No people were so easily moved by public spectacles as the Romans. That of the empurpled body of Lucretia put an end to the regal government. The debtor who appeared in the forum covered with wounds caused an alteration in the republic. The decemvirs owed their expulsion to the tragedy of Virginia. To condemn Manlius, it was necessary to keep the people from seeing the Capitol. C?sar's bloody garment flung Rome again into slavery.

　　16. Of the legislative Power in the Roman Republic. There were no rights to contest under the decemvirs: but upon the restoration of liberty, jealousies revived; and so long as the patricians had any privileges left, they were sure to be stripped of them by the plebeians.

　　The mischief would not have been so great had the plebeians been satisfied with this success; but they also injured the patricians as citizens. When the people assembled by curi? or centuries, they were composed of senators, patricians, and plebeians; in their disputes the plebeians gained this point,42 that they alone without patricians or senate should enact the laws called Plebiscita; and the assemblies in which they were made had the name of comitia by tribes. Thus there were cases in which the patricians43 had no share in the legislative power, but44 were subject to the legislation of another body of the state. This was the extravagance of liberty. The people, to establish a democracy, acted against the very principles of that government. One would have imagined that so exorbitant a power must have destroyed the authority of the senate. But Rome had admirable institutions. Two of these were especially remarkable: one by which the legislative power of the people was established, and the other by which it was limited.

　　The censors, and before them the consuls, modelled45 and created, as it were, every five years the body of the people; they exercised the legislation on the very part that was possessed of the legislative power. "Tiberius Gracchus," says Cicero, "caused the freedmen to be admitted into the tribes, not by the force of his eloquence, but by a word, by a gesture; which had he not effected, the republic, whose drooping head we are at present scarcely able to uphold, would not even exist."

　　On the other hand, the senate had the power of rescuing, as it were, the republic out of the hands of the people, by creating a dictator, before whom the sovereign bowed his head, and the most popular laws were silent.46

　　17. Of the executive Power in the same Republic. Jealous as the people were of their legislative power, they had no great uneasiness about the executive. This they left almost entirely to the senate and to the consuls, reserving scarcely anything more to themselves than the right of choosing the magistrates, and of confirming the acts of the senate and of the generals.

　　Rome, whose passion was to command, whose ambition was to conquer, whose commencement and progress were one continued usurpation, had constantly affairs of the greatest weight upon her hands; her enemies were ever conspiring against her, or she against her enemies.

　　As she was obliged to behave on the one hand with heroic courage, and on the other with consummateprudence, it was requisite, of course, that the management of affairs should be committed to the senate. Thus the people disputed every branch of the legislative power with the senate, because they were jealous of their liberty; but they had no disputes about the executive, because they were animated with the love of glory.

　　So great was the share the senate took in the executive power, that, as Polybius47 informs us, foreign nations imagined that Rome was an aristocracy. The senate disposed of the public money, and farmed out the revenue; they were arbiters of the affairs of their allies; they determined war or peace, and directed in this respect the consuls; they fixed the number of the Roman and of the allied troops, disposed of the provinces and armies to the consuls or pr?tors, and upon the expiration of the year of command had the power of appointing successors; they decreed triumphs, received and sent embassies: they nominated, rewarded, punished, and were judges of kings, declared them allies of the Roman people, or stripped them of that title.

　　The consuls levied the troops which they were to carry into the field; had the command of the forces by sea and by land; disposed of the forces of the allies; were invested with the whole power of the republic in the provinces; gave peace to the vanquished nations, imposed conditions on them, or referred them to the senate.

　　In the earliest times, when the people had some share in the affairs relating to war or peace, they exercised rather their legislative than their executive power. They scarcely did anything else but confirm the acts of the kings, and after their expulsion those of the consuls or senate. So far were they from being the arbiters of war that we have instances of its having been often declared, withstanding" title="prep.&conj.虽然；还是">notwithstanding the opposition of the tribunes. But growing wanton in their prosperity, they increased their executive power. Thus48 they created the military tribunes, the nomination of whom till then had belonged to the generals; and some time before the first Punic war, they decreed that only their own body should have the right of declaring war.49

　　18. Of the judiciary Power in the Roman Government. The judiciary power was given to the people, to the senate, to the magistrates, and to particular judges. We must see in what manner it was distributed; beginning with their civil affairs.

　　The consuls had the judiciary power50 after the expulsion of the kings, as the pr?tors were judges after the consuls. Servius Tullius had divested himself of the power of determining civil causes, which was not resumed by the consuls, except in some51 very rare cases, for that reason called extraordinary.52 They were satisfied with naming the judges, and establishing the several tribunals. By a discourse of Appius Claudius, in Dionysius Halicarnassus,53 it appears that as early as the 259th year of Rome this was looked upon as a settled custom among the Romans; and it is not tracing it very high to refer it to Servius Tullius.

　　Every year the pr?tor made a list54 of such as he chose for the office of judges during his magistracy. A sufficient number was pitched upon for each cause; a custom very nearly the same as that now practised in England. And what was extremely favourable to liberty55 was the pr?tor's fixing the judges with the consent56 of the parties. The great number of exceptions that can be made in England amounts pretty nearly to this very custom.

　　The judges decided only the questions relating to matter of fact;57 for example, whether a sum of money had been paid or not, whether an act had been committed or not. But as to questions of law,58 as these required a certain capacity, they were always carried before the tribunal of the centumvirs.59

　　The kings reserved to themselves the judgment of criminal affairs, and in this were succeeded by the consuls. It was in consequence of this authority that Brutus put his children and all those who were concerned in the Tarquinian conspiracy to death. This was an exorbitant power. The consuls already invested with the military command extended the exercise of it even to civil affairs; and their procedures, being stripped of all forms of justice, were rather exertions of violence than legal judgments.

　　This gave rise to the Valerian law, by which it was made lawful to appeal to the people from every decision of the consuls that endangered the life of a citizen. The consuls had no longer the power of pronouncing sentence in capital cases against a Roman citizen, without the consent of the people.60

　　We see in the first conspiracy for the restoration of the Tarquins that the criminals were tried by Brutus the consul; in the second the senate and comitia were assembled to try them.61

　　The laws distinguished by the name of sacred allowed the plebeians the privilege of choosing tribunes; whence was formed a body whose pretensions at first were immense. It is hard to determine which was greater, the insolence of the plebeians in demanding, or the condescension of the senate in granting. The Valerian law allowed appeals to the people, that is, to the people composed of senators, patricians, and plebeians. The plebeians made a law that appeals should be brought before their own body. A question was soon after started, whether the plebeians had a right to try a patrician; this was the subject of a dispute to which the impeachment of Coriolanus gave rise, and which ended with that affair. When Coriolanus was accused by the tribunes before the people, he insisted, contrary to the spirit of the Valerian law, that as he was a patrician, none but the consuls had the power to try him; on the other hand, the plebeians, also contrary to the spirit of that same law, pretended that none but their body were empowered to be his judges, and accordingly they pronounced sentence upon him.

　　This was moderated by the law of the Twelve Tables; whereby it was ordained that none but the great assemblies of the people62 should try a citizen in capital cases. Hence the body of the plebeians, or, which amounts to the very same, the comitia by tribes, had no longer any power of hearing criminal causes, except such as were punished with fines. To inflict a capital punishment a law was requisite; but to condemn to a pecuniary mulct, there was occasion only for a plebiscitum.

　　This regulation of the law of the Twelve Tables was extremely prudent. It produced an admirable balance between the body of the plebeians and the senate. For as the full judiciary power of both depended on the greatness of the punishment and the nature of the crime, it was necessary they should both agree.

　　The Valerian law abolished all the remains of the Roman government in any way relating to that of the kings of the heroic times of Greece. The consuls were divested of the power to punish crimes. Though all crimes are public, yet we must distinguish between those which more nearly concern the mutualintercourse of the citizens and those which more immediately interest the state in the relation it bears to its subjects. The first are called private, the second public. The latter were tried by the people; and in regard to the former, they named by particular commission a qu?stor for the prosecution of each crime. The person chosen by the people was frequently one of the magistrates, sometimes a private man. He was called the qu?stor of parricide, and is mentioned in the law of the Twelve Tables.63

　　The qu?stor nominated the judge of the question, who drew lots for the judges, and regulated the tribunal in which he presided.64

　　Here it is proper to observe what share the senate had in the nomination of the qu?stor, that we may see how far the two powers were balanced. Sometimes the senate caused a dictator to be chosen, in order to exercise the office of qu?stor;65 at other times they ordained that the people should be convened by a tribune, with the view of proceeding to the nomination of a qu?stor;66 and, in fine, the people frequently appointed a magistrate to make his report to the senateconcerning a particular crime, and to desire them to name a qu?stor, as may be seen in the judgment upon Lucius Scipio67 in Livy.68

　　In the year of Rome 604, some of these commissions were rendered permanent.69 All criminal causes were gradually divided into different parts; to which they gave the name of perpetual questions. Different pr?tors were created, to each of whom some of those questions were assigned. They had a power conferred upon them for the term of a year, of trying such criminal causes as bore any relation to those questions, and then they were sent to govern their province.

　　At Carthage the senate of the hundred was composed of judges who enjoyed that dignity for life.70 But at Rome the pr?tors were annual; and the judges were not even for so long a term, but were nominated for each cause. We have already shown in the sixth chapter of this book how favourable this regulation was to liberty in particular governments.

　　The judges were chosen from the order of senators, till the time of the Gracchi. Tiberius Gracchus caused a law to pass that they should be taken from the equestrian order; a change so very considerable that the tribune boasted of having cut, by one rogation only, the sinews of the senatorial dignity.

　　It is necessary to observe that the three powers may be very well distributed in regard to the liberty of the constitution, though not so well in respect to the liberty of the subject. At Rome the people had the greatest share of the legislative, a part of the executive, and part of the judiciary power; by which means they had so great a weight in the government as required some other power to balance it. The senate indeed had part of the executive power, and some share of the legislative;71 but this was not sufficient to counterbalance the weight of the people. It was necessary that they should partake of the judiciary power: and accordingly they had a share when the judges were chosen from among the senators. But when the Gracchi deprived the senators of the judicial power,72 the senate were no longer able to withstand the people. To favour, therefore, the liberty of the subject, they struck at that of the constitution; but the former perished with the latter.

　　Infinite were the mischiefs that thence arose. The constitution was changed at a time when the fire of civil discord had scarcely left any such thing as a constitution. The knights ceased to be that middle order which united the people to the senate; and the chain of the constitution was broken.

　　There were even particular reasons against transferring the judiciary power to the equestrian order. The constitution of Rome was founded on this principle, that none should be enlisted as soldiers but such as were men of sufficient property to answer for their conduct to the republic. The knights, as persons of the greatest property, formed the cavalry of the legions. But when their dignity increased, they refused to serve any longer in that capacity, and another kind of cavalry was obliged to be raised: thus Marius enlisted all sorts of people into his army, and soon after the republic was lost.73

　　Besides, the knights were the farmers of the revenue; men whose great rapaciousness increased the public calamities. Instead of giving to such as those the judicial power, they ought to have been constantly under the eye of the judges. This we must say in commendation of the ancient French laws, that they have acted towards the officers of the revenue with as great a diffidence as would be observed between enemies. When the judiciary power at Rome was transferred to the publicans, there was then an end of all virtue, polity, laws, and government.

　　Of this we find a very ingenious description in some fragments of Diodorus Siculus and Dio. "Mutius Sc?vola," says Diodorus,74 "wanted to revive the ancient manners, and the laudable custom of sober and frugal living. For his predecessors having entered into a contract with the farmers of the revenue, who at that time were possessed of the judiciary power at Rome, had infected the province with all manner of corruption. But Sc?vola made an example of the publicans, and imprisoned those by whom others had been confined."

　　Dio informs us75 that Publius Rutilius, his lieutenant, was equally obnoxious to the equestrian order, and that upon his return they accused him of having received some presents, and condemned him to a fine; upon which he instantly made a cession of his goods. His innocence appeared in this, that he was found to be worth a great deal less than what he was charged with having extorted, and he showed a just title to what he possessed: but he would not live any longer in the same city with such profligate wretches.

　　The Italians, says Diodorus again,76 bought up whole droves of slaves in Sicily, to till their lands and to take care of their cattle; but refused them a necessary subsistence. These wretches were then forced to go and rob on the highways, armed with lances and clubs, covered with beasts' skins, and followed by large mastiffs. Thus the whole province was laid waste, and the inhabitants could not call anything their own but what was secured by fortresses. There was neither proconsul nor pr?tor that could or would oppose this disorder, or that presumed to punish these slaves, because they belonged to the knights, who at Rome were possessed of the judiciary power.77 And yet this was one of the causes of the war of the slaves. But I shall add only one word more. A profession deaf and inexorable, that can have no other view than lucre, that was always asking and never granting, that impoverished the rich and increased even the misery of the poor - such a profession, I say, should never have been entrusted with the judiciary power at Rome.

　　19. Of the Government of the Roman Provinces. Such was the distribution of the three powers in Rome. But they were far from being thus distributed in the provinces. Liberty prevailed in the centre and tyranny in the extreme parts.

　　While Rome extended her dominions no farther than Italy, the people were governed as confederates, and the laws of each republic were preserved. But when she enlarged her conquests, and the senate had no longer an immediate inspection over the provinces, nor the magistrates residing at Rome were any longer capable of governing the empire, they were obliged to send pr?tors and proconsuls. Then it was that the harmony of the three powers was lost. The persons appointed to that office were entrusted with a power which comprehended that of all the Roman magistracies; nay, even that of the people.78 They were despotic magistrates, extremely well adapted to the distance of the places to which they were destined. They exercised the three powers; and were, if I may presume to use the expression, the bashaws of the republic.

　　We have elsewhere observed79 that in a commonwealth the same magistrate ought to be possessed of the executive power, as well civil as military. Hence a conquering republic can hardly communicate her government, and rule the conquered state according to her own constitution. And indeed as the magistrate she sends to govern is invested with the executive power, both civil and military, he must also have the legislative: for who is it that could make laws without him? It is necessary, therefore, that the governor she sends be entrusted with the three powers, as was practised in the Roman provinces.

　　It is more easy for a monarchy to communicate its government, because the officers it sends have, some the civil executive, and others the military executive power, which does not necessarily imply a despotic authority.

　　It was a privilege of the utmost consequence to a Roman citizen to have none but the people for his judge. Were it not for this, he would have been subject in the provinces to the arbitrary power of a proconsul or of a propr?tor. The city never felt the tyranny which was exercised only on conquered nations.

　　Thus, in the Roman world, as at Sparta, the freemen enjoyed the highest degree of liberty, while those who were slaves laboured under the extremity of servitude.

　　While the citizens paid taxes, they were raised with great justice and equality. The regulation of Servius Tullius was observed, who had distributed the people into six classes, according to their difference of property, and fixed the several shares of the public imposts in proportion to that which each person had in the government. Hence they bore with the greatness of the tax because of their proportionable greatness of credit, and consoled themselves for the smallness of their credit because of the smallness of the tax.

　　There was also another thing worthy of admiration, which is, that as Servius Tullius's division into classes was in some measure the fundamental principle of the constitution, it thence followed that an equal levying of the taxes was so connected with this fundamental principle that the one could not be abolished without the other.

　　But while the city paid the taxes as she pleased, or paid none at all,80 the provinces were plundered by the knights, who were the farmers of the public revenue. We have already made mention of their oppressive extortions, with which all history abounds.

　　"All Asia," says Mithridates,81 "expects me as her deliverer; so great is the hatred which the rapaciousness of the proconsuls,82 the confiscations made by the officers of the revenue, and the quirks and cavils of judicialproceedings,83 have excited against the Romans."

　　Hence it was that the strength of the provinces did not increase, but rather weakened, the strength of the republic. Hence it was that the provinces looked upon the loss of the liberty of Rome as the epoch of their own freedom.

　　20. The End of this Book. I should be glad to inquire into the distribution of the three powers, in all the moderate governments we are acquainted with, in order to calculate the degrees of liberty which each may enjoy. But we must not always exhaust a subject, so as to leave no work at all for the reader. My business is not to make people read, but to make them think.

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　　1. "I have copied," says Cicero, "Sc?vola's edict, which permits the Greeks to terminate their difference among themselves according to their own laws; this makes them consider themselves a free people."

　　2. The Russians could not bear that Czar Peter should make them cut it off.

　　3. The Cappadocians refused the condition of a republican state, which was offered them by the Romans.

　　4. The natural end of a state that has no foreign enemies, or that thinks itself secured against them by barriers.

　　5. Inconvenience of the Liberum veto.

　　6. At Venice.

　　7. As at Athens.

　　8. See Aristotle, Politics, iv. 4.

　　9. See Aristotle, Politics, ii, 10.

　　10. Ibid., 9.

　　11. These were magistrates chosen annually by the people. See Stephen of Byzantium.

　　12. It was lawful to accuse the Roman magistrates after the expiration of their several offices. See in Dionysius Halicarnassus, ix, the affair of Genutius the tribune.

　　13. De minoribus rebus principes consultant, de majoribus omnes; ita tamen lit ea quoque quorum penes plebem arbitrium est, apud principes pertractentur. - ix.

　　14. Politics, iii. 14.

　　15. See Justin, xvii. 3.

　　16. Aristotle, Politics, v. 11.

　　17. Ibid., iii. 14.

　　18. Ibid.

　　19. See what Plutarch says in the Theseus. See likewise Thucydides, i.

　　20. Aristotle, Politics, iv. 8.

　　21. Dionysius Halicarnassus, ii, p. 120, and iv, pp. 242, 243.

　　22. See Tanaquil's Discourse on Livy, i dec. l, and the regulations of Servius Tullius in Dionysius Halicarnassus, iv. p. 229.

　　23. See Dionysius Halicarnassus, ii, p. 118, and iii, p. 171.

　　24. It was by virtue of a senatus-consultum that Tullius Hostilius ordered Alba to be destroyed. - Ibid., iii, pp. 167 and 172.

　　25. Ibid., iv, p. 276.

　　26. Ibid., ii. And yet they could not have the nomination of all offices, since Valerius Publicola made that famous law by which every citizen was forbidden to exercise any employment, unless he had obtained it by the suffrage of the people.

　　27. Ibid., iii, p. 159.

　　28. Ibid., iv.

　　29. He divested himself of half the regal power, says Dionysius Halicarnassus, iv, p. 229.

　　30. It was thought that if he had not been prevented by Tarquin he would have established a popular government. -Ibid., iv, p. 243.

　　31. Ibid., iv.