CHAP. XV.: Of the Roman Laws in Respect to Punishments.

I am strongly confirmed in my sentiments, upon finding the Romans on my side; and I think that punishments are connected with the nature of government, when I behold this great people changing, in this respect, their civil laws, in proportion as they altered their form of government.

The regal laws made for fugitives, slaves, and vagabonds, were very severe. The spirit of a republic would have required that the decemvirs should not have inserted those laws in their twelve tables; but men who aimed at tyranny were far from conforming to a republican spirit.

Livy says, Lib. 1. ^†180 in relation to the punishment of Metius Suffetius, dictator of Alba, (who was condemned, by Tullius Hostilius, to be fastened to two chariots drawn by horses, and to be torn asunder,) that this was the first and last punishment in which the remembrance of humanity seemed to have been lost. He is mistaken: the twelve tables are full of very cruel laws. We find there the punishment of fire, and generally capital punishments, theft punished with death, &c. ^†181

The design of the decemvirs appears more conspicuous in the capital punishment pronounced against libellers and poets. This is not agreeable to the genius of a republic, where the people like to see the great men humbled: but persons who aimed at the subversion of liberty were afraid of writings that might revive its spirit Sylla, animated with the same spirit as the decemvirs, followed their example, in augmenting the penal laws against satirical writers. ^†182

After the expulsion of the decemvirs, almost all the penal laws were abolished. It is true, they were not expressly repealed; but, as the Porcian law had ordained that no citizen of Rome should be put to death, they were of no farther use.

This is exactly the time to which we may refer what Livy says Book 1. ^†183 of the Romans, that no people were ever fonder of moderation in punishments.

But, if, to the lenity of the penal laws, we add the right which the party accused had of withdrawing before judgement was pronounced, we shall find that the Romans followed the spirit which I have observed to be natural to a republic.

Sylla, who confounded tyranny, anarchy, and liberty, made the Cornelian laws. He seemed to have contrived regulations merely with a view to create new crimes. Thus, distinguishing an infinite number of actions by the name of murder, he found murderers in all parts; and, by a practice but too much followed, he laid snares, sowed thorns, and opened precipices, wheresoever the citizens set their feet.

Almost all Sylla’s laws contained only the interdiction of fire and water. To this Cæsar added the confiscation of goods Pœnas facinorum auxit, cum locupletes eo facilius scelere se obligarent, quod integris patrimoniis exularent. Suet. in Jul. Cæsare. ^†184, because the rich, by preserving their estates in exile, became bolder in the perpetration of crimes.

The emperors, having established a military government, soon found that it was as terrible to the prince as to the subject; they endeavoured, therefore, to temper it; and with this view had recourse to dignities, and to the respect with which those dignities were attended.

The government thus drew nearer a little to monarchy, and punishments were divided into three classes See the 3d law, §. legis ad leg. Cornel. de sicariis, and a vast number of others in the Digest and in the Codex. ^†185; those which related to the principal persons in the state Sublimiores. ^†186, which were very mild; those which were inflicted on persons of an inferior rank Medios. ^†187, and which were more severe; and, in fine, such as concerned only persons of the lowest condition Infimos, leg. 3. §. legis ad leg. Cornel. de sicariis. ^†188, which were the most rigorous.

Maximinus, that fierce, that stupid, prince, increased the rigour of the military government which he ought to have softened. The senate was informed, says Capitolinus Jul. Cap. Maximini duo. ^†189, that some had been crucified, others exposed to wild beasts, or sewed up in the skins of beasts lately killed, without any manner of regard to their dignity. It seemed as if he wanted to exercise the military discipline, on the model of which he pretended to regulate the civil administration.

In the Considerations on the Rise and Declension of the Roman Grandeur, we find in what manner Constantine changed the military despotism into a military and civil government, and drew nearer to monarchy. There we may trace the different revolutions of this state, and see how they fell from rigour to indolence, and from indolence to impunity.