Chapter 6: The Crime against Nature; Treason

Chapter 6: The Crime against Nature

GOD forbid that I should have the least inclination to diminish the public horror against a crime which religion, morality, and civil government, equally condemn.

It ought to be proscribed were it only for its communicating to one sex the weaknesses of the other, and for leading people, by a scandalous prostitution of their youth, to an ignominious old age.
What I shall say concerning it will no ways diminish its infamy, being levelled only against the tyranny that may abuse the very horror we ought to have against the vice.

As a natural circumstance of this crime is secrecy, there are frequent instances of its having been punished by legislators upon the deposition of a child.

This was opening a very wide door to calumny. “Justinian (says Procopius*) published a law against this crime:
he ordered an inquiry to be made, not only against those who were guilty of it after the enacting of that law, but even before.
The deposition of a single witness, sometimes of a child, sometimes of a slave, was sufficient, especially against such as were rich, and against those of the green faction.”

It is very odd that these three crimes, witchcraft, heresy, and that against nature; (of which, the first might easily be proved not to exist; the second, to be susceptible of an infinite number of distinctions, interpretations, and limitations;

the third, to be often obscure and uncertain;) it is very odd, I say, that these three crimes should, amongst us, be punished with fire.

The crime against nature will never make any great progress in society, unless people are prompted to it by some particular custom

as among the Greeks, where the youths of that country performed all their exercises naked; as amongst us, where domestic education is disused;
as among the Asiatics, where particular persons have a great number of women whom they despise, while others can have none at all.
Let there be no customs preparatory to this crime;
let it, like every other violation of morals, be severely proscribed by the civil magistrate; and nature will soon defend or resume her rights.
Nature, that fond, that indulgent, parent, has strewed her pleasures with a bounteous hand; and, while she fills us with delights, she prepares us, by means of our issue, (in whom we see ourselves, as it were, reproduced,) she prepares us, I say, for future satisfactions of a more exquisite kind than those very delights.

Chapter 7: The Crime of High-Treason

In the laws of China, who shows any disrespect to the emperor is to be punished with death.

They do not mention how this disrespect consists.
And so every thing may furnish a pretext to take away a man’s life, and to exterminate any family whatsoever.

Two Chinese were employed to write the court-gazette.

They inserted some falsehood in it.
It was pretended that to tell a lie in the courtgazette was a disrespect to the court, and so they were put to death*.

A prince of the blood having inadvertently made some mark on a memorial signed with the red pencil by the emperor, it was determined that he had behaved disrespectfully to the sovereign; which occasioned one of the most terrible persecutions against that family that ever was recorded in history†.

If the crime of high-treason be indeterminate, this alone is sufficient to make the government degenerate into arbitrary power.

I shall descant more largely on this subject when I come to treat‡ of the composition of laws.

Chapter 8: Of the bad Application of the Name of Sacrilege and High-Treason

IT is likewise a shocking abuse to call high-treason an action that does not deserve it.

By an imperial law§ it was decreed, that those who called in question the prince’s judgement, or doubted of the merit of such as he had chosen for a public office, should be prosecuted as guilty of sacrilege∥
Surely it was the cabinet-council and the prince’s favourites who invented that crime.
By another law it was determined that whosoever made any attempt to injure the ministers and officers belonging to the sovereign should be deemed guilty of high-treason, as if he had attempted to injure the sovereign himself¶.
This law is owing to two princes*, remarkable for their weakness; princes who were led by their ministers, as flocks by shepherds; princes who were slaves in the palace, children in the council, strangers to the army; princes, in fine, who preserved their authority only by giving it away every day. Some of those favourites conspired against their sovereigns.
Nay, they did more; they conspired against the empire; they called in barbarous nations; and, when the emperors wanted to stop their progress, the state was so enfeebled, as to be under a necessity of infringing the law, and of exposing itself to the crime of high-treason, in order to punish those favourites.

And yet this is the very law which the judge of Monsieur de Cinq-Mars built upon†, when, endeavouring to prove that the latter was guilty of the crime of high-treason for attempting to remove cardinal Richelieu from the ministry, he says, “Crimes that aim at the persons of ministers are deemed, by the imperial constitutions, of equal consequence with those which are levelled against the emperor’s own person. A minister discharges his duty to his prince and to his country: to attempt, therefore, to remove him, is endeavouring to deprive the former one of his arms‡, and the latter of part of its power.” It is impossible for the meanest tools of power to express themselves in more servile language.

By another law of Valentinian, Theodosius, and Arcadius§, false coiners are declared guilty of high-treason. [252] But is not this confounding the ideas of things?

Is not the very horror of high-treason diminished by giving that name to another crime?

PAULINUS wrote to emperor Alexander, that “he was preparing to prosecute, for high-treason, a judge who had decided contrary to his edict,” the emperor answered, “that under his reign there was no such thing as indirect high-treason*.”

Faustinian also wrote to Alexander that, as he had sworn by the prince’s life never to pardon his slave, he found himself thereby obliged to perpetuate his wrath, lest he should incur the guilt of læsa majestas; upon which the emperor made answer, “Your fears are groundless†, and you are a stranger to my principles.”

It was determined, by a senatus-consultum‡, that whosoever melted down any of the emperor’s statues, which happened to be rejected, should not be deemed guilty of high-treason.

The emperors, Severus and Antoninus, wrote to Pontius§, that those who sold unconsecrated statues of the emperor should not be charged with high-treason.
The same princes wrote to Julius Cassianus, that, if a person, in flinging a stone, should by chance strike one of the emperor’s statues, he should not be liable to a prosecution for high-treason∥.
The Julian law requires this sort of limitations; for, in virtue of this law, the crime of high-treason was charged, not only upon those who melted down the emperor’s statues, but likewise on those who committed any such like action*, which made it an arbitrary crime. When a number of crimes of læsa majestas had been established, they were obliged to distinguish the several sorts.
Hence Ulpian, the civilian, after saying that the accusation of læsa majestas did not die with the criminal, adds, that this does not relate to† all the treasonable acts established by the Julian law, but only to that which implies an attempt against the empire or against the emperor’s life.

THERE was a law passed in England, under Henry VIII. by which whoever predicted the king’s death was declared guilty of high-treason.

This law was extremely vague: the terror of despotic power is so great, that it recoils upon those who exercise it. In this king’s last illness the physicians would not venture to say he was in danger; and surely they acted very right‡.