connected with the nature of government, when I behold this great people changing, in this respect, their civil laws, in proportion as they altered their form of government. The regal laws made for fugitives, slaves and vagabonds, were very severe. The spirit of a republic would have required that the decemvirs should not have inserted those laws in their twelve tables; but men who aimed at tyranny, were far from conforming to a republican spirit. Livy says, in relation to the punishment of Metius Suffetius, dictator of Alba, who was condemned by Tullius Hostilius to be fastened to two chariots drawn by horses, and to be torn asunder; that this was the first and last punishment, in which the remembrance of humanity seemed to have been lost. He is mistaken; the twelve tables are full of very cruel laws.+ The design of the decemvirs appears more conspicuous in the capital punishment pronounced against libellers and poets. This is not agreeable to the genius of a republic, where the people like to see the great men humbled. aimed at the subversion of liberty, were afraid of writings that But persons who might revive its spirit.‡ After the expulsion of the decemvirs, almost all the penal laws were abolished. It is true, they were not expressly repealed; but as the Porcian law had ordained, that no citizen of Rome should be put to death, they were of no farther use. This is exactly the time to which we may refer what Livy says of the Romans, that no people were ever fonder of moderation in punishments. But if to the lenity of penal laws we add the right which the party accused had of withdrawing before judgment was pronounced, we shall find, that the Romans followed the spirit which I have observed to be natural to a republic. Sylla, who confounded tyranny, anarchy and liberty, made the Cornelian laws. He seemed to have contrived regulations, merely with a view to create new crimes. Thus distinguishing an infinite number of actions by the name of murder, he found murderers in all parts; and by a practice but too much followed, he laid snares, sowed thorns and opened precipices, wheresoever the citizens set their feet. Almost all Sylla's laws contained only the interdiction of * Lib. 1. + We find there the punishment of fire, and generally capital punishments, theft punished with death, &c. Sylla, animated with the same spirit as the decemvirs, followed their example, in augmenting the penal laws against satirical writers. Book fire and water. To this Cæsar added the confiscation of goods, because the rich, by preserving their estates in exile, became bolder in the perpetration of crimes. The emperors having established a military government, soon found that it was as terrible to the prince as to the subject; they endeavoured therefore to temper it, and with this view had recourse to dignities, and to the respect with which those dignities were attended. The government thus drew nearer a little to monarchy, and punishments were divided into three classes; those which related to the principal persons in the state, which were very mild; those which were inflicted on persons of an inferior rank,§ and were more severe; and, in fine, such as concerned only persons of the lowest condition, which were the most rigorous. Maximinus, that fierce, that stupid prince, increased the rigor of the military government which he ought to have softened. The senate were informed, says Capitolinus,¶ that some had been crucified, others exposed to wild beasts, or sowed up in the skins of beasts lately killed, without any manner of regard to their dignity. It seemed as if he wanted to exercise the military discipline, on the model of which he pretended to regulate the civil administration. In the consideration on the rise and declension of the Roman grandeur, we find in what manner Constantine changed the military despotism into a military and civil government, and drew nearer to monarchy. There we may trace the different revolutions of this state, and see how they fell from rigor to indolence, and from indolence to impunity. CHAP. XVI. Of the just Proportion betwixt Punishments and Crimes. IT is an essential point, that there should be a certain proportion in punishments, because it is essential that a great crime should be avoided rather than a smaller, and that which is more pernicious to society rather than that which is less. * Pœnas facinorum auxit, cum locupletes eò facilius scelere se obligarent, quod integris patrimoniis exularent. Suet. in Jul. Cæsare. + See the 3rd law,§ legis ad leg. Cornel, de Sicariis, and a vast number of others in the Digest and in the Codex. ↑ Sublimiores. Medios. Infimos leg. 3. § legis ad leg. Cornel. de Sicariis. "An impostor, who called himself Constantine Ducas, "raised a great insurrection at Constantinople. He was "taken and condemned to be whipt; but upon informing "against several persons of distinction, he was sentenced to "be burnt as a calumniator." It is very extraordinary, that they should thus proportion the punishments betwixt the crime of high treason and that of calumny. This puts me in mind of a saying of Charles II. king of Great Britain. He saw a man one day standing in the pillory; upon which he asked what crime the man had committed. He was answered, Please your majesty, he has wrote a libel against your ministers. The fool! said the king, why did he not write against me? they would have done nothing to him. "Seventy persons having conspired against the emperor "Basil; he ordered them to be whipt, and the hair of their "heads and beards to be burnt. A stag, one day, having taken "hold of him by the girdle with his horn, one of his retinue "drew his sword, cut the girdle, and saved him; upon which he "ordered that person's head to be cut off, for having, said he, "drawn his sword against his sovereign." Who could imagine that the same prince could ever have passed two such different judgments? It is a great abuse amongst us to condemn to the same punishment a person that only robs on the highway, and another who robs and murders. Surely, for the public security, some difference should be made in the punishment. In China, those who add murder to robbery, are cut in pieces; but not so the others; to this difference it is owing, that though they rob in that country, they never murder. In Russia, where the punishment of robbery and murder is the same, they always murder. The dead, say they, tell no tales. Where there is no difference in the penalty, there should be some in the expectation of pardon. In England they never murder on the highway, because robbers have some hopes of transportation, which is not the case in respect to those that commit murder. Letters of grace are of excellent use in moderate governments. This power which the prince has of pardoning, exercised with prudence, is capable of producing admirable effects. The principle of despotic government, which neither grants nor receives any pardon, deprives it of these advantages Hist. of Nicephorus, patriarch of Constantinople. + In Nicephorus's history. Present state of Russia by Perry, CHAP. XVII. Of the Rack. THE wickedness of mankind makes it necessary for the laws to suppose them better than they really are. Hence the deposition of two witnesses is sufficient in the punishment of all crimes. The law believes them, as if they spoke by the mouth of truth. Thus we judge, that every child conceived in wedlock is legitimate; the law having a confidence in the mother, as if she were chastity itself. But the use of the rack against criminals, cannot be defended on a like plea of neces sity. We have before us the example of a nation blessed with an excellent civil government, where without any inconveniency the practice of racking criminals is rejected. It is not, therefore, in its own nature necessary.† So many men of learning and genius have written against the custom of torturing criminals, that after them I durst not presume to meddle with the subject. I was going to say, that it might suit despotic states, where whatever inspires fear is the properest spring of government; I was going to say, that the slaves among the Greeks and Romans nature cries out aloud, and asserts her rights. -but CHAP. XVIII. Of pecuniary and corporal Punishments. OUR ancestors, the Germans, admitted of none but pecuniary punishments. Those free and warlike people were of * The English. + The citizens of Athens could not be put to the rack (Lysias, Orat. in Agorat.) unless it was for high treason. The torture was used within thirty days after condemnation. (Curius Fortunatus, Rhetor. Schol. lib. 2.) There was no preparatory torture. In regard to the Romans, the 3rd and 4th law ad leg. Juliam Majest. shews, that birth, dignity, and the military profession, exempted people from the rack, except in cases of high treason. See the prudent restrictions of this practice made by the laws of the Visigoths. opinion, that their blood ought not to be spilt but with sword in hand. On the contrary, these punishments are rejected by the Japanese,* under pretence that the rich might elude them. But are not the rich afraid of being stripped of their property? And might not pecuniary penalties be proportioned to people's fortunes? and in fine, might not infamy be added to those punishments? A good legislator takes a just medium; he ordains neither always pecuniary, nor always corporal punishments. CHAP. XIX. Of the Law of Retaliation. THE use of the law of retaliation † is very frequent in despotic countries, where they are fond of simple laws. Moderate governments admit of it sometimes; but with this difference, that the former exercise it in full rigour, whereas among the latter it ever receives some kind of limitation. The law of the twelve tables admitted two; first, it never condemned to retaliation, but when the plaintiff could not be satisfied in any other manner. Secondly, after condemnation they might pay damages and interest,§ and then the corporal was changed into a pecuniary punishment. || CHAP. XX. Of the Punishment of Fathers for the Crimes of their Children. IN China, fathers are punished for the crimes of their children. This was likewise the custom of Peru;¶ a custom derived from the notion of despotic power. Little does it signify to say, that in China the father is See Kempfer. + It is established in the Koran: See the chapter of the Cow. Si membrum rupit, ni cum eo pacit, talio esto. Aulus Gellius, lib. 20. cap. 1. § Ibid. See also the law of the Visigoths, book 6. tit. 4. § 3. and 5. |