Some Remarkable Customs

Three remarkable customs in three celebrated governments prove:

• that all general maxims in politics should be established with great caution
• that irregular and extraordinary appearances are frequently discovered in the moral and physical world

1. We think that all the members of a supreme council should have freedom of speech. After a motion has been voted and approved by that assembly, its proposer must forever be exempted from future trial or enquiry.

But these axioms have all failed in the Athenian government.

The indictment of illegality meant that any man was tried and punished in a common court of judicature for any law which he had passed in the assembly if that law was unjust or prejudicial to the public.

Demosthenes found that ship-money was levied irregularly: the poor bore the same burden as the rich in equipping the gallies.

• He corrected this inequality by a very useful law which proportioned the expence to the revenue and income of each individual.
• He convinced the assembly to pass his law.

Yet was he tried in a criminal court for that law by the rich who resented it. He was acquitted and the assembly then voted to confer particular honours on Demosthenes.

Yet Ctesiphon asserted that Demosthenes was not a good citizen, nor affectionate to the commonwealth. Demosthenes was called on to defend his friend, and consequently himself; which he executed by that sublime piece of eloquence, that has ever since been the admiration of mankind.

After the battle of Chæronea, a law was passed upon the motion of Hyperides, giving liberty to slaves, and enrolling them in the troops.

On account of this law, Demosthenes was afterwards tried by the indictment above-mentioned, and defended himself, among other topics, by that stroke celebrated by Plutarch and Longinus. He said that it was not him who moved for this law, but the necessities of the battle of Chæronea.

The orations of Demosthenes abound with many instances of trials of this nature. They prove clearly that it was more commonly practised.

Athenian Democracy was such a tumultuous government. The whole body of the people voted in every law:

• without any limitation of property, without any distinction of rank, without controul from any magistracy or senate;5 and consequently without regard to order, justice, or prudence.

The Athenians soon became sensible of the mischiefs attending this constitution:

But being averse to checking themselves by any rule or restriction, they resolved, at least, to check their demagogues or counsellors, by the fear of future punishment and enquiry.

They accordingly instituted this remarkable law; a law esteemed so essential to their form of government, that Æschines insists on it as a known truth, that, were it abolished or neglected, it were impossible for the Democracy to subsist.

The people feared not any ill consequence to liberty from the authority of the criminal courts; because these were nothing but very numerous juries, chosen by lot from among the people.

They justly considered themselves as in a state of perpetual pupillage where they had an authority, after they came to the use of reason, not only to retract and controul whatever had been determined, but to punish any guardian for measures which they had embraced by his persuasion.

The same law had place in Thebes and for the same reason. It was a usual practice in Athens, on the establishment of any law esteemed very useful or popular, to prohibit for ever its abrogation and repeal.

Thus the demagogue, who diverted all the public revenues to the support of shows and spectacles, made it criminal so much as to move for a repeal of this law. Thus Leptines moved for a law, not only to recal all the immunities formerly granted, but to deprive the people for the future of the power of granting any more. Thus all bills of attainder10 were forbid, or laws that affected one Athenian, without extending to the whole commonwealth.

The legislature vainly tried to bind itself forever with these absurd clauses. proceeded from an universal sense in the people of their own levity and inconstancy. A wheel within a wheel, such as we observe in the German empire, is considered by Lord Shaftesbury11 as an absurdity in politics.

But what must we say to two equal wheels, which govern the same political machine, without any mutual check, controul, or subordination; and yet preserve the greatest harmony and concord?

To establish two distinct legislatures, each of which possesses full and absolute authority within itself, and stands in no need of the other’s assistance, in order to give validity to its acts.

This might appear impracticable as long as men are actuated by ambition, emulation, and avarice.

The state I have in my eye was divided into two distinct factions, each of which predominated in a distinct legislature, and yet produced no clashing in these independent powers; the supposition may appear incredible.

And if, to augment the paradox, I should affirm, that this disjointed, irregular government, was the most active, triumphant, and illustrious commonwealth, that ever yet appeared; I should certainly be told, that such a political chimera was as absurd as any vision of priests or poets. But there is no need for searching long, in order to prove the reality of the foregoing suppositions: For this was actually the case with the Roman republic.legislative power was there lodged in the comitia centuriata and comitia tributa.

In the former, the people voted according to their census; so that when the first class was unanimous, though it contained not, perhaps, the 100th part of the commonwealth, it determined the whole; and, with the authority of the senate, established a law.

In the latter, every vote was equal; and as the authority of the senate was not there requisite, the lower people entirely prevailed, and gave law to the whole state.

In all party-divisions, at first between the Patricians and Plebeians, afterwards between the nobles and the people, the interest of the Aristocracy was predominant in the first legislature; that of the Democracy in the second.

The one could always destroy what the other had established: Nay, the one, by a sudden and unforeseen motion, might take the start of the other, and totally annihilate its rival, by a vote, which, from the nature of the constitution, had the full authority of a law.

But no such contest is observed in the history of Rome: No instance of a quarrel between these two legislatures; though many between the parties that governed in each. Whence arose this concord, which may seem so extraordinary?

legislature established in Rome, by the authority of Servius Tullius, was the comitia centuriata, which, after the expulsion of the kings, rendered the government, for some time, very aristocratical.

But the people, having numbers and force on their side, and being elated with frequent conquests and victories in their foreign wars, always prevailed when pushed to extremity, and first extorted from the senate the magistracy of the tribunes, and next the legislative power of the comitia tributa.

It then behoved the nobles to be more careful than ever not to provoke the people. For beside the force which the latter were always possessed of, they had now got possession of legal authority, and could instantly break in pieces any order or institution which directly opposed them.

By intrigue, by influence, by money, by combination, and by the respect paid to their character, the nobles might often prevail, and direct the whole machine of government: But had they openly set their comitia centuriata in opposition to the tributa, they had soon lost the advantage of that institution, together with their consuls, prætors, ediles, and all the magistrates elected by it.

But the comitia tributa, not having the same reason for respecting the centuriata, frequently repealed laws favourable to the Aristocracy:

They limited the authority of the nobles, protected the people from oppression, and controuled the actions of the senate and magistracy. The centuriata found it convenient always to submit; and though equal in authority, yet being inferior in power, durst never directly give any shock to the other legislature, either by repealing its laws, or establishing laws, which, it foresaw, would soon be repealed by it.instance is found of any opposition or struggle between these comitia; except one slight attempt of this kind, mentioned by Appian in the third book of his civil wars.

Mark Anthony resolved to deprive Decimus Brutus of the government of Cisalpine Gaul, so he railed in the Forum. He called one of the comitia, to prevent the meeting of the other, which had been ordered by the senate. But Roman constitution was near its final dissolution, that no inference can be drawn from such an expedient.

This contest, besides, was founded more on form than party. It was the senate who ordered the comitia tributa, that they might obstruct the meeting of the centuriata, which, by the constitution, or at least forms of the government, could alone dispose of provinces.was recalled by the comitia centuriata, though banished by the tributa, that is, by a plebiscitum. But his banishment, we may observe, never was considered as a legal deed, arising from the free choice and inclination of the people. It was always ascribed to the violence alone of Clodius, and to the disorders introduced by him into the government.

3. The English maxim is that a power, however great, when granted by law to an eminent magistrate, is not so dangerous to liberty as an authority coming from violence and usurpation, however inconsiderable

For, besides that the law always limits every power which it bestows, the very receiving it as a concession establishes the authority whence it is derived, and preserves the harmony of the constitution.

By the same right that one prerogative is assumed without law, another may also be claimed, and another, with still greater facility; while the first usurpations both serve as precedents to the following, and give force to maintain them.

Hence the heroism of Hampden who sustained the whole violence of royal prosecution, rather than pay a tax of twenty shillings, not imposed by parliament

hence the care of all English patriots to guard against the first encroachments of the crown;

hence alone the existence, at this day, of English liberty.is, however, one occasion, where the parliament has departed from this maxim; and that is, in the pressing of seamen.

The exercise of an irregular power is here tacitly permitted in the crown.

No safe expedient could ever be proposed to legally restrain that power. The danger to liberty always appeared greater from law than from usurpation. While this power is exercised to no other end than to man the navy, men willingly submit to it, from a sense of its use and necessity.

The sailors are alone affected by it. , find no body to support them, in claiming the rights and privileges, which the law grants, without distinction, to all English subjects.

But if this power were made an instrument of faction or ministerial tyranny, the opposite faction, and indeed all lovers of their country, would immediately take the alarm, and support the injured party;

The liberty of Englishmen would be asserted; juries would be implacable; and the tools of tyranny, acting both against law and equity, would meet with the severest vengeance.

On the other hand, if the parliament granted such an authority, they would have two inconveniencies:

1. They would either bestow it under so many restrictions as would make it lose its effect, by cramping the authority of the crown.

2. Or they would render it so large and comprehensive, as might give occasion to great abuses, for which we could, in that case, have no remedy. The very irregularity of the practice, at present, prevents its abuses, by affording so easy a remedy against them.pretend not, by this reasoning, to exclude all possibility of contriving a register for seamen, which might man the navy, without being dangerous to liberty.

No satisfactory scheme of that nature has yet been proposed. Instead, we continue a practice seemingly the most absurd and unaccountable.

Authority, in times of full internal peace and concord, is armed against law. A continued violence is permitted in the crown, amidst the greatest jealousy and watchfulness in the people; nay proceeding from those very principles:

Liberty, in a country of the highest liberty, is left entirely to its own defence, without any countenance or protection:

The wild state of nature is renewed, in one of the most civilized societies of mankind. Great violence and disordera are committed with impunity; while the one party pleads obedience to the supreme magistrate, the other the sanction of fundamental laws.