appealed to the people, inflicted no other punishment on the person who infringed it, than that of being reputed a difhoneft man.*

CHAP. XII.

Of the Power of Punishments,

EXPERIENCE fhows, that in countries remark

able for the lenity of penal laws, the fpirit of the inhabitants is as much affected by them, as in other countries by feverer punishments.

If an inconveniency or abuse arifes in the ftate, a violent government endeavors fuddenly to redress 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 fpring of government is hereby weakened; 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 recourse to the other. Robberies on the highway were grown common in fome countries; in order to remedy this evil, they invented the punishment of breaking upon the wheel, the terror of which put a stop for a while to this mifchievous practice. But foon after robberies on the highways were

become as common as ever.

Desertion in our days was grown to a very great height; in confequence of this it was judged proper to punish deferters with death; and yet their number did not diminish. The reafon is very natural; a foldier accustomed daily to venture his life, defpifes or affects to defpife the danger of Jofing 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 increafed, while it was really diminished.

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. If we inquire into the caufe of all

* Nihil ultra quam improbe factum adjecit. Liv.

human

human corruptions, we shall find that they proceed from the impunity of crimes, and not from the moderation of punishments.

Let us follow nature, who has given fhame 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 muft in a great measure arife from the violence of the government, which has inflicted fuch punishments for flight tranfgreffions.

It often happens that a legiflator, defirous of reforming an evil, thinks of nothing but this reformation; his eyes are open only to this object, and fhut to its inconveniences. When the evil is redreffed, there is nothing more feen but the severity of the legiflator: Yet there ftill remains an evil in the ftate that has fprung from this feverity; the minds of the people are corrupted, and become habituated to defpotic power.

Lyfander having obtained a victory over the Athenians, the prifoners were ordered to be tried in confequence of an accufation brought against the Athenians, of having thrown all the captives of two galleys down a precipice, and of having refolved in full affembly to cut off the hands of those they should chance to make prifoners. The Athenians were therefore all maffacred, except Adymantes, who had opposed 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.

"The Argives," fays Plutarch,+ "having put fifteen hundred of their citizens to death, the Athenians ordered facrifices of expiation, that it might please the gods to turn the hearts of the Athenians from fo cruel a thought."

There are two forts of corruption; one, when 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.

Xenoph. hift. lib. xii.

CHAP.

Morais of those who are intrufted with the direction of fate affairs.

CHAP. XIII.

Impotency of the Laws of Japan.

EXCESSIVE punishments may even corrupt

a defpotic government; of this we have an instance in Japan.

Here almost all crimes are punished with death,* becaufe difobedience 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 vindicate the authority of the prince. These notions are derived from fervitude, and are owing especially to this, that as the emperor is univerfal proprietor, almost all crimes are directly againft his interefts.

They punish with death lies spoken before the magiftrates; a proceeding contrary to natural defence.

Even things which have not the appearance of a crime, are feverely punifhed; for inftance, a man that ventures his money at play is put to death.

It is true, that the surprising character of this obftinate, capricious, refolute, whimfical people, who defy all dangers and calamities, feems to abfolve their legiflators from the imputation of cruelty, notwithstanding the feverity of their laws. But are men who have a natural contempt of death, and who rip open their bellies for the leaft fancy, are fuch men, I fay, mended or deterred, or rather are they not hardened, by the continual fight of punishments?

The relations of travellers inform us, with respect to the education of the Japanese, that children must be treated there with mildness, because they become hardened to punifhment; that their flaves muft not be too roughly ufed, because they immediately put themselves in a pofture of defence. Would not one imagine that they might eafily have judged of the fpirit which ought to reign in their political

See Kempfer.

+ Collection of voyages that contributed to the establishment of the Eaftindia company, tom. i. p. 428.

litical and civil government, from that which should prevail in their domeftic concerns?

A wife legiflator would have endeavored to reclaim peo. ple's minds by a juft temperature of punishments and rewards; by maxims of philofophy, morality and religion, adapted to these characters; by a juft application of the rules of honor, and by the enjoyment of a conftant happinefs and foft tranquillity of life. But thefe are fprings to which defpotic power is a ftranger; it may abuse itself, and that is all it can do: In Japan it has made its utmost effort, and has even furpaffed itself in cruelty.

As the minds of the people by this means grew wild and intractable, they were obliged to have recourfe to the most horrid feverity. This is the origin, this is 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 shown greater marks of their weakness.

We have only to read the relation of the interview between the emperor and the deyro at Meaco.* The number of those who were fuffocated or murdered in that city by ruffians, is incredible; young maids and boys were carried off by force, and found afterwards expofed in public places at unfeasonable hours, quite naked and fewed in linen bags, to prevent their knowing which way they had passed; 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 ftrip the ladies. The Dutch, who were told they could not pafs the night on the scaffold, without expofing themselves to the danger of being affaffinated, came down, &c.

I fhall here give one inftance more from the fame nation. The emperor having abandoned himfelf 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 respect, but would not meddle with her. His nurfe caufed the finest women of the empire to be fent for, but all to no purpose, At

* Collection of voyages that contributed to the establishment of the Eatindia company, tom. v. p. 2.

At length, an armoror's daughter having pleafed his fancy,* he determined to marry her, and had a son. The la dies belonging to the 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 spilled a torrent of blood. The exceffive severity of the laws hinders therefore their execution. When the punishment surpasses all measure, they are frequently obliged to prefer impunity to it.

CHA P. XIV.

Of the Spirit of the Roman Senate.

UNDER the confulate of Acilius Glabrio and

Pifo, the Acilian lawt was made to prevent the intriguing for places. Dio says that the fenate engaged the confuls to propose it, by reason that C. Cornelius the tribune had refolved to caufe moft fevere punishments to be established against this crime; to which the people feemed greatly inclined. The fenate rightly judged that immoderate punishment, would ftrike indeed a terror into people's minds, but muft alfo have this effect, that there would be nobody afterwards to accufe or condemn; whereas, by propofing moderate punishments, there would be always judges and accufers.

CHAP. XV.

Of the Roman Laws in respect to Punishments.

I AM flrongly confirmed in my fentiments upon finding the Romans on my fide, and I think that punish

* Ibid.

ments

+ Thofe that were guilty were condemned to a fine; they could not be admitted into the rank of fenators, nor nominated to any public office. Die, book xxxvi.

+ Book xxxvi,