Clemency is the characteristic of monarchs. In republics, whose principle is virtue, it is not so necessary. In despotic governments, where fear predominates, it is less customary, because the great men are to be restrained by examples of severity. It is more necessary in monarchies, where they are governed by honour, which frequently requires what the very law forbids. Disgrace is here equivalent to chastisement; and even the forms of justice are punishments. This is because particular kinds of penalty are formed by shame, which on every side invades the delinquent.
The great men in monarchies are so heavily punished by disgrace, by the loss (though often imaginary) of their fortune, credit, acquaintances, and pleasures, that rigour in respect to them is needless. It can tend only to divest the subject of the affection he has for the person of his prince, and of the respect he ought to have for public posts and employments.
As the instability of the great is natural to a despotic government, so their security is interwoven with the nature of monarchy.
So many are the advantages which monarchs gain by clemency, so greatly does it raise their fame, and endear them to their subjects, that it is generally happy for them to have an opportunity of displaying it; which in this part of the world is seldom wanting.
Some branch, perhaps, of their authority, but never hardly the whole, will be disputed; and if they sometimes fight for their crown, they do not fight for their life.
But some may ask when it is proper to punish, and when to pardon. This is a point more easily felt that prescribed. When there is danger in the exercise of clemency, it is visible; nothing so easy as to distinguish it from that imbecility which exposes princes to contempt and to the very incapacity of punishing.
The Emperor Maurice made a resolution never to spill the blood of his subjects. Anastasius[64] punished no crimes at all. Isaac Angelus took an oath that no one should be put to death during his reign. Those Greek emperors forgot that it was not for nothing they were entrusted with the sword.
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1. In Mazulipatam it could never be found out that there was such a thing as a written law. See the Collection of Voyages that Contributed to the Establishment of the East India Company, iv., part I, p. 391. The Indians are regulated in their decisions by certain customs. The Vedan and such do not contain civil laws, but religious precepts. See Edifying Letters, coll. xiv.
2. C?sar, Cromwell, and many others.
3. Non liquet.
4. Quas actiones ne populus prout vellet institueret, certas solemnesque esse voluerunt -- Dig. de Orig. Jur., ii, § 6.
5. In France a person, though sued for more than he owes, loses his costs if he has not offered to pay the exact debt.
6. Discourse on the first decade of Livy, i. 7.
7. This is well explained in Cicero's oration Pro C?cina, towards the end, 100.
8. This was the law at Athens, as appears by Demosthenes. Socrates refused to make use of it.
9. Demosthenes, Pro Corona, p. 494, Frankfort, 1604.
10. See Philostratus, Lives of the Sophists, i. Life of ?schines.
11. Plato does not think it right that kings, who, as he says, are priests, should preside at trials where people are condemned to death, to exile, or to imprisonment.
12. See the account of the trial of the Duke de la Valette. It is printed in the Memoirs of Montresor, ii, p. 62.
13. It was afterwards revoked. See the same account, ii. p. 236. It was ordinarily a right of the peerage that a peer criminally accused should be judged by the king, as Francis II in the trial of the Prince of Condé, and Charles VII in the case of the Duc d'Alen?on. To-day, the presence of the king at the trial of a peer, in order to condemn him would seem an act of tyranny. -- Voltaire.
14. Annals, xi. 5.
15. Ibid., xiii. 4.
16. Histories, v.
17. The same disorder happened under Theodosius the younger.
18. Secret History.
19. See Leg. 2, § 24, Dig. ff. de orig. jur.
20. Quod pater puellce abesset, locum injuria esse ratus. -- Livy, dec. I, iii. 44.
21. And in a great many other cities.
22. See in Tacitus the rewards given to those informers. -- Annals, i. 30.
23. ix.
24. I shall show hereafter that China is, in this respect, in the same case as a republic or a monarchy.
25. Suppose, for instance, to prevent the execution of a decree, the common people paid a fine of forty sous, and the nobility of sixty livres. -- Somme Rurale, ii, p. 198, ed. Goth. 1512; and Beaumanoir, 61, p. 309.
26. See the Council of Peter Defontaines, 13, especially art. 22.
27. It was made by Valerius Publicola soon after the expulsion of the kings, and was twice renewed, both times by magistrates of the same family. As Livy observes, x, 9, the question was not to give it a greater force, but to render its injunctions more perfect. "Diligentius sanctum," says Livy, ibid.
28. Lex Porcia pro tergo civium lata. It was made in the 454th year of the foundation of Rome.
29. Nihil ultra quam improbe factum adjecet -- Livy, loc. cit.
30. They slit his nose or cut off his ears.
31. Xenophon, Hist., iii. 8, §§ 20-22.
32. Of Those Who Are Intrusted with the Direction of the State Affairs, 14.
33. See Kempfer.
34. Collection of Voyages that Contributed to the Establishment of the East India Company, iii, part I, p. 428.
35. Let this be observed as a maxim in practice, with regard to cases where the minds of people have been depraved by too great a severity of punishments.
36. Collection of Voyages that Contributed to the Establishment of the East India Company, v, p. 2.
37. Ibid.
38. The guilty were condemned to a fine; they could not be admitted into the rank of senators, nor nominated to any public office. -- Dio, xxxvi. 21.
39. Ibid.
40. i. 28.
41. We find there the punishment of fire, and generally capital punishments, theft punished with death, c.
42. Sulla, animated with the same spirit as the decemvirs, followed their example in augmenting the penal laws against satirical writers.
43. i, 28.
44. Poenas facinorum auxit, cum locupletes eo facilius scelere se obligarent, quod integris patrimoniis exularent. -- Suetonius in Life of Julius C?sar, 162.
45. See the Leg. 3, § legis, ad leg. Cornel, de sicariis, and a vast number of others in the Digest and in the Codex.
46. Sublimiores.
47. Medios.
48. Infirnos. Leg. 3, § legis, ad leg. Cornel, de sicariis.
49. Jul. Cap., Maximini duo, 8.
50. Chapter 17.
51. Hist. of Nicephorus, patriarch of Constantinople.
52. In Nicephorus' History.
53. Father Du Halde, i, p. 6.
54. Present State of Russia, Perry.
55. The English.
56. The citizens of Athens could not be put to the rack (Lysias, Orat. contra Agorat.) unless it was for high treason. The torture was used within thirty days after condemnation. (Curius Fortunatus. Rhetor, scol., ii.) There was no preparatory torture. In regard to the Romans, the Leg. 3, 4, ad leg. Jul. majest., show that birth, dignity, and the military profession exempted people from the rack, except in cases of high treason. See the prudent restrictions of this practice made by the laws of the Visigoths.
57. See Kempfer.
58. It is established in the Koran. See the chapter, Of the Cow.
59. Si membrum rupit, ni cum eo pacit, talio esto. Aulus Gellius, xx. i.
60. Ibid.
61. See also the Law of the Visigoths, vi, tit. 4, §§ 3, 5.
62. See Garcilasso, History of the Civil Wars of the Spaniards in the West Indies.
63. "Instead of punishing them," says Plato, "they ought to be commended for not having followed their fathers' example." -- Laws, ix.
64. Fragment of Suidas, in Constantine Porphyrogenitus.
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