country; but it was not given him in order to enable him to render this fervice.

Thus the emperor Tacitus ordained that flaves should not be admitted as witneffes against their masters, even in the cafe of high treafon :* A law which was not inferted in Juftinian's compilement.

CHA P. XVI.

Of Calumny in Refpect to the Crime of High Treafon.

To do juftice to the Cæfars, they were not the

firft devisers of the difmal laws which they enacted. It was Syllat that taught them that calumniators ought not to be punished; but the thing was foon carried fo far as to reward them.‡

CHAP. XVII.

Of the revealing of Confpiracies.

IF thy brother the fon of thy mother, or thy son, or thy daughter, or the wife of thy bofom, or thy friend, who is as thine own foul, entice thee fecretly, faying, Let us go and ferve other gods, thou shalt furely kill him, thou fhalt ftone him : This law of Deuteronomy cannot be a civil law among moft of the nations known to us, because it would pave the way for all manner of wickedness.

No lefs fevere is the law of feveral countries, which commands the fubjects, on pain of death, to difclofe confpiracies in which they are not even so much as concerned. 时 4. When

*Flavius Vopifcus in his life.

+ Sylla made a law of majesty, which is mentioned in Cicero's orations pro Cluentio, art. 3. in Pifonem, art. 21. 2d against Verres, art. 5. familiar epiftles, book 3. letter 11. Cæfar and Auguftus inferted them in the Julian laws; others made additions to them.

Et quo quis diftin&tior accufator, eo magis honores affequebatur, ac veluti facrofanctus erat. Tacit.

Deuteron, chap. xiii. ver, 6.

When fuch a law is eftablished in a monarchical govern. ment, it is very proper it should be under some restrictions.

It ought not to be applied in its full feverity, but to the ftrongeft cafes of high treafon. In thofe countries it is of the utmost importance not to confound the different degrees of this crime. In Japan where the laws fubvert every idea of human reason, the crime of concealment is applied even to the moft ordinary cafes.

A certain relation* makes mention of two young ladies, who were shut up for life in a box thick fet with pointed nails, one for having had a love intrigue, and the other for not difclofing it.

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

As foon as a republic has compassed the deftruc

tion 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 invefting fome citizens with too great a power. It is therefore more advisable in this case to exceed in lenity, than in feverity; to banifh but few, rather than many; and to leave them their eftates, rather than to make a great number of confifcations. Under pretence of avenging the republic's cause, the avengers would eftablish tyranny. The bufinefs is not to deftroy the rebel, but the rebellion. They ought to return as quick as pos fible into the ufual track of government, in which every one is protected by the laws, and no one oppreffed.

We find in Appian,† the edict and formula of the profcriptions. One would imagine that they had no other aim than the good of the republic, fo coolly they speak, fo many advantages they point out, fo preferable are the means they take to others, fuch fecurity they promife to the rich, fuch tranquillity to the poor, fo afraid they seem

to

Collection of voyages that contributed to the establishment of the Eaftindia company, p. 423. book v. part 2.

Of the civil wars, book iv.

to be of endangering the lives of the fubjects, fo defirous of appeafing the foldiers: A dreadful example, which shews how near severe punishments border upon tyranny.

The Greeks fet no bounds to the vengeance they took of tyrants, or of those they suspected of tyranny; they put their children to death,* nay fometimes five of their neareft relations ; and they profcribed an infinite number of families. By this means their republics fuffered the most violent shocks; exiles, or the return of the exiled, were always epochas that indicated a change of the conftitution.

The Romans had more fenfe. When Caffius was put to death for having aimed at tyranny, the question was propofed, whether his children fhould undergo the fame fate? But they were preserved. "They," fays Dionyfius Halicarnaffus."who wanted to change this law at the end of the Marfian and civil wars, and to exclude from public offices the children of thofe who had been profcribed by Sylla, are very much to blame."

CHAP. XIX.

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

IN N countries where liberty is moft efteemed, there are laws by which a fingle person is deprived of it, in order to preferve it for the whole community. Such are in England what they call bills of attainder. Thefe are relative to those Athenian laws by which a private person was condemned, provided they were made by unanimous fuffrage of fix thousand citizens. They are relative also

* Dionyf. Halicarn. Roman antiquities book viii.

to

+ Tyranno occifo, quinque ejus proximus cognatione magiftratus necato. Cic. de invent. lib. 2.

Book viii. p. 547.

The author of the Continuation of Rapin Thoyras defines a bill of attainder, a fentence, which, upon being approved by the two houfes, and figned by the king, paffes into an act, whereby the party accused is declared guilty of high treafon without any other formality, and without appeal. Tum, 2. p. 266.

Legem de fingulari aliquo ne rogato, nifi fex millibus ita vifum. Ex andocide de myfleriis. This is what they called Oftracifm.

to thofe laws which were made at Rome against private citizens, and were called privileges.* These 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. I muft own, notwithstanding, that the practice of the freest nation that ever exifted, induces me to think that there are cafes in which a veil fhould be drawn for a while over liberty, as it was customary to veil the ftatues of the gods,

С НА Р. XX,

Of Laws favorable to the Liberty of the Subject in a Republic,

IN popular governments it often happens that ac

cufations 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 subject. At Athens, if an accufer had not the fifth part of the votes on his fide, he was obliged to pay a fine of a thousand drachms, Æfchines, who accufed Ctefiphon, was condemned to pay this fine. At Rome a falfe accufer was branded with infamy, by marking the letter K on his forehead. Guards were alfo appointed to watch the accufer, in order to prevent his corrupting either the judges or the witneffes.

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

CHAP.

De privis hominibus latæ. Cicero de leg. lib. 3. + Scitum eft juffum in omnes.

See Philoftratus, book 1.

likewife Plutarch and Photius.

By the Remmian law.

Cicero, ibid.

Lives of the Sophifts, life of Æschines. See

Plutarch, in a treatife, intitled, How a perfon may reap advantage from his enemies.

CHA P. XXI.

Of the Cruelty of Laws in respect to Debtors in a Republic,

GREAT 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 farther addition to this fervitude and fubjection?

At Athens and Rome, it was at firft permitted to fell fuch debtors as were infolvent. Solon redressed this abufe at Athens, by ordaining that no man's body fhould anfwer for his civil debts. But the decemvirs+ did not reform the fame cuftom at Rome; and though they had Solon's regulation before their eyes, yet they did not choose to follow it. This is not the only paffage of the law of the twelve tables, in which the decemvirs fhew their defign of checking the spirit of democracy.

Often did thofe cruel laws against debtors throw the Roman republic into danger. A man all covered with wounds, made his escape from his creditor's house, and appeared in the forum. The people were moved with this fpectacle, and other citizens whom their creditors durft no longer confine, emerged from their dungeons. They had promifes made them which were all broke. The people upon this having withdrawn to the facred mount, obtained, not an abrogation of thofe laws, but a magiftrate to defend them. Thus they quitted a ftate of anarchy, but were foon in danger of falling into tyranny. Manlius, to render himfelf popular, was going to fet those citizens at liberty, who had been reduced to flavery by their inhuman creditors.]] Manlius's defigns were prevented, but without remedying the

* A great many fold their children to pay their debts. Plutarch, life of Sol n.

+ Plutarch, life of Solon,

It appears from hiftory that this cuftom was established among the Ro mans before the law of the twelve tables. Livy, dec. 1. book 2.

Dionyf. Halicarn. Rom. Antiq. book 6.

Plutarch, life of Furius Camillus.

t