the spirit of laws-第58章
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cence。
Under the reign of Philip the Long； the Jews were expelled from France； being accused of having poisoned the springs with their lepers。 So absurd an accusation ought to make us doubt all those that are founded on public hatred。
I have not here asserted that heresy ought not to be punished； I said only that we ought to be extremely circumspect in punishing it。
6。 Of the Crime against Nature。 God forbid that I should have the least inclination to diminish the public horror against a crime which religion； morality； and civil government equally condemn。 It ought to be proscribed； were it only for its communicating to one sex the weaknesses of the other； and for leading people by a scandalous prostitution of their youth to an ignominious old age。 What I shall say concerning it will in no way diminish its infamy； being levelled only against the tyranny that may abuse the very horror we ought to have against the vice。
As a natural circumstance of this crime is secrecy； there are frequent instances of its having been punished by legislators upon the deposition of a child。 This was opening a very wide door to calumny。 〃Justinian；〃 says Procopius；＇13＇ 〃published a law against this crime； he ordered an inquiry to be made not only against those who were guilty of it； after the enacting of that law； but even before。 The deposition of a single witness； sometimes of a child； sometimes of a slave； was sufficient； especially against such as were rich； and against those of the green faction。〃
It is very odd that these three crimes； witchcraft； heresy； and that against nature； of which the first might easily be proved not to exist； the second to be susceptible of an infinite number of distinctions； interpretations； and limitations； the third to be often obscure and uncertain it is very odd； I say； that these three crimes should amongst us be punished with fire。
I may venture to affirm that the crime against nature will never make any great progress in society； unless people are prompted to it by some particular custom； as among the Greeks； where the youths of that country performed all their exercises naked； as amongst us； where domestic education is disused； as amongst the Asiatics； where particular persons have a great number of women whom they despise； while others can have none at all。 Let there be no customs preparatory to this crime； let it； like every other violation of morals； be severely proscribed by the civil magistrate； and nature will soon defend or resume her rights。 Nature； that fond； that indulgent parent； has strewn her pleasures with a bounteous hand； and while she fills us with delights； she prepares us； by means of our issue； in whom we see ourselves； as it were； reproduced she prepares us； I say； for future satisfactions of a more exquisite kind than those very delights。
7。 Of the Crime of High Treason。 It is determined by the laws of China that whosoever shows any disrespect to the emperor is to be punished with death。 As they do not mention in what this disrespect consists； everything may furnish a pretext to take away a man's life； and to exterminate any family whatsoever。
Two persons of that country who were employed to write the court gazette； having inserted some circumstances relating to a certain fact that was not true； it was pretended that to tell a lie in the court gazette was a disrespect shown to the court； in consequence of which they were put to death。＇14＇ A prince of the blood having inadvertently made some mark on a memorial signed with the red pencil by the emperor； it was determined that he had behaved disrespectfully to the sovereign； which occasioned one of the most terrible persecutions against that family that ever was recorded in history。＇15＇
If the crime of high treason be indeterminate； this alone is sufficient to make the government degenerate into arbitrary power。 I shall descant more largely on this subject when I come to treat＇16＇ of the composition of laws。
8。 Of the Misapplication of the Terms Sacrilege and High Treason。 It is likewise a shocking abuse to give the appellation of high treason to an action that does not deserve it。 By an imperial law＇17＇ it was decreed that those who called in question the prince's judgment； or doubted the merit of such as he had chosen for a public office； should be prosecuted as guilty of sacrilege。＇18＇ Surely it was the cabinet council and the prince's favourites who invented that crime。 By another law； it was determined that whosoever made any attempt to injure the ministers and officers belonging to the sovereign should be deemed guilty of high treason； as if he had attempted to injure the sovereign himself。＇19＇ This law is owing to two princes＇20＇ remarkable for their weakness princes who were led by their ministers as flocks by shepherds； princes who were slaves in the palace； children in the council； strangers to the army； princes； in fine； who preserved their authority only by giving it away every day。 Some of those favourites conspired against their sovereigns。 Nay； they did more； they conspired against the empire they called in barbarous nations； and when the emperors wanted to stop their progress the state was so enfeebled as to be under a necessity of infringing the law； and of exposing itself to the crime of high treason in order to punish those favourites。
And yet this is the very law which the judge of Monsieur de Cinq…Mars built upon＇21＇ when endeavouring to prove that the latter was guilty of the crime of high treason for attempting to remove Cardinal Richelieu from the ministry。 He says： 〃Crimes that aim at the persons of ministers are deemed by the imperial constitutions of equal consequence with those which are levelled against the emperor's own person。 A minister discharges his duty to his prince and to his country： to attempt； therefore； to remove him； is endeavouring to deprive the former one of his arms；＇22＇ and the latter of part of its power。〃 It is impossible for the meanest tools of power to express themselves in more servile language。
By another law of Valentinian； Theodosius； and Arcadius；＇23＇ false coiners are declared guilty of high treason。 But is not this confounding the ideas of things？ Is not the very horror of high treason diminished by giving that name to another crime？
9。 The same Subject continued。 Paulinus having written to the Emperor Alexander that 〃he was preparing to prosecute for high treason a judge who had decided contrary to his edict；〃 the emperor answered； 〃that under his reign there was no such thing as indirect high treason。〃＇24＇
Faustinian wrote to the same emperor that as he had sworn by the prince's life never to pardon his slave； he found himself thereby obliged to perpetuate his wrath； lest he should incur the guilt of l？sa majestas。 Upon which the emperor made answer； 〃Your fears are groundless；＇25＇ and you are a stranger to my principles。〃
It was determined by a senatus…consultum＇26＇ that whosoever melted down any of the emperor's statues which happened to be rejected should not be deemed guilty of high treason。 The Emperors Severus and Antoninus wrote to Pontius＇27＇ that those who sold unconsecrated statues of the emperor should not be charged with high treason。 The same princes wrote to Julius Cassianus that if a person in flinging a stone should by chance strike one of the emperor's statues he should not be liable to a prosecution for high treason。＇28＇ The Julian law requires this sort of limitations； for in virtue of this law the crime of high treason was charged not only upon those who melted down the emperor's statues； but likewise on those who committed any such like action；＇29＇ which made it an arbitrary crime。 When a number of crimes of l？sa majestas had been established； they were obliged to distinguish the several sorts。 Hence Ulpian； the civilian； after saying that the accusation of l？sa majestas did not die with the criminal； adds that this does not relate to all the treasonable acts established by the Julian law；＇30＇ but only to that which implies an attempt against the empire； or against the emperor's life。
10。 The same Subject continued。 There was a law passed in England under Henry VIII； by which whoever predicted the king's death was
