[43] Plut. Vit. Philopœm. p. 365. lit. E. [44] To bring back their shields, implied victory; to be brought home upon them, a glorious death in defence of their country; because the Spartans, if possible, brought back and buried all who fell in battle in their native country. [45] Aristot. de Rebuspubl. lib. 2. cap. 7. fol. 122. lit. Θ. [46] Ἡ πόλις ἀπώλετο διὰ τὴν ὀλιγανθρωπίαν. Aristot. ibid. [47] Ὥστε θειοτέραν τὴν ἐπινοίαν ἢ κατ’ ἄνθρωπον αὐτὸν νομίζειν. Polyb. lib. 6. p. 683. CHAPTER II. OF ATHENS. The republick of Athens, once the seat of learning and eloquence, the school of arts and sciences, and the centre of wit, gaiety, and politeness, exhibits a strong contrast to that of Sparta, as well in her form of government, as in the genius and manners of her inhabitants. The government of Athens, after the abolition of monarchy, was truly democratick, and so much convulsed by those civil dissensions, which are the inevitable consequences of that kind of government, that of all the Grecian states, the Athenian may be the most strictly termed the seat of faction. I observe that the history of this celebrated republick is neither very clear nor interesting until the time of Solon. The laws of Draco (the first legislator of the Athenians who gave his laws in writing) affixed death as the common punishment of the most capital crimes, or the most trivial offences; a circumstance which implies either the most cruel austerity in the temper of the lawgiver, or such an abandoned profligacy in the manners of the people, as laid him under a necessity of applying such violent remedies. As the historians have not clearly decided which of these was the case, I shall only remark, that the humanity of the people, so natural to the human species, was interested upon the occasion, and the excessive rigour of the laws obstructed the very means of their being carried into execution. A plain proof that a multiplicity of rigorous penal laws are not only incompatible with the liberty of a free state, but even repugnant to human nature. For the natural equity of mankind can easily distinguish between the nature and degree of crimes; and the sentiments of humanity will naturally be excited when the punishment seems to be too rigorous in proportion to the demerits of the offender. The chief reason, in my opinion, why so many offenders in our nation escape with impunity for want of prosecution, is because our laws make no distinction, as to the punishment, between the most trifling robbery on the highway, and the most atrocious of all crimes, premeditated murder.