VI. or of the Porcian law t. It was never obferved Book that this step did any manner of prejudice to the Chap. 12. civil adminiftration. This Valerian law which inhibited the magiftrates from using any violent methods against a citizen that had appealed to the people, inflicted no other punishment on the perfon that infringed it, than that of being reputed a dishonest man (*). E CHAP. XII. Of the Power of Punishments. XPERIENCE fhews that in countries remarkable for the lenity of penal laws, the spirit of the inhabitants is as much thereby affected, as in other countries with feverer punishments. If an inconveniency or abuse arifes in the ftate, a violent government endeavours fuddenly to redrefs it; and instead of putting the old laws in execution, it establishes fome cruel punishment which inftantly puts a ftop to the evil. But the spring of government hereby lofes its elasticity; the imagination grows accustomed 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 some countries; in order to remedy this evil, they (a) Nibil ultra quàm improbè factum adjecit. Liv. giftrates of the fame family, as Livy obferves, 1. 10. the question + Lex Porcia pro tergo civium lata. year of the foundation of Rome. VI. Chap. 12. Boox invented the punishment of breaking upon the wheel, the terror of which put a stop for a while to this mischievous practice. But foon after robberies on the high-way became as common as ever. Desertion in our days was grown to a very great height; in confequence whereof it was judged proper to punish deserters with death; and yet the defertion did not diminish. The reafon is very natural; a foldier accustomed daily to venture his life, despises or affects to despise the danger of lofing it. He is daily habituated to the fear of fhame; it would have been therefore 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. If Men must not be led by excefs of violence; we ought to make a prudent ufe of the means which nature has given us to conduct them. we inquire into the cause of all human corrup tions; we fhall find that they proceed from the impunity of crimes, and not from the moderation of punishments. Let us follow nature, who has given shame 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 must in a great measure arife from the violence of the government, which has used fuch punishments for flight tranfgreffions. VI. It often happens that a legislator defirous of re- Book forming evil, thinks of nothing but of this refor- Chap. 12. mation; his eyes are open only to this object, and fhut to its inconveniences. When the evil is redreffed, there is nothing more seen but the severity of the legiflator; yet there ftill remains an evil in the ftate that has fprung from this severity; the minds of the people are corrupted, and become habituated to defpotic power. Lyfander () having obtained a victory over the Xe (b) Athenians, the prifoners were ordered to be tried noph. hift. in confequence of an accufation brought against the lib. 3. Athenians of having thrown all the captives of two gallies 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 oppofed this decree. Lyfander reproached Philocles, before he was put to death, with having depraved the people's minds and given leffons of cruelty to all Greece. who are in "The Argians, fays Plutarch (), having put fif-(e) Morals "teen hundred of their citizens to death, the Athenians of thofe "ordered facrifices of expiation, that it might trusted pleafe the Gods to turn the hearts of the Atbe- with the "nians from fo cruel a thought." direction of fate There are two forts of corruption; one when affairs. 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. Воок VI. Chap. 13. (*) See E CHAP. XIII. Impotency of the Laws of Japan. XCESSIVE punishments may even corrupt a defpotic government; of this we have an instance in Japan. Here almost all crimes are punished with death (d), Kempfer. by reafon that disobedience to fo great an emperor, as that of Japan, is reckoned an enormous crime. The question is not fo much to correct the delinquent, as to avenge the prince. Thefe notions are derived from fervitude, and are owing especially to this, that as the emperor is universal proprietor, almoft all crimes are directly against his interefts. They punish with death lies fpoken before the (*) Collec- magiftrates (*); a proceeding contrary to natural defence. tion of that con blishment voyages Even things which have not the appearance of tributed to a crime are severely punished; for instance, a man the efta- that ventures his money at play is put to death. of the True it is that the furprizing character of this Eaft India obftinate, capricious, refolute, whimfical people, who Company defy all dangers and calamities, feems to abfolve their Tom. 3. p. 428. legiflators from the imputation of cruelty, notwith standing the severity of their laws. But are people, who have a natural contempt of death, and who rip open their bellies for the leaft fancy, are mended or deterred, or rather are they not hardened, by the continual fight of pu fuch people, I fay, nishments? The relations of travellers inform us, with refpect to the education of the Japanese, that children must be treated there with mildnefs, because they VI. they become hardened to punishment; that their Book slaves must not be too roughly used, because they Chap. 13. immediately put themfelves in a pofture of defence. Would not one imagine that from the fpirit which fhould reign in their domeftic government, they might have judged of that which fhould prevail in the political and civil? 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 thefe characters, by a juft application of the rules of honor, and by the enjoyment of a constant happiness and foft tranquillity of life. But these are springs to which defpotic 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 furpaffed even itself in cruelty. As the fpirits of the people by this means grew wild and intractable, they were obliged to be managed with the most horrid severity. This is the origin, this 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 only fhewn greater marks of their weakness. that con (5) CollecWe have only to read the relation of the in- tion of terview between the emperor and the Deyro at Me- Voyages aco (f). The number of thofe that were fuffocated tributed to or murdered in that city by ruffians, is incredi- the eftable; young maids and boys were run away with, of the and found afterwards expofed in public places, Eaft India at unfeafonable hours, quite naked and fown in blishment Company.. Tom. 5. linen p. 2. |