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.