6.2. 3. In what Governments and in what Cases the Judges ought to
determine according to the express Letter of the Law.
The nearer a government approaches towards a republic, the more the manner of judging
becomes settled and fixed; hence it was a fault in the republic of Sparta for
the Ephori to pass such arbitrary judgments without having any laws to
direct them. The first consuls at Rome pronounced sentence in the same
manner as the Ephori; but the inconvenience of this proceeding was soon
felt, and they were obliged to have recourse to express and determinate laws.
In despotic governments there are no laws; the judge himself is his
own rule. There are laws in monarchies; and where these are explicit,
the judge conforms to them; where they are otherwise, he endeavours to
investigate their spirit. In republics, the very nature of the
constitution requires the judges to follow the letter of the law;
otherwise the law might be explained to the prejudice of every citizen,
in cases where their honour, property, or life is concerned.
At Rome the judges had no more to do than to declare that the
persons accused were guilty of a particular crime, and then the
punishment was found in the laws, as may be seen in divers laws still
extant. In England the jury give their verdict whether the fact brought
under their cognisance be proved or not; if it be proved, the judge
pronounces the punishment inflicted by the law, and for this he needs
only to open his eyes.
