I confine thofe crimes that injure the public tranquil. lity to things that imply a single tranfgreffion against the civil adminiftration: for, as to thofe which, by disturbing the public tranquillity, attack at the fame time the fecurity of the fubject, they ought to be ranked in the fourth clafs.

The punishments inflicted upon the latter crimes are fuch as are properly diftinguished by that name. They are a kind of retaliation, by which the fociety refufes fecurity to a member, who has actually or intentionally deprived another of his fecurity. Thefe punishments are derived from the nature of the thing, founded on rea fon, and drawn from the very fource of good and evil. A man deferves death when he has violated the fecurity fo far as to deprive, or to attempt to deprive another man of his life. This punishment of death is the remedy, as it were, of a fick fociety. When there is a breach of fecurity in refpect to property, there may be fome reasons for inflicting a capital punishment: But it would be perhaps much better, and more natural, that crimes committed against the fecurity of property fhould be punished with the lofs of property; and this ought indeed to be the cafe, if mens fortunes were common or equal. But as thofe who have no property are generally the readieft to attack the property of others, it has been found neceffary, inftead of a pecuniary, to fubftitute a corporal punishment.

All that I have here advanced is founded in nature, and extremely favourable to the liberty of the fubject.

CHA P. V.

Of certain accufations that require particular moderation and

prudence.

IT is an important maxim, that we ought to be very circumfpect in the profecution of magic and herefy. The accufation of thefe two crimes may be vaftly injurious to liberty, and productive of an infinite number

of oppreffions, if the legiflator knows not how to fet bounds to it. For as it does not aim directly at a perfon's actions, but at his character, it grows dangerous in proportion to the ignorance of the people; and then a man is always in danger, becaufe the moft unexceptionable conduct, the pureft morals, and the conftant practice of every duty in life, are not a fufficient fecurity against the fufpicion of his being guilty of crimes like thefe.

Under Manuel Commenus, the proteftator

was ac

cufed of having confpired against the emperor, and of having employed for that purpose fome fecrets that render men invifible. It is mentioned in the life of this emperor, that Aaron was detected as he was poring over a book of Solomon's, the reading of which was fufficient to conjure up whole legions of devils. Now, by fuppofing a power in magic to arm all hell, people look upon a man whom they call a magician as the fitteft perfon in the world to trouble and fubvert fociety, and of course they are difpofed to punish him with the utmost feverity.

But their indignation increases when magic is fuppof ed to have a power of fubverting religion. The hiftory of Conftantinople † informs us, that in confequence of a revelation made to a bifhop of a miracle's having ceafed because of magical practices of a certain perfon, both that perfon and his fon were put to death. On how many furprifing things did this fingle crime depend! That revelations should not be uncommon, that the bishop should be favoured with one, that it was real, that there had been a miracle in the cafe, that this miracle had ceased, that there was an art magic, that magic could fubvert religion, that this particular perfon was a magician, and, in fine, that he had committed that action of magic.

The emperor Theodorus Lafcaris attributed his illness to magic. Those who were accused of this crime, had

Nicetas, life of Manuel Commenus, book 4.

+ Ibid.

‡ History of the Emperor Maurice, by Theophylactus, chap. 11.

no other refource left than to handle a hot-iron without being hurt. Thus among the Greeks a perfon ought to have been a magician to be able to clear himself of the imputation of magic. Such was the excefs of their fupidity, that, to the moft dubious crime in the world, they joined the most uncertain proofs.

Under the reign of Philip the Long, the Jews were expelled from France, being accufed of having poifoned the fprings with their lepers. So abfurd an accufation ought very well to make us doubt of all thofe that are founded on public hatred.

I have not here afferted that herefy ought not to be punished; I faid only that we ought to be extremely circumfpect in punishing it.

CHAP. VI.

Of the crime against nature.

OD forbid that I should have the leaft inclination

GOD

to diminish the horror people have for a crime which religion, morality and civil government equally condemn. It ought to be profcribed, were it only for its communicating to one fex the weakneffes of the other, and for leading people, by a scandalous prostitution of their youth to an ignominious old age. What I fhall fay concerning it will nowife diminish its infamy, being levelled only against the tyranny that may abuse the very horror we ought to have for the vice.

*

As the nature of this crime is fecrefy, there are frequent inftances of its having been punished by legislators, upon the depofition of a child. This was opening a very wide door to calumny. "Juftinian," fays Procopius "published a law against this crime; he ordered an en"quiry to be made, not only against those who were "guilty of it after the enacting of that law, but even before. The depofition of a fingle witnefs, fometimes

Secret history.

"of a child, fometimes of a flave, was fufficient, efpecially against fuch as were rich, and against those that "were of the green faction."

It was very odd that these three crimes, magic, here. fy, and that against nature, of which the firft might eafily be proved not to exift at all; the fecond to be fuf ceptible of an infinite number of diftinctions, interpretations, and limitations; the third to be often obfcure and uncertain; it is very odd, I fay, that these three crimes fhould amongst us be punished with fire.

I may venture to affirm, that the crime against nature will never make any great progrefs in fociety, unless people find themfelves induced to it in other refpects by fome particular custom; as among the Greeks, where the young people performed all their exercifes naked; as amongst us, where domeftic education is difused; as among the Afiatics, where particular perfons have a great number of women whom they despise, while others can have none at all. Let there be no cuftoms prepara tory to this crime; let it, like every other violation of morals, be feverely profcribed by the civil magistrate, and nature will foon be feen to defend or refume her rights. Nature, that tender, amiable, and loving parent, has ftrewed her pleasures with a bounteous hand, and while fhe fills us with delights, the prepares us for future fatisfactions of a more exquifite kind than those delights themselves,

IT

CHAP. VII.

Of the crime of high-treafon.

T is determined by the laws of China, that whofo, ever fhews any difrefpect to the emperor, is to be punished with death. As they do not mention in what this difrefpect confifts, every thing may furnish a pretext to take away a man's life, and to exterminate any family whatsoever.

Two perfons of that country, who were employed to write the court-gazette, having inferted fome circum

tances relating to a certain fact, that were not true; it was pretended, that to tell a lie in the court-gazette was a difrefpect thewn to the court, in confequence of which they were put to death. A prince of the blood having inadvertently made fome mark on a memorial figned with the red pencil by the emperor, it was determined that he had behaved difrefpectfully to that prince; which was the cause of one of the most terrible perfecutions againft that family that ever was recorded in history t.

If the crime of high-treafon be indeterminate, this alone is fufficient to make the government degenerate into arbitrary power. I shall defcant more largely on this fubject, when I come to treat of the compofition of laws.

CHAP. VIII.

Of the bad application of the name of Sacrilege and High

IT

treafon.

T is likewife a fhocking abufe to give the appellation of High-treafon to an action that does not deferve it. It was decreed by an imperial law §, that those who called in queftion the prince's judgment, or doubted of the merit of fuch as he had chofen for a public office, fhould be profecuted as guilty of fa crilege * Surely it was the cabinet-council and the favourites of the court who invented that crime. By another law it was determined, that whofoever made any attempt against the minifters and officers of the prince fhould be deemed guilty of high-treafon; as if

Father du Halde, tome i. p. 43.

+ Father Parennin in the edifying letters.

+ Book xxix.

Gratian, Valentian, and Theodofius. This is the fecond in the code de crum. facril.

"Sacrilegii inftar eft dubitare, an is dignus fit quem elegerit imperator. Ibid. This law was a model to that of Roger in

the conftitutions of Naples, tit. 4