The Crime against Nature

GOD forbid that I should have the least inclination to diminish the public horror against a crime which religion, m orality, and civil government, equally condemn.

It ought to be proscribed w ere it only for its communicating to one sex the weaknesses of the other, a nd for leading people, by a scandalous prostitution of their youth, to an i gnominious old age. What I shall say concerning it will no ways diminish it s infamy, being levelled only against the tyranny that may abuse the very h orror we ought to have against the vice.

As a natural circumstance of this crime is secrecy, there are frequent instances of its having been punished by leg islators upon the deposition of a child. This was opening a very wide door to calumny.

Procopius says that Justinian published a law against this crime. He ordered an inquiry against those who were guilty of it after the enacting of that law, but even before.

The deposition of a single witness , sometimes of a child, sometimes of a slave, was sufficient, especially ag ainst such as were rich, and against those of the green faction.

It is very odd that these three crimes, witchcraft, heresy, and that against nature; (of which, the first might eas ily be proved not to exist; the second, to be susceptible of an infinit e number of distinctions, interpretations, and limitations; the third, to b e often obscure and uncertain;) it is very odd, I say, that these three cri mes should, amongst us, be punished with fire.

I may venture to affirm, that the crime against nature will never make any great progress in society, unless people are prompted to it by some particular custom; as among the Greeks, where t he youths of that country performed all their exercises naked; as amongst u s, where domestic education is disused; as among the Asiatics, where partic ular persons have a great number of women whom they despise, while others c an have none at all. Let there be no customs preparatory to this crime; let it, like every other violation of morals, be severely proscribed by the ci vil magistrate; and nature will soon defend or resume her rights. Nature, t hat fond, that indulgent, parent, has strewed her pleasures with a bounteou s hand; and, while she fills us with delights, she prepares us, by means of our issue, (in whom we see ourselves, as it were, reproduced,) she prepare s us, I say, for future satisfactions of a more exquisite kind than those v ery delights.

Chapter 7= The Crime of High-Treason

IT is determined, by the laws of China, that whosoever shews any disrespect to the emperor is to be punished with d eath. As they do not mention in what this disrespect consists, every thing may furnish a pretext to take away a man’s life, and to exterminate any family whatsoever.

Two persons of that country, who were employed to write the court-gazette, having inserted some circumstances relating to a certain fact that were not true, it was pretended that to tell a lie in the courtgazette was a disrespect shewn to the court; in consequenc e of which they were put to death.

A prince of the blood having inadvertently made some mark on a memorial signed with the red pencil by the emperor, it was determined tha t he had behaved disrespectfully to the sovereign; which occasioned one of the most terrible persecutions against that family that ever was recorded i n history.

If the crime of high-treason be indeterm inate, this alone is sufficient to make the government degenerate into arbi trary power. I shall descant more largely on this subject when I come to treat of the co mposition of laws.

Chapter 8= The bad Application of the Name of Sacrilege and High-Treason

IT is likewise a shocking abuse to give the appellation of high-treason to an action that does not deserve it. By a n imperial lawC2A7 i t was decreed, that those who called in question the princes judge ment, or doubted of the merit of such as he had chosen for a public office, should be prosecuted as guilty of sacrilege.

Surely it was the cabinet-council and the princeE28099s favourites who invented that crime. By another law it was determined that whosoever made any attempt to injure the ministers and offi cers belonging to the sovereign should be deemed Edition= current; Page= [251] guilty of high-treason, as if he had attempted to injure the sovereign himself.

This law is owing to two princes*, remarkable for their w eakness; princes who were led by their ministers, as flocks by shepherds; p rinces who were slaves in the palace, children in the council, strangers to the army; princes, in fine, who preserved their authority only by giving i t away every day. Some of those favourites conspired against their sovereig ns. Nay, they did more; they conspired against the empire; they called in b arbarous nations; and, when the emperors wanted to stop their progress, the state was so enfeebled, as to be under a necessity of infringing the law, and of exposing itself to the crime of high-treason, in order to punish tho se favourites.

And yet this is the very law which the j udge of Monsieur de Cinq-Mars built uponE280A0, when, endeavouring to prove that the latter wa s guilty of the crime of high-treason for attempting to remove cardinal Ric helieu from the ministry, he says, E2809CCrimes that aim at the persons of ministers are deemed, by the imperial constitutions, of equal consequenc e with those which are levelled against the emperorE28099s own person. A minister discharges his duty to his prince and to his country= to attempt, therefore, to remove him, is endeavouring to deprive the former one of his armsE280A1, and th e latter of part of its power.E2809D It is impossible for the meanest to ols of power to express themselves in more servile language.

By another law of Valentinian, Theodosiu s, and Arcadius, false coiners are declared guilty of high-treason. Edition= current; Page= [252] But is not this confo unding the ideas of things? Is not the very horror of high-treason diminish ed by giving that name to another crime?

Chapter 9= The same Subject continued.

PAULINUS having written to the emperor Alexander, that E2809Che was preparing to prosecute, for high-treason, a judge who had decided contrary to his edict, the emperor answered, E2809Cthat under his reign there was no such thing as indirect high-tre ason*.E2809D

Faustinian wrote to the same emperor, th at, as he had sworn by the princeE28099s life never to pardon his slave, he found himself thereby obliged to perpetuate his wrath, lest he should i ncur the guilt of lC3A6sa majestas; upon whic h the emperor made answer, E2809CYour fears are groundlessE280A0, and you are a stranger to my principles.

It was determined, by a senatus-consultu m, that whoso ever melted down any of the emperorE28099s statues, which happened to be rejected, should not be deemed guilty of high-treason. The emperors, Sever us and Antoninus, wrote to PontiusC2A7, that those who sold unconsecrated statues of the empero r should not be charged with high-treason. The same princes wrote to Julius Cassianus, that, if a person, in flinging a stone, should by chance strike one of the emperor’s statues, he should not be liable to a prosecu tion for high-treason.

The Julian law requires this sort of limitations; for, in virtu e of this law, the crime of high-treason was charged, not only upon those who melted down the emperorE28099s statues, but likewise on those who c ommitted any such like action*, which made it an arbitrary crime. When a number of crimes of lC3A6sa majestas had been established, they were obliged to distinguish the several sorts. Hence Ulpian, the civilian, after saying that the accusation of lC3A6sa majestas did not die with the criminal, adds, that this does not relate toE280A0 all the treasonable acts established by the Julian law, but only to that which implies an atte mpt against the empire or against the emperorE28099s life.

Chapter 10= The same Subject continued.

A law was passed in England, under Henry 8th, by which punished with high-treason anyone who predicted the king’s death.

This law was extremely vague. The terror of despotic power is so great, that it recoils upon those who exercise it.

In this kingE28099s last illness the physicians would not venture to say he was in danger; and surely they acted very rightE280A1.