CHAP. X.

Of the ancient French laws.

IN the ancient French laws we find the true fpirit of monarchy. In cafes relating to pecuniary punishments the common people are lefs feverely punished than the nobility *. But in criminal † cafes it is quite the reverfe; the nobleman lofes his honour and his voice in court, while the peafant, who has no honour to lose, undergoes a corporal punishment.

CHAP. XI.

That when a people are virtuous, few punishments are neceffary.

THE

HE people of Rome had fome fhare of probity. Such was the force of this probity, that the le giflator had frequently no farther occafion than to point out the right road, to induce them to follow it; one would imagine, that, inftead of precepts, it was fufficient to give them counfels.

The punishments of the regal laws, and thofe of the twelve tables, were almoft all abolished in the time of the republic, in confequence either of the Valerian §, or of the Porcian law ||. It was never obferved that

* Suppose, for instance, to prevent the execution of a decree, the common people paid a fine of forty sous, and the nobility of fixty livres. Somme Rurale, book ii. p. 198. edit. Got. 1512.

See the council of Peter Defotnaines, chap. 13. efpecially

art. 22.

§ It was made by Valerius Publicola, foon after the expulfion of the kings, and was twice renewed, both times by magiftrates of the fame family, as Livy obferves, 1. 10. The queftion was not to give it a greater force, but to render its injunctions more perfect; « diligentius fanctum," fays Livy, ibid.

"Lex Porcia pro tergo civium lata." It was made in the 454th year of the foundation of Rome.

this ftep did any manner of prejudice to the civil adminiftration.

This Valerian law, which prohibited the magiftrates from using any violent methods against a citizen that had appealed to the people, inflicted no other punishment on the perfon who infringed it, than that of being reputed a difhoneft man

CHA P. XII.

Of the power of punishments.

EXPERIENCE fhows, that in countries remarkable

for the lenity of penal laws, the spirit of the inhabitants is as much affected by them, as in other countries by feverer punishments.

If an inconveniency or abufe arifes in the flate, a violent government endeavours fuddenly to redrefs it, and, inflead of putting the old, laws in execution, it eftablishes fome cruel punishment which initantly puts a ftop to the evil. But the fpring of government is hereby weakened; the imagination grows accuftomed to the fevere as well as to the milder punishment; and, as the fear of the latter diminishes, they are foon obliged in every cafe to have recourfe to the other. Robberies on the high-way were grown common in fome countries; in order to remedy this evil, they invented the punishment of breaking upon the wheel, the terror of which put a stop for a while to this mifchievous practice, But foon after robberies on the high ways were become as

common as ever.

Defertion in our days was grown to very great height; in confequence of this it was judged proper to punith deferters with death; and yet their number did not diminish. The reafon is very natural; a foldier, accustomed daily to venture his life, defpises or affects to defpife the danger of lofing it. He is daily habituated to the fear of fhame; it would have therefore

"Nil ultra quam improbe factum adjecit." Liv.

been much better to have continued a punishment which branded him with infamy for life: The punishment was pretended to be increased, while it was really diminished.

Men must not be led by excess of violence; we ought to make a prudent use of the means which nature has given us to conduct them. If we enquire into the cause of all human corruptions, we shall find that they proceed from the impunity of crimes, and not from the moderation of punishments.

Let us follow nature, who has given fhame to man for his fcourge, and let the heaviest part of the punishment be the infamy attending it.

But, if there be fome countries where fhame is not a confequence of punishment, this must be owing to tyranny, which has inflicted the fame punishments on villains and honeft men.

And, if there are others where men are deterred only by cruel punishments, we may be fure that this muft in a great measure arife from the violence of the government, which has inflicted fuch punishments for flight tranfgreffions.

conveniences.

It often happens that a legiflator, defirous of reforming an evil, thinks of nothing but of this reformation; his eyes are open only to this object, and fhut to its inWhen the evil is redreffed, there is nothing more feen but the feverity of the legislator: yet there ftill remains an evil in the ftate that has sprung from this severity; the minds of the people are corrupted, and become habituated to defpotic power.

Lyfander having obtained a victory over the Athenians, the prifoners were ordered to be tried in confequence of an accufation brought againft the Athenians, of having thrown all the captives of two galleys down a precipice, and of having refolved in full affembly to cut off the hands of those whom they should chance to make prifoners. The Athenians were therefore all maffacred, except Adymantes who had opposed this decree. Lyfander reproached Philocles, before he was put to death,

- Xenoph. hift. lib. 12,

with having depraved the people's minds, and given leffons of cruelty to all Greece.

"The Argives," fays Plutarch * "having put fifteen "hundred of their citizens to death, the Athenians or"dered facrifices of expiation, that it might please the "gods to turn the hearts of the Athenians from fo cruel "a thought."

There are two forts of corruption; one, when the people do not obferve the laws; the other, when they are corrupted by the laws; an incurable evil, because it is in the very remedy itself.

CHA P. XIII.

Impotency of the Laws of Japan.

EXCESSIVE punishments may even corrupt a defpotic government: of this we have an inftance in Japan.

Here almoft all crimes are punished with death †, becaufe difobedience to fo great an emperor, as that of Japan, is reckoned an enormous crime. The question is not so much to correct the delinquent, as to vindicate the authority of the prince. Thefe notions are derived from fervitude, and are owing efpecially to this, that, as the emperor is univerfal proprietor, almoft all crimes are directly against his interefts.

They punish with death lies fpoken before the magiAtrates a proceeding contrary to natural defence.

Even things which have not the appearance of a crime are feverely punished: for inftance, a man that ventures his money at play is put to death.

It is true, that the furprising character of this obftinate, capricious, refolute, whimfical people, who defy

Morals of thofe who are intrufted with the direction of state

affairs.

↑ See Kempfer.

Collection of voyages that contributed to the establishment of the Eaft India Company, tome iii. p. 428.

all dangers and calamities, feems to abfolve their legislators from the imputation of cruelty, notwithstanding the feverity of their laws. But are men who have a natural contempt of death, and who rip open their bellies for the leaft fancy; are fuch men, I fay, mended or deterred, or rather are they not hardened by the continual fight of punishments?

The relations of travellers inform us, with refpect to the education of the Japanese, that children must be treated there with mildness, because they become hardened to punishment; that their flaves must not be too roughly used, because they immediately put themselves in a pofture of defence. Would not one imagine that they might easily have judged of the spirit which ought to reign in their political and civil government, from that which should prevail in their domeftic concerns?

A wife legislator would have endeavoured to reclaim people's minds by a juft temperature of punishments and rewards; by maxims of philofophy, morality, and religion, adapted to these characters; by a juft application of the rules of honour, and by the enjoyment of a conftant happiness and foft tranquillity of life. But thefe are fprings to which defpotic power is a ftranger; it may abuse itself, and that is all it can do; in Japan it has made its utmost effort, and has furpaffed even itself in cruelty.

As the minds of the people by this means grew wild and intractable, they were obliged to have recourfe to the most horrid feverity. This is the origin, this is the spirit of the laws of Japan. They had more fury however than force. They fucceeded in the extirpation of Chriftianity; but fuch unaccountable efforts are a proof of their impotence. They wanted to establish a good polity, and they have shown greater marks of their weakness.

We have only to read the relation of the enterview between the emperor and the deyro at Meaco *. The number of thofe who were fuffocated or murdered in that

* Collection of voyages that contributed to the establishment of the Eaft India Company, tome v. p. 2.