CHAP. XI.

That when People are virtuous, few Punishments are necessary.

THE people of Rome had some share of probity. Such was the force of this probity, that the legislator had frequently no farther occasion than to point out the right road, and they were sure to follow it; one would imagine, that instead of precepts, it was sufficient to give them counsels. The punishments of the regal laws, and those of the twelve tables, were almost all abolished in the time of the republic, in consequence either of the Valerian, or of the Porcian law. It was never observed that this step did any manner of prejudice to the civil administration.

*

This Valerian law, which restrained the magistrates from using violent methods against a citizen that had appealed to the people, inflicted no other punishment on the person who infringed it, than that of being reputed a dishonest man.‡

CHAP. XII.

Of the Power of Punishments.

EXPERIENCE shews, that in countries remarkable for the lenity of their laws, the spirit of the inhabitants is as much affected by slight penalties, as in other countries by severer punishments.

If an inconveniency or abuse arises in the state, a violent government endeavours suddenly to redress it; and instead of putting the old laws in execution, it establishes some cruel punishment, which instantly puts a stop to the evil. But the spring of government hereby loses its elasticity; the imagination grows accustomed to the severe as well as the milder punishment; and as the fear of the latter diminishes, they

It was made by Valerius Publicola soon after the expulsion of the kings, and was twice renewed, both times by magistrates of the same family, as Livy observes, lib. 10. the question was not to give it a greater force, but to render its injunctions more perfect. Diligentius sunctum, says Livy, ibid.

Lex Porcia pro tergo civium lata. It was made in the 454th year

of the foundation of Rome.

1 Nihil ultra quam improbè factum adjecet, Liv.

VOL. I.

are soon obliged in every case to have recourse to the former. Robberies on the highway were grown common in some 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 mischievous practice. But soon after robberies on the highways became as common as ever.

Desertion in our days was grown to a very great height; in consequence of which it was judged proper to punish those delinquents with death; and yet their number did not diminish. The reason is very natural; a soldier, accustomed to venture his life, despises, or affects to despise, the danger of losing it. He is habituated to the fear of shame; it would have been therefore much better to have continued a punishment, which branded him with infamy for life: the penalty was pretended to be increased, while it really diminished.

*

Mankind must not be governed with too much severity; we ought to make a prudent use of the means which nature has given us to conduct them. If we inquire into the cause of all human corruptions, we shall find that they proceed from the impunity of criminals, and not from the moderation of punishments.

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

But if there be some countries where shame is not a consequence of punishment, this must be owing to tyranny, which has inflicted the same penalties on villains and honest men.

And if there are others where men are deterred only by cruel punishments, we may be sure that this must, in a great measure, arise from the violence of the government, which has used such penalties for slight transgressions.

It often happens that a legislator, desirous of remedying an abuse, thinks of nothing else; his eyes are open only to this object, and shut to its inconveniencies. When the abuse is redressed, you see only the severity of the legislator; yet there remains an evil in the state that has sprung from this severity; the minds of the people are corrupted, and become habituated to despotism.

Lysander having obtained a victory over the Athenians, the prisoners were ordered to be tried, in consequence of an accusation brought against that nation of having thrown all the captives of two gallies down a precipice, and of having resolved in full assembly to cut off the hands of those whom they should chance to make prisoners. The Athenians were therefore all massacred, except Adymantes, who had opposed

*They slit his nose, or cut off his ears. + Xenoph. hist. lib. 3.

this decree. Lysander reproached Phylocles, before he was put to death, with having depraved the people's minds, and given lessons of cruelty to all Greece.

"The Argives," says Plutarch, "having put fifteen hun"dred of their citizens to death, the Athenians ordered sacri"fices of expiation, that it might please the Gods to turn the "hearts of the Athenians from so cruel a thought."

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

CHAP. XIII.

Insufficiency of the Laws of Japan.

EXCESSIVE punishments may even corrupt a despotic government; of this we have an instance in Japan.

Here almost all crimes are punished with death, because disobedience to so 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. These notions are derived from servitude, and are owing especially to this, that as the emperor is universal proprietor, almost all crimes are directly against his interests.

They punish with death lies spoken before the magistrate; ‡ a proceeding contrary to natural defence.

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

True it is, that the character of this people, so amazingly obstinate, capricious, and resolute, as to defy all dangers and calamities, seems to absolve their legislators from the imputation of cruelty, notwithstanding the severity of their laws. But are men who have a natural contempt of death, and who rip open their bellies for the least fancy; are such men, I say, mended or deterred, or rather are they not hardened, by the continual prospect of punishments?

The relations of travellers inform us, with respect to the education of the Japanese, that children must be treated there with mildness, because they become hardened to punishment;

* Morals, of those who are intrusted with the direction of the state affairs. + See Kempfer.

↑ Collection of Voyages that contributed to the establishment of the East-India Company, tom. 3. p. 428.

that their slaves must not be too roughly used, because they. immediately stand upon their 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 domestic concerns?

A wise legislator would have endeavoured to reclaim people by a just temperature of punishments and rewards; by maxims of philosophy, morality and religion, adapted to those characters; by a proper application of the rules of honour, and by the enjoyment of ease and tranquillity of life. And should he have entertained any apprehension that their minds, being inured to the cruelty of punishments, would no longer be restrained by those of a milder nature, he would have conducted himself in another manner, and gained his point by degrees in particular cases, that admitted of any indulgence, he would have mitigated the punishment, till he should have been able to extend this mitigation to all cases.

But these are springs to which despotic power is a stranger; it may abuse itself, and that is all it can do: in Japan it has made its utmost effort, and has surpassed even itself in cruelty.

As the minds of the people grew wild and intractable, they were obliged to have recourse to the most horrid severity.

This is the origin, this the spirit of the laws of Japan. They had more fury, however, than force. They succeeded in the extirpation of Christianity; but such unaccountable efforts are a proof of their insufficiency. They wanted to establish a good polity, and they have shewn greater marks of their weakness.

We have only to read the relation of the interview between the Emperor and the Deyro at Meaco. The number of those who were suffocated or murdered in that city by ruffians, is incredible; young maids and boys were carried off by force, and found afterwards exposed in public places, at unseasonable hours, quite naked, and sown in linen bags, to prevent their knowing which way they had passed; robberies were committed in all parts; the bellies of horses were ripped open, to bring their riders to the ground; and coaches were overturned, in order to strip the ladies. The Dutch, who were told they could not pass the night on the scaffolds, without exposing themselves to the danger of being assassinated, came down, &c.

Let this be observed as a maxim in practice, with regard to cases where the minds of people have been depraved by too great a severity of punishments.

+ Collection of Voyages that contributed to the establishment of the East-India Company, tom. 5. p. 2.

I shall here give one instance more from the same nation. The Emperor having abandoned himself to infamous pleasures, lived unmarried, and was consequently in danger of dying without issue. The Deyro sent him two beautiful damsels; one he married out of respect, but would not meddle with her. His nurse caused the finest women of the empire to be sent for, but all to no purpose. At length, an armourer's daughter having pleased his fancy, he determined to espouse her, and had a son. The ladies belonging to the court, enraged to see a person of such mean extraction preferred to themselves, stifled the child. The crime was concealed from the emperor; for he would have deluged the land with blood. The excessive severity of the laws, hinders, therefore, their execution: when the punishment surpasses all measure, they are frequently obliged to prefer impunity to it.

CHAP. XIV.

Of the Spirit of the Roman Senate.

UNDER the consulate of Acilius Glabrio and Piso, the Acilian law was made to prevent the intriguing for places. Dio says, that the senate engaged the consuls to propose it, by reason that C. Cornelius, the tribune, had resolved to cause more severe punishments to be established against this crime; to which the people seemed greatly inclined. The senate rightly judged, that immoderate punishments would strike, indeed, a terror into people's minds, but must have also this effect, that there would be nobody afterwards to accuse or condemn; whereas, by proposing moderate penalties, there would be always judges and accusers.

CHAP. XV.

Of the Roman Laws in respect to Punishments.

I AM strongly confirmed in my sentiments, upon finding the Romans on my side; and I think that punishments are

Collection of Voyages that contributed to the establishment of the East-India Company, tom. 5. p. 2.

The guilty were condemned to a fine; they could not be admitted into the rank of senators, nor nominated to any public office. Dio, book 36.

Book 36.