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The power of banishing was exercised only every fifth year: and indeed, as the ostracism was designed against none but great personages who threatened the state with danger, it ought not to have been the transaction of every day.

8. That Laws which appear the same were not always made through the same Motive. In France they have received most of the Roman laws on substitutions, but through quite a different motive from the Romans. Among the latter the inheritance was accompanied with certain sacrifices[9] which were to be performed by the inheritor and were regulated by the pontifical law; hence it was that they reckoned it a dishonour to die without heirs, that they made slaves their heirs, and that they devised substitutions. Of this we have a very strong proof in the vulgar substitution, which was the first invented, and took place only when the heir appointed did not accept of the inheritance. Its view was not to perpetuate the estate in a family of the same name, but to find somebody that would accept of it.

9. That the Greek and Roman Laws punished Suicide, but not through the same Motive. A man, says Plato, who has killed one nearly related to him, that is, himself, not by an order of the magistrate, not to avoid ignominy, but through pusillanimity shall be punished.[10] The Roman law punished this action when it was not committed through pusillanimity, through weariness of life, through impatience in pain, but from a criminal despair. The Roman law acquitted where the Greek condemned, and condemned where the other acquitted.

Plato's law was formed upon the Laced?monian institutions, where the orders of the magistrate were absolute, where shame was the greatest of miseries, and pusillanimity the greatest of crimes. The Romans had no longer those refined ideas; theirs was only a fiscal law.

During the time of the republic, there was no law at Rome against suicides; this action is always considered by their historians in a favourable light, and we never meet with any punishment inflicted upon those who committed it.

Under the first emperors, the great families of Rome were continually destroyed by criminal prosecutions. The custom was then introduced of preventing judgment by a voluntary death. In this they found a great advantage: they had an honourable interment, and their wills were executed, because there was no law against suicides.[11] But when the emperors became as avaricious as cruel, they deprived those who destroyed themselves of the means of preserving their estates by rendering it criminal for a person to make away with himself through a criminal remorse.

What I have been saying of the motive of the emperors is so true, that they consented that the estates of suicides should not be confiscated when the crime for which they killed themselves was not punished with confiscation.[12]

10. That Laws which seem contrary proceed sometimes from the same Spirit. In our time we give summons to people in their own houses; but this was not permitted among the Romans.[13]

A summons was a violent action,[14] and a kind of warrant for seizing the body;[15] hence it was no more allowed to summon a person in his own house than it is now allowed to arrest a person in his own house for debt.

Both the Roman and our laws admit of this principle alike, that every man ought to have his own house for an asylum, where he should suffer no violence.[16]

11. How to compare two different Systems of Laws. In France the punishment for false witnesses is capital; in England it is not. Now, to be able to judge which of these two laws is the best, we must add that in France the rack is used for criminals, but not in England; that in France the accused is not allowed to produce his witnesses, and that they very seldom admit of what are called justifying circumstances in favour of the prisoner; in England they allow of witnesses on both sides. These three French laws form a close and well-connected system;

and so do the three English laws. The law of England, which does not allow of the racking of criminals, has but very little hope of drawing from the accused a confession of his crime; for this reason it invites witnesses from all parts, and does not venture to discourage them by the fear of a capital punishment. The French law, which has one resource more, is not afraid of intimidating the witnesses; on the contrary, reason requires they should be intimidated; it listens only to the witnesses on one side, which are those produced by the attorney-general, and the fate of the accused depends entirely on their testimony.[17] But in England they admit of witnesses on both sides, and the affair is discussed in some measure between them; consequently false witness is there less dangerous, the accused having a remedy against the false witness which he has not in France. Wherefore, to determine which of those systems is most agreeable to reason, we must take them each as a whole and compare them in their entirety.

12. That Laws which appear the same are sometimes really different. The Greek and Roman laws inflicted the same punishment on the receiver as on the thief;[18] the French law does the same. The former acted rationally, but the latter does not. Among the Greeks and Romans the thief was condemned to a pecuniary punishment, which ought also to be inflicted on the receiver; for every man that contributes in what shape soever to a damage is obliged to repair it. But as the punishment of theft is capital with us, the receiver cannot be punished like the thief without carrying things to excess. A receiver may act innocently on a thousand occasions: the thief is always culpable; one hinders the conviction of a crime, the other commits it; in one the whole is passive, the other is active; the thief must surmount more obstacles, and his soul must be more hardened against the laws.

The civilians have gone further; they look upon the receiver as more odious than the thief,[19] for were it not for the receiver the theft, say they, could not be long concealed. But this again might be right when there was only a pecuniary punishment; the affair in question was a damage done, and the receiver was generally better able to repair it; but when the punishment became capital, they ought to have been directed by other principles.

13. That we must not separate Laws from the End for which they were made: of the Roman Laws on Theft. When a thief was caught in the act, this was called by the Romans a manifest theft; when he was not detected till some time afterwards, it was a non-manifest theft.

The law of the Twelve Tables ordained that a manifest thief should be whipped with rods and condemned to slavery if he had attained the age of puberty; or only whipped if he was not of ripe age; but as for the nonmanifest thief, he was only condemned to a fine of double the value of what he had stolen.

When the Porcian laws abolished the custom of whipping the citizens with rods, and of reducing them to slavery, the manifest thief was condemned to a payment of fourfold, and they still continued to condemn the non-manifest thief to a payment of double.[20]

It seems very odd that these laws should make such a difference in the quality of those two crimes, and in the punishments they inflicted. And, indeed, whether the thief was detected either before or after he had carried the stolen goods to the place intended, this was a circumstance which did not alter the nature of the crime. I do not at all question that the whole theory of the Roman laws in relation to theft was borrowed from the Laced?monian institutions. Lycurgus, with a view of rendering the citizens dextrous and cunning, ordained that children should be practised in thieving, and that those who were caught in the act should be severely whipped. This occasioned among the Greeks, and afterwards among the Romans, a great difference between a manifest and a non-manifest theft.[21]

Among the Romans, a slave who had been guilty of stealing was thrown from the Tarpeian rock. Here the Laced?monian institutions were out of the question; the laws of Lycurgus in relation to theft were not made for slaves; to deviate from them in this respect was in reality conforming to them.

At Rome, when a person of unripe age happened to be caught in the act, the pr?tor ordered him to be whipped with rods according to his pleasure, as was practised at Sparta. All this had a more remote origin. The Laced?monians had derived these usages from the Cretans; and Plato,[22] who wants to prove that the Cretan institutions were designed for war, cites the following, namely, the power of bearing pain in individual combats, and in thefts which have to be concealed.

As the civil laws depend on the political institutions, because they are made for the same society, whenever there is a design of adopting the civil law of another nation, it would be proper to examine beforehand whether they have both the same institutions and the same political law.

Thus when the Cretan laws on theft were adopted by the Laced?monians, as their constitution and government were adopted at the same time, these laws were equally reasonable in both nations. But when they were carried from Laced?mon to Rome, as they did not find there the same constitution, they were always thought strange, and had no manner of connection with the other civil laws of the Romans.

14. That we must not separate the Laws from the Circumstances in which they were made. It was decreed by a law at Athens that when the city was besieged, all the useless people should be put to death.[23] This was an abominable political law, in consequence of an abominable law of nations. Among the Greeks, the inhabitants of a town taken lost their civil liberty and were sold as slaves. The taking of a town implied its entire destruction, which is the source not only of those obstinate defences, and of those unnatural actions, but likewise of those shocking laws which they sometimes enacted.

The Roman laws ordained that physicians should be punished for neglect or unskilfulness.[24] In those cases, if the physician was a person of any fortune or rank, he was only condemned to deportation, but if he was of a low condition he was put to death. By our institutions it is otherwise. The Roman laws were not made under the same circumstances as ours: at Rome every ignorant pretender intermeddled with physic; but among us, physicians are obliged to go through a regular course of study, and to take their degrees, for which reason they are supposed to understand their profession.

15. That sometimes it is proper the Law should amend itself. The law of the Twelve Tables allowed people to kill a night-thief as well as a day-thief,[25] if upon being pursued he attempted to make a defence; but it required that the person who killed the thief should cry out and call his fellow-citizens. This is indeed what those laws, which permit people to do justice to themselves, ought always to require. It is the cry of innocence which in the very moment of the action calls in witnesses and appeals to judges. The people ought to take cognizance of the action, and at the very instant of its being done; an instant when everything speaks, even air, countenance, passions, silence; and when every word either condemns or absolves. A law which may become so opposed to the security and liberty of the citizens ought to be executed in their presence.[26]

16. Things to be observed in the composing of Laws. They who have a genius sufficient to enable them to give laws to their own, or to another nation, ought to be particularly attentive to the manner of forming them.

The style ought to be concise. The laws of the Twelve Tables are a model of conciseness; the very children used to learn them by heart.[27] Justinian's Novell? were so very diffuse that they were obliged to abridge them.[28]

The style should also be plain and simple, a direct expression being better understood than an indirect one. There is no majesty at all in the laws of the lower empire; princes are made to speak like rhetoricians. When the style of laws is inflated, they are looked upon only as a work of parade and ostentation.

It is an essential article that the words of the laws should excite in everybody the same ideas. Cardinal Richelieu[29] agreed that a minister might be accused before the king, but he would have the accuser punished if the facts he proved were not matters of moment. This was enough to hinder people from telling any truth whatsoever against the minister, because a matter of moment is entirely relative, and what may be of moment to one is not so to another.

The law of Honorius punished with death any person that purchased a freedman as a slave, or that gave him molestation.[30] He should not have made use of so vague an expression; the molestation given a man depends entirely on the degree of his sensibility.

When the law has to impose a penalty, it should avoid as much as possible the estimating it in money. The value of money changes from a thousand causes, and the same denomination continues without the same thing. Every one knows the story of that impudent fellow at Rome[31] who used to give those he met a box on the ear, and afterwards tendered them the five-and-twenty pence of the law of the Twelve Tables.

When the law has once fixed the idea of things, it should never return to vague expressions. The ordinance of Louis XIV[32] concerning criminal matters, after an exact enumeration of the causes in which the king is immediately concerned, adds these words, "and those which in all times have been subject to the determination of the king's judges"; this again renders arbitrary what had just been fixed. Charles VII says[33] he has been informed that the parties appeal three, four, and six months after judgment, contrary to the custom of the kingdom in a country where custom prevailed; he therefore ordains that they shall appeal forthwith, unless there happens to be some fraud or deceit on the part of the attorney,[34] or unless there be a great or evident cause to discharge the appeal. The end of this law destroys the beginning, and it destroys it so effectually, that they used afterwards to appeal during the space of thirty years.[35]

The law of the Lombards does not allow a woman that has taken a religious habit,[36] though she has made no vow, to marry; because, says this law, "if a spouse who has been contracted to a woman only by a ring cannot without guilt be married to another, for a much stronger reason the spouse of God or of the blessed Virgin." Now, I say, that in laws the arguments should be drawn from one reality to another, and not from reality to figure, or from figure to reality.

A law enacted by Constantine[37] ordains that the single testimony of a bishop should be sufficient without listening to any other witnesses. This prince took a very short method; he judged of affairs by persons, and of persons by dignities.

The laws ought not to be subtle; they are designed for people of common understanding, not as an art of logic, but as the plain reason of a father of a family.