But that it is absurd is manifest. For that law
could not be instituted by the patricians themselves, without their
thereby all absolutely abdicating their own right, and therefore not the
patricians themselves but the commons would defend this law, which is
directly contrary to what we proved in Secs. 5 and 6. But that law of
the dominion, whereby it is ordained that the same uniform proportion be
maintained between the numbers of the patricians and the multitude,
chiefly contemplates this end of preserving the patricians' right and
power, that is, provides against their becoming too few to be able to
govern the multitude.
40. But the judges are to be chosen by the supreme council out of the
patricians only, that is (Sec. 17) out of the actual authors of the
laws, and the judgments they pass, as well in civil as criminal cases,
shall be valid, if they were pronounced in due course of justice and
without partiality; into which matter the syndics shall be by law
authorized to inquire, and to judge and determine thereof.
41. The judges' emoluments ought to be the same, as we mentioned in the
twenty-ninth section of the sixth chapter; namely, that they receive
from the losing party upon every judgment which they pass in civil
cases, an aliquot part of the whole sum at stake. But as to their
sentences in criminal cases, let there be here this difference only,
that the goods which they confiscate, and every fine whereby lesser
crimes are punished, be assigned to themselves only, yet on this
condition, that they may never compel anyone to confess by torture, and
thus, precaution enough will be taken against their being unfair to the
commons, and through fear too lenient to the patricians.
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