Воок XII. Chap. 5. were, of a fick fociety. When there is a breach of fecurity in refpect to property, there may be fome reafons for inflicting a capital punishment: but it would be much better, and perhaps more natural, that crimes committed against the security of property should be punished with the loss of property; and this ought indeed to be the cafe if mens fortunes were common or equal. But as it is thofe who have no property that are generally the readieft to attack the property of others, it was found neceffary to supply a pecuniary with a corporal punishment. All that I have here advanced, is founded in nature, and extremely favourable to the liberty of the fubject. CHAP. V. Of certain Accufations that require particular T is an important maxim; that we ought to be extremely circumfpect in the prosecution of magic and herefy. The accufation of thefe two crimes may be vaftly injurious to liberty, and productive of an infinite number of oppreffions, if the legislature knows not how to fet bounds to it. For as it does not aim directly at a perfon's actions, but at his character, it grows dangerous in proportion to the ignorance of the people; and then a man, is always in danger, because the most unexceptionable conduct, the pureft morals, and the constant practice of every duty in life, are not a fufficient fecurity against the suspicion of those crimes. Under nuel Com Under Manuel Comnenus, the Proteftator (c) was Book accused of having confpired against the emperor, XII. Cyap. 5. and of having employed for that purpose fome fe-(c) Nicetas, crets that render men invifible. It is mentioned life of Main the life of this emperor (d) that Aaron was de-nenus tected, as he was poring over a book of Solo-Book 4. mon's, the reading of which was fufficient to conjure (a) up whole legions of devils. Now by supposing a power in magic to arm all hell, people look upon a man whom they call a magician, as the fittest perfon in the world to trouble and fubvert fociety, and of course they are disposed to punish him with the utmost severity. of the em peror But their indignation increases when magic is supposed to have a power of fubverting religion. The history of Conftantinople (*) informs us, that () History in consequence of a revelation made to a bishop of a miracle's having ceased because of the magic Maurice practices of a certain perfon, both that perfon and by Thehis fon were put to death. On how many furpriz-Chap. 11. phylactus, ing things did not this fingle crime depend? That Tevelations fhould not be uncommon, that the bishop should be favoured with one, that it was real, that there was an art magic, that magic could fubvert religion, that this particular perfon was a magician, and in fine, that he had committed that action of magic. The emperor Theodofius Lafcaris attributed his illness to magic. Those who were accused of this crime, had no other refource left than to handle a hot iron without being hurt. Thus among the Greeks a perfon ought to have been a magician to be able to clear himfelf of the imputation of magic. Such was the excess of their stupidity, that to Book to the most dubious crime in the world, they join- Under the reign of Philip the Long, the Jews were expelled from France, being accused of having poisoned the fprings with their lepers. So abfurd an accufation ought very well to make us doubt of all thofe that are founded on public hatred. I have not here afferted that herefy ought not to be punished; I faid only that we ought to be extremely circumfpect in punishing it. G CHAP. VI. Of the Crime against Nature. OD forbid that I fhould have the leaft inclination to diminish the horror people have for a crime which religion, morality, and civil government equally condemn. It ought to be proscribed were it only for its communicating to one sex the weakneffes of the other, and for leading people by a scandalous prostitution of their youth, to an ignominious old age. What I fhall fay concerning it will no ways diminish its infamy, being levelled only against the tyranny that may abuse the very horror. we ought to have for the vice. As the nature of this crime is fecrecy, there are frequent inftances of its having been punished by legislators upon the depofition of a child. This was opening a very wide door to calumny. "Jufti(5) Secret nian, fays Procopius (f), published a law against Hiftory. "this crime; he ordered an inquiry to be made not only against those who were guilty of it, "enatting of that law, but even before. after the The de"pofition XII. "pofition of a single witness, fometimes of a child, Book Sometimes of a flave, was fufficient, especially Chap. 6. "against fuch as were rich, and against those that "were of the green faction. It is very odd that these three crimes, magic, heresy, and that againft nature, of which the first might easily be proved not to exist at all; the fecond to be fufceptible of an infinite number of diftinctions, interpretations, and limitations; the third to be often obfcure and uncertain; it is very odd, I fay, that these three crimes fhould amongst us be punished with fire. I may venture to affirm that the crime against nature will never make any great progrefs in fociety, unless people find themselves induced to it in other refpects by fome particular cuftom, as among the Greeks where the young people performed all their exercises naked, as amongst us where domeftic education is difufed, as among the Afiatics where fome private pefrons have a great number of women whom they defpife, while others can have none at all. Let there be no cuftoms preparatory to this crime, let it, like every other violation of morals, be feverely profcribed by the civil magiftrate, and nature will foon be feen to defend or refume her rights. Nature, that tender, amiable, and loving parent, has ftrewed her pleafures with a bounteous hand, and while fhe fills us with delights, fhe prepares us for future fatisfactions of a more exquifite kind than those very delights. CHAP. Воок XII. Ch. 7,& 8. I Of the Crime of high Treafon. T is determined by the laws of China, that whofoever fhews any difrefpect to the emperor, is to be punished with death. As they do not mention what this difrefpect confifts in, every thing may furnish a pretext to take away a man's life, and to exterminate any family whatsoever. Two perfons of that country, who were employed to write the court gazette, having inferted in relation to a certain fact fome circumstances that were not true; it was pretended that to tell a lye in the court gazette, was a difrepect fhewn to the court, in confequence of which they were put to (8) Father death (8). A prince of the blood having inadvertently made fome mark on a memorial figned with P. 43. the red pencil by the emperor, it was determined that he had behaved difrefpectfully to that prince; which was the cause of one of the most terrible perfecutions against that family that was ever re(*) Father corded in history (1). Du Halde Tom. I. Parennin in the letters. If the crime of high treafon be indeterminate, edifying this alone is fufficient to make the government degenerate into arbitrary power. I fhall defcant more (i) Book largely on this fubject, when I come to treat (i) of the compofition of laws. 29. CHAP. VIII. Of the bad Application of the Name of Sacrilege and high Treafon. T is likewife a fhocking abuse to give the ap It pellation of high treason to an action that does not |