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people at large were considered and provided for:—no clause, even the most indirect, was inserted, either to gratify the present ambition, or favour the future views, of those who were personally concerned in bringing those acts to a conclusion. Indeed, if anything is capable of conveying to us an adequate idea of the soundness, as well as the peculiarity, of the principles on which the English Government is founded, it is the attentive perusal of the system of public compacts to which the revolution of the year 1689 gave rise, —of the Bill of Eights with all its different clauses, and of the several acts, which, till the accession of the House of Hanover, were made in order to strengthen it.
SECOND DIFFERENCE.—THE MANNER APTEE WHICH THE LAWS FOR THE LIBERTY OF THE SUBJECT ABE EXECUTED IN ENGLAND.
The second difference I mean to speak of between the English government and that of other free states, concerns the important object of the execution of the laws. On this article, also, we shall find the advantage to lie on the side of the English government; and, if we make a comparison between the history of those states, and that of England, it will lead us to the following observation, viz. that though in other free states the laws concerning the liberty of the citizens were imperfect, yet the execution of them was still more defective. In England, on the contrary, not only the laws for the security of the subject are very extensive in their provisions, but the manner in which they are executed carries these advantages still farther; and English subjects enjoy no less liberty from the spirit both of justice and mildness, by which all branches of the government are influenced, than from the accuracy of the laws themselves.
The Roman commonwealth will here again supply us with examples to prove the former part of the above assertion. When I said, in the foregoing chapter, that, in times of public commotion, no provisions were made for the body of the people, I meant no provisions that were likely to prove effectual in the event. When the people were roused to a certain degree, or when their concurrence was necessary to carry into effect certain resolutions, or measures, that were particularly interesting to the men in power, the latter could not, with any prudence, openly profess a contempt for the political wishes of the people; and some declarations expressed in general words, in favour of public liberty, were indeed added to the laws that were enacted on those occasions. But these declarations, and the principles which they tended to establish, were afterwards even openly disregarded in practice.
Thus, when the people were made to vote, about a year after the expulsion of the kings, that the regal government never should be again established in Rome, and that those who should endeavour to restore it should be devoted to the gods, an article was added, which, in general terms, confirmed to the citizens the right they had before enjoyed under the king, of appealing to the people from the sentences of death passed upon them. No punishment (which will surprise the reader) was decreed against those who should violate this law; and indeed the consuls, as we may see in Dionysius of Halicarnassus, and Livy, concerned themselves but little about the appeals of the citizens, and, in the more than military exercise of their functions, continued to sport with rights which they ought to have respected, however imperfectly and loosely they had been secured.
An article, to the same purport with the above, was afterwards also added to the laws of the Twelve Tables; but the decemvirs, to whom the execution of those laws was at first committed, behaved exactly in the same manner, and even worse than the consuls had done before them: and after they were expelled,* the magistrates who succeeded them appear to have been as little tender of the lives of the citizens. I shall, out of many instances, select one that will show upon what slight grounds the citizens were exposed
* At the time of the expulsion of the decemvirs, a law was also enacted, that no magistrate should be created from whom no appeal could be made to the people (magistratus sine provocatione: Tit. Liv. lib. iii. § 55); by which the people expressly meant to abolish the dictatorship: but this law was not better observed than the former ones had been.
SOMAN CEIMINAL LAWS.
to have their lives taken away. Spurius Mselius being accused of endeavouring to make himself king, was Summoned by the master of the horse to appear before the dictator, in order to clear himself of this somewhat extraordinary imputation. Spurius took refuge in the crowd; the master of the horse pursued him, and killed him on the spot. The people having thereupon expressed a great indignation, the dictator had them called to his tribunal, and declared that Spurius had been lawfully put to death, even though he might be innocent of the crime laid to his charge, for having refused to appear before the dictator when desired to do so by the master of the horse.*
About one hundred and forty years after the times we mention, the law concerning the appeal to the people was enacted for the third time. But we do not see that it was better observed in the sequel than it had been before: we find it frequently violated, after that period, by the different magistrates of the republic; and the senate itself, notwithstanding this same law, at times made formidable examples of the citizens. Of this we have an instance in the three hundred soldiers who had pillaged the town of Rhegiu m. The senate of its own authority ordered them all to be put to death. In vain did the tribune Flaccus remonstrate against so severe an exertion of public justice on Roman citizens; the senate, says Valerius Maximus, nevertheless persisted in its resolution.f
All these laws for securing the lives of the citizens had hitherto been enacted without any mention of a punishment against those who should violate them. At last the celebrated Lex Portia was passed, which subjected to banish
* Tumultuantem deinde multitudinem, incerta existimatione facti, ad concionem vocari jussit, et Mselium jure caesum pronunciavit, etiamsi regni crimine insons fuerit, qui vocatus a magistro equitum, ad dictatorem non venisset. Tit. Liv. lib. iv. § 15.
t Vol. Max. book ii. ch. 7. This author does not mention the precise number of those who were put to death on this occasion: he only says that they were executed fifty at a time, on different successive days ; but other authors make the number of them amount to four thousand. Livy speaks of a whole legion—" Legio Campana, qute Ehegium occupaverat, obsessa, deditione facta, securi percussa est." Tit. Liv. lib. xv. Epit. I have here followed Polybius, who says that only three hundred were taken and brought to Rome.
ment those who should cause a citizen to be scourged and put to death. From a number of instances posterior to this law, it appears that it was not better observed than those before it had been: Caius Gracchus, therefore, caused the Lex Sempronia to be enacted, by which a new sanction was given to it. But this second law did not secure his own life, and that of his friends, better than the Lex Porcia had done that of his brother, and those who had supported him: indeed, all the events which took place about those times rendered it manifest that the evil was such as was beyoud the power of any laws to cure. I shall here mention a fact which affords a remarkable instance of the wantonness with which the Roman magistrates had accustomed themselves to take away the lives of the citizens. A citizen named Memius, having put up for the consulship, and publicly canvassing for the same, in opposition to a man whom the tribune Saturninus supported, the latter caused him to be apprehended, and made him expire under blows in the public forum. The tribune even carried his insolence so far (as Cicero informs us) as to give to this act of cruelty, transacted in the presence of the whole people assembled, the outward form of a lawful act of public justice.*
Nor were the Roman magistrates satisfied with committing acts of injustice in their political capacity, and for the support of the power of that body of which they made a part. Avarice and private rapine were at last added to political ambition. The provinces were first oppressed and plundered. The calamity, in process of time, reached Italy itself, and the centre of the republic; till at last the Lex Calpurnia de repetundis was enacted to put a stop to it. By this law an
* The fatal forms of words (cruciatus carmina) used by the Roman magistrates when they ordered a man to be put to death, resounded (says Tully, in his speech for Rabirius) in the assembly of the people, in which the censors had forbidden the common executioner even to appear, /, lictor, colliga manus. Caput obnubito. Arbori infelici suspendiio.— Memius being a considerable citizen, as we may conclude from his canvassing with success for the consulship, all the great men in the republic took the alarm at the atrocious action of the tribune: the senate, the next day, issued out its solemn mandate, or form of words, to the consuls, to provide that the republic should receive no detriment; and the tribune was killed in a pitched battle that was fought at the foot of the Capitol.
action was given to the citizens and allies for the recovery of the money extorted from them by magistrates, or men in power; and the Lex Junia afterwards added the penalty of banishment to the obligation of making restitution.
But here another kind of disorder arose. The judges proved as corrupt as the magistrates had been oppressive. They equally betrayed, in their own province, the cause of the republic with which they had been entrusted; and rather chose to share in the plunder of the consuls, the praetors, and the proconsuls, than put the laws in force against them.
New expedients were therefore resorted to, in order to remedy this new evil. Laws were made for judging and punishing the judges themselves; and, above all, continual changes were made in the manner of composing their assemblies. But the malady lay too deep for common legal provisions to remedy. The guilty judges employed the same resources, in order to avoid conviction, as the guilty magistrates had done; and those continual changes, at which we are amazed, that were made in the constitution of the judiciary bodies* instead of obviating the corruption of the judges, only transferred to other men the profit arising from becoming guilty of it. It became a general complaint, so early as the times of the Gracchi, that no man, who had money to give, could be brought to punishment.f Cicero says, that in his time, the same opinion was universally
* The judges (over the assembly of whom the praetor usually presided) were taken from the body of the senate, till some years after the last Punic war; when the Lex Semprrmia, proposed by Caius S. Gracchus, enacted that they should in future be taken from the equestrian order. The consul Csepio procured afterwards a law to be enacted, by which the judges were to be taken from both orders equally. The Lek Servilia soon after put the equestrian order again in possession of the judgments; and, after some years, the Lex Lima restored them entirely to the senate. The Lex Plautia enacted afterwards, that the judges should be taken from the three orders,—the senatorian, equestrian, and plebeian. The Lex Cornelia, framed by the dictator Sylla, enacted again, that the judges should be entirely taken from the body of the senate. The Lex Aurelia ordered anew, that they should be taken from the three orders. Pompey made afterwards a change in their number (which he fixed at seventy-five), and in the manner of electing them. And lastly, Csesar restored the judgments to the order of the senate.
t App. de Bell. Civ.