who melted down the emperor's ftatues, but likewise on those who committed any fimiliar action,* which made it an arbitrary crime. When a number of crimes of high treafon had been established, they were obliged to diftinguifh the feveral forts. Hence Ulpian the civilian, after faying that the accufation of high treafon did not die with the criminal, adds, that this does not relate to all the treasonable acts established by the Julian law, but only to that which implies an attempt against the empire, or agains the emperor's life. CHA P. X. The fame Subject continued. THERE was a law paffed in England under Henry VIII, by which whofoever predicted the king's death, was declared guilty of high treason. This law was very indeterminate; the terror of defpotic power is fa great, that it even turns against those who exercise it. In this king's laft illness, the phyficians would not venture to fay he was in danger; and furely they acted very right.‡ CHA P. XI. Of Thoughts. MARSYAS dreamed that he had cut Dionyfius's throat. Dionyfius put him to death, pretending that he would never have dreamed of fuch a thing by night, if he had not thought of it by day. This was a moft tyrannical action; for though it had been the subject of his thoughts, *Alliudve quid fimile admiferint. Leg. 6. ff. ad leg. Jul. maj. yet yet he had made no attempt* towards it. take upon them to punish any other than The laws do not overt acts. CHAP. XII. Of indifcreet Speeches. NOTHING renders the crime of high treason more arbitrary than declaring people guilty of it for indifcreet fpeeches. Speech is fo fubject to interpretation ; there is so great a difference between indiscretion and malice, and frequently fo little is there of the latter in the expreffions used, that the law can hardly fubject people to a capital punishment for words, unlefs it exprefsly declares what words they are which render a man guilty.+ Words do not conftitute an overt act; they remain only in idea. They generally, when confidered by themfelves, have no determinate fignification; for this depends on the tone in which they are uttered. It often happens, that, in repeating the fame words, they have not the fame meaning; this meaning depends on their connexion with other things; and fometimes more is expreffed by filence than by any discourse whatsoever. As there can be noth ing fo equivocal and ambiguous as all this; how is it poffible to convert it into a crime of high treafon? Whereever this law is established; there is an end not only of liberty, but even of its very shadow. In the manifefto of the late Czarina against the family of the Dolgorukys, one of these princes is condemned to death for having uttered fome indecent words concerning her perfon; another for having maliciously interpreted her fage regulations for the welfare of the empire, and for having offended her facred perfon by difrefpectful words. Not that I pretend to diminish the indignation people ought to have against those who prefume to ftain the glory of their prince; what I mean is, that if defpotic princes K2 *The thought must be joined with fome fort of action. are + Si non tale fit delictum in quod vel scriptura legis descendit vel ad exemplum legis vindicandum eft, fays Modeftinus in the seventh law, in ff. ad leg. Jul. maj. In 1740. are willing to moderate their power, a fimple correction would be more proper on thefe occasions, than an accusation of high treafon, a thing always terrible even to innocence itself.* Overt acts are not things that happen every day; they are liable to the obfervation of a great many people; and a falfe charge in refpect to facts may be eafily detected. Words joined to an action affume the nature of this action. Thus a man who goes into a public marketplace to incite the fubjects to revolt, incurs the guilt of high treason, because the words are joined to the action, and partake of its nature. It is not the words that are punished, but an ac→ tion in which words are employed. They do not become criminal, but when they prepare for, accompany or follow a criminal action Every thing is confounded, if words are conftrued as a capital crime, inftead of confider. ing them only as a mark of a capital crime. The emperors, Theodofius, Arcadius and Honorius wrote thus to Rufinus who was præfectus prætorio: " If a man speaks amifs of our perfon, or government, we do not for all that intend to punish him; ift he has fpoke through levity, we must despise him; if through folly, we muft pity him; and if he wrongs us, we must forgive him. Wherefore, leaving things as they are, you must inform us accordingly, that we may be able to judge of words by perfons, and that we may well confider whether we ought to punish or overlook them." CHAP. XIII. Of Writings. IN writings there is fomething more permanent than in words; but when they are no way preparative to high treason, they are not a subject of that crime. And yet Auguftus and Tiberius fubjected fatirical writ ers *Nec lubricum linguæ ad pœnam facile trahendum eft. Modestine in the 7th law, in ff. ad leg. Jul. maj. + Si id ex levitate procefferit, contemnendum eft; fi ex infania miferatione digniffimum; fi ab injuria, remittendum. Leg, unica Cod. fi quis im perat maled. ers to the fame punishment as for having violated the law of majefty; Auguftus,* becaufe of fome libels that had been wrote againft men and women of the firft quality; Tiberius, because of those which he fufpected to have been written against himself. Nothing was more fatal to Ro man liberty. Cræmutius Cordus was accufed for having called Caffius in his annals the laft of the Romans.t Satirical writings are hardly known in defpotic governments, where dejection of mind on the one hand, and igno rance on the other, afford neither abilities nor will to write. In democracies they are not hindered for the very fame reason, which caufes them to be prohibited under the gov. ernment of a single perfon; Being generally levelled against men of power and authority, they flatter the malignity of the people who are the governing party. In monarchies they are forbidden, but rather as a fubject of civil animadverfion, than as a capital crime. They may amuse the general malignity, please the malecontents, diminish the envy against public employments, give the people patience to fuffer, and make them laugh at their fufferings. But no government is fo averfe to fatirical writings as the aristocratical. There the magiftrates are petty fovereigns, but not great enough to defpife affronts. If in a monarchy a fatirical ftroke is defigned against the prince, he is placed in fuch an eminence that it does not reach him; but an aristocratical lord is pierced to the very heart. Hence the decemvirs, who formed an aristocracy, punished fatirical writings with death. CHAP. XIV. Breach of Modesty in punishing Crimes. THERE are rules of modesty obferved by almoft every nation in the world; now, it would be very abfurd 健: το * Tacitus's Annals, book 1. This continued under the following reigns. See the first law in the Code de famofis libellis. + Tacit. Annal. book iv. The law of the twelve tables. to infringe thefe rules in the punishment of crimes, the principal view of which ought always to be the establishment of order. Was it the intent of thofe oriental nations who exposed women to elephants, trained up for an abominable kind of punishment, was it, I fay, their intent to establish one law by the breach of another ? By an ancient cuftom of the Romans, it was not permitted to put girls to death, till they were ripe for marriage. Tiberius found out an expedient of having them debauch ed by the executioner, before they were brought to the place of punishment. Thus this bloody and fubtile ty rant deftroyed the morals of the people to preferve their cuftoms.. When the magiftrates of Japan caufed women to be expofed naked in the marketplace, and obliged them to go upon all four like beafts, modefty was fhocked :† But when they wanted to compel a mother when they wanted to force a fon-I cannot proceed; even nature herself was ftruck with horror. Of the Enfranchisement of Slaves in Order to accufe their Mafter. AUGUSTUS made a law that the flaves of those who confpired against his perfon, fhould be fold to the public, that they might depofe against their mafter. Nothing ought to be neglected that may contribute to the difcovery of an heinous crime; it is natural therefore that in a government where there are flaves, they fhould be allowed to inform; but they ought not to be admitted as witneffes. Vindix difcovered the confpiracy that had been formed in favor of Tarquin; but he was not admitted a witnefs against the children of Brutus. It was right to give liberty to a perfon who had rendered fo great a fervice to his Suetonius in Tiberio. country; + Collection of voyages that contributed to the establishment of the Eaft. india company, tom. 5, part 2. Dio in Xiphilinus. |