Chapter 18

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

by Montesquieu Icon

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 len= ity, than in severity; to banish but few, rather than many; and to leave th= em their estates, instead of making a vast number of confiscations. Under p= retence of avenging the republic=E2=80=99s cause, the avengers would establ= ish 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 vengeanc= e they took of tyrants, or of those they suspected of tyranny= they put the= ir children to death=E2=88= =A5; nay, sometimes five of their nearest relations*; and 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. = =E2=80=9CThey, 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 triumv= irs, 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=C2=A7 the formula of the proscriptions. One would imagi= ne 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 six = thousand citizens. They are relative also to those laws which were made at = Rome against private citizens, and were called privileges. T= hese were never passed but in the great meetings of the people. But, in wha= t manner soever they were enacted, Cicero was for having them abolished, be= cause the force of a law consists in its being made for the whole community= =E2=80=A1. I must own,= notwithstanding, that the practice of the freest nation that ever existed = induces me to think that there are cases in which a veil should be drawn fo= r 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 la= ws, in order to protect the innocence of the subject. At Athens, if an accu= ser had not the fifth part of the votes on his side, he was obliged to pay = a fine of a thousand drachms. =C3=86schines, who accused Ctesiphon, was con= demned to pay this fine= =C2=A7. 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 = Edition= current; Page= [264] make a farther ad= dition to this servitude and subjection?

At Athens and Rome* it was first permitted to sell such debtor= s 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=E2=80=A1 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 passag= e 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=E2=88=A5 had been reduced to slave= ry. Manlius’ designs were prevented; but without remedying the evil. Particular laws facilitated to debtors the means of paying=C2=B6; and, in <= span class=3D"decoration">Edition= current; Page= [265] the year of Rome 4= 28, the consuls proposed a law*, which deprived creditors of the power of confining their debtors= in their own houses. An usurer, by name Papirius, attempted= to corrupt the chastity of a young man named Publius,= whom he kept in irons. Sextus=E2=80=99s= crime gave to Rome its political liberty= that of Pap= irius 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 procur= ed it. Appius=E2=80=99s attempt upon Virginia f= lung the people again into that horror against tyrants with which the misfo= rtune of Lucretia had first inspired them. Thir= ty-seven years after=E2=88= =A5 the crime of the infamous Papirius an a= ction of the like criminal nature=E2=80=A1 was the cause of the people=E2=80=99s retiring to the = Janiculum=C2=A7, and of giving new vigour to the law made for the saf= ety 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.