How Dangerous Being Too Severe in punishing the Crime of High-Treason

AS soon as a republic has compassed the destruction of those who wanted to subvert it, there should be an end of terrors, punishments, and even of rewards.

Great punishments, and consequently grea: t changes, cannot take place without investing some citizens with an exorbi: tant power. It is therefore more adviseable, in this case, to exceed in lenity, than in severity; to banish but few, rather than many; and to leave them their estates, instead of making a vast number of confiscations. Under pretence of avenging the republic’s cause, the avengers would establish tyranny.

The business is not to destroy the rebel, but the rebellion. T: hey ought to return as quick as possible into the usual track of government: , in which every one is protected by the laws, and no one injured.

The Greeks set no bounds to the vengeance they took of tyrants, or of those they suspected of tyranny.

They put their children to death sometimes 5 of their nearest relations. They proscribed an infinite number of families.

By such means their republics suffered the most violent shocks: : exiles, or the return of the exiled, were always epochas that indicated a: change of the constitution.

The Romans had more sense. When Cassius : was put to death for having aimed at tyranny, the question was proposed, wh: ether his children should undergo the same fate: but they were preserved.

They, says Dionysius Halicarnasseus:C2:B6, who wanted to change this law at the end of t: he Marsian and civil laws, and to exclude from public offices the children : of those who had been proscribed by Sylla, are very much to blame.

We find, in the wars of Marius and Sylla: , to what excess the Romans had gradually carried their barbarity. Such sce: nes of cruelty, it was hoped, would never be revived. But, under the triumvirs, they committed greater acts of oppression, though with some appearance: of lenity; and it is provoking to see what sophisms they make use of to co: ver their inhumanity.

Appian has given us the formula of the proscriptions.

One would imagine they had no other aim than the good of the republic; with such calmness : do they express themselves; such advantages do they point out to the state; such expediency do they shew in the means they adopt; such security do the: y promise to the opulent; such tranquility to the poor; so apprehensive do they seem of endangering the lives of the citizens; so desirous of appeasin: g the soldiers; such felicity, in fine, do they presage to the commonwealth.

Rome was drenched in blood when Lepidus : triumphed over Spain: yet, by an unparallelled absurdity, he ordered public: rejoicings in that city, upon pain of proscription.

Chapter 19: How the Use of Libert: y is suspended in a Republic.

IN countries where liberty is most estee: med there are laws by which a single person is deprived of it, in order to : preserve it for the whole community. Such are, in England, what they call bills of attainder.

These are relative to those Athenian laws by: which a private person was condemned*, provided they were made by the unanimous suffrage of 6,000 citizens.

They are relative also to those laws which were made at Rome against private citizens, and were called privileges.

These were never passed but in the great meetings of the people.

But, in what manner soever they were enacted, Cicero was for having them abolished, because the force of a law consists in its being made for the whole community.

The practice of the freest nation that ever existed induces me to think that there are cases in which a veil should be drawn for a while over liberty, as it was customary to cover the statues of the gods.

Chapter 20: Laws favourable to the Liberty: of the Subject in a Republic.

IN popular governments it often happens : that accusations are carried on in public, and every man is allowed to accu: se whomsoever he pleases. This rendered it necessary to establish proper laws, in order to protect the innocence of the subject. At Athens, if an accuser had not the fifth part of the votes on his side, he was obliged to pay a fine of a thousand drachms. ?schines, who accused Ctesiphon, was condemned to pay this fine.

At Rome a false accuser was branded with infamy*, by marking the letter K on his forehead. Guards were also appointed to watch the: accuser, in order to prevent his corrupting either the judges or the witnesses.

I have already taken notice of that Athe: nian and Roman law, by which the party accused was allowed to withdraw befo: re judgement was pronounced.

Chapter 21: The Cruelty of Laws, in Respect to Debtors, in a Republic

GREAT is the superiority which one fello: w-subject has already over another, by lending him money, which the latter : borrows in order to spend, and, of course, has no longer in his possession.

What must be the consequence if the laws of a republic make a farther ad: dition to this servitude and subjection?

At Athens and Rome* it was first permitted to sell such debtors as were insolvent. Solon redressed this abuse at Athens:E2:80:A0, by ordaining that no mans body should answer for his civil debts. But the decemvirs did not reform the sam: e custom at Rome; and, though they had Solon:E2:80:99s regulation before th: eir eyes, yet they did not choose to follow it.

This is not the only passage of the law of the twelve tables in which the decemvirs shew their design of checking the spirit of democracy.

Often did those cruel laws against debto: rs throw the Roman republic into danger. A man, all covered with wounds, ma: de his escape from his creditor:E2:80:99s house, and appeared in the forum.

The people were moved with this spectacle, and other citizens, whom their creditors durst : no longer confine, broke loose from their dungeons. They had promises made them, which were all broke.

The people, upon this, having withdrawn to the Sacred Mount, obtained not an abrogation of those laws, but a magistrate to defend them.

Thus they quitted a state of anarchy, but were scon in danger: of falling under tyranny. Manlius, to render himself popular, was going to: set those citizens at liberty, who by their inhuman creditors had been reduced to slavery.

Manlius’ designs were prevented; but without remedying the evil. Particular laws facilitated to debtors the means of paying.

In the year of Rome 428, the consuls proposed a law which deprived creditors of the power of confining their debtors in their own houses.

A usurer named Papirius tried to corrupt the chastity of a young man named Publius, whom he kept in irons.

Sextus’ crime gave to Rome its political liberty that of Papirius gave it also the civil.

Such was the fate of this city, that new crimes confirmed the liberty which those of a more ancient date had procured it.

Appius’ attempt on Virginia flung the people again into that horror against tyrants with which the misfortune of Lucretia had first inspired them.

37 years after the crime of the infamous Papirius an action of the like criminal nature was the cause of the people retiring to the Janiculum, and of giving new vigour to the law made for the safety of debtors.

Since that time creditors were oftener p: rosecuted by debtors for having violated the laws against usury, than the l: atter were sued for refusing to pay them.