F\ ROYAL DISSERTATIONS- I. On MANNERS, CUSTOMS, INDUSTRY, and the Progrefs of the HUMAN UNDERSTANDING in the Arts and Sciences. II. On SUPERSTITION and RELIGION. III. On the ancient and modern Government of BRANDENBURG. IV. On the Reafons for the Enacting and Repealing of LAWS. With the Character of the Celebrated M. DE VOL T A I R E. By the Prefent KING of PRUSSIA. (Tranflated from the BERLIN Copy.) To which is Added, His DESCRIPTION and CHAR ACTER. DUBLIN: Printed for WM. WILLIAMSON, Bookfeller, at , in Bride-Jlreet,Mu 54 DISSERTATION II. in need of merchants, labourers, tradefmen, foldiers, and in fhort, of a great multitude of fubjecls for its fupport, it is certain, that people who make a vow a, gainft the propagation of the human fpecies, are per- nicious to the flate. IN monarchies, the proteftant religion depends on no foreign power, but is intirely fubjedt to the go- vernment ; whereas the catholic religion eftablifhes a fpi ritual jurifdidtion, unlimited in its power, and fruitful in plots and artifices, in the prince's temporal dominions. The priefts who have the direction of confciences, and have no other fuperior but the pope have a greater command over the people than the fo- vereign that governs them j and by a peculiar artifice of confounding the interefts of religion with human ambition, the popes have often been at variance with princes on fubjefts that are no way lubjeft to the jurif- diction of the church. IN the country of Brandenburg, and mofl of the provinces of Germany, the people were all impatient under the yoke of the Roman clergy. This was too coftly a religion for fb poor a country. Purgatory, manes for the living and the dead, jubilees, firfl fruits, indulgences, venial and mortal fins, the changing of penances into pecuniary fines, matrimonial caufes, vows and offerings, were fb many imports which the pope laid on credulity, and brought him in as fure a revenue as Mexico does to Spain. Thofe who paid them were exhaufted and diflatisfied. There was no neceflity of ufmg many arguments to difpofe thofe people to receive the reformation : they complained of the tyranny of the clergy ; a man ftarted up who pro- mifed to deliver them from the oppreilion, and they all followed him. JOACHIM II. was the firfl elector who embraced the */ Lutheran religion ; which he learnt of his mother who was a princefs of Denmark.' For the new dodlrine had made its way into Denmark before it was received in Brandenburg. His fubjects foon followed his exam- ple, pie, and 'all Brandenburg turned proteflant. Mat- thew Jagow bifhop of Brandenburg adminiftred the facrament in both kinds in- the convent of Black-friers. This convent became afterv/ards the cathedral of Ber- lin. Joachim II. diftinguifhed himfelf among the par- ty, not only by the controverfial letters which he wrote to the king of Poland, but moreover by the eloquent fpeeches which he is faid to have * made at the diet of Augfburg in favour of the proteftants. THE reformation could notabolifh all the errors of the antient religion : tho' it had opened the eyes of the people with regard to an infinite number of fuperfti- tions, yet it retained a great many others ; fo incon- ceivable is the propenfity of the human mmd to error. Luther did not believe in purgatory, yet he admitted apparitions and devils into his fyftem : he even main- tained that fatan had appeared to him at Wittemburg, and that he hadexorcifed him by flinging 1 an inkhorn at his head. There was fcarce any nation at that time but was full of thofe prejudices. The court, and much more fo the people, were prepofTefled with a no- tion of forcery, conjuring, apparitions and devils. In 1533, two old women patTed thro' the ordeal of fire, to clear themfelves of the charge of witchcraft. The court had its aftrologer : one of them foretold, at the birth of John Sigifmund, that he would be a fortu- nate prince, becaufe at that time a new ftar was dif- eovered in the conftellation of Caffiopeia. But the a- ftrologer did not foretel, that John Sigifmund would turn Calvinift to pleafe the Dutch, whofe afliftance was of great fervice to him in aflerting his rights to the dutchy of Cleves. AFTER Luther's fchifmhad divided the church, the popes and emperors ufed every kind of endeayour to bring about a re-union. The divines of both pro- feflions held conferences, one while at Thorn, ano- ther time at Augfburg. Religious fubje&s were de- bated in all the diets of the empire, and yet every at- D 4 tempt Lockelius's annals of Brandenburg. 5 6 DISSERTATION II. tempt proved fruitlefs. At length a bloody and cruel war broke out r which was extiguifhed and renewed at different intervals. It was often kindled by the am- bition of the emperors, who wanted to opprefs the li- terty of the princes, and the confciences of the people. But thejealoufy of France, and the ambition of Guf- tavus Adolphus, king of Sweden, preferved Germany and religion from the defpotic power of the houfe of Auflria. DURING all thofe troubles, the electors of Branden- burg behaved with the greatefl prudence. They were directed by the principles of lenity and moderation. Fredrick-William having acquired catholic fubjects by the treaty of Weftphalia, did not perfecute them ; he even gave leave to fome Jewiih families to fettle in his dominions, and permitted them to build fynagogues. FREDRICK I. fometimes fhut the catholic churches, by way of reprifal for the perfecutions which the pro- teflants fuffered under the elector Palatine ; but the catholics were always re-inflated in the free exercife of their religion. The Calvinifls attempted to per- fecute the Lutherans in the country of Brandenburg. The king being inclined to favour the Calvinifls, em- braced this opportunity to eflablifh priefls of that feel in villages which had been always directed by Luthe- rans. This plainly mews, that religion does not de- flroy the pafiions of mankind, and that priefls of what- ever religion, are always ready to opprefs their adver- faries, when they have power on their fide. IT is a mame to the human underflanding, that at the beginning of fo learned an age as the XVIIIth all manner of fuperflitions were }'et fubfifling. Men of fenfe, as well as the vulgar, believed flill in appariti- tions. There was a kind of popular tradition, that a ghoft drefled in white appeared conflantly at Berlin, whenever a prince of the family was near his end. The late king ordered a fellow to be taken up and pu- nifhed, who had pretended to have feen an apparition ; the ghofls offended at fo bad a reception, appeared no more, and the public was difabufed. IN DISSERTATION II. 57 IN 1708, a woman who had the misfortune of be ing old, was burnt as a witch. Thefe barbarous con- fequences of ignorance made a great impreflion upon Thomafius, the learned profeilbr of Halle ; he expofed the weaknefs and ridicule of the proofs of witchcraft, he maintained public thefes on the natural caufes of things, and declaimed fo loudly againft trials of this kind, that the judges were afhamed to continue them any longer ; and fince his time the fex has been fuffer- ed to grow old and die in peace. OF all the learned men that have adorned Germa- ny, Leibnitz, and Thomafius did the greateft fervice to the human underftanding, by pointing out the right road which reafon ought to purfue to come at the truth. They oppofed prejudices of every kind, and in all their writings appealed to analogy and experience, the two crutches by the help of which we drawl on in the road of argumentation 9 and they had a great number of difciples. THE Calvinifts became more pacific under the reign of Frederick-William, and religious quarrels ceafed. The Lutherans improved this tranquillity to their advantage. Francke, a minifter of their feet, eftablifhed by his own induflry a college at Halle. This was a nurfery foryoung divines, from whence a fwarm of priefts iffued forth, who formed a (eel: of rigid Lutherans, and who wanted nothing but an Abbe Paris's grave, and an Abbs Becherand, to play gambols upon. Thefe are proteftant Janfenifts who are diftinguiihed from the reft by their myflical feve- rities. After them appeared all forts of Quakers, Zin- zendorfians, Hychilians, and other feels, one more ri- diculous and extravagant than the other, who by car- rying * the principles of the primitive church too far, fell into fome criminal abufes. ALL thefe feels live here in peace, and contribute alike to the profperity of the ftate ; for there is never a religion that differs greatly from the reft, in reipecl to * The community of goods, and equality of condition. It is even faid that this community of goods is extended to women in their af- femblies. 5 8 DISSERTATION III. to morality. Hence they may be all alike to the go- vernment, which of courfe leaves every man at liber- ty to go to heaven which way he pleafes. All that is required of them, is to be peaceful and good fubjects. FALSE zeal is a tyrant that depopulates provinces ; toleration is a tender mother that makes them flourifh. DISSERTATION III. Of the ancient and modern Government of the Country of BRANDENBURG. BEFORE the country of Brandenburg was con- ' verted to Chriftianity, it was governed by Druids, as was formerly all Germany. Under the Vandals, the Teutons, and the Suevi, their princes were generals appointed by the nation, and were called Furften, which fignifies commanders or leaders. The empe- rors, who fubdued thofe barbarians, eftablilhed go- vernors over the frontiers, who were named Mar- graves, to curb this warlike nation, extremely jealous of her liberty. There are fo few records remaining of thofe diflant ages, that, to avoid mixing fables with hiftory, we fhall confine ourfelvefrfb the govern- ment of the electorate, under the princes of the houfe of Hohenzollern. IN the year 1412, when the Burgraves of Norim- berg were firft eftablifhed in the Marck, the nobili- ty, who were become refly and intractable under the late regencies, refuied to yield them homage. As they \vere fupported in their Independence by the dukes of Pomerania, they grew formidable to their fovereign ; the great families were powerful, they armed their t fubjects, and waged war with each other, robbing travellers even on the highways. Their places of re- treat were ftrong caftles, furrounded with deep ditch- es. Thus, thefe petty tyrants having divided the au- thority amongfh them, ravaged the open country with impunity ; and as there was no government that could enforce DISSERTATION III. 59 enforce the execution of its laws, an univerfal di order prevailed, and the inhabitants were reduced to the utmoft mifery. The great families that arofe in this flate of anarchy, were thofe of Kittzow, Putlitz, Bredow, HoltzendorfF, Uchtenhagen, Torgow, Ar- nim, Rochow, and the Lords of Hohenftein ; 'tis with thefe that the elector Frederick I. had to deal. NOTWJTSTANDING they were iubdued by this prince, yet they continued ftill matters of the govern- ment : They granted the fupplies, regulated the im- pofls, fixed the number of troops, which were never raifed but in cafe of neceffity, and were paid by them i they were confulted alfo upon the meafures pro- per to be taken for the defence of the country ; and it was by their advice that the laws were adminiftered. HISTORY furnifhes us with more than oneinflance of the power of the ilates. The elector Albert the Achilles owed a hundred thoufand florins * ; and to get clear of the debt, he defired the flates to charge themfelves with the payment of the money. They confented, and laid an excife on beer, which they granted only for feven years : they raifed it afterwards, and from thence comes what is called the Landfchafft or the public bank. UNDER the elector Joachim I. -f the Ilates laid a duty on mills, farms, and meep-folds, in order to keep two hundred horfe in pay, whom this prince fent to aflift the emperor againft the infidels. IN the elector Joachim II's time, the credit of the dates was fo great, that they redeemed tome baili- wicks, upon which that prince had borrowed Money ; on condition that neither he nor his fucceflbrs mould ever after mortgage or fell them. He confulted them upon all occafions, and promifed not to undertake any thing without their conlent. They even entered into a correfpondence with Charles V. and gave him toun- derftand that they did not approve the elector Ihould f In 1472. f In 1530. 60 DISSERTATION III. go the diet ; and accordingly he did not undertake the journey. JOHN Sigifmund and George William * confulted the flates in regard to the fucceilion ot Juliers and Berg. They nominated four deputies, who followed the court, as well to alTift as council, as to be employed in negotiations, and for fuch other purpofes, as circumftances might point out, in the fervice of thofe princes. GEORGE William confulted the ftates for the laft time t, to know whether they approved that he mould enter into an alliance with the Swedes, by putting them in poflefTion of his ftrong holds ; or whether he mould fide with the emperor. From that time Schwartzenberg got fuch a powerful afcendant over this weak prince, that he abforbed the whole authori- ty of the fovereign and of the ftates, and-levied taxes by his own authority. Thus, the ftates had no more left them, of that power which they had never abufed, than the merit of a blind fubmiflion to the orders of the court. THE electors had no other council than the ftates 'till the reign of Joachim Frederic. This prince efta- blifhed a council compofed of a minifter for the ad- miniftration of juftice, another for the management of the revenue, another for the affairs of the empire, and another who was marfhal of the court ; over all which prefided a ftadtholder. From this council all decifions were iilued out in the laft refort, all orders civil and military, all regulations concerning the po- lice i and it was they that drew up inftruftions for the minifters employed in foreign courts. WHEN the elector happened to be obliged, either by a journey or by war, to leave his dominions, this council exercifed the functions of the fovereignty : they gave audience to foreign minifters; and had the fame power, in fhort, as that which a regency is poffefled of, during the minority of a prince. THE In 1628. f In 1631. DISSERTATION III. 61 THE power of the prime minifter and of the council was almoft boundlefs ; Count Schwartzen- berg, in particular, had increaied his authority under George William to fuch a degree, that it feemed e- qual to that of the mayors of the palace under the French kings of the firft race. But the enormous abufe he made of it, gave the elector Frederic Wil- liam a diilike to all prime minifters. We find by the regulations made by this prince *, that each of the great officers had his different department, and that in every province there were two counfellors to re- gulate the affairs belonging to that diftrict. FREDERIC William, in the beginning of his reign, refided at Konigfberg in Pruffia: he took care to provide the council whom he left at Berlin, with ample inftructions relating to the circumftances of that time. The troops received their orders from the oldeft generals who happened to be in the province ; and the governors of fortified towns received them di- rectly from himlelf. UPON the death of the chancellor Gortz, this dig- nity was fupprefled, and baron Schwerin was made firft prefident of the council. The departments were divided, ib that whatever related to the adminiftra- tion of the laws, was carried to the council of juftice, who had a prefident at their head : The jurifdiction of the officers of the court, depended on the gover- nor of the caflle : The revenue was adminiftered by the chamber of the Domains, which was fubdivided into feveral offices ; of which baron Meinders, and after him the fieur de Jena had the general direction. THE ecclefiaftical affairs were directed by a con- fiflory, compofed partly of priefts, and partly of lay- men ; befides the abovementioned colleges, the chan- cery of the fiefs determined all feudal affairs. THINGS continued almoft on this footing, during the reign of Frederic I. f with this difference, that he let himfelf be governed intirely by his minifters. DanckeU f In 1651. f After 1688. 62 DISSERTATION III. Danckelman, who had been his preceptor, became* mafter of the (late ; upon the di (grace of that mini- fler, count Wartenberg had the very fame influence over his fovereign ; and Kamke would, in the like manner, have fucceeded the great chamberlain, if the king's death had not put an end to his growing power. FREDERIC William II. * changed the whole form of the ftate and government ; he limited the power of the miniflers ; and they, who had been mafters of his father, became his fervants. THE direction of foreign affairs was committed to the fieurs d' Ilgen and Kniphaufen ; thefe miniflers conferred with the envoys, and held a correfpond- ence with the Pruflian miniflers in the different courts of Europe ; but they were particularly entrulled with the affairs relating to the empire, to the boundaries of the ftate, and the rights and privileges of the electo- ral family. The fieur Cocceius, minifler of ftate, had the general direction of the adminiflration of fuftice, and acted as chancellor : Under him the fieur d'Arnim had the department of Appeals, and of the civil juftice of PrufTia and Ravenfberg ; and the fieur de Katfch was placed at the head of the criminal jurifdiction. THE fieur de Printz, great marfhal of the court, was made prefident of the fuperior confiftory, and intrufted with the infpedtion of the univerfities, chari- table foundations, canonries, and the affairs of the Jews. THE revenue was the part of the government which had been moft neglected ; for which reafon the king made feveral regulations, and eftablifhed the great directory in 1724.. This college is divided into four departments, and at the head of each is a mini- fter of ftate. Prulfia, Pomerania, and the New Marck y with the poft-office, conftituted the firft de- partment, which was given to the fieur de Grumkow : ' the * After 1715. DISSERTATION III. 63 the electorate of Brandenburg, the dutchy of Magde- burg, the county of Rupin, and the place of fecretary at war, formed the fecond department, which was given to the fieur de Kraut : the territories on the Rhine and the Wefer, with the falt-pits, made the third divifion, which was given to the fieur de Gorne : and the fourth had the direction of the principality of Halberfladt, the county of Mansfeldt, the manufac- tures, the (lamp-office, and the mint ; this fell to the fieur de Vireck. THE king united the fecretaryfhip at war with the commiflion of the revenues. Formerly thefe colleges employed forty advocates, for the profecution of the feveral fuits that arofe in thofe courts, at the fame time that they neglected the bufmefs for which they were defigned ; but after their reunion, they employ- ed their time entirely in the fervice of the ftate. UNDER thefe principal departments, the king e- ftablifhed in each province a court of juftice, and ano- ther of the exchequer, fubordinate to the minifters. The minifters for foreign affairs, as well as thofe ap- pointed for the adminiftration of juflice and of the re- venue, made their reports every day to the king, who pronounced final judgment 4^ tl)e feveral matters laid before him. During his whale reign there was not the leaft decree which was not figned with his own hand, nor the leaft inftrudion, of which he himfelf was not the author. HE declared all the fiefs allodial, on condition of a certain yearly rent, which the proprietors paid to the ftate. He laid out four millions five hundred thoufand crowns in the re-eftabliftiment of Lithuania ; fix mil- lions in rebuilding feveral towns in his own dominions, in improving the city of Berlin, and founding the town of Potzdam ; befides purchafmg lands to the value of five millions, which he incorporated with his own domains. IN a word, it was Frederick- William, that gave an advantageous form to the ftate, and fettled the government government upon the principles of prudence and dom. DISSERTATION IV. A DISSERTATION on the REASONS for the enacting and repealing of LAWS. WHOSOEVER is defirous of acquiring a com- plete knowledge of the manner in which laws ought to be enacted or repealed, can attain it only by the ftudy of hiftory. There we find, that every na- tion has had its particular laws ; that thefe laws were eftablifhed by degrees ; and that it was fbme time be- fore mankind could eftablifhany thing upon areafon- able footing. There we find alfo, that thofe legifla- tors, whofe laws have fubfifled longeft, were fuch as aimed only at the public good, and were beft ac- quainted with the temper and difpofition of the peo- ple whofe government they fettled. 'Tis thefe confiderations that have induced us to enter into a particular inquiry concerning the hiftory of laws, and the manner in which they were eftablifh- ed in moft civilized countries. IT feems probable K*t the fathers of families were the firlt legiflators. The neceffity of eftablifhing or- der in their own houfes, obliged them, without doubt, to make domeftic laws. After thofe early ages, and when men began to unite in communities, the laws of t r ,iofe particular jurifdictions were found infufficient for a more numerous fociety. THE human heart, which feems to lofe its malice in folitude, exerts every branch of it upon the great ftage of the world. And if the mutual intercourfe of mankind, by fbrting the moft homogeneous charac- ters, furnifhes the virtuous with good company ; it fupplies accomplices alfo to the wicked. WHEN diforders began to increafe in towns, and new vices were feen to rife, fathers of families, as moffc interefted, agreed, for their own fecurity, to endea- vour IV. vour to Item the torrent. . Laws were therefore pub- lifhed, and magiftrates appointed to enforce them, fuch is the depravity of mankind, that to live happy and in peace, there is a neceffity for having recourfe to the powerful conflraint of laws ! THE firft laws provided only againft great incon- veniencies ; the civil laws regulated the worfhip of the Gods, the divifion of lands, marriage contracts, and inheritances : Criminal laws exerted their rigour only in regard to crimes whofe effects were moft ap- prehended : and in proportion afterwards as unex- pected inconveniencies arofe, new diibrders gave birth to new laws. FROM the union of towns, republics took their rife ; and from the biafs of all human things to vici fitude, the form of their government often changed. The people tired of a Democracy made a tranfition to Androcracy, in the room of which they fubftituted afterwards a monarchial government : This was brought about two ways ; for either the people placed their confidence in the eminent virtue of one of their fellow-citizens ; or fome ambitious perfbn, by artifice, ufurped the fovereign power. There are few coun- tries but have experienced thefe different govern- ments ; and yet, all of them have had different laws. OSIRIS -f- is the firft legiflator mentioned in profane hiftory , he was king of Egypt, and eftablifhed laws for that country. Thefe laws, to which even (bve- reigns fubmitted, regulated the government of the kingdom, and directed at the fame time the con- j r? c j- -j i duct or individuals. THE kings ofthofe days acquired the love of the people, only inafmuch as they conformed to thefe laws. Ofiris * appointed thirty judges, the chief of whom wore about his neck the image of truth hang- ing by a gold chain : to be touched by this image was carrying the caufe. E OSIRIS t Herodotus Diodoru? Sicul\u * Some authors add Ids alfe. 9 DISSERTATION IV. OSIRIS regulated the worfhip of the gods, the divifion of lands, and the diftin&ion of ranks and conditions : He forbad the per (on s of debtors to be arrefled ; and banifhed the feducing charms of rhetoric from public pleadings. The Egyptians pledged the dead bodies of their fathers, and left them with their creditors for fecurity ; and it was the utmoft infamy not to redeem them before their death. This legiflator thought it was not fufficient to punifh men while they were i ; ving : for which reafon, he eflablifhed a tribunal to judge them after they were dead, to the end that the infamy, annexed to their condemnation, might ferve as a fpur to excite the living to virtue. NEXT to the laws of the Egyptians, thofe of the Cretans are the moft ancient. Their legiflator Minos gave out that he was fon of Jupiter, and that he had received thefe laws from his father, in order to ren- der them more venerable. LYCURGUS, king of Sparta, made ufe of Minos's laws, to which he added feme of thofe of Ofiris, which he collected in his travels thro' Egypt. He banifhed gold, filver, and all forts of coins and fuperfluous arts from his republic j and he made an equal divifion of lands among the citizens. As the chief intent of this legiflature was to form his people to war, he difcouraged every kind of pafli- on that might enervate their courage. With this view he permitted the promifcuous ufe of women a- mong the citizens; by which means the flate was peopled, and an attachment to the foft endearments of marriage was prevented. The children were all brought up at the public expence ; and when a fa- ther could prove that his new-born infant was not found, he was allowed to kill him. Lycurgus thought that a man, who was unable to bear arms, was unfit to live. HE made a regulation that the Helotes, who were a kind of ilaves, fhould manure the lands -, and that the DISSERTATION IV. 67 the Spartans fhould be employed only in military ex- ereifes. GIRLS were admitted as well as Boys to w reft le in public, on which occafion they both performed naked. THEY eat altogether in public, and no difference was made of rank or condition. STRANGERS were forbidden to make any flay in Sparta, left their manners fhould corrupt thofe intro- duced by Lycurgus. THERE was no punifhment againft thieves, unlefs they were detected in the fat. Lycurgus's aim was to form a military republic, and he fucceeded. DRACON * was the firft who made laws for the Athenians, but thefe were fb rigorous, that it was faid they were written rather with blood than ink. WE have feen in what manner laws were eftablifh- ed in Egypt, and at Sparta : let us now enquire how they were reformed at Athens. THE diforders which univerfally prevailed in At- tica, and the unhappy confequences apprehended from thence, rendered it necefTary to have recourfe tofbme prudent perfon, who fhould be judged capable of re- forming fo many abufes. The poor who were expo- fed to the moft cruel oppreflion from the rich, becaufe of their debts ; thought of chufmg to themfelves a chief, who fhould deliver them from the tyranny of their creditors. DURING thefe diflentions, Solon was named Ar- chon, and fupreme ruler, by the unanimous confent of the people. The rich, as Plutarch fays, approved of him readily, as he was rich ; and the poor, becaufe he was honeft. SOLON releafed the debtors, and gave the citizens a power of making teftaments. E 2 HE * Dracon puniflied even the fmalleft faults with death ; he went fo far as to profecute inanimate things . thus a ftatue, for exam- ple, which had hurt a perfon by falling upon him, was baniflied the city. 6H DISSERTATION IV. HE allowed that fuch women, as had the plea of impotency againft their huflbands, might chufe them- ielves others from among their relations. THESE laws inflicted punifhments on idlenefs , they acquitted thofe who killed an adulterer ; and probi- ted the committing the wardfhip of children to their next relations, IF a man had but one eye, he who put out the o- ther, was fentenced to lofe both his ; and men of de- bauched morals were not fuffered to fpeak in public allemblies. SOLON made no law againft parricide ; as this crime had never been heard of among the Athenians, he thought that to forbid it, would be rather giving them a notion of committing it. HE ordered all his laws to be depofited in the Areo- pagus. This court was founded by Cecrops, and in the beginning was compofed of thirty judges, who were afterwards increafed to five hundred. They held their fittings by night, and the orators were al- lowed only to flate the cafe of their clients, without endeavouring to excite the paflions. THE Athenian laws- were afterwards received at Rome : but as the laws of the Romans became thofe of the feveral nations which they fubdued, it will be neceflary to enlarge a little upon this fubjedr.. ROMULUS was the founder and firfl legiflator of Rome. We have the following few fragments of his. laws remaining. HE ordained that the kings fhould have the fu- preme authority in things relating to the adminiftra- tion of juftice, and to religion : that no credit fhould be given to the fables that are told of the gods ; that no notions fhould be propagated concerning their na- ture but fuch as are pure and religious ; and nothing bafe or difhonourable fhould be attributed to thofe happy beings. Plutarch adds, that it is impious to imagine the Deity takes any pleafure in the charms of a mortal beauty. And yet this king, who had fb lit- tle V 1 S.b K 1 A 1 1 U J.N IV. 69 tie fiiperftition in other refpects, ordained that no- thing fhould be undertaken without firft confuting the augurs. ROMULUS placed the patricians in thefenate, and divided tlie plebeians into tribes ; and as to theflaves they were not confidered at all. HUSBANDS had a right to punifh their wives with death, when they were convicted of adultery or drunkennefs. FATHERS had an unlimited power over their chil- dren; they were allowed to deftroy their new-born infants, that had any monftrous deformity. Parricide was punifhed with death : if a patron defrauded his client, he was held infamous ; and if a ftep-daughter happened to ftrike her father, flie was abandoned to the vengeance of the houfhold gods. Romulus would have even the very walls of towns to be facred ; hence he flew his brother Remus, for having tranf- grefTed this law, by leaping over the walls of the new town. THIS prince eftablifhed alfo afylums ; one of which was near the Tarpeian rock. To thefe laws of Romulus, Numa added fome new ones : as this prince was very religious, and had right notions of the Deity, he prohibited the reprefenting of God in the refemblance of man or beaft. Hence for the fpace of one hundred and fixty years from the foundation of Rome, there were no images in the Roman Temples. TULLUS HOSTILIUS, in order to encourage the propagation of the fpecies, decreed, that if a woman, was delivered of three children at a birth, they mould be maintained at the public expence, till the age of puberty. WE find among Tarquin's laws, that he obliged each citizen to give in an account of his eftate to the king, under a fevere penalty if he failed ; that he re- gulated the donations and offerings which private per^ fons made to the temples ; and that among others he permitted manumitted flaves to be admitted into the E 3 tribes 70 DISSERTATION IV; tribes of the city. This prince's laws were alfo favour- able to debtors. SUCH were the principal laws which the Romans received under their kings. They were collected into one body by Sextus Papirius, from whom they took the name of the Papirian Code. As moft of thofe laws had been made for a mo- narch ial government, they were aboliiTied upon the expulfion of their kings. VALERIUS POPLICOLA, Brutus's collegue in the confulate, and a great favourite of the people, for having been one of the principal authors of the liberty of Rome, publifhed new laws, adapted to the government lately eftablifhed. THESE laws allowed an appeal from the magi- flrates to the people, and prohibited, upon pain of death, the accepting of any poft or dignity without their confent. He diminished the public taxes, and made it lawful to kill any perlbn who mould af- pire to the fovereign power. IT was not till fome time after Poplicola, that ufury was eftablifhed ; the patricians at Rome car- ried it even to twelve per cent. If the debtor could not fatisfy his creditor, he was dragged to prifon, and he and his whole family were reduced to flavery. The feverity of this law feemed fo intolerable to the plebeians, who were often victims to it, that they com- plained againft the confuls. The fenate was inflexi- ble ; and the people being provoked at this treat- ment, retired to the Mons Sacer ; where they might treat with the patricians upon equal terms. The confequence of this feceflion was, that they did not return to Rome, 'till it was agreed that their debts mould be abolilhed, and magiftrates were created by the name of tribunes, with a proper authority to maintain their rights. Thefe tribunes reduced the intereft of money to half per cent, and at length it was intirely abolifhed for a time. THF, two orders of which the Roman republic was compofed, DISSERTATION IV. ?l compofed, were continually forming ambitious pro- jects, to increafe their refpective power , and from hence arofe continual diftrufls and jealoufies. Some factious citizens, made it their bufmefs to flatter the people, by pufhing their pretenfions to a pitch of ex- travagance ; and fome young fenators, men of ftrong paffions, and of no lefs pride, contributed frequently to render the refolutions of the fenate too fevere. THE Agrarian law relating to the divifion of lands was a fource of frequent animofities. This difpute wasfirft flarted in the year 267 of the foundation of Rome. The fenate found means fbmetimes to ftifle theie diflentions by employing the people in military operations ; but they were always revived and conti. nued till the year 300. ROME at length grew fenfible of the neceflity of having recourfe to laws, that might fatisfy both parties. With this view they fent Poflhumius Albus, Antonius Manlius, and Sulpicius Camerinus toAthens, in order to make a compilement of Solon's laws. Thefe Ambafladors who at their return were chofen among the decemvirs, digefted thefe laws, which the fenate approved by a decree, and the people by a plebifcitum. They were engraved on ten copper- tables, and the year following two more were added to them. This conftituted the body of laws, fo well known by the name of that of the twelve tables. THESE laws limited the power of fathers over their children ; they inflicted punifhments on guardians who defrauded their wards ; and they allowed people to leave their eftates by will to whom they pleafed. But the triumvirs ordained afterwards, that the tef- tators mould be obliged to leave a fourth part of their fortune to their next heirs ; and this is the origin of what we call the Legitime, or the fliare that a child has by law in its parent's eflate *. E 4 CHIL- * There were only two forts of heirs ab intejiate the children and the relations by the male fex. 7 2 LJiOOLL,S\.L\JLL\Ji\ IV. CHILDREN, born ten months after the death of their father, were declared legitimate ; and the em- peror Adrian exended this privilege to eleven months. DIVORCE, a thing as yet unknown to the Romans, had not the force of law, till it was eftablifhed by the twelve tables. Punimments were alfo inflicted a- gainft injurious actions, words, and writings EVEN the intention of committing parricide was punifhed with death. The citizens were impowered to kill a thief, if he had been taken with arms about him, or if he had broke into their houfe by night. FALSE witnefTes were fentenced to be tumbled down from the Tarpeian rock. In criminal caufes, the plaintiff was allowed two days, to draw up his accufation, of which he gave notice ; and the defen- dant had three days to make his anfwer and prepare for a defence *. If it appeared upon tryal, that the plaintiff had falfly accufed the defendant, he was condemned to the fame punimment as would have been inflicted on the defendant, if the latter had been found guilty of the charge. THIS is the fubftance of the Jaws of the twelve tables, laws of fo excellent a nature, that Tacitus fays all good infHtutions ended with them. Whatever was moft perfect in the Egyptian and Greek laws, centred in thefe. They were fo equitable as not to reftrain the liberty of the citizens, but in fuch cafes as the abufe of it might be prejudicial to thejtranquillity of families, and to the fecurity of the republic. THE authority of the fenate, which was continually claming wit.h the privileges of the people, the immo- derate ambition of the patricians, the pretenfions of the plebeians, which were perpetually increafing, together with many other caufes, which may be feen in hiftory, railed new difturbances, and flung the republic int6 violent -V t * The defendant appeared in a fuppliant poftwre before tbg pi^- ziftrate, with his relations and clients. "' : '.,,.:- i dL/lOOJLlXl^XlXWiN 4V. *] \ .violent convulfions. The Gracchi and the Saturnini publifhed fome feditious laws ; and during the troubles of the civil wars, a vaft number of decrees were ifTuep! out, which were occafionally enforced, according to the different fuccefs of the perfbns by whom they were enacted. Sylla abolifhed the ancient laws, and efta- bliflied new ones, which were repealed by Lepidus. The corruption of manners increafing with thefe domeftic diffenfions, gave rife to an infinite number of new inftitutions. Pompey was appointed to reduce them ; and he publifhed fome himfelf which died with him. During five and twenty years of civil wars, all law and juflice were at a ftand : and things continued in this confufion 'till the reign of Auguftus, who in his fixth confulate re-eftablifhed the antienj: Jaws, and abolifhed all thofe which were made during the inteftine commotions of the republic. At length the emperor Juftinian removed the con- fufion which the multiplicity of laws had occafioned in the ftudy of jurifprudence, by ordering his chancellor Trebonian to compofe a complete body of laws. Ac- cordingly he reduced the whole into three volumes, which are (till remaining ; namely the digeft, which contains the opinions of the moft celebrated civilians ; the code, which includes the constitutions of the em- perors ; and the inftitutes, which are an abridgement of the Roman laws. THE excellency of thefe laws was fo greatly ad- mired, that after the extinction of the Roman empire, they were adopted by moft civilized nations, who made them the ground-work of their jurifprudence. THE Romans had introduced their laws into the feveral countries, which were obliged to fubmit to their victorious arms. They were received by Gaul, when Julius Ceefar fubdued that country, and made it a pro- vince of the empire. IN the fifth century, after the difmembering of the Roman monarchy, the northern nations over-run a great part of Europe. Thefe barbarians introduced their 74 uiddUJviAiiuJN 1V\ their own laws and cuftoms among their conquered enemies. Gaul was then invaded by the Vifigoths, the Burgundians and the Franks. CLOVIS thought he fhewed an indulgence to his new fubjects, by leaving them at liberty to chufe either the laws of the conqueror, or of the conquered. He pub- limed the Salic law ; and feveral others were made by his fucceflbrs. GUNDEEALD, king of Burgundy, published a decree, by which he permits the ufe of fingle combats. FORMERLY the nobility had a right to judge as Ib- vereigns, and without appeal. IN the reign of Lewis the fat, the fupreme and regal jurifdiction was eftablifhed in France. We find that Charles IX. had a defign to reform the law, and to abridge the proceedings ; which appears by the ordi- nance of Moulins : and it is very extraordinary, that fo wife a defign mould have been formed in the midft of domeftic troubles. But as the prefident Hainault fays, the chancellor deL'Hopital was always watchful for the welfare of his country. At length Lewis XIV. ordered all the laws from Clovis down to his time, to be reduced into a body, which took from him the name of Code Louis. THE Britons, who as well as the Gauls, were fub- dued by the Romans, received alfo the laws of their conquerors. THESE people before that time, were governed by Druids, whofe maxims had the force of laws- THE fathers of families had the power of life and death over their wives and children. All communi- cation with ftrangers was forbiden : They put prifoners of war to death, and facrificed them to the gods. THE Romans maintained their power and their laws among thefe iflanders, till the reign of Honorius, who reftored them to their liberty in the year 410 by a folemn acl. THE Britons were afterwards attacked by the Pitts Pidls *, the allies of the Scotch ; being but poorly aflifted by the Romans, and always beaten by the ene- my, they applied for aid to the Saxons. Thefe peo- ple, who were only auxiliaries at firft to the Britons, became their matters ; and after a war of 1 50 years, they fubdued the whole ifland. THE Anglo Saxons introduced their laws into Bri- tain, the fame as formerly obtained in Germany. They divided England into feven kingdoms, which had each its feparate government. All of them had general aflemblies || compofed of nobles, the middling people, and the order of the peafants. This form of government, which had a mixture of monarchy, ari- ftocracy, and democracy, has continued to our time ; for the authority is ftill divided berween the King the houfe of lords, and the houfe of commons. ALFRED the great, gave England the firft body of laws : though thefe laws were mild, yet this prince was inexorable to magiftrates convicted of corruption. It is mentioned in hiftory, that in one fingle year he ordered four and forty judges to be hanged, who had been guilty of betraying their truft. BY the laws of Alfred the great, every Englimman accufed of a crime, ought to be tried by his peers ; and the nation ftill preserves this privilege. ENGLAND afiumed a new form .by the conqueft, which William duke of Normandy made of that country. This prince eftablimed new courts of judi- cature, among which that of the exchequer ftill fub- fifts ; and thefe feveral courts followed the king's perfon. He feparated the ecclefiaftic from the civil jurifdi&ion, and caufed his laws to be publifhed in the Norman language ; the fevereft among them was the prohibition of hunting upon pain^of mutilation, and even of death. AFTER * The Pifts a people who came from the country of Mecklen- burg. || Thefe aflemblies were called Witrenagemot, or the council pf the wife, and their government took the name of Heptarchy. j Crowned at London in 1066. ^o JLfJL3ojc,jxjL/iLj.iw.L>i iv. AFTER William the conqueror the kings his fuc- ceffors granted feveral charters. HENRY I. furnamed Beauclerc, gave the nobility leave to fucceed to inheritances, without paying any acknowledgment to the fovereign, he likewife per- mitted them to marry without the prince's confent. WE find alfo that king Stephen granted a charter, by which he declared that he held his power of the people and the clergy ; he confirmed the privileges of the church, and repealed the fevere laws of William the conqueror. KINC John, furnamed Lackland, granted his fub- jefts the charter, called magna charta, which confifts of 72 articles. THIS famous charter regulates the manner of hold- ing fiefs ; as alfb the mare allowed to widows, who are forbidden to marry again in a hurry, and to give fecurity not to enter into a fecond marriage at all without leave of the Lord Paramount, It eftablifhes courts of juftice in fix'd places. It forbids the levy- ing of taxes, without the confent of the commons, unlefs it be to ranfom the king, to make his fon a knight, or to endow his daughter. It ordains that no body (hall be imprifoned, or deprived either of life or eftate, without being judged by his peers, and according to the laws of the kingdom. The king, moreover, engages neither to fell nor to refufe juf- tice to any man. THE laws of Weflminfter, publiflied by Edward I. were only a revival of the magna charta, excepting that they prohibited the acquifition of lands in Mort- main, and that they banifhed the Jews from the kingdom. THO' England has a great many good laws, yet there is no country, perhaps in Europe, where they are fo badly executed. Rapin Thoyras makes a very good remark, that is owing to a defect in the govern- ment, that the regal power is continually claming with that of the parliament j that their time is em- ployed ployed in watching each other, either to maintain or to enlarge their authority ; that this jealoufy between the king and the reprefentatives of the nation, takes off their attention from the due adminiflration of juf- tice; and that this refllefs and tumultuous government is continually altering its laws by new acts of parlia- ment, according to the exigency of different conjunc- tures and events; from whence it follows that there is no kingdom whatfoever that has fo great a need of a reformation in the law as England. WE have only a few words to add concerning Germany. We received the Roman laws ; at the time we fubmitted to the arms of that nation ; and the rea- fon of our having flill preferved them, is, becaufe, when the emperors abandoned Italy, they transferred the feat of the empire to our country. And yet there is not one circle, nor even one principality, of ever fo fmall an extent, but has its particular cuftoms, which, by length of time, have acquired the force of laws. AFTER having explained the manner in which laws were eftabliftied in mod civilized countries, we mail obferve that wherever laws were introduced by the confent of the people, it was neceflity that caufed- them to be received; and that in conquered countries, the laws of the victor became thofe of the vanquifhed, but in both alike they have been confiderably increafed in procefs of time. If we are aftonifhed at firfl fight, that nations mould be fubjec~l to fo many different laws, we mall recover from our furprize, when we obferve that the effential part of laws is every where the fame; I mean thofe, which inflict punifliments on crimes, for the prefervation of fociety. WE obferve likewife, upon examining into the con* duct of the wifeft legislators, that laws ought to be adapted to the kind of government, and to the temper and confutations of the nation for which they are de- figned ; that the end propofed by the befl legiflators, is the public happinefs , and that in general thofe laws, which 7 V 1 S b J K 1 A 1 1 U JN IV. which are moft agreeable to natural equity, fome few exceptions made, are the beft. LYCUR GUS finding he had to deal with an ambitious people, gave them a kind of laws, that were more proper to make foldiers of them than peaceable citi- zens; and his baniftiing gold from his republic, was, becaufe of all vices, avarice is the moft oppofite to military glory. SOLON faid, that he did not give the Athenians the moft perfect laws ; but the beft they were capa- ble of receiving. He confidered not only the temper and difpofition of the people, but likewife the fituation of Athens, which was near the fea : for which reafon he punifhed idlenefs, and encouraged induftry ; nor did he prohibit gold and filver, becaufe he was fenfi- ble, that his republic could never attain to any pitch of grandeur and power, but by the profperity of its commerce. THE laws muft abfolutely be adapted to the tem- per and difpofition of the people, or there can be no hopes of their continuing long in force. As the Ro- mans were inclined to a democracy, whatever tended to alter that form of government, was extremely odious to them. Hence fo many commotions for the pafllngof the Agrarian law; the people flattering them- felves, that by a divifion of lands, they mould efta- blifh a kind of equality in the eftates of the citizens : Hence fo many tumults for the abolition of debts; becaufe the creditors, who were all patricians, treated their debtors, the plebeians, with inhumanity ; now nothing renders the inequality of conditions fo odious, as the tyranny which the rich exercife over the poor with impunity. WE find all forts of laws in all countries ; namely, thofe relating to politics, and to the adminiftration of government ; thofe which regard morals, and inflict punifhments on criminals ; and laftly, civil laws, which regulate inheritances, guardianships, the inte- reit of money, and private contracts. The legiilators of of monarchies, are generally the fovereigns themfelves. If their laws arc mild and juft, they will eafily main- tain their ground -, and the public will find its advan- tage in them : if they are fevere and tyrannical, they will foon be abolifhed ; becaufe they mull be fupport- ed by violence, and the tyrant is fingle againfl a whole nation, who are impatient to fupprefs them. In feveral republics, where private perfons were the legiflators, their laws fucceeded, only when they were able to eftablifh a juft equilibrium between the power of the government and the liberty of the citizens. 'Tis only in regard to laws, which regulate the morals of the people, that legiflators agree in general upon the fame principle ; excepting that they are more fevere againft fome crimes than others : and this without doubt, becaufe they knew the vices to which the nation had the ftrongeft biafs. As laws are a kind of barrier againft the inroads of vice, they muft certainly have recourfe to the terror of punimments to command refpecl. Yet it is not lefs certain that legiflators, who have fhewn a diflike to the multiplying of penal laws, are to be commend- ed as much at leaft for their humanity, as others for their rigour. THE greateft difference is in civil laws : thofe by whom they were eftablifhed, found certain ufages in- troduced before their time, which they did not think proper to abolifh, for fear of oppofing the prejudices of the nation ; they fhewed therefore a regard to the cuftom, by which they were looked upon as innocent; and though thefe ufages were not ftriclly equitable, yet they adopted them purely out of regard to their antiquity. WHOSOEVER has been at the trouble of making a clofe inquiry into the nature of laws, muft have found a great many without doubt, which at firft fight feern contrary to natural equity, and yet are otherwife. I fhall give only this fingle inftance of the right of pri- mogeniture ; mogeniture : nothing appears more juft than to make an equal divifion of the paternal eftate among all the children ; and yet experience fhews, that even the largeft inheritances, fubdivided into feveral fhares, will reduce in time the moft opulent families to in- digence. This is the reafon, that parents have cho- fen rather to difmherit their younger fons, than to make fuch a fettlement as muft inevitably occafion the decline, if not extinction of their families. And by the fame reafon, thofe laws which feem oppref- live and fevere to fome individuals, are yet to be commended, when they are conducive to the welfare of the whole community : for a wife legiilature will always prefer the interefl of the whole to that of a part. THE laws which require the greateft circumfpec- tion and prudence on the part of the legiflature, are undoubtedly thofe relating to debtors. If they are favourable to the creditors, the fituation of the deb- tors becomes too hard ; and an unlucky accident may ruin them for ever : On the other hand if they mould favour the debtors, public credit is hurt, by weaken- ing the fecurity of contracts. BUT a juft medium, which at the fame time fup- ports the validity of contracts, and does not opprefs the infolvent debtor, is in my opinion, fo difficult a thing, as never to be expected, even from the wifeft legiflators. WE mail not enlarge further upon this article ; the nature of this efTay does not permit us to enter into a more minute detail ; let us therefore confine ourfelvei to general reflections. A perfect body of laws would be one of the nobleft productions of the human mind : fuch a work would require an unity of defign, and fo great an exactnefs and proportion of rules, that a ftate directed by thofe laws, mould be like a watch, whofe wheels are all made for the fame end : it would require a profound knowledge knowledge of the human heart, and of the temper and conftitution of the people : it would require mo- deration in the inflicting of punifhments, fo as to pre- ferve the peoples morals, and yet be neither too mild nor too fevere : it would require a fingular perfpicui- ty and diftindtnefs in wording the decrees, fb as ne- ver to afford the leaft room for chicanery ; and the decrees themfelves mould be an abftract of the beft regulations of the civil law, ingenioufly and fimply applied to the cufloms of the nation : In fine, it would require fagacity to provide againfl every cafe that may happen, and judgment to combine even the mi- nuteft circumftances. But perfection is not to be ex- pected from the frail condition of humanity. THE people would have reafbn to be fatisfied, if le- giflators were always actuated towards them in the fame manner, as thofe fathers of families, who made the firft laws, were towards their' children : they loved their children, and every rule they prefcribed to them, had no other view than the happinefs of their families. A few wife laws make a nation happy ; but a mul- tiplicity of them embarrafe the adminiflration of ju tice. As a fkilful phyfician does not overload his pa- tient with medicines, fo a wife legiflator does not bur- then the public with fuperfluous laws. Medicines when too numerous, obflruct one another, and have not their due effect ; fo too many laws become a laby- rinth, in which the lawyers and juftice itfelf are loft. LAWS were multiplied among the Romans, by the frequency of revolutions : every ambitious perfbn, whom fortune favoured, fet up for a legiflator. This confufion continued, as we have already obferved, till the time of Auguftus, who repealed all thofe unjuft decrees, and revived the old laws. IN France, the multiplicity of laws was owing to the conqueft which the Franks made of that country, where they introduced their laws, Lews XI. had a defign of re-uniting all thefe different inftitutions, and F of 82 DISSERTATION of eftablifhing, as he faid himfelf, only one law, and one meafure throughout his dominions. THERE are many laws to which men are attached, only becaufe they are generally flaves to cuftom : tho' better regulations might be fubftituted in their ftead, yet it would be dangerous, perhaps, to attempt to meddle with them. The confufion which fuch a re- formation would occafion in the adminiftration of jut- tice, would be productive of more mifchief perhaps, than the new laws could do good. AND yet this does not hinder but there may be cafes, wherein a reformation (hall appear ablblutely neceifary ; for example, when there are laws contrary to the .public good, and to natural equity ; when they are couched in vague and obfcure terms ; and laftly, when they imply a contradiction, either in the mean- ing, or in the words. LET us endeavour to illuftrate this matter by a few examples. The laws of Ofiris in regard to thieves and robbers, will ferve as ah iriftance in thefirft cafe. By thefe it was ordained, that whoever entered himfelf of their gang, fhould give in his name to their chief, and proinife to deliver him all the booty he mould purloin. Thofe who had been robbed, applied to the chief of the gang, who returned them to the right owner, on condition of his paying a fourth part of their ' value. The legifiator imagined, that by this expedient they mould put every citizen in the way of recovering what had been ftolen from him, by paying a moderate fum to redeem it ; whereas this was the way to make all the Egyptians thieves. Doubtlefs this was far from being the intent of Ofiris in the enacting of this law : nnlefs it may be faid that he connived at theft, as an evil which it was impoffible to prevent intirely ; in the fame manner as at Amsterdam they tolerate the Spiel : Houfes, and at Rome the public ftews. AND yet if fuch a law as that of Ofiris, mould un- ~ fortunately happen to be eftablifhed in any particular country, DISSERTATION IV. 83 country, a regard to morals, as well as to the public iecurity, require the abolition of it. THE French are the very reverfe of the Egyptians; the latter were too mild, the former are too fevere; The rigour of the French laws is extremely terrible ; the leaft petty larceny is punifhed with death. And the reaiori they give for it, is, that by hanging pick- pockets, they deftroy the feed of robbers and afTafTins. BUT natural equity requires there mould be fbme proportion between the punimment and the crime. Robberies attended with murder deferve to be punifh- ed with death ; but thofe which are committed, with- out offering violence, may be attended with circum- ftances that fbmetimes are capable of exciting com- panion towards the criminal. INFI N ITE is the diflance between the fituation of the rich and that of the poor : the one rolls in money, and riots in fuperfluity ; the other is forfaken by fortune, and deftitute even of neceflaries. Sup- pofe a poor fellow deals, through want, a few gui- neas, a gold watch, or fome fuch thing from a perfbn to whom fuch a lofs is but a mere trifle ; is this a fuffici- ent reafon to condemn the wretch to death ? Does not humanity call upon us to foften the feverity of the punimment ? It feems, indeed, that this law was made by the rich : and have not the poor a right to fay ? if a child was born with any not- able deformity, this was fufficient to impower the fa- ther to deprive him of life. We are perfectly fenfible of the barbarity of thofe laws, becaufe they are not ours; but let us inquire fora while whether fome of burs are not equally unjuft. Is not ther^tbmething very hard in the manner in which we punifh thole who caufe abortions P God for- bid I mould attempt toexcufe the horrid adion of thofe, cruel Medeas, who deaf to the cries of nature, def- troy the unborn infant, by refufing to give it time to come to light ! But let the reader lay afide all preju- dices arifmg from cuflom, and be pleafed to give at- tention to the reflections I am going to offer. Do not the laws brand with infamy a woman who is brought to bed out of lawful wedlock ? Suppofe a girl, of a tender difpofition, is deceived by the fallacious promifes of a debauchee, the confequence of her cre- dulity, is, that fhe mufl take her choice, either to lofe her reputation, or the unhappy fruit which fhe has conceived. Are not the laws to blame for redu- cing her to this terrible dilemma? And does not the feverity of the judges deprive the flateof two fubjecls at once ? of the child who has perifhed by abortion and f the mother who might have repaired this fault, by * le- DlodiLlxlAiiuiN iv. 85 a legitimate propagation ? To this it will be anfwered, that there are foundling hofpitals ; and I own that thefe fave the lives of a multitude of baftard children : b.ut would it not be better to ftrike at the very root of the evil, and to prefervefo many poor creatures, who come to a miferable end ; by abolifhing the note of infamy which attends defultory and unguarded em- braces ? BUT nothing is more cruel than the practice of put- ting criminals to the torture : the Romans ufed it a- gainft their flaves, whom they confidered as a kind of domeftic cattle j but it was not allowed againft a citi- zen. THE torture is ufed in Germany againft malefac- tors, after their conviction, to oblige them to confefs their crime. In France it is ufed to prove the fact, or to difcover the accomplices. In England they had formerly the ordeal or purgation by fire * and by wa- ter -f* j at prefent they have a kind of torture le(s fe- vere, indeed, than the ordinary one, but which a- mounts pretty near to the fame thing. I hope I need majte nq apology for condemning the ufe of the torture ; for prefuming to take the part of humanity againft a pra&ice fo fhameful to chriftians, and to all civilized nations ; and, if I may venture to add, a practice as ufelefs as cruel. QUINT 1 1, i AN, the moft learned, and moft elo- quent of rhetoricians, treating of the torture, fays, it is a thing that depends on conftitution. A villain of a robuft habit of body will deny the fact ; when an innocent perfon of a weak conftitution mail own it. F 3 Suppofe The ordeal by fire was by obliging the perfon accufed to hold a piece of hot iron between his hands ; if he was fo lucky, aa npt to be hurt, he was acquitted ; if otherwife, he was puniflied as guilty. f The ordeal by water, was by tying the perfon accufed, and throwing him into the water j if be did not fink, he was acquit-' Jed, 86 DISSERT A TIQN IV. Suppofe a man is accufed of a crime, and there are fufpicious circumftances againft him ; the judge is dubious, and wants to come at the truth ; the poor wretch is then put to the torture. If he is innocent, is it not barbarity to make him fuffer martyrdom ? If the violence of the pain obliges him to depofe againft himfelf, is it not the moft mocking inhumanity to rack, and condemn to death a virtuous citizen, againft whom there are only fufpicious circumftances ? it would be much better to pardon twenty who are guilty, than wrongfully to condemn one innocent perfon. If laws ought to be made for the good of the people ; how is it poffible to bear with fuch as thefe, which lay the judges under a neceflity of committing in me- thod and form, actions that are mocking in the high- eft degree to human nature ? ''Tis now eight years fmcethe practice of torturing criminals has been abolifhed in Pruflia. We are fure not to confound the innocent with the guilty ; and yet juftice is as well adminiftered as formerly. LET us now examine into thefe vague laws and tedious proceedings, which have need of a 'reforma- tion. THERE was a law in England that prohibited biga- my : upon this a man was charged with being married to five wives ; but as the law was not' clear and diftindl in regard to the cafe, and as they : interpret it literal- ly, the man was acquitted. To render this law clear, it mould be worded thus : that whoever is married to more wives than one, mail be punifhed, &c. The want of difiindtnefs in the wording of laws, and the literal interpretation of therp in England *, has occa- lioned the moft ridiculous abufes. CLEAR * Muralt. A man flit another's nofe, and was taken up and profecuted for niaiming the king's fubject ; but in his defence he maintained, that the part he had cut, was not a member j and the parliament was obliged to make a new aft, declaring, that the nofe fhould be looked upon as a member. CLEAR laws prevent chicanery and cavilling, for they are to be underilood according to the meaning of the letter ; when they are indiftind or obfcure, we are obliged to have recourfe to the intention of the legiflator, and inftead of judging of fa&s, our time is taken up in defining them. THE chicanery of lawyers is kept up chiefly by fucceflions and contracts ; for which reafon the laws relating to thefe articles, have need of the greateft per- fpicuity. If we are fo nice with regard to words, in writing trifling pieces for amufement; how much more icrupulous ought we to be in weighing the terms of the law, by which the lives and property of the people are to be decided ? THERE are two rocks whichjudges ought to avoid fplitting upon ; corruption and error : Their confci- ence mould fecure them againft the firfi; ; and the le- giflator againft the fecond. This is principally effec- ted by the perfpicuity of the laws, which leaves no room for cavilling ; and in the next place, by the fim- plicity of the pleadings. The council may be ordered to confine themfelves to a plain narration of the fact, fupported by fome proofs, and terminating in an epi- logue, or a fhort recapitulation. Nothing bears fuch a fway with it, as the art of managing the paflions, in the mouth of an eloquent orator : he feizes, as it were, on the mind of thejudge ; he fecures him in his intereft i he excites his pailions \ and he impels him, in fine, like a torrent : thus the juiHce of the caufe is iacrificed to the bewitching charms of elo- quence. Lycurgus and Solon prohibited this kind of oratory ; and if we meet with fome inftances of it in Demofthenes's Philippics, and in the orations pro Corona by him and yEichines, we are to obferve that they were not pronounced before the court of Areo- pagus, but before the people ; that the Philippics are of the deliberative kind j and that thoie pro F 4 Corona 88 DISSERTATION IV. Corona are rather of the demonftrative than of the ju- dicial kind. THE Romans were not fo icrupulous as the Greeks in regard to their judicial pleadings. There is not one of Cicero's pleas, but is worked up \vfth all the art of moving the paflions. I am forry "to fay it of this great orator ; but we find in his oration pro Cluentio, that he had pleaded before for the oppofite party, and tho' Cluentius's caufe does not feem abfolutely good, yet it was carried by the impofing art 'of the orator. Ci- cero's mafter-piece is, without doubt, the peroration pro Fonteio ; it gained his client the caufe, though he appears guilty. What an abufe of eloquence, thus to evade the very, befl; of laws, by its illiifive charms ! PRUSSIA has followed this example of Greece, by banifhing the dangerous fubtleties of eloquence from her courts of judicature : and for this, me is indebt- ed to the wifdom of the high chancellor, whofe pro- bity, learning, and indefatigable activity, would have been an honour to the Greek and Roman republics, even at the time when they were mofl fruitful in great men. THERE is ftill another article remaining, which ought to be included under the obfcurity of laws ; this is the tedious practice of the courts, or the num- ber of delays, which the parties at law mud go thro', before the fuit is determined. Whether they are in- jured by the iniquity of the laws -, "or whether their rights are confounded ; or whether the length of the proceedings fwallows up the very property for which they are contefling, and deprives them of the ad- vantages due to them ; it all amounts to the fame : one may be a greater evil than the other ; but all abufes want a reformation. Whatever lengthens the courfe of proceedings, gives a confiderable advantage tn the rich over the poor ; they find means to fpin out the caufe from time to 'time, till they ruin their ad- ver/ary, and are Left to run the race by themfelves. LAW DISSERTATION IV. 39 LAW fuits formerly lafted incur country above an hundred years. Even when the caufe had been decided by five courts, the party who was caft might appeal, in open contempt of juftice, to the univerfi- ties ; and the civilians altered the fentence as they thought proper. Thus the party at law muft have been very unlucky indeed, if, in five different courts, and I know not how many univerfities, he could meet with no body, whofe heart was open to venality and corruption. This method of proceeding is now abo- lifhed ; caufes are determined finally in the third in- flance ; and judges are allowed only the (pace of a year to decide the moft intricate caufes. WE fhall conclude with a few remarks concerning thofe laws, which imply a contradiction, either in the words, or in the fenfe. WHEN the laws of a country are not reduced in- to one body, they muft needs contradict one ano- ther very frequently. As they are the work of dif- ferent legiflators, who have not all proceeded on the fame plan, they muft want that unity which is fo eflentially requifite in all matters of impor- tance. QUINTILIAN treats this fubject in his inftitutes ; and we find in Cicero's orations, that he frequently oppofes one law againft another. The fame may be obferved in the hiftory of France, in regard to the edicts, which are fometimes in favour of and fome- times againft the Huguenots. The neceflity of dige ting thefe ordinances, isfo much the more indifpen- fable, as nothing is more contrary to the majefty of laws (which are always fuppofed to be eftablifhed with deliberation and prudence,) than to find them openly contradictory to each other. THE law againft duels is juft and equitable, as our very reafon tells us ; and yet it has not anfwered the end which princes expected. Prejudices of a more ancient date than this law, have hindred it from tak- ing effect ; and the public, who are generally carried away by falfe notions feem to have entered into a tacit. agreement 90 v i o a & K. i A i i u IN iv. agreement not to obey it. A miftaken point of ho- nour, but generally received, bids defiance to the power of fovereigns ; and, indeed, they cannot put this law in full force, without being guilty of a kind of cruelty. Every man, who has had the misfortune of being infulted by an inconfidefate fool, pafles for a coward all over the world, if he does not revenge the affront, by the death of the perfon who offered it. If the injury is done to a man of family, he is looked up- on as unworthy of the noble titles he bears, unlefs he demand fatisfa&ion ; and if he belongs to the army, and does not take this method of deciding the diffe- rence, he is obliged to quit the fervice with ignomi- ny ; nor will he afterwards find employment in any court in Europe. What method then muft a private perfon take, if he happens to be engaged in fo thorny an affair ? muft he incur infamy and difgrace by obey- ing the law ; or mall he not rather run the rifk of his life and fortune to fave his reputation ? THE difficulty that now remains, is, to find out an expedient, for faving the honour of private perlbns, and of preferving at the fame time the law in its full vigour THE authority of the greateft princes has been in- effectual againft this barbarous cuflom. Lewis XIV. Frederick [. and Frederick William publifhed very fe vere edicts againft duels, but all to no purpofe ; only that duels afterwards changed their name, and were called rencounters ; and feveral noblemen who were killed on thefe occafions, were faid to have died fud- denly. IF all the princes in Europe do not appoint a con- grefs, and unanimoufly agree to brand with infamy thofe, who, in contempt of their laws, attempt to cut one another's throats in thefe fingle combats j if I fay, they do not enter into an agreement not to af- ford any afylum to this kind of murderers, and to in- - DISSERTATION IV. 91 flift fevere punifliments on fuch as mall infult their equals either by word, deed or writing, there will ne- ver be an end of duels. LET me not be charged with having copied the vi- fionary notions of the Abbe de Saint Pierre. I fee no impoffibility in this, that private perfons fhould fub- mit their quarrels to the decifion of judges, no more than in fiibmitting the difputes they may have relating to property. And why mould not princes affemble a congrefs for the general good of mankind, after hav- ing held fb many fruitlefs ones for matters of lefler importance ? To return to the point, I may venture to maintain, that this is the only effectual way of abo- lifhing throughout Europe that ill judged notion of honour, which has coft the lives of fb many brave men, whofe country might have expected the moft eminent fervices from their abilities. SUCH is the abftract of the reflexions that have oc- curred to me upon laws. I have confined myfelf to the outlines, without drawing a full planj and yet I am afraid I have faid too much. THE laft remark I have to make, is, that thole na- tions who have but juft begun to (hake off their bar- baroufnefs, feem to require a greater feverity of laws ; but nations that have been long civilized, and whofe manners are gentle and mild, have need of humane legiflators. To imagine that men are all devils, and to fall up- on them with inveterate rancour, is the vifionary no- tion of a four mifanthrope : to fuppofe that they are all angels, and to leave them entirely to their own gui- dance, is the dream of a filly monk: to beperfuaded that they are neither all good, nor all bad ; to reward virtuous actions even beyond their merit ; to punifh vicious ones below their defert ; is fhewing indulgence to their infirmities, and humanity to them all ; and, in fine, is acting like a reafonable man. ODE YET a few year s^ or days perhaps,. Or moments pafs with filent lapfe, And time to me mail be no more j ! No more the fun thefe Eyes fhall view, Earth o'er thefe limbs her duft (hall ftrewy ' And life's fantaftick dream be o'er. Alas ! I touch the dreadful brink, From nature's verge impell'd I fink, And endlefs darknefs wraps me round ! Yes, Death is ever at my hand, fraft by my bed he takes his ftand, And conftant at my board is found. Earth, air, and fire, and water, join Againft this fleeting life of mine, And where for fuccour can I fly ! If Art with flattering wiles pretend To fhield me like a guardian friend, By Air, ere nature, bids I dye. I fee this tyrant of the mind, This idol flefh to duft confign'd, Once calPd from duft by pow'r divine ^ It's features change, 'tis pale, *tis cold- Hence, dreadful Spe