Political discourses: By David Hume Esq.

DISCOURSE IX. Of some remarkable customs.

I SHALL observe three remarkable customs in three celebrated governments; and shall con|clude from the whole, that all general maxims in politics ought to be establish'd with great reserve, and that irregular and extraordinary appearances are frequently discover'd, 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, before hand, to foresee and foretell them.

I. ONE wou'd think it essential to every supreme council or assembly, which debates, that entire li|berty of speech shou'd be granted to every member, and that all motions or reasonings shou'd be re|ceiv'd, which can any way tend to illustrate the point under deliberation. One wou'd conclude, with still greater assurance, that, after a motion was made, which was voted and approv'd by that assembly, in which the legislature is lodg'd, the member, who made the motion, must, for ever, be

exempted from farther trial and enquiry. But no political maxim can, at first sight, appear more undisputable, than that he must, at least, be se|cur'd from all inferior jurisdiction; and that no|thing less, than the same supreme legislative as|sembly, in their subsequent meetings, cou'd render him accountable for those motions and harangues, which they had before approv'd of. But these ax|ioms, however irrefragable they may appear, have all fail'd in the Athenian government, from causes and principles too, which appear almost inevitable.

BY the 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉 or indictment of illegali|ty, (tho' it has not been remark'd by antiquaries or commentators) any man was try'd and punish'd, in a common court of judicature, for any law, which had pass'd upon his motion, in the assem|bly of the people, if that law appeared to the court unjust or prejudicial to the public. Thus Demo|sthenes, finding that ship money was levy'd irregu|larly, and that the poor bore the same burthen as the rich, in equipping the gallies, corrected this in|equality by a very useful law, which proportion'd the expence to the revenue and income of each in|dividual. He mov'd for this law in the assembly; he prov'd its advantages; * 1.1 he convinc'd the people, the only legislature in Athens; the law pass'd; and was carried into execution: And yet he was try'd in a criminal court for that law, upon the com|plaint

of the rich, who resented the alteration he had introduc'd into the finances. * 1.2 He was, in|deed, acquitted, upon proving anew the usefulness of his law.

Ctesiphon mov'd in the assembly of the people, that particular honours shou'd be conferr'd on De|mosthenes, as on a citizen affectionate and useful to the commonwealth: The people, convinc'd of this truth, voted those honours: Yet was Ctesiphon try'd by the 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. It was asserted, amongst other topics, that Demosthenes was not a good citi|zen, 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 Chaeronea, a law was past, upon the motion of Hyperides, giving liberty to slaves, and enrolling them in the troops. † 1.3 On account of this law, the orator was afterwards try'd by the indictment above mention'd; and defended himself, amongst other topics, by that stroke cele|brated by Plutarch and Longinus. It was not I,

said he, that mov'd for this law: It was the neces|sities of war; it was the battle of Chaeronea. The orations of Demosthenes abound with many instan|ces of trials of this nature, and prove clearly, that nothing was more commonly practis'd.

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 collec|tive body of the people voted in every law, with|out any limitation of property, without any distinc|tion of rank, without controul from any magistra|cy or senate; * 1.4 and consequently with little regard to order, justice, or prudence. The Athenians soon became sensible of the mischiefs attending this con|stitution: But being averse to the checking them|selves by any rule or restriction, they resolv'd, at least, to check their demagogues or counsellors, by the fear of future punishment and enquiry. They accordingly instituted this remarkable law; a law esteem'd so essential to their government, that Ae|schines insists on it, as a known truth, that were it abolish'd or neglected, it were impossible for the democracy to subsist. † 1.5

THE people fear'd not any ill consequences to liberty from the authority of the criminal courts; because these were nothing but very numerous ju|ries, chosen by lot from amongst the people. And they consider'd themselves justly as in a state of pu|pillage, where they had an authority, after they came to the use of reason, not only to retract and controul whatever had been determin'd, but to pu|nish any guardian for measures, which they had em|brac'd by his persuasion. The same law had place in Thebes; * 1.6 and for the same reason.

IT appears to have been an usual practice in A|thens, on the establishment of any law, esteem'd 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. † 1.7 Thus Leptines mov'd for a law, not only to recal all the immu|nities formerly granted, but to deprive the people for the future of the power of granting any more. ‡ 1.8 Thus all bills of attainder * 1.9 were forbid, or laws that affect one Athenian, without extending to the whole

commonwealth. These absurd clauses, by which the legislature vainly attempted to bind itself for e|ver, proceeded from an universal sense of the levity and inconstancy of the people.

II. A WHEEL within a wheel, such as we ob|serve in the German empire, is consider'd by lord Shaftsbury, † 1.10 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 vali|dity to its acts; this may appear, before hand, al|together impracticable, as long as men are actuat|ed by the passions of ambition, emulation, and ava|rice, which have been hitherto their chief govern|ing principles. And shou'd I assert, that the state I have in my eye was divided by two distinct fac|tions, each of which predominated in a distinct le|gislature, and yet produc'd no clashing of these in|dependent powers; the supposition may appear al|most incredible. And if, to augment the paradox, I shou'd affirm, that this disjointed, irregular go|vernment was the most active, triumphant, and il|lustrious commonwealth, that ever yet appear'd on

the stage of the world; I shou'd certainly be told, that such a political chimera was as absurd as any vision of the poets. But there is no need for search|ing long, in order to prove the reality of the fore|going suppositions: 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 accord|ingly to their census; so that when the first class was unanimous, (as commonly happen'd) tho' it con|tain'd not, perhaps, the hundredth part of the com|monwealth, it determin'd the whole; and with the authority of the senate, establish'd a law. In the latter, every vote was alike; and as the authority of the senate was not there requisite, the lower people entirely prevail'd, and gave law to the whole state. In all party divisions, at first betwixt the Pa|tricians and Plebeians, afterwards betwixt the nobles and the people, the interest of the Aristocracy was predominant in the first legislature; that of the De|mocracy in the second: The one cou'd always de|stroy what the other had establish'd: 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 constitu|tion, had the full authority of a law. But no such contest or struggle is observ'd in the history of Rome: No instance of a quarrel betwixt these two legisla|tures;

tho' many betwixt the parties, that govern'd in each. Whence arose this concord, which may seem so extraordinary?

THE legislature establish'd at Rome, by the au|thority of Servius Tullius, was the comitia centuri|ata, which, after the expulsion of the kings, ren|der'd the government, for some time, altogether a|ristocratical. But the people, having numbers and force on their side, and being elated with frequent conquests and victories in their foreign wars, always prevail'd when push'd to extremities, and first ex|torted from the senate the magistracy of the tri|bunes, and then the legislative power of the comitia tributa. It then behov'd the nobles to be more careful than ever not to provoke the people. For beside the force, which the latter were always pos|sest of, they had now got possession of legal autho|rity, and cou'd instantly break in pieces any order or institution, which directly oppos'd them. By intrigue, by influence, by money, by combinati|on, 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 oposition to the tributa, they had soon lost the advantage of that institution, along with their consuls, praetors, ediles, and all the magistrates elected by it. But the comitia tri|buta, not having the same reason for respecting the centuriata, frequently repeal'd laws favourable to

the aristocracy: They limited the authority of the nobles; protected the people from oppression; and controul'd the actions of the senate and magis|tracy. The centuriata found it convenient always to submit; and tho' 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, wou'd soon be repeal'd by it.

NO instance is found of any opposition or struggle betwixt these comitia; except one slight attempt of this kind, mention'd by Appian in the 3d book of his civil wars. Mark Anthony resolving to deprive Decimus Brutus of the government of Cisalpine Gaul, rail'd in the Forum, and call'd one of the comitia, in order to prevent the meeting of the o|ther, which had been order'd by the senate. But affairs were then fallen into such confusion, and the Roman constitution was so near its last extremity, that no inserence can be drawn from such an ex|pedient. This contest, besides, was founded more on form than party. 'Twas the senate, who order'd the comitia tributa, that they might obstruct the meeting of the centuriata, which, by the constitu|tion, or at least forms of the government, cou'd a|lone dispose of provinces.

Cicero was recall'd by the comitia centuriata; tho' banish'd by the tributa, that is, by a plebiscitum:

But his banishment, we may observe, never was consider'd as a legal deed, arising from the free choice and inclination of the people. It was al|ways ascrib'd to the violence alone of Clodius, and the disorders introduc'd by him into the govern|ment.

III. THE third custom we propos'd 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, how|ever great, when granted by law to an eminent magistrate, is not so dangerous to liberty, as an authority, however inconsiderable, which he ac|quires from violence and usurpation. For besides that the law always limits every power, which it bestows; the very receiving it as a concession e|stablishes the authority whence it is deriv'd, and preserves the harmony of the constitution. By the same right that one prerogative is assum'd without law, another may also be claim'd, and another, with still greater facility: While the first usurpa|tions both serve as precedents to the following, and give force to maintain them. Hence the heroism of Hampden, who sustain'd the whole violence of royal prosecution rather than pay a tax of 20 shil|lings, not impos'd by parliament: Hence the care of all English patriots to guard against the first en|croachments

of the crown: And hence alone the existence, at this day, of English liberty.

THERE is, however, one occasion, wherein the parliament has departed from this maxim; and that is, in the pressing of seamen. The exercise of an illegal power is here tacitly permitted in the crown; and tho' it has frequently been deliberat|ed on, how that power might be render'd legal, and under what restrictions it might be granted to the sovereign, no safe expedient cou'd ever be pro|pos'd for that purpose, and the danger to liberty always appear'd greater from law than from usur|pation. While this power is exercis'd 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 privi|leges, which the law grants, without distinction, to all English subjects. But were this power, on any occasion, made an instrument of faction or mi|nisterial tyranny, the opposite faction, and indeed all lovers of their country, wou'd immediately take the alarm, and support the injur'd party: The liberty of Englishmen wou'd be asserted: Juries wou'd be implacable; and the tools of tyranny, acting both against law and equity, wou'd meet with the severest vengeance. On the other hand, were the parliament to grant such an authority, they wou'd probably fall into one of these two incon|veniencies: They wou'd either bestow it under so

many restrictions as wou'd make it lose its effects, by cramping the authority of the crown; or they wou'd render it so large and comprehensive, as might give occasion to great abuses, for which we cou'd, in that case, have no remedy. The very illegality of the power, at present, prevents its a|buses, by affording so easy a remedy against them.

I PRETEND not, by this reasoning, to exclude all possibility of contriving a register for seamen, which might mann the navy, without being dange|rous to liberty. I only observe, that no satisfac|tory scheme of that nature has yet been propos'd. Rather than adopt any project hitherto invented, we continue a practice seemingly the most absurd and unaccountable. Authority, in times of full in|ternal peace and concord, is arm'd against law: A continu'd and open usurpation in the crown is permitted, amidst the greatest jealousy and watch|fulness in the people; nay proceeding from those very principles: Liberty, in a country of the high|est liberty, is left entirely to its own defence, with|out any countenance or protection: The wild state of nature is renew'd, in one of the most civiliz'd societies of mankind: And great violences and dis|orders, amongst the people, the most humane and the best natur'd, are committed with impunity; while the one party pleads obedience to the su|preme magistrate, the other the permission of fun|damental laws.

Notes

• * 1.1

  His harangue for it is still extant; 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
• * 1.2

  Pro Ctesiphonte.
• † 1.3

  Plutarch in vita decem oratorum. Demosthenes gives a different account of this law contra Aristogiton, orat. II. He says, that its purport was, to render the 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, or to restore the pri|vilege of bearing offices to those who had been declar'd incapable. Perhaps, these were both clauses of the same law.
• * 1.4

  THE senate of the Bean was only a less numerous mob, cho|sen by lot from among the people; and their authority was not great.
• † 1.5

  In Ctesiphontem. 'Tis remarkable, that the first step, after the dissolution of the democracy by Critias and the Thirty, was to annul the 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉; as we learn from Demosthenes 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. The orator in this oration gives us the words of the law, establishing the 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉. Page 297 ex edit. Aldi. And he accounts for it, from the same principles, that we here reason upon.
• * 1.6

  Plut. in vita Pelop.
• † 1.7

  Demost. Olynth. 1. 2.
• ‡ 1.8

  Demost. contra Lept.
• * 1.9

  Demost. contra Aristocratem.
• † 1.10

  ESSAY on the freedom of wit and humour. Part 3. sect. 2.