The Constitution of England

Chapter IV

160 u c h a p t e r i v u A third Advantage peculiar to the English Government. The Business of proposing Laws, lodged in the Hands of the People. A third circumstance which I propose to show to be peculiar to the English Government, is the manner in which the respective offices of the three component parts of the Legislature have been divided, and allotted to each of them. If the Reader will be pleased to observe, he will find that in 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 sanction 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 initiative, that is, the prerogative of putting that power in action (a). (a) 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 Senatûs. 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, was required. Tumenim non gerebat is magistratum qui ceperat, si Patres auctores non erant facti. Cic. pro Plancio, 3. [[De Lolme cites Cicero’s 54 b.c.e. speech, Pro Plancio (On behalf of Plancius). The quoted passages read: “In accordance with the decree of the Senate and the will of the people” and “For in the old days, the man who had been elected to an office did not enter upon it if the patricians withheld their assent.”]] chapter iv 161 This initiative, or exclusive right of proposing, in Legislativeassemblies, 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 darenotof 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 never to rouse. They consequently convene the Assembly of the People as seldom as they can. When they do it, they carefully avoid proposing any thing favourable to public liberty. Soon they even entirely cease to convene the Assembly at all; and the People, after thus losing the power of legally asserting their rights, are exposed to that which is the highest degree of political ruin, the loss of even the remembrance of them; unlesssomeindirect 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. ” [[Geneva’s General Council (Conseil General ), an institution dating from the medieval period, was an assembly comprising the entire Genevan citizenry. During the course of the sixteenth century, its power was eclipsed by the small Council of the Twenty-Five (or Petit Conseil...