Chapter 11

Thoughts and Indiscreet Speeches

by Montesquieu Icon

MARSYAS dreamt that he had cut Dionysius’s throat.

Dionysius put him to death, pretending that he would never have dreamt of such a thing by night if he had not thought of it by day.

This was a most tyrannical action. It had been the subject of his thoughts. But he had made no attempt towards it. The laws do not take on them to punish any other than overt acts.

Chapter 12: Indiscreet Speeches

The crime of high-treason becomes most arbitrary when a person declares another person to be treasonous for indiscreet speeches.

Speech is so subject to interpretation. There is so great a difference be tween indiscretion and malice. Frequently, so little is there of the lat ter in the freedom of expression, that the law can hardly subject people to a capital punishment for words, unless it expressly declares what words they are.

Words do not constitute an overt act; th ey remain only in idea. When considered by themselves, they have generally no determinate signification; for this depends on the tone in which they ar e uttered. It often happens that, in repeating the same words, they have no t the same meaning= this depends on their connection with other things; and sometimes more is signified by silence than by any expression whatever. Si nce there can be nothing so equivocal and ambiguous as all this, how is it possible to convert it into a crime of high-treason? Wherever this law is e stablished, there is an end, not only of liberty, but even of its very shad ow.

In the manifesto of the late Czarina aga inst the family of the DE28099OlgoruckysE280A0, one of these princes is condemned to death for having uttered some indecent words concerning her person; another, fo r having maliciously interpreted her imperial laws, and for having offended her sacred person by disrespectful expressions.

Not that I pretend to diminish the just indignation of the public against those who presume to stain the glory of t heir sovereign= what I mean is, that, if despotic princes are willing to mo derate their power, a milder chastisement would be more proper, on those oc casions, than the charge of high-treason, a thing always terrible even to i nnocence itself.

Overt acts do not happen every day; they are exposed to the eye of the public; and a false charge with regard to ma tters of fact may be easily detected. Words, carried into action, assume th e nature of that action. Thus a man, who goes into a public market-place to incite the subject to revolt, incurs the guilt of high-treason, because th e words are joined to the action, and partake of its nature. It is not the words that are punished, but an action in which words are employed. They do not become criminal, but when they are annexed to a criminal action. Every thing is confounded if words are construed into a capital crime, instead o f considering them only as a mark of that crime.

The emperors, Theod osius, Arcadius, and Honorius, wrote thu s to Rufinus, who was prefectus praetorio= Though a man should happen to s peak amiss of our person, or government, we do not intend to punish him= if he has spoken t hrough levity, we must despise him; if through folly, we must pity him; and , if he wrongs us, we must forgive him.

Therefore, leaving things as they are, you are to inform us accordingly, that we may be able to judge of wor ds by persons, and that we may duly consider whether we ought to punish or overlook them.

Chapter 13= Writings

IN writings there is something more perm anent than in words; but, when they are no way preparative to high-treason, they cannot amount to that charge.

And yet Augustus and Tiberius subjected satyrical writers t o the same punishment as for having violated the law of majesty; AugustusE288A5, because of so me libels that had been written against persons of the first quality; Tiber ius, because of those which he suspected to have been written against himse lf. Nothing was more fatal to Roman liberty. Cremutius Cordus was accused of having called Cassius, in his annals, the las t of the RomansC2B6.

Satyrical writings are hardly known in d espotic governments, where dejection of mind on the one hand, and ignorance on the other, afford neither abilities, nor will, to write. In democracies they are not hindered, for the very same reason which causes them to be pr ohibited in monarchies= being generally levelled against men of power and a uthority, they flatter the malignancy of the people, who are the governing party. In monarchies they are forbidden; but rather as a subject of civil a nimadversion, than as a capital crime. They may amuse the general malevolen ce, please the malcontents, diminish the envy against public employments, g ive the people patience to suffer, and make them laugh at their suffering s.

But no government is so averse to satyri cal writings as the aristocratical. There the magistrates are petty soverei gns, but not great enough to despise affronts. If, in a monarchy, a satyric al stroke is designed against the prince, he is placed on such an eminence that it does not reach him; but an aristocratical lord is pierced to the ve ry heart. Hence the decemvirs, who formed an aristocracy, punished satyrica l writings with death* .

Chapter 14= Breach of Modesty in punishing C rimes.

THERE are rules of modesty observed by a lmost every nation in the world= now, it would be very absurd to infringe t hese rules in the punishment of crimes, the principal view of which ought a lways to be the establishment of order.

Was it the intent of those oriental nati ons who exposed women to elephants trained up for an abominable kind of pun ishment, was it, I say, their intent to establish one law by the breach of another?

By an ancient custom of the Romans it wa s not permitted to put girls to death till they were ripe for marriage. Tib erius found out an expedient of having them debauched by the executioner, b efore they were brought to the place of punishmentE280A0= that bloody and subtle tyrant destro yed the morals of the people, to preserve their customs.

When the magistrates of Japan caused wom en to be exposed naked in the market-places, and obliged them to go upon all four like beasts, modesty was shocked= but, when they wanted to compel a mother +++ when they wanted to force a son +++ I cannot proceed= even nature herself i s struck with horror.

Chapter 15= The Infranchisement of Slaves, in Order to accuse their Master

AUGUSTUS made a law, that the slaves of those who conspired against his person should be sold to the public, that t hey might depose against their master. Nothing ought to be neglected which may contribute t o the discovery of a heinous crime= it is natural, therefore, that, in a go vernment where there are slaves, they should be allowed to inform; but they ought not to be admitted as witnesses.

Vindex disco vered the conspiracy that had been formed in favour of Tarquin. But he was not admitted a witness against the children of Brutus. It was right to give liberty to a person who had rendered so great a service to his country; bu t it was not given him with a view of enabling him to render this service.

Hence the emperor Tacitus ordained, that slaves should not be admitted as witnesses against their masters, even in the case of high-treason E288A5= a law which was not inserted in JustinianE28099s compilement.

Chapter 16= Of Calumny, with Regard to the C rime of High-Treason

TO do justice to the CC3A6sars, they w ere not the first devisers of the horrid laws which they enacted. Edition= current; Page= [259] It is S ylla* that taught them that calumniators ought not to be punished= but the abuse was soon carried to such excess as to reward them.

Chapter 17= The Revealing of Conspiracies

IF thy brother, the son of thy mother, or thy son, or thy daughter, or the wife of thy bosom, or thy friend, which is as thine own soul, entice thee secretly, saying, Let us go and serve other gods, thou shalt surely kill him, thou shalt stone himE280A1. This law of Deuteronomy cannot be a civil law am ong most of the nations known to us, because it would pave the way for all manner of wickedness.

No less severe is the law of several cou ntries, which commands the subjects, on pain of death, to disclose conspira cies in which they are not even so much as concerned. When such a law is es tablished in a monarchical government, it is very proper it should be under some restrictions.

It ought not to be applied, in its full severity, but to the strongest cases of high-treason. In those countries it is of the utmost importance not to confound the different degrees of this crime. In Japan, where the laws subvert every idea of human reason, the cri me of concealment is applied even to the most ordinary cases.

A certain relation makes mention of two young ladies, wh o were shut up for life in a box thick set with pointed nails; one for having had a love intrigue, and the other for not disclosing it.

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