How dangerous it is in Republics to be too fevere in punishing the Crime of high Treafon.

S foon as a republic has compaffed the deftruction of those who wanted to fubvert it, there fhould be an end of examples, punishments, and even of rewards.

Great punishments, and confequently great changes, cannot take place without investing some citizens with too great a power. It is therefore more adviseable in this cafe to exceed in lenity, than in severity; to banish but few, rather than many; and to leave them their estates, rather than to make a great number of confifcations. Under pretence of avenging the republic's caufe, the avengers would establish a tyranny. The business is not to destroy the person that domineers, but the domineering itfelf. They ought to return as quick as poffible into the ufual track of government, in which every one is protected by the laws, and no one injured.

Boo

XII. Chap. 18.

Book 4.

We find in Appian (1), the edict and formu- () Of the la of the profcriptions. One would imagine that civil wars. they had no other aim than the good of the republic, fo cooly they fpeak, fo many advantages they point out, fo preferable are the means they take to others, fuch fecurity they promise to the rich, fuch tranquillity to the poor, fo afraid they seem to be of endangering the lives of the subjects, fo defirous of appeafing the foldiers: a dreadful example, which fhews how near fevere punishments border upon tyranny.

The

Воок

The Greeks fet no bounds to the vengeance they

XII. took of tyrants or of those they suspected of tyChap. 19. () Dio- ranny; they put their children to death (), nay nyf. Hali-fometimes five of their nearest relations; and they man An- profcribed an infinite number of families. By this tiquities, means their republics fuffered the most violent Book 8. fhocks; exiles or the return of the exiled were al

carn. Ro

ways epochas that indicated the change of the conftitution.

The Romans had more fenfe. When Caffius was put to death for having aimed at tyranny, the queftion was propofed whether his children fhould undergo the fame fate; but they were preserved. (*) Book 8." Thofe, fays Dionyfius Halicarnaffeus (*), wha "wanted to change this law at the end of the Marfian and civil wars, and to exclude from pub"lic offices the children of those who had been profcribed by Sylla, are very much to blame."

P. 547.

66

CHA P. XIX.

In what manner the Use of Liberty is fufpended in a Republic.

N countries where liberty is most esteemed, there

IN

are laws by which a fingle perfon is deprived of it, in order to preserve it for the whole community. Such are in England what they call Bills of Attainder t. They are relative to thofe Athenian

*Tyranno occifa quinque ejus proximos cognatione magiftratus neCic. de Invent. lib. 2.

cato.

The author of the Continuation of Rapin Thoyras defines A Bill of Attainder, a fentence which upon being approved by the two houses and figned by the king paffes into an act, whereby the party accufed is declared guilty of high treafon without any other formality, and without appeal, Tom. 2. p. 266.

XII.

laws by which a private perfon was condemned II, Воок provided they were made by the unanimous fuffrage Chap. 20. of fix thousand citizens. They are relative al fo to thofe laws which were made at Rome against private citizens, and were called privileges. Thefe were never paffed but in the great meetings of the people. But in what manner foever they are enacted, Cicero is for having them abolished, because the force of law confifts in its being made for the whole community §. Own I muft, notwithstanding that the practice of the freeft nation that ever existed, induces me to think that there are cafes in which a veil fhould be drawn for a while over liberty, as it was cuftomary to veil the ftatues of the Gods.

CHAP. XX.

Of Laws favourable to the Liberty of the Subject in a Republic.

IN popular governments it often happens that

accufations are carried on in public, and every man is allowed to accufe whomfoever he pleases. This rendered it neceffary to establish proper laws in order to protect the innocence of the fubject. At Athens if an accufer had not the fifth part of the (") See votes on his fide, he was obliged to pay a fine of Philoftraa thousand drachms. Efchines who accufed Ctefi- tus book 1. phon, was condemned to pay this fine (). At Lives of Rome a falfe accufer was branded with infamy **, phifts, life by marking the letter K on his forehead. Guards of Æfchi

the So

nes. See

Legem de fingulari aliquo ne rogato nifi fex millibus ita vi- likewife fum. Ex Andocide de Myfteriis. This is what they called Oftracifm. Plutarch De privis hominibus lata, Cicero de Leg. lib. 3.

§ Scitum eft juffum in omnes, Cicero ibid.

By the Romnian Law.

were

and Phoci

น.

Book were alfo appointed to watch the accufer, in order to

XII.

Chap. 21. prevent his corrupting either the judges or the wit(f) Pluneffes (1).

tarch in

his treatife

I have already taken notice of that Athenian and entitled, Roman law, by which the party accufed was allowed to withdraw before judgment was pronounced.

How a

perfon

may reap

advantage

from his

CHA P. XXI.

enemies. Of the Cruelty of Laws in respect to Debtors in a

G

Republic.

REAT is the fuperiority which one fellowfubject has already over another, by lending him money, which the latter borrows in order to fpend, and of course has no longer in his poffeffion. What must be the confequence if the laws of a republic make a further addition to this servitude and fubjection?

At Athens and Rome* it was at first permitted to fell fuch debtors as were infolvent. Solon redreffed this abuse at Athens (); by ordaining that tarch life no man's body fhould anfwer for his civil debts. But of Solon. the decemvirs + did not reform the fame custom

Plu

at Rome; and tho' they had Solon's regulation before their eyes, yet they did not chufe to follow it. This is not the only paffage of the law of the twelve tables, in which the decemvirs fhew their design of checking the spirit of democracy.

Often did those cruel laws against debtors throw the Roman republic into danger. A man all cover

A great many fold their children to pay their debts. Plu

tarch life of Solon.

+ It appears from history that this cuftom was established among the Romans before the law of the twelve tables. Lizy I. dec. book 2.

XII.

Halicarn.

ed with wounds, made his escape from his creditor's Boox house, and appeared in the public market place ("). Chap. 22. The people were moved with this fpectacle; and (") Dionyfother citizens whom their creditors durft no longer Rom. Anconfine, emerged from their dungeons. They had tiq. book promises made them, which were all broke. The VI. people upon this having withdrawn to the Mons Sacer, they obtained, not an abrogation of those laws, but a magiftrate to defend them. Thus they quitted a state of anarchy, but were foon in danger of falling into tyranny. Manlius to render himself popular, was going to fet thofe citizens at liberty, who had been reduced to flavery by their inhuman creditors (w). Manlius's defigns were prevented; () Plubut without remedying the evil. Particular laws of Furius facilitated to debtors the means of paying (*), and in Camillus. the year of Rome 428 the confuls propofed a law *(*) See which deprived creditors of the power of confining lows in their debtors in their own houses +. A ufurer by the 24th chapter of name Papirius attempted to corrupt the chastity of the book a young man named Publius, whom he kept in of laws as irons. Sextus's crime gave to Rome its political relative to liberty; that of Papirius gave it also the civil. money.

tarch life

what fol

the use of

Such was the fate of this city, that new crimes confirmed the liberty, which those of a more ancient date had procured it. Appius's attempt upon Virginia, flung the people again into that horror against tyrants with which the misfortune of Lucretia had first inspired them. Thirty feven years after () the(") The crime of the infamous Papirius, an action of the year of Rome465.

*One hundred and twenty years after the law of the twelve tables, eo anno plebi Romanæ, velut aliud initium libertatis factum eft quod necti defierunt. Livy lib. 8.

t Bona debitoris, non corpus obnoxium effet. Ibid.