CHAP. III.: In what Governments, and in what Cases, the Judges ought to determine according to the express Letter of the Law.

THE nearer the government approaches towards a republic, the more the manner of judging becomes

settled and fixt: hence it was a fault, in the republic of Sparta, for the Ephori to pass such arbitrary judgements, without having any laws to direct them. The first consuls, at Rome, pronounced sentence in the same manner as the Ephori; but the inconveniency of this proceeding was soon felt, and they were obliged to have recourse to express and determinate laws.

In despotic governments there are no laws; the judge himself is his own rule. There are laws in monarchies; and, where these are explicit, the judge conforms to them; where they are otherwise, he endeavours to investigate their spirit. In republics, the very nature of the constitution requires the judges to follow the letter of the law; otherwise, the law might be explained to the prejudice of every citizen, in cases where their honour, property, or life, are concerned.

At Rome, the judges had no more to do than to declare that the person accused was guilty of a particular crime, and then the punishment was found in the laws, as may be seen in divers laws still extant. In England, the jury give their verdict, whether the fact, brought under their cognizance, be proved or not; if it be proved, the judge pronounces the punishment inflicted by the law, and for this he needs only to open his eyes.