Montesquieu

Further, nothing makes the crime of lese-majesty more arbi­trary than when indis­crete words become the occa­sion for it. Speech is so sub­ject to inter­pre­ta­tion ; there is such a dif­fe­rence bet­ween indis­cre­tion and malice, and so lit­tle dif­fe­rence in the expres­sions they use, that law can hardly sub­ject words to capi­tal punish­ment unless it decla­res expressly which ones.1

Words do not cons­ti­tute a cor­pus delicti ; they remain only in thought. Most of the time they do not signify by them­sel­ves, but by the tone in which they are utte­red. Often while repea­ting the same words one does not impart the same mea­ning : that mea­ning depends on the rela­tion they have to other things ; some­ti­mes silence expres­ses more than all that is said. There is nothing so equi­vo­cal as all that. How then can one make it into a crime of lese-majesty ? Wherever this law is esta­bli­shed, not only is free­dom, but even its sha­dow, a thing of the past.

In the mani­fest of the late cza­rina issued against the Olguruki family,2 one of those prin­ces is sen­ten­ced to death for prof­fe­ring inde­cent words which had some rela­tion to her per­son, ano­ther for a mali­cious inter­pre­ta­tion of her wise pro­vi­sions for the empire, and offen­ding her sacred per­son with somew­hat dis­res­pect­ful words.

I do not pre­tend to dimi­nish the indi­gna­tion one must feel against those who try to tar­nish the glory of their prince ; but I shall say that if one wishes to mode­rate des­po­tism, a sim­ple cor­rec­tio­nal punish­ment will be more sui­ted to such occur­ren­ces than an accu­sa­tion of lese-majesty, always ter­ri­fying even to inno­cence.3

Acts are not eve­ry­day things : many per­sons can notice them ; a false accu­sa­tion about facts can easily be cla­ri­fied. The words which accom­pany an act take on the nature of that act. Thus a man who enters the public square to exhort sub­jects to revolt beco­mes guilty of lese-majesty because the words are accom­pa­nied by action and are part of it. It is not the words one puni­shes, but an act com­mit­ted in which the words are used. They become cri­mes only when they pre­pare, accom­pany, or fol­low a cri­mi­nal act ; eve­ry­thing is upside down if words are made into a capi­tal crime ins­tead of seeing them as the sign of a capi­tal crime.

The empe­rors Theodosius, Arcadius, and Honorius wrote to Ruffinus, the præ­to­rian pre­fect : “If someone speaks ill of our per­son or of our govern­ment, we do not wish to punish him4 ; if he has spo­ken inconsi­de­ra­tely, he should be scor­ned ; if out of mad­ness, he should be pitied ; if it is an insult, he must be for­gi­ven. And so, lea­ving things as they are, you will apprise us of it, so that we may judge the words by the per­sons, and weigh care­fully whe­ther we should have them tried or ignore them.”

Si non tale sit delictum in quod vel scriptura legis descendit vel ad exemplum legis vindicandum est [‘[It should not be punished as a crime] unless the offense is indeed what the law prescribes or must be punished as an example’], says Moestinus in Law 7 following Ad legem Juliam majestatis.

In 1740.

Nec lubricum linguæ ad pœnam facile trahendum est [‘An uncertain word should not be easily punished’] (Modestinus, in Law 7 following Ad legem Juliam majestatis).

Si id ex levitate processerit, contemnendum est ; si ex insania miseratione dignissimum ; si ab injuria remittendum (single law in Cod. Si quis Imperatori maledixerit [‘If anyone should speak ill of the emperor’]).