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19. Of the Government of the Roman Provinces. Such was the distribution of the three powers in Rome. But they were far from being thus distributed in the provinces. Liberty prevailed in the centre and tyranny in the extreme parts.

While Rome extended her dominions no farther than Italy, the people were governed as confederates, and the laws of each republic were preserved. But when she enlarged her conquests, and the senate had no longer an immediate inspection over the provinces, nor the magistrates residing at Rome were any longer capable of governing the empire, they were obliged to send pr?tors and proconsuls. Then it was that the harmony of the three powers was lost. The persons appointed to that office were entrusted with a power which comprehended that of all the Roman magistracies; nay, even that of the people.[78] They were despotic magistrates, extremely well adapted to the distance of the places to which they were destined. They exercised the three powers; and were, if I may presume to use the expression, the bashaws of the republic.

We have elsewhere observed[79] that in a commonwealth the same magistrate ought to be possessed of the executive power, as well civil as military. Hence a conquering republic can hardly communicate her government, and rule the conquered state according to her own constitution. And indeed as the magistrate she sends to govern is invested with the executive power, both civil and military, he must also have the legislative: for who is it that could make laws without him? It is necessary, therefore, that the governor she sends be entrusted with the three powers, as was practised in the Roman provinces.

It is more easy for a monarchy to communicate its government, because the officers it sends have, some the civil executive, and others the military executive power, which does not necessarily imply a despotic authority.

It was a privilege of the utmost consequence to a Roman citizen to have none but the people for his judge. Were it not for this, he would have been subject in the provinces to the arbitrary power of a proconsul or of a propr?tor. The city never felt the tyranny which was exercised only on conquered nations.

Thus, in the Roman world, as at Sparta, the freemen enjoyed the highest degree of liberty, while those who were slaves laboured under the extremity of servitude.

While the citizens paid taxes, they were raised with great justice and equality. The regulation of Servius Tullius was observed, who had distributed the people into six classes, according to their difference of property, and fixed the several shares of the public imposts in proportion to that which each person had in the government. Hence they bore with the greatness of the tax because of their proportionable greatness of credit, and consoled themselves for the smallness of their credit because of the smallness of the tax.

There was also another thing worthy of ad miration, which is, that as Servius Tullius's division into classes was in some measure the fundamental principle of the constitution, it thence followed that an equal levying of the taxes was so connected with this fundamental principle that the one could not be abolished without the other.

But while the city paid the taxes as she pleased, or paid none at all,[80] the provinces were plundered by the knights, who were the farmers of the public revenue. We have already made mention of their oppressive extortions, with which all history abounds.

"All Asia," says Mithridates,[81] "expects me as her deliverer; so great is the hatred which the rapaciousness of the proconsuls,[82] the confiscations made by the officers of the revenue, and the quirks and cavils of judicial proceedings,[83] have excited against the Romans."

Hence it was that the strength of the provinces did not increase, but rather weakened, the strength of the republic. Hence it was that the provinces looked upon the loss of the liberty of Rome as the epoch of their own freedom.

20. The End of this Book. I should be glad to inquire into the distribution of the three powers, in all the moderate governments we are acquainted with, in order to calculate the degrees of liberty which each may enjoy. But we must not always exhaust a subject, so as to leave no work at all for the reader. My business is not to make people read, but to make them think.

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1. "I have copied," says Cicero, "Sc?vola's edict, which permits the Greeks to terminate their difference among themselves according to their own laws; this makes them consider themselves a free people."

2. The Russians could not bear that Czar Peter should make them cut it off.

3. The Cappadocians refused the condition of a republican state, which was offered them by the Romans.

4. The natural end of a state that has no foreign enemies, or that thinks itself secured against them by barriers.

5. Inconvenience of the Liberum veto.

6. At Venice.

7. As at Athens.

8. See Aristotle, Politics, iv. 4.

9. See Aristotle, Politics, ii, 10.

10. Ibid., 9.

11. These were magistrates chosen annually by the people. See Stephen of Byzantium.

12. It was lawful to accuse the Roman magistrates after the expiration of their several offices. See in Dionysius Halicarnassus, ix, the affair of Genutius the tribune.

13. De minoribus rebus principes consultant, de majoribus omnes; ita tamen lit ea quoque quorum penes plebem arbitrium est, apud principes pertractentur. -- ix.

14. Politics, iii. 14.

15. See Justin, xvii. 3.

16. Aristotle, Politics, v. 11.

17. Ibid., iii. 14.

18. Ibid.

19. See what Plutarch says in the Theseus. See likewise Thucydides, i.

20. Aristotle, Politics, iv. 8.

21. Dionysius Halicarnassus, ii, p. 120, and iv, pp. 242, 243.

22. See Tanaquil's Discourse on Livy, i dec. l, and the regulations of Servius Tullius in Dionysius Halicarnassus, iv. p. 229.

23. See Dionysius Halicarnassus, ii, p. 118, and iii, p. 171.

24. It was by virtue of a senatus-consultum that Tullius Hostilius ordered Alba to be destroyed. -- Ibid., iii, pp. 167 and 172.

25. Ibid., iv, p. 276.

26. Ibid., ii. And yet they could not have the nomination of all offices, since Valerius Publicola made that famous law by which every citizen was forbidden to exercise any employment, unless he had obtained it by the suffrage of the people.

27. Ibid., iii, p. 159.

28. Ibid., iv.

29. He divested himself of half the regal power, says Dionysius Halicarnassus, iv, p. 229.

30. It was thought that if he had not been prevented by Tarquin he would have established a popular government. -- Ibid., iv, p. 243.

31. Ibid., iv.

32. Livy, dec. 1, vi.

33. Qu?stores parricidii. -- Pomponius, Leg. 2,§ 23, ff. de orig. jur.

34. Plutarch, Poplicola.

35. Comitiis centuriatis.

36. See Livy, i, 43; Dionysius Halicarnassus, iv, vii.

37. Dionysius Halicarnassus, ix, p. 598.

38. Ibid., vii.

39. Contrary to the ancient custom, as may be seen: ibid., v, p. 320.

40. Ibid., pp. 410, 411.

41. Ibid., ix, p. 605.

42. Ibid., xi, p. 725.

43. By the sacred laws, the plebeians had the power of making the plebiscita by themselves, without admitting the patricians into their assembly -- Ibid., vi, p. 410; vii, p. 430.

44. By the law enacted after the expulsion of the decemvirs, the patricians were made subject to the plebiscita, though they had not a right of voting there. Livy, iii. 55, and Dionysius Halicarnassus, xi, p. 725. This law was confirmed by that of Publius Philo the dictator, in the year of Rome 416. Livy, viii. 12.

45. In the year 312 of Rome the consuls performed still the business of surveying the people and their estates, as appears by Dionysius Halicarnassus, ix.

46. Such as those by which it was allowed to appeal from the decisions of all the magistrates to the people.

47. Book vi.

48. In the year of Rome 444, Livy, dec. 1, ix. 30. As the war against Perseus appeared somewhat dangerous, it was ordained by a senatus-consultum that this law should be suspended, and the people agreed to it. Livy, dec. 5, ii.

49. They extorted it from the senate, says Freinshemius, dec. 2, vi.

50. There is no manner of doubt but the consuls had the power of trying civil causes before the creation of the pr?tors. See Livy, dec. l, ii. 1; Dionysius Halicarnassus, x, pp. 627, 645.

51. The tribunes frequently tried causes by themselves only, but nothing rendered them more odious. -- Dionysius Halicarnassus, xi, p. 709.

52. Judicia extraordinaria. See the Institutes, iv.

53. Book vi, p. 360.

54. Album Judicium.

55. "Our ancestors," says Cicero, Pro Cluentio, "would not suffer any man whom the parties had not agreed to, to be judge of the least pecuniary affair, much less of a citizen's reputation."

56. See in the fragments of the Servilian, Cornelian, and other laws, in what manner these laws appointed judges for the crimes they proposed to punish. They were often pitched upon by choice, sometimes by lot, or, in fine, by lot mixed together with choice.

57. Seneca, De Benefic. iii. 7, in fine.

58. See Quintilian, iv, p. 54, in fol. ed., Paris, 1541.

59. Leg. 2 ff. de orig. jur. Magistrates who were called decemvirs presided in court, the whole under a pr?tor's direction.

60. Quoniam de capite civis Romani, injussu populi Romani, non erat permissum consulibus jus dicere. -- See Pomponius,Leg. 2, §6, ff. de orig. jur.

61. Dionysius Halicarnassus, v, p. 322.

62. The comitia by centuries. Thus Manlius Capitolinus was tried in these comitia. -- Livy, Dec. 1, vi. 20.

63. Pomponius, in Leg. 2, Dig., de orig. jur.

64. See a fragment of Ulpian, who gives another of the Cornelian Law: it is to be met with in the Collation of the Mosaic and Roman Laws, tit. i, De Sicariis et homicidiis.

65. This took place, especially in regard to crimes committed in Italy, which were subject chiefly to the inspection of the senate. See Livy, Dec. 1, ix, 26, concerning the conspiracies at Capua.

66. This was the case in the prosecution for the murder of Posthumius, in the year 340 of Rome. See Livy, iv. 50.

67. This judgment was passed in the year of Rome 567.

68. Book viii.

69. Cicero, in Brutus.

70. This is proved from Livy, book xliii. 46, who says that Hannibal rendered their magistracy annual.

71. The senatus-consultums were in force for the space of a year, though not confirmed by the people. -- Dionysius Halicarnassus ix, p. 595; xi, p. 735.

72. In the year 630.

73. Capite censos plerosque. -- Sallust, De Bello Jugurth, 84.

74. Fragment of this author, xxxvi, in the collection of Constantine Porphyrogenitus, Of Virtues and Vices [Historica].

75. Fragment of his history, taken from the extract Of Virtues and Vices [Historica].

76. Fragment of the book xxxiv in the extract Of Virtues and Vices [Historica].

77. Penes quos Rom? tum judicia erant, atque ex equestri ordine solerent sortito judices eligi in causa Pr?torum et Proconsulum, quibus post administratam provinciam dies dicta erat.

78. They made their edicts upon entering the provinces.

79. Book v. 19. See also ii, iii, iv, and v.

80. After the conquest of Macedonia the Romans paid no taxes.

81. Speech taken from Trogus Pompeius, and related by Justin, xxxviii. 4.

82. See the orations against Verres.

83. It is well known what sort of a tribunal was that of Varus, which provoked the Germans to revolt.

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Book XII. Of the Laws That Form Political Liberty, in Relation to the Subject

1. Idea of this Book. It is not sufficient to have treated of political liberty in relation to the constitution; we must examine it likewise in the relation it bears to the subject.

We have observed that in the former case it arises from a certain distribution of the three powers; but in the latter, we must consider it in another light. It consists in security, or in the opinion people have of their security.

The constitution may happen to be free, and the subject not. The subject may be free, and not the constitution. In those cases, the constitution will be free by right, and not in fact; the subject will be free in fact, and not by right.

It is the disposition only of the laws, and even of the fundamental laws, that constitutes liberty in relation to the constitution. But as it regards the subject: manners, customs, or received examples may give rise to it, and particular civil laws may encourage it, as we shall presently observe.

Further, as in most states liberty is more checked or depressed than their constitution requires, it is proper to treat of the particular laws that in each constitution are apt to assist or check the principle of liberty which each state is capable of receiving.

2. Of the Liberty of the Subject. Philosophic liberty consists in the free exercise of the will; or at least, if we must speak agreeably to all systems, in an opinion that we have the free exercise of our will. Political liberty consists in security, or, at least, in the opinion that we enjoy security.

This security is never more dangerously attacked than in public or private accusations. It is, therefore, on the goodness of criminal laws that the liberty of the subject principally depends.

Criminal laws did not receive their full perfection all at once. Even in places where liberty has been most sought after, it has not been always found. Aristotle[1] informs us that at Cum? the parents of the accuser might be witnesses. So imperfect was the law under the kings of Rome that Servius Tullius pronounced sentence against the children of Ancus Martius, who were charged with having assassinated the king, his father-in-law.[2] Under the first kings of France, Clotarius made a law[3] that nobody should be condemned without being heard; which shows that a contrary custom had prevailed in some particular case or among some barbarous people. It was Charondas that first established penalties against false witnesses.[4] When the subject has no fence to secure his innocence, he has none for his liberty.

The knowledge already acquired in some countries, or that may be hereafter attained in others, concerning the surest rules to be observed in criminal judgments, is more interesting to mankind than any other thing in the world.

Liberty can be founded on the practice of this knowledge only; and supposing a state to have the best laws imaginable in this respect, a person tried under that state, and condemned to be hanged the next day, would have much more liberty than a pasha enjoys in Turkey.

3. The same Subject continued. Those laws which condemn a man to death on the deposition of a single witness are fatal to liberty. In reason there should be two, because a witness who affirms, and the accused who denies, make an equal balance, and a third must incline the scale.