6.14. 14. 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
governments 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,
[40]
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 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.
[41]
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.
[42]
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 It is true they were not expressly repealed; but as the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 further use.
This is exactly the time to which we may refer what Livy says
[43]
of the Romans, that no people were ever fonder of moderation in
punishments.
But if to the lenity of penal laws we add the right which the party
accused had of withdrawing before judgment was pronounced, we shall find
that the Romans followed the spirit which I have observed to be natural
to a republic.
Sulla, 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 too much followed, he laid snares, sowed thorns, and opened
precipices, wheresoever the citizens set their feet.
Almost all Sulla's laws contained only the interdiction of fire and
water. To this Csar added the confiscation of goods
[44]
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:
[45]
those which related to the principal persons in the state,
[46]
which were very mild: those which were inflicted on persons of an inferior rank,
[47]
and were more severe; and, in fine, such as concerned only persons of the lowest
condition,
[48]
which were the most rigorous.
Maximinus, that fierce and stupid prince, increased the rigour of
the military government which he ought to have softened. The senate were
informed, says Capitolinus,
[49]
that some had been crucified, others
exposed to wild beasts, or sewn 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 Consideration on the Rise and Declension of the Roman
Grandeur
[50]
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.
Footnotes
[41]
We find there the punishment of fire, and generally capital
punishments, theft punished with death, &c.
[42]
Sylla, animated with the same spirit as the decemvirs, followed
their example in augmenting the penal laws against satirical writers.
[44]
Pœnas facinorum auxit, cum locupletes eo facilius scelere se
obligarent, quod integris patrimoniis exularent. — Suetonius in "Life of
Julius Cæsar," 162.
[45]
See the Leg. 3, legis, ad leg. Cornel, de sicariis, and a
vast number of others in the Digest and in the Codex.
[48]
Infirnos. Leg. 3, legis, ad leg. Cornel, de sicariis.
[49]
Jul. Cap., "Maximini duo," 8.
