Cato's Letter No. 11

The Justice and Necessity of punishing great Crimes, though committed against no subsisting Law of the State

Thomas Gordon (Saturday, January 7, 1721)

SIR, Salus populi suprema lex esto: That the benefit and safety of the people constitutes the supreme law, is an universal and everlasting maxim in government; It can never be altered by municipal statutes: No customs can change, no positive institutions can abrogate, no time can efface, this primary law of nature and nations. The sole end of men's entering into political societies, was mutual protection and defence; and whatever power does not contribute to those purposes, is not government, but usurpation.

Every man in the state of nature had a right to repel injuries, and to revenge them; that is, he had a right to punish the authors of those injuries, and to prevent their being again committed; and this he might do, without declaring before-hand what injuries he would punish. Seeing therefore that this right was inherent in every private man, it is absurd to suppose that national legislatures, to whom every man's private power is committed, have not the same right, and ought not to exercise it upon proper occasions.

Crimes being the objects of laws, there were crimes before there were laws to punish them; and yet from the beginning they deserved to be punished by the person affected by them, or by the society, and a number of men united with him for common security, though without the sentence of a common judge (called by us the magistrate) formally appointed to condemn offenders.

Laws, for the most part, do not make crimes, but suit and adapt punishments to such actions as all mankind knew to be crimes before. And though national governments should never enact any positive laws, never annex particular penalties to known offences; yet they would have a right, and it would be their duty to punish those offences according to their best discretion; much more so, if the crimes committed are so great, that no human wisdom could foresee that any man could be wicked and desperate enough to commit them.

Lawyers distinguish betwixt malum prohibitum and malum in se; that is, between crimes that are so in their own nature, and crimes that owe their pravity to a disobedience to positive laws. Of the former sort are all those actions, by which one man hurts another in his reputation, his person, or his fortune; and those actions are still more heinous, if they injure, or are intended to injure, the whole society.

The latter sort consists of such crimes as result from what legislatures enact for the particular benefit of private societies; as laws concerning the regularity of trade, the manner of choosing magistrates, local orders; and from such positive institutions, as receive their force alone from the powers that enact them. Now those crimes were not so before they were declared so; and consequently, no man before was under any obligation to avoid them.

It would be very severe and unjust to punish any man for an undesigned transgression of the latter sort; that is, for such action as he thought that he might lawfully and honestly do, and which he had never notice given him not to do. But to infer from thence, that a villain may despise all the laws of God and nature, ruin thousands of his fellow-subjects, and overturn nations with impunity, because such villainy was too monstrous for human foresight and prevention, is something so absurd, that I am ashamed to confute it.

This is nothing less than asserting, that a nation has not a power within itself to save itself: That the whole ought not to preserve the whole: That particular men have the liberty to subvert the government which protects them, and yet continue to be protected by that government which they would destroy: That they may overturn all law, and yet escape by not being within the express words of any particular law.

There are crimes so monstrous and shocking, that wise states would not suffer them to stand in their statute books; because they would not put such an indignity upon human nature, as to suppose it capable of committing them. They would not mention what they imagined would never be practised. The old Romans, therefore, had no law against parricide; yet there was no want of punishment for parricides from the want of law: Those black and enormous criminals were sewed up in a sack, and thrown into the Tiber.

In Holland, there was no law against men's breaking fraudulently; yet the first man who was known to do so, was immediately executed, and his estate divided among his creditors.

In England, ’tis said, there was no law, till lately, against the burning of ships; yet, if any man had burned the Royal Navy of England, lying at anchor, ought not his crime, which it seems was not felony, to have been declared high-treason?

Many nations have had particular officers appointed on purpose to punish uncommon crimes, which were not within the reach of ordinary justice. The Romans had a dictator; a great and extraordinary magistrate, vested with an extraordinary power, as he was created on extraordinary exigencies; and his commission was limited only by the publick good, and consisted in a very short direction, Nequid detrimenti respublica capiat; in English, To save the state.

This powerful officer was once created on purpose to put to death Spurius Maelius, for giving gratis to the people a large quantity of corn, in a time of famine. This liberality of his was construed by the senate, an ambitious bribe to catch the hearts of the multitude, in order to seize their liberties. Spurius Maelius—praedives, rem utilem pessimo exemplo, pejore consilio est aggressus. He undertook a publick and plausible thing, but of ill example, and with a worse design. Largitiones frumenti facere instituit. His avowed pretence was to relieve the poor; Plebemque hoc munere delinitam, quacunque incederet conspectus alatusque supra modum hominis privati, secum trahere. He cajoled the people, intending to enslave them; and growing too powerful for a subject, became terrible to the common liberty, which is supported by equality: Ipse, ut est humanus animus insatiabilis eo quod fortuna spondet, ad altiora & non concessa tendere: The mind of man is restless, and cannot stand still, nor set bounds to its pursuits. It is not to be expected that one of our million men (and they say that we have several) will sit down and be content with his millions, though he were allowed to keep them (which God forbid!). He will be making new pushes for new acquisitions, having such ample means in his hands. Spurius Maelius would at first have been content with the consulate, or chief magistracy in ordinary; but because he found that even that could not be got without force, he thought that the same force would as well carry him higher, and make him king. Et quoniam consulatus quoque eripiendus invitis patribus esset, de regno agitare. The traitor had been suffered to carry a great point; he had abused the publick, and deceived the people. The Senate, therefore, took him to task: and there being no law subsisting, by which he could be put to death—Consules legibus constricti, nequaquam tantum virium in magistratu ad eam rem pro atrocitate vindicandum quantum animi haberent; they therefore created a dictator, an officer with power, for a time, to suspend laws, and make laws. The occasion was great—Opus esse non forti solum viro, sed etiam libero, exsoluto que legum vinculis. L. Quincius Cincinnatus was the man; a true and brave old republican, who worthily and boldly did his work, and by the hands of his master of the horse slew the mighty traitor, impudently imploring the publick faith, to which he was a sworn enemy; and complaining of the power of oppression, when the shameless villain had been only seeking a power to oppress. Fidem plebis Romanae implorare; & opprimi se consensu patrum dicere. He knew that his villainies were out of the reach of the law, and he did not dream of an extraordinary method of punishing them by the Roman parliament. But he was deceived; and the dictator tells the people, that being a sort of an outlaw, he was not to be proceeded with as with a citizen of Rome: Nec cum eo tanquam cum cive agendum fuisse. An unusual death was due to his monstrous wickedness: Non pro scelere id magis quam pro monstro habendum. Nor was his blood alone, says the wise dictator, sufficient to expiate his guilt, unless we also pull down his house, where such crying crimes were first conceived; and confiscate to the publick use his estate and his treasures, the price and means of the publick ruin. And his estate was accordingly given to the publick—Nec satis esse sanguine ejus expiatum, nisi tecta parietesque, inter quae tantum amentiae conceptum esset, dissiparentur; bonaque contacta pretiis regni mercandi publicarentur; jubere itaque questores, vendere ea bona & in publicum redigere: The treasury had them for the use of the publick.

Thus did the great, the wise, and the free Romans punish this extraordinary knave, by a power that was not ordinary. They likewise exerted it upon other occasions; nor were they the only people that did so.

The Athenians, grown jealous by having lost their liberties, by the usurpation of a private, but too powerful citizen, durst never trust this great power to any single magistrate, or even to a council. They would not, however, part with it, but reserved it to the whole body of the people, agreeably to the nature of a popular government. In this jealous state, it was a crime to be popular, much more to affect popularity: They would not allow a man to have it in his power to enslave his country. And, indeed, it is wisdom in a state, and a sign that they judge well, to suppose, that all men who can enslave them, will enslave them. Generosity, self-denial, and private and personal virtues, are in politicks but mere names, or rather cant-words, that go for nothing with wise men, though they may cheat the vulgar. The Athenians knew this; and therefore appointed a method of punishing great men, though they could prove no other crime against them but that of being great men. This punishment was called the ostracism, or the sentence of a majority in a ballot by oyster-shells; by which a suspected citizen was adjudged to banishment for ten years. They would not trust to the virtue and moderation of any private subject, capable, by being great, to be mischievous; but would rather hurt a private subject, than endanger the publick liberty. Worthy men are thought to have suffered unjustly by this ostracism; and it may be true, for aught that I know; but still it secured the publick, and long secured it. Weak and babbling men, who penetrate no deeper than words, may blame this politick severity in the commonwealth of Athens; but it is justified, in that it was politick.

In Venice, a wise, ancient, and honourable republick, there is a Council of Ten, which exercises this extraordinary power: Every arbitrary prince in the world exercises it; and every free state in the world has an undoubted right to exercise it, though they have never delegated their power to particular magistrates to exercise it for them.

In England, indeed, we have not delegated this power at all, because we very well know who must have had it, and what use would be made of it. The legislature, therefore, has reserved this power to itself, and has an undoubted right to exercise it; and has often done so upon extraordinary occasions. It ought indeed to be exercised but upon extraordinary occasions. Jove's thunderbolts were only launched against such as provoked the thunderbolts of Jove.

I shall, in my next letter to you, apply these general maxims of government to our own particular constitution, and to the present occasion, which calls aloud for Jove's help and thunder.

G. I am, &c.

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