Montesquieu
 

VI.15 On the Romans’ laws relating to punishments

I am confi­dent of my maxims when I have the Romans for me, and I believe that penal­ties stem from the nature of the govern­ment when I see that great peo­ple chan­ging civil laws in this regard in conjunc­tion with the chan­ging of poli­ti­cal laws.

Royal laws, made for a peo­ple com­po­sed of fugi­ti­ves, sla­ves and bri­gands, were very severe. The spi­rit of the repu­blic would have asked the decem­virs not to have these laws inclu­ded in their Twelve Tables, but peo­ple who aspi­red to tyranny had no inten­tion of fol­lo­wing the spi­rit of the repu­blic.

Livy says of the exe­cu­tion of Metius Fufetius, dic­ta­tor of Alba, who was sen­ten­ced by Tullus Hostilius to be drawn by two cha­riots, that it was the first and last exe­cu­tion where the peo­ple tes­ti­fied to having lost the memory of huma­nity.1 He is wrong : the law of the Twelve Tables is full of very cruel pro­vi­sions.2

The one that best reveals the decem­virs’ intent is the capi­tal punish­ment pro­noun­ced against poets and the authors of libels. That is not in the genius of the repu­blic, where the peo­ple like to see the great brought low. But men who wan­ted to over­turn liberty fea­red wri­tings that could remind peo­ple of the spi­rit of liberty.3

After the expul­sion of the decem­virs, almost all the laws that had fixed penal­ties were sup­pres­sed. They were not expressly abro­ga­ted, but after the Porcian law pro­hi­bi­ted the put­ting of a Roman citi­zen to death, they no lon­ger had any appli­ca­tion.

That is the time to which we can relate what Livy says of the Romans : that never has any peo­ple more loved mode­ra­tion of punish­ments.4

Now if we add to the mode­ra­tion of punish­ments the right the accu­sed had of with­dra­wing before the trial, we will indeed see that the Romans had fol­lo­wed this spi­rit, which I have said was natu­ral to the repu­blic.

Sulla, who mixed tyranny, anar­chy, and liberty, made the Cornelian laws. He see­med to make sta­tu­tes only in order to esta­blish cri­mes. Thus, qua­li­fying innu­me­ra­ble acts by the name of mur­der, he found mur­de­rers eve­ryw­here ; and through a prac­tice that was only too well fol­lo­wed, he set traps, scat­te­red thorns, and ope­ned chasms in the path of every citi­zen.

Virtually all of Sulla’s laws pres­cri­bed only the depri­va­tion of water and fire.5 To this Cæsar added confis­ca­tion of pro­perty,6 because as the rich kept their patri­mony in exile, they were embol­de­ned to com­mit cri­mes.

The empe­rors, after esta­bli­shing a mili­tary govern­ment, soon rea­li­zed that it was not less for­mi­da­ble against them than against their sub­jects. They tried to tem­per it ; they thought they nee­ded the digni­ties and res­pect peo­ple had for them.

They moved somew­hat toward monar­chy, and punish­ments were divi­ded into three clas­ses7 those that applied to the first per­sons of the state,8 and which were rather mild ; those that were impo­sed on per­sons of an infe­rior rank,9 and which were more severe ; and finally those that applied to none but the lowest condi­tions,10 and which were the most rigo­rous.

The fierce and sen­se­less Maximinus ange­red, so to speak, the mili­tary govern­ment that nee­ded ins­tead to be tem­pe­red. The senate lear­ned, says Capitolinus, that some had been cru­ci­fied, others expo­sed to beasts or sewn up in skins of beasts recently killed, without any regard for digni­ties.11 He see­med to want to exer­cise mili­tary dis­ci­pline, on the model of which he inten­ded to regu­late civil mat­ters.

To learn how Constantine chan­ged a mili­tary des­po­tism into a mili­tary and civil des­po­tism approa­ching monar­chy, see Considerations on the Causes of the Greatness of the Romans and of their Decline. There the rea­der can fol­low the various revo­lu­tions of that state, how it went from rigor to indo­lence, and from indo­lence to impu­nity.

Book I.

We find there torture by fire, punishments that are almost always capital, theft punished by death, etc.

Sulla, inspired by the same spirit as the decemvirs, like them increased the penalties against satirical writers.

Book I.

[Deprivation of water and (hearth) fire, synecdoches for the home, signifies exile.]

Pœnas facinorum auxit, cùm locupletes eo facilius scelere se obligarent, quod integris patrimoniis exularent (Suetonius in Julius Cæsar).

See Law 4 § legis ad legem Corneliam de sicariis [‘a law concerning the Cornelian law on assassins’], and a very large number of others in the Digest and the Code.

Sublimiores.

Medios.

Infimos, Law 3 § legis ad legem Corneliam de sicariis.

Julius Capitolinus, Maximini duo.