posed to have great property in the funds: Yet the connections of the members may be fo great with the proprietors, as to render them more tenacious of public faith, than prudence, policy, or even juftice, ftrictly speaking, requires. And perhaps, too, our foreign enemies, or rather enemy, (for we have but one to dread) may be fo politic as to discover, that our fafety lies in despair, and may not, therefore, fhow 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 preferved without our attention and affiftance. But our children, weary with the struggle, and fettered with incumbrances, may fit down fecure, and fee their neighbors oppreffed and conquered; till, at laft, 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 feem to be the events which are not very remote, and which reafon forefees as clearly almoft as fhe 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 madnefs was requifite, one may fafely affirm, that, in order to deliver fuch prophecies as thefe, no more is neceffary, than merely to be in one's fenfes, free from the influence of popular madness and delufion.

ESSAY

IX.

OF SOME REMARKABLE CUSTOM S.

I

SHALL obferve three remarkable cuftoms in three celebrated governments; and fhall conclude from the whole, that all general maxims in politics ought to be established with great referve; and that irregular and extraordinary appearances are frequently difcovered in the moral, as well as in the phyfical world. The former, perhaps, we can better account for, after they happen, from springs and principles, of which every one has, within himfelf, or from obvious obfervation, the strongest affurance and conviction: But 'tis often fully as impoffible for human prudence, beforehand, to foresee and foretel them.

I. ONE would think it effential to every fupreme council or affembly, which debates, that entire liberty of speech fhould be granted to every member, and that all motions or reafonings fhould be received, which can any way tend to illuftrate the point under deliberation. One would conclude, with ftill greater afsurance, that, after a motion was made, which was voted and approved by that affembly 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 firft fight, appear more undisputable, than that he muft, at least, be fecured from all inferior jurifdiction; and that nothing less than the fame fupreme legislative affembly, in their fubfequent meetings, could render him accountable for thofe motions and harangues which they had before approved of. But these axioms, however irrefragable they may appear, have all failed in the ATHENIAN government, from caufes and principles too, which appear almoft inevitable.

Dd 2

By

By the yeaon ragavoμwv or indictment 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 paffed upon his motion, in the affembly of the people, if that law appeared to the court unjuft, or prejudicial to the public. Thus DEMOSTHENES, finding that ship-money was levied irregularly, and that the poor bore the fame 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 legiflature in ATHENS; the law paffed, and was carried into execution: And yet he was tried in a criminal court for that law, upon the complaint of the rich, who refented the alteration he had introduced into the finances †. He was indeed acquitted, upon proving anew the usefulness of this law.

CTESIPHON moved in the affembly of the people, that particular honors fhould be conferred on DEMOSTHENES, as on a citizen affectionate and useful to the commonwealth: The people, convinced of this truth, voted thofe honors: Yet was CTESIPHON tried by the ygaon тagavoμw. It was afferted, 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 himfelf; which he executed by that fublime piece of eloquence, that has ever fince been the admiration of mankind.

AFTER the fatal battle of CHARONEA, a law was paffed, upon the motion of HYPERIDES, giving liberty to flaves, and inrolling them in the troops On account of this law, the orator was afterwards tried by the indictment abovementioned; and defended himself, among other topics, by that ftroke celebrated by PLUTARCH and LONGINUS. It was not I, faid he, that moved for this law: It was the neceffities of war; it was the battle of CHARON EA. The orations of DEMOSTHENES abound with many inftances of trials of this nature; and prove clearly, that nothing was more commonly practifed.

THE ATHENIAN Democracy was fuch a mobbifh government, as we can scarce form a notion of in the prefent age of the world. The whole collective body of the people voted in every law, without any limitation of property, without any diftinction of rank, without control from any magiftracy or fenate ; and confequently with little regard to order, juftice, or prudence. The ATHENIANS foon became fenfible of the mifchiefs attending this conftitution: But being averfe to the checking themselves by any rule or reftriction, they refolved, at least, to check their demagogues or counsellors, by the fear of future punishment and inquiry. They accordingly inftituted this remarkable law; a law efteemed fo effential to their government, that ÆSCHINES infifts on it as a known truth, that were it abolished or neglected, it were impoffible for the Democracy to fubfift +.

THE

* His harangue for it is ftill extant; p - ftore the privilege of bearing offices to thofe who propices. had been declared incapable. Perhaps these were + Pro CTESIPHONTE. both clauses of the fame law.

PLUTARCHUS in vita decem oratorum. DEMOSTHENES gives a different account of this law. Contra ARISTOGITON. orat. II. He fays, That its purport was, to render the aviμs £7itiμos, or to re

The fenate of the Bean was only a lefs numerous mob, chofen by lot from among the people; and their authority was not great.

+In CTESIPHONTEM. Tis remarkable, that the

THE people feared not any ill confequences to liberty from the authority of the criminal courts; because these were nothing but very numerous juries, chofen by lot from among the people. And they confidered themfelves juftly as in a state of pupillage; where they had an authority, after they came to the use of reason, not only to retract and control whatever had been determined, but to punish any guardian for measures which they had embraced by his perfuafion. The fame law had place in THEBES *; and for the fame 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 fupport of shows and fpectacles, made it criminal fo much as to move for a reversement 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 attainder || were forbid, or laws. that affect one ATHENIAN, without extending to the whole commonwealth. These abfurd clauses, by which the legislature vainly attempted to bind itself for ever, proceeded from an univerfal fenfe of the levity and inconftancy of the people.

II. A WHEEL within a wheel, fuch as we obferve in the GERMAN empire, is confidered by Lord SHAFTSBURY + as an abfurdity in politics: But what must we say to two equal wheels, which govern the fame political machine, without any mutual check, control, or fubordination; and yet preferve the greatest harmony and concord? To establish two diftinct legislatures, each of which poffeffes full and abfolute authority within itself, and ftands in no need of the other's affiftance, in order to give validity to its acts; this may appear, beforehand, altogether impracticable, as long as men are actuated by the paffions of ambition, emulation, and avarice, which have been hitherto their chief governing principles. And fhould I affert, that the ftate I have in my eye was divided into two diftinct factions, each of which predominated in a diftinct legislature, and yet produced no clashing of these independent powers; the fuppofition may appear almoft incredible. And if, to augment the paradox, fhould affirm, that this disjointed, irregular government, was the most active, triumphant, and illuftrious commonwealth, that ever yet appeared on the stage of the world; I fhould certainly be told, that fuch a political chimera was as abfurd as any vision of the poets. But there is no need for searching long, in order to prove the reality of the foregoing fuppofitions: For this was actually the cafe 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 cenfus; fo that when the first class was unanimous, tho' it contained not, perhaps, the hundredth part of the commonwealth, it determined the whole; and,

the firft ftep after the diffolution of the Democracy by CRITIAS and the Thirty, was to annul the γραφη παρανόμων, as we learn from DEMOSTHENES xxтa Tuox. The orator in this oration gives us the words of the law, eftablishing the pan apareμw, pag. 297. ex edit. ALDI. And he accounts for it, from the fame principles that we here reason upon.

PLUT. in vita PELOP..

+ DEMOST. Olynth. 1. 2.

DEMOST. contra LEPT.

DEMOST. contra ARISTOCRATEM
Effay on the freedom of wit and humor,.

part 3. § 2.

with the authority of the fenate, eftablished a law. In the latter, every vote was alike; and as the authority of the fenate was not there requifite, the lower people entirely prevailed, and gave law to the whole state. In all party-divifions, at first betwixt the PATRICIANS and PLEBEIANS, afterwards betwixt the nobles and the people, the intereft of the Ariftocracy was predominant in the first legislature; that of the Democracy in the fecond: The one could always deftroy what the other had established: Nay, the one, by a fudden and unforeseen motion, might take the start of the other, and totally annihilate its rival, by a vote, which, from the nature of the conftitution, had the full authority of a law. But no fuch contest or ftruggle is obferved in the hiftory of ROME: No inftance of a quarrel betwixt these two legislatures; tho' many betwixt the parties that governed in each. Whence arofe this concord, which may feem fo extraordinary?

THE legislature established at RoME, by the authority of SERVIUS TULLIUS, was the comitia centuriata, which, after the expulfion of the kings, rendered the government, for fome time, altogether ariftocratical. But the people, having numbers and force on their fide, and being elated with frequent conquefts and victories in their foreign wars, always prevailed when pufhed to extremities, and first extorted from the fenate the magiftracy 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 befide the force which the latter were always poffeffed of, they had now got poffeffion of legal authority, and could inftantly break in pieces any order or inflitution which directly opposed them. By intrigue, by influence, by money, by combination, and by the refpect paid their character, the nobles might often prevail, and direct the whole machine of government: But had they openly fet their comitia centuriata in opposition to the tributa, they had foon loft the advantage of that inftitution, together with their confuls, praetors, ediles, and all the magiftrates elected by it. But the comitia tributa, not having the fame reafon for refpecting the centuriata, frequently repealed laws favorable to the Ariftocracy: They limited the authority of the nobles, protected the people from oppreffion, and controlled the actions of the fenate and magiftracy. The centuriata found it convenient always to fubmit; and tho' equal in authority, yet being inferior in power, durft never directly give any fhock to the other legislature, either by repealing its laws, or establishing laws, which, it forefaw, would foon be repealed by it.

No inftance is found of any oppofition or struggle between thefe comitia; except one flight attempt of this kind, mentioned by APPIAN in the 3d book of his civil wars. MARK ANTHONY, refolving 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 fenate. But affairs were then fallen into fuch confufion, and the ROMAN CONstitution was so near its final diffolution, that no inference can be drawn from fuch an expedient. This conteft, befides, was founded more on form than party. It was the fenate who ordered the comitia tributa, that they might obftruct the meeting of the centuriata, which, by the conftitution, or at leaft forms of the government, could alone difpofe of provinces.

CICERO was recalled by the comitia centuriata, tho' banished by the tributa, that is, by a plebifcitum. But his banishment, we may observe, never was confidered

as

as a legal deed, arifing from the free choice and inclination of the people. It was always afcribed to the violence alone of CLODIUS, and the disorders introduced by him into the government.

III. THE third cuftom which we propofed to obferve, regards ENGLAND; and tho' it be not fo important as those which we have pointed out in ATHENS and ROME, it is no lefs fingular and remarkable. 'Tis a maxim in politics, which we readily admit as undifputed and univerfal, That a power, however great, when granted by law to an eminent magiftrate, is not fo dangerous to liberty, as an authority, however inconfiderable, which he acquires from violence and ufurpation. For, befides that the law always limits every power which it bestows, the very receiving it as a conceffion eftablishes the authority whence it is derived, and preferves the harmony of the conftitution. By the fame right that one prerogative is affumed without law, another may also be claimed, and another, with ftill greater facility; while the first ufurpations both ferve as precedents to the following, and give force to maintain them. Hence the heroifm of HAMPDEN, Who fuftained the whole violence of royal profecution, rather than pay a tax of 20 fhillings not impofed 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 occafion, where the parliament has departed from this maxim; and that is, in the preffing of feamen. The exercife of an illegal power is here tacitly permitted in the crown; and tho' it has frequently been under deliberation, how that power might be rendered legal, and granted, under proper. restrictions, to the fovereign, no fafe expedient could ever be proposed for that purpose, and the danger to liberty always appeared greater from law than from ufurpation. While this power is exercifed to no other end than to man the navy, men willingly fubmit to it, from a fenfe of its use and neceffity; and the failors, who are alone affected by it, find no body to fupport them, in claiming the rights and privileges which the law grants, without diftinction, to all ENGLISH fubjects. But were this power, on any occafion, made an inftrument of faction or minifterial tyranny, the oppofite faction, and indeed all lovers of their country, would immediately take the alarm, and fupport the injured party; the liberty of ENGLISHMEN would be afferted; 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 fuch an authority, they would probably fall into one of thefe two inconveniencies: They would either bestow it under fo many reftrictions as would make it lofe its effects, by cramping the authority of the crown; or they would render it fo large and comprehenfive, as might give occafion to great abufes, for which we could, in that cafe, have no remedy. The very illegality of the power, at prefent, prevents its abuses, by affording so easy a remedy against them.

I PRETEND not, by this reafoning, to exclude all poffibility of contriving a regifter for feamen, which might man the navy, without being dangerous to liberty. I only obferve, that no fatisfactory fcheme of that nature has yet been proposed. Rather than adopt any project hitherto invented, we continue a practice feemingly the most abfurd and unaccountable. Authority, in times of full internal peace and concord, is armed againft law: A continued and open ufurpation in