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posed to have great property in the funds: Yet the connections of the members may be so great with the proprietors, as to render them more tenacious of public faith, than prudence, policy, or even justice, strictly speaking, requires. And perhaps, too, our foreign enemies, or rather enemy, (for we have but one to dread) may be so politic as to discover, that our safety lies in despair, and may not, therefore, show the danger, open and barefaced, till it be inevitable. The balance of power in Europe, our grandfathers, our fathers, and we, have all justly esteemed too unequal to be preserved without our attention and assistance. But our children, weary with the struggle, and fettered with incumbrances, may sit down secure, and see their neighbors oppressed and conquered ; till, at last, they themselves and their creditors lie both at the mercy of the conqueror. And this may properly enough be denominated the violent death of our public credit.
THESE seem to be the events which are not very remote, and which reason foresees as clearly almost as she can do any thing that lies in the womb of time. And tho’ the antients maintained that in order to reach the gift of prophecy, a certain divine fury or madness was requisite, one may safely affirm, that, in order to deliver such prophecies as these, no more is necessary, than merely to be in one's fenses, free from the influence of popular madness and delusion,
E S S A Y IX. OF SOME REMARKABLE CUSTOM S.
T SHALL observe three remarkable customs in three celebrated governments;
and shall conclude from the whole, that all general maxims in politics ought to be established with great reserve ; and chat irregular and extraordinary appearances are frequently discovered in the moral, as well as in the physical world. The former, perhaps, we can better account for, after they happen, from springs and principles, of which every one has, within himself, or from obvious observation, the strongest assurance and conviction : But 'tis often fully as impossible for human prudence, beforehand, to foresee and foretel them.
1. ONE would think it effential to every supreme council or assembly, which debates, that entire liberty of speech should be granted to every member, and that all motions or reasonings should be received, which can any way tend to illustrate the point under deliberation. One would conclude, with ftill greater assurance, that, after a motion was made, which was voted and approved by that assembly in which the legislature is lodged, the member who made the motion, must for ever be exempted from farther trial and inquiry. But no political maxim can, at first sight, appear more undisputable, than that he muit, at least, be secured from all inferior jurisdiction ; and that nothing less than the same supreme legislative afsembly, in their subsequent meetings, could render him accountable for those motions and harangues which they had before approved of. But these axioms, however irrefragable they may appear, have all failed in the ATHENIAN govern. ment, from causes and principles too, which appear almost inevitable.
D d 2
By By the yeacon Tapevouwr or indi&tment of illegality, (tho' it has not been remarked by antiquaries or commentators) any man was tried and punished, in a common court of judicature, for any law which had passed upon his motion, in the assembly of the people, if that law appeared to the court unjust, or prejudicial to the public. Thus DEMOSTHENES, finding that ship-money was levied irregularly, and that the poor bore the same burden as the rich in equipping the gallies, corrected this inequality by a very useful law, which proportioned the expence to the revenue and income of each individual. He moved for this law in the afsembly; he proved its advantages *; he convinced the people, the only legislature in ATHENS; the law passed, and was carried into execution: And yet he was tried in a criminal court for that law, upon the complaint of the rich, who resented the alteration he had introduced into the finances t. He was indeed acquitted, upon proving anew the usefulness of this law,
Ctesiphon moved in the assembly of the people, that particular honors should be conferred on DeMOSTHENES, as on a citizen affectionate and useful to the commonwealth : The people, convinced of this truth, voted those honors : Yet was CTESIPHON tried by the yeaon Tapavouw. It was asserted, among other topics, that DEMOSTHENES was not a good citizen, nor affectionate to the commonwealth: And the orator was called upon 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 fatal battle of CHARONEA, a law was passed, upon the motion of HYPERIDES, giving liberty to saves, and inrolling them in the troops I. On account of this law, the orator was afterwards tried by the indictment abovementioned ; and defended himself, among other topics, by that stroke celebrated by PLUTARCH and LONGINUS. It was not I, said he, that moved for this law: It was the necessities of war; it was the battle of CHARONEA. The orations of DEMOSTHENES abound with many instances of trials of this nature ; and prove clearly, that nothing was more commonly practised.
THE ATHENIAN Democracy was such a mobbish government, as we can scarce form a notion of in the present age of the world. The whole collective body of the people voted in every law, without any limitation of property, without any distinction of rank, without control from any magistracy or senate ; and confequently with little regard to order, justice, or prudence. The ATHENIANS soon became sensible of the mischiefs attending this constitution : But being averse lo the checking themselves by any rule or restriction, they resolved, at least, to check their demagogues or counsellors, by the fear of future punishment and inquiry. They accordingly instituted this remarkable law; a law esteemed so effential to their government, that Æschines insists on it as a known truth, that were it abolished or neglected, it were impossible for the Democracy to subsift t.
His harangue for it is still extant; Tsp Exyno store the privilege of bearing offices to thofe who pieprasa
had been declared incapable. Perhaps these were + Pro CTESIPHONTE.
both clauses of the same law. I PLUTARCHUS in vita decem oratorum. De- ll The senate of the Bean was only a less numeMOSTHENEs gives a different account of this law. rous mob, chosen by lot from among the people; Contra ARISTOGITON. orat. II. He says, That its - and their authority was not great. purport was, to render the GTILA ON ETT UT ILLOs, or to re- + In CTESIPHONTEM. 'Tis remarkable, that
The people feared not any ill consequences to liberty from the authority of the criminal courts; because these were nothing but very numerous juries, chosen by lot from among the people. And they considered themselves juftly as in a state of pupillage; where they had an authority, after they came to the use of reason, nyt only to retract and control 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 appears to have been an 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 reversement of this law t. 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 I. Thus all bills of attainder || were forbid, or laws that affect one ATHENIAN, without extending to the whole commonwealth. There absurd clauses, by which the legislature vainly attempted to bind itself for ever, proceeded from an universal sense of the levity and inconstancy of the people. ,
II. A WHEEL within a wheel, such as we observe in the ĠERMAN empire, is considered by Lord SHAFTSBURY as an absurdity in politics : But what must we say to two equal wheels, which govern the same political machine, without any mutual check, control, 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 assiftance, in order to give validity to its acts ; this may appear, beforehand, altogether impracticable, as long as men are actuated by the passions of ambition, emulation, and avarice, which have been hitherto their chief governing principles. And should I assert, that 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 of these independent powers; the supposition may appear almost 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 on the stage of the world; I should certainly be told, that such a political chimera was as absurd as any vision of the poets. But there is. no need for searching long, in order to prove the reality of the foregoing fuppositions: For this was actually the case with the ROMAN republic.
The legislative power was there lodged both in the comitia centuriata and comitia tributa. In the former, 'tis well known, the people voted according to their census; fo that when the first class was unanimous, tho' it contained not, perhaps, the hundredth part of the commonwealth, it determined the whole ; and,
and illustrion Jointed, is
the first step after the dissolution of the Democracy * PLUT. in vita Pelop.. by CRITIAS and the Thirty, was to annul the + Demost. Olynth. 1. 2. γραφη παραιομων, as we learn from DEMOSTHENES I Demost. contra Lept. nuta Topox. The orator in this oration gives us | DEMOST. contra ARISTOCRATEM. the words of the law, establishing the ypcon Tapaic- + Essay on the freedom of wit and humor, pwr, pag. 297, ex edit. Aldi. And he accounts part 3.5 2. for it, from the same principles that we here reason upon.
with the authority of the senate, established a law. In the latter, every vote was alike; 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 betwixt the PATRICIANS and PLEBEIANs, afterwards betwixt 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 or struggle is observed in the history of Rome: No instance of a quarrel betwixt these two legislatures; tho' many betwixt the parties that governed in each. Whence arose this concord, which may seem so extraordinary?
The legislature established at Rome, by the authority of SERVIUS TULLIUS, was the comitia centuriata, which, after the expulsion of the kings, rendered the government, for some time, altogether 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 extremities, and first extorted from the fenate the magistracy of the tribunes, and then 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 poffeffed of, they had now got possession of legal authority, and could inftantly break in pieces any order or institution which directly opposed them. By intrigue, by influence, by money, by combination, and by the respect paid 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, praetors, ediles, and all the magistrates elected by it. But the comitia tributa, not having the same reason for respecting the centuriata, frequently repealed laws favorable to the Aristocracy : They limited the authority of the nobles, protected the people from oppression, and controlled the actions of the senate and magistracy. The centuriata found it convenient always to submit; and tho' equal in authority, yet being inferior in power, durft 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.
No instance is found of any opposition or struggle between these comitia ; except one night attempt of this kind, mentioned by Appian in the, 3d book of his civil wars. MARK ANTHONY, resolving to deprive Decimus Brutus of the government of CISALPINE GAUL, railed in the Forum, and called one of the comitia, in order to prevent the meeting of the other, which had been ordered by the senate. But affairs were then fallen into such confusion, and the Roman constitution was so 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.
CICERO was recalled by the comitia centuriata, tho' banished by the tributa, that is, by a plebiscitum. But his banishment, we may observe, never was considered
thock to the other legis foon be repealed by Truggle between th
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 the disorders introduced by him into the government.
III. The third custom which we proposed to observe, regards ENGLAND ; and tho' it be not so important as those which we have pointed out in Athens and Rome, it is no less singular and remarkable. 'Tis a maxim in politics, which we readily admit as undisputed and universal, That a power, however great, when granted by law to an eminent magiftrate, is not so dangerous to liberty, as an authority, however inconsiderable, which he acquires from violence and usurpation. 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 20 Thillings not imposed by parliament; hence the care of all ENGLISH patriots to guard against the first encroachments of the crown; and hence alone the existence, at this day, of English liberty.
There is, however, one occasion, where the parliament has departed from this maxim;, and that is, in the pressing of feamen. The exercise of an illegal power is here tacitly permitted in the crown; and tho' it has frequently been under deJiberation, how that power might be rendered legal, and granted, under proper restrictions, to the sovereign, no safe expedient could ever be proposed for that purpose, and 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; and the sailors, who 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 fubjects. But were this power, on any occasion, 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, were the parliament to grant such an authority, they would probably fall into one of these two inconveniencies: They would either bestow it under so many restrictions as would make it lose its effects, by cramping the authoriiy of the crown; 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 illegality of the power, at present, prevents its abuses, by affording so easy a remedy against them.
I PRETEND not, by this reasoning, to exclude all possibility of contriving a regifter for seamen, which might man the navy, without being dangerous to liberty. I only observe, that no fatisfa&tory fchenie of that nature has yet been proposed. Rather than adopt any project hitherto invented, 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 and open usurpation in
gilter obferve, that no oneft hitherto inve Authority, in