trouble and fubvert fociety, and of course they are disposed to punish him with the utmost severity.

But their indignation increases when magic is fuppofed to have a power of fubverting religion. The history of Conftantinople informs us, that in confequence of a rev. elation made to a bishop of a miracle's having ceased be cause of the magic practices of a certain perfon, both that person and his fon were put to death. On how many furprifing things did not this fingle crime depend? That revelation fhould not be uncommon, that the bishop should be favored with one, that it was real, that there had been a miracle in the case, that this miracle had ceased, 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 Theodorus Lafcaris attributed his illness. to magic. Those who were accused of this crime, had no other resource 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 himself of the imputation of magic. Such was the excefs of their ftupidity, that, to the moft dubious crime in the world, they joined the most uncertain proofs.

Under the reign of Philip the Long, the Jews were expelled from France, being accused of having poifoned the fprings with their lepers. So abfurd an accufation ought very well to make us doubt of all those that are founded on public hatred.

I have not here afferted that herefy ought not to be punifhed; I faid only that we ought to be extremely circumfpect in punishing it.

CHAP. VI.

Of the Crime against Nature.

GOD 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.

* History of the emperor Maurice, by Theophylactus, chap. 11.

It

It ought to be profcribed, were it only for its communicating to one fex 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 nowife diminifh 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. "Juftinian, (fays Procopius*) published a law against this crime; he ordered an inquiry to be made not only against those who were guilty of it, after the enacting of that law, but even before. The depofition of a single witness, fometimes of a child, fometimes of a flave, was fufficient, efpecially againft fuch as were rich, and against thofe that were of the green faction."

It is very odd thefe three crimes, magic, herefy, and that against nature, of which the firft might eafily be proved not to exift 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 themfelves induced to it in other refpects by fome particular cuftom, as among the Greeks where the young people performed all their exercifes naked, as amongst us where domeftic education is difufed, as among the Afiatics where particular perfons 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 seen to defend or refume her rights. Nature, that tender, amiable and loving parent, has ftrewed her pleasures with a bounteous hand, and while fhe fills us with delights, the prepares us for future fatisfactions of a more exquifite kind than thofe delights themselves.

CHAP. VII.

Of the Crime of High Treafon.

IT is determined by the laws of China, that whofoever fhews any difrefpect to the emperor, is to be punifhed with death. As they do not mention in what this difrefpect confifts, every thing may furnifh a pretext to take away a man's life, and to exterminate any family whatfoever.

Two perfons of that country, who were employed to write the court gazette, having inferted fome circumstanc es relating to a certain fact, that were not true; it was pretended, that to tell a lie in the court gazette was a difrefpect fhewn to the court, in confequence of which they were put to death.* A prince of the blood having inad vertently made fome mark on a memorial figned with the red pencil by the emperor, it was determined that he had behaved disrespectfully to that prince; which was the cause of one of the moft terrible perfecutions against that family that ever was recorded in hiftory.+

If the crime of high treafon be indeterminate, this alone is fufficient to make the government degenerate into arbitrary power. I fhall defcant more largely on this fubject, when I come to treat of the compofition of laws.

CHAP. VIII.

Of the bad Application of the Name of Sacrilege and High Treajon.

IT is likewife a fhocking abuse to give the appel

lation of high treafon to an action that does not deferve

it.

it. It was decreed by an imperial law, that those who called in question the prince's judgment, or doubted of the merit of fuch as he had chofen for a public office, fhould be profecuted as guilty of facrilege. Surely it was the cabinet, council and the favorites of the court who invented that crime. By another law it was determined, that whosoever made any attempt against the minifters and officers of the prince fhould be deemed guilty of high treafon, as if he had attempted against the prince himfelt. This law is owing to two princes, celebrated in hiftory for their weakness; princes who were led by their minif ters as flocks by fhepherds; princes who were flaves in the palace, children in the council, ftrangers to the army; princes, in fine, who preferved their authority only by giving it away every day. Some of those favorites con fpired against their emperors. Nay, they did more, they confpired against the empire; they called in barbarous nations; and when the emperors wanted to ftop their progrefs, the ftate was fo enfeebled, as to be under a ne. ceffity of infringing their law, and of expofing itself to the crime of high treafon in order to punish those favor ites.

And yet this is the very law which the judge of Mon fieur de Cinq Mars built upon, when endeavoring to prove that the latter was guilty of the crime of high trea fon for attempting to remove Cardinal Richlieu from the miniftry, he says, "Crimes that aim at the perfons of minifters, are deemed, by the imperial conftitutions, of equal confequence with thofe which are levelled against the emperor's own perfon. A minifter difcharges his duty to his prince and to his country; to attempt therefore to remove him, is endeavoring to deprive the former of one of his arms, I and the latter of part of its power.' If even flavery herself was to defcend upon the earth, she could not fpeak in any other language.

By

Gratian, Valentian, and Theodofius. This is the fecond in the Code decrimi, facril.

+ Sacrilegii inftar eft dubitare, an is dignus fit quem elegerit imperator. Ibid. This law ferved as a model to that of Roger in the conftitutions of Naples, tit. 4.

The 5th law ad leg. Jul. maj.

Arcadius and Honorius.

Memoirs of Montefor, tom. 1.

Nam ipfi pars corporis noftri funt. The fame law of the Code ad leg.

Juli maj.

By another law of Valentinian, Theodofius, and Arcadius.* falfe coiners are declared guilty of high treafon. But is not this confounding the ideas of things? Is not the very horror of high treafon diminished, by giving that name to another crime?

CHA P. IX.

The fame Subject continued.

PAULINUS having wrote to the emperor Alexander, that " he was preparing to profecute for high treafon, a judge who had decided contrary to his edict;" the emperor anfwered, "That under his reign there was no such thing as indirect high treason."+

Fauftinian wrote to the fame emperor, that as he had fworn by the prince's life never to pardon his flave, he found himself thereby obliged to perpetuate his wrath, left he fhould incur the guilt of high treafon. Upon which the emperor made anfwer, "Your fears are groundless,‡ and you are a ftranger to my principles."

It was determined by a fenatufconfultum,§ that whofoever melted down any of the emperor's ftatues which fhould happen to be rejected, fhould not be deemed guilty of high treason. The emperors Serverus and Antoninus wrote to Pontius, that those who fold unconfecrated flatues of the emperor, fhould not be charged with high treafon. The fame princes wrote to Julius Caffianus, that if any perfon, when flinging a ftone, fhould by chance ftrike one of the emperor's ftatues, he fhould not be liable to a profecution of high treafon. The Julian law requires thefe forts of limitations; for, in virtue of this law, the crime of high treafon was charged not only upon those VOL. I. O who

It is the 9th of the Code Theodof. de falfa moneta.

+ Etiam ex aliis caufis majestatis crimina cessant meo feculo. Leg. 1. cod. ad leg. Jul. maj.

maj.

Alienam lectæ meæ folicitudinem concepifti. Leg. 2, ced, ad leg, Jul,

See the 4th law in ff. ad leg. Jul. maj.

See the 5th law, ibid.