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SAFETY OF THE ENGLISH LEGISLATURE.
William III., by which it has been enacted that parliaments should sit no longer than three years, and which was repealed by a subsequent act, under George I., which allowed them to sit for seven years, we shall not find that any law, which may really be called constitutional, and which has been enacted since the Restoration, has been changed afterwards.
Now, if we compare this steadiness of the English governinent with the continual subversions of the constitutional laws of some ancient republics, with the imprudence of some of the laws passed in their assemblies, * and with the still greater inconsiderateness with which they sometimes repealed the most salutary regulations, as it werė, the day after they had been enacted,—if we call to mind the extraordinary means to which the legislature of those republics, at times sensible how its very power was prejudicial to itself and to the state, was obliged to have recourse, in order, if possible, to tie its own hands, we shall remain convinced of the great advantages which attend the constitution of the English legislature. I
Noris this division of the English legislature accompanied (which is indeed a very fortunate circumstance) by any actual division of the nation ; each constituent part of it possesses strength sufficient to ensure respect to its resolutions; yet no real division has been made of the forces of the state. Only a greater proportional share of all those distinctions which are calculated to gain the reverence of the people, has been allotted to those parts of the legislature which could
* The Athenians, among other laws, had enacted one to forbid the application of a certain part of the public revenues to any other use than the expenses of the theatres and public shows.
of In some ancient republics, when the legislature wished to render a certain law permanent, and at the same time mistrusted their own future wisdom, they added a clause to it, which made it death to propose the revocation of it. Those who afterwards thought such revocation necessary to the public welfare, relying on the mercy of the people, appeared in the public assembly with a halter about their necks.
I We shall perhaps have occasion to observe hereafter, that the true cause of the equability of the operations of the English legislature is the opposition that happily takes place between the different views and interests of the several bodies that compose it ; a consideration this, without which all political enquiries are no more than airy speculations, and the only one that can lead to useful practical conclusions.
not possess their confidence in so high a degree as the others; and the inequalities in point of real strength between them have been made up by the magic of dignity.
Thus, the king, who alone forms one part of the legislature, has on his side the majesty of the kingly title: the two Houses are, in appearance, no more than councils entirely dependent on him; they are bonnd to follow his person ; they only meet, as it seems, to advise him; and never address him but in the most solemn and respectful manner.
As the nobles, who form the second order of the legislature, bear, in point both of real weight and numbers, no proportion to the body of the people,* they have received, as a compensation, the advantage of personal honours, and of an hereditary title.
Besides, the established ceremonial gives to their assembly a great pre-eminence over that of the representatives of the people. They are the upper house, and the others the lower house. They are in a more special manner considered as the king's council :, and it is in the place where they assemble that his throne is placed.
* It is for want of having duly considered this subject, that M. Rousseau exclaims somewhere against those who, when they speak of the general estates of France, “ dare to call the people the third estate.” At Rome, where all the order we mention was inverted, -where the fasces were laid at the feet of the people, and where the tribunes, whose function, like that of the king of England, was to oppose the establishment of new laws, were only a subordinate kind of magistracy,many disorders followed. In Sweden and in Scotland (before the Union), faults of other kind prevailed : in the former kingdom, for instance, an overgrown body of two thousand nobles frequently overruled both king and people.
of This remark is not correct. The peers acquire honours and titles from circumstances that we may trace to the feudal times; and since the introduction of rich or highly-gifted men, without titles, to the House of Commons, the honours of the peerage are, by distinguished commoners, rather avoided than sought for. The fact of members of aristocratic families sitting on the same benches with the sons and brothers of peers, has tended wonderfully to harmonise the differences between the two classes of nobility and commoners.—The first Pitt was so powerful as “the great commoner," that it was said, “ in his presence royalty was shorn of half its beams,”-Sir Robert Peel only left the Commons when that great statesman was carried off by a lamentable and premature death. We do not think it probable that either Lord Palmerston or Lord John Russell will ever leave the House of Commons for the House of Lords. -Ed.
THE LORDS AND COMMONS.
When the king comes to the parliament, the Commons are sent for, and make their appearance at the bar of the House of Lords. It is moreover before the Lords, as before their judges, that the Commons bring their impeachments. When, after passing a bill in their own house, they send it to the Lords to desire their concurrence, they always order a number of their own members to accompany it:* whereas the Lords send down their bills to them, only by some of the assistants of the House.f When the nature of the alterations which one of the two houses may wish to make in a bill sent to it by the other, renders a conference between them necessary, the deputies of the Commons to the committee, which is then formed of members of both houses, are to remain uncovered. I Lastly, those bills which in whichever of the two houses they have originated) have been agreed to by both, must be deposited in the House of Lords, there to remain till the royal pleasure is signified.
Besides, the Lords are members of the legislature by virtue of a right inherent in their persons; and they are supposed to sit in parliament on their own account, and for the support of their own interests. In consequence of this, they have the privilege of giving their votes by proxy ;ş and, when any of them dissent from the resolutions of their House, they may enter a protest against them, containing the reasons of their particular opinion. In a word, as this part of the legislature is destined frequently to balance the power of the people, what it could not receive in real strength it has received in outward splendour and greatness; so that, when it cannot
* The Speaker of the House of Lords must come down from the woolsack to receive the bills which the members of the Commons bring to their house.
of The twelve judges and the masters in chancery. There is also a ceremonial established with regard to the manner and marks of respect, with which those two of them, who are sent with a bill to the Commons, are to deliver it.
[The note of De Lolme with respect to the twelve judges is not now accurate. The present number is fifteen.- Ed.]
I This etiquette of one class remaining covered and the other uncovered is now, I believe, peculiar to England.-Would it not be more decorous if both remained uncovered ?- Ed.
§ The Commons have not that privilege, because they are themselves proxies for the people.—See Coke's Inst. 4. p. 41.
resist by its weight it overawes by its apparent magnitude,
In fine, as these various prerogatives, by which the component parts of the legislature are thus made to balance each other, are all intimately connected with the fortune of the state, and flourish and decay according to the vicissitudes of public prosperity or adversity, it thence follows, that, though differences of opinion may sometimes take place between those parts, there can scarcely arise any when the general welfare is really in question, And when, to resolve the doubts that may arise on political speculations of this kind, we cast our eyes on the debates of the two houses for a long succession of years, and see the nature of the laws which have been proposed, of those which have passed, and, of those which have been rejected, as well as of the arguments that have been urged on both sides, we shall remain convinced of the goodness of the principles on which the English legislature is formed.
A THIRD ADVANTAGE PECULIAR TO THE ENGLISH GOVERNMENT.—THE
BUSINESS OF PROPOSING LAWS LODGED IN THE HANDS OF THE PROPIE,
A THIRD circumstance, which I propose to show to be peouliar to the English government, is the manner in which the respective ottices of the three component parts of the legislature have been divided and allotted to each of them.
lu most of the ancient free states, the share of the people in the business of legislation was to approve or reject the propositions which were made to them, and to give the final Sanctiou to the laws. The function of those persons (or in general those bodies), who were intrusted with the executive power, was to prepare and frame the laws, and then to propose them to the people: and in a word, they possessed that branch of the legislative power which may be called the
THE INITIATIVE POWER.
163 initiative ; that is, the prerogative of putting that power in action.*
This initiative, or exclusive right of proposing in legislative assemblies, attributed to the magistrates, is indeed very useful, and perhaps even necessary, in states of a republican form, for giving a permanence to the laws, as well as for preventing the disorders and struggles for power which have been mentioned before ; but, upon examination, we shall find that this expedient is attended with inconveniences of little less magnitude than the evils it is meant to remedy.
These magistrates, or bodies, at first indeed apply frequently to the legislature for a grant of such branches of power as they dare not of themselves assume, or for the removal of such obstacles to their growing authority as they do not yet think it safe for them peremptorily to set aside. But when their authority has at length gained a sufficient degree of extent and stability, as farther manifestations of the will of the legislature could then only create obstructions to the exercise of their power, they begin to consider the legislature as an enemy whom they must take great care
* This power of previously considering and approving such laws as were afterwards to be propounded to the people, was, in the first times of the Roman republic, constantly exercised by the senate: laws were made populi jussu, ex auctoritate senatús. Even in cases of elections, the previous approbation and auctoritas of the senate, with regard to those persons who were offered to the suffrages of the people, were required. Tum enim non gerebat is magistratum qui ceperat, si patres auctores non erant facti. Cic. pro. Plancio, 3.
At Venice, the senate also exercises powers of the same kind, with regard to the grand council or assembly of the nobles. In the canton of Bern, all propositions must be discussed in the little council, which is composed of twenty-seven members, before they are laid before the council of the two hundred, in whom resides the sovereignty of the whole canton. And, in Geneva, the law is, “ that nothing shall be treated in the general council or assembly of the citizens, which has not been previously treated and approved in the council of the two hundred : and that nothing shall be treated in the two hundred which has not been previously treated and approved in the council of the twenty-five."
[The remark was true when the above was written ; but Venice under Austria has lost all independence and liberty, and the constitution of Geneva has been altogether changed since Switzerland was occupied by the French.-Ed.]