The Spirit of Laws (1758)/Book VI

by Montesquieu

BOOK VI.
Consequences of the Principles of different Governments with respect to the Simplicity of civil and criminal Laws, the Form of Judgments, and the Inflicting of Punishments.

CHAP. I.
Of the Simplicity of civil Laws in different Governments.

Book VI.M
Chap. 1.Monarchies do not permit of so great a simplicity of laws as despotic governments. For in monarchies there must be courts of judicature; these must give their decisions; the decisions must be preserved and learnt, taat we may judge in the same manner to day as yesterday, and that the lives and property of the citizens may be as certain and fixt as the very constitution of the state.

In monarchies, the administration of justice which decides not only in whatever belongs to life and property, but likewise to honor, demands very scrupulous inquiries. The delicacy of the judge increases in proportion to the increase of his trust, and of the importance of the interests on which he determines.

We must not therefore be surprized to find so many rules, restrictions, and extensions in the laws of those countries; rules that multiply the particular cases, and seem to make of reason itself an art.

Book VI.
Chap. 1.The difference of rank, birth and condition, established in monarchical governments, is frequently attended with distinctions in the nature of property; and the laws relative to the constitution of this government, may augment the number of these distindtions. Hence among us, goods are divided into real estates, purchases, dowries, paraphernalia, paternal and maternal estates , moveables of different kinds; estates held in fee simple, or in tail; acquired by descent or conveyance; allodial, or held by soccage; ground rents, or annuities. Each sort of goods is subject to particular rules, which must be complied with in the disposal of them. These things must needs diminish the simplicity of the laws.

In our governments, the fiefs are become hereditary. It was necessary that the nobility should have a fixt property, that is, the fief should have a certain consistency, to the end that the proprietor of the fief might be always in a capacity of serving the prince. This must have been productive of great varieties; for instance, there are countries where fiefs could not be divided among the brothers; in others the younger brothers may be allowed a more generous subsistence.

The monarch who knows each of his provinces, may establish different laws, or tolerate different customs. But the despotic prince knows nothing, and can attend to nothing; he must take general measures; he governs by a rigid and inflexible will, which throughout his whole dominions produces the same effects; every thing bends under his feet.

Book VI.
Chap. 1.In proportion as the decisions of the courts of judicature are multiplied in monarchies, the law is loaded with decrees that sometimes contradict one another, either because succeeding judges are of a different way of thinking; or because the same causes are sometimes well, and at other times ill defended; or in fine, by reason of an infinite number of abuses that slip into whatever passes through the hands of man. This is a necessary evil, which the legislator redresses from time to time, as contrary even to the spirit of moderate governments. For when people are obliged to have recourse to courts of judicature, this should come from the nature of the constitution, and not from the contradictions or uncertainty of the laws.

In governments where there are necessary distinctions of persons, there mud likewise be privileges. This also diminishes the simplicity, and creates a thousand exceptions.

One of the privileges least burthensome to society, and especially to him who confers it, is that of pleading in one court preferably to another. Here new difficulties arise, when it becomes a question, before which court we should plead.

Far different is the case of people under despotic governments. In those countries I can see nothing that the legislator is able to decree, or the magistrate to judge. As the lands belong to the prince, it follows, that there are scarce any civil laws concerning the property of lands. From the right the sovereign has to succeed to estates, it follows likewise that there are none relating to inheritances. The monopolies established by the prince for himself in some countries, render Book VI.
Chap.1.all sorts of commercial laws quite useless. The marriages which they usually contract with sheflaves, are the cause that there are scarce any civil laws relating to dowries or to the particular advantage of married women. From the prodigious multitude of slaves it follows likewise that there are very few who have any such thing as a will of their own, and of course are answerable for their conduct before a judge. Most moral actions that are only in consequence of a father's, a husband's, or a mailer's will, are regulated by them and not by the magistrates.

I forgot to observe, that as what we call honor, is a thing hardly known in those countries, the several points relating to this honor, which are of such importance with us, are with them quite out of the question. Despotic power is of itself sufficient; round it there is an absolute vacuum. Hence it is, that when travellers favour us with the description of countries where arbitrary sway prevails, they seldom make mention of civil laws ^[1].

All occasions therefore of wrangling and of lawsuits are here removed. And to this in part is owing that religious people in those countries are so roughly handled: as the injustice of their demand is neither screened, palliated, nor protected by an infinite number of laws, of course it is immediately discovered.

CHAP. II.
Of the Simplicity of criminal Laws in different Governments.

Book VI.
Chap.2.WE hear it generally said that justice ought to be administered with us as in Turky. Is it possible then that the most ignorant of all nations should be the most clear sighted in a point that it most behoves mankind to know?

If we examine the set forms of justice in respect to the trouble the subject undergoes in recovering his property, or in obtaining satisfaction for an injury or affront, we shall find them doubtless too many: but if we consider them in the relation they have to the liberty and security of the subject, we shall often find them too few; and we shall be convinced that the trouble, expence, delays, and even the very dangers of our judiciary proceedings, are the price that every subject pays for his liberty.

In Turky, where little regard is shewn to the honor, lives, or estates of the subject, all causes are one way or other quickly decided. The method of determining them is a matter of indifference, provided they be determined. The bashaw, after a quick hearing, orders which party he pleases to be bastinadoed, and then sends them about their business.

Here it would be dangerous to have the passion of litigiousness; this supposes a violent desire of obtaining justice, a strong aversion, a hurry of mind, and an obstinacy in pursuing revenge. All this Book VI.
Chap.2.should be avoided in a government, where fear ought to be the only prevailing sentiment, and in which the least popular disturbances arc frequently attended with sudden and unforeseen revolutions. Here every man ought to know that the magistrate must not hear his name mentioned, and that his security depends intirely on his being reduced to a kind of annihilation.

But in moderate governments, where the life of the meanest subject is deemed precious, no man is stript of his honor or property but after a long inquiry; and no man is bereft of life, till his very country has attacked him, an attack that is never made without leaving him all possible means of making his defence.

Hence it is that when a person renders himself absolute^[2], he immediately thinks of simplifying the laws. In a government thus constituted they are more affected with particular inconveniencies, than with the liberty of the subject, which is very little minded.

In republics it is plain that as many formalities at least are necessary as in monarchies. In both governments they increase in proportion to the value which is set on the honor, fortune, liberty and life of the subject.

In republican governments men are all equal; equal they are also in despotic governments: in the former because they are every thing, in the latter because they are nothing.

CHAP. III.
In what Governments and in what cases the judges ought to determine according to the express letter of the Law.

Book VI.
Chap.3.THE nearer a government approaches to a republic, the more the manner of judging becomes settled and fixt; wherefore it was a fault in the republic of Sparta for the Ephori to pass such arbitrary judgments, without having any laws to direct them. The first consuls at Rome pronounced sentence in the same manner as the Ephori; but the inconveniency of this proceeding was soon felt, and they were obliged to have recourse to express and fixed laws.

In despotic governments there are no laws; the judge himself is his own rule. There are laws in monarchies; and where these are explicit, the judge conforms to them; where they are otherwise, he endeavours to investigate their spirit. In republics the very nature of the constitution requires the judges to follow the letter of the law. Here there is no possibility of interpreting a law against a subject, in cases where either his honor, property, or life is concerned.

At Rome the judges had no more to do than to declare, that the person accused was guilty of a particular crime, and then the punishment was found in the laws, as may be seen in divers laws still extant. In England the jury determine whether the fact brought under their cognizance be proved or not; if it be proved, the judge pronounces the punishment inflicted by the law for such a particular fact, and for this he need only open his eyes.

CHPA. VI.
Of the manner of forming Judgments.

Book VI.
Chap.4.HENCE arise the different manners of forming judgments. In monarchies the judges chuse the method of arbitration; they deliberate together, they communicate their thoughts in order to come to an agreement, they moderate their opinion to render it conformable to that of others; and the sentiments of the fewest become espoused by the two largest numbers. But this is not agreeable to the nature of a republic. At Rome and in the cities of Greece, the judges never entered into a consultation; each gave his opinion one of these three ways, I absolve, I condemn, it does not appear clear to me^[3]: this was because the people judged, or were supposed to judge. But the people are far from being civilians; all these reflections and methods of arbitration are above their reach; they must have only one object, and one single fact set before them; and then they have only to see whether they ought to condemn, to acquit, or to suspend their judgment.

The Romans introduced set forms for actions ^[4] after the example of the Greeks, and established a rule that each cause should be directed by its proper action. This was necessary in their manner of judging; it was neccssary to fix the state of the question, that the people might have it always before their eyes. Otherwise in a long process, Book VI.
Chap. 4. & 5.this state of the question would continually change and be longer distinguished.

Hence it followed that the Roman judges granted only the simple demand, without making any addition, deduction, or limitation. But the praetors devised other forms for actions, which were called ex bona fide, where the method of pronouncing sentence was left to the disposition of the judge. This was more agreeable to the spirit of monarchy. Hence it is a saying among the French lawyers, that, in France ^[5] all actions are ex bona fide.

CHAP. V.
In what Governments the Sovereign may be Judge.

MACHIAVEL ^[6] attributes the loss of the liberty of Florence, to the people's not judging in a body in cases of high treason against themselves, as was customary at Rome. For this purpose they had eight judges: but the few, says Machiavel, are corrupted by a few. I should willingly adopt the maxim of this great man. But as in those cases the political interest prevails in some measure over the civil (for it is always an inconveniency that the people should be judge in their own cause) in order to remedy this evil, the laws must provide as much as possible for the security of individuals.

With this view the Roman legislators did two things; they gave the persons accused, permission to banish themselves ^[7] before sentence was Book VI.
Chap. 5.pronounced^[8] ; and they ordained that the goods of those who were condemned should be sacred, to prevent their being confiscated to the people. We shall see in the XIth book the other limitations that were set to the power the people had of judging.

Solon knew how to prevent the abuse which the people might make of their power in criminal judgments. He ordained that the court of Areopagus should re-examine the affair; that if they believed the party accused was unjustly acquitted ^[9], they should accuse him again before the people; that if they believed him unjustly condemned^[10], they should put a slop to the execution, and make them rejudge the proceeding. An admirable law that subjected the people to the censure of the magistracy which they most revered, and even to their own!

In affairs of this kind it is always proper to throw in some delays, especially when the party accused is under confinement; to the end that the people may grow calm and give their judgment cooly.

In despotic governments the prince himself may be judge. But in monarchies this cannot be; the constitution by such means would be subverted, and the dependent intermediate powers annihilated ; all set forms of judgment would cease; fear would take possession of the people's minds, and paleness spread itself over every countenance: the more confidence, honor, affection, and security is in the subject, the more widely extended is the power of the monarch.

We shall give here a few more reflections on this point. In monarchies the prince is the party that prosecutes the persons accused, and causes them to be Book VI.
Chap. 5.punished or acquitted; now were he himself to fit as judge, he would be both judge and party.

In this government the prince has frequently the benefit of confiscations; so that here again by being judge himself of crimes, he would be both judge and party.

Farther, by this means he would deprive himself of the most glorious attribute of sovereignty, namely, that of granting pardon^[11]; for it would be quite ridiculous of him to make and unmake his decisions: surely he would not chuse to contradict himself. Besides, this would be confounding all ideas; it would be impossible to tell whether a man was acquitted, or received his pardon.

Lewis XIII. being desirous to fit as judge at the trial of the duke de la Valette^[12], assembled in his cabinet some members of the parliament together with some counsellors of state to consult about it: upon their being compelled by the king to give their opinion or judgment concerning the decree for his arrest, the president de Belevre said, "That he found it very strange a prince should pass sentence upon one of his subjects; that kings had reserved to themselves the power of pardoning, and left that of condemning to their officers; that his majesty wanted to see before him at the bar, a person who by his decision was to be hurried away in an hour's time into the other world! That this is what a prince's countenance, from whence savours flow, should never bear; that his presence alone Book VI.
CHap. 5.removed ecclesiastic censures; and that subjects ought not to go away dissatisfied from their prince." When sentence was passed, the same president said, "This is an unprecedented judgment, to see, contrary to the example of passages, a king of France in the quality of a judge, condemning a gentleman to death^[13]."

Again, sentences passed by the prince would be an inexhaustible source of injustice and abuse; the courtiers by their importunity would always be able to extort his decisions. Some Roman emperors were so mad as to sit as judges themselves; the consequence was, that no reigns ever so surprized the universe with oppression and injustice.

"Claudius, says Tacitus^[14], having appropriated to himself the judgment of law-suits and the functions of magistrates, gave occasion to all manner of rapine. But Nero upon his coming to the empire after Claudius, endeavoured to conciliate the minds of the people, by declaring, "That he would take care not to be judge himself in private causes, that the parties might not be exposed within the walls of a palace to the iniquitous power of a few freedmen^[15]."

"Under the reign of Arcadius, says Zozimus^[16], a swarm of calumniators spread themselves all round, and infected the court. Upon a person's decease it was immediately supposed be bad left no children^[17]; and in consequence of this, his property was given away by a rescript. For as the prince was surprizingly stupid, and the empress excessively enterprizing, she was a slave to the insatiable avarice of her domestics and confidents; insomuch that to Book VI.
Chap. 5. & 6.an honest man nothing could be more desirable than death."

"Formerly, says Procopius^[18], there used to be very few people at court; but in Justinian's reign, as the judges had no longer the liberty of administering justice, their tribunals were deserted, while the prince's palace resounded with the clamours of the several litigating parties." Every body knows what a prostitution there was at that court of public judgments and even of the very Jaws themselves.

The laws are the eye of the prince, by them he sees what he could not otherwise discern. Should he attempt the function of a judge, he would not then labour for himself, but for impostors that want to deceive him.

CHAP. VI.
That in Monarchies the Ministers ought not to be Judges.

IT is likewise a very great inconveniency in monarchies for the ministers of the prince to be judges. We have still instances of states where there are a great number of judges to determine fiscal controversies, and where the ministers notwithstanding (a thing almost incredible!) want likewise to determine them. Many are the reflections that here arise; but this single one will suffice for my purpose.

There is in the very nature of things a kind of contrast between a prince's council and his courts of judicature. The king's council ought to be composed of a few persons, and the courts of judicature of a great many. The reason is, in the former, Book VI.
Chap. 7. & 8.things should be undertaken, and pursued with a a kind of warmth and passion, which can hardly be expected but from four or five men who make it their sole business. On the contrary in courts of judicature a certain coolness is requisite, and an indifference in some measure to all manner of affairs.

CHAP. VII.
Of a single Magistrate.

A Magistracy of this kind cannot take place but in a despotic government. We have an instance in the Roman history how far a single magistrate may abuse his power. Might it not be very well expected that Appius on his tribunal should contemn the laws, after having violated the very law of his own^[19] enacting? Livy has given us the iniquitous distinction of the Decemvir. He had suborned a man to reclaim Virginia in his presence as his slave; Virginia's relations insisted that by virtue of his own law she should be consigned to them till the definitive judgment was passed. Upon which he declared that his law had been made only in favour of the father; and that as Virginius was absent, no application could be made of it to the present case^[20].

CHAP. VIII.
Of Accusations in different Governments.

IN Rome^[21] it was lawful for one citizen to accuse another; this was according to the Book VI.
Chap. 8.spirit of a republic, where each citizen ought to have an unlimited zeal for the public good, and where each citizen is supposed to hold the whole rights of his country in his hands. Under the emperors the republican maxims were still pursued; and instantly a pernicious set of men started up, a whole swarm of informers. Whosoever had numerous vices and abilities, a mean soul and an ambitious spirit, busied himself in the search of some criminal whose condemnation might be agreeable to the prince: this was the road to honor and fortune^[22]; but luckily we are strangers to it in our country.

We have at present an admirable law, namely that which requires that the prince who is established for the execution of the laws, should appoint an officer in each court of judicature to prosecute all sorts of crimes in his name: by this means the profession of informers is a thing unknown to us; for if this public avenger were suspected to abuse his office, he would soon be obliged to name his author.

By Plato's laws^[23], those who neglect to inform or to assist the magistrates, are liable to be punished. This would not be so proper in our days. The public prosecutor watches for the safety of the citizens; he proceeds in his office, while they enjoy the sweets of tranquillity.

CHAP. IX.
Of the Severity of Punishiments in different Governments.

Book VI.
Chap. 9.THE severity of punishments is fitter for despotic governments whose principle is terror, than for a monarchy or a republic whose spring is honor and virtue.

In moderate governments the love of one's country, shame and the fear of blame, are restraining motives, capable of preventing a great multitude of crimes. Here the greatest punishment of a bad action is conviction. The civil laws have therefore a softer way of correcting, and do not require so much force and severity.

In those states a good legislator is less bent upon punishing than preventing crimes; he is more attentive to inspire good morals than to inflict punishment.

It is a perpetual remark of the Chinese authors^[24], that the more the punishments of criminals were increased in their empire, the nearer they were to a revolution. This is because punishments were augmented in proportion as the public morals were corrupted.

It would be an easy matter to prove that in all or almost all the governments of Europe, punishments have increased or diminished in proportion as those governments favoured or discouraged liberty.

Book VI.
Chap. 9.In despotic governments people are so unhappy, as to have a greater dread of death than regret tor the loss of life; consequently their punishments ought to be more severe. In moderate stats, they are more afraid of losing their lives than apprehensive of the pain of dying; those punishments therefore that deprive them simply of life are sufficient.

Men in excess of happiness or misery are equally inclinable to severity; witness conquerors and monks. It is mediocrity alone and a mixture of prosperous and adverse fortune that inspire us with lenity and pity.

What we observe among particular men, is equally observable in different nations. In countries inhabited by savages who lead a very hard life, and in despotic governments, where there is only one person on whom fortune lavishes her favours, while the miserable subjects lye exposed to her insults, people are equally cruel. Lenity reigns in moderate governments.

When we read in history the horrid severity of the Sultans in the administration of justice, we feel a kind of pain upon considering the miseries of human nature.

In moderate governments, a good legislator may make use of every thing by way of punishment. Is it not a very extraordinary thing that one of the principal punishments at Sparta was to deprive a person of the power of lending out his wife, or of receiving the wife of another man, and to oblige him to have no company at home but virgins? In short whatever the law calls a punishment is such effectively.

CHAP. X.
Of the ancient French Laws.

Book VI.
Chap. 10. & 11.IN the ancient French laws we find the true spirit of monarchy. In cases relating to pecuniary punishments the common people are less severely punished than the nobility^[25]. But in criminal^[26] cases it is quite the reverse; the nobleman loses his honor and his voice in court, while the peasant, who has no honor to lose, undergoes a corporal punishment.

CHAP. XI.
That when People are virtuous, few Punishments are necessary.

THE people of Rome had some share of probity. Such was the force of this probity, that the legislator had frequently no farther occasion than to point out the right road, to induce them to follow it; one would imagine that instead of precepts it was sufficient to give them counsels.

The punishments of the regal laws and those of the twelve tables were almost all abolished in the time of the republic, in consequence either of the Valerian^[27], Book VI.
Chap. 12.or of the Porcian law^[28]. It was never observed that this step did any manner of prejudice to the civil administration.

This Valerian law which inhibited the magistrates from using any violent methods against a citizen that had appealed to the people, inflicted no other punishment on the person who infringed it, than that of being reputed a dishonest man^[29].

CHAP. XII.
Of the Power of Punishments.

EXPERIENCE shews that in countries remarkable for the lenity of penal laws, the spirit of the inhabitants is as much affected by them, as in other countries by severer punihments.

If an inconveniency or abuse arises in the state, a violent government endeavours suddenly to redress it; and instead of putting the old laws in execution, it establishes some cruel punishment which instantly puts a stop to the evil. But the spring of government hereby loses its elasticity; the imagination grows accustomed to the severe as well as to the milder punishment; and as the fear of the latter diminishes, they are soon obliged in every case to have recourse to the other. Robberies on the high-way were grown common in some countries; in order to remedy this evil, they Book VI.
Chap. 12.invented the punishment of breaking upon the wheel, the terror of which put a slop for a while to this mischievous practice. But soon after robberies on the high-ways were become as common as ever.

Desertion in our days was grown to a very great height; in consequence of this it was judged proper to punish deserters with death; and yet their number did not diminish. The reason is very natural; a soldier accustomed daily to venture his life, despises or affects to despise the danger of losing it. He is daily habituated to the fear of shame; 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 increased, while it was really diminished.

Men must not be led by excess of violence; we ought to make a prudent use of the means which nature has given us to conduct them. If we inquire into the cause of all 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 shame to man for his scourge; and let the heaviest part of the punishment be the infamy attending it.

But if there be some countries where shame is not a consequence of punishment, this must be owing to tyranny, which has inflicted the same punishments on villains and honest men.

And if there are others where men are deterred only by cruel punishments, we may be sure that this must in a great measure arise from the violence of the government, which has used such punishments for slight transgressions.

Book VI.
Chap. 12.It often happens that a legislator desirous of reforming an evil, thinks of nothing but of this reformation; his eyes are open only to this object, and shut to its inconveniencies. When the evil is redressed, there is nothing more seen but the severity of the legislator; yet there still remains an evil in the state that has sprung from this severity; the minds of the people are corrupted, and become habituated to despotic power.

Lysander^[30] having obtained a victory over the Athenians, the prisoners were ordered to be tried in consequence of an accusation brought against the Athenians of having thrown all the captives of two gallies down a precipice, and of having resolved in full assembly to cut off the hands of those whom they should chance to make prisoners. The Athenians were therefore all massacred, except Adymantes who had opposed this decree. Lysander reproached Philocles, before he was put to death, with having depraved the people's minds and given lessons of cruelty to all Greece.

"The Argives, says Plutarch^[31], having put fifteen hundred of their citizens to death, the Athenians ordered sacrifices of expiation, that it might please tbs Gods to turn the hearts of the Athenians from so cruel a thought."

There are two sorts 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.

CHAP. XIII.
Impotency of the Laws of Japan.

Book VI.
Chap. 13.EXCESSIVE punishments may even corrupt a despotic government; of this we have an instance in Japan.

Here almost all crimes are punished with death^[32], because disobedience to so great an emperor, as that of Japan, is reckoned an enormous crime. The question is not so much to correct the delinquent, as to vindicate the authority of the prince. These notions are derived from servitude, and are owing especially to this, that as the emperor is universal proprietor, almost all crimes are directly against his interests.

They punish with death lies spoken before the magistrate^[33]; a proceeding contrary to natural to defence.

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

True it is that the surprizing character of this obstinate, capricious, resolute, whimsical people, who defy all dangers and calamities, seems to absolve their legislators from the imputation of cruelty, notwithstanding the severity of their laws. But are men, who have a natural contempt of death, and who rip open their bellies for the least fancy, are such men, I say, 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 Book VI.
Chap. 13.they become hardened to punishment; that their slaves must not be too roughly used, because they immediately put themselves in a posture of defence. Would not one imagine that they might easily have judged of the spirit which ought to reign in their political and civil government, from that which should prevail in their domestic concerns?

A wise legislator would have endeavoured to reclaim people s minds by a just temperature of punishments and rewards; by maxims of philosophy, morality, and religion, adapted to these characters; by a just application of the rules of honor, and by the enjoyment of a constant happiness and soft tranquillity of life. But these are springs to which despotic power is a stranger; it may abuse itself, and that is all it can do: in Japan it has made its utmost effort, and has surpassed even itself in cruelty.

As the minds of the people by this means grew wild and intractable, they were obliged to have recourse to the most horrid severity. This is the origin, this the spirit of the laws of Japan. They had more fury however than force. They succeeded in the extirpation of Christianity; but such unaccountable efforts are a proof of their impotence. They wanted to establish a good polity, and they have shewn greater marks of their weakness.

We have only to read the relation of the interview between the emperor and the Deyro at Meaco^[34]. The number of those who were suffocated or murdered in that city by ruffians, is incredible; young maids and boys were carried off by force, and found afterwards exposed in public places, at unseasonable hours, quite naked and sown in Book VI.
Chap. 14.line bagsnen bags, to prevent their knowing which way they had passed; robberies were committed in all parts, the bellies of horses were ripped open to bring their riders to the ground, and coaches were overturned in order to strip the ladies. The Dutch, who were told they could not pass the night on the scaffolds without exposing themselves to the danger of being assassinated, came down, etc.

I shall I here give one instance more from the same nation. The emperor having abandoned himself to infamous pleasures, lived unmarried, and was consequently in danger of dying without issue. The Deyro sent him two beautiful young virgins; one he married out of respect, but would not meddle with her. His nurse caused the finest women of the empire to be sent for, but all to no purpose. At length an armorer's daughter having pleased his fancy^[35] he determined to marry her, and had a son. The ladies belonging to court, enraged to see a person of such mean extraction preferred to themselves, stifled the child. The crime was concealed from the emperor; for he would have spilt a torrent of blood. The excessive severity of the laws hinders therefore their execution: when the punishment surpasses all measure, they are frequently obliged to prefer impunity to it.

CHAP. XIV.
Of the Spirit of the Roman Senate.

UNDER the consulate of Acilius Glabrio and Piso, the Acilian law^[36] was made to Book VI.
Chap. 15.prevent the intriguing for places. Dio says^[37] that the senate engaged the consuls to propose it, by reason that C. Cornelius the tribune had resolved to cause most severe punishments to be established against this crime; to which the people seemed greatly inclined. The senate rightly judged that immoderate punishments would strike indeed a terror into people's minds, but must have also this effect, that there would be no body afterwards to accuse or condemn; whereas by proposing moderate punishments there would be always judges and accusers.

CHAP. XV.
Of the Roman Laws in respcct to Punishments.

I AM strongly confirmed in my sentiments upon finding the Romans on my side, and I think that punishments are connected with the nature of the government, when I behold this great people changing in this respect their civil laws in proportion as they altered their form of government.

The regal laws made for a multitude composed of fugitives, slaves, and vagabonds, were very severe. The spirit of a republic would have required that the Decemvirs should not have inserted those laws in their twelve tables; but men who aimed at tyranny were far from conforming to a republican spirit.

Livy^[38] says in relation to the punishment of Metius Suffetius, dictator of Alba, who was condemned by Tullus Hostilius to be pulled to pieces by two chariots, that this was the first and last punishment in which the remembrance of Book VI.
Chap. 15.humanity seemed to have been lost. He is mistaken; the law of the twelve tables is full of very cruel punishments^[39].

The design of the decemvirs appears most conspicuous in the capital punishment pronounced against libellers and poets. This is not agreeable to the genius of a republic, where the people like to see the great men humbled. But persons that aimed at the subversion of liberty, were afraid of writings that might revive its spirit^[40].

After the expulsion of the decemvirs, almost all the penal laws were abolished. It is true they were not expressly repealed; but as the Porcian law had ordained that no citizen of Rome should be put to death, they were of no further use.

This is exactly the time to which we may refer what Livy says^[41] cf the Romans, that no people were ever fonder of moderation in punishments.

But if to the lenity of punishments we add the right which the party accused had of withdrawing before judgment was pronounced, we shall find that the Romans followed the spirit which I have observed to be natural to a republic.

Sylla who confounded tyranny, anarchy, and liberty, made the Cornelian laws. He seemed to have contrived regulations merely with a view to create new crimes. Thus distinguishing an infinite number of actions by the name of murder, he found murderers in all parts; and by a practice but too much followed, he laid snares, sowed thorns, and Book VI.
Chap. 15.opened precipices, wheresoever the citizens set their feet.

Almost all Sylla's laws contained only the interdiction of fire and water. To this Caesar added the consiscation of goods^[42], because the rich, by preserving their estates in exile, became bolder in the perpetration of crimes.

The emperors having established a military government, soon found that it was as terrible to the the prince as to the subject; they endeavoured therefore to temper it, and with this view had recourse to dignities and to the respect with which those dignities were attended.

The government thus drew nearer a little to monarchy, and punishments were divided into three classes^[43]; those which related to the principal persons in the the state^[44], which were very mild; those which were inflicted on persons of an inferior rank^[45], and were more severe; and in fine such as concerned only persons of the lowest condition^[46], which were the most rigorous.

Maximinus, that fierce, that stupid prince, increased the rigour of the military government which he ought to have softened. The senate were informed, says Capitolinus^[47], that some had been crucified, others exposed to wild beasts, or sewed up in the skins of beasts lately killed, without any manner of regard to their dignity. It seemed as if he wanted to exercise the military discipline, on the model of which he pretended to regulate the civil administration.

In the considerations on the rise and declension of the Roman grandeur, we find, in what manner Book VI.
Chap. 16.Constantine changed the military government into a military and civil one, and drew nearer to Monarchy. There we may trace the different revolutions of this state, and see how they fell from rigor to indolence, and from indolence to impunity.

CHAP. XVI.
Of the just Proportion betwixt Punishments and Crimes.

IT is an essential point that there should be a certain proportion in punishments, because it is essential that a great crime should be avoided rather than a lesser, and that which is more pernicious to society rather than that which is less.

"An impostor^[48], who called himself Constantine Ducas, raised a great insurrection at Constantinople. He was taken and condemned to be whipt; but upon informing against several persons of distinction, he was condemned to be burnt as a calumniator." It is very extraordinary that they should thus proportion the punishments betwixt the crime of high treason and that of calumny.

This puts me in mind of a saying of Charles II. king of Great Britain. He saw a man one day standing in the pillory; upon which he asked what crime the man had committed. He was answered, Please your majesty he has wrote a libel against your ministers. The fool! said the king, why did he not write against me? they would have done nothing to him.

"Seventy persons having conspired against the emperor Basil^[49]; he ordered them to be whipt, and the hair of their head and beards to be burnt. Book VI.
Chap. 16.A stag one day having taken hold of him by the girdle with his horn, one of his retinue drew his sword, cut the girdle, and saved him; upon which he ordered that person's head to be cut off, for having, said he, drawn his sword against his sovereign." Who could imagine that the same prince could ever have passed two such different judgments?

It is a great abuse amongst us to condemn to the same punishment a person that only robs on the high-way, and another that robs and murders. Surely for the public security some difference should be made in the punishment.

In China those who add murder to robbery, are cut in pieces^[50]; but not so the others: to this difference it is owing that though they rob in that country, yet they never murder.

In Russia where the punishment of robbery and murder is the same, they always murder^[51]. The dead, say they, tell no tales.

When there is no difference in the punishment, there should be some in the expectation of pardon. In England they never murder on the high-way, because robbers have some hopes of transportation, which is never the case in respect to those that commit murder.

Letters of grace are of excellent use in moderate governments. This power which the prince has of pardoning, exercised with prudence, is capable of producing admirable effects. The principle of despotic government, which neither grants nor receives any pardon, deprives it of these advantages.

CHAP. XVII.
Of the Rack.

Book VI.
Chpa. 17.THE wickedness of mankind makes it necessary for the laws to suppose them better than they are. Hence the deposition of two witnesses is sufficient in the punishment of all crimes. The law believes them as if they spoke by the mouth of truth. Thus we judge that every child conceived in wedlock is legitimate; the law having a confidence in the mother as if she were chastity itself. But the use of the rack against criminals cannot be defended on a like plea of necessity.

We have before us the example of a nation blessed with an excellent civil government^[52], where without any inconvenicncy the practice of racking criminals is rejected. It is not therefore in its own nature necessary^[53].

So many men of learning and genius have wrote against the custom of torturing criminals, that after them I durst not presume to meddle with the subject. I was going to say that it might suit despotic states, where whatever inspires fear is the properest spring of government; I was going to say that the slaves among the Greeks and Book VI.
Chap. 178. & 19.Romans——But I heard the voice of nature cry out loudly against me.

CHAP. XVIII.
Of pecuniary and corporal Punishments.

OUR ancestors the Germans admitted of none but pecuniary punishments. Those free and warlike people were of opinion that their blood ought not to be spilt but with sword in hand. On the contrary, these punishments are rejected by the Japanese^[54], under pretence that the rich might elude them. But are not the rich afraid of being stripped of their property? And might not pecuniary punishments be proportioned to people's fortunes? and in fine, might not infamy be added to these punishments?

A good legislator takes a just medium; he ordains neither always pecuniary, nor always corporal punishments.

CHAP. XIX.
Of the Law of Retaliation.

THE use of the law of retaliation^[55] is very frequent in despotic countries, where they are fond of simple laws. Moderate governments admit of it sometimes; but with this difference, that the former exercise it in full rigour, and among the latter it always receives some kind of limitation.

The law of the twelve tables admitted two; first it never condemned to retaliation but when the Book VI.
Chap. 20. & 21.plaintiff could not be satisfied in any other manner^[56], secondly, after condemnations they might pay damages and interest^[57], and then the corporal was changed into a pecuniary punishment^[58].

CHAP. XX.
Of the Punishment of Fathers for the Crimes of their Children.

IN China fathers are punished for the crimes of their children. This was likewise the custom Peru^[59]; a custom derived from the notion of despotic power.

Little does it signify to say that in China the father is punished for not having exerted that paternal authority which nature has established and the laws themselves have improved. This still supposes that there is no honor among the Chinese. Amongst us, parents whose children are condemned to punishment, and children^[60] whose parents have undergone the like fate, are as severely punished by shame, as they would be in China by the loss of their lives.

CHAP. XXI.
Of the Clemency of the Prince.

CLEMENCY is the peculiar characteristic of monarchs. In republics whose principle is virtue, it is not so necessary. In despotic Book VI.
Chap. 21.governments where fear predominates, it is less customary, because the great men are to be restrained by examples of severity. It is more necessary in monarchies, where they are governed by honor, which frequently requires what the very law forbids. Disgrace is here equivalent to chastisement; and even the formalities of justice are punishments. This is because particular kinds of punishment are formed by shame which on every side invades the delinquent.

The great men in monarchies are so heavily punished by disgrace, by the loss (though often imaginary) of their fortune, credit, acquaintances, and pleasures, that rigour in respect to them is needless. It can tend only to divest the subject of the affection he has for the person of his prince, and of the respect he ought to have for public posts and employments.

As the instability of the great is natural to a despotic government, so their security is interwoven with the nature of monarchy.

So many are the advantages which monarchs gain by clemency; such love, such glory attends it; that it is generally a point of happiness to have an opportunity of exercising it; which in these parts is seldom wanting.

Some branch perhaps of their authority, but never hardly the whole will be disputed: and if they sometimes fight for their crown; they do not fight for their life.

But some may ask, when is it proper to punish, and when to pardon? This is a point that is easier felt than prescribed. When there is danger in the Book VI.
Chap. 21. exercise of clemency, the danger is visible; it is an easy matter to distinguish it from that imbecillity which exposes princes to contempt and to the very incapacity of punsfhing.

The emperor Maurice^[61] made a resolution never to spill the blood of his subjects. Anastasius^[62] punished no crimes at all. Isaac Angelus took an oath that no one should be put to death, during his reign. Those Greek emperors had forgot that it was not for nothing they were intrusted with the sword.

 

1. In Mazulipatan it could never be found out that there was such a thing as written law. See the collection of voyages that contributed to the establishment of the India company, Tom. IV. Part I. p.391. The Indians are regulated in their judgments by certain customs. The Vedan and such like books do not contain civil laws, but religious precepts. See Lettres, Ed, 14. collect.
2. Caesar, Cromwell, and many others.
3. Non liquet.
4. Lnas aeiones ne populus prout vellet institueret, certas solemnesque esse voluerunt. L. 2.§6. Digest de Orig. Jur.
5. In France a person though sued for more than he owes, loses notwithstanding his costs, if he has not offered to pay as much as he owes.
6. Discourse on the first Decad of Livy. book 1. chap. 7.
7. This is well explained in Cicero s oration pro Caecina, towards the end.
8. This was a law at Athens, as appears by Demosthenes. Socrates refused to make use of it.
9. Demoszhens pro corona. p. 494, edit. Frankf. An. 1604.
10. See Philostratus's lives of the Sophists, book 1. Life of Aeschines.
11. Plato does not think it right that kings, who, as he says, are priests, should preside at judgments where people are condemned to death, to exile, or imprisonment.
12. See the relation of the trial of the duke de La Valette. It is printed in the memoirs of Montresor. Tom. 2. p. 62.
13. It was afterwards revoked. See the same relation.
14. Annal lib. 11.
15. Ibid. lib. 13.
16. Hist. lib. 5.
17. The same disorder happened under Theodosius the younger.
18. Secret History.
19. See the 2d law. § 24 ff. de Orig. Jur.
20. Quod aterpuellae abesset locum injuriae esse ratus. Livius Dec. 1. lib. 3.
21. And in a great many other cities.
22. See in Tacitus the rewards given to these informers.
23. Lib. 9.
24. I shall shew hereafter that China is in this respect in the same case as a republic or a monarchy.
25. Suppose for instance, to prevent the execution of a decree, the common people paid a fine of forty sous, and the nobility of sixty Livres: Somme Rule. Book 2. p. 198. edit. Got. of the year 1512.
26. See the council of Peter Desontaines, c. 13. especially the 22d. art.
27. It was made by Valerius Publicola soon after the expulsion of the kings, and was twice renewed, both times by magistrates of the same family, as Livy observes, 1. 10, the question was not to give it a greater force, but to render its injunctions more perfect. Diligentius sanctum, says Livy, ibid.
28. Lex Porcia pro tergo civium lata. It was made in the 454th year of the foundation of Rome.
29. Nibil ultra quam improbe facturn adjecit. Liv.
30. Xenoph. hist. lib. 3.
31. Morals of those who are intrusted with the direction of sate affairs.
32. See Kempfer.
33. Collection of voyages that contributed to the establishment of the East India Company. Tom. 3. 428.
34. Collection of voyages that contributed to the establishment of the East India Company. Tom. 5. p.2.
35. Ibid.
36. Those that were guilty were condemned to a fine; they could not be admitted into the rank of senators, nor nominated to any public office. Dio Book 36.
37. Book 36.
38. Lib. 1.
39. We find there the punishment of fire, and almost always capital punishments, theft, punished with death, etc.
40. Sylla animated with the same spirit as the decemvirs, followed their example in augmenting the penal laws against satyrical writers.
41. Book 1.
42. Poenas facinorum auxit. cum locupletes eo facilius scelere se obligarent, quod integris patrimoniis exularent. Suet in Jul. Caesare.
43. See the 3d law §. Legis ad leg. Cornel. de Sicariis, and a vast number of others in the Digest and in the Codex.
44. Sublimiores.
45. Medios.
46. Insimos leg. 3. §. legis ad leg. Cornel, de Sicariis.
47. Jul. Cap. Maximini duo.
48. Hist. of Nicephorus, patriarch of Constantinople.
49. In Nicephorus's history.
50. Duhalde, Tom. . p.6.
51. Present state of Russia by Perry.
52. The English.
53. The citizens of Athens could not be put to the rack (Lysias grat. in Agorat.) unless it was for high treason. The torture was used within thirty days after condemnation (Curius Fortunetun Rhetor. Sebol. lib. 2.) There was no preparatory torture: In regard to the Romans, the 3d and 4th law ad leg. Juliam Majest shews that birth, dignity, and the military profession exempted people from the rack, except in cases of high treason. See the prudent restrictions of this practice made by the laws of the Vingoths.
54. See Kempfer
55. It is established in the Koran: See the chapter of the Cow.
56. Si membrum rupit, ni cum eo pacit, talio esto. Aulus Gelhus, lib. 20. cap. 1.
57. Ibid.
58. See also the law of the Visigoths, Book 6. tit 4. § 3. & 5.
59. See Gardlasso, history of the civil wars of the Spamards.
60. Instead of punishing them, says Plato, they ought to be commended for not having followed their father's example. Book 9. of laws.
61. Evagr. hist.
62. Frag of Suidas in Costant. Porphyreg.