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
1. Of the Simplicity of Civil Laws in different
Governments. 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 learned, that 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 fixed 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 honour, 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 surprised 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
The difference of rank, birth, and condition established in monarchical
governments is frequently attended with distinctions in the nature of
property; and the laws relating to the constitution of this government may
augment the number of these distinctions. Hence, among us goods are
divided into real estates, purchases, dowries, paraphernalia, paternal and
maternal inheritances; movables 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 have become hereditary. It was necessary
that the nobility should have a fixed property, that is, the fief should
have a certain consistency, to the end that the proprietor 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 as the despotic prince knows
nothing, and can attend to nothing, he must take general measures, and
govern by a rigid and inflexible will, which throughout his whole
dominions produces the same effect; in short, everything bends under his
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, to which all human regulations are liable. 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 contradiction or
uncertainty of the law.
In governments where there are necessary distinctions of persons, there
must likewise be privileges. This also diminishes the simplicity, and
creates a thousand exceptions.
One of the privileges least burdensome to society, and especially to him
who confers it, is that of pleading in one court in preference to another.
Here new difficulties arise, when it becomes a question before which court
we shall plead.
Far different is the case of the 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 scarcely any civil laws in regard to landed property. From
the right the sovereign has to successions, it follows, likewise, that
there are none relating to inheritances. The monopolies established by the
prince for himself in some countries render all sorts of commercial laws
quite useless. The marriages which they usually contract with female
slaves are the cause that there are scarcely 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 master's will, are
regulated by them, and not by the magistrates.
I forgot to observe that as what we call honour is a thing hardly known
in those countries, the several difficulties relating to this article,
though of such importance with us, are with them quite out of the
question. Despotic power is self-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
All occasions, therefore, of wrangling and law-suits are here removed.
And to this in part is it owing that litigious 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.
2. Of the Simplicity of Criminal Laws in
different Governments. We hear it generally said, that justice ought
to be administered with us as in Turkey. Is it possible, then, that the
most ignorant of all nations should be the most clear-sighted on a point
which it most behoves mankind to know?
If we examine the set forms of justice with 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 numerous: but
if we consider them in the relation they bear to the liberty and security
of every individual, we shall often find them too few; and be convinced
that the trouble, expense, delays, and even the very dangers of our
judiciary proceedings, are the price that each subject pays for his
In Turkey, where little regard is shown to the honour, life, or estate
of the subject, all causes are speedily decided. The method of determining
them is a matter of indifference, provided they be determined. The pasha,
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 be of a litigious disposition; this
supposes a strong desire of obtaining justice, a settled aversion, an
active mind, and a steadiness in pursuing one's point. All this should be
avoided in a government where fear ought to be the only prevailing
sentiment, and in which popular disturbances are 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
entirely 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 stripped of his honour or property until 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 reducing the number of laws. In a government thus
constituted they are more affected with particular inconveniences 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 honour, 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 everything; in the
latter, because they are nothing.
3. In what Governments and in what Cases the
Judges ought to determine according to the express Letter of the Law.
The nearer a government approaches towards a republic, the more the manner
of judging becomes settled and fixed; hence 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 inconvenience of this proceeding
was soon felt, and they were obliged to have recourse to express and
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;
otherwise the law might be explained to the prejudice of every citizen, in
cases where their honour, property, or life is concerned.
At Rome the judges had no more to do than to declare that the persons
accused were 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 give their verdict whether the fact brought under their
cognisance be proved or not; if it be proved, the judge pronounces the
punishment inflicted by the law, and for this he needs only to open his
4. Of the Manner of passing Judgment. Hence
arise the different modes of passing judgment. In monarchies the judges
choose the method of arbitration; they deliberate together, they
communicate their sentiments for the sake of unanimity; they moderate
their opinions, in order to render them conformable to those of others:
and the lesser number are obliged to give way to the majority. 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 in 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 restrictions 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 of 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 necessary to fix the state of the question, that
the people might have it always before their eyes. Otherwise, in a long
process, this state of the question would continually change, and be no
Hence it followed that the Roman judges granted only the simple demand,
without making any addition, deduction, or limitation. But the prętors
devised other forms of actions, which were called ex bona fide, in
which 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 France5
all actions are ex bona fide.
5. In what Governments the Sovereign may be
Judge. Machiavel6 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 inconvenience
that the people should be judges in their own cause), in order to remedy
this evil, the laws must provide as much as possible for the security of
With this view the Roman legislators did two things: they gave the
persons accused permission to banish themselves7
before sentence was 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
Book XI the other limitations that were set to the judicatory power
residing in the people.
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 acquitted9 they should
impeach him again before the people; that if they believed him unjustly
condemned10 they should prevent the
execution of the sentence, 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 coolly.
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, honour, affection, and security in the subject, the more
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 person accused, and causes him
to be punished or acquitted. Now, were he himself to sit upon the trial,
he would be both judge and party.
In this government the prince has frequently the benefit of
confiscation, so that here again, by determining criminal causes, he would
be both judge and party.
Further, by this method 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 choose 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.
Louis XIII being desirous to sit in judgment upon the trial of the Duke
de la Valette,12 sent for some
members of the parliament and of the privy council, to debate the matter;
upon their being ordered by the king to give their opinion concerning the
warrant for his arrest, the president, De Believre, said "that he
found it very strange that a prince should pass sentence upon a subject;
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 into the other world! That the prince's countenance should inspire
with hopes, and not confound with fears; that his presence alone removed
ecclesiastic censures; and that subjects ought not to go away dissatisfied
from the sovereign." When sentence was passed, the same magistrate
declared, "This is an unprecedented judgment to see, contrary to the
example of past ages — 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 surprised
the world with oppression and injustice.
"Claudius," says Tacitus,14
"having appropriated to himself the determination of lawsuits, and
the function of magistrates, gave occasion to all manner of rapine."
But Nero, upon 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 influence of a
"Under the reign of Arcadius," says Zozimus,16
"a swarm of calumniators spread themselves on every side, and
infested the court. Upon a person's decease, it was immediately supposed
he had left no children;17 and, in
consequence of this, his property was given away by a rescript. For as the
prince was surprisingly stupid, and the empress excessively enterprising,
she was a slave to the insatiable avarice of her domestics and confidants;
insomuch that to an honest man nothing could be more desirable than death."
"Formerly," says Procopius18
"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
litigious clamours of the several parties." Everybody knows what a
prostitution there was of public judgments, and even of the very laws
themselves, at that emperor's court.
The laws are the eye of the prince; by them he sees what would otherwise
escape his observation. Should he attempt the function of a judge, he
would not then labour for himself, but for impostors, whose aim is to
6. That in Monarchies Ministers ought not to sit
as Judges. It is likewise a very great inconvenience in monarchies for
the ministers of the prince to sit as judges. We have still instances of
states where there are a great number of judges to decide exchequer
causes, and where the ministers nevertheless (a thing most incredible!)
would fain 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, things should be undertaken and
conducted with 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 in requisite, and an
indifference, in some measure, to all manner of affairs.
7. 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 all laws, after having violated that of his own enacting?19
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 relatives 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 enacted only in favour of the father, and
that as Virginius was absent, no application could be made of it to the
8. Of Accusation in different Governments. At
Rome21 it was lawful for one
citizen to accuse another. This was agreeable to the spirit of a republic,
where each citizen ought to have an unlimited zeal for the public good,
and is supposed to hold all the rights of his country in his own hands.
Under the emperors, the republican maxims were still pursued; and
instantly appeared a pernicious tribe, a swarm of informers. Crafty,
wicked men, who could stoop to any indignity to serve the purposes of
their ambition, were sure to busy themselves in the search of criminals
whose condemnation might be agreeable to the prince; this was the road to
honour and preferment,22 but
luckily we are strangers to it in our country.
We have at present an admirable law, namely, that by which the prince,
who is established for the execution of the laws, appoints an officer in
each court of judicature to prosecute all sorts of crimes in his name;
hence 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 mention his author.
By Plato's Laws23 those
who neglect to inform or to. assist the magistrates are liable to
punishment. 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 their quiet and ease.
9. Of the Severity of Punishments in different
Governments. The severity of punishments is fitter for despotic
governments, whose principle is terror, than for a monarchy or a republic,
whose spring is honour and virtue.
In moderate governments, the love of one's country, shame, and the fear
of blame are restraining motives, capable of preventing a 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
It is a constant remark of the Chinese authors24
that the more the penal laws were increased in their empire, the nearer
they drew towards 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, penalties have increased or diminished in
proportion as those governments favoured or discouraged liberty.
In despotic governments, people are so unhappy as to have a greater
dread of death than regret for the loss of life; consequently their
punishments ought to be more severe. In moderate states they are more
afraid of losing their lives than apprehensive of the pain of dying; those
punishments, therefore, which 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 inspires us with lenity and pity.
What we see practised by individuals is equally observable in regard to
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 lie exposed to her
insults, people are equally cruel. Lenity reigns in moderate governments.
When in reading history we observe the cruelty of the sultans in
administration of justice, we shudder at the very thought of the miseries
of human nature.
In moderate governments, a good legislator may make use of everything by
way of punishment. Is it not very extraordinary that one of the chief
penalties 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.
10. Of the ancient French Laws. In the
ancient French laws we find the true spirit of monarchy. In cases relating
to pecuniary mulcts, the common people are less severely punished than the
nobility.25 But in criminal26
cases it is quite the reverse; the nobleman loses his honour and his voice
in court, while the peasant, who has no honour to lose, undergoes a
11. 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 further
occasion than to point out the right road, and they were sure to follow
it; one would imagine that instead of precepts it was sufficient to give
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 Valerian27 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 restrained the magistrates from using 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
12. Of the Power of Punishments. Experience
shows that in countries remarkable for the lenity of their laws the spirit
of the inhabitants is as much affected by slight penalties as in other
countries by severer punishments.
If an inconvenience 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 the
milder punishment; and as the fear of the latter diminishes, they are soon
obliged in every case to have recourse to the former. Robberies on the
highway became common in some 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 mischievous practice. But soon after
robberies on the highways became as common as ever.
Desertion in our days has grown to a very great height; in consequence
of which it was judged proper to punish those delinquents with death; and
yet their number did not diminish. The reason is very natural; a soldier,
accustomed to venture his life, despises, or affects to despise, the
danger of losing it. He is habituated to the fear of shame; it would have
been therefore much better to have continued a punishment30
which branded him with infamy for life; the penalty was pretended to be
increased, while it really diminished.
Mankind must not be governed with too much severity; 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 criminals, and not from the moderation of
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
penalties 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 penalties for slight
It often happens that a legislator, desirous of remedying an abuse,
thinks of nothing else; his eyes are open only to this object, and shut to
its inconveniences. When the abuse is redressed, you see only the severity
of the legislator; yet there remains an evil in the state that has sprung
from this severity; the minds of the people are corrupted, and become
habituated to despotism.
Lysander31 having obtained a
victory over the Athenians, the prisoners were ordered to be tried, in
consequence of an accusation brought against that nation of having thrown
all the captives of two galleys 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 Phylocles,
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,32
"having put fifteen hundred of their citizens to death, the Athenians
ordered sacrifices of expiation, that it might please the gods to turn the
hearts of the Athenians from so cruel a thought."
There are two sorts of corruptions — 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.
13. Insufficiency of the Laws of Japan.
Excessive punishments may even corrupt a despotic government; of this we
have an instance in Japan.
Here almost all crimes are punished with death,33
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
They punish with death lies spoken before the magistrate;34
a proceeding contrary to natural 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
True it is that the character of this people, so amazingly obstinate,
capricious, and resolute as to 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 for
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 prospect 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 punishment; that their slaves must not be too
roughly used, because they immediately stand upon their 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 by a just
temperature of punishments and rewards; by maxims of philosophy, morality,
and religion, adapted to those characters; by a proper application of the
rules of honour, and by the enjoyment of ease and tranquillity of life.
And should he have entertained any apprehension that their minds, being
inured to the cruelty of punishments, would no longer be restrained by
those of a milder nature, he would have conducted himself35
in another manner, and gained his point by degrees, in particular cases
that admitted of any indulgence, he would have mitigated the punishment,
till he should have been able to extend this mitigation to all cases.
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 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 the extirpation of Christianity;
but such unaccountable efforts are a proof of their insufficiency. They
wanted to establish a good policy, and they have shown greater marks of
We have only to read the relation of the interview between the Emperor
and the Deyro at Meaco.36 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 sewn in linen 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, &c.
I shall 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 damsels; 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 armourer's daughter having pleased
his fancy,37 he determined to
espouse her, and had a son. The ladies belonging to the 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 deluged
the land with 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.
14. Of the Spirit of the Roman Senate. Under
the consulate of Acilius Glabrio and Piso, the Asilian law38
was made to prevent the intriguing for places. Dio says39
that the senate engaged the consuls to propose it, by reason that C.
Cornelius, the tribune, had resolved to cause more 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 nobody afterwards to accuse or condemn;
whereas, by proposing moderate penalties, there would be always judges and
15. Of the Roman Laws in respect 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
governments 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 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 says,40 in relation to the
punishment of Metius Suffetius, dictator of Alba, who was condemned by
Tullius Hostilius to be fastened to two chariots drawn by horses, and torn
asunder, that this was the first and last punishment in which the
remembrance of humanity seemed to have been lost. He is mistaken; the
Twelve Tables are full of very cruel laws.41
The design of the decemvirs appears more 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 who aimed at the subversion of liberty were afraid of
writings that might revive its spirit.42
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 says43
of the Romans, that no people were ever fonder of moderation in
But if to the lenity of penal laws 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
Sulla, 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 too much
followed, he laid snares, sowed thorns, and opened precipices, wheresoever
the citizens set their feet.
Almost all Sulla's laws contained only the interdiction of fire and
water. To this Cęsar added the confiscation of goods44
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 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:45
those which related to the principal persons in the state,46
which were very mild: those which were inflicted on persons of an inferior
rank,47 and were more severe; and,
in fine, such as concerned only persons of the lowest condition,48
which were the most rigorous.
Maximinus, that fierce and stupid prince, increased the rigour of the
military government which he ought to have softened. The senate were
informed, says Capitolinus,49 that
some had been crucified, others exposed to wild beasts, or sewn 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 Consideration on the Rise and Declension of the Roman
Grandeur50 we find in what
manner Constantine changed the military despotism into a military and
civil government, and drew nearer to monarchy. There we may trace the
different revolutions of this state, and see how they fell from rigour to
indolence, and from indolence to impunity.
16. Of the just Proportion between 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 smaller, and that which is more pernicious
to society rather than that which is less.
"An impostor,51 who called
himself Constantine Ducas, raised a great insurrection at Constantinople.
He was taken and condemned to be whipped; but upon informing against
several persons of distinction, he was sentenced to be burned as a
calumniator." It is very extraordinary that they should thus
proportion the punishments between the crime of high treason and that of
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 written 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, he
ordered them to be whipped, and the hair of their heads and beards to be
burned. 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."52
Who could imagine that the same prince could ever have passed two such
It is a great abuse amongst us to condemn to the same punishment a
person that only robs on the highway and another who robs and murders.
Surely, for the public security, some difference should be made in the
In China, those who add murder to robbery are cut in pieces:53
but not so the others; to this difference it is owing that though they rob
in that country they never murder.
In Russia, where the punishment of robbery and murder is the same, they
always murder.54 The dead, say
they, tell no tales.
Where there is no difference in the penalty, there should be some in the
expectation of pardon. In England they never murder on the highway,
because robbers have some hopes of transportation, which is not 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
17. Of the Rack. The wickedness of mankind
makes it necessary for the law to suppose them better than they really
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,55 where without
any inconvenience the practice of racking criminals is rejected. It is
not, therefore, in its own nature necessary.56
So many men of learning and genius have written against the custom of
torturing criminals, that after them I dare not presume to meddle with the
subject. I was going to say that it might suit despotic states, where
whatever inspires fear is the fittest spring of government. I was going to
say that the slaves among the Greeks and Romans — but nature cries
out aloud, and asserts her rights.
18. 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 spilled but with sword in hand. On the contrary, these punishments
are rejected by the Japanese,57
under pretence that the rich might elude them. But are not the rich afraid
of being stripped of their property? And might not pecuniary penalties be
proportioned to people's fortunes? And, in fine, might not infamy be added
to those punishments?
A good legislator takes a just medium; he ordains neither always
pecuniary, nor always corporal punishments.
19. Of the Law of Retaliation. The use of the
law of retaliation58 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, whereas among the latter it ever
receives some kind of limitation.
The law of the Twelve Tables admitted two: first, it never condemned to
retaliation, but when the plaintiff could not be satisfied in any other
manner.59 Secondly, after
condemnation they might pay damages and interest,60
and then the corporal was changed into a pecuniary punishment.61
20. 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 of Peru62
— 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 honour
among the Chinese. Amongst us, parents whose children are condemned by the
laws of their country, and children63
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.
21. Of the Clemency of the Prince. Clemency
is the characteristic of monarchs. In republics, whose principle is
virtue, it is not so necessary. In despotic 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 honour, which frequently requires what the very
law forbids. Disgrace is here equivalent to chastisement; and even the
forms of justice are punishments. This is because particular kinds of
penalty 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, so greatly
does it raise their fame, and endear them to their subjects, that it is
generally happy for them to have an opportunity of displaying it; which in
this part of the world 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 it is proper to punish, and when to pardon. This
is a point more easily felt that prescribed. When there is danger in the
exercise of clemency, it is visible; nothing so easy as to distinguish it
from that imbecility which exposes princes to contempt and to the very
incapacity of punishing.
The Emperor Maurice made a resolution never to spill the blood of his
subjects. Anastasius64 punished no
crimes at all. Isaac Angelus took an oath that no one should be put to
death during his reign. Those Greek emperors forgot that it was not for
nothing they were entrusted with the sword.
1. In Mazulipatam it could never be
found out that there was such a thing as a written law. See the Collection
of Voyages that Contributed to the Establishment of the East India Company,
iv., part I, p. 391. The Indians are regulated in their decisions by
certain customs. The Vedan and such books do not contain civil laws, but
religious precepts. See Edifying Letters, coll. xiv.
2. Cęsar, Cromwell, and many
3. Non liquet.
4. Quas actiones ne populus prout
vellet institueret, certas solemnesque esse voluerunt — Dig. de Orig.
Jur., ii, § 6.
5. In France a person, though sued
for more than he owes, loses his costs if he has not offered to pay the
6. Discourse on the first decade of
Livy, i. 7.
7. This is well explained in Cicero's
oration Pro Cęcina, towards the end, 100.
8. This was the law at Athens, as
appears by Demosthenes. Socrates refused to make use of it.
9. Demosthenes, Pro Corona,
p. 494, Frankfort, 1604.
10. See Philostratus, Lives of
the Sophists, i. Life of Ęschines.
11. Plato does not think it right
that kings, who, as he says, are priests, should preside at trials where
people are condemned to death, to exile, or to imprisonment.
12. See the account of the trial of
the Duke de la Valette. It is printed in the Memoirs of Montresor,
ii, p. 62.
13. It was afterwards revoked. See
the same account, ii. p. 236. It was ordinarily a right of the peerage
that a peer criminally accused should be judged by the king, as Francis II
in the trial of the Prince of Condé, and Charles VII in the case of
the Duc d'Alenēon. To-day, the presence of the king at the trial of
a peer, in order to condemn him would seem an act of tyranny. — Voltaire.
14. Annals, xi. 5.
15. Ibid., xiii. 4.
16. Histories, v.
17. The same disorder happened under
Theodosius the younger.
18. Secret History.
19. See Leg. 2, § 24,
Dig. ff. de orig. jur.
20. Quod pater puellce abesset,
locum injuria esse ratus. — Livy, dec. I, iii. 44.
21. And in a great many other cities.
22. See in Tacitus the rewards given
to those informers. — Annals, i. 30.
23. Book ix.
24. I shall show 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 Rurale, ii, p. 198,
ed. Goth. 1512; and Beaumanoir, 61, p. 309.
26. See the Council of Peter
Defontaines, 13, especially art. 22.
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, x, 9, 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. Nihil ultra quam improbe
factum adjecet — Livy, loc. cit.
30. They slit his nose or cut off his
31. Xenophon, Hist., iii. 8,
32. Of Those Who Are Intrusted
with the Direction of the State Affairs, 14.
33. See Kempfer.
34. Collection of Voyages that
Contributed to the Establishment of the East India Company, iii, part
I, p. 428.
35. Let this be observed as a maxim
in practice, with regard to cases where the minds of people have been
depraved by too great a severity of punishments.
36. Collection of Voyages that
Contributed to the Establishment of the East India Company, v, p. 2.
38. The guilty were condemned to a
fine; they could not be admitted into the rank of senators, nor nominated
to any public office. — Dio, xxxvi. 21.
40. Book i. 28.
41. We find there the punishment of
fire, and generally capital punishments, theft punished with death, &c.
42. Sulla, animated with the same
spirit as the decemvirs, followed their example in augmenting the penal
laws against satirical writers.
43. Book i, 28.
44. Poenas facinorum auxit, cum
locupletes eo facilius scelere se obligarent, quod integris patrimoniis
exularent. — Suetonius in Life of Julius Cęsar,
45. See the Leg. 3, §
legis, ad leg. Cornel, de sicariis, and a vast number of others in
the Digest and in the Codex.
48. Infirnos. Leg. 3, §
legis, ad leg. Cornel, de sicariis.
49. Jul. Cap., Maximini duo,
50. Chapter 17.
51. Hist. of Nicephorus,
patriarch of Constantinople.
52. In Nicephorus' History.
53. Father Du Halde, i, p. 6.
54. Present State of Russia,
55. The English.
56. The citizens of Athens could not
be put to the rack (Lysias, Orat. contra Agorat.) unless it was
for high treason. The torture was used within thirty days after
condemnation. (Curius Fortunatus. Rhetor, scol., ii.) There was no
preparatory torture. In regard to the Romans, the Leg. 3, 4,
ad leg. Jul. majest., show 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
57. See Kempfer.
58. It is established in the Koran.
See the chapter, Of the Cow.
59. Si membrum rupit, ni cum eo
pacit, talio esto. Aulus Gellius, xx. i.
61. See also the Law of the
Visigoths, vi, tit. 4, §§ 3, 5.
62. See Garcilasso, History of
the Civil Wars of the Spaniards in the West Indies.
63. "Instead of punishing them,"
says Plato, "they ought to be commended for not having followed their
fathers' example." — Laws, ix.
64. Fragment of Suidas, in
Next | Previous
| Text Version | Contents
| Liberty Library |