SECTION 13
There is no disorder or prejudice in changing the name or number of Magistrates, whilst the root and principle of their Power continues entire.

IN the next place our author would persuade us that the Romans were inconstant, because of their changes from annual consuls to military tribunes, decemviri, and dictators; and gives the name of sedition to the complaints made against usury, or the contests concerning marriages or magistracy: but I affirm,

1. That no change of magistracy, as to the name, number, or form, doth testify irregularity, or bring any manner of prejudice, as long as it is done by those who have a right of doing it, and he or they who are created continue within the power of the law to accomplish the end of their institution; many forms being in themselves equally good, and may be used as well one as another, according to times and other circumstances.

2. In the second place, 'tis a rare thing for a city at the first to be rightly constituted: Men can hardly at once foresee all that may happen in many ages, and the changes that accompany them ought to be provided for. Rome in its foundation was subject to these defects, and the inconveniences arising from them were by degrees discover'd and remedi'd. They did not think of regulating usury, till they saw the mischiefs proceeding from the cruelty of usurers; or setting limits to the proportion of land that one man might enjoy, till the avarice of a few had so far succeeded, that their riches were grown formidable, and many by the poverty to which they were reduced became useless to the city. It was not time to make a law that the plebeians might marry with the patricians, till the distinction had raised the patricians to such pride, as to look upon themselves to have something of divine, and the others to be inauspicati or profane, and brought the city into danger by that division; nor to make the plebeians capable of being elected to the chief magistracies, till they had men able to perform the duties of them. But these things being observed, remedies were seasonably applied without any bloodshed or mischief, tho not without noise and wrangling.

3. All human constitutions are subject to corruption, and must perish, unless they are timely renewed, and reduced to their first principles: This was chiefly done by means of those tumults which our author ignorantly blames: The whole people by whom the magistracy had been at first created, executed their power in those things which comprehend sovereignty in the highest degree, and brought everyone to acknowledge it: There was nothing that they could not do, who first conferr'd the supreme honours upon the patricians, and then made the plebeians equal to them. Yet their modesty was not less than their power or courage to defend it: and therefore when by the law they might have made a plebeian consul, they did not chuse one in forty years; and when they did make use of their right in advancing men of their own order, they were so prudent, that they cannot be said to have been mistaken in their elections three times, whilst their votes were free: whereas, of all the emperors that came in by usurpation, pretence of blood from those who had usurped, or that were set up by the soldiers, or a few electors, hardly three can be named who deserved that honour, and most of them were such as seemed to be born for plagues to mankind.

4. He manifests his fraud or ignorance in attributing the legislative power sometimes to the senate, and sometimes to the people; for the senate never had it. The style of senatus censuit, populus jussit,[1] was never alter'd; but the right of advising continuing in the senate, that of enacting ever continued in the people.

5. An occasion of commending absolute power, in order to the establishment of hereditary monarchy, is absurdly drawn from their custom of creating a dictator in time of danger; for no man was ever created, but such as seemed able to bear so great a burden, which in hereditary governments is wholly left to chance. Tho his power was great, it did arise from the law; and being confin'd to six months, 'twas almost impossible for any man to abuse it, or to corrupt so many of those who had enjoy'd the same honour, or might aspire to it, as to bring them for his pleasure to betray their country: and as no man was ever chosen who had not given great testimonies of his virtues, so no one did ever forfeit the good opinion conceived of him. Virtue was then honour'd, and thought so necessarily to comprehend a sincere love and fidelity to the commonwealth, that without it the most eminent qualities were reputed vile and odious; and the memory of former services could no way expiate the guilt of conspiring against it. This seeming severity was in truth the greatest clemency: for tho our author has the impudence to say, that during the Roman liberty the best men thrived worst, and the worst best,[2] he cannot allege one example of any eminent Roman put to death (except Manlius Capitolinus) from the expulsion of the Tarquins to the time of the Gracchi, and the Civil Wars not long after ensuing; and of very few who were banished. By these means crimes were prevented; and the temptations to evil being removed, treachery was destroy'd in the root; and such as might be naturally ambitious, were made to see there was no other way to honour and power than by acting virtuously.

But lest this should not be sufficient to restrain aspiring men, what power soever was granted to any magistrate, the sovereignty still remained in the people, and all without exception were subject to them. This may seem strange to those who think the dictators were absolute, because they are said to have been sine provocation;[3] but that is to be only understood in relation to other magistrates, and not to the people, as is clearly proved in the case of Q. Fabius, whom Papirius the dictator would have put to death: Tribunos plebis appello, says Fabius Maximus his father, & provoco ad populum, eumque tibi fugienti exercitus tui, fugienti senatus judicium, judicem fero; qui certe unus plusquam tua dictatura potest polletque: videro, cessurusne sis provocationi, cui Tullus Hostilius cessit.[4] And tho the people did rather intercede for Fabius than command his deliverance, that modesty did evidently proceed from an opinion that Papirius was in the right; and tho they desired to save Fabius, who seems to have been one of the greatest and best men that ever the city produced, they would not enervate that military discipline, to which they owed, not only their greatness, but their subsistence; most especially when their sovereign authority was acknowledged by all, and the dictator himself had submitted. This right of appeals to the people was the foundation of the Roman commonwealth, laid in the days of Romulus, submitted to by Hostilius in the case of Horatius,[5] and never violated, till the laws and the liberty which they supported were overthrown by the power of the sword. This is confirmed by the speech of Metellus the tribune, who in the time of the second Carthaginian War, causelessly disliking the proceedings of Q. Fabius Maximus then dictator, in a publick assembly of the people said, Quod si antiquus animus plebi Romanae esset, se audacter laturum de abrogando Q. Fabii imperio; nunc modicam rogationem promulgaturum, de aequando magistri equitum & dictatoris jure:[6] which was done, and that action, which had no precedent, shews that the people needed none, and that their power being eminently above that of all magistrates was obliged to no other rule than that of their own will. Tho I do therefore grant that a power like to the dictatorian, limited in time, circumscribed by law, and kept perpetually under the supreme authority of the people, may, by virtuous and well-disciplin'd nations, upon some occasions, be prudently granted to a virtuous man, it can have no relation to our author's monarch, whose power is in himself, subject to no law, perpetually exercised by himself, and for his own sake, whether he have any of the abilities required for the due performance of so great a work, or be entirely destitute of them; nothing being more unreasonable than to deduce consequences from cases, which in substance and circumstances are altogether unlike: but to the contrary, these examples shewing that the Romans, even in the time of such magistrates as seemed to be most absolute, did retain and exercise the sovereign power, do most evidently prove that the government was ever the same remaining in the people, who without prejudice might give the administration to one or more men as best pleased themselves, and the success shews that they did it prudently.

[1] []

[2] [Patriarcha, ch. 18.]

[3] []

[4] T. Liv. 1. 8. [Livy, History of Rome, bk. 8, ch. 33.]

[5] T. Liv. I. 1. [Ibid., bk. 1, ch. 26.]

[6] T. Liv. I. 22. [Ibid., bk. 22, ch. 25.]


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