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VI.

BOOK linen bags, to prevent their knowing which way Chap. 14. they had paffed; robberies were committed in all parts, the bellies of horfes 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 fcaffolds without being affaffinated, came down, &c.

I fhall give here one inftance more from the fame nation. The emperor having abandoned himself to infamous pleasures, lived unmarried, and was confequently in danger of dying without iffue. The Deyro fent him two beautiful young virgins; one he married out of refpect, but would not meddle with her. His nurfe caused the finest women of the empire to be sent for, but all to no purpose. At length an armo(*) Ibid. rer's daughter having pleafed his fancy (8); he determined to marry her, and had a fon. The ladies belonging to court, enraged to fee a perfon of fuch mean extraction preferred to themselves, ftifled the child. The crime was concealed from the emperor; for he would have spilt a torrent of blood. The exceffive feverity of the laws hinders therefore their execution: when the punishment furpaffes all measure, they are frequently obliged to prefer impunity to it.

CHAP. XIV.

Of the Spirit of the Roman Senate.

NDER the confulate of Alius Glabrio

UN

and Pifo, the Acilian law was made to

*Those that were guilty were condemned to a fine, they could not be admitted into the rank of fenators, nor nominated to any public office. Dio Book 36.

prevent

VI.

prevent the intriguing for places. Dio fays (b) that Book the fenate engaged the confuls to propose it, by rea- Chap. 15. fon that C. Cornelius the tribune had refolved to (b) Book cause most severe punishments to be established 36. against this crime; to which the people feemed greatly inclined. The fenate rightly judged that immoderate punishments would strike indeed a great terror into people's minds, but would have alfo this effect, that there would be no body afterwards to accuse or condemn; whereas by propofing moderate punishments there would be always both judges and accufers.

CHAP. XV.

Of the Roman Laws in respect to Punishments.

I

AM ftrongly confirmed in my fentiments upon finding the Romans on my fide, and I think that punishments are connected with the nature of the government, when I behold this great people changing in this refpect their civil laws in proportion as they altered their form of government.

The regal laws made for a multitude composed of fugitives, flaves, and vagabonds, were very fevere. The spirit of the republic would have required that the decemvirs fhould not have inferted thofe laws in their twelve tables but men who aimed at tyranny were far from conforming to a republican spirit.

;

Livy (i) fays in relation to the punishment of (i) Lib. 1. Metius Suffetius, dictator of Alba, who was condemned by Tullus Hoftilius to be pulled to pieces by two chariots, that this was the first and last punishment in which the remembrance of huma

VI.

Book nity feemed to have been loft. He is mistaken the law of the twelve tables is full of very cruel punishments*.

Chap. 15.

The defign of the decemvirs appears most confpicuous 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. But perfons that aimed at the fubverfion of liberty, were afraid of writings that might revive its spirit t.

After the expulfion of the decemvirs, almost all the penal laws were abolished. It is true they were not exprefly repealed; but as the Porcian law had ordained that no citizen of Rome should be put to death, they were of no further use.

This is exactly the time to which we may re(1) Book 1. fer what Livy fays (*) of the Romans, that no people were ever fonder of moderation in punishments.

But if to the lenity of punishments we add the right which the party accused had of withdrawing before judgment was pronounced, we shall find that the Romans had followed the spirit which I have obferved to be natural to a republic.

Sylla who confounded tyranny, anarchy, and liberty, made the Cornelian laws. He feemed to have contrived regulations merely with a view to create new crimes. Thus diftinguishing 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 fnares, fowed thorns, and

* We find there the punishment of fire, and almost always capital punishments, robbery punished with death, &c.

Sylla animated with the fame fpirit as the decemvirs followed their example in augmenting the penal laws against fatyrical writers.

opened

opened precipices, wherefoever the citizens fet Boox their feet.

Almost all Sylla's laws contained only the interdiction of fire and water. To this Cæfar added the confiscation of goods*, because the rich by preferving their eftates in exile, became thereby the bolder in the perpetration of crimes.

The emperors having established a military government, foon found that it was as terrible to themselves as to the subjects; they endeavoured therefore to temper it, and with this view they had recourse to dignities and to the refpect with which those dignities were attended.

VI.

Chap. 15.

The government thus drew nearer a little to monarchy, and punishments were divided into three claffes (); thofe which related to the principal per- (1)See the fons in the state (m), which were very mild; thofe 3d law. which were inflicted on perfons of an inferior leg. CorLegis ad rank ("), and were more fevere; and in fine fuch nel. de Sias concerned only perfons of the loweft condi-cariis, and tion (°), which were the moft rigorous.

a vaft
number of

miores.

The fierce and fenfelefs Maximinus inflamed, as others in the Digeft it were, the military government which he ought and in the to have foftened. The fenate were informed, fays Codex. Capitolinus (P), that fome had been crucified, others (m) Subliexposed to wild beafts, or fowed up in the fkins of () Medios. beasts lately killed, without any manner of regard (9) Infimos to their dignity. It feemed as if he wanted to ex-legis ad leg. 3. §. ercise the military difcipline, on the model of which leg. Corhe pretended to regulate the civil adininiftration. - cariis.

nel. de Si

In the confiderations on the rife and declension of (P) Jul. the Roman grandeur, we may fee, in what manner Cap. Max

* Pœnas facinorum auxit, cum locupletes eò facilius fcelere fe obligarent, quod integris patrimoniis exularent. Sueton. in Jul. Cafare.

imini duo.

VOL. I.

K

Conftantine

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VI.

Book Conftantine changed the military defpotifm into a Chap. 16. military and civil power, and brought the government nearer to Monarchy. There we may trace the different revolutions of this ftate, and fee in what manner they fell from rigor to indolence, and from indolence to impunity.

(9) Hift. of

rus, patri

CHAP. XVI.

Of the juft Proportion betwixt Punishments and
Crimes.

IT

T is an effential point that there should be a certain proportion in punishments, because it is effential that a great crime fhould be avoided rather than a leffer, and that which is more pernicious to fociety rather than that which is lefs.

"An impoftor (9), who called himself ConftanNicepho- tine Ducas, raised a great tumult at Conftanti"nople. He was taken and condemned to be Conftan-whipt; "whipt; but upon informing against several per

arch of

tinople.

"fons of diftinction he was condemned as a ca"lumniator to be burnt." It is very extraordinary that they had thus proportioned the punishments betwixt the crime of high-treafon and that of calumny.

This puts me in mind of a faying of Charles II. king of England. He faw a man one day ftanding in the pillory; upon which he asked what crime the man had committed. He was anfwered, Pleafe your majefty be has wrote fome fatyrical pieces against your minifters. The fool! faid the king, why did not be write against me? they would have done nothing to him.

(") In Ni-cc cephorus's history.

"Seventy persons had confpired against the emperor Bafil ('); he ordered them to be whipt, and

"the

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