Busby says, u bis fate, it has been remarked, was not happier than that of too many whose labours delighted and illumined mankind lie w 7 as exalted and neglected—lauded with commendations, and consigned to poverty.”

B

LIEE OF DE LOLME

Some of the editors of the more recent editions contend that De Lolme himself translated his work, and that it is his translation which has ever since been before the public, and they also contend that his having contributed to the newspapers, and having written several works afterwards in the English language, constitute sufficient proof of his ability to write pure idiomatic and attractive English. Eut the truth is, that had the sheets been printed as he had translated them, the work would scarcely have been under¬ stood by the English people, and we have reason to believe the excellent language and style of the first English edition is due to the generosity of that eminent and great man, the late Baron Masseres. In a work written by the learned baron, intituled the “ Canadian Freeholder,” now little known, as the circumstances which occasioned its publi¬ cation have passed away, the style is remarkably similar to that of the “ Essay on the English Constitution,” and Baron Masseres was at the same time an elegant and ac¬ complished French as well as Enghsh scholar Mr. De Lolme had been introduced to that distinguished gentleman, and on submitting some sheets of his translation, the Baron, with his usual kindness, offered to correct the Gallicisms, which would have rendered the essay unintelligible to ordinary readers, and transformed the style into that pure and unaffected Enghsh phraseology which pervades with a few exceptions the present edition * During several months De Lolme visited Baron Masseres each morning at his chambers m the Temple, and we have no doubt that it was under his superintendence and friendship that the work appeared m a readable and popular form. The author had become acquainted with Lord Abingdon at Geneva, and dedicated his essay m the first instance to his lordship , but De Lolme was not only capricious but frequently un¬ grateful, and he changed the dedication before the book was published. In a subsequent edition, in which he enlarged the work, and from not having the assistance of Baron Masseres, he introduced several Gallicisms and incongruities

* The exceptions are insertions made by Be Lolme m subsequcnl editions. It is probable that the late Mr Jfellowes, who was an elegant wnter, and the fnend of Baron Masseres, who bequeathed him Ins for¬ tune, also assisted m correcting Be Lolme’s style.

IUEE OE DE LOLME winch, in a few paragraphs, contrast unfavourably with the generally chaste style of the essay. That Be Lolme was a man of genius and learning cannot be doubted, but during his sojourn m England he appears to have ex¬ perienced great pecuniary difficulties. Tie was so improvi¬ dent and extravagant that he v ould have squandered the largest fortune Tie was occasionally successful m specu¬ lating m the funds, and it is asserted that when he by such chances or by play gained money, he disappeared altogether from society, resorted to secret places, and only re-appeared m a state of utter poverty. Generally his residence was unknown. TIis personal appearance varied with his changes of fortune Occasionally, when possessed of money, he appeared in the fashionable attire of the day, with a sword and bag-wig When m distress he exhibited the miserable and degraded appearance of a tattered and slovenly vagabond. More than once he was reduced to perform menial services for a subsistence. Tie used to hire lodgings under a feigned name, and on Br. Wolcott asking him one day where he lived, he replied, “ Why, my dear doctor, between Westminster Bridge and Hyde Park Corner ” He sometimes owed his means of living to the Literary Fund, and the only places of residence in winch he was known to have lived were in Back Lane, Hatton Garden, Green Street, Leicester Square, and in some hiding-places m Pimlico and Mary-le-bone. In 1775, he attempted a periodical publication entitled the “ News Examiner ” the object of which was to expose tho incon¬ sistency of the London journals by republishing their leading articles. But the enterprise became a victim to the Stamp Office, which declared that the periodical was liable to duty, and wduch Be Lolme was unable to pay.