Politics: A Treatise on Government

Book IV (continuación)

Now it is not easy to determine to whom we ought properly to give the name of magistrate, for a government requires many persons in office; but every one of those who is either chosen by vote or lot is not to be reckoned a magistrate. The priests, for instance, in the first place; for these are to be considered as very different from civil magistrates: to these we may add the choregi and heralds; nay, even ambassadors are elected: there are some civil employments which belong to the citizens; and these are either when they are all engaged in one thing, as when as soldiers they obey their general, or when part of them only are, as in governing the women or educating the youth; and also some economic, for they often elect corn-meters: others are servile, and in which, if they are rich, they employ slaves. But indeed they are most properly called magistrates, who are members of the deliberative council, or decide causes, or are in some command, the last more especially, for to command is peculiar to magistrates. But to speak truth, this question is of no great consequence, nor is it the province of the judges to decide between those who dispute about words; it may indeed be an object of speculative inquiry; but to inquire what officers are necessary in a state, and how many, and what, though not most necessary, may yet be advantageous in a well-established government, is a much more useful employment, and this with respect to all states in general, as well as to small cities.

In extensive governments it is proper to allot one employment to one person, as there are many to serve the public in so numerous a society, where some may be passed over for a long time, and others never be in office but once; and indeed everything is better done which has the whole attention of one person, than when that [1299b] attention is divided amongst many; but in small states it is necessary that a few of the citizens should execute many employments; for their numbers are so small it will not be convenient to have many of them in office at the same time; for where shall we find others to succeed them in turn? Small states will sometimes want the same magistrates and the same laws as large ones; but the one will not want to employ them so often as the other; so that different charges may be intrusted to the same person without any inconvenience, for they will not interfere with each other, and for want of sufficient members in the community it will be necessary. If we could tell how many magistrates are necessary in every city, and how many, though not necessary, it is yet proper to have, we could then the better know how many different offices one might assign to one magistrate. It is also necessary to know what tribunals in different places should have different things under their jurisdiction, and also what things should always come under the cognisance of the same magistrate; as, for instance, decency of manners, shall the clerk of the market take cognisance of that if the cause arises in the market, and another magistrate in another place, or the same magistrate everywhere: or shall there be a distinction made of the fact, or the parties? as, for instance, in decency of manners, shall it be one cause when it relates to a man, another when it relates to a woman?

In different states shall the magistrates be different or the same? I mean, whether in a democracy, an oligarchy, an aristocracy, and a monarchy, the same persons shall have the same power? or shall it vary according to the different formation of the government? as in an aristocracy the offices of the state are allotted to those who are well educated; in an oligarchy to those who are rich; in a democracy to the freemen? Or shall the magistrates differ as the communities differ? For it may happen that the very same may be sometimes proper, sometimes otherwise: in this state it may be necessary that the magistrate have great powers, in that but small. There are also certain magistrates peculiar to certain states--as the pre-advisers are not proper in a democracy, but a senate is; for one such order is necessary, whose business shall be to consider beforehand and prepare those bills which shall be brought before the people that they may have leisure to attend to their own affairs; and when these are few in number the state inclines to an oligarchy. The pre-advisers indeed must always be few for they are peculiar to an oligarchy: and where there are both these offices in the same state, the pre-adviser's is superior to the senator's, the one having only a democratical power, the other an oligarchical: and indeed the [1300a] power of the senate is lost in those democracies, in which the people, meeting in one public assembly, take all the business into their own hands; and this is likely to happen either when the community in general are in easy circumstances, or when they are paid for their attendance; for they are then at leisure often to meet together and determine everything for themselves. A magistrate whose business is to control the manners of the boys, or women, or who takes any department similar to this, is to be found in an aristocracy, not in a democracy; for who can forbid the wives of the poor from appearing in public? neither is such a one to be met with in an oligarchy; for the women there are too delicate to bear control. And thus much for this subject. Let us endeavour to treat at large of the establishment of magistrates, beginning from first principles. Now, they differ from each other in three ways, from which, blended together, all the varieties which can be imagined arise. The first of these differences is in those who appoint the magistrates, the second consists in those who are appointed, the third in the mode of appointment; and each of these three differ in three manners; for either all the citizens may appoint collectively, or some out of their whole body, or some out of a particular order in it, according to fortune, family, or virtue, or some other rule (as at Megara, where the right of election was amongst those who had returned together to their country, and had reinstated themselves by force of arms) and this either by vote or lot. Again, these several modes may be differently formed together, as some magistrates may be chosen by part of the community, others by the whole; some out of part, others out of the whole; some by vote, others by lot: and each of these different modes admit of a four-fold subdivision; for either all may elect all by vote or by lot; and when all elect, they may either proceed without any distinction, or they may elect by a certain division of tribes, wards, or companies, till they have gone through the whole community: and some magistrates may be elected one way, and others another. Again, if some magistrates are elected either by vote or lot of all the citizens, or by the vote of some and the lot of some, or some one way and some another; that is to say, some by the vote of all, others by the lot of all, there will then be twelve different methods of electing the magistrates, without blending the two together. Of these there are two adapted to a democracy; namely, to have all the magistrates chosen out of all the people, either by vote or lot, or both; that is to say, some of them by lot, some by vote. In a free state the whole community should not elect at the same time, but some out of the whole, or out of some particular rank; and this either by lot, or vote, or both: and they should elect either out of the whole community, or out of some particular persons in it, and this both by lot and vote. In an oligarchy it is proper to choose some magistrates out of the whole body of the citizens, some by vote, some by lot, others by both: by lot is most correspondent to that form of government. In a free aristocracy, some magistrates [1300b] should be chosen out of the community in general, others out of a particular rank, or these by choice, those by lot. In a pure oligarchy, the magistrates should be chosen out of certain ranks, and by certain persons, and some of those by lot, others by both methods; but to choose them out of the whole community is not correspondent to the nature of this government. It is proper in an aristocracy for the whole community to elect their magistrates out of particular persons, and this by vote. These then are all the different ways of electing of magistrates; and they have been allotted according to the nature of the different communities; but what mode of proceeding is proper for different communities, or how the offices ought to be established, or with what powers shall be particularly explained. I mean by the powers of a magistrate, what should be his particular province, as the management of the finances or the laws of the state; for different magistrates have different powers, as that of the general of the army differs from the clerk of the market.

CHAPTER XVI

Of the three parts of which a government is formed, we now come to consider the judicial; and this also we shall divide in the same manner as we did the magisterial, into three parts. Of whom the judges shall consist, and for what causes, and how. When I say of whom, I mean whether they shall be the whole people, or some particulars; by for what causes I mean, how many different courts shall be appointed; by how, whether they shall be elected by vote or lot. Let us first determine how many different courts there ought to be. Now these are eight. The first of these is the court of inspection over the behaviour of the magistrates when they have quitted their office; the second is to punish those who have injured the public; the third is to take cognisance of those causes in which the state is a party; the fourth is to decide between magistrates and private persons, who appeal from a fine laid upon them; the fifth is to determine disputes which may arise concerning contracts of great value; the sixth is to judge between foreigners, and of murders, of which there are different species; and these may all be tried by the same judges or by different ones; for there are murders of malice prepense and of chance-medley; there is also justifiable homicide, where the fact is admitted, and the legality of it disputed.

There is also another court called at Athens the Court of Phreattae, which determines points relating to a murder committed by one who has run away, to decide whether he shall return; though such an affair happens but seldom, and in very large cities; the seventh, to determine causes wherein strangers are concerned, and this whether they are between stranger and stranger or between a stranger and a citizen. The eighth and last is for small actions, from one to five drachma's, or a little more; for these ought also to be legally determined, but not to be brought before the whole body of the judges. But without entering into any particulars concerning actions for murder, and those wherein strangers are the parties, let us particularly treat of those courts which have the jurisdiction of those matters which more particularly relate to the affairs of the community and which if not well conducted occasion seditions and commotions in the state. Now, of necessity, either all persons must have a right to judge of all these different causes, appointed for that purpose, either by vote or lot, or all of all, some of them by vote, and others by lot, or in some causes by vote, in others by lot. Thus there will be four sorts of judges. There [1301a] will be just the same number also if they are chosen out of part of the people only; for either all the judges must be chosen out of that part either by vote or lot, or some by lot and some by vote, or the judges in particular causes must be chosen some by vote, others by lot; by which means there will be the same number of them also as was mentioned. Besides, different judges may be joined together; I mean those who are chosen out of the whole people or part of them or both; so that all three may sit together in the same court, and this either by vote, lot, or both. And thus much for the different sorts of judges. Of these appointments that which admits all the community to be judges in all causes is most suitable to a democracy; the second, which appoints that certain persons shall judge all causes, to an oligarchy; the third, which appoints the whole community to be judges in some causes, but particular persons in others, to an aristocracy or free state.

Book V

CHAPTER I

We have now gone through those particulars we proposed to speak of; it remains that we next consider from what causes and how alterations in government arise, and of what nature they are, and to what the destruction of each state is owing; and also to what form any form of polity is most likely to shift into, and what are the means to be used for the general preservation of governments, as well as what are applicable to any particular state; and also of the remedies which are to be applied either to all in general, or to any one considered separately, when they are in a state of corruption: and here we ought first to lay down this principle, that there are many governments, all of which approve of what is just and what is analogically equal; and yet have failed from attaining thereunto, as we have already mentioned; thus democracies have arisen from supposing that those who are equal in one thing are so in every other circumstance; as, because they are equal in liberty, they are equal in everything else; and oligarchies, from supposing that those who are unequal in one thing are unequal in all; that when men are so in point of fortune, that inequality extends to everything else. Hence it follows, that those who in some respects are equal with others think it right to endeavour to partake of an equality with them in everything; and those who are superior to others endeavour to get still more; and it is this more which is the inequality: thus most states, though they have some notion of what is just, yet are almost totally wrong; and, upon this account, when either party has not that share in the administration which answers to his expectations, he becomes seditious: but those who of all others have the greatest right to be so are the last that are; namely, those who excel in virtue; for they alone can be called generally superior. There are, too, some persons of distinguished families who, because they are so, disdain to be on an equality with others, for those esteem themselves noble who boast of their ancestors' merit and fortune: these, to speak truth, are the origin and fountain from whence seditions arise. The alterations which men may propose to make in governments are two; for either they may change the state already established into some other, as when they propose to erect an oligarchy where there is a democracy; or a democracy, or free state, where there is an oligarchy, or an aristocracy from these, or those from that; or else, when they have no objection to the established government, which they like very well, but choose to have the sole management in it themselves; either in the hands of a few or one only. They will also raise commotions concerning the degree in which they would have the established power; as if, for instance, the government is an oligarchy, to have it more purely so, and in the same manner if it is a democracy, or else to have it less so; and, in like manner, whatever may be the nature of the government, either to extend or contract its powers; or else to make some alterations in some parts of it; as to establish or abolish a particular magistracy, as some persons say Lysander endeavoured to abolish the kingly power in Sparta; and Pausanias that of the ephori. Thus in Epidamnus there was an alteration in one part of the constitution, for instead of the philarchi they established a senate. It is also necessary for all the magistrates at Athens; to attend in the court of the Helisea when any new magistrate is created: the power of the archon also in that state partakes of the nature of an oligarchy: inequality is always the occasion of sedition, but not when those who are unequal are treated in a different manner correspondent to that inequality. Thus kingly power is unequal when exercised over equals. Upon the whole, those who aim after an equality are the cause of seditions. Equality is twofold, either in number or value. Equality in number is when two things contain the same parts or the same quantity; equality in value is by proportion as two exceeds one, and three two by the same number-thus by proportion four exceeds two, and two one in the same degree, for two is the same part of four that one is of two; that is to say, half. Now, all agree in what is absolutely and simply just; but, as we have already said they dispute concerning proportionate value; for some persons, if they are equal in one respect, think themselves equal in all; others, if they are superior in one thing, think they may claim the superiority in all; from whence chiefly arise two sorts of governments, a democracy and an oligarchy; for nobility and virtue are to be found only [1302a] amongst a few; the contrary amongst the many; there being in no place a hundred of the first to be met with, but enough of the last everywhere. But to establish a government entirely upon either of these equalities is wrong, and this the example of those so established makes evident, for none of them have been stable; and for this reason, that it is impossible that whatever is wrong at the first and in its principles should not at last meet with a bad end: for which reason in some things an equality of numbers ought to take place, in others an equality in value. However, a democracy is safer and less liable to sedition than an oligarchy; for in this latter it may arise from two causes, for either the few in power may conspire against each other or against the people; but in a democracy only one; namely, against the few who aim at exclusive power; but there is no instance worth speaking of, of a sedition of the people against themselves. Moreover, a government composed of men of moderate fortunes comes much nearer to a democracy than an oligarchy, and is the safest of all such states.

CHAPTER II