Of the Laws Which Establish Political Liberty, with
Regard to the Constitution
1. A general Idea. I make a distinction
between the laws that establish political liberty, as it relates to the
constitution, and those by which it is established, as it relates to the
citizen. The former shall be the subject of this book; the latter I shall
examine in the next.
2. Different Significations of the word Liberty.
There is no word that admits of more various significations, and has made
more varied impressions on the human mind, than that of liberty.
Some have taken it as a means of deposing a person on whom they had
conferred a tyrannical authority; others for the power of choosing a
superior whom they are obliged to obey; others for the right of bearing
arms, and of being thereby enabled to use violence; others, in fine, for
the privilege of being governed by a native of their own country, or by
their own laws.1 A certain nation
for a long time thought liberty consisted in the privilege of wearing a
long beard.2 Some have annexed this
name to one form of government exclusive of others: those who had a
republican taste applied it to this species of polity; those who liked a
monarchical state gave it to monarchy.3
Thus they have all applied the name of liberty to the government most
suitable to their own customs and inclinations: and as in republics the
people have not so constant and so present a view of the causes of their
misery, and as the magistrates seem to act only in conformity to the laws,
hence liberty is generally said to reside in republics, and to be banished
from monarchies. In fine, as in democracies the people seem to act almost
as they please, this sort of government has been deemed the most free, and
the power of the people has been confounded with their liberty.
3. In what Liberty consists. It is true that
in democracies the people seem to act as they please; but political
liberty does not consist in an unlimited freedom. In governments, that is,
in societies directed by laws, liberty can consist only in the power of
doing what we ought to will, and in not being constrained to do what we
ought not to will.
We must have continually present to our minds the difference between
independence and liberty. Liberty is a right of doing whatever the laws
permit, and if a citizen could do what they forbid he would be no longer
possessed of liberty, because all his fellow-citizens would have the same
4. The same Subject continued. Democratic and
aristocratic states are not in their own nature free. Political liberty is
to be found only in moderate governments; and even in these it is not
always found. It is there only when there is no abuse of power. But
constant experience shows us that every man invested with power is apt to
abuse it, and to carry his authority as far as it will go. Is it not
strange, though true, to say that virtue itself has need of limits?
To prevent this abuse, it is necessary from the very nature of things
that power should be a check to power. A government may be so constituted,
as no man shall be compelled to do things to which the law does not oblige
him, nor forced to abstain from things which the law permits.
5. Of the End or View of different Governments.
Though all governments have the same general end, which is that of
preservation, yet each has another particular object. Increase of dominion
was the object of Rome; war, that of Sparta; religion, that of the Jewish
laws; commerce, that of Marseilles; public tranquillity, that of the laws
of China:4 navigation, that of the
laws of Rhodes; natural liberty, that of the policy of the Savages; in
general, the pleasures of the prince. But
the plan of this constitution is opposite to that of our modern
The three powers were there distributed in such a manner that the people
were the legislature,19 and the
king had the executive together with the judiciary power; whereas in
modern monarchies the prince is invested with the executive and
legislative powers, or at least with part of the legislative, but does not
act in a judiciary capacity.
In the government of the kings of the heroic times, the three powers
were ill-distributed. Hence those monarchies could not long subsist. For
as soon as the people got the legislative power into their hands, they
might, as they everywhere did, upon the very least caprice, subvert the
Among a free people possessed of the legislative power, and enclosed
within walls, where everything tending towards oppression appears still
more odious, it is the masterpiece of legislation to know where to place
properly the judiciary power. But it could not be in worse hands than in
those of the person to whom the executive power had been already
committed. From that very instant the monarch became terrible. But at the
same time as he had no share in the legislature, he could make no defence
against it, thus his power was in one sense too great, in another too
They had not as yet discovered that the true function of a prince was to
appoint judges, and not to sit as judge himself. The opposite policy
rendered the government of a single person insupportable. Hence all these
kings were banished. The Greeks had no notion of the proper distribution
of the three powers in the government of one person; they could see it
only in that of many; and this kind of constitution they distinguished by
the name of Polity.20
12. Of the Government of the Kings of Rome, and
in what Manner the three Powers were there distributed. The government
of the kings of Rome had some relation to that of the kings of the heroic
times of Greece. Its subversion, like the latter's, was owing to its
general defect, though in its own particular nature it was exceedingly
In order to give an adequate idea of this government, I shall
distinguish that of the first five kings, that of Servius Tullius, and
that of Tarquin.
The crown was elective, and under the first five kings the senate had
the greatest share in the election.
Upon the king's decease the senate examined whether they should continue
the established form of government. If they thought proper to continue it,
they named a magistrate21 taken
from their own body, who chose a king; the senate were to approve of the
election, the people to confirm it, and the augurs to declare the
approbation of the gods. If any of these three conditions was wanting,
they were obliged to proceed to another election.
The constitution was a mixture of monarchy, aristocracy, and democracy;
and such was the harmony of power that there was no instance of jealousy
or dispute in the first reigns. The king commanded the armies, and had the
direction of the sacrifices: he had the power of determining22
civil and criminal23 causes; he
called the senate together, convened the people, laid some affairs before
the latter, and regulated the rest with the senate.24
The authority of the senate was very great. The kings oftentimes pitched
upon senators with whom they sat in judgment; and they never laid any
affair before the people till it had been previously debated25
in that august assembly.
The people had the right of choosing26
magistrates, of consenting to the new laws, and, with the king's
permission, of making war and peace; but they had not the judicial power.
When Tullius Hostilius referred the trial of Horatius to the people, he
had his particular reasons, which may be seen in Dionysius Halicarnassus.27
The constitution altered under28
Servius Tullius. The senate had no share in his election; he caused
himself to be proclaimed by the people; he resigned the power of hearing
civil causes,29 reserving none to
himself but those of a criminal nature; he laid all affairs directly
before the people, eased them of the taxes, and imposed the whole burden
on the patricians. Hence in proportion as he weakened the regal together
with the senatorial power, he augmented that of the plebeians.30
Tarquin would neither be chosen by the senate nor by the people; he
considered Servius Tullius as a usurper, and seized the crown as his
hereditary right. He destroyed most of the senators; those who remained he
never consulted; nor did he even so much as summon them to assist at his
decisions.31 Thus his power
increased: but the odium of that power received a new addition, by
usurping also the authority of the people, against whose consent he
enacted several laws. The three powers were by these means re-united in
his person; but the people at a critical minute recollected that they were
legislators, and there was an end of Tarquin.
13. General Reflections on the State of Rome
after the Expulsion of its Kings. It is impossible to be tired of so
agreeable a subject as ancient Rome: thus strangers at present leave the
modern palaces of that celebrated capital to visit the ruins; and thus the
eye, after recreating itself with the view of flowery meads, is pleased
with the wild prospect of rocks and mountains.
The patrician families were at all times possessed of great privileges.
These distinctions, which were considerable under the kings, became much
more important after their expulsion. Hence arose the jealousy of the
plebeians, who wanted to reduce them. The contest struck at the
constitution, without weakening the government; for it was very
indifferent as to what family were the magistrates, provided the
magistracy preserved its authority.
An elective monarchy, like that of Rome, necessarily supposes a powerful
aristocratic body to support it, without which it changes immediately into
tyranny or into a popular state. But a popular state has no need of this
distinction of families to maintain itself. To this it was owing constitution patricians, who were a necessary part of the constitution under the regal
government, became a superfluous branch under the consuls; the people
coconstitution them without hurting themselves, and change the
constitution without corrupting it.
After Servius Tullius had reduced the patricians, it was natural that
Rome should fall from the regal hands into those of the people. But the
people had no occasion to be afraid of relapsing under a regal power by
reducing the patricians.
A state may alter in two different ways, either by the amendment or by
the corruption of the constitution -->constitution -constitutions preserved its principles and
the constitution changes, this is owing to its amendment; if upon changing
the constitution its principles are lost, this is because it has been
The government of Rome, after the expulsion of the kings, should
naturally have been a democracy. The people had already the legislative
power in their hands; it was their unanimous consent that had expelled the
Tarquins; and if they had not continued steady to those principles, the
Tarquins might easily have been restored. To pretend that their design in
expelling them was to render themselves slaves to a few families is quite
absurd. The situation therefore of things required that Rome should have
formed a democracy, and yet this did not happen. There was a necessity
that the power of the principal families should be tempered, and that the
laws should have a bias to democracy.
The prosperity of states is frequently greater in the insensible
transition from one constitution to another than in either of those
constitutions. Then it is that all the springs of government are upon the
stretch, that the citizens assert their claims, that friendships or
enmities are formed amongst the jarring parties, and that there is a noble
emulation between those who defend constitutionand those who are strenuous
in promoting the new constitution.
14. In what Manner the Distribution of the three
Powers began to change after the Expulsion of the Kings. There were
four things that greatly prejudiced the liberty of Rome. The patricians
had engrossed to themselves all public employments whatever; an exorbitant
power was annexed to the consulate; the people were often insulted; and,
in fine, they had scarcely any influence at all left in the public
suffrages. These four abuses were redressed by the people.
1st. It was regulated that the plebeians might
aspire to some magistracies; and by degrees they were rendered capable of
them all, except that of Inter-rex.
2nd. The consulate was dissolved into several
other magistracies;32 prętors
were created, on whom the power was conferred of trying private causes; quęstors33
were nominated for determining those of a criminal nature; ędiles
were established for the civil administration; treasurers34
were made for the management of the public money; and, in fine, by the
creation of censors the consuls were divested of that part of the
legislative power which regulates the morals of the citizens and the
transient polity of the different bodies of the state. The chief
privileges left them were to preside in the great meetings35
of the people, to assemble the senate, and to command the armies.
3rd. The sacred laws appointed tribunes, who had a
power of checking the encroachments of the patricians, and prevented not
only private but likewise public injuries.
In fine, the plebeians increased their influence in the general
assemblies. The people of Rome were divided in three different manners —
by centuries, by curię, and by tribes; and whenever they gave their
votes, they were convened in one of those three ways.
In the first the patricians, the leading men, the rich and the senate,
which was very nearly the same thing, had almost the whole authority; in
the second they had less; and less still in the third.
The division into centuries was a division rather of estates and
fortunes than of persons The whole people were distributed into a hundred
and ninety-three centuries,36 which
had each a single vote. The patricians and leading men composed the first
ninety-eight centuries; and the other ninety-five consisted of the
remainder of the citizens. In this division therefore the patricians were
masters of the suffrages.
In the division into curię,37
the patricians had not the same advantages; some, however, they had, for
it was necessary to consult the augurs, who were under the direction of
the patricians; and no proposal could be made there to the people unless
it had been previously laid before the senate, and approved of by a senatus-consultum.
But, in the division into tribes they had nothing to do either with the
augurs or with the decrees of the senate; and the patricians were
Now the people endeavoured constantly to have those meetings by curię
which had been customary by centuries, and by tribes, those they used to
have before by curię; by which means the direction of public affairs
soon devolved from the patricians to the plebeians.
Thus when the plebeians obtained the power of trying the patricians —
a power which commenced in the affair of Coriolanus,38
they insisted upon assembling by tribes,39
and not by centuries; and when the new magistracies40
of tribunes and ędiles were established in favour of the people, the
latter obtained that they should meet by curię in order to nominate
them; and after their power was quite settled, they gained41
so far their point as to assemble by tribes to proceed to this nomination.
15. In what Manner Rome, in the flourishing State
of that Republic, suddenly lost its Liberty. In the heat of the
contests between the patricians and the plebeians, the latter insisted
upon having fixed laws, to the end that the public judgments should no
longer be the effect of capricious will or arbitrary power. The senate,
after a great deal of resistance, acquiesced; and decemvirs were nominated
to compose those laws. It was thought proper to grant them an
extraordinary power, because they were to give laws to parties whose views
and interest it was almost impossible to unite. The nomination of all
magistrates was suspended; and the decemvirs were chosen in the comitia
sole administrators of the republic. Thus they found themselves invested
with the consular and the tribunition power. By one they had the privilege
of assembling the senate, by the other that of convening the people; but
they assembled neither senate nor people. Ten men only of the republic had
the whole legislative, the whole executive, and the whole judiciary power.
Rome saw herself enslaved by as cruel a tyranny as that of Tarquin. When
Tarquin trampled on the liberty of that city, she was seized with
indignation at the power he had usurped; when the decemvirs exercised
every act of oppression, she was astonished at the extraordinary power she
What a strange system of tyrannyprin_tyr.htm'> -->tyranny — a tyranny carried on by men who
had obtained the political and military power, merely from their knowledge
in civil affairs, and who at that very juncture stood in need of the
courage of those citizens to protect them abroad who so tamely submitted
to domestic oppression!
The spectacle of Virginia's death, whom her father immolated to chastity
and liberty, put an end to the power of the decemvirs. Every man became
free, because every man had been injured; each showed himself a citizen
because each had a tie of the parent. The senate and the people resumed a
liberty which had been committed to ridiculous tyrants.
No people were so easily moved by public spectacles as the Romans. That
of the empurpled body of Lucretia put an end to the regal government. The
debtor who appeared in the forum covered with wounds caused an alteration
in the republic. The decemvirs owed their expulsion to the tragedy of
Virginia. To condemn Manlius, it was necessary to keep the people from
seeing the Capitol. Cęsar's bloody garment flung Rome again into
16. Of the legislative Power in the Roman
Republic. There were no rights to contest under the decemvirs: but
upon the restoration of liberty, jealousies revived; and so long as the
patricians had any privileges left, they were sure to be stripped of them
by the plebeians.
The mischief would not have been so great had the plebeians been
satisfied with this success; but they also injured the patricians as
citizens. When the people assembled by curię or centuries, they were
composed of senators, patricians, and plebeians; in their disputes the
plebeians gained this point,42 that
they alone without patricians or senate should enact the laws called Plebiscita;
and the assemblies in which they were made had the name of comitia
by tribes. Thus there were cases in which the patricians43
had no share in the legislative power, but44
were subject to the legislation of another body of the state. This was the
extravagance of liberty. The people, to establish a democracy, acted
against the very principles of that government. One would have imagined
that so exorbitant a power must have destroyed the authority of the
senate. But Rome had admirable institutions. Two of these were especially
remarkable: one by which the legislative power of the people was
established, and the other by which it was limited.
The censors, and before them the consuls, modelled45
and created, as it were, every five years the body of the people; they
exercised the legislation on the very part that was possessed of the
legislative power. "Tiberius Gracchus," says Cicero, "caused
the freedmen to be admitted into the tribes, not by the force of his
eloquence, but by a word, by a gesture; which had he not effected, the
republic, whose drooping head we are at present scarcely able to uphold,
would not even exist."
On the other hand, the senate had the power of rescuing, as it were, the
republic out of the hands of the people, by creating a dictator, before
whom the sovereign bowed his head, and the most popular laws were silent.46
17. Of the executive Power in the same Republic.
Jealous as the people were of their legislative power, they had no great
uneasiness about the executive. This they left almost entirely to the
senate and to the consuls, reserving scarcely anything more to themselves
than the right of choosing the magistrates, and of confirming the acts of
the senate and of the generals.
Rome, whose passion was to command, whose ambition was to conquer, whose
commencement and progress were one continued usurpation, had constantly
affairs of the greatest weight upon her hands; her enemies were ever
conspiring against her, or she against her enemies.
As she was obliged to behave on the one hand with heroic courage, and on
the other with consummate prudence, it was requisite, of course, that the
management of affairs should be committed to the senate. Thus the people
disputed every branch of the legislative power with the senate, because
they were jealous of their liberty; but they had no disputes about the
executive, because they were animated with the love of glory.
So great was the share the senate took in the executive power, that, as
Polybius47 informs us, foreign
nations imagined that Rome was an aristocracy. The senate disposed of the
public money, and farmed out the revenue; they were arbiters of the
affairs of their allies; they determined war or peace, and directed in
this respect the consuls; they fixed the number of the Roman and of the
allied troops, disposed of the provinces and armies to the consuls or prętors,
and upon the expiration of the year of command had the power of appointing
successors; they decreed triumphs, received and sent embassies: they
nominated, rewarded, punished, and were judges of kings, declared them
allies of the Roman people, or stripped them of that title.
The consuls levied the troops which they were to carry into the field;
had the command of the forces by sea and by land; disposed of the forces
of the allies; were invested with the whole power of the republic in the
provinces; gave peace to the vanquished nations, imposed conditions on
them, or referred them to the senate.
In the earliest times, when the people had some share in the affairs
relating to war or peace, they exercised rather their legislative than
their executive power. They scarcely did anything else but confirm the
acts of the kings, and after their expulsion those of the consuls or
senate. So far were they from being the arbiters of war that we have
instances of its having been often declared, notwithstanding the
opposition of the tribunes. But growing wanton in their prosperity, they
increased their executive power. Thus48
they created the military tribunes, the nomination of whom till then had
belonged to the generals; and some time before the first Punic war, they
decreed that only their own body should have the right of declaring war.49
18. Of the judiciary Power in the Roman
Government. The judiciary power was given to the people, to the
senate, to the magistrates, and to particular judges. We must see in what
manner it was distributed; beginning with their civil affairs.
The consuls had the judiciary power50
after the expulsion of the kings, as the prętors were judges after
the consuls. Servius Tullius had divested himself of the power of
determining civil causes, which was not resumed by the consuls, except in
some51 very rare cases, for that
reason called extraordinary.52
They were satisfied with naming the judges, and establishing the several
tribunals. By a discourse of Appius Claudius, in Dionysius Halicarnassus,53
it appears that as early as the 259th year of Rome this was looked upon as
a settled custom among the Romans; and it is not tracing it very high to
refer it to Servius Tullius.
Every year the prętor made a list54
of such as he chose for the office of judges during his magistracy. A
sufficient number was pitched upon for each cause; a custom very nearly
the same as that now practised in England. And what was extremely
favourable to liberty55 was the prętor's
fixing the judges with the consent56
of the parties. The great number of exceptions that can be made in England
amounts pretty nearly to this very custom.
The judges decided only the questions relating to matter of fact;57
for example, whether a sum of money had been paid or not, whether an act
had been committed or not. But as to questions of law,58
as these required a certain capacity, they were always carried before the
tribunal of the centumvirs.59
The kings reserved to themselves the judgment of criminal affairs, and
in this were succeeded by the consuls. It was in consequence of this
authority that Brutus put his children and all those who were concerned in
the Tarquinian conspiracy to death. This was an exorbitant power. The
consuls already invested with the military command extended the exercise
of it even to civil affairs; and their procedures, being stripped of all
forms of justice, were rather exertions of violence than legal judgments.
This gave rise to the Valerian law, by which it was made lawful to
appeal to the people from every decision of the consuls that endangered
the life of a citizen. The consuls had no longer the power of pronouncing
sentence in capital cases against a Roman citizen, without the consent of
We see in the first conspiracy for the restoration of the Tarquins that
the criminals were tried by Brutus the consul; in the second the senate
and comitia were assembled to try them.61
The laws distinguished by the name of sacred allowed the plebeians the
privilege of choosing tribunes; whence was formed a body whose pretensions
at first were immense. It is hard to determine which was greater, the
insolence of the plebeians in demanding, or the condescension of the
senate in granting. The Valerian law allowed appeals to the people, that
is, to the people composed of senators, patricians, and plebeians. The
plebeians made a law that appeals should be brought before their own body.
A question was soon after started, whether the plebeians had a right to
try a patrician; this was the subject of a dispute to which the
impeachment of Coriolanus gave rise, and which ended with that affair.
When Coriolanus was accused by the tribunes before the people, he
insisted, contrary to the spirit of the Valerian law, that as he was a
patrician, none but the consuls had the power to try him; on the other
hand, the plebeians, also contrary to the spirit of that same law,
pretended that none but their body were empowered to be his judges, and
accordingly they pronounced sentence upon him.
This was moderated by the law of the Twelve Tables; whereby it was
ordained that none but the great assemblies of the people62
should try a citizen in capital cases. Hence the body of the plebeians,
or, which amounts to the very same, the comitia by tribes, had no longer
any power of hearing criminal causes, except such as were punished with
fines. To inflict a capital punishment a law was requisite; but to condemn
to a pecuniary mulct, there was occasion only for a plebiscitum.
This regulation of the law of the Twelve Tables was extremely prudent.
It produced an admirable balance between the body of the plebeians and the
senate. For as the full judiciary power of both depended on the greatness
of the punishment and the nature of the crime, it was necessary they
should both agree.
The Valerian law abolished all the remains of the Roman government in
any way relating to that of the kings of the heroic times of Greece. The
consuls were divested of the power to punish crimes. Though all crimes are
public, yet we must distinguish between those which more nearly concern
the mutual intercourse of the citizens and those which more immediately
interest the state in the relation it bears to its subjects. The first are
called private, the second public. The latter were tried by the people;
and in regard to the former, they named by particular commission a quęstor
for the prosecution of each crime. The person chosen by the people was
frequently one of the magistrates, sometimes a private man. He was called
the quęstor of parricide, and is mentioned in the law of the Twelve
The quęstor nominated the judge of the question, who drew lots for
the judges, and regulated the tribunal in which he presided.64
Here it is proper to observe what share the senate had in the nomination
of the quęstor, that we may see how far the two powers were
balanced. Sometimes the senate caused a dictator to be chosen, in order to
exercise the office of quęstor;65
at other times they ordained that the people should be convened by a
tribune, with the view of proceeding to the nomination of a quęstor;66
and, in fine, the people frequently appointed a magistrate to make his
report to the senate concerning a particular crime, and to desire them to
name a quęstor, as may be seen in the judgment upon Lucius Scipio67
In the year of Rome 604, some of these commissions were rendered
permanent.69 All criminal causes
were gradually divided into different parts; to which they gave the name
of perpetual questions. Different prętors were created, to each of
whom some of those questions were assigned. They had a power conferred
upon them for the term of a year, of trying such criminal causes as bore
any relation to those questions, and then they were sent to govern their
At Carthage the senate of the hundred was composed of judges who enjoyed
that dignity for life.70 But at
Rome the prętors were annual; and the judges were not even for so
long a term, but were nominated for each cause. We have already shown in
the sixth chapter of this book how favourable this regulation was to
liberty in particular governments.
The judges were chosen from the order of senators, till the time of the
Gracchi. Tiberius Gracchus caused a law to pass that they should be taken
from the equestrian order; a change so very considerable that the tribune
boasted of having cut, by one rogation only, the sinews of the senatorial
It is necessary to observe that the three powers may be very well
distributed in regard to the liberty of the constitution, though not so
well in respect to the liberty of the subject. At Rome the people had the
greatest share of the legislative, a part of the executive, and part of
the judiciary power; by which means they had so great a weight in the
government as required some other power to balance it. The senate indeed
had part of the executive power, and some share of the legislative;71
but this was not sufficient to counterbalance the weight of the people. It
was necessary that they should partake of the judiciary power: and
accordingly they had a share when the judges were chosen from among the
senators. But when the Gracchi deprived the senators of the judicial
power,72 the senate were no longer
able to withstand the people. To favour, therefore, the liberty of the
subject, they struck at that of the constitution; but the former perished
with the latter.
Infinite were the mischiefs that thence arose. The constitution was
changed at a time when theconstitutionil discord had scarcely left any
such constitutiononstitution. The knights ceased to be that middle order
which united the people to the senate; and the chain of the constitution
There were even particular reasons against transferring the judiciary
power to the equestrian order. The constitution of Rome was founded on
this principle, that none should be enlisted as soldiers but such as were
men of sufficient property to answer for their conduct to the republic.
The knights, as persons of the greatest property, formed the cavalry of
the legions. But when their dignity increased, they refused to serve any
longer in that capacity, and another kind of cavalry was obliged to be
raised: thus Marius enlisted all sorts of people into his army, and soon
after the republic was lost.73
Besides, the knights were the farmers of the revenue; men whose great
rapaciousness increased the public calamities. Instead of giving to such
as those the judicial power, they ought to have been constantly under the
eye of the judges. This we must say in commendation of the ancient French
laws, that they have acted towards the officers of the revenue with as
great a diffidence as would be observed between enemies. When the
judiciary power at Rome was transferred to the publicans, there was then
an end of all virtue, polity, laws, and government.
Of this we find a very ingenious description in some fragments of
Diodorus Siculus and Dio. "Mutius Scęvola," says Diodorus,74
"wanted to revive the ancient manners, and the laudable custom of
sober and frugal living. For his predecessors having entered into a
contract with the farmers of the revenue, who at that time were possessed
of the judiciary power at Rome, had infected the province with all manner
of corruption. But Scęvola made an example of the publicans, and
imprisoned those by whom others had been confined."
Dio informs us75 that Publius
Rutilius, his lieutenant, was equally obnoxious to the equestrian order,
and that upon his return they accused him of having received some
presents, and condemned him to a fine; upon which he instantly made a
cession of his goods. His innocence appeared in this, that he was found to
be worth a great deal less than what he was charged with having extorted,
and he showed a just title to what he possessed: but he would not live any
longer in the same city with such profligate wretches.
The Italians, says Diodorus again,76
bought up whole droves of slaves in Sicily, to till their lands and to
take care of their cattle; but refused them a necessary subsistence. These
wretches were then forced to go and rob on the highways, armed with lances
and clubs, covered with beasts' skins, and followed by large mastiffs.
Thus the whole province was laid waste, and the inhabitants could not call
anything their own but what was secured by fortresses. There was neither
proconsul nor prętor that could or would oppose this disorder, or
that presumed to punish these slaves, because they belonged to the
knights, who at Rome were possessed of the judiciary power.77
And yet this was one of the causes of the war of the slaves. But I shall
add only one word more. A profession deaf and inexorable, that can have no
other view than lucre, that was always asking and never granting, that
impoverished the rich and increased even the misery of the poor —
such a profession, I say, should never have been entrusted with the
judiciary power at Rome.
19. Of the Government of the Roman Provinces.
Such was the distribution of the three powers in Rome. But they were far
from being thus distributed in the provinces. Liberty prevailed in the
centre and tyranny in the extreme parts.
While Rome extended her dominions no farther than Italy, the people were
governed as confederates, and the laws of each republic were preserved.
But when she enlarged her conquests, and the senate had no longer an
immediate inspection over the provinces, nor the magistrates residing at
Rome were any longer capable of governing the empire, they were obliged to
send prętors and proconsuls. Then it was that the harmony of the
three powers was lost. The persons appointed to that office were entrusted
with a power which comprehended that of all the Roman magistracies; nay,
even that of the people.78 They
were despotic magistrates, extremely well adapted to the distance of the
places to which they were destined. They exercised the three powers; and
were, if I may presume to use the expression, the bashaws of the republic.
We have elsewhere observed79 that
in a commonwealth the same magistrate ought to be possessed of the
executive power, as well civil as military. Hence a conquering republic
can hardly communicate her government, and rule the conquered state
according to her own constitution. And indeed as the magistrate she sends
to govern is invested with the executive power, both civil and military,
he must also have the legislative: for who is it that could make laws
without him? It is necessary, therefore, that the governor she sends be
entrusted with the three powers, as was practised in the Roman provinces.
It is more easy for a monarchy to communicate its government, because
the officers it sends have, some the civil executive, and others the
military executive power, which does not necessarily imply a despotic
It was a privilege of the utmost consequence to a Roman citizen to have
none but the people for his judge. Were it not for this, he would have
been subject in the provinces to the arbitrary power of a proconsul or of
a proprętor. The city never felt the tyranny which was exercised
only on conquered nations.
Thus, in the Roman world, as at Sparta, the freemen enjoyed the highest
degree of liberty, while those who were slaves laboured under the
extremity of servitude.
While the citizens paid taxes, they were raised with great justice and
equality. The regulation of Servius Tullius was observed, who had
distributed the people into six classes, according to their difference of
property, and fixed the several shares of the public imposts in proportion
to that which each person had in the government. Hence they bore with the
greatness of the tax because of their proportionable greatness of credit,
and consoled themselves for the smallness of their credit because of the
smallness of the tax.
There was also another thing worthy of admiration, which is, that as
Servius Tullius's division into classes was in some measure the
fundamental principle of the constitution, it thence followed that an
equal levying of the taxes was so connected with this fundamental
principle that the one could not be abolished without the other.
But while the city paid the taxes as she pleased, or paid none at all,80
the provinces were plundered by the knights, who were the farmers of the
public revenue. We have already made mention of their oppressive
extortions, with which all history abounds.
"All Asia," says Mithridates,81
"expects me as her deliverer; so great is the hatred which the
rapaciousness of the proconsuls,82
the confiscations made by the officers of the revenue, and the quirks and
cavils of judicial proceedings,83
have excited against the Romans."
Hence it was that the strength of the provinces did not increase, but
rather weakened, the strength of the republic. Hence it was that the
provinces looked upon the loss of the liberty of Rome as the epoch of
their own freedom.
20. The End of this Book. I should be glad to
inquire into the distribution of the three powers, in all the moderate
governments we are acquainted with, in order to calculate the degrees of
liberty which each may enjoy. But we must not always exhaust a subject, so
as to leave no work at all for the reader. My business is not to make
people read, but to make them think.
1. "I have copied," says
Cicero, "Scęvola's edict, which permits the Greeks to terminate
their difference among themselves according to their own laws; this makes
them consider themselves a free people."
2. The Russians could not bear that
Czar Peter should make them cut it off.
3. The Cappadocians refused the
condition of a republican state, which was offered them by the Romans.
4. The natural end of a state that
has no foreign enemies, or that thinks itself secured against them by
5. Inconvenience of the Liberum
6. At Venice.
7. As at Athens.
8. See Aristotle, Politics,
9. See Aristotle, Politics,
10. Ibid., 9.
11. These were magistrates chosen
annually by the people. See Stephen of Byzantium.
12. It was lawful to accuse the Roman
magistrates after the expiration of their several offices. See in
Dionysius Halicarnassus, ix, the affair of Genutius the tribune.
13. De minoribus rebus principes
consultant, de majoribus omnes; ita tamen lit ea quoque quorum penes
plebem arbitrium est, apud principes pertractentur. — ix.
14. Politics, iii. 14.
15. See Justin, xvii. 3.
16. Aristotle, Politics, v.
17. Ibid., iii. 14.
19. See what Plutarch says in the
Theseus. See likewise Thucydides, i.
20. Aristotle, Politics, iv.
21. Dionysius Halicarnassus, ii, p.
120, and iv, pp. 242, 243.
22. See Tanaquil's Discourse on Livy,
i dec. l, and the regulations of Servius Tullius in Dionysius
Halicarnassus, iv. p. 229.
23. See Dionysius Halicarnassus, ii,
p. 118, and iii, p. 171.
24. It was by virtue of a
senatus-consultum that Tullius Hostilius ordered Alba to be destroyed. —
Ibid., iii, pp. 167 and 172.
25. Ibid., iv, p. 276.
26. Ibid., ii. And yet they
could not have the nomination of all offices, since Valerius Publicola
made that famous law by which every citizen was forbidden to exercise any
employment, unless he had obtained it by the suffrage of the people.
27. Ibid., iii, p. 159.
28. Ibid., iv.
29. He divested himself of half the
regal power, says Dionysius Halicarnassus, iv, p. 229.
30. It was thought that if he had not
been prevented by Tarquin he would have established a popular government.
—Ibid., iv, p. 243.
31. Ibid., iv.
32. Livy, dec. 1, vi.
33. Quęstores parricidii.
— Pomponius, Leg. 2,§ 23, ff. de orig. jur.
34. Plutarch, Poplicola.
35. Comitiis centuriatis.
36. See Livy, i, 43; Dionysius
Halicarnassus, iv, vii.
37. Dionysius Halicarnassus, ix, p.
38. Ibid., vii.
39. Contrary to the ancient custom,
as may be seen: ibid., v, p. 320.
40. Ibid., pp. 410, 411.
41. Ibid., ix, p. 605.
42. Ibid., xi, p. 725.
43. By the sacred laws, the plebeians
had the power of making the plebiscita by themselves, without
admitting the patricians into their assembly — Ibid., vi, p.
410; vii, p. 430.
44. By the law enacted after the
expulsion of the decemvirs, the patricians were made subject to the plebiscita,
though they had not a right of voting there. Livy, iii. 55, and Dionysius
Halicarnassus, xi, p. 725. This law was confirmed by that of Publius Philo
the dictator, in the year of Rome 416. Livy, viii. 12.
45. In the year 312 of Rome the
consuls performed still the business of surveying the people and their
estates, as appears by Dionysius Halicarnassus, ix.
46. Such as those by which it was
allowed to appeal from the decisions of all the magistrates to the people.
47. Book vi.
48. In the year of Rome 444, Livy,
dec. 1, ix. 30. As the war against Perseus appeared somewhat dangerous, it
was ordained by a senatus-consultum that this law should be
suspended, and the people agreed to it. Livy, dec. 5, ii.
49. They extorted it from the senate,
says Freinshemius, dec. 2, vi.
50. There is no manner of doubt but
the consuls had the power of trying civil causes before the creation of
the prętors. See Livy, dec. l, ii. 1; Dionysius Halicarnassus, x,
pp. 627, 645.
51. The tribunes frequently tried
causes by themselves only, but nothing rendered them more odious. —
Dionysius Halicarnassus, xi, p. 709.
52. Judicia extraordinaria. See
the Institutes, iv.
53. Book vi, p. 360.
54. Album Judicium.
55. "Our ancestors," says
Cicero, Pro Cluentio, "would not suffer any man whom the
parties had not agreed to, to be judge of the least pecuniary affair, much
less of a citizen's reputation."
56. See in the fragments of the
Servilian, Cornelian, and other laws, in what manner these laws appointed
judges for the crimes they proposed to punish. They were often pitched
upon by choice, sometimes by lot, or, in fine, by lot mixed together with
57. Seneca, De Benefic. iii.
7, in fine.
58. See Quintilian, iv, p. 54, in
fol. ed., Paris, 1541.
59. Leg. 2 ff. de orig.
jur. Magistrates who were called decemvirs presided in court, the
whole under a prętor's direction.
60. Quoniam de capite civis
Romani, injussu populi Romani, non erat permissum consulibus jus dicere.
— See Pomponius,Leg. 2, §6, ff. de orig. jur.
61. Dionysius Halicarnassus, v, p.
62. The comitia by centuries. Thus
Manlius Capitolinus was tried in these comitia. — Livy, Dec. 1, vi.
63. Pomponius, in Leg. 2,
Dig., de orig. jur.
64. See a fragment of Ulpian, who
gives another of the Cornelian Law: it is to be met with in the Collation
of the Mosaic and Roman Laws, tit. i, De Sicariis et homicidiis.
65. This took place, especially in
regard to crimes committed in Italy, which were subject chiefly to the
inspection of the senate. See Livy, Dec. 1, ix, 26, concerning the
conspiracies at Capua.
66. This was the case in the
prosecution for the murder of Posthumius, in the year 340 of Rome. See
Livy, iv. 50.
67. This judgment was passed in the
year of Rome 567.
68. Book viii.
69. Cicero, in Brutus.
70. This is proved from Livy, book
xliii. 46, who says that Hannibal rendered their magistracy annual.
71. The senatus-consultums
were in force for the space of a year, though not confirmed by the people.
— Dionysius Halicarnassus ix, p. 595; xi, p. 735.
72. In the year 630.
73. Capite censos plerosque. —
Sallust, De Bello Jugurth, 84.
74. Fragment of this author, xxxvi,
in the collection of Constantine Porphyrogenitus, Of Virtues and Vices
75. Fragment of his history, taken
from the extract Of Virtues and Vices [Historica].
76. Fragment of the book xxxiv in the
extract Of Virtues and Vices [Historica].
77. Penes quos Romę tum
judicia erant, atque ex equestri ordine solerent sortito judices eligi in
causa Prętorum et Proconsulum, quibus post administratam provinciam
dies dicta erat.
78. They made their edicts upon
entering the provinces.
79. Book v.
19. See also ii,
80. After the conquest of Macedonia
the Romans paid no taxes.
81. Speech taken from Trogus
Pompeius, and related by Justin, xxxviii. 4.
82. See the orations against Verres.
83. It is well known what sort of a
tribunal was that of Varus, which provoked the Germans to revolt.
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