The harsh punishments of the periods of domestic monarchy and heroic society (the laws of the Twelve Tables condemned those who set fire to another's crops to be burnt alive, perjurers to be thrown from the Tarpeian rock, and insolvent debtors to be cut in pieces while living) were replaced by milder penalties, since the multitude, whose members are weak, is naturally disposed to clemency.
Laws, which under the aristocracy were few, inflexible and religiously observed, multiplied under the democracy and became liable to change and modification. The Spartans, who preserved their aristocracy, said that at Athens they had many laws and wrote them; at Sparta few, but they obeyed them. The Roman plebs, like the Athenian, passed new laws every day, and the attempt by Sulla, the leader of the noble party, to reduce them by the institution of "quaestiones perpetuae" or permanent courts was in vain, for after his time laws were again multiplied.
War itself, which was under the aristocratic republics very cruel and resulted in the destruction of conquered towns and the reduction of the vanquished to the condition of labourers scattered over the country-side and cultivating it on behalf of the victors, was mitigated by the popular republics, which while they deprived the conquered of the rights of heroic society left them in possession of the natural rights of the human race. Empires grew, since a popular republic is much more adapted to conquest than an aristocratic, and a monarchy most of all.
But with all this humanisation of customs, the power of wise rule, political virtue, diminished. The ancient patricians enforced a rigid respect for law; and each, possessing a large share of the public utility, set his own minor personal interests below this greater particular interest, guaranteed as it was by the state. Hence all courageously defended and wisely consulted for the good of the state. In a popular state on the other hand since the citizens controlled the state property by dividing it among themselves into as many small portions as there were citizens in the body of the people, and through the causes which produced that form of state, ease, paternal affection, conjugal love and desire of life, men were led to consider the smallest details favourable to their own private interest; that is to regard nothing but the aequum bonum, the only interest of which a multitude is capable.
At this point arises spontaneously a new form of government, which has long been preparing and has now become inevitable, namely monarchy. The ordinary political writers make monarchy originate, without any of the numerous and complex causes which are necessary to produce it, at the very outset of human history, "as a frog," says Vico, "is born of a summer shower." Still less did it originate artificially by the royal law which Tribonian believes to have deprived the Roman people of its free and sovereign power and conferred it upon Octavius Augustus. The law which brought monarchy into being was a natural law whose formula of eternal validity is as follows: when in a popular republic every one seeks his private interest only and presses the public forces into its service at risk of destruction to the state, to preserve the latter from ruin a man must arise, as Augustus did at Rome (who as Tacitus says "received under his sovereign power the whole state, worn out with civil wars, taking the title of Princeps": qui cuncta bellis civilibus fessa nomine principis sub imperium accepit): a single man, who by force of arms takes in hand all the affairs of the state and leaves his subjects to look after their own affairs or after any public business he may entrust to them; surrounding himself with a small number of statesmen as a cabinet to discuss public questions or principles of civil equity. Such a monarch is welcomed by nobles and plebeians alike: by the nobles, who after having been already humiliated by their subjection to plebeian rule abandon their ancient aristocratic claim to sovereignty and think only of securing a comfortable life; and by the plebeians, who after an experiment in anarchy or unbridled demagogy (than which no tyranny is worse, since it produces as many tyrants as there are bold and dissolute men in the state) are led by their own misfortunes to welcome peace and protection.
Monarchy is then a new form of popular government. In order that a powerful man may become sovereign, it is necessary that the people shall take his side, and that he should rule in a popular manner; making all his subjects equal, humiliating the great to protect the multitude against their oppression, keeping the people satisfied and content as regards the necessaries of life and the enjoyment of natural liberty, and employing a well-balanced system of concessions and privileges granted sometimes to whole classes (in which case they are called "privileges of liberty") sometimes to particular persons, by promoting into a higher class men of unusual merit and exceptional virtues.
In monarchy, a "humane" government no less than democracy, the process of humanisation or softening of customs and laws, already begun under popular republics, still continues. The rigid bonds of the patriarchal family and kinship relax further. The Emperors, who tended to be overshadowed by the splendours of the nobility, made efforts to promote the rights of human nature common to nobles and plebeians. Augustus strove to safeguard the trusteeships by which formerly property had passed to persons incapable of inheritance thanks only to the conscientiousness of the injured heir; he transformed such understandings from a right into a necessity, by obliging heirs to execute them. A number of senatusconsulta followed which placed cognati (relations generally) on a level with agnati (relations through the father). Finally, Justinian abolished the difference between property inherited and property in the hands of trustees, confused the Falcidian quarter with the Trebellian and put cognati and agnati on precisely the same footing as regards inheritance "ab intestato." The latest Roman law was so entirely on the side of testaments that, while originally these could be broken for the slightest cause, they now had to be interpreted in the way most adapted to secure their validity. Once the "cyclopean" right of the father over the persons of his children had disappeared, his economic right over property acquired by them disappeared also; and hence the emperors first introduced the peculium castrense (property obtained during military service) to attract young men to war, then the peculium quasicastrense, to attract them into the praetorian guard, and finally to satisfy those who were neither soldiers nor scholars the peculium adventitium. They deprived the patria potestas of its influence over adoptions, now no longer restricted to the small circle of relations; they uniformly countenanced formal adoption (arrogatio) which was somewhat difficult owing to the difficulty of a father's becoming a subordinate member of another family; they considered emancipation as a benefit and gave to legitimization "by a subsequent marriage" all the efficacy of solemn wedlock. The imperium paternum, as an arrogant title seeming to detract from the imperial majesty, was altered into patria potestas. The humane tendencies of the monarchs extended moreover to that part of the ancient "family" which consisted of slaves: for the emperors restrained the cruelty of masters towards these, and benefited them by increasing the force and decreasing the solemnity of manumission; and citizen rights, which were given originally only to distinguished foreigners who had deserved well of the Roman people, were granted to every one born in Rome, even of a slave father provided his mother were free or enfranchised. Punishments were also made milder, and the monarchs distinguished themselves by the gracious title of "clement." The letter of the law always tended to be more freely interpreted in the light of natural equity, and it may be said that Constantine absolutely cancelled the letter when he laid down the principle that any particular motive of equity should override the law. Thus was attained the precise opposite of the "privilegia ne irroganto" of the Twelve Tables ("that no exceptions be made"): all privileges were exceptions to the law dictated by some particular merit in the facts which lifted them out of the sphere of legal generalisations. The restriction of rights to particular peoples was by degrees abolished: under Caracalla the whole Roman world was converted into a single Rome, since great monarchs desire the whole world to become one city, according to the thought of Alexander the Great, when he said that for him all the world was a single city of which his phalanx was the citadel. The praetor's edict gives place, under Hadrian, to the "perpetual edict" of Salvius Julianus, almost exclusively composed of provincial edicts.
With monarchy, the natural law of races gives place to the natural law of nations; and hence this political, social and juridical form is the most suitable to human nature at its fullest rational development. Here too, as we have already had occasion to remark, we reach again after a long process the unity which existed in the person of the primitive father under domestic monarchy; and the course of national history must be considered as absolutely complete. To go further is impossible: the only possibility, at this stage of the highest human civilisation and refinement, is corruption, the return of barbarism as a "barbarism of reflection" and a relapse into a kind of new state of nature, to return once more into a new and heroic barbarism.