THE SPIRIT OF LAWS
By Charles de Secondat, Baron de Montesquieu
Translated by Thomas Nugent, revised by J. V. Prichard
Based on an public domain edition published in 1914 by G. Bell & Sons,
Ltd., London
Rendered into HTML and text by Jon Roland of the Constitution Society
**********
The Translator to the Reader
by Thomas Nugent
1752
The following work may with the strictest justice be said to have done honour to human nature as
well as to the great abilities of the author. The wisest and most learned man, and those most
distinguished by birth and the elevation of their stations, have, in every country in Europe,
considered it as a most excellent performance. And may we be permitted to add, that a sovereign
prince [1] as justly celebrated for his probity and good sense, as for his political and military skill,
has declared that from M. de Montesquieu he has learnt the art of government. But had the
illustrious author received no such distinguished honour, the numerous editions of this work in
French, and their sudden spreading through all Europe, are a sufficient testimony of the high esteem
with which it has been received by the public.
But notwithstanding the deserved applause which has been so liberally bestowed on the author,
there have been some who have not only endeavoured to blast his laurels, but have treated him with
all that scurrility which bigotry and superstition are apt, on every occasion, to throw out against truth,
reason and good sense. These M. de Montesquieu has himself answered, in a separate treatise intitled,
A Defense of the Spirit of Laws, from whence we have thought proper to extract, for the sake of such as
have not seen that treatise, the principal of those objections, and the substance of what has been given
in reply: Only first observing, that this defense is divided into three parts, in the first of which he
answers the general reproaches that have been thrown out against him; in the second he replies to
particular reproaches; and in the third, he gives some reflections on the manner in which his work has
been criticized.
The author first complains of his being charged both with espousing the doctrines of Spinoza, and with
being a Deist, two opinions directly contradictory to each other. To the former of these he answers, by
placing in one view the several passages in the Spirit of Laws directly levelled against the doctrines of
Spinoza; and then he replies to the objections that have been made to those passages, upon which this
injurious charge is founded.
The critic asserts that our author stumbles at his first setting out, and is offended at his saying, that
Laws in their most extensive signification, are the necessary relations derived from the nature of
things. To this he replies, that the critic had heard it said that Spinoza had maintained that the world
was governed by a blind and necessary principle; and from hence on seeing the word necessary, he
concludes that this must be Spinozism; tho' what is most surprising, this article is directly levelled at
the dangerous principles maintained by Spinoza: That he had Hobbes's system in his eye, a system,
which, as it makes all the virtues and vices depend on the establishment of human laws, and as it
would prove that men were born in a state of war, and that the first law of nature is a war of all against
all, overturns, like Spinoza, all religion, and all morality. Hence he laid down this position, that there
were laws of justice and equity before the establishment of positive laws: hence also he has proved that
all beings had laws; that even before their creation they had possible laws; and that God himself had
laws, that is, the laws which he himself had made. He has shewn [2] that nothing can be more false than
the assertion that men were born in a state of war; and he has made it appear that wars did not
commence till after the establishment of society. His principles are here extremely clear; from whence
it follows, that as he has attacked Hobbes's errors, he has consequently those of Spinoza; and he has been
so little understood, that they have taken for the opinions of Spinoza, those very objections which were
made against Spinozism.
Again, the author has said that the creation which appears to be an arbitrary act, supposes laws as
invariable as the fatality of the Atheists. From these words the critic concludes that the author
admits the fatality of the Atheists. To this he answers, that he had just before destroyed this fatality,
by representing it as the greatest absurdity to suppose that a blind fatality was capable of producing
intelligent beings. Besides, in the passage here censured, he can only be made to say what he really
does say: he does not speak of causes, nor does he compare causes; but he speaks of effects and
compares effects. The whole article, what goes before and what follows, make it evident, that there is
nothing here intended but the laws of motion, which, according to the author, had been established by
God: these laws are invariable; this he as asserted, and all natural philosophy has asserted the same
thing; they are invariable because God has been pleased to make them so, and because he has pleased
to preserve the world. When the author therefore says that the creation which appears to be an
arbitrary act, supposes laws as invariable as the fatality of the Atheists, he cannot be understood to
say that the creation was a necessary act like the fatality of the Atheists.
Having vindicated himself from the charge of Spinozism, he proceeds to the other accusation, and from
a multitude of passages collected together proves that he has not only acknowledged the truth of
revealed religion; but that he is in love with Christianity, and endeavours to make it appear amiable in
the eyes of others. He then enquires into what his adversaries have said to prove the contrary,
observing that the proofs ought to bear some proportion to the accusation; that this accusation is not of
a frivolous nature, and that the proofs therefore ought not to be frivolous.
The first objection is, that he has praised the Stoics, who admitted a blind fatality, and that this is the
foundation of natural religion. To this he replies, "I will for a moment suppose that this false manner of
reasoning has some weight: has the author praised the philosophy and metaphysics of the Stoics? He
has praised their morals, and has said that the people reaped great benefit from them: he has said this,
and he has said no more: I am mistaken, he has said more, he has at the beginning of his book attacked
this fatality, he does not then praise it, when he praises the Stoics."
The second objection is, that he has praised Bayle, in calling him a great man. To this he answers, "It is
true that the author has called Bayle a great man, but he has censured his opinions: if he has censured
them, he has not espoused them: and since he has censured his opinions, he does not call him a great
man because of his opinions. Every body knows that Bayle had a great genius which he abused; but this
genius which he abused, he had: the author has attacked his sophisms, and pities him on account of his
errors. I don't love the men who subvert the laws of their country; but I should find great difficulty in
believing that Caesar and Cromwell had little minds: I am not in love with conquerors, but it would be
very difficult to persuade me to believe that Alexander and Jenghiz-Khan were men of only a common
genius. Besides, I have remarked, that the declamations of angry men make but little impression on any
except those who are angry: the greatest part of the readers are men of moderation, and seldom take up
a book but when they are in cool blood; for rational and sensible men love reason. Had the author
loaded Bayle with a thousand injurious reproaches, it would not have followed from thence, that Bayle
had reasoned well or ill; all that his readers would have been able to conclude from it would have been,
that the author knew how to be abusive."
The third objection is, that he has not in his first chapter spoken of original sin. To which he replies: "I
ask every sensible man if this chapter is a treatise of divinity? if the author had spoken of original sin,
they might have imputed it to him as a crime that he had not spoken of redemption."
The next objection takes notice, that "The author has said that in England self-murder is the effect of a
distemper, and that it cannot be punished without punishing the effects of madness; the consequence
the critic draws from thence is, that a follower of natural religion can never forget that England is the
cradle of his sect, and that he rubs a sponge over all the crimes he found there." He replies, "The
author does not know that England is the cradle of natural religion; but he knows that England was not
his cradle. He is not of the same religious sentiments as an Englishman, any more than an Englishman
who speaks of the physical effects he found in France, is not of the same religion as the French. He is
not a follower of natural religion; but he wishes that his critic was a follower of natural logic."
These are the principle objections levelled against our author, on this head, from which our readers
will sufficiently see on what trifling, what puerile arguments this charge of Deism is founded. He
concludes however this article, with a defense of the religion of nature, and such a defense as every
rational Christian must undoubtedly approve.
"Before I conclude this first part, I am tempted to make one objection against him who has made so
many; but he has so stunned my ears with the words follower of natural religion, that I scarcely
dare pronounce them. I shall endeavour however to take courage. Do not the critic's two pieces
stand in greater need of an explication, than that which I defend? Does he do well, while speaking
of natural religion and revelation, to fall perpetually upon one side of the subject, and to lose all
traces of the other? Does he do well never to distinguish those who acknowledge only the religion
of nature, from those who acknowledge both natural and revealed religion? Does he do well to
turn frantic whenever the author considers man in the state of natural religion, and whenever he
explains any thing on the principles of natural religion? Does he do well to confound natural
religion with Atheism? Have I not heard that we have all natural religion? Have I not heard that
Christianity is the perfection of natural religion? Have I not heard that natural religion is
employed to prove the truth of revelation against the Deists? and that the same natural religion is
employed to prove the existence of a God against the Atheists? He has said that the Stoics were
the followers of natural religion; and I say, that they were Atheists, since they believed that a
blind fatality governed the universe; and it is by the religion of nature that we ought to attack that
of the Stoics. He says that the scheme of natural religion is connected with that of Spinoza; and I
say, that they are contradictory to each other, and it is by natural religion that we ought to
destroy Spinoza's scheme. I say, that to confound natural religion with Atheism, is to confound
the proof with the thing to be proved, and the objections against error with error itself, and that
this is to take away the most powerful arms we have against this error."
The author now proceeds to the second part of his defence, in which he has the following remarks.
"What has the critic done to give an ample scope to his declamations, and to open the widest door
to invectives? he has considered the author, as if he had intended to follow the example of
M. Abbadye, and had been writing a treatise on the Christian religion: he has attacked him, as if
his two books on religion were two treatises on divinity; he has cavilled against him, as if while he
had been talking of any religion whatsoever which was not Christian, he should have examined it
according to the principles, and doctrines of Christianity; he has judged him as if in his two books
relating to religion he ought to have preached to Mahometans and Idolators the doctrines of
Christianity. Whenever he has spoken of religion in general, whenever he has made use of the word
religion, the critic says, 'that is the Christian religion'; whenever he has compared the religious
rites of different nations and has said that they are more conformable to the political government
of these countries, than some other rites, the critic again says, 'you approve them then and
abandon the Christian faith': when he has spoken of a people who have never embraced
Christianity, or who have lived before Christ, again says the critic, 'you don't then acknowledge the
morals of Christianity'; when he has canvassed any custom whatsoever, which he has found in a
political writer, the critic asks him, 'Is this a doctrine of Christianity?' He might as well add, 'You
say you are a civilian, and I will make you a divine in spite of yourself: you have given us elsewhere
some very excellent things on the Christian religion, but this was only to conceal your real
sentiments, for I know your heart, and penetrate into your thoughts. It is true I do not understand
your book, nor it is material that I should discover the good or bad design with which it has been
written; but I know the bottom of all your thoughts: I don't know a word of what you have said, but
I understand perfectly well, what you have not said.'"
But to proceed. The author has maintained the polygamy is necessarily and in its own nature bad;
he has wrote a chapter expressly against it, and afterwards has examined in a philosophical manner,
in what countries, in what climates, or in what circumstances it is least pernicious; he has compared
climates with climates, and countries with countries, and has found, that there are countries, where
its effects are less pernicious than in others; because, according to the accounts that have been given
of them, the number of men and women not being every where equal, it is evident, that if there are
places where there are more women than men, polygamy, bad as it is in itself, is there less pernicious
than in others. But as the title of this chapter [3] contains these words, That the law of polygamy is an
affair of calculation, they have seized this title as an excellent subject for declamation. Having
repeated the chapter itself, against which no objection is made, he proceeds to justify the title and
adds: "Polygamy is an affair of calculation when we would know, if it is more or less pernicious in
certain climates, in certain countries, in certain circumstances than in others; it is not an affair of
calculation when we would decide whether it be good or bad in itself. It is not an affair of
calculation when we reason on its nature; it may be an affair of calculation when we combine its
effects; in short, it is never an affair of calculation when we enquire into the end of marriage, and it
is even less so, when we enquire into marriage as a law established and confirmed by Jesus Christ."
Again, the author having said, that [4] polygamy is more conformable to nature in some countries
than in others, the critic has seized the words more conformable to nature, to make his say, that he
approves polygamy. To which he answers, "If I say, that I should like better to have a fever than
the scurvy, does this signify that I should like to have a fever? or only that the scurvy is more
disagreeable to me than a fever?"
Having finished his reply to what had been objected to on the subject of polygamy, he vindicates
that excellent part of his work which treats of the climates; when speaking of the influence these
have upon religion, he says, "I am very sensible that religion is in its own nature independent of all
physical causes whatsoever, that the religion which is good in one country is good in another, and
that it cannot be pernicious in one country without being so in all; but yet, I say, that as it is
practiced by men, and has a relation to those who do not practice it, any religion whatsoever will
find a greater facility in being practiced, either in the whole or in part, in certain circumstances
than in others, and that whoever says the contrary must renounce all pretensions to sense and
understanding."
But the critic has been greatly offended by our author's saying, [5] that when a state is at liberty to
receive or to reject a new religion, it ought to be rejected; when it is received, it ought to be tolerated.
From hence he objects, that the author has advised idolatrous princes, not to admit the Christian
religion into their dominions. To this he answers first by referring to a passage in which he says, [6]
that the best civil and political laws are, next to Christianity, the greatest blessings that men can give
or receive; and adds, "If then Christianity is the first and greatest blessing, and the political and civil
laws the second, there are no political or civil laws in any state that can or ought to hinder the
entrance of the Christian religion."
His second answer is, "That the religion of heaven is not established by the same methods as the
religions of the earth; read the history of the church, and you will see the wonders performed by
the Christian religion: was she to enter a country, she knew how to open its gates; every instrument
was able to effect it; at one time God makes use of a few fisherman, at another he sets an emperor on
the throne, and makes him bow down his head under the yolk of the gospel. Does Christianity hide
herself in subterranean caverns? stay a moment, and you see an advocate speaking from the imperial
throne on her behalf. She traverses, whenever she pleases, seas, rivers, and mountains; no obstacles
here below can stop her progress: implant aversion in the mind, she will conquer this aversion:
establish customs, form habits, publish edicts, enact laws, she will triumph over the climate, over the
laws which result from it, and over the legislators who have made them. God acting according to
decrees which are unknown to us, extends or contracts the limits of his religion."
______
1. The present Kind of Sardinia.
2. Book i. Chap. 1.
3. Book xvi. Chap. 4.
4. Book xvi. Chap. 4.
5. Book xxv. Ch. 10.
6. Ibid. Ch. 1.
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The Spirit of Laws
by Charles de Montesquieu
PART I, BOOKS 1 - 15
CONTENTS
Preface
Advertisement
Book I. Of Laws in General
1. Of the Relation of Laws to Different Beings
2. Of the Laws of Nature
3. Of Positive Laws
Book II. Of Laws Directly Derived from the Nature of Government
1. Of the Nature of the Three Different Governments
2. Of the Republican Government, and the Laws in Relation to Democracy
3. Of the Laws in Relation to the Nature of Aristocracy
4. Of the Relation of Laws to the Nature of Monarchical Government
5. Of the Laws in Relation to the Nature of a Despotic Government
Book III. Of the Principles of the Three Kinds of Government
1. Difference Between the Nature and Principle of Government
2. Of the Principle of Different Governments
3. Of the Principle of Democracy
4. Of the Principle of Aristocracy
5. That Virtue Is Not the Principle of a Monarchical Government
6. In What Manner Virtue Is Supplied in a Monarchical Government
7. Of the Principle of Monarchy
8. That Honour Is Not the Principle of Despotic Government
9. Of the Principle of Despotic Government
10. Difference of Obedience in Moderate and Despotic Governments
11. Reflections on the Preceding Chapters
Book IV. That the Laws of Education Ought to Be in Relation to
the Principles of Government
1. Of the Laws of Education
2. Of Education in Monarchies
3. Of Education in a Despotic Government
4. Difference between the Effects of Ancient and Modern Education
5. Of Education in a Republican Government
6. Of some Institutions among the Greeks
7. In What Cases These Singular Institutions May Be of Service
8. Explanation of a Paradox of the Ancients in Respect to Manners
Book V. That the Laws Given by the Legislator Ought to Be in
Relation to the Principle of Government
1. Idea of This Book
2. What Is Meant by Virtue in a Political State
3. What Is Meant by a Love of the Republic in a Democracy
4. In What Manner the Love of Equality and Frugality Is Inspired
5. In What Manner the Laws Establish Equality in a Democracy
6. In What Manner the Laws Ought to Maintain Frugality in a Democracy
7. Other Methods of Favouring the Principle of Democracy
8. In What Manner the Laws Should Relate to the Principle of Government
in an Aristocracy
9. In What Manner the Laws Are in Relation to Their Principle in
Monarchies
10. Of the Expedition Peculiar to the Executive Power in Monarchies
11. Of the Excellence of a Monarchical Government
12. The Same Subject Continued
13. An Idea of Despotic Power
14. In What Manner the Laws Are in Relation to the Principles of
Despotic Government
15. The Same Subject Continued
16. Of the Communication of Power
17. Of Presents
18. Of Rewards Conferred by the Sovereign
19. New Consequences of the Principles of the Three Governments
Book VI. Consequences of the Principles of Different Governments
with Respect to the Simplicity of Civil and Criminal Laws, the Form
of Judgments, and the Inflicting of Punishments
1. Of the Simplicity of Civil Laws in Different Governments
2. Of the Simplicity of Criminal Laws in Different Governments
3. In What Governments and in What Cases the Judges Ought to Determine
According to the Express Letter of the Law
4. Of the Manner of Passing Judgment
5. In What Governments the Sovereign May Be Judge
6. That in Monarchies Ministers Ought Not to Sit as Judges
7. Of a Single Magistrate
8. Of Accusation in Different Governments
9. Of the Severity of Punishments in Different Governments
10. Of the Ancient French Laws
11. That When People Are Virtuous, Few Punishments Are Necessary
12. Of the Power of Punishments
13. Insufficiency of the Laws of Japan
14. Of the Spirit of the Roman Senate
15. Of the Roman Laws in Respect to Punishments
16. Of the Just Proportion between Punishments and Crimes
17. Of the Rack
18. Of Pecuniary and Corporal Punishments
19. Of the Law of Retaliation
20. Of the Punishment of Fathers for the Crimes of Their Children
21. Of the Clemency of the Prince
Book VII. Consequences of the Different Principles of the Three
Governments with Respect to Sumptuary Laws, Luxury, and the
Condition of Women
1. Of Luxury
2. Of Sumptuary Laws in a Democracy
3. Of Sumptuary Laws in an Aristocracy
4. Of Sumptuary Laws in a Monarchy
5. In What Cases Sumptuary Laws Are Useful in a Monarchy
6. Of the Luxury of China
7. Fatal Consequences of Luxury in China
8. Of Public Continency
9. Of the Condition or State of Women in Different Governments
10. Of the Domestic Tribunal among the Romans
11. In What Manner the Institutions Changed at Rome, Together with the
Government
12. Of the Guardianship of Women among the Romans
13. Of the Punishments Decreed by the Emperors against the Incontinence
of Women
14. Sumptuary Laws among the Romans
15. Of Dowries and Nuptial Advantages in Different Constitutions
16. An Excellent Custom of the Samnites
17. Of Female Administration
Book VIII. Of the Corruption of the Principles of the Three
Governments
1. General Idea of This Book
2. Of the Corruption of the Principles of Democracy
3. Of the Spirit of Extreme Equality
4. Particular Cause of the Corruption of the People
5. Of the Corruption of the Principle of Aristocracy
6. Of the Corruption of the Principle of Monarchy
7. The Same Subject Continued
8. Danger of the Corruption of the Principle of Monarchical Government
9. How Ready the Nobility Are to Defend the Throne
10. Of the Corruption of the Principle of Despotic Government
11. Natural Effects of the Goodness and Corruption of the Principles of
Government
12. The Same Subject Continued
13. The Effect of an Oath among Virtuous People
14. How the Smallest Change of the Constitution Is Attended with the
Ruin of its Principles
15. Sure Methods of Preserving the Three Principles
16. Distinctive Properties of a Republic
17. Distinctive Properties of a Monarchy
18. Particular Case of the Spanish Monarchy
19. Distinctive Properties of a Despotic Government
20. Consequence of the Preceding Chapters
21. Of the Empire of China
Book IX. Of Laws in the Relation They Bear to a Defensive Force
1. In What Manner Republics Provide for Their Safety
2. That a Confederate Government Ought to Be Composed of States of the
Same Nature, Especially of the Republican Kind
3. Other Requisites in a Confederate Republic
4. In What Manner Despotic Governments Provide for their Security
5. In What Manner a Monarchical Government Provides for Its Security
6. Of the Defensive Force of States in General
7. A Reflection
8. A Particular Case in Which the Defensive Force of a State Is Inferior
to the Offensive
9. Of the Relative Force of States
10. Of the Weakness of Neighbouring States
Book X. Of Laws in the Relation They Bear to Offensive Force
1. Of Offensive Force
2. Of War
3. Of the Right of Conquest
4. Some Advantages of a Conquered People
5. Gelon, King of Syracuse
6. Of Conquest Made by a Republic
7. The Same Subject Continued
8. The Same Subject Continued
9. Of Conquests Made by a Monarchy
10. Of One Monarchy That Subdues Another
11. Of the Manners of a Conquered People
12. Of a Law of Cyrus
13. Charles XII
14. Alexander
15. New Methods of Preserving a Conquest
16. Of Conquests Made by a Despotic Prince
17. The Same Subject Continued
Book XI. Of the Laws Which Establish Political Liberty, with
Regard to the Constitution
1. A General Idea
2. Different Significations of the Word Liberty
3. In What Liberty Consists
4. The Same Subject Continued
5. Of the End or View of Different Governments
6. Of the Constitution of England
7. Of the Monarchies We Are Acquainted With
8. Why the Ancients Had Not a Clear Idea of Monarchy
9. Aristotle's Manner of Thinking
10. What Other Politicians Thought
11. Of the Kings of the Heroic Times of Greece
12. Of the Government of the Kings of Rome, and in What Manner the Three
Powers Were There Distributed
13. General Reflections on the State of Rome after the Expulsion of its
Kings
14. In What Manner the Distribution of the Three Powers Began to Change
after the Expulsion of the Kings
15. In What Manner Rome, in the Flourishing State of That Republic,
Suddenly Lost its Liberty
16. Of the Legislative Power in the Roman Republic
17. Of the Executive Power in the Same Republic
18. Of the Judiciary Power in the Roman Government
19. Of the Government of the Roman Provinces
20. The End of This Book
Book XII. Of the Laws That Form Political Liberty, in Relation to
the Subject
1. Idea of This Book
2. Of the Liberty of the Subject
3. The Same Subject Continued
4. That Liberty is Favoured by the Nature and Proportion of Punishments
5. Of Certain Accusations That Require Particular Moderation and
Prudence
6. Of the Crime against Nature
7. Of the Crime of High Treason
8. Of the Misapplication of the Terms Sacrilege and High Treason
9. The Same Subject Continued
10. The Same Subject Continued
11. Of Thoughts
12. Of Indiscreet Speeches
13. Of Writings
14. Breach of Modesty in Punishing Crimes
15. Of the Enfranchisement of Slaves in Order to Accuse Their Master
16. Of Calumny with Regard to the Crime of High Treason
17. Of the Revealing of Conspiracies
18. How Dangerous It Is in Republics to Be Too Severe in Punishing the
Crime of High Treason
19. In What Manner the Use of Liberty Is Suspended in a Republic
20. Of Laws Favourable to the Liberty of the Subject in a Republic
21. Of the Cruelty of Laws in Respect to Debtors in a Republic
22. Of Things That Strike at Liberty in Monarchies
23. Of Spies in Monarchies
24. Of Anonymous Letters
25. Of the Manner of Governing in Monarchies
26. That in a Monarchy the Prince Ought to Be of Easy Access
27. Of the Manners of a Monarch
28. Of the Regard Which Monarchs Owe to Their Subjects
29. Of the Civil Laws Proper for Mixing Some Portion of Liberty in a
Despotic Government
30. The Same Subject Continued
Book XIII. Of the Relation Which the Levying of Taxes and the
Greatness of the Public Revenues Bear to Liberty
1. Of the Public Revenues
2. That It Is Bad Reasoning to Say That the Greatness of Taxes Is Good
in its Own Nature
3. Of Taxes in Countries Where Part of the People Are Villains or
Bondmen
4. Of a Republic in the Like Case
5. Of a Monarchy in the Like Case
6. Of a Despotic Government in the Like Case
7. Of Taxes in Countries where Villainage is Not Established
8. In What Manner the Deception Is Preserved
9. Of a Bad Kind of Impost
10. That the Greatness of Taxes Depends on the Nature of the Government
11. Of Confiscations
12. Relation between the Weight of Taxes and Liberty
13. In What Government Taxes Are Capable of Increase
14. That the Nature of the Taxes Is in Relation to the Government
15. Abuse of Liberty
16. Of the Conquests of the Mahometans
17. Of the Augmentation of Troops
18. Of an Exemption from Taxes
19. Which Is More Suitable to the Prince and to the People, the Farming
the Revenues, or Managing Them by Commission?
20. Of the Farmers of the Revenues
Book XIV. Of Laws in Relation to the Nature of the Climate
1. General Idea
2. Of the Difference of Men in Different Climates
3. Contradiction in the Tempers of Some Southern Nations
4. Cause of the Immutability of Religion, Manners, Customs, and Laws, in
the Eastern Countries
5. That Those Are Bad Legislators Who Favour the Vices of the Climate,
and Good Legislators Who Oppose Those Vices
6. Of Agriculture in Warm Climates
7. Of Monkery
8. An Excellent Custom of China
9. Means of Encouraging Industry
10. Of the Laws in Relation to the Sobriety of the People
11. Of the Laws in Relation to the Distempers of the Climate
12. Of the Laws against Suicides
13. Effects Arising from the Climate of England
14. Other Effects of the Climate
15. Of the Different Confidence Which the Laws Have in the People,
According to the Difference of Climates
Book XV. In What Manner the Laws of Civil Slavery Relate to the
Nature of the Climate
1. Of Civil Slavery
2. Origin of the Right of Slavery among the Roman Civilians
3. Another Origin of the Right of Slavery
4. Another Origin of the Right of Slavery
5. Of the Slavery of the Negroes
6. The True Origin of the Right of Slavery
7. Another Origin of the Right of Slavery
8. Inutility of Slavery among Us
9. Several Kinds of Slavery
10. Regulations Necessary in Respect to Slavery
11. Abuses of Slavery
12. Danger from the Multitude of Slaves
13. Of Armed Slaves
14. The Same Subject Continued
15. Precautions to Be Used in Moderate Governments
16. Regulations between Masters and Slaves
17. Of Enfranchisements
18. Of Freedmen and Eunuchs
------------------------------------------------------------------------
PREFACE
IF amidst the infinite number of subjects contained in this book there
is anything which, contrary to my expectation, may possibly offend, I
can at least assure the public that it was not inserted with an ill
intention: for I am not naturally of a captious temper. Plato thanked
the gods that he was born in the same age with Socrates: and for my part
I give thanks to the Supreme that I was born a subject of that
government under which I live; and that it is His pleasure I should obey
those whom He has made me love.
I beg one favour of my readers, which I fear will not be granted me;
this is, that they will not judge by a few hours' reading of the labour
of twenty years; that they will approve or condemn the book entire, and
not a few particular phrases. If they would search into the design of
the author, they can do it in no other way so completely as by searching
into the design of the work.
I have first of all considered mankind; and the result of my thoughts
has been, that amidst such an infinite diversity of laws and manners,
they were not solely conducted by the caprice of fancy.
I have laid down the first principles, and have found that the
particular cases follow naturally from them; that the histories of all
nations are only consequences of them; and that every particular law is
connected with another law, or depends on some other of a more general
extent.
When I have been obliged to look back into antiquity, I have endeavoured
to assume the spirit of the ancients, lest I should consider those
things as alike which are really different; and lest I should miss the
difference of those which appear to be alike.
I have not drawn my principles from my prejudices, but from the nature
of things.
Here a great many truths will not appear till we have seen the chain
which connects them with others. The more we enter into particulars, the
more we shall perceive the certainty of the principles on which they are
founded. I have not even given all these particulars, for who could
mention them all without a most insupportable fatigue?
The reader will not here meet with any of those bold flights which seem
to characterise the works of the present age. When things are examined
with never so small a degree of extent, the sallies of imagination must
vanish; these generally arise from the mind's collecting all its powers
to view only one side of the subject, while it leaves the other
unobserved.
I write not to censure anything established in any country whatsoever.
Every nation will here find the reasons on which its maxims are founded;
and this will be the natural inference, that to propose alterations
belongs only to those who are so happy as to be born with a genius
capable of penetrating the entire constitution of a state.
It is not a matter of indifference that the minds of the people be
enlightened. The prejudices of magistrates have arisen from national
prejudice. In a time of ignorance they have committed even the greatest
evils without the least scruple; but in an enlightened age they even
tremble while conferring the greatest blessings. They perceive the
ancient abuses; they see how they must be reformed; but they are
sensible also of the abuses of a reformation. They let the evil
continue, if they fear a worse; they are content with a lesser good, if
they doubt a greater. They examine into the parts, to judge of them in
connection; and they examine all the causes, to discover their different
effects.
Could I but succeed so as to afford new reasons to every man to love his
prince, his country, his laws; new reasons to render him more sensible
in every nation and government of the blessings he enjoys, I should
think myself the most happy of mortals.
Could I but succeed so as to persuade those who command, to increase
their knowledge in what they ought to prescribe; and those who obey, to
find a new pleasure resulting from obedience -- I should think myself
the most happy of mortals.
The most happy of mortals should I think myself could I contribute to
make mankind recover from their prejudices. By prejudices I here mean,
not that which renders men ignorant of some particular things, but
whatever renders them ignorant of themselves.
It is in endeavouring to instruct mankind that we are best able to
practise that general virtue which comprehends the love of all. Man,
that flexible being, conforming in society to the thoughts and
impressions of others, is equally capable of knowing his own nature,
whenever it is laid open to his view; and of losing the very sense of
it, when this idea is banished from his mind.
Often have I begun, and as often have I laid aside, this undertaking. I
have a thousand times given the leaves I had written to the winds: I,
every day, felt my paternal hands fall. I have followed my object
without any fixed plan: I have known neither rules nor exceptions; I
have found the truth, only to lose it again. But when I once discovered
my first principles, everything I sought for appeared; and in the course
of twenty years, I have seen my work begun, growing up, advancing to
maturity, and finished.
If this work meets with success, I shall owe it chiefly to the grandeur
and majesty of the subject. However, I do not think that I have been
totally deficient in point of genius. When I have seen what so many
great men both in France, England, and Germany have said before me, I
have been lost in admiration; but I have not lost my courage: I have
said with Correggio, "And I also am a painter."
ADVERTISEMENT
1. For the better understanding of the first four books of this work, it
is to be observed that what I distinguish by the name of virtue, in a
republic, is the love of one's country, that is, the love of equality.
It is not a moral, nor a Christian, but a political virtue; and it is
the spring which sets the republican government in motion, as honour is
the spring which gives motion to monarchy. Hence it is that I have
distinguished the love of one's country, and of equality, by the
appellation of political virtue. My ideas are new, and therefore I have
been obliged to find new words, or to give new acceptations to old
terms, in order to convey my meaning. They, who are unacquainted with
this particular, have made me say most strange absurdities, such as
would be shocking in any part of the world, because in all countries and
governments morality is requisite.
2. The reader is also to notice that there is a vast difference between
saying that a certain quality, modification of the mind, or virtue, is
not the spring by which government is actuated, and affirming that it is
not to be found in that government. Were I to say such a wheel or such a
pinion is not the spring which sets the watch going, can you infer
thence that they are not to be found in the watch? So far is it from
being true that the moral and Christian virtues are excluded from
monarchy, that even political virtue is not excluded. In a word, honour
is found in a republic, though its spring be political virtue; and
political virtue is found in a monarchical government, though it be
actuated by honour.
To conclude, the honest man of whom we treat in the third book, chapter
5, is not the Christian, but the political honest man, who is possessed
of the political virtue there mentioned. He is the man who loves the
laws of his country, and who is actuated by the love of those laws. I
have set these matters in a clearer light in the present edition, by
giving a more precise meaning to my expression: and in most places where
I have made use of the word virtue I have taken care to add the term
political.
------------------------------------------------------------------------
Book I. Of Laws in General
1. Of the Relation of Laws to different Beings. Laws, in their most
general signification, are the necessary relations arising from the
nature of things. In this sense all beings have their laws: the Deity[1]
His laws, the material world its laws, the intelligences superior to man
their laws, the beasts their laws, man his laws.
They who assert that a blind fatality produced the various effects we
behold in this world talk very absurdly; for can anything be more
unreasonable than to pretend that a blind fatality could be productive
of intelligent beings?
There is, then, a prime reason; and laws are the relations subsisting
between it and different beings, and the relations of these to one
another.
God is related to the universe, as Creator and Preserver; the laws by
which He created all things are those by which He preserves them. He
acts according to these rules, because He knows them; He knows them,
because He made them; and He made them, because they are in relation to
His wisdom and power.
Since we observe that the world, though formed by the motion of matter,
and void of understanding, subsists through so long a succession of
ages, its motions must certainly be directed by invariable laws; and
could we imagine another world, it must also have constant rules, or it
would inevitably perish.
Thus the creation, which seems an arbitrary act, supposes laws as
invariable as those of the fatality of the Atheists. It would be absurd
to say that the Creator might govern the world without those rules,
since without them it could not subsist.
These rules are a fixed and invariable relation. In bodies moved, the
motion is received, increased, diminished, or lost, according to the
relations of the quantity of matter and velocity; each diversity is
uniformity, each change is constancy.
Particular intelligent beings may have laws of their own making, but
they have some likewise which they never made. Before there were
intelligent beings, they were possible; they had therefore possible
relations, and consequently possible laws. Before laws were made, there
were relations of possible justice. To say that there is nothing just or
unjust but what is commanded or forbidden by positive laws, is the same
as saying that before the describing of a circle all the radii were not
equal.
We must therefore acknowledge relations of justice antecedent to the
positive law by which they are established: as, for instance, if human
societies existed, it would be right to conform to their laws; if there
were intelligent beings that had received a benefit of another being,
they ought to show their gratitude; if one intelligent being had created
another intelligent being, the latter ought to continue in its original
state of dependence; if one intelligent being injures another, it
deserves a retaliation; and so on.
But the intelligent world is far from being so well governed as the
physical. For though the former has also its laws, which of their own
nature are invariable, it does not conform to them so exactly as the
physical world. This is because, on the one hand, particular intelligent
beings are of a finite nature, and consequently liable to error; and on
the other, their nature requires them to be free agents. Hence they do
not steadily conform to their primitive laws; and even those of their
own instituting they frequently infringe.
Whether brutes be governed by the general laws of motion, or by a
particular movement, we cannot determine. Be that as it may, they have
not a more intimate relation to God than the rest of the material world;
and sensation is of no other use to them than in the relation they have
either to other particular beings or to themselves.
By the allurement of pleasure they preserve the individual, and by the
same allurement they preserve their species. They have natural laws,
because they are united by sensation; positive laws they have none,
because they are not connected by knowledge. And yet they do not
invariably conform to their natural laws; these are better observed by
vegetables, that have neither understanding nor sense.
Brutes are deprived of the high advantages which we have; but they have
some which we have not. They have not our hopes, but they are without
our fears; they are subject like us to death, but without knowing it;
even most of them are more attentive than we to self-preservation, and
do not make so bad a use of their passions.
Man, as a physical being, is like other bodies governed by invariable
laws. As an intelligent being, he incessantly transgresses the laws
established by God, and changes those of his own instituting. He is left
to his private direction, though a limited being, and subject, like all
finite intelligences, to ignorance and error: even his imperfect
knowledge he loses; and as a sensible creature, he is hurried away by a
thousand impetuous passions. Such a being might every instant forget his
Creator; God has therefore reminded him of his duty by the laws of
religion. Such a being is liable every moment to forget himself;
philosophy has provided against this by the laws of morality. Formed to
live in society, he might forget his fellow-creatures; legislators have
therefore by political and civil laws confined him to his duty.
2. Of the Laws of Nature. Antecedent to the above-mentioned laws are
those of nature, so called, because they derive their force entirely
from our frame and existence. In order to have a perfect knowledge of
these laws, we must consider man before the establishment of society:
the laws received in such a state would be those of nature.
The law which, impressing on our minds the idea of a Creator, inclines
us towards Him, is the first in importance, though not in order, of
natural laws. Man in a state of nature would have the faculty of
knowing, before he had acquired any knowledge. Plain it is that his
first ideas would not be of a speculative nature; he would think of the
preservation of his being, before he would investigate its origin. Such
a man would feel nothing in himself at first but impotency and weakness;
his fears and apprehensions would be excessive; as appears from
instances (were there any necessity of proving it) of savages found in
forests,[2] trembling at the motion of a leaf, and flying from every
shadow.
In this state every man, instead of being sensible of his equality,
would fancy himself inferior. There would therefore be no danger of
their attacking one another; peace would be the first law of nature.
The natural impulse or desire which Hobbes attributes to mankind of
subduing one another is far from being well founded. The idea of empire
and dominion is so complex, and depends on so many other notions, that
it could never be the first which occurred to the human understanding.
Hobbes[3] inquires, "For what reason go men armed, and have locks and
keys to fasten their doors, if they be not naturally in a state of war?"
But is it not obvious that he attributes to mankind before the
establishment of society what can happen but in consequence of this
establishment, which furnishes them with motives for hostile attacks and
self-defence?
Next to a sense of his weakness man would soon find that of his wants.
Hence another law of nature would prompt him to seek for nourishment.
Fear, I have observed, would induce men to shun one another; but the
marks of this fear being reciprocal, would soon engage them to
associate. Besides, this association would quickly follow from. the very
pleasure one animal feels at the approach of another of the same
species. Again, the attraction arising from the difference of sexes
would enhance this pleasure, and the natural inclination they have for
each other would form a third law.
Beside the sense or instinct which man possesses in common with brutes,
he has the advantage of acquired knowledge; and thence arises a second
tie, which brutes have not. Mankind have therefore a new motive of
uniting; and a fourth law of nature results from the desire of living in
society.
3. Of Positive Laws. As soon as man enters into a state of society he
loses the sense of his weakness; equality ceases, and then commences the
state of war.
Each particular society begins to feel its strength, whence arises a
state of war between different nations. The individuals likewise of each
society become sensible of their force; hence the principal advantages
of this society they endeavour to convert to their own emolument, which
constitutes a state of war between individuals.
These two different kinds of states give rise to human laws. Considered
as inhabitants of so great a planet, which necessarily contains a
variety of nations, they have laws relating to their mutual intercourse,
which is what we call the law of nations. As members of a society that
must be properly supported, they have laws relating to the governors and
the governed, and this we distinguish by the name of politic law. They
have also another sort of law, as they stand in relation to each other;
by which is understood the civil law.
The law of nations is naturally founded on this principle, that
different nations ought in time of peace to do one another all the good
they can, and in time of war as little injury as possible, without
prejudicing their real interests.
The object of war is victory; that of victory is conquest; and that of
conquest preservation. From this and the preceding principle all those
rules are derived which constitute the law of nations.
All countries have a law of nations, not excepting the Iroquois
themselves, though they devour their prisoners: for they send and
receive ambassadors, and understand the rights of war and peace. The
mischief is that their law of nations is not founded on true principles.
Besides the law of nations relating to all societies, there is a polity
or civil constitution for each particularly considered. No society can
subsist without a form of government. "The united strength of
individuals," as Gravina[4] well observes, "constitutes what we call the
body politic."
The general strength may be in the hands of a single person, or of many.
Some think that nature having established paternal authority, the most
natural government was that of a single person. But the example of
paternal authority proves nothing. For if the power of a father relates
to a single government, that of brothers after the death of a father,
and that of cousins-german after the decease of brothers, refer to a
government of many. The political power necessarily comprehends the
union of several families.
Better is it to say, that the government most conformable to nature is
that which best agrees with the humour and disposition of the people in
whose favour it is established.
The strength of individuals cannot be united without a conjunction of
all their wills. "The conjunction of those wills," as Gravina again very
justly observes, "is what we call the civil state."
Law in general is human reason, inasmuch as it governs all the
inhabitants of the earth: the political and civil laws of each nation
ought to be only the particular cases in which human reason is applied.
They should be adapted in such a manner to the people for whom they are
framed that it should be a great chance if those of one nation suit
another.
They should be in relation to the nature and principle of each
government; whether they form it, as may be said of politic laws; or
whether they support it, as in the case of civil institutions.
They should be in relation to the climate of each country, to the
quality of its soil, to its situation and extent, to the principal
occupation of the natives, whether husbandmen, huntsmen, or shepherds:
they should have relation to the degree of liberty which the
constitution will bear; to the religion of the inhabitants, to their
inclinations, riches, numbers, commerce, manners, and customs. In fine,
they have relations to each other, as also to their origin, to the
intent of the legislator, and to the order of things on which they are
established; in all of which different lights they ought to be
considered.
This is what I have undertaken to perform in the following work. These
relations I shall examine, since all these together constitute what I
call the Spirit of Laws.
I have not separated the political from the civil institutions, as I do
not pretend to treat of laws, but of their spirit; and as this spirit
consists in the various relations which the laws may bear to different
objects, it is not so much my business to follow the natural order of
laws as that of these relations and objects.
I shall first examine the relations which laws bear to the nature and
principle of each government; and as this principle has a strong
influence on laws, I shall make it my study to understand it thoroughly:
and if I can but once establish it, the laws will soon appear to flow
thence as from their source. I shall proceed afterwards to other and
more particular relations.
______
1. "Law," says Plutarch, "is the king of mortal and immortal beings."
See his treatise, A Discourse to an Unlearned Prince.
2. Witness the savage found in the forests of Hanover, who was carried
over to England during the reign of George I.
3. In pref., De cive.
4. Italian poet and jurist, 1664-1718.
------------------------------------------------------------------------
Book II. Of Laws Directly Derived from the Nature of Government
1. Of the Nature of the three different Governments. There are three
species of government: republican, monarchical, and despotic. In order
to discover their nature, it is sufficient to recollect the common
notion, which supposes three definitions, or rather three facts: that a
republican government is that in which the body, or only a part of the
people, is possessed of the supreme power; monarchy, that in which a
single person governs by fixed and established laws; a despotic
government, that in which a single person directs everything by his own
will and caprice.
This is what I call the nature of each government; we must now inquire
into those laws which directly conform to this nature, and consequently
are the fundamental institutions.
2. Of the Republican Government, and the Laws in relation to
Democracy.[1] When the body of the people is possessed of the supreme
power, it is called a democracy. When the supreme power is lodged in the
hands of a part of the people, it is then an aristocracy.
In a democracy the people are in some respects the sovereign, and in
others the subject.
There can be no exercise of sovereignty but by their suffrages, which
are their own will; now the sovereign's will is the sovereign himself.
The laws therefore which establish the right of suffrage are fundamental
to this government. And indeed it is as important to regulate in a
republic, in what manner, by whom, to whom, and concerning what,
suffrages are to be given, as it is in a monarchy to know who is the
prince, and after what manner he ought to govern.
Libanius[2] says that at Athens a stranger who intermeddled in the
assemblies of the people was punished with death. This is because such a
man usurped the rights of sovereignty.
It is an essential point to fix the number of citizens who are to form
the public assemblies; otherwise it would be uncertain whether the
whole, or only a part of the people, had given their votes. At Sparta
the number was fixed at ten thousand. But Rome, designed by Providence
to rise from the weakest beginnings to the highest pitch of grandeur;
Rome, doomed to experience all the vicissitudes of fortune; Rome, who
had sometimes all her inhabitants without her walls, and sometimes all
Italy and a considerable part of the world within them; Rome, I say,
never fixed the number[3] and this was one of the principal causes of
her ruin.
The people, in whom the supreme power resides, ought to have the
management of everything within their reach: that which exceeds their
abilities must be conducted by their ministers.
But they cannot properly be said to have their ministers, without the
power of nominating them: it is, therefore, a fundamental maxim in this
government, that the people should choose their ministers -- that is,
their magistrates.
They have occasion, as well as monarchs, and even more so, to be
directed by a council or senate. But to have a proper confidence in
these, they should have the choosing of the members; whether the
election be made by themselves, as at Athens, or by some magistrate
deputed for that purpose, as on certain occasions was customary at Rome.
The people are extremely well qualified for choosing those whom they are
to entrust with part of their authority. They have only to be determined
by things to which they cannot be strangers, and by facts that are
obvious to sense. They can tell when a person has fought many battles,
and been crowned with success; they are, therefore, capable of electing
a general. They can tell when a judge is assiduous in his office, gives
general satisfaction, and has never been charged with bribery: this is
sufficient for choosing a prætor. They are struck with the magnificence
or riches of a fellow-citizen; no more is requisite for electing an
edile. These are facts of which they can have better information in a
public forum than a monarch in his palace. But are they capable of
conducting an intricate affair, of seizing and improving the opportunity
and critical moment of action? No; this surpasses their abilities.
Should we doubt the people's natural capacity, in respect to the
discernment of merit, we need only cast an eye on the series of
surprising elections made by the Athenians and Romans; which no one
surely will attribute to hazard.
We know that though the people of Rome assumed the right of raising
plebeians to public offices, yet they never would exert this power; and
though at Athens the magistrates were allowed, by the law of Aristides,
to be elected from all the different classes of inhabitants, there never
was a case, says Xenophon,[4] when the common people petitioned for
employments which could endanger either their security or their glory.
As most citizens have sufficient ability to choose, though unqualified
to be chosen, so the people, though capable of calling others to an
account for their administration, are incapable of conducting the
administration themselves.
The public business must be carried on with a certain motion, neither
too quick nor too slow. But the motion of the people is always either
too remiss or too violent. Sometimes with a hundred thousand arms they
overturn all before them; and sometimes with a hundred thousand feet
they creep like insects.
In a popular state the inhabitants are divided into certain classes. It
is in the manner of making this division that great legislators have
signalised themselves; and it is on this the duration and prosperity of
democracy have ever depended.
Servius Tullius followed the spirit of aristocracy in the distribution
of his classes. We find in Livy[5] and in Dionysius Halicarnassus,[6] in
what manner he lodged the right of suffrage in the hands of the
principal citizens. He had divided the people of Rome into 193
centuries, which formed six classes; and ranking the rich, who were in
smaller numbers, in the first centuries, and those in middling
circumstances, who were more numerous, in the next, he flung the
indigent multitude into the last; and as each century had but one
vote[7] it was property rather than numbers that decided the election.
Solon divided the people of Athens into four classes. In this he was
directed by the spirit of democracy, his intention not being to fix
those who were to choose, but such as were eligible: therefore, leaving
to every citizen the right of election, he made[8] the judges eligible
from each of those four classes; but the magistrates he ordered to be
chosen only out of the first three, consisting of persons of easy
fortunes.[9]
As the division of those who have a right of suffrage is a fundamental
law in republics, so the manner of giving this suffrage is another
fundamental.
The suffrage by lot is natural to democracy; as that by choice is to
aristocracy.[10]
The suffrage by lot is a method of electing that offends no one, but
animates each citizen with the pleasing hope of serving his country.
Yet as this method is in itself defective, it has been the endeavour of
the most eminent legislators to regulate and amend it.
Solon made a law at Athens that military employments should be conferred
by choice; but that senators and judges should be elected by lot.
The same legislator ordained that civil magistracies, attended with
great expense, should be given by choice; and the others by lot.
In order, however, to amend the suffrage by lot, he made a rule that
none but those who presented themselves should be elected; that the
person elected should be examined by judges[11] and that every one
should have a right to accuse him if he were unworthy of the office:[12]
this participated at the same time of the suffrage by lot, and of that
by choice. When the time of their magistracy had expired, they were
obliged to submit to another judgment in regard to their conduct.
Persons utterly unqualified must have been extremely backward in giving
in their names to be drawn by lot.
The law which determines the manner of giving suffrage is likewise
fundamental in a democracy. It is a question of some importance whether
the suffrages ought to be public or secret. Cicero observes[13] that the
laws[14] which rendered them secret towards the close of the republic
were the cause of its decline. But as this is differently practised in
different republics, I shall offer here my thoughts concerning this
subject.
The people's suffrages ought doubtless to be public[15] and this should
be considered as a fundamental law of democracy. The lower class ought
to be directed by those of higher rank, and restrained within bounds by
the gravity of eminent personages. Hence, by rendering the suffrages
secret in the Roman republic, all was lost; it was no longer possible to
direct a populace that sought its own destruction. But when the body of
the nobles are to vote in an aristocracy[16] or in a democracy the
senate[17] as the business is then only to prevent intrigues, the
suffrages cannot be too secret.
Intriguing in a senate is dangerous; it is dangerous also in a body of
nobles; but not so among the people, whose nature is to act through
passion. In countries where they have no share in the government, we
often see them as much inflamed on account of an actor as ever they
could be for the welfare of the state. The misfortune of a republic is
when intrigues are at an end; which happens when the people are gained
by bribery and corruption: in this case they grow indifferent to public
affairs, and avarice becomes their predominant passion. Unconcerned
about the government and everything belonging to it, they quietly wait
for their hire.
It is likewise a fundamental law in democracies, that the people should
have the sole power to enact laws. And yet there are a thousand
occasions on which it is necessary the senate should have the power of
decreeing; nay, it is frequently proper to make some trial of a law
before it is established. The constitutions of Rome and Athens were
excellent. The decrees of the senate[18] had the force of laws for the
space of a year, but did not become perpetual till they were ratified by
the consent of the people.
3. Of the Laws in relation to the Nature of Aristocracy. In an
aristocracy the supreme power is lodged in the hands of a certain number
of persons. These are invested both with the legislative and executive
authority; and the rest of the people are, in respect to them, the same
as the subjects of a monarchy in regard to the sovereign.
They do not vote here by lot, for this would be productive of
inconveniences only. And indeed, in a government where the most
mortifying distinctions are already established, though they were to be
chosen by lot, still they would not cease to be odious; it is the
nobleman they envy, and not the magistrate.
When the nobility are numerous, there must be a senate to regulate the
affairs which the body of the nobles are incapable of deciding, and to
prepare others for their decision. In this case it may be said that the
aristocracy is in some measure in the senate, the democracy in the body
of the nobles, and the people are a cipher.
It would be a very happy thing in an aristocracy if the people, in some
measure, could be raised from their state of annihilation. Thus at
Genoa, the bank of St. George being administered by the people[19] gives
them a certain influence in the government, whence their whole
prosperity is derived.
The senators ought by no means to have the right of naming their own
members; for this would be the only way to perpetuate abuses. At Rome,
which in its early years was a kind of aristocracy, the senate did not
fill up the vacant places in their own body; the new members were
nominated by the censors.[20]
In a republic, the sudden rise of a private citizen to exorbitant power
produces monarchy, or something more than monarchy. In the latter the
laws have provided for, or in some measure adapted themselves to, the
constitution; and the principle of government checks the monarch: but in
a republic, where a private citizen has obtained an exorbitant
power,[21] the abuse of this power is much greater, because the laws
foresaw it not, and consequently made no provision against it.
There is an exception to this rule, when the constitution is such as to
have immediate need of a magistrate invested with extraordinary power.
Such was Rome with her dictators, such is Venice with her state
inquisitors; these are formidable magistrates, who restore, as it were
by violence, the state to its liberty. But how comes it that these
magistracies are so very different in these two republics? It is because
Rome supported the remains of her aristocracy against the people;
whereas Venice employs her state inquisitors to maintain her aristocracy
against the nobles. The consequence was that at Rome the dictatorship
could be only of short duration, as the people acted through passion and
not with design. It was necessary that a magistracy of this kind should
be exercised with lustre and pomp, the business being to intimidate, and
not to punish, the multitude. It was also proper that the dictator
should be created only for some particular affair, and for this only
should have an unlimited authority, as he was always created upon some
sudden emergency. On the contrary, at Venice they have occasion for a
permanent magistracy; for here it is that schemes may be set on foot,
continued, suspended, and resumed; that the ambition of a single person
becomes that of a family, and the ambition of one family that of many.
They have occasion for a secret magistracy, the crimes they punish being
hatched in secrecy and silence. This magistracy must have a general
inquisition, for their business is not to remedy known disorders, but to
prevent the unknown. In a word, the latter is designed to punish
suspected crimes; whereas the former used rather menaces than punishment
even for crimes that were openly avowed.
In all magistracies, the greatness of the power must be compensated by
the brevity of the duration. This most legislators have fixed to a year;
a longer space would be dangerous, and a shorter would be contrary to
the nature of government. For who is it that in the management even of
his domestic affairs would be thus confined? At Ragusa[22] the chief
magistrate of the republic is changed every month, the other officers
every week, and the governor of the castle every day. But this can take
place only in a small republic environed[23] by formidable powers, who
might easily corrupt such petty and insignificant magistrates.
The best aristocracy is that in which those who have no share in the
legislature are so few and inconsiderable that the governing party have
no interest in oppressing them. Thus when[24] Antipater made a law at
Athens that whosoever was not worth two thousand drachms should have no
power to vote, he formed by this method the best aristocracy possible;
because this was so small a sum as to exclude very few, and not one of
any rank or consideration in the city.
Aristocratic families ought therefore, as much as possible, to level
themselves in appearance with the people. The more an aristocracy
borders on democracy, the nearer it approaches perfection: and, in
proportion as it draws towards monarchy, the more is it imperfect.
But the most imperfect of all is that in which the part of the people
that obeys is in a state of civil servitude to those who command, as the
aristocracy of Poland, where the peasants are slaves to the nobility.
4. Of the Relation of Laws to the Nature of Monarchical Government. The
intermediate, subordinate, and dependent powers constitute the nature of
monarchical government; I mean of that in which a single person governs
by fundamental laws. I said the intermediate, subordinate, and dependent
powers. And indeed, in monarchies the prince is the source of all power,
political and civil. These fundamental laws necessarily suppose the
intermediate channels through which the power flows: for if there be
only the momentary and capricious will of a single person to govern the
state, nothing can be fixed, and of course there is no fundamental law.
The most natural, intermediate, and subordinate power is that of the
nobility. This in some measure seems to be essential to a monarchy,
whose fundamental maxim is: no monarch, no nobility; no nobility, no
monarch; but there may be a despotic prince.
There are men who have endeavoured in some countries in Europe to
suppress the jurisdiction of the nobility, not perceiving that they were
driving at the very thing that was done by the parliament of England.
Abolish the privileges of the lords, the clergy and cities in a
monarchy, and you will soon have a popular state, or else a despotic
government.
The courts of a considerable kingdom in Europe have, for many ages, been
striking at the patrimonial jurisdiction of the lords and clergy. We do
not pretend to censure these sage magistrates; but we leave it to the
public to judge how far this may alter the constitution. Far am I from
being prejudiced in favour of the privileges of the clergy; however, I
should be glad if their jurisdiction were once fixed. The question is
not whether their jurisdiction was justly established; but whether it be
really established; whether it constitutes a part of the laws of the
country, and is in every respect in relation to those laws: whether
between two powers acknowledged independent, the conditions ought not to
be reciprocal; and whether it be not equally the duty of a good subject
to defend the prerogative of the prince, and to maintain the limits
which from time immemorial have been prescribed to his authority.
Though the ecclesiastic power be so dangerous in a republic, yet it is
extremely proper in a monarchy, especially of the absolute kind. What
would become of Spain and Portugal, since the subversion of their laws,
were it not for this only barrier against the incursions of arbitrary
power? A barrier ever useful when there is no other: for since a
despotic government is productive of the most dreadful calamities to
human nature, the very evil that restrains it is beneficial to the
subject.
In the same manner as the ocean, threatening to overflow the whole
earth, is stopped by weeds and pebbles that lie scattered along the
shore, so monarchs, whose power seems unbounded, are restrained by the
smallest obstacles, and suffer their natural pride to be subdued by
supplication and prayer.
The English, to favour their liberty, have abolished all the
intermediate powers of which their monarchy was composed. They have a
great deal of reason to be jealous of this liberty; were they ever to be
so unhappy as to lose it, they would be one of the most servile nations
upon earth.
Mr. Law, through ignorance both of a republican and monarchical
constitution, was one of the greatest promoters of absolute power ever
known in Europe. Besides the violent and extraordinary changes owing to
his direction, he would fain suppress all the intermediate ranks, and
abolish the political communities. He was dissolving[25] the monarchy by
his chimerical reimbursements, and seemed as if he even wanted to redeem
the constitution.
It is not enough to have intermediate powers in a monarchy; there must
be also a depositary of the laws. This depositary can only be the judges
of the supreme courts of justice, who promulgate the new laws, and
revive the obsolete. The natural ignorance of the nobility, their
indolence and contempt of civil government, require that there should be
a body invested with the power of reviving and executing the laws, which
would be otherwise buried in oblivion. The prince's council are not a
proper depositary. They are naturally the depositary of the momentary
will of the prince, and not of the fundamental laws. Besides, the
prince's council is continually changing; it is neither permanent nor
numerous; neither has it a sufficient share of the confidence of the
people; consequently it is capable of setting them right in difficult
conjunctures, or of reducing them to proper obedience.
Despotic governments, where there are no fundamental laws, have no such
kind of depositary. Hence it is that religion has generally so much
influence in those countries, because it forms a kind of permanent
depositary; and if this cannot be said of religion, it may of the
customs that are respected instead of laws.
5. Of the Laws in relation to the Nature of a despotic Government. From
the nature of despotic power it follows that the single person, invested
with this power, commits the execution of it also to a single person. A
man whom his senses continually inform that he himself is everything and
that his subjects are nothing, is naturally lazy, voluptuous, and
ignorant. In consequence of this, he neglects the management of public
affairs. But were he to commit the administration to many, there would
be continual disputes among them; each would form intrigues to be his
first slave; and he would be obliged to take the reins into his own
hands. It is, therefore, more natural for him to resign it to a
vizir,[26] and to invest him with the same power as himself. The
creation of a vizir is a fundamental law of this government.
It is related of a pope that he had started an infinite number of
difficulties against his election, from a thorough conviction of his
incapacity. At length he was prevailed on to accept of the pontificate,
and resigned the administration entirely to his nephew. He was soon
struck with surprise, and said, "I should never have thought that these
things were so easy." The same may be said of the princes of the East,
who, being educated in a prison where eunuchs corrupt their hearts and
debase their understandings, and where they are frequently kept ignorant
even of their high rank, when drawn forth in order to be placed on the
throne, are at first confounded: but as soon as they have chosen a
vizir, and abandoned themselves in their seraglio to the most brutal
passions; pursuing, in the midst of a prostituted court, every
capricious extravagance, they would never have dreamed that they could
find matters so easy.
The more extensive the empire, the larger the seraglio; and consequently
the more voluptuous the prince. Hence the more nations such a sovereign
has to rule, the less he attends to the cares of government; the more
important his affairs, the less he makes them the subject of his
deliberations.
______
1. Compare Aristotle, Politics, vi. 2.
2. Declamations, 17, 18.
3. See the Considerations on the Causes of the Grandeur and Decline of
the Romans, 9.
4. Pp. 691, 693, ed. Wechel, 1596.
5. Bk. i.
6. Bk. iv, art. 15 et seq.
7. See in the Considerations on the Causes of the Grandeur and Decline
of the Romans, 9, how this spirit of Servius Tullius was preserved in
the republic.
8. Dionysius Halicarnassus, Eulogium of Isocrates, ii, p. 97, ed.
Wechel. Pollux, viii. 10, art. 130.
9. See Aristotle's Politics, ii. 12.
10. Ibid, iv. 9.
11. See the oration of Demosthenes, De Falsa legat., and the oration
against Timarchus.
12. They used even to draw two tickets for each place, one which gave
the place, and the other which named the person who was to succeed, in
case the first was rejected.
13. De Leg., i, iii.
14. They were called leges tabulares; two tablets were presented to each
citizen, the first marked with an A, for Antique, or I forbid it; and
the other with an U and an R, for Uti rogas, or Be it as you desire.
15. At Athens the people used to lift up their hands.
16. As at Venice.
17. The thirty tyrants at Athens ordered the suffrages of the
Areopagites to be public, in order to manage them as they pleased. --
Lysias, Orat. contra Agorat. 8.
18. See Dionysius Halicarnassus, iv, ix.
19. See Mr. Addison, Travels to Italy, p. 16.
20. They were named at first by the consuls.
21. This is what ruined the republic of Rome. See Considerations on the
Causes of the Grandeur and Decline of the Romans, 14, 16.
22. Tournefort, Voyages.
23. At Lucca the magistrates are chosen only for two months.
24. Diodorus, xviii, p. 601, ed. Rhodoman.
25. Ferdinand, king of Aragon, made himself grand master of the orders,
and that alone changed the constitution.
26. The Eastern kings are never without vizirs, says Sir John Chardin.
------------------------------------------------------------------------
Book III. Of the Principles of the Three Kinds of Government
1. Difference between the Nature and Principle of Government. Having
examined the laws in relation to the nature of each government, we must
investigate those which relate to its principle.
There is this difference between the nature and principle[1] of
government, that the former is that by which it is constituted, the
latter that by which it is made to act. One is its particular structure,
and the other the human passions which set it in motion.
Now, laws ought no less to relate to the principle than to the nature of
each government. We must, therefore, inquire into this principle, which
shall be the subject of this third book.
2. Of the Principle of different Governments. I have already observed
that it is the nature of a republican government that either the
collective body of the people, or particular families, should be
possessed of the supreme power; of a monarchy, that the prince should
have this power, but in the execution of it should be directed by
established laws; of a despotic government, that a single person should
rule according to his own will and caprice. This enables me to discover
their three principles; which are thence naturally derived. I shall
begin with a republican government, and in particular with that of
democracy.
3. Of the Principle of Democracy. There is no great share of probity
necessary to support a monarchical or despotic government. The force of
laws in one, and the prince's arm in the other, are sufficient to direct
and maintain the whole. But in a popular state, one spring more is
necessary, namely, virtue.
What I have here advanced is confirmed by the unanimous testimony of
historians, and is extremely agreeable to the nature of things. For it
is clear that in a monarchy, where he who commands the execution of the
laws generally thinks himself above them, there is less need of virtue
than in a popular government, where the person entrusted with the
execution of the laws is sensible of his being subject to their
direction.
Clear is it also that a monarch who, through bad advice or indolence,
ceases to enforce the execution of the laws, may easily repair the evil;
he has only to follow other advice; or to shake off this indolence. But
when, in a popular government, there is a suspension of the laws, as
this can proceed only from the corruption of the republic, the state is
certainly undone.
A very droll spectacle it was in the last century to behold the impotent
efforts of the English towards the establishment of democracy. As they
who had a share in the direction of public affairs were void of virtue;
as their ambition was inffamed by the success of the most daring of
their members;[2] as the prevailing parties were successively animated
by the spirit of faction, the government was continually changing: the
people, amazed at so many revolutions, in vain attempted to erect a
commonwealth. At length, when the country had undergone the most violent
shocks, they were obliged to have recourse to the very government which
they had so wantonly proscribed.
When Sylla thought of restoring Rome to her liberty, this unhappy city
was incapable of receiving that blessing. She had only the feeble
remains of virtue, which were continually diminishing. Instead of being
roused from her lethargy by Cæsar, Tiberius, Caius Claudius, Nero, and
Domitian, she riveted every day her chains; if she struck some blows,
her aim was at the tyrant, not at the tyranny.
The politic Greeks, who lived under a popular government, knew no other
support than virtue. The modern inhabitants of that country are entirely
taken up with manufacture, commerce, finances, opulence, and luxury.
When virtue is banished, ambition invades the minds of those who are
disposed to receive it, and avarice possesses the whole community. The
objects of their desires are changed; what they were fond of before has
become indifferent; they were free while under the restraint of laws,
but they would fain now be free to act against law; and as each citizen
is like a slave who has run away from his master, that which was a maxim
of equity he calls rigour; that which was a rule of action he styles
constraint; and to precaution he gives the name of fear. Frugality, and
not the thirst of gain, now passes for avarice. Formerly the wealth of
individuals constituted the public treasure; but now this has become the
patrimony of private persons. The members of the commonwealth riot on
the public spoils, and its strength is only the power of a few, and the
licence of many.
Athens was possessed of the same number of forces when she triumphed so
gloriously as when with such infamy she was enslaved. She had twenty
thousand citizens[3] when she defended the Greeks against the Persians,
when she contended for empire with Sparta, and invaded Sicily. She had
twenty thousand when Demetrius Phalereus numbered them[4] as slaves are
told by the head in a market-place. When Philip attempted to lord it
over Greece, and appeared at the gates of Athens[5] she had even then
lost nothing but time. We may see in Demosthenes how difficult it was to
awaken her; she dreaded Philip, not as the enemy of her liberty, but of
her pleasures.[6] This famous city, which had withstood so many defeats,
and having been so often destroyed had as often risen out of her ashes,
was overthrown at Chæronea, and at one blow deprived of all hopes of
resource. What does it avail her that Philip sends back her prisoners,
if he does not return her men? It was ever after as easy to triumph over
the forces of Athens as it had been difficult to subdue her virtue.
How was it possible for Carthage to maintain her ground? When Hannibal,
upon his being made prætor, endeavoured to hinder the magistrates from
plundering the republic, did not they complain of him to the Romans?
Wretches, who would fain be citizens without a city, and be beholden for
their riches to their very destroyers! Rome soon insisted upon having
three hundred of their principal citizens as hostages; she obliged them
next to surrender their arms and ships; and then she declared war.[7]
From the desperate efforts of this defenceless city, one may judge of
what she might have performed in her full vigour, and assisted by
virtue.
4. Of the Principle of Aristocracy. As virtue is necessary in a popular
government, it is requisite also in an aristocracy. True it is that in
the latter it is not so absolutely requisite.
The people, who in respect to the nobility are the same as the subjects
with regard to a monarch, are restrained by their laws. They have,
therefore, less occasion for virtue than the people in a democracy. But
how are the nobility to be restrained? They who are to execute the laws
against their colleagues will immediately perceive that they are acting
against themselves. Virtue is therefore necessary in this body, from the
very nature of the constitution.
An aristocratic government has an inherent vigour, unknown to democracy.
The nobles form a body, who by their prerogative, and for their own
particular interest, restrain the people; it is sufficient that there
are laws in being to see them executed.
But easy as it may be for the body of the nobles to restrain the people,
it is difficult to restrain themselves.[8] Such is the nature of this
constitution, that it seems to subject the very same persons to the
power of the laws, and at the same time to exempt them.
Now such a body as this can restrain itself only in two ways; either by
a very eminent virtue, which puts the nobility in some measure on a
level with the people, and may be the means of forming a great republic;
or by an inferior virtue, which puts them at least upon a level with one
another, and upon this their preservation depends.
Moderation is therefore the very soul of this government; a moderation,
I mean, founded on virtue, not that which proceeds from indolence and
pusillanimity.
5. That Virtue is not the Principle of a Monarchical Government. In
monarchies, policy effects great things with as little virtue as
possible. Thus in the nicest machines, art has reduced the number of
movements, springs, and wheels.
The state subsists independently of the love of our country, of the
thirst of true glory, of self-denial, of the sacrifice of our dearest
interests, and of all those heroic virtues which we admire in the
ancients, and to us are known only by tradition.
The laws supply here the place of those virtues; they are by no means
wanted, and the state dispenses with them: an action performed here in
secret is in some measure of no consequence.
Though all crimes be in their own nature public, yet there is a
distinction between crimes really public and those that are private,
which are so called because they are more injurious to individuals than
to the community.
Now in republics private crimes are more public, that is, they attack
the constitution more than they do individuals; and in monarchies,
public crimes are more private, that is, they are more prejudicial to
private people than to the constitution.
I beg that no one will be offended with what I have been saying; my
observations are founded on the unanimous testimony of historians. I am
not ignorant that virtuous princes are so very rare; but I venture to
affirm that in a monarchy it is extremely difficult for the people to be
virtuous.[9]
Let us compare what the historians of all ages have asserted concerning
the courts of monarchs; let us recollect the conversations and
sentiments of people of all countries, in respect to the wretched
character of courtiers, and we shall find that these are not airy
speculations, but truths confirmed by a sad and melancholy experience.
Ambition in idleness; meanness mixed with pride; a desire of riches
without industry; aversion to truth; flattery, perfidy, violation of
engagements, contempt of civil duties, fear of the prince's virtue, hope
from his weakness, but, above all, a perpetual ridicule cast upon
virtue, are, I think, the characteristics by which most courtiers in all
ages and countries have been constantly distinguished. Now, it is
exceedingly difficult for the leading men of the nation to be knaves,
and the inferior sort to be honest; for the former to be cheats, and the
latter to rest satisfied with being only dupes.
But if there should chance to be some unlucky honest man[10] among the
people. Cardinal Richelieu, in his political testament, seems to hint
that a prince should take care not to employ him.[11] So true is it that
virtue is not the spring of this government! It is not indeed excluded,
but it is not the spring of government.
6. In what Manner Virtue is supplied in a Monarchical Government. But it
is high time for me to have done with this subject, lest I should be
suspected of writing a satire against monarchical government. Far be it
from me; if monarchy wants one spring, it is provided with another.
Honour, that is, the prejudice of every person and rank, supplies the
place of the political virtue of which I have been speaking, and is
everywhere her representative: here it is capable of inspiring the most
glorious actions, and, joined with the force of laws, may lead us to the
end of government as well as virtue itself.
Hence, in well-regulated monarchies, they are almost all good subjects,
and very few good men; for to be a good man[12] a good intention is
necessary,[13] and we should love our country, not so much on our own
account, as out of regard to the community.
7. Of the Principle of Monarchy. A monarchical government supposes, as
we have already observed, pre-eminences and ranks, as likewise a noble
descent. Now since it is the nature of honour to aspire to preferments
and titles, it is properly placed in this government.
Ambition is pernicious in a republic. But in a monarchy it has some good
effects; it gives life to the government, and is attended with this
advantage, that it is in no way dangerous, because it may be continually
checked.
It is with this kind of government as with the system of the universe,
in which there is a power that constantly repels all bodies from the
centre, and a power of gravitation that attracts them to it. Honour sets
all the parts of the body politic in motion, and by its very action
connects them; thus each individual advances the public good, while he
only thinks of promoting his own interest.
True it is that, philosophically speaking, it is a false honour which
moves all the parts of the government; but even this false honour is as
useful to the public as true honour could possibly be to private
persons.
Is it not very exacting to oblige men to perform the most difficult
actions, such as require an extraordinary exertion of fortitude and
resolution, without other recompense than that of glory and applause?
8. That Honour is not the Principle of Despotic Government. Honour is
far from being the principle of despotic government: mankind being here
all upon a level, no one person can prefer himself to another; and as on
the other hand they are all slaves, they can give themselves no sort of
preference.
Besides, as honour has its laws and rules, as it knows not how to
submit; as it depends in a great measure on a man's own caprice, and not
on that of another person; it can be found only in countries in which
the constitution is fixed, and where they are governed by settled laws.
How can despotism abide with honour? The one glories in the contempt of
life; and the other is founded on the power of taking it away. How can
honour, on the other hand, bear with despotism? The former has its fixed
rules, and peculiar caprices; but the latter is directed by no rule, and
its own caprices are subversive of all others.
Honour, therefore, a thing unknown in arbitrary governments, some of
which have not even a proper word to express it,[14] is the prevailing
principle in monarchies; here it gives life to the whole body politic,
to the laws, and even to the virtues themselves.
9. Of the Principle of Despotic Government. As virtue is necessary in a
republic, and in a monarchy honour, so fear is necessary in a despotic
government: with regard to virtue, there is no occasion for it, and
honour would be extremely dangerous.
Here the immense power of the prince devolves entirely upon those whom
he is pleased to entrust with the administration. Persons capable of
setting a value upon themselves would be likely to create disturbances.
Fear must therefore depress their spirits, and extinguish even the least
sense of ambition.
A moderate government may, whenever it pleases, and without the least
danger, relax its springs. It supports itself by the laws, and by its
own internal strength. But when a despotic prince ceases for one single
moment to uplift his arm, when he cannot instantly demolish those whom
he has entrusted with the first employments,[15] all is over: for as
fear, the spring of this government, no longer subsists, the people are
left without a protector.
It is probably in this sense the Cadis maintained that the Grand
Seignior was not obliged to keep his word or oath, when he limited
thereby his authority.[16]
It is necessary that the people should be judged by laws, and the great
men by the caprice of the prince, that the lives of the lowest subject
should be safe, and the pasha's head ever in danger. We cannot mention
these monstrous governments without horror. The Sophi of Persia,
dethroned in our days by Mahomet, the son of Miriveis, saw the
constitution subverted before this resolution, because he had been too
sparing of blood.[17]
History informs us that the horrid cruelties of Domitian struck such a
terror into the governors that the people recovered themselves a little
during his reign.[18] Thus a torrent overflows one side of a country,
and on the other leaves fields untouched, where the eye is refreshed by
the prospect of fine meadows.
10. Difference of Obedience in Moderate and Despotic Governments. In
despotic states, the nature of government requires the most passive
obedience; and when once the prince's will is made known, it ought
infallibly to produce its effect.
Here they have no limitations or restrictions, no mediums, terms,
equivalents, or remonstrances; no change to propose: man is a creature
that blindly submits to the absolute will of the sovereign.
In a country like this they are no more allowed to represent their
apprehensions of a future danger than to impute their miscarriage to the
capriciousness of fortune. Man's portion here, like that of beasts, is
instinct, compliance, and punishment.
Little does it then avail to plead the sentiments of nature, filial
respect, conjugal or parental tenderness, the laws of honour, or want of
health; the order is given, and, that is sufficient.
In Persia, when the king has condemned a person, it is no longer lawful
to mention his name, or to intercede in his favour. Even if the prince
were intoxicated, or non compos, the decree must be executed;[19]
otherwise he would contradict himself, and the law admits of no
contradiction. This has been the way of thinking in that country in all
ages; as the order which Ahasuerus gave, to exterminate the Jews, could
not be revoked, they were allowed the liberty of defending themselves.
One thing, however, may be sometimes opposed to the prince's will,[20]
namely, religion. They will abandon, nay they will slay a parent, if the
prince so commands; but he cannot oblige them to drink wine. The laws of
religion are of a superior nature, because they bind the sovereign as
well as the subject. But with respect to the law of nature, it is
otherwise; the prince is no longer supposed to be a man.
In monarchical and moderate states, the power is limited by its very
spring, I mean by honour, which, like a monarch, reigns over the prince
and his people. They will not allege to their sovereign the laws of
religion; a courtier would be apprehensive of rendering himself
ridiculous. But the laws of honour will be appealed to on all occasions.
Hence arise the restrictions necessary to obedience; honour is naturally
subject to whims, by which the subject's submission will be ever
directed.
Though the manner of obeying be different in these two kinds of
government, the power is the same. On which side soever the monarch
turns, he inclines the scale, and is obeyed. The whole difference is
that in a monarchy the prince receives instruction, at the same time
that his ministers have greater abilities, and are more versed in public
affairs, than the ministers of a despotic government.
11. Reflections on the preceding Chapters. Such are the principles of
the three sorts of government: which does not imply that in a particular
republic they actually are, but that they ought to be, virtuous; nor
does it prove that in a particular monarchy they are actuated by honour,
or in a particular despotic government by fear; but that they ought to
be directed by these principles, otherwise the government is imperfect.
______
1. This is a very important distinction, whence I shall draw many
consequences; for it is the key of an infinite number of laws.
2. Cromwell.
3. Plutarch, Pericles; Plato, in Critias.
4. She had at that time twenty-one thousand citizens, ten thousand
strangers, and four hundred thousand slaves. See Athenæus, vi.
5. She had then twenty thousand citizens. See Demosthenes in Aristog.
6. They had passed a law, which rendered it a capital crime for any one
to propose applying the money designed for the theatres to military
7. This lasted three years.
8. Public crimes may be punished, because it is here a common concern;
but private crimes will go unpunished, because it is the common interest
not to punish them.
9. I speak here of political virtue, which is also moral virtue as it is
directed to the public good; very little of private moral virtue, and
not at all of that virtue which relates to revealed truths. This will
appear better in v. 2.
10. This is to be understood in the sense of the preceding note.
11. We must not, says he, employ people of mean extraction; they are too
rigid and morose. -- Testament Polit., 4.
12. This word good man is understood here in a political sense only.
13. See Footnote 1.
14. See Perry, p. 447.
15. As it often happens in a military aristocracy.
16. Ricaut on the Ottoman Empire. I, ii.
17. See the history of this revolution by Father du Cerceau.
18. Suetonius, Life of Domitian, viii. His was a military constitution,
which is one of the species of despotic government.
19. See Sir John Chardin.
20. Ibid.
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Book IV. That the Laws of Education Ought to Be in Relation to the
Principles of Government
1. Of the Laws of Education. The laws of education are the first
impressions we receive; and as they prepare us for civil life, every
private family ought to be governed by the plan of that great household
which comprehends them all.
If the people in general have a principle, their constituent parts, that
is, the several families, will have one also. The laws of education will
be therefore different in each species of government: in monarchies they
will have honour for their object; in republics, virtue; in despotic
governments, fear.
2. Of Education in Monarchies. In monarchies the principal branch of
education is not taught in colleges or academies. It commences, in some
measure, at our setting out in the world; for this is the school of what
we call honour, that universal preceptor which ought everywhere to be
our guide.
Here it is that we constantly hear three rules or maxims, viz., that we
should have a certain nobleness in our virtues, a kind of frankness in
our morals, and a particular politeness in our behaviour.
The virtues we are here taught are less what we owe to others than to
ourselves; they are not so much what draws us towards society, as what
distinguishes us from our fellow-citizens. Here the actions of men are
judged, not as virtuous, but as shining; not as just, but as great; not
as reasonable, but as extraordinary. When honour here meets with
anything noble in our actions, it is either a judge that approves them,
or sophist by whom they are excused.
It allows of gallantry when united with the idea of sensible affection,
or with that of conquest; this is the reason why we never meet with so
strict a purity of morals in monarchies as in republican governments.
It allows of cunning and craft, when joined with the notion of greatness
of soul or importance of affairs; as, for instance, in politics, with
finesses of which it is far from being offended.
It does not forbid adulation, save when separated from the idea of a
large fortune, and connected only with the sense of our mean condition.
With regard to morals, I have observed that the education of monarchies
ought to admit of a certain frankness and open carriage. Truth,
therefore, in conversation is here a necessary point. But is it for the
sake of truth? By no means. Truth is requisite only because a person
habituated to veracity has an air of boldness and freedom. And indeed a
man of this stamp seems to lay a stress only on the things themselves,
not on the manner in which they are received.
Hence it is that in proportion as this kind of frankness is commended,
that of the common people is despised, which has nothing but truth and
simplicity for its object.
In fine, the education of monarchies requires a certain politeness of
behaviour. Man, a sociable animal, is formed to please in society; and a
person that would break through the rules of decency, so as to shock
those he conversed with, would lose the public esteem, and become
incapable of doing any good.
But politeness, generally speaking, does not derive its origin from so
pure a source. It arises from a desire of distinguishing ourselves. It
is pride that renders us polite; we are flattered with being taken
notice of for behaviour that shows we are not of a mean condition, and
that we have not been bred with those who in all ages are considered the
scum of the people.
Politeness, in monarchies, is naturalised at court. One man excessively
great renders everybody else little. Hence that regard which is paid to
our fellow-subjects; hence that politeness, equally pleasing to those by
whom, as to those towards whom, it is practised, because it gives people
to understand that a person actually belongs, or at least deserves to
belong, to the court.
A courtly air consists in quitting a real for a borrowed greatness. The
latter pleases the courtier more than the former. It inspires him with a
certain disdainful modesty, which shows itself externally, but whose
pride insensibly diminishes in proportion to its distance from the
source of this greatness.
At court we find a delicacy of taste in everything -- a delicacy arising
from the constant use of the superfluities of life, from the variety,
and especially the satiety, of pleasures, from the multiplicity and even
confusion of fancies, which, if they are but agreeable, are sure of
being well received.
These are the things which properly fall within the province of
education, in order to form what we call a man of honour, a man
possessed of all the qualities and virtues requisite in this kind of
government.
Here it is that honour interferes with everything, mixing even with
people's manner of thinking, and directing their very principles.
To this whimsical honour it is owing that the virtues are only just what
it pleases; it adds rules of its own invention to everything prescribed
to us; it extends or limits our duties according to its own fancy,
whether they proceed from religion, politics, or morality.
There is nothing so strongly inculcated in monarchies, by the laws, by
religion and honour, as submission to the prince's will; but this very
honour tells us that the prince never ought to command a dishonourable
action, because this would render us incapable of serving him.
Crillon refused to assassinate the Duke of Guise, but offered to fight
him. After the massacre of St. Bartholomew, Charles IX, having sent
orders to the governors in the several provinces for the Huguenots to be
murdered, Viscount Dorte, who commanded at Bayonne, wrote thus to the
king:[1] "Sire, among the inhabitants of this town, and your majesty's
troops, I could not find so much as one executioner; they are honest
citizens and brave soldiers. We jointly, therefore, beseech your majesty
to command our arms and lives in things that are practicable." This
great and generous soul looked upon a base action as a thing impossible.
There is nothing that honour more strongly recommends to the nobility
than to serve their prince in a military capacity. And, indeed, this is
their favourite profession, because its dangers, its success, and even
its miscarriages are the road to grandeur. Yet this very law of its own
making honour chooses to explain: and in case of any affront, it
requires or permits us to retire.
It insists also that we should be at liberty either to seek or to reject
employments, a liberty which it prefers even to an ample fortune.
Honour therefore has its supreme laws, to which education is obliged to
conform.[2] The chief of these are that we are permitted to set a value
upon our fortune, but are absolutely forbidden to set any upon our
lives.
The second is that, when we are raised to a post or preferment, we
should never do or permit anything which may seem to imply that we look
upon ourselves as inferior to the rank we hold.
The third is that those things which honour forbids are more rigorously
forbidden, when the laws do not concur in the prohibition; and those it
commands are more strongly insisted upon, when they happen not to be
commanded by law.
3. Of Education in a Despotic Government. As education in monarchies
tends to raise and ennoble the mind, in despotic governments its only
aim is to debase it. Here it must necessarily be servile; even in power
such an education will be an advantage, because every tyrant is at the
same time a slave.
Excessive obedience supposes ignorance in the person that obeys: the
same it supposes in him that commands, for he has no occasion to
deliberate, to doubt, to reason; he has only to will.
In despotic states, each house is a separate government. As education,
therefore, consists chieflv in social converse, it must be here very
much limited; all it does is to strike the heart with fear, and to
imprint on the understanding a very simple notion of a few principles of
religion. Learning here proves dangerous, emulation fatal; and as to
virtue, Aristotle[3] cannot think that there is any one virtue belonging
to slaves; if so, education in despotic countries is confined within a
very narrow compass.
Here, therefore, education is in some measure needless: to give
something, one must take away everything, and begin with making a bad
subject in order to make a good slave.
For why should education take pains in forming a good citizen, only to
make him share in the public misery? If he loves his country, he will
strive to relax the springs of government; if he miscarries he will be
undone; if he succeeds, he must expose himself, the prince, and his
country to ruin.
4. Difference between the Effects of Ancient and Modern Education. Most
of the ancients lived under governments that had virtue for their
principle; and when this was in full vigour they performed actions
unusual in our times, and at which our narrow minds are astonished.
Another advantage their education possessed over ours was that it never
could be effaced by contrary impressions. Epaminondas, the last year of
his life, said, heard, beheld, and performed the very same things as at
the age in which he received the first principles of his education.
In our days we receive three different or contrary educations, namely,
of our parents, of our masters, and of the world. What we learn in the
latter effaces all the ideas of the former. This, in some measure,
arises from the contrast we experience between our religious and worldly
engagements, a thing unknown to the ancients.
5. Of Education in a Republican Government. It is in a republican
government that the whole power of education is required. The fear of
despotic governments naturally arises of itself amidst threats and
punishments; the honour of monarchies is favoured by the passions, and
favours them in its turn; but virtue is a self-renunciation, which is
ever arduous and painful.
This virtue may be defined as the love of the laws and of our country.
As such love requires a constant preference of public to private
interest, it is the source of all private virtues; for they are nothing
more than this very preference itself.
This love is peculiar to democracies. In these alone the government is
entrusted to private citizens. Now a government is like everything else:
to preserve it we must love it.
Has it ever been known that kings were not fond of monarchy, or that
despotic princes hated arbitrary power?
Everything therefore depends on establishing this love in a republic;
and to inspire it ought to be the principal business of education: but
the surest way of instilling it into children is for parents to set them
an example.
People have it generally in their power to communicate their ideas to
their children; but they are still better able to transfuse their
passions.
If it happens otherwise, it is because the impressions made at home are
effaced by those they have received abroad.
It is not the young people that degenerate; they are not spoiled till
those of maturer age are already sunk into corruption.
6. Of some Institutions among the Greeks. The ancient Greeks, convinced
of the necessity that people who live under a popular government should
be trained up to virtue, made very singular institutions in order to
inspire it. Upon seeing in the life of Lycurgus the laws that legislator
gave to the Lacedæmonians, I imagine I am reading the history of the
Sevarambes. The laws of Crete were the model of those of Sparta; and
those of Plato reformed them.
Let us reflect here a little on the extensive genius with which those
legislators must have been endowed, to perceive that by striking at
received customs, and by confounding all manner of virtues, they should
display their wisdom to the universe. Lycurgus, by blending theft with
the spirit of justice, the hardest servitude with excess of liberty, the
most rigid sentiments with the greatest moderation, gave stability to
his city. He seemed to deprive her of all resources, such as arts,
commerce, money, and walls; ambition prevailed among the citizens
without hopes of improving their fortune; they had natural sentiments
without the tie of a son, husband, or father; and chastity was stripped
even of modesty and shame. This was the road that led Sparta to grandeur
and glory; and so infallible were these institutions, that it signified
nothing to gain a victory over that republic without subverting her
polity.[4]
By these laws Crete and Laconia were governed. Sparta was the last that
fell a prey to the Macedonians, and Crete to the Romans.[5]
The Samnites had the same institutions, which furnished those very
Romans with the subject of four-and-twenty triumphs.[6]
A character so extraordinary in the institutions of Greece has shown
itself lately in the dregs and corruptions of modern times.[7] A very
honest legislator has formed a people to whom probity seems as natural
as bravery to the Spartans. Mr. Penn is a real Lycurgus: and though the
former made peace his principal aim, as the latter did war, yet they
resemble one another in the singular way of living to which they reduced
their people, in the ascendant they had over free men, in the prejudices
they overcame, and in the passions which they subdued.
Another example we have from Paraguay. This has been the subject of an
invidious charge against a society that considers the pleasure of
commanding as the only happiness in life: but it will be ever a glorious
undertaking to render a government subservient to human happiness.[8]
It is glorious indeed for this society to have been the first in
pointing out to those countries the idea of religion joined with that of
humanity. By repairing the devastations of the Spaniards, she has begun
to heal one of the most dangerous wounds that the human species ever
received.
An exquisite sensibility to whatever she distinguishes by the name of
honour, joined to her zeal for a religion which is far more humbling in
respect to those who receive than to those who preach its doctrines, has
set her upon vast undertakings, which she has accomplished with success.
She has drawn wild people from their woods, secured them a maintenance,
and clothed their nakedness; and had she only by this step improved the
industry of mankind, it would have been sufficient to eternise her fame.
They who shall attempt hereafter to introduce like institutions must
establish the community of goods as prescribed in Plato's republic; that
high respect he required for the gods; that separation from strangers,
for the preservation of morals; and an extensive commerce carried on by
the community, and not by private citizens: they must give our arts
without our luxury, and our wants without our desires.
They must proscribe money, the effects of which are to swell people's
fortunes beyond the bounds prescribed by nature; to learn to preserve
for no purpose what has been idly hoarded up; to multiply without end
our desires; and to supply the sterility of nature, from whom we have
received very scanty means of inflaming our passions, and of corrupting
each other.
"The Epidamnians,[9] perceiving their morals depraved by conversing with
barbarians, chose a magistrate for making all contracts and sales in the
name and behalf of the city." Commerce then does not corrupt the
constitution, and the constitution does not deprive society of the
advantages of commerce.
7. In what Cases these singular Institutions may be of Service.
Institutions of this kind may be proper in republics, because they have
virtue for their principle; but to excite men to honour in monarchies,
or to inspire fear in despotic governments, less trouble is necessary.
Besides, they can take place but in a small state,[10] in which there is
a possibility of general education, and of training up the body of the
people like a single family.
The laws of Minos, of Lycurgus, and of Plato suppose a particular
attention and care, which the citizens ought to have over one another's
conduct. But an attention of this kind cannot be expected in the
confusion and multitude of affairs in which a large nation is entangled.
In institutions of this kind, money, as we have above observed, must be
banished. But in great societies, the multiplicity, variety,
embarrassment, and importance of affairs, as well as the facility of
purchasing, and the slowness of exchange, require a common measure. In
order to support or extend our power, we must be possessed of the means
to which, by the unanimous consent of mankind, this power is annexed.
8. Explanation of a Paradox of the Ancients in respect to Manners. That
judicious writer, Polybius, informs us that music was necessary to
soften the manners of the Arcadians, who lived in a cold, gloomy
country; that the inhabitants of Cynete, who slighted music, were the
cruellest of all the Greeks, and that no other town was so immersed in
luxury and debauchery. Plato[11] is not afraid to affirm that there is
no possibility of making a change in music without altering the frame of
government. Aristotle, who seems to have written his Politics only in
order to contradict Plato, agrees with him, notwithstanding, in regard
to the power and influence of music over the manners of the people.[12]
This was also the opinion of Theophrastus, of Plutarch[13] and of all
the ancients -- an opinion grounded on mature reflection; being one of
the principles of their polity.[14] Thus it was they enacted laws, and
thus they required that cities should be governed.
This I fancy must be explained in the following manner. It is observable
that in the cities of Greece, especially those whose .principal object
was war, all lucrative arts and professions were considered unworthy of
a freeman. "Most arts," says Xenophon,[15] "corrupt and enervate the
bodies of those that exercise them; they oblige them to sit in the
shade, or near the fire. They can find no leisure, either for their
friends or for the republic." It was only by the corruption of some
democracies that artisans became freemen. This we learn from
Aristotle,[16] who maintains that a well-regulated republic will never
give them the right and freedom of the city.[17]
Agriculture was likewise a servile profession, and generally practised
by the inhabitants of conquered countries, such as the Helotes among the
Lacedæmonians, the Periecians among the Cretans, the Penestes among the
Thessalians, and other conquered[18] people in other republics.
In fine, every kind of low commerce[19] was infamous among the Greeks;
as it obliged a citizen to serve and wait on a slave, on a lodger, or a
stranger. This was a notion that clashed with the spirit of Greek
liberty; hence Plato[20] in his Laws orders a citizen to be punished if
he attempts to concern himself with trade.
Thus in the Greek republics the magistrates were extremely embarrassed.
They would not have the citizens apply themselves to trade, to
agriculture, or to the arts, and yet they would not have them idle.[21]
They found, therefore, employment for them in gymnic and military
exercises; and none else were allowed by their institution.[22] Hence
the Greeks must be considered as a society of wrestlers and boxers. Now,
these exercises having a natural tendency to render people hardy and
fierce, there was a necessity for tempering them with others that might
soften their manners.[23] For this purpose, music, which influences the
mind by means of the corporeal organs, was extremely proper. It is a
kind of medium between manly exercises, which harden the body, and
speculative sciences, which are apt to render us unsociable and sour. It
cannot be said that music inspired virtue, for this would be
inconceivable: but it prevented the effects of a savage institution, and
enabled the soul to have such a share in the education as it could never
have had without the assistance of harmony.
Let us suppose among ourselves a society of men so passionately fond of
hunting as to make it their sole employment; they would doubtless
contract thereby a kind of rusticity and fierceness. But if they happen
to imbibe a taste for music, we should quickly perceive a sensible
difference in their customs and manners. In short, the exercises used by
the Greeks could raise but one kind of passions, viz., fierceness,
indignation, and cruelty. But music excites all these; and is likewise
able to inspire the soul with a sense of pity, lenity, tenderness, and
love. Our moral writers, who declaim so vehemently against the stage,
sufficiently demonstrate the power of music over the mind.
If the society above mentioned were to have no other music than that of
drums, and the sound of the trumpet, would it not be more difficult to
accomplish this end than by the more melting tones of softer harmony?
The ancients were therefore in the right when, under particular
circumstances, they preferred one mode to another in regard to manners.
But some will ask, why should music be pitched upon as preferable to any
other entertainment? It is because of all sensible pleasures there is
none that less corrupts the soul. We blush to read in Plutarch[24] that
the Thebans, in order to soften the manners of their youth, authorised
by law a passion which ought to be proscribed by all nations.
______
1. See d'Aubigny's History.
2. We mention here what actually is, and not what ought to be; honour is
a prejudice, which religion sometimes endeavours to remove, and at other
times to regulate.
3. Politics, i. 13.
4. Philopoemen obliged the Lacedæmonians to change their manner of
educating their children, being convinced that if he did not take this
measure they would always be noted for their magnanimity. -- Plutarch,
Philopoemen. See Livy, xxxviii.
5. She defended her laws and liberty for the space of three years. See
the 98th, 99th, and 100th book of Livy, in Florus's epitome. She made a
braver resistance than the greatest kings.
6. Florus, i. 16.
7. In fece Romuli. -- Cicero, Letters to Atticus, ii. 1.
8. The Indians of Paraguay do not depend on any particular lord; they
pay only a fifth of the taxes, and are allowed the use of firearms to
defend themselves.
9. Plutarch in his Questions Concerning the Greek Affairs, xxix.
10. Such as were formerly the cities of Greece.
11. Republic, iv.
12. Politics, viii. 5.
13. Pelopidas.
14. Plato, in his seventh book of Laws, says that the præfectures of
music and gymnic exercises are the most important employments in the
city; and, in his Republic, iii, Damon will tell you, says he, what
sounds are capable of corrupting the mind with base sentiments, or of
inspiring the contrary virtues.
15. Memorabilia, v.
16. Politics, iii. 4.
17. Diophantes, says Aristotle, Politics, ii. 7, made a law formerly at
Athens, that artisans should be slaves to the republic.
18. Plato, likewise, and Aristotle require slaves to till the land,
Laws, viii. Politics, vii. 10. True it is that agriculture was not
everywhere exercised by slaves: on the contrary, Aristotle observes the
best republics were those in which the citizens themselves tilled the
land: but this was brought about by the corruption of the ancient
governments, which had become democratic: for in earlier times the
cities of Greece were subject to an aristocratic government.
19. Cauponatio.
20. Book v.
21. Aristotle, Politics, vii-viii.
22. Ibid., viii. 3.
23. Aristotle observes that the children of the Lacedæmonians, who began
these exercises at a very tender age, contracted thence too great a
ferocity and rudeness of behaviour. -- Ibid., viii. 4.
24. Pelopidas.
------------------------------------------------------------------------
Book V. That the Laws Given by the Legislator Ought to Be in Relation to
the Principle of Government
1. Idea of this Book. That the laws of education should relate to the
principle of each government has been shown in the preceding book. Now
the same may be said of those which the legislator gives to the whole
society. The relation of laws to this principle strengthens the several
springs of government; and this principle derives thence, in its turn, a
new degree of vigour. And thus it is in mechanics, that action is always
followed by reaction.
Our design is, to examine this relation in each government, beginning
with the republican state, the principle of which is virtue.
2. What is meant by Virtue in a political State. Virtue in a republic is
a most simple thing: it is a love of the republic; it is a sensation,
and not a consequence of acquired knowledge: a sensation that may be
felt by the meanest as well as by the highest person in the state. When
the common people adopt good maxims, they adhere to them more steadily
than those whom we call gentlemen. It is very rarely that corruption
commences with the former: nay, they frequently derive from their
imperfect light a stronger attachment to the established laws and
customs.
The love of our country is conducive to a purity of morals, and the
latter is again conducive to the former. The less we are able to satisfy
our private passions, the more we abandon ourselves to those of a
general nature. How comes it that monks are so fond of their order? It
is owing to the very cause that renders the order insupportable. Their
rule debars them from all those things by which the ordinary passions
are fed; there remains therefore only this passion for the very rule
that torments them. The more austere it is, that is, the more it curbs
their inclinations, the more force it givfes to the only passion left
them.
3. What is meant by a Love of the Republic in a Democracy. A love of the
republic in a democracy is a love of the democracy; as the latter is
that of equality.
A love of the democracy is likewise that of frugality. Since every
individual ought here to enjoy the same happiness and the same
advantages, they should consequently taste the same pleasures and form
the same hopes, which cannot be expected but from a general frugality.
The love of equality in a democracy limits ambition to the sole desire,
to the sole happiness, of doing greater services to our country than the
rest of our fellow-citizens. They cannot all render her equal services,
but they all ought to serve her with equal alacrity. At our coming into
the world, we contract an immense debt to our country, which we can
never discharge.
Hence distinctions here arise from the principle of equality, even when
it seems to be removed by signal services or superior abilities.
The love of frugality limits the desire of having to the study of
procuring necessaries to our family, and superfluities to our country.
Riches give a power which a citizen cannot use for himself, for then he
would be no longer equal. They likewise procure pleasures which he ought
not to enjoy, because these would be also repugnant to the equality.
Thus well-regulated democracies, by establishing domestic frugality,
made way at the same time for public expenses, as was the case at Rome
and Athens, when magnificence and profusion arose from the very fund of
frugality. And as religion commands us to have pure and unspotted hands
when we make our offerings to the gods, the laws required a frugality of
life to enable them to be liberal to our country.
The good sense and happiness of individuals depend greatly upon the
mediocrity of their abilities and fortunes. Therefore, as a republic,
where the laws have placed many in a middling station, is composed of
wise men, it will be wisely governed; as it is composed of happy men, it
will be extremely happy.
4. In what Manner the Love of Equality and Frugality is inspired. The
love of equality and of a frugal economy is greatly excited by equality
and frugality themselves, in societies where both these virtues are
established by law.
In monarchies and despotic governments, nobody aims at equality; this
does not so much as enter their thoughts; they all aspire to
superiority. People of the very lowest condition desire to emerge from
their obscurity, only to lord it over their fellow-subjects.
It is the same with respect to frugality. To love it, we must practise
and enjoy it. It is not those who are enervated by pleasure that are
fond of a frugal life; were this natural and common, Alcibiades would
never have been the admiration of the universe. Neither is it those who
envy or admire the luxury of the great; people that have present to
their view none but rich men, or men miserable like themselves, detest
their wretched condition, without loving or knowing the real term or
point of misery.
A true maxim it is, therefore, that in order to love equality and
frugality in a republic, these virtues must have been previously
established by law.
5. In what Manner the Laws establish Equality in a Democracy. Some
ancient legislators, as Lycurgus and Romulus, made an equal division of
lands. A settlement of this kind can never take place except upon the
foundation of a new republic; or when the old one is so corrupt, and the
minds of the people are so disposed, that the poor think themselves
obliged to demand, and the rich obliged to consent to a remedy of this
nature.
If the legislator, in making a division of this kind, does not enact
laws at the same time to support it, he forms only a temporary
constitution; inequality will break in where the laws have not precluded
it, and the republic will be utterly undone.
Hence for the preservation of this equality it is absolutely necessary
there should be some regulation in respect to women's dowries,
donations, successions, testamentary settlements, and all other forms of
contracting. For were we once allowed to dispose of our property to whom
and how we pleased, the will of each individual would disturb the order
of the fundamental law.
Solon, by permitting the Athenians, upon failure of issue[1] to leave
their estates to whom they pleased, acted contrary to the ancient laws,
by which the estates were ordered to continue in the family of the
testator;[2] and even contrary to his own laws, for by abolishing debts
he had aimed at equality.
The law which prohibited people having two inheritances[3] was extremely
well adapted for a democracy. It derived its origin from the equal
distribution of lands and portions made to each citizen. The law would
not permit a single man to possess more than a single portion.
From the same source arose those laws by which the next relative was
ordered to marry the heiress. This law was given to the Jews after the
like distribution. Plato,[4] who grounds his laws on this division, made
the same regulation which had been received as a law by the Athenians.
At Athens there was a law whose spirit, in my opinion, has not been
hitherto rightly understood. It was lawful to marry a sister only by the
father's side, but it was not permitted to espouse a sister by the same
venter.[5] This custom was originally owing to republics, whose spirit
would not permit that two portions of land, and consequently two
inheritances, should devolve on the same person. A man who married his
sister only by the father's side could inherit but one estate, namely,
that of his father; but by espousing his sister by the same venter, it
might happen that this sister's father, having no male issue, might
leave her his estate, and consequently the brother who married her might
be possessed of two.
Little will it avail to object to what Philo says,[6] that although the
Athenians were allowed to marry a sister by the father's side, and not
by the mother's, yet the contrary practice prevailed among the
Lacedæmonians, who were permitted to espouse a sister by the mother's
side, and not by the father's. For I find in Strabo[7] that at Sparta,
whenever a woman was married to her brother she had half his portion for
her dowry. Plain is it that this second law was made in order to prevent
the bad consequences of the former. That the estate belonging to the
sister's family might not devolve on the brother's, they gave half the
brother's estate to the sister for her dowry.
Seneca[8] speaking of Silanus, who had married his sister, says that the
permission was limited at Athens, but general at Alexandria. In a
monarchical government there was very little concern about any such
thing as a division of estates.
Excellent was that law which, in order to maintain this division of
lands in a democracy, ordained that a father who had several children
should pitch upon one of them to inherit his portion,[9] and leave the
others to be adopted, to the end that the numbers of citizens might
always be kept upon an equality with that of the divisions.
Phaleas of Chalcedon[10] contrived a very extraordinary method of
rendering all fortunes equal, in a republic where there was the greatest
inequality. This was that the rich should give fortunes with their
daughters to the poor, but receive none themselves; and that the poor
should receive money for their daughters, instead of giving them
fortunes. But I do not remember that a regulation of this kind ever took
place in any republic. It lays the citizens under such hard and
oppressive conditions as would make them detest the very equality which
they designed to establish. It is proper sometimes that the laws should
not seem to tend so directly to the end they propose.
Though real equality be the very soul of a democracy, it is so difficult
to establish that an extreme exactness in this respect would not be
always convenient. Sufficient is it to establish a census[11] which
shall reduce or fix the differences to a certain point: it is afterwards
the business of particular laws to level, as it were, the inequalities,
by the duties laid upon the rich, and by the ease afforded to the poor.
It is moderate riches alone that can give or suffer this sort of
compensation; for as to men of overgrown estates, everything which does
not contribute to advance their power and honour is considered by them
as an injury.
All inequality in democracies ought to be derived from the nature of the
government, and even from the principle of equality. For example, it may
be apprehended that people who are obliged to live by their labour would
be too much impoverished by a public employment, or neglect the duties
attending it; that artisans would grow insolent, and that too great a
number of freemen would overpower the ancient citizens. In this case the
equality[12] in a democracy may be suppressed for the good of the state.
But this is only an apparent equality; for a man ruined by a public
employment would be in a worse condition than his fellow-citizens; and
this same man, being obliged to neglect his duty, would reduce the rest
to a worse condition than himself, and so on.
6. In what Manner the Laws ought to maintain Frugality in a Democracy.
It is not sufficient in a well-regulated democracy that the divisions of
land be equal; they ought also to be small, as was customary among the
Romans. "God forbid," said Curius to his soldiers,[13] "that a citizen
should look upon that as a small piece of land which is sufficient to
maintain him."
As equality of fortunes supports frugality, so the latter maintains the
former. These things, though in themselves different, are of such a
nature as to be unable to subsist separately; they reciprocally act upon
each other; if one withdraws itself from a democracy, the other surely
follows it.
True is it that when a democracy is founded on commerce, private people
may acquire vast riches without a corruption of morals.
This is because the spirit of commerce is naturally attended with that
of frugality, economy, moderation, labour, prudence, tranquillity,
order, and rule. So long as this spirit subsists, the riches it produces
have no bad effect. The mischief is, when excessive wealth destroys the
spirit of commerce, then it is that the inconveniences of inequality
begin to be felt.
In order to support this spirit, commerce should be carried on by the
principal citizens; this should be their sole aim and study; this the
chief object of the laws: and these very laws, by dividing the estates
of individuals in proportion to the increase of commerce, should set
every poor citizen so far at his ease as to be able to work like the
rest, and every wealthy citizen in such a mediocrity as to be obliged to
take some pains either in preserving or acquiring a fortune.
It is an excellent law in a trading republic to make an equal division
of the paternal estate among the children. The consequence of this is
that how great soever a fortune the father has made, his children, being
not so rich as he, are induced to avoid luxury, and to work as he has
done. I speak here only of trading republics; as to those that have no
commerce, the legislator must pursue quite different measures.[14]
In Greece there were two sorts of republics: the one military, like
Sparta; the other commercial, as Athens. In the former, the citizens
were obliged to be idle; in the latter, endeavours were used to inspire
them with the love of industry and labour. Solon made idleness a crime,
and insisted that each citizen should give an account of his manner of
getting a livelihood. And, indeed, in a well-regulated democracy, where
people's expenses should extend only to what is necessary, every one
ought to have it; for how should their wants be otherwise supplied?
7. Other Methods of favouring the Principle of Democracy. An equal
division of lands cannot be established in all democracies. There are
some circumstances in which a regulation of this nature would be
impracticable, dangerous, and even subversive of the constitution. We
are not always obliged to proceed to extremes. If it appears that this
division of lands, which was designed to preserve the people's morals,
does not suit the democracy, recourse must be had to other methods.
If a permanent body be established to serve as a rule and pattern of
manners; a senate, to which years, virtue, gravity, and eminent services
procure admittance; the senators, by being exposed to public view like
the statues of the gods, must naturally inspire every family with
sentiments of virtue.
Above all, this senate must steadily adhere to the ancient institutions,
and mind that the people and the magistrates never swerve from them.
The preservation of the ancient customs is a very considerable point in
respect to manners. Since a corrupt people seldom perform any memorable
actions, seldom establish societies, build cities, or enact laws; on the
contrary, since most institutions are derived from people whose manners
are plain and simple, to keep up the ancient customs is the way to
preserve the original purity of morals.
Besides, if by some revolution the state has happened to assume a new
form, this seldom can be effected without infinite pains and labour, and
hardly ever by idle and debauched persons. Even those who had been the
instruments of the revolution were desirous it should be relished, which
is difficult to compass without good laws. Hence it is that ancient
institutions generally tend to reform the people's manners, and those of
modern date to corrupt them. In the course of a long administration, the
descent to vice is insensible; but there is no reascending to virtue
without making the most generous efforts.
It has been questioned whether the members of the senate we are speaking
of ought to be for life or only chosen for a time. Doubtless they ought
to be for life, as was the custom at Rome,[15] at Sparta,[16] and even
at Athens. For we must not confound the senate at Athens, which was a
body that changed every three months, with the Areopagus, whose members,
as standing patterns, were established for life.
Let this be therefore a general maxim; that in a senate designed to be a
rule, and the depository, as it were, of manners, the members ought to
be chosen for life: in a senate intended for the administration of
affairs, the members may be changed.
The spirit, says Aristotle, waxes old as well as the body. This
reflection holds good only in regard to a single magistrate, but cannot
be applied to a senatorial assembly.
At Athens, besides the Areopagus, there were guardians of the public
morals, as well as of the laws.[17] At Sparta, all the old men were
censors. At Rome, the censorship was committed to two particular
magistrates. As the senate watched over the people, the censors were to
have an eye over the people and the senate. Their office was to reform
the corruptions of the republic, to stigmatise indolence, to censure
neglects, and to correct mistakes; as to flagrant crimes, these were
left to the punishment of the laws.
That Roman law which required the accusations in cases of adultery to be
public was admirably well calculated for preserving the purity of
morals; it intimidated married women, as well as those who were to watch
over their conduct.
Nothing contributes more to the preservation of morals than an extreme
subordination of the young to the old. Thus they are both restrained,
the former by their respect for those of advanced age, and the latter by
their regard for themselves.
Nothing gives a greater force to the law than a perfect subordination
between the citizens and the magistrate. "The great difference which
Lycurgus established between Sparta and the other cities," says
Xenophon,[18] "consists chiefly in the obedience the citizens show to
their laws; they run when the magistrate calls them. But at Athens a
rich man would be highly displeased to be thought dependent on the
magistrate."
Paternal authority is likewise of great use towards the preservation of
morals. We have already observed that in a republic there is not so
coercive a force as in other governments. The laws must therefore
endeavour to supply this defect by some means or other; and this is done
by paternal authority.
Fathers at Rome had the power of life and death over their children.[19]
At Sparta, every father had a right to correct another man's child.
Paternal authority ended at Rome together with the republic. In
monarchies, where such a purity of morals is not required, they are
controlled by no other authority than that of the magistrates.
The Roman laws, which accustomed young people to dependence, established
a long minority. Perhaps we are mistaken in conforming to this custom;
there is no necessity for so much constraint in monarchies.
This very subordination in a republic might make it necessary for the
father to continue in the possession of his children's fortune during
life, as was the custom at Rome. But this is not agreeable to the spirit
of monarchy.
8. In what Manner the Laws should relate to the Principle of Government
in an Aristocracy. If the people are virtuous in an aristocracy, they
enjoy very nearly the same happiness as in a popular government, and the
state grows powerful. But as a great share of virtue is very rare where
men's fortunes are so unequal, the laws must tend as much as possible to
infuse a spirit of moderation, and endeavour to re-establish that
equality which was necessarily removed by the constitution.
The spirit of moderation is what we call virtue in an aristocracy; it
supplies the place of the spirit of equality in a popular state.
As the pomp and splendour with which kings are surrounded form a part of
their power, so modesty and simplicity of manners constitute the
strength of an aristocratic nobility.[20] When they affect no
distinction, when they mix with the people, dress like them, and with
them share all their pleasures, the people are apt to forget their
subjection and weakness.
Every government has its nature and principle. An aristocracy must not
therefore assume the nature and principle of monarchy; which would be
the case were the nobles to be invested with personal privileges
distinct from those of their body; privileges ought to be for the
senate, and simple respect for the senators.
In aristocratic governments there are two principal sources of disorder:
excessive inequality between the governors and the governed; and the
same inequality between the different members of the body that governs.
From these two inequalities, hatreds and jealousies arise, which the
laws ought ever to prevent or repress.
The first inequality is chiefly when the privileges of the nobility are
honourable only as they are ignominious to the people. Such was the law
at Rome by which the patricians were forbidden to marry plebeians;[21] a
law that had no other effect than to render the patricians on the one
side more haughty, and on the other more odious. The reader may see what
advantages the tribunes derived thence in their harangues.
This inequality occurs likewise when the condition of the citizens
differs with regard to taxes, which may happen in four different ways:
when the nobles assume the privilege of paying none; when they commit
frauds to exempt themselves;[22] when they engross the public money,
under pretence of rewards or appointments for their respective
employments; in fine, when they render the common people tributary, and
divide among their own body the profits arising from the several
subsidies. This last case is very rare; an aristocracy so instituted
would be the most intolerable of all governments.
While Rome inclined towards aristocracy, she avoided all these
inconveniences. The magistrates never received any emoluments from their
office. The chief men of the republic were taxed like the rest, nay,
more heavily; and sometimes the taxes fell upon them alone. In fine, far
from sharing among themselves the revenues of the state, all they could
draw from the public treasure, and all the wealth that fortune flung
into their laps, they bestowed freely on the people, to be excused from
accepting public honours.[23]
It is a fundamental maxim that largesses are pernicious to the people in
a democracy, but salutary in an aristocratic government. The former make
them forget they are citizens, the latter bring them to a sense of it.
If the revenues of the state are not distributed among the people, they
must be convinced at least of their being well administered: to feast
their eyes with the public treasure is with them the same thing almost
as enjoying it. The golden chain displayed at Venice, the riches
exhibited at Rome in public triumphs, the treasures preserved in the
temple of Saturn, were in reality the wealth of the people.
It is a very essential point in an aristocracy that the nobles
themselves should not levy the taxes. The first order of the state in
Rome never concerned themselves with it; the levying of the taxes was
committed to the second, and even this in process of time was attended
with great inconveniences. In an aristocracy of this kind, where the
nobles levied the taxes, the private people would be all at the
discretion of persons in public employments; and there would be no such
thing as a superior tribunal to check their power. The members appointed
to remove the abuses would rather enjoy them. The nobles would be like
the princes of despotic governments, who confiscate whatever estates
they please.
Soon would the profits hence arising be considered as a patrimony, which
avarice would enlarge at pleasure. The farms would be lowered, and the
public revenues reduced to nothing. This is the reason that some
governments, without having ever received any remarkable shock, have
dwindled away to such a degree as not only their neighbours, but even
their own subjects, have been surprised at it.
The laws should likewise forbid the nobles all kinds of commerce:
merchants of such unbounded credit would monopolise all to themselves.
Commerce is a profession of people who are upon an equality; hence among
despotic states the most miserable are those in which the prince applies
himself to trade.
The laws of Venice debar[24] the nobles from commerce, by which they
might even innocently acquire exorbitant wealth.
The laws ought to employ the most effectual means for making the nobles
do justice to the people. If they have not established a tribune, they
ought to be a tribune themselves.
Every sort of asylum in opposition to the execution of the laws destroys
aristocracy, and is soon succeeded by tyranny. They ought always to
mortify the lust of dominion. There should be either a temporary or
perpetual magistrate to keep the nobles in awe, as the Ephori at Sparta
and the State Inquisitors at Venice -- magistrates subject to no
formalities. This sort of government stands in need of the strongest
springs: thus a mouth of stone[25] is open to every informer at Venice
-- a mouth to which one would be apt to give the appellation of tyranny.
These arbitrary magistrates in an aristocracy bear some analogy to the
censorship in democracies, which of its own nature is equally
independent. And, indeed, the censors ought to be subject to no inquiry
in relation to their conduct during their office; they should meet with
a thorough confidence, and never be discouraged. In this respect the
practice of the Romans deserved admiration; magistrates of all
denominations were accountable for their administration,[26] except the
censors.[27]
There are two very pernicious things in an aristocracy -- excess either
of poverty, or of wealth in the nobility. To prevent their poverty, it
is necessary, above all things, to oblige them to pay their debts in
time. To moderate the excess of wealth, prudent and gradual regulations
should be made; but no confiscations, no agrarian laws, no expunging of
debts; these are productive of infinite mischief.
The laws ought to abolish the right of primogeniture among the
nobles[28] to the end that by a continual division of the inheritances
their fortunes may be always upon a level.
There should be no substitutions, no powers of redemption, no rights of
Majorasgo, or adoption. The contrivances for perpetuating the grandeur
of families in monarchical governments ought never to be employed in
aristocracies.[29]
When the laws have compassed the equality of families, the next thing is
to preserve a proper harmony and union among them. The quarrels of the
nobility ought to be quickly decided; otherwise the contests of
individuals become those of families. Arbiters may terminate, or even
prevent, the rise ot disputes.
In fine, the laws must not favour the distinctions raised by vanity
among families, under pretence that they are more noble or ancient than
others. Pretences of this nature ought to be ranked among the weaknesses
of private persons.
We have only to cast an eye upon Sparta; there we may see how the Ephori
contrived to check the foibles of the kings, as well as those of the
nobility and common people.
9. In what Manner the Laws are in relation to their Principle in
Monarchies. As honour is the principle of a monarchical government, the
laws ought to be in relation to this principle.
They should endeavour to support the nobility, in respect to whom honour
may be, in some measure, deemed both child and parent.
They should render the nobility hereditary, not as a boundary between
the power of the prince and the weakness of the people, but as the link
which connects them both.
In this government, substitutions which preserve the estates of families
undivided are extremely useful, though in others not so proper.
Here the power of redemption is of service, as it restores to noble
families the lands that had been alienated by the prodigality of a
parent.
The land of the nobility ought to have privileges as well as their
persons. The monarch's dignity is inseparable from that of his kingdom;
and-the dignity of the nobleman from that of his fief.
All these privileges must be peculiar to the nobility, and
incommunicable to the people, unless we intend to act contrary to the
principle of government, and to diminish the power of the nobles
together with that of the people.
Substitutions are a restraint to commerce, the power of redemption
produces an infinite number of processes; every estate in land that is
sold throughout the kingdom is in some measure without an owner for the
space of a year. Privileges annexed to fiefs give a power very
burdensome to those governments which tolerate them. These are the
inconveniences of nobility -- inconveniences, however, that vanish when
confronted with its general utility: but when these privileges are
communicated to the people, every principle of government is wantonly
violated.
In monarchies a person may leave the bulk of his estate to one of his
children -- a permission improper in any other government.
The laws ought to favour all kinds of commerce[30] consistent with the
constitution, to the end that the subjects may, without ruining
themselves, be able to satisfy the continual cravings of the prince and
his court.
They should establish some regulation that the manner of collecting the
taxes may not be more burdensome than the taxes themselves.
The weight of duties produces labour, labour weariness, and weariness
the spirit of indolence.
10. Of the Expedition peculiar to the Executive Power in Monarchies.
Great is the advantage which a monarchical government has over a
republic: as the state is conducted by a single person, the executive
power is thereby enabled to act with greater expedition. But as this
expedition may degenerate into rapidity, the laws should use some
contrivance to slacken it. They ought not only to favour the nature of
each constitution, but likewise to remedy the abuses that might result
from this very nature.
Cardinal Richelieu[31] advises monarchs to permit no such things as
societies or communities that raise difficulties upon every trifle. If
this man's heart had not been bewitched with the love of despotic power,
still these arbitrary notions would have filled his head.
The bodies entrusted with the deposition of the laws are never more
obedient than when they proceed slowly, and use that reflection in the
prince's affairs which can scarcely be expected from the ignorance of a
court, or from the precipitation of its councils.[32]
What would have become of the finest monarchy in the world if the
magistrates, by their delays, their complaints, and entreaties, had not
checked the rapidity even of their princes' virtues, when these
monarchs, consulting only the generous impulse of their minds, would
fain have given a boundless reward to services performed with an
unlimited courage and fidelity?
11. Of the Excellence of a Monarchical Government. Monarchy has a great
advantage over a despotic government. As it naturally requires there
should be several orders or ranks of subjects, the state is more
permanent, the constitution more steady, and the person of him who
governs more secure.
Cicero is of opinion that the establishing of the tribunes preserved the
republic. "And indeed," says he, "the violence of a headless people is
more terrible. A chief or head is sensible that the affair depends upon
himself, and therefore he thinks; but the people in their impetuosity
are ignorant of the danger into which they hurry themselves." This
reflection may be applied to a despotic government, which is a people
without tribunes; and to a monarchy, where the people have some sort of
tribunes.
Accordingly it is observable that in the commotions of a despotic
government, the people, hurried away by their passions, are apt to push
things as far as they can go. The disorders they commit are all extreme;
whereas in monarchies matters are seldom carried to excess. The chiefs
are apprehensive on their own account; they are afraid of being
abandoned, and the intermediate dependent powers do not choose that the
populace should have too much the upper hand. It rarely happens that the
states of the kingdom are entirely corrupted: the prince adheres to
these; and the seditious, who have neither will nor hopes to subvert the
government, have neither power nor will to dethrone the prince.
In these circumstances men of prudence and authority interfere; moderate
measures are first proposed, then complied with, and things at length
are redressed; the laws resume their vigour, and command submission.
Thus all our histories are full of civil wars without revolutions, while
the histories of despotic governments abound with revolutions without
civil wars.
The writers of the history of the civil wars of some countries, even
those who fomented them, sufficiently demonstrate the little foundation
princes have to suspect the authority with which they invest particular
bodies of men; since, even under the unhappy circumstance of their
errors, they sighed only after the laws and their duty; and restrained,
more than they were capable of inflaming, the impetuosity of the
revolted.[33] Cardinal Richelieu, reflecting perhaps that he had too
much reduced the states of the kingdom, has recourse to the virtues of
the prince and of his ministers for the support[34] of government: but
he requires so many things, that indeed there is none but an angel
capable of such attention, such resolution and knowledge; and scarcely
can we flatter ourselves that we shall ever see such a prince and
ministers while monarchy subsists.
As people who live under a good government are happier than those who
without rule or leaders wander about the forests, so monarchs who live
under the fundamental laws of their country are far happier than
despotic princes who have nothing to regulate, neither their own
passions nor those of their subjects.
12. The same Subject continued. Let us not look for magnanimity in
despotic governments; the prince cannot impart a greatness which he has
not himself; with him there is no such thing as glory.
It is in monarchies that we behold the subjects encircling the throne,
and cheered by the irradiancy of the sovereign; there it is that each
person filling, as it were, a larger space, is capable of exercising
those virtues which adorn the soul, not with independence, but with true
dignity and greatness.
13. An Idea of Despotic Power. When the savages of Louisiana are
desirous of fruit, they cut the tree to the root, and gather the
fruit.[35] This is an emblem of despotic government.
14. In what Manner the Laws are in relation to the Principles of
Despotic Government. The principle of despotic government is fear; but a
timid, ignorant, and faint-spirited people have no occasion for a great
number of laws.
Everything ought to depend here on two or three ideas; hence there is no
necessity that any new notions should be added. When we want to break a
horse, we take care not to let him change his master, his lesson, or his
pace. Thus an impression is made on his brain by two or three motions,
and no more.
If a prince is shut up in a seraglio, he cannot leave his voluptuous
abode without alarming those who keep him confined. Thev will not bear
that his person and power should pass into other hands. He seldom
therefore wages war in person, and hardly ventures to entrust the
command to his generals.
A prince of this stamp, unaccustomed to resistance in his palace, is
enraged to see his will opposed by armed force; hence he is generally
governed by wrath or vengeance. Besides, he can have no notion of true
glory. War therefore is carried on under such a government in its full
natural fury, and less extent is given to the law of nations than in
other states.
Such a prince has so many imperfections that they are afraid to expose
his natural stupidity to public view. He is concealed in his palace, and
the people are ignorant of his situation. It is lucky for him that the
inhabitants of those countries need only the name of a prince to govern
them.
When Charles XII was at Bender, he met with some opposition from the
senate of Sweden; upon which he wrote word home that he would send one
of his boots to command them. This boot would have governed like a
despotic prince.
If the prince is a prisoner, he is supposed to be dead, and another
mounts the throne. The treaties made by the prisoner are void, his
successor will not ratify them; and indeed, as he is the law, the state,
and the prince: when he is no longer a prince, he is nothing: were he
not therefore deemed to be deceased, the state would be subverted.
One thing which chiefly determined the Turks to conclude a separate
peace with Peter I was the Muscovites telling the Vizir that in Sweden
another prince had been placed upon the throne.[36]
The preservation of the state is only the preservation of the prince, or
rather of the palace where he is confined. Whatever does not directly
menace this palace or the capital makes no impression on ignorant,
proud, and prejudiced minds; and as for the concatenation of events,
they are unable to trace, to foresee, or even to conceive it. Politics,
with its several springs and laws, must here be very much limited; the
political government is as simple as the civil.[37]
The whole is reduced to reconciling the political and civil
administration to the domestic government, the officers of state to
those of the seraglio.
Such a state is happiest when it can look upon itself as the only one in
the world, when it is environed with deserts, and separated from those
people whom they call Barbarians. Since it cannot depend on the militia,
it is proper it should destroy a part of itself.
As fear is the principle of despotic government, its end is
tranquillity; but this tranquillity cannot be called a peace: no, it is
only the silence of those towns which the enemy is ready to invade.
Since strength does not lie in the state, but in the army that founded
it, in order to defend the state the army must be preserved, how
formidable soever to the prince. How, then, can we reconcile the
security of the government to that of the prince's person?
Observe how industriously the Russian government endeavours to temper
its arbitrary power, which it finds more burdensome than the people
themselves. They have broken their numerous guards, mitigated criminal
punishments, erected tribunals, entered into a knowledge of the laws,
and instructed the people. But there are particular causes that will
probably once more involve them in the very misery which they now
endeavour to avoid.
In those states religion has more influence than anywhere else; it is
fear added to fear. In Mahomedan countries, it is partly from their
religion that the people derive the surprising veneration they have for
their prince.
It is religion that amends in some measure the Turkish constitution. The
subjects, who have no attachment of honour to the glory and grandeur of
the state, are connected with it by the force and principle of religion.
Of all despotic governments there is none that labours more under its
own weight than that wherein the prince declares himself proprietor of
all the lands, and heir to all his subjects. Hence the neglect of
agriculture arises; and if the prince intermeddles likewise in trade,
all manner of industry is ruined.
Under this sort of government, nothing is repaired or improved.[38]
Houses are built only for the necessity of habitation; there is no
digging of ditches or planting of trees; everything is drawn from, but
nothing restored to, the earth; the ground lies untilled, and the whole
country becomes a desert.
Is it to be imagined that the laws which abolish the property of land
and the succession of estates will diminish the avarice and cupidity of
the great? By no means. They will rather stimulate this cupidity and
avarice. The great men will be prompted to use a thousand oppressive
methods, imagining they have no other property than the gold and silver
which they are able to seize upon by violence, or to conceal.
To prevent, therefore, the utter ruin of the state, the avidity of the
prince ought to be moderated by some established custom. Thus, in
Turkey, the sovereign is satisfied with the right of three per cent on
the value of inheritances.[39] But as he gives the greatest part of the
lands to his soldiery, and disposes of them as he pleases; as he seizes
on all the inheritances of the officers of the empire at their decease;
as he has the property of the possessions of those who die without
issue, and the daughters have only the usufruct; it thence follows that
the greatest part of the estates of the country are held in a precarious
manner.
By the laws of Bantam,[40] the king seizes on the whole inheritance,
even wife, children, and habitation. In order to elude the cruelest part
of this law, they are obliged to marry their children at eight, nine, or
ten years of age, and sometimes younger, to the end that they may not be
a wretched part of the father's succession.
In countries where there are no fundamental laws, the succession to the
empire cannot be fixed. The crown is then elective, and the right of
electing is in the prince, who names a successor either of his own or of
some other family. In vain would it be to establish here the succession
of the eldest son; the prince might always choose another. The successor
is declared by the prince himself, or by a civil war. Hence a despotic
state is, upon another account, more liable than a monarchical
government to dissolution.
As every prince of the royal family is held equally capable of being
chosen, hence it follows that the prince who ascends the throne
immediately strangles his brothers, as in Turkey; or puts out their
eyes, as in Persia; or bereaves them of their understanding, as in the
Mogul's country; or if these precautions are not used, as in Morocco,
the vacancy of the throne is always attended with the horrors of a civil
war.
By the constitution of Russia[41] the Czar may choose whom he has a mind
for his successor, whether of his own or of a strange family. Such a
settlement produces a thousand revolutions, and renders the throne as
tottering as the succession is arbitrary. The right of succession being
one of those things which are of most importance to the people to know,
the best is that which most sensibly strikes them. Such as a certain
order of birth. A settlement of this kind puts a stop to intrigues, and
stifles ambition; the mind of a weak prince is no longer enslaved, nor
is he made to speak his will as he is just expiring.
When the succession is established by a fundamental law, only one prince
is the successor, and his brothers have neither a real nor apparent
right to dispute the crown with him. They can neither pretend to nor
take any advantage of the will of a father. There is then no more
occasion to confine or kill the king's brother than any other subject.
But in despotic governments, where the prince's brothers are equally his
slaves and his rivals, prudence requires that their persons be secured;
especially in Mahomedan countries, where religion considers victory or
success as a divine decision in their favour; so that they have no such
thing as a monarch de jure, but only de facto.
There is a far greater incentive to ambition in countries where the
princes of the blood are sensible that if they do not ascend the throne
they must be either imprisoned or put to death, than among us, where
they are placed in such a station as may satisfy, if not their ambition,
at least their moderate desires.
The princes of despotic governments have ever perverted the use of
marriage. They generally take a great many wives, especially in that
part of the world where absolute power is in some measure naturalised,
namely, Asia. Hence they come to have such a multitude of children that
they can hardly have any great affection for them, nor the children for
one another.
The reigning family resembles the state; it is too weak itself, and its
head too powerful; it seems very numerous and extensive, and yet is
suddenly extinct. Artaxerxes[42] put all his children to death for
conspiring against him.
It is not at all probable that fifty children would conspire against
their father, and much less that this conspiracy would be owing to his
having refused to resign his concubine to his eldest son. It is more
natural to believe that the whole was an intrigue of those oriental
seraglios, where fraud, treachery, and deceit reign in silence and
darkness; and where an old prince, grown every day more infirm, is the
first prisoner of the palace.
After what has been said, one would imagine that human nature should
perpetually rise up against despotism. But notwithstanding the love of
liberty, so natural to mankind, notwithstanding their innate detestation
of force and violence, most nations are subject to this very government.
This is easily accounted for. To form a moderate government, it is
necessary to combine the several powers; to regulate, temper, and set
them in motion; to give, as it were, ballast to one, in order to enable
it to counterpoise the other. This is a masterpiece of legislation;
rarely produced by hazard, and seldom attained by prudence. On the
contrary, a despotic government offers itself, as it were, at first
sight; it is uniform throughout; and as passions only are requisite to
establish it, this is what every capacity may reach.
15. The same Subject continued. In warm climates, where despotic power
generally prevails, the passions disclose themselves earlier, and are
sooner extinguished;[43] the understanding is sooner ripened; they are
less in danger of squandering their fortunes; there is less facility of
distinguishing themselves in the world; less communication between young
people, who are confined at home; they marry much earlier, and
consequently may be sooner of age than in our European climates. In
Turkey they are of age at fifteen.[44]
They have no such thing as a cession of goods; in a government where
there is no fixed property, people depend rather on the person than on
his estate.
The cession of goods is naturally admitted in moderate governments,[45]
but especially in republics, because of the greater confidence usually
placed in the probity of the citizens, and the lenity and moderation
arising from a form of government which every subject seems to nave
preferred to all others.
Had the legislators of the Roman republic established the cession of
goods,[46] they never would have been exposed to so many seditions and
civil discords; neither would they have experienced the danger of the
evils, nor the inconvenience of the remedies.
Poverty and the precariousness of property in a despotic state render
usury natural, each person raising the value of his money in proportion
to the danger he sees in lending it. Misery therefore pours from all
parts into those unhappy countries; they are bereft of everything, even
of the resource of borrowing.
Hence it is that a merchant under this government is unable to carry on
an extensive commerce; he lives from hand to mouth; and were he to
encumber himself with a large quantity of merchandise, he would lose
more by the exorbitant interest he must give for money than he could
possibly get by the goods. Hence they have no laws here relating to
commerce; they are all reduced to what is called the bare police.
A government cannot be unjust without having hands to exercise its
injustice. Now, it is impossible but that these hands will be grasping
for themselves. The embezzling of the public money is therefore natural
in despotic states.
As this is a common crime under such a government, confiscations are
very useful. By these the people are eased; the money drawn by this
method being a considerable tribute which could hardly be raised on the
exhausted subject: neither is there in those countries any one family
which the prince would be glad to preserve.
In moderate governments it is quite a different thing. Confiscations
would render property uncertain, would strip innocent children, would
destroy a whole family, instead of punishing a single criminal. In
republics they would be attended with the mischief of subverting
equality, which is the very soul of this government, by depriving a
citizen of his necessary subsistence.[47]
There is a Roman law[48] against confiscations, except in the case of
crimen majestatis, or high treason of the most heinous nature. It would
be a prudent thing to follow the spirit of this law, and to limit
confiscations to particular crimes. In countries where a local custom
has rendered real estates alienable, Bodin very justly observes that
confiscations should extend only to such as are purchased or
acquired.[49]
16. Of the Communication of Power. In a despotic government the power is
communicated entire to the person entrusted with it. The vizir himself
is the despotic prince; and each particular officer is the vizir. In
monarchies the power is less immediately applied, being tempered by the
monarch as he gives it.[50] He makes such a distribution of his
authority as never to communicate a part of it without reserving a
greater share to himself.
Hence in monarchies the governors of towns are not so dependent on the
governor of the province as not to be still more so on the prince; and
the private officers or military bodies are not so far subject to their
general as not to owe still a greater subjection to their sovereign.
In most monarchies it has been wisely regulated that those who have an
extensive command should not belong to any military corps; so that as
they have no authority but through the prince's pleasure, and as they
may be employed or not, they are in some measure in the service, and in
some measure out of it.
This is incompatible with a despotic government. For if those who are
not actually employed were still invested with privileges and titles,
the consequence must be that there would be men in the state who might
be said to be great of themselves; a thing directly opposite to the
nature of this government.
Were the governor of a town independent of the pasha, expedients would
be daily necessary to make them agree; which is highly absurd in a
despotic state. Besides, if a particular governor should refuse to obey,
how could the other answer for his province with his head?
In this kind of government, authority must ever be wavering; nor is that
of the lowest magistrate more steady than that of the despotic prince.
Under moderate governments, the law is prudent in all its parts, and
perfectly well known, so that even the pettiest magistrates are capable
of following it. But in a despotic state, where the prince's will is the
law, though the prince were wise, yet how could the magistrate follow a
will he does not know? He must certainly follow his own.
Again, as the law is only the prince's will, and as the prince can only
will what he knows, the consequence is that there are an infinite number
of people who must will for him, and make their wills keep pace with
his. In fine, as the law is the momentary will of the prince, it is
necessary that those who will for him should follow his sudden manner of
willing.
17. Of Presents. It is a received custom in despotic countries never to
address any superior whomsoever, not excepting their kings, without
making them a present. The Mogul[51] never receives the petitions of his
subjects if they come with empty hands. These princes spoil even their
own favours.
But thus it must ever be in a government where no man is a citizen;
where they have all a notion that a superior is under no obligation to
an inferior; where men imagine themselves bound by no other tie than the
chastisements inflicted by one party upon another; where, in fine, there
is very little to do, and where the people have seldom an occasion of
presenting themselves before the great, of offering their petitions, and
much less their complaints.
In a republic, presents are odious, because virtue stands in no need of
them. In monarchies, honour is a much stronger incentive than presents.
But in a despotic government, where there is neither honour nor virtue,
people cannot be determined to act but through hope of the conveniences
of life.
It is in conformity with republican ideas that Plato[52] ordered those
who received presents for doing their duty to be punished with death.
"They must not take presents," says he, "neither for good nor for evil
actions."
A very bad law was that among the Romans[53] which gave the magistrates
leave to accept small presents[[54] provided they did not exceed one
hundred crowns in the whole year. They who receive nothing expect
nothing; they who receive a little soon covet more, till at length their
desires swell to an exorbitant height.
Besides, it is much easier to convict a man who knows himself obliged to
accept no present at all, and yet will accept something, than a person
who takes more when he ought to take less, and who always finds
pretexts, excuses, and plausible reasons in justification of his
conduct.
18. Of Rewards conferred by the Sovereign. In despotic governments,
where, as we have already observed, the principal motive of action is
the hope of the conveniences of life, the prince who confers rewards has
nothing to bestow but money. In monarchies, where honour alone
predominates, the prince's rewards would consist only of marks of
distinction, if the distinctions established by honour were not attended
with luxury, which necessarily brings on its wants: the prince therefore
is obliged to confer such honours as lead to wealth. But in a republic
where virtue reigns -- a motive self-sufficient, and which excludes all
others -- the recompenses of the state consist only of public
attestations of this virtue.
It is a general rule that great rewards in monarchies and republics are
a sign of their decline; because they are a proof of their principles
being corrupted, and that the idea of honour has no longer the same
force in a monarchy, nor the title of citizen the same weight in a
republic.
The very worst Roman emperors were those who were most profuse in their
largesses; for example, Caligula, Claudius, Nero, Otho, Vitellius,
Commodus, Heliogabalus, and Caracalla. The best, as Augustus, Vespasian,
Antoninus Pius, Marcus Aurelius, and Pertinax, were economists. Under
good emperors the state resumed its principles; all other treasures were
supplied by that of honour.
19. New Consequences of the Principles of the three Governments. I
cannot conclude this book without making some applications of my three
principles.
1st Question.] It is a question whether the laws ought to oblige a
subject to accept a public employment. My opinion is that they ought in
a republic, but not in a monarchical government. In the former, public
employments are attestations of virtue, depositions with which a citizen
is entrusted by his country, for whose sake alone he ought to live, to
act, and to think, consequently lie cannot refuse them.[55] In the
latter, public offices are testimonials of honour; now such is the
capriciousness of honour that it chooses to accept none of these
testimonies but when and in what manner it pleases.
The late King of Sardinia[56] inflicted punishments on his subjects who
refused the dignities and public offices of the state. In this he
unknowingly followed republican ideas: but his method of governing in
other respects sufficiently proves that this was not his intention.
2nd Question.] Secondly, it is questioned whether a subject should be
obliged to accept a post in the army inferior to that which he held
before. Among the Romans it was usual to see a captain serve the next
year under his lieutenant.[57] This is because virtue in republics
requires a continual sacrifice of our persons and of our repugnances for
the good of the state. But in monarchies, honour, true or false, will
never bear with what it calls degrading itself.
In despotic governments, where honour, posts, and ranks are equally
abused, they indiscriminately make a prince a scullion, and a scullion a
prince.
3rd Question.] Thirdly, it may be inquired, whether civil and military
employments should be conferred on the same person. In republics I think
they should be joined, but in monarchies separated. In the former it
would be extremely dangerous to make the profession of arms a particular
state, distinct from that of civil functions; and in the latter, no less
dangerous would it be to confer these two employments on the same
person.
In republics a person takes up arms only with a view to defend his
country and its laws; it is because he is a citizen he makes himself for
a while a soldier. Were these two distinct states, the person who under
arms thinks himself a citizen would soon be made sensible he is only a
soldier.
In monarchies, they whose condition engages them in the profession of
arms have nothing but glory, or at least honour or fortune, in view. To
men, therefore, like these, the prince should never give any civil
employments; on the contrary, they ought to be checked by the civil
magistrate, that the same persons may not have at the same time the
confidence of the people and the power to abuse it.[58]
We have only to cast an eye on a nation that may be justly called a
republic, disguised under the form of monarchy, and we shall see how
jealous they are of making a separate order of the profession of arms,
and how the military state is constantly allied with that of the
citizen, and even sometimes of the magistrate, to the end that these
qualities may be a pledge for their country, which should never be
forgotten.
The division of civil and military employments, made by the Romans after
the extinction of the republic, was not an arbitrary thing. It was a
consequence of the change which happened in the constitution of Rome; it
was natural to a monarchical government; and what was only commenced
under Augustus[59] succeeding emperors[60] were obliged to finish, in
order to temper the military government.
Procopius, therefore, the competitor of Valens the emperor, was very
much to blame when, conferring the pro-consular dignity[61] upon
Hormisdas, a prince of the blood royal of Persia, he restored to this
magistracy the military command of which it had been formerly possessed;
unless indeed he had very particular reasons for so doing. A person that
aspires to the sovereignty concerns himself less about what is
serviceable to the state than what is likely to promote his own
interest.
4th Question.] Fourthly, it is a question whether public employments
should be sold. They ought not, I think, in despotic governments, where
the subjects must be instantaneously placed or displaced by the prince.
But in monarchies this custom is not at all improper, by reason it is an
inducement to engage in that as a family employment which would not be
undertaken through a motive of virtue; it fixes likewise every one in
his duty, and renders the several orders of the kingdom more permanent.
Suidas very justly observes that Anastasius had changed the empire into
a kind of aristocracy, by selling all public employments.
Plato[62] cannot bear with this prostitution: "This is exactly," says
he, "as if a person were to be made a mariner or pilot of a ship for his
money. Is it possible that this rule should be bad in every other
employment of life, and hold good only in the administration of a
republic?" But Plato speaks of a republic founded on virtue, and we of a
monarchy. Now, in monarchies (where, though there were no such thing as
a regular sale of public offices, still the indigence and avidity of the
courtier would equally prompt him to expose them to sale) chance will
furnish better subjects than the prince's choice. In short, the method
of attaining to honours through riches inspires and cherishes
industry,[63] a thing extremely wanting in this kind of government.
5th Question.] The fifth question is in what kind of government censors
are necessary. My answer is, that they are necessary in a republic,
where the principle of government is virtue. We must not imagine that
criminal actions only are destructive of virtue; it is destroyed also by
omissions, by neglects, by a certain coolness in the love of our
country, by bad examples, and by the seeds of corruption: whatever does
not openly violate but elude the laws, does not subvert but weaken them,
ought to fall under the inquiry and correction of the censors.
We are surprised at the punishment of the Areopagite for killing a
sparrow which, to escape the pursuit of a hawk, had taken shelter in his
bosom. Surprised we are also that an Areopagite should put his son to
death for putting out the eyes of a little bird. But let us reflect that
the question here does not relate to a criminal sentence, but to a
judgment concerning manners in a republic founded on manners.
In monarchies there should be no censors; the former are founded on
honour, and the nature of honour is to have the whole world for its
censor. Every man who fails in this article is subject to the reproaches
even of those who are void of honour.
Here the censors would be spoiled by the very people whom they ought to
correct: they could not prevail against the corruption of a monarchy;
the corruption rather would be too strong against them.
Hence it is obvious that there ought to be no censors in despotic
governments. The example of China seems to derogate from this rule; but
we shall see, in the course of this work, the particular reasons of that
institution.
______
1. Plutarch, Solon.
2. Ibid.
3. Philolaus of Corinth made a law at Athens that the number of the
portions of land and that of inheritances should be always the same. --
Aristotle, Politics, ii. 7, 12.
4. Laws, xi.
5. Cornelius Nepos, preface. This custom began in the earliest times.
Thus Abraham says of Sarah, "She is my sister, my father's daughter, but
not my mother's." The same reasons occasioned the establishing the same
law among different nations.
6. De specialibus legibus quæ pertinent ad præceptar Decalogi.
7. Book x.
8. Athenis dimidium licet, Alexandriæ totum. -- Seneca, De Morte
Claudii.
9. Plato has a law of this kind. Laws, v.
10. Aristotle. ii. 7.
11. Solon made four classes: the first, of those who had an income of
500 minas either in corn or liquid fruits; the second, of those who had
300, and were able to keep a horse; the third, of such as had only 200;
the fourth, of all those who lived by their manual labour. -- Plutarch,
Solon.
12. Solon excludes from public employments all those of the fourth
class.
13. They insisted upon a larger division of the conquered lands. --
Plutarch, Lives of the ancient Kings and Commanders.
14. In these, the portions or fortunes of women ought to be very much
limited.
15. The magistrates there were annual, and the senators for life.
16. Lycurgus, says Xenophon, De Repub. Lacedæm., 10. § 1, 2, ordained
that the senators should be chosen from amongst the old men, to the end
that they might not be neglected in the decline of life; thus by making
them judges of the courage of young people, he rendered the old age of
the former more honourable than the strength and vigour of the latter.
17. Even the Areopagus itself was subject to their censure.
18. De Repub. Lacedæm., 8.
19. We may see in the Roman History how useful this power was to the
republic. I shall give an instance even in the time of its greatest
corruption. Aulus Fulvius was set out on his journey in order to join
Catiline; his father called him back, and put him to death. -- Sallust,
De Bello Catil., xxxiv.
20. In our days the Venetians, who in many respects may be said to have
a very wise government, decided a dispute between a noble Venetian and a
gentleman of Terra Firma in respect to precedency in a church, by
declaring that out of Venice a noble Venetian had no pre-eminence over
any other citizen.
21. It was inserted by the decemvirs in the two last tables. See
Dionysius Helicarnassus, x.
22. As in some aristocracies in our time; nothing is more prejudicial to
the government.
23. See in Strabo, xiv., in what manner the Rhodians behaved in this
respect.
24. Amelot de la Houssaye, Of the Government of Venice, part III. The
Claudian law forbade the senators to have any ship at sea that held
above forty bushels. -- Livy, xxi. 63.
25. The informers throw their scrolls into it.
26. See Livy, xlix. A censor could not be troubled even by a censor;
each made his remark without taking the opinion of his colleague; and
when it otherwise happened, the censorship was in a manner abolished.
27. At Athens the Logistæ, who made all the magistrates accountable for
their conduct, gave no account themselves.
28. It is so practised at Venice. -- Amelot de la Houssaye, pp. 30, 31.
29. The main design of some aristocracies seems to be less the support
of the state than of their nobility.
30. It is tolerated only in the common people. See Leg. 3, Cod. de comm.
et mercatoribus, which is full of good sense.
31. Testament polit.
32. Barbaris cunctatio servilis, statim exequi regium videtur. --
Tacitus, Annals., v. 32.
33. Memoirs of Cardinal de Retz, and other histories.
34. Testament polit.
35. Edifying Letters, coll. ii, p. 315.
36. Continuation of Pufendorf, Introduction to the History of Europe, in
the article on Sweden, 10.
37. According to Sir John Chardin, there is no council of state in
Persia.
38. See Ricaut, State of the Ottoman Empire, p. 196.
39. See concerning the inheritances of the Turks, Ancient and Modern
Sparta. See also Ricaut on the Ottoman empire.
40. Collection of Voyages that Contributed to the Establishment of the
East India Company, i. The law of Pegu is less cruel; if there happen to
be children, the king succeeds only to two-thirds. Ibid., iii, p. 1.
41. See the different constitutions, especially that of 1722.
42. See Justin.
43. See the book of laws as relative to the nature of the climate. Book
xiv, below.
44. Laquilletiere, Ancient and Modern Sparta, p. 463.
45. The same may be said of compositions in regard to fair bankrupts.
46. There was no such establishment made till the Julian law, De
Cessione bonorum; which preserved them from prison and from an
ignominious division of their goods. -- Cod., ii. tit. 12.
47. They seem to have been too fond of confiscations in the republic of
Athens.
48. Authentica bona damnatorum. -- Cod. de bon. proscript. seu damn.
49. De la Republique, v. 3.
50. Ut esse Phoebi dulcius lumen solet Jamjam cadentis -- Seneca, Troas,
V. i. 1.
51. Collection of Voyages that Contributed to the Establishment of the
East India Company, i, p. 80.
52. Laws, xii.
53. Leg. 6, § 2; Dig. ad leg. Jul. repet.
54. Munuscula.
55. Plato, in his Republic, viii, ranks these refusals among the marks
of the corruption of a republic. In his Laws, vi, he orders them to be
punished by a fine; at Venice they are punished with banishment.
56. Victor Amadeus.
57. Some centurions having appealed to the people for the employments
which they had before enjoyed, "It is just, my comrades," said a
centurion, "that you should look upon every post as honourable in which
you have an opportunity of defending the republic." -- Livy, dec. 5,
xlii, 34.
58. Ne imperium ad optimos nobilium transferretur, Senatum militia
vetuit Gallienus, etiam adire exercitum. -- Aurelius Victor, De
Cæsaribus.
59. Augustus deprived the senators, proconsuls, and governors of the
privilege of wearing arms. -- Dio, xxxiii.
60. Constantine. See Zozimus, ii.
61. Ammianus Marcellinus, xxvi, Et Civilia, more veterum, et bella
recturo.
62. Republic, viii.
63. We see the laziness of Spain, where all public employments are given
away.
------------------------------------------------------------------------
Book VI. Consequences of the Principles of Different Governments with
Respect to the Simplicity of Civil and Criminal Laws, the Form of
Judgments, and the Inflicting of Punishments
1. Of the Simplicity of Civil Laws in different Governments. Monarchies
do not permit of so great a simplicity of laws as despotic governments.
For in monarchies there must be courts of judicature; these must give
their decisions; the decisions must be preserved and learned, that we
may judge in the same manner to-day as yesterday, and that the lives and
property of the citizens may be as certain and fixed as the very
constitution of the state.
In monarchies, the administration of justice, which decides not only in
whatever belongs to life and property, but likewise to honour, demands
very scrupulous inquiries. The delicacy of the judge increases in
proportion to the increase of his trust, and of the importance of the
interests on which he determines.
We must not, therefore, be surprised to find so many rules,
restrictions, and extensions in the laws of those countries -- rules
that multiply the particular cases, and seem to make of reason itself an
art.
The difference of rank, birth, and condition established in monarchical
governments is frequently attended with distinctions in the nature of
property; and the laws relating to the constitution of this government
may augment the number of these distinctions. Hence, among us goods are
divided into real estates, purchases, dowries, paraphernalia, paternal
and maternal inheritances; movables of different kinds; estates held in
fee-simple, or in tail; acquired by descent or conveyance; allodial, or
held by soccage; ground rents; or annuities. Each sort of goods is
subject to particular rules, which must be complied with in the disposal
of them. These things must needs diminish the simplicity of the laws.
In our governments the fiefs have become hereditary. It was necessary
that the nobility should have a fixed property, that is, the fief should
have a certain consistency, to the end that the proprietor might be
always in a capacity of serving the prince. This must have been
productive of great varieties; for instance, there are countries where
fiefs could not be divided among the brothers; in others, the younger
brothers may be allowed a more generous subsistence.
The monarch who knows each of his provinces may establish different
laws, or tolerate different customs. But as the despotic prince knows
nothing, and can attend to nothing, he must take general measures, and
govern by a rigid and inflexible will, which throughout his whole
dominions produces the same effect; in short, everything bends under his
feet.
In proportion as the decisions of the courts of judicature are
multiplied in monarchies, the law is loaded with decrees that sometimes
contradict one another; either because succeeding judges are of a
different way of thinking, or because the same causes are sometimes
well, and at other times ill, defended; or, in fine, by reason of an
infinite number of abuses, to which all human regulations are liable.
This is a necessary evil, which the legislator redresses from time to
time, as contrary even to the spirit of moderate governments. For when
people are obliged to have recourse to courts of judicature, this should
come from the nature of the constitution, and not from the contradiction
or uncertainty of the law.
In governments where there are necessary distinctions of persons, there
must likewise be privileges. This also diminishes the simplicity, and
creates a thousand exceptions.
One of the privileges least burdensome to society, and especially to him
who confers it, is that of pleading in one court in preference to
another. Here new difficulties arise, when it becomes a question before
which court we shall plead.
Far different is the case of the people under despotic governments. In
those countries I can see nothing that the legislator is able to decree,
or the magistrate to judge. As the lands belong to the prince, it
follows that there are scarcely any civil laws in regard to landed
property. From the right the sovereign has to successions, it follows,
likewise, that there are none relating to inheritances. The monopolies
established by the prince for himself in some countries render all sorts
of commercial laws quite useless. The marriages which they usually
contract with female slaves are the cause that there are scarcely any
civil laws relating to dowries, or to the particular advantage of
married women. From the prodigious multitude of slaves, it follows,
likewise, that there are very few who have any such thing as a will of
their own, and of course are answerable for their conduct before a
judge. Most moral actions that are only in consequence of a father's, a
husband's, or a master's will, are regulated by them, and not by the
magistrates.
I forgot to observe that as what we call honour is a thing hardly known
in those countries, the several difficulties relating to this article,
though of such importance with us, are with them quite out of the
question. Despotic power is self-sufficient; round it there is an
absolute vacuum. Hence it is that when travellers favour us with the
description of countries where arbitrary sway prevails, they seldom make
mention of civil laws.[1]
All occasions, therefore, of wrangling and law-suits are here removed.
And to this in part is it owing that litigious people in those countries
are so roughly handled. As the injustice of their demand is neither
screened, palliated, nor protected by an infinite number of laws, of
course it is immediately discovered.
2. Of the Simplicity of Criminal Laws in different Governments. We hear
it generally said, that justice ought to be administered with us as in
Turkey. Is it possible, then, that the most ignorant of all nations
should be the most clear-sighted on a point which it most behoves
mankind to know?
If we examine the set forms of justice with respect to the trouble the
subject undergoes in recovering his property, or in obtaining
satisfaction for an injury or affront, we shall find them doubtless too
numerous: but if we consider them in the relation they bear to the
liberty and security of every individual, we shall often find them too
few; and be convinced that the trouble, expense, delays, and even the
very dangers of our judiciary proceedings, are the price that each
subject pays for his liberty.
In Turkey, where little regard is shown to the honour, life, or estate
of the subject, all causes are speedily decided. The method of
determining them is a matter of indifference, provided they be
determined. The pasha, after a quick hearing, orders which party he
pleases to be bastinadoed, and then sends them about their business.
Here it would be dangerous to be of a litigious disposition; this
supposes a strong desire of obtaining justice, a settled aversion, an
active mind, and a steadiness in pursuing one's point. All this should
be avoided in a government where fear ought to be the only prevailing
sentiment, and in which popular disturbances are frequently attended
with sudden and unforeseen revolutions. Here every man ought to know
that the magistrate must not hear his name mentioned, and that his
security depends entirely on his being reduced to a kind of
annihilation.
But in moderate governments, where the life of the meanest subject is
deemed precious, no man is stripped of his honour or property until
after a long inquiry; and no man is bereft of life till his very country
has attacked him -- an attack that is never made without leaving him all
possible means of making his defence.
Hence it is that when a person renders himself absolute,[2] he
immediately thinks of reducing the number of laws. In a government thus
constituted they are more affected with particular inconveniences than
with the liberty of the subject, which is very little minded.
In republics, it is plain that as many formalities at least are
necessary as in monarchies. In both governments they increase in
proportion to the value which is set on the honour, fortune, liberty,
and life of the subject.
In republican governments, men are all equal; equal they are also in
despotic governments: in the former, because they are everything; in the
latter, because they are nothing.
3. In what Governments and in what Cases the Judges ought to determine
according to the express Letter of the Law. The nearer a government
approaches towards a republic, the more the manner of judging becomes
settled and fixed; hence it was a fault in the republic of Sparta for
the Ephori to pass such arbitrary judgments without having any laws to
direct them. The first consuls at Rome pronounced sentence in the same
manner as the Ephori; but the inconvenience 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 is concerned.
At Rome the judges had no more to do than to declare that the persons
accused were 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
cognisance 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.
4. Of the Manner of passing Judgment. Hence arise the different modes of
passing judgment. In monarchies the judges choose the method of
arbitration; they deliberate together, they communicate their sentiments
for the sake of unanimity; they moderate their opinions, in order to
render them conformable to those of others: and the lesser number are
obliged to give way to the majority. But this is not agreeable to the
nature of a republic. At Rome, and in the cities of Greece, the judges
never entered into a consultation; each gave his opinion in one of these
three ways: "I absolve," "I condemn," "It does not appear clear to
me";[3] this was because the people judged, or were supposed to judge.
But the people are far from being civilians; all these restrictions and
methods of arbitration are above their reach; they must have only one
object and one single fact set before them; and then they have only to
see whether they ought to condemn, to acquit, or to suspend their
judgment.
The Romans introduced set forms of actions,[4] after the example of the
Greeks, and established a rule that each cause should be directed by its
proper action. This was necessary in their manner of judging; it was
necessary to fix the state of the question, that the people might have
it always before their eyes. Otherwise, in a long process, this state of
the question would continually change, and be no longer distinguished.
Hence it followed that the Roman judges granted only the simple demand,
without making any addition, deduction, or limitation. But the prætors
devised other forms of actions, which were called ex bona fide, in which
the method of pronouncing sentence was left to the disposition of the
judge. This was more agreeable to the spirit of monarchy. Hence it is a
saying among the French lawyers, that in France[5] all actions are ex
bona fide.
5. In what Governments the Sovereign may be Judge. Machiavel[6]
attributes the loss of the liberty of Florence to the people's not
judging in a body in cases of high treason against themselves, as was
customary at Rome. For this purpose they had eight judges: "but the
few," says Machiavel, "are corrupted by a few." I should willingly adopt
the maxim of this great man. But as in those cases the political
interest prevails in some measure over the civil (for it is always an
inconvenience that the people should be judges in their own cause), in
order to remedy this evil, the laws must provide as much as possible for
the security of individuals.
With this view the Roman legislators did two things: they gave the
persons accused permission to banish themselves[7] before sentence was
pronounced;[8] and they ordained that the goods of those who were
condemned should be sacred, to prevent their being confiscated to the
people. We shall see in Book XI the other limitations that were set to
the judicatory power residing in the people.
Solon knew how to prevent the abuse which the people might make of their
power in criminal judgments. He ordained that the Court of Areopagus
should re-examine the affair; that if they believed the party accused
was unjustly acquitted[9] they should impeach him again before the
people; that if they believed him unjustly condemned[10] they should
prevent the execution of the sentence, and make them rejudge the
proceeding -- an admirable law, that subjected the people to the censure
of the magistracy which they most revered, and even to their own!
In affairs of this kind it is always proper to throw in some delays,
especially when the party accused is under confinement; to the end that
the people may grow calm and give their judgment coolly.
In despotic governments, the prince himself may be judge. But in
monarchies this cannot be; the constitution by such means would be
subverted, and the dependent intermediate powers annihilated; all set
forms of judgment would cease; fear would take possession of the
people's minds, and paleness spread itself over every countenance: the
more confidence, honour, affection, and security in the subject, the
more extended is the power of the monarch.
We shall give here a few more reflections on this point. In monarchies,
the prince is the party that prosecutes the person accused, and causes
him to be punished or acquitted. Now, were he himself to sit upon the
trial, he would be both judge and party.
In this government the prince has frequently the benefit of
confiscation, so that here again, by determining criminal causes, he
would be both judge and party.
Further, by this method he would deprive himself of the most glorious
attribute of sovereignty, namely, that of granting pardon,[11] for it
would be quite ridiculous of him to make and unmake his decisions;
surely he would not choose to contradict himself.
Besides, this would be confounding all ideas; it would be impossible to
tell whether a man was acquitted, or received his pardon.
Louis XIII being desirous to sit in judgment upon the trial of the Duke
de la Valette,[12] sent for some members of the parliament and of the
privy council, to debate the matter; upon their being ordered by the
king to give their opinion concerning the warrant for his arrest, the
president, De Believre, said "that he found it very strange that a
prince should pass sentence upon a subject; that kings had reserved to
themselves the power of pardoning, and left that of condemning to their
officers; that his majesty wanted to see before him at the bar a person
who, by his decision, was to be hurried away into the other world! That
the prince's countenance should inspire with hopes, and not confound
with fears; that his presence alone removed ecclesiastic censures; and
that subjects ought not to go away dissatisfied from the sovereign."
When sentence was passed, the same magistrate declared, "This is an
unprecedented judgment to see, contrary to the example of past ages -- a
king of France, in the quality of a judge, condemning a gentleman to
death."[13]
Again, sentences passed by the prince would be an inexhaustible source
of injustice and abuse; the courtiers by their importunity would always
be able to extort his decisions. Some Roman emperors were so mad as to
sit as judges themselves; the consequence was that no reigns ever so
surprised the world with oppression and injustice.
"Claudius," says Tacitus,[14] "having appropriated to himself the
determination of lawsuits, and the function of magistrates, gave
occasion to all manner of rapine." But Nero, upon coming to the empire
after Claudius, endeavoured to conciliate the minds of the people by
declaring "that he would take care not to be judge himself in private
causes, that the parties might not be exposed within the walls of a
palace to the iniquitous influence of a few freedmen."[15]
"Under the reign of Arcadius," says Zozimus,[16] "a swarm of
calumniators spread themselves on every side, and infested the court.
Upon a person's decease, it was immediately supposed he had left no
children;[17] and, in consequence of this, his property was given away
by a rescript. For as the prince was surprisingly stupid, and the
empress excessively enterprising, she was a slave to the insatiable
avarice of her domestics and confidants; insomuch that to an honest man
nothing could be more desirable than death."
"Formerly," says Procopius[18] "there used to be very few people at
court; but in Justinian's reign, as the judges had no longer the liberty
of administering justice, their tribunals were deserted, while the
prince's palace resounded with the litigious clamours of the several
parties." Everybody knows what a prostitution there was of public
judgments, and even of the very laws themselves, at that emperor's
court.
The laws are the eye of the prince; by them he sees what would otherwise
escape his observation. Should he attempt the function of a judge, he
would not then labour for himself, but for impostors, whose aim is to
deceive him.
6. That in Monarchies Ministers ought not to sit as Judges. It is
likewise a very great inconvenience in monarchies for the ministers of
the prince to sit as judges. We have still instances of states where
there are a great number of judges to decide exchequer causes, and where
the ministers nevertheless (a thing most incredible!) would fain
determine them. Many are the reflections that here arise; but this
single one will suffice for my purpose.
There is in the very nature of things a kind of contrast between a
prince's council and his courts of judicature. The king's council ought
to be composed of a few persons, and the courts of judicature of a great
many. The reason is, in the former, things should be undertaken and
conducted with a kind of warmth and passion, which can hardly be
expected but from four or five men who make it their sole business. On
the contrary, in courts of judicature a certain coolness in requisite,
and an indifference, in some measure, to all manner of affairs.
7. Of a single Magistrate. A magistracy of this kind cannot take place
but in a despotic government. We have an instance in the Roman history
how far a single magistrate may abuse his power. Might it not be very
well expected that Appius on his tribunal should contemn all laws, after
having violated that of his own enacting?[19] Livy has given us the
iniquitous distinction of the Decemvir. He had suborned a man to reclaim
Virginia in his presence as his slave; Virginia's relatives insisted
that by virtue of his own law she should be consigned to them, till the
definitive judgment was passed. Upon which he declared that his law had
been enacted only in favour of the father, and that as Virginius was
absent, no application could be made of it to the present case.[20]
8. Of Accusation in different Governments. At Rome[21] it was lawful for
one citizen to accuse another. This was agreeable to the spirit of a
republic, where each citizen ought to have an unlimited zeal for the
public good, and is supposed to hold all the rights of his country in
his own hands. Under the emperors, the republican maxims were still
pursued; and instantly appeared a pernicious tribe, a swarm of
informers. Crafty, wicked men, who could stoop to any indignity to serve
the purposes of their ambition, were sure to busy themselves in the
search of criminals whose condemnation might be agreeable to the prince;
this was the road to honour and preferment,[22] but luckily we are
strangers to it in our country.
We have at present an admirable law, namely, that by which the prince,
who is established for the execution of the laws, appoints an officer in
each court of judicature to prosecute all sorts of crimes in his name;
hence the profession of informers is a thing unknown to us, for if this
public avenger were suspected to abuse his office, he would soon be
obliged to mention his author.
By Plato's Laws[23] those who neglect to inform or to. assist the
magistrates are liable to punishment. This would not be so proper in our
days. The public prosecutor watches for the safety of the citizens; he
proceeds in his office while they enjoy their quiet and ease.
9. Of the Severity of Punishments in different Governments. The severity
of punishments is fitter for despotic governments, whose principle is
terror, than for a monarchy or a republic, whose spring is honour and
virtue.
In moderate governments, the love of one's country, shame, and the fear
of blame are restraining motives, capable of preventing a multitude of
crimes. Here the greatest punishment of a bad action is conviction. The
civil laws have therefore a softer way of correcting, and do not require
so much force and severity.
In those states a good legislator is less bent upon punishing than
preventing crimes; he is more attentive to inspire good morals than to
inflict penalties.
It is a constant remark of the Chinese authors[24] that the more the
penal laws were increased in their empire, the nearer they drew towards
a revolution. This is because punishments were augmented in proportion
as the public morals were corrupted.
It would be an easy matter to prove that in all, or almost all, the
governments of Europe, penalties have increased or diminished in
proportion as those governments favoured or discouraged liberty.
In despotic governments, people are so unhappy as to have a greater
dread of death than regret for the loss of life; consequently their
punishments ought to be more severe. In moderate states they are more
afraid of losing their lives than apprehensive of the pain of dying;
those punishments, therefore, which deprive them simply of life are
sufficient.
Men in excess of happiness or misery are equally inclinable to severity;
witness conquerors and monks. It is mediocrity alone, and a mixture of
prosperous and adverse fortune, that inspires us with lenity and pity.
What we see practised by individuals is equally observable in regard to
nations. In countries inhabited by savages who lead a very hard life,
and in despotic governments, where there is only one person on whom
fortune lavishes her favours, while the miserable subjects lie exposed
to her insults, people are equally cruel. Lenity reigns in moderate
governments.
When in reading history we observe the cruelty of the sultans in
administration of justice, we shudder at the very thought of the
miseries of human nature.
In moderate governments, a good legislator may make use of everything by
way of punishment. Is it not very extraordinary that one of the chief
penalties at Sparta was to deprive a person of the power of lending out
his wife, or of receiving the wife of another man, and to oblige him to
have no company at home but virgins? In short, whatever the law calls a
punishment is such effectively.
10. Of the ancient French Laws. In the ancient French laws we find the
true spirit of monarchy. In cases relating to pecuniary mulcts, the
common people are less severely punished than the nobility.[25] But in
criminal[26] cases it is quite the reverse; the nobleman loses his
honour and his voice in court, while the peasant, who has no honour to
lose, undergoes a corporal punishment.
11. That when People are virtuous few Punishments are necessary. The
people of Rome had some share of probity. Such was the force of this
probity that the legislator had frequently no further occasion than to
point out the right road, and they were sure to follow it; one would
imagine that instead of precepts it was sufficient to give them
counsels.
The punishments of the regal laws, and those of the Twelve Tables, were
almost all abolished in the time of the republic, in consequence either
of the Valerian[27] or of the Porcian law.[28] It was never observed
that this step did any manner of prejudice to the civil administration.
This Valerian law, which restrained the magistrates from using violent
methods against a citizen that had appealed to the people, inflicted no
other punishment on the person who infringed it than that of being
reputed a dishonest man.[29]
12. Of the Power of Punishments. Experience shows that in countries
remarkable for the lenity of their laws the spirit of the inhabitants is
as much affected by slight penalties as in other countries by severer
punishments.
If an inconvenience or abuse arises in the state, a violent government
endeavours suddenly to redress it; and instead of putting the old laws
in execution, it establishes some cruel punishment, which instantly puts
a stop to the evil. But the spring of government hereby loses its
elasticity; the imagination grows accustomed to the severe as well as
the milder punishment; and as the fear of the latter diminishes, they
are soon obliged in every case to have recourse to the former. Robberies
on the highway became common in some countries; in order to remedy this
evil, they invented the punishment of breaking upon the wheel, the
terror of which put a stop for a while to this mischievous practice. But
soon after robberies on the highways became as common as ever.
Desertion in our days has grown to a very great height; in consequence
of which it was judged proper to punish those delinquents with death;
and yet their number did not diminish. The reason is very natural; a
soldier, accustomed to venture his life, despises, or affects to
despise, the danger of losing it. He is habituated to the fear of shame;
it would have been therefore much better to have continued a
punishment[30] which branded him with infamy for life; the penalty was
pretended to be increased, while it really diminished.
Mankind must not be governed with too much severity; we ought to make a
prudent use of the means which nature has given us to conduct them. If
we inquire into the cause of all human corruptions, we shall find that
they proceed from the impunity of criminals, and not from the moderation
of punishments.
Let us follow nature, who has given shame to man for his scourge; and
let the heaviest part of the punishment be the infamy attending it.
But if there be some countries where shame is not a consequence of
punishment, this must be owing to tyranny, which has inflicted the same
penalties on villains and honest men.
And if there are others where men are deterred only by cruel
punishments, we may be sure that this must, in a great measure, arise
from the violence of the government which has used such penalties for
slight transgressions.
It often happens that a legislator, desirous of remedying an abuse,
thinks of nothing else; his eyes are open only to this object, and shut
to its inconveniences. When the abuse is redressed, you see only the
severity of the legislator; yet there remains an evil in the state that
has sprung from this severity; the minds of the people are corrupted,
and become habituated to despotism.
Lysander[31] having obtained a victory over the Athenians, the prisoners
were ordered to be tried, in consequence of an accusation brought
against that nation of having thrown all the captives of two galleys
down a precipice, and of having resolved in full assembly to cut off the
hands of those whom they should chance to make prisoners. The Athenians
were therefore all massacred, except Adymantes, who had opposed this
decree. Lysander reproached Phylocles, before he was put to death, with
having depraved the people's minds, and given lessons of cruelty to all
Greece.
"The Argives," says Plutarch,[32] "having put fifteen hundred of their
citizens to death, the Athenians ordered sacrifices of expiation, that
it might please the gods to turn the hearts of the Athenians from so
cruel a thought."
There are two sorts of corruptions -- one when the people do not observe
the laws; the other when they are corrupted by the laws: an incurable
evil, because it is in the very remedy itself.
13. Insufficiency of the Laws of Japan. Excessive punishments may even
corrupt a despotic government; of this we have an instance in Japan.
Here almost all crimes are punished with death,[33] because disobedience
to so great an emperor as that of Japan is reckoned an enormous crime.
The question is not so much to correct the delinquent as to vindicate
the authority of the prince. These notions are derived from servitude,
and are owing especially to this, that as the emperor is universal
proprietor, almost all crimes are directly against his interests.
They punish with death lies spoken before the magistrate;[34] a
proceeding contrary to natural defence.
Even things which have not the appearance of a crime are severely
punished; for instance, a man that ventures his money at play is put to
death.
True it is that the character of this people, so amazingly obstinate,
capricious, and resolute as to defy all dangers and calamities, seems to
absolve their legislators from the imputation of cruelty,
notwithstanding the severity of their laws. But are men who have a
natural contempt for death, and who rip open their bellies for the least
fancy -- are such men, I say, mended or deterred, or rather are they not
hardened, by the continual prospect of punishments?
The relations of travellers inform us, with respect to the education of
the Japanese, that children must be treated there with mildness, because
they become hardened to punishment; that their slaves must not be too
roughly used, because they immediately stand upon their defence. Would
not one imagine that they might easily have judged of the spirit which
ought to reign in their political and civil government from that which
should prevail in their domestic concerns?
A wise legislator would have endeavoured to reclaim people by a just
temperature of punishments and rewards; by maxims of philosophy,
morality, and religion, adapted to those characters; by a proper
application of the rules of honour, and by the enjoyment of ease and
tranquillity of life. And should he have entertained any apprehension
that their minds, being inured to the cruelty of punishments, would no
longer be restrained by those of a milder nature, he would have
conducted himself[35] in another manner, and gained his point by
degrees, in particular cases that admitted of any indulgence, he would
have mitigated the punishment, till he should have been able to extend
this mitigation to all cases.
But these are springs to which despotic power is a stranger; it may
abuse itself, and that is all it can do: in Japan it has made its utmost
effort, and has surpassed even itself in cruelty.
As the minds of the people grew wild and intractable, they were obliged
to have recourse to the most horrid severity.
This is the origin, this the spirit, of the laws of Japan. They had more
fury, however, than force. They succeeded the extirpation of
Christianity; but such unaccountable efforts are a proof of their
insufficiency. They wanted to establish a good policy, and they have
shown greater marks of their weakness.
We have only to read the relation of the interview between the Emperor
and the Deyro at Meaco.[36] The number of those who were suffocated or
murdered in that city by ruffians is incredible; young maids and boys
were carried off by force, and found afterwards exposed in public
places, at unseasonable hours, quite naked, and sewn in linen bags, to
prevent their knowing which way they had passed; robberies were
committed in all parts; the bellies of horses were ripped open, to bring
their riders to the ground; and coaches were overturned, in order to
strip the ladies. The Dutch, who were told they could not pass the night
on the scaffolds without exposing themselves to the danger of being
assassinated, came down, &c.
I shall here give one instance more from the same nation. The Emperor
having abandoned himself to infamous pleasures, lived unmarried, and was
consequently in danger of dying without issue. The Deyro sent him two
beautiful damsels; one he married out of respect, but would not meddle
with her. His nurse caused the finest women of the empire to be sent
for, but all to no purpose. At length, an armourer's daughter having
pleased his fancy,[37] he determined to espouse her, and had a son. The
ladies belonging to the court, enraged to see a person of such mean
extraction preferred to themselves, stifled the child. The crime was
concealed from the Emperor; for he would have deluged the land with
blood. The excessive severity of the laws hinders, therefore, their
execution: when the punishment surpasses all measure, they are
frequently obliged to prefer impunity to it.
14. Of the Spirit of the Roman Senate. Under the consulate of Acilius
Glabrio and Piso, the Asilian law[38] was made to prevent the intriguing
for places. Dio says[39] that the senate engaged the consuls to propose
it, by reason that C. Cornelius, the tribune, had resolved to cause more
severe punishments to be established against this crime; to which the
people seemed greatly inclined. The senate rightly judged that
immoderate punishments would strike, indeed, a terror into people's
minds, but must have also this effect, that there would be nobody
afterwards to accuse or condemn; whereas, by proposing moderate
penalties, there would be always judges and accusers.
15. Of the Roman Laws in respect to Punishments. I am strongly confirmed
in my sentiments upon finding the Romans on my side; and I think that
punishments are connected with the nature of governments when I behold
this great people changing in this respect their civil laws, in
proportion as they altered their form of government.
The regal laws, made for fugitives, slaves, and vagabonds, were very
severe. The spirit of a republic would have required that the decemvirs
should not have inserted those laws in their Twelve Tables; but men who
aimed at tyranny were far from conforming to a republican spirit.
Livy says,[40] in relation to the punishment of Metius Suffetius,
dictator of Alba, who was condemned by Tullius Hostilius to be fastened
to two chariots drawn by horses, and torn asunder, that this was the
first and last punishment in which the remembrance of humanity seemed to
have been lost. He is mistaken; the Twelve Tables are full of very cruel
laws.[41]
The design of the decemvirs appears more conspicuous in the capital
punishment pronounced against libellers and poets. This is not agreeable
to the genius of a republic, where the people like to see the great men
humbled. But persons who aimed at the subversion of liberty were afraid
of writings that might revive its spirit.[42]
After the expulsion of the decemvirs, almost all the penal laws were
abolished. It is true they were not expressly repealed; but as the
Porcian law had ordained that no citizen of Rome should be put to death,
they were of no further use.
This is exactly the time to which we may refer what Livy says[43] of the
Romans, that no people were ever fonder of moderation in punishments.
But if to the lenity of penal laws we add the right which the party
accused had of withdrawing before judgment was pronounced, we shall find
that the Romans followed the spirit which I have observed to be natural
to a republic.
Sulla, who confounded tyranny, anarchy, and liberty, made the Cornelian
laws. He seemed to have contrived regulations merely with a view to
create new crimes. Thus distinguishing an infinite number of actions by
the name of murder, he found murderers in all parts; and by a practice
too much followed, he laid snares, sowed thorns, and opened precipices,
wheresoever the citizens set their feet.
Almost all Sulla's laws contained only the interdiction of fire and
water. To this Cæsar added the confiscation of goods[44] because the
rich, by preserving their estates in exile, became bolder in the
perpetration of crimes.
The emperors, having established a military government, soon found that
it was as terrible to the prince as to the subject; they endeavoured
therefore to temper it, and with this view had recourse to dignities,
and to the respect with which those dignities were attended.
The government thus drew nearer a little to monarchy, and punishments
were divided into three classes:[45] those which related to the
principal persons in the state,[46] which were very mild: those which
were inflicted on persons of an inferior rank,[47] and were more severe;
and, in fine, such as concerned only persons of the lowest
condition,[48] which were the most rigorous.
Maximinus, that fierce and stupid prince, increased the rigour of the
military government which he ought to have softened. The senate were
informed, says Capitolinus,[49] that some had been crucified, others
exposed to wild beasts, or sewn up in the skins of beasts lately killed,
without any manner of regard to their dignity. It seemed as if he wanted
to exercise the military discipline, on the model of which he pretended
to regulate the civil administration.
In The Consideration on the Rise and Declension of the Roman
Grandeur[50] we find in what manner Constantine changed the military
despotism into a military and civil government, and drew nearer to
monarchy. There we may trace the different revolutions of this state,
and see how they fell from rigour to indolence, and from indolence to
impunity.
16. Of the just Proportion between Punishments and Crimes. It is an
essential point, that there should be a certain proportion in
punishments, because it is essential that a great crime should be
avoided rather than a smaller, and that which is more pernicious to
society rather than that which is less.
"An impostor,[51] who called himself Constantine Ducas, raised a great
insurrection at Constantinople. He was taken and condemned to be
whipped; but upon informing against several persons of distinction, he
was sentenced to be burned as a calumniator." It is very extraordinary
that they should thus proportion the punishments between the crime of
high treason and that of calumny.
This puts me in mind of a saying of Charles II, King of Great Britain.
He saw a man one day standing in the pillory; upon which he asked what
crime the man had committed. He was answered, "Please your Majesty, he
has written a libel against your ministers." "The fool!" said the King,
"why did he not write against me? They would have done nothing to him."
"Seventy persons having conspired against the Emperor Basil, he ordered
them to be whipped, and the hair of their heads and beards to be burned.
A stag, one day, having taken hold of him by the girdle with his horn,
one of his retinue drew his sword, cut the girdle, and saved him; upon
which he ordered that person's head to be cut off, for having," said he,
"drawn his sword against his sovereign."[52] Who could imagine that the
same prince could ever have passed two such different judgments?
It is a great abuse amongst us to condemn to the same punishment a
person that only robs on the highway and another who robs and murders.
Surely, for the public security, some difference should be made in the
punishment.
In China, those who add murder to robbery are cut in pieces:[53] but not
so the others; to this difference it is owing that though they rob in
that country they never murder.
In Russia, where the punishment of robbery and murder is the same, they
always murder.[54] The dead, say they, tell no tales.
Where there is no difference in the penalty, there should be some in the
expectation of pardon. In England they never murder on the highway,
because robbers have some hopes of transportation, which is not the case
in respect to those that commit murder.
Letters of grace are of excellent use in moderate governments. This
power which the prince has of pardoning, exercised with prudence, is
capable of producing admirable effects. The principle of despotic
government, which neither grants nor receives any pardon, deprives it of
these advantages.
17. Of the Rack. The wickedness of mankind makes it necessary for the
law to suppose them better than they really are. Hence the deposition of
two witnesses is sufficient in the punishment of all crimes. The law
believes them, as if they spoke by the mouth of truth. Thus we judge
that every child conceived in wedlock is legitimate; the law having a
confidence in the mother, as if she were chastity itself. But the use of
the rack against criminals cannot be defended on a like plea of
necessity.
We have before us the example of a nation blessed with an excellent
civil government,[55] where without any inconvenience the practice of
racking criminals is rejected. It is not, therefore, in its own nature
necessary.[56]
So many men of learning and genius have written against the custom of
torturing criminals, that after them I dare not presume to meddle with
the subject. I was going to say that it might suit despotic states,
where whatever inspires fear is the fittest spring of government. I was
going to say that the slaves among the Greeks and Romans -- but nature
cries out aloud, and asserts her rights.
18. Of pecuniary and corporal Punishments. Our ancestors, the Germans,
admitted of none but pecuniary punishments. Those free and warlike
people were of opinion that their blood ought not to be spilled but with
sword in hand. On the contrary, these punishments are rejected by the
Japanese,[57] under pretence that the rich might elude them. But are not
the rich afraid of being stripped of their property? And might not
pecuniary penalties be proportioned to people's fortunes? And, in fine,
might not infamy be added to those punishments?
A good legislator takes a just medium; he ordains neither always
pecuniary, nor always corporal punishments.
19. Of the Law of Retaliation. The use of the law of retaliation[58] is
very frequent in despotic countries, where they are fond of simple laws.
Moderate governments admit of it sometimes; but with this difference,
that the former exercise it in full rigour, whereas among the latter it
ever receives some kind of limitation.
The law of the Twelve Tables admitted two: first, it never condemned to
retaliation, but when the plaintiff could not be satisfied in any other
manner.[59] Secondly, after condemnation they might pay damages and
interest,[60] and then the corporal was changed into a pecuniary
punishment.[61]
20. Of the Punishment of Fathers for the Crimes of their Children. In
China, fathers are punished for the crimes of their children. This was
likewise the custom of Peru[62] -- a custom derived from the notion of
despotic power. Little does it signify to say that in China the father
is punished for not having exerted that paternal authority which nature
has established, and the laws themselves have improved. This still
supposes that there is no honour among the Chinese. Amongst us, parents
whose children are condemned by the laws of their country, and
children[63] whose parents have undergone the like fate, are as severely
punished by shame, as they would be in China by the loss of their lives.
21. Of the Clemency of the Prince. Clemency is the characteristic of
monarchs. In republics, whose principle is virtue, it is not so
necessary. In despotic governments, where fear predominates, it is less
customary, because the great men are to be restrained by examples of
severity. It is more necessary in monarchies, where they are governed by
honour, which frequently requires what the very law forbids. Disgrace is
here equivalent to chastisement; and even the forms of justice are
punishments. This is because particular kinds of penalty are formed by
shame, which on every side invades the delinquent.
The great men in monarchies are so heavily punished by disgrace, by the
loss (though often imaginary) of their fortune, credit, acquaintances,
and pleasures, that rigour in respect to them is needless. It can tend
only to divest the subject of the affection he has for the person of his
prince, and of the respect he ought to have for public posts and
employments.
As the instability of the great is natural to a despotic government, so
their security is interwoven with the nature of monarchy.
So many are the advantages which monarchs gain by clemency, so greatly
does it raise their fame, and endear them to their subjects, that it is
generally happy for them to have an opportunity of displaying it; which
in this part of the world is seldom wanting.
Some branch, perhaps, of their authority, but never hardly the whole,
will be disputed; and if they sometimes fight for their crown, they do
not fight for their life.
But some may ask when it is proper to punish, and when to pardon. This
is a point more easily felt that prescribed. When there is danger in the
exercise of clemency, it is visible; nothing so easy as to distinguish
it from that imbecility which exposes princes to contempt and to the
very incapacity of punishing.
The Emperor Maurice made a resolution never to spill the blood of his
subjects. Anastasius[64] punished no crimes at all. Isaac Angelus took
an oath that no one should be put to death during his reign. Those Greek
emperors forgot that it was not for nothing they were entrusted with the
sword.
______
1. In Mazulipatam it could never be found out that there was such a
thing as a written law. See the Collection of Voyages that Contributed
to the Establishment of the East India Company, iv., part I, p. 391. The
Indians are regulated in their decisions by certain customs. The Vedan
and such books do not contain civil laws, but religious precepts. See
Edifying Letters, coll. xiv.
2. Cæsar, Cromwell, and many others.
3. Non liquet.
4. Quas actiones ne populus prout vellet institueret, certas solemnesque
esse voluerunt -- Dig. de Orig. Jur., ii, § 6.
5. In France a person, though sued for more than he owes, loses his
costs if he has not offered to pay the exact debt.
6. Discourse on the first decade of Livy, i. 7.
7. This is well explained in Cicero's oration Pro Cæcina, towards the
end, 100.
8. This was the law at Athens, as appears by Demosthenes. Socrates
refused to make use of it.
9. Demosthenes, Pro Corona, p. 494, Frankfort, 1604.
10. See Philostratus, Lives of the Sophists, i. Life of Æschines.
11. Plato does not think it right that kings, who, as he says, are
priests, should preside at trials where people are condemned to death,
to exile, or to imprisonment.
12. See the account of the trial of the Duke de la Valette. It is
printed in the Memoirs of Montresor, ii, p. 62.
13. It was afterwards revoked. See the same account, ii. p. 236. It was
ordinarily a right of the peerage that a peer criminally accused should
be judged by the king, as Francis II in the trial of the Prince of
Condé, and Charles VII in the case of the Duc d'Alençon. To-day, the
presence of the king at the trial of a peer, in order to condemn him
would seem an act of tyranny. -- Voltaire.
14. Annals, xi. 5.
15. Ibid., xiii. 4.
16. Histories, v.
17. The same disorder happened under Theodosius the younger.
18. Secret History.
19. See Leg. 2, § 24, Dig. ff. de orig. jur.
20. Quod pater puellce abesset, locum injuria esse ratus. -- Livy, dec.
I, iii. 44.
21. And in a great many other cities.
22. See in Tacitus the rewards given to those informers. -- Annals, i.
30.
23. Book ix.
24. I shall show hereafter that China is, in this respect, in the same
case as a republic or a monarchy.
25. Suppose, for instance, to prevent the execution of a decree, the
common people paid a fine of forty sous, and the nobility of sixty
livres. -- Somme Rurale, ii, p. 198, ed. Goth. 1512; and Beaumanoir, 61,
p. 309.
26. See the Council of Peter Defontaines, 13, especially art. 22.
27. It was made by Valerius Publicola soon after the expulsion of the
kings, and was twice renewed, both times by magistrates of the same
family. As Livy observes, x, 9, the question was not to give it a
greater force, but to render its injunctions more perfect. "Diligentius
sanctum," says Livy, ibid.
28. Lex Porcia pro tergo civium lata. It was made in the 454th year of
the foundation of Rome.
29. Nihil ultra quam improbe factum adjecet -- Livy, loc. cit.
30. They slit his nose or cut off his ears.
31. Xenophon, Hist., iii. 8, §§ 20-22.
32. Of Those Who Are Intrusted with the Direction of the State Affairs,
14.
33. See Kempfer.
34. Collection of Voyages that Contributed to the Establishment of the
East India Company, iii, part I, p. 428.
35. Let this be observed as a maxim in practice, with regard to cases
where the minds of people have been depraved by too great a severity of
punishments.
36. Collection of Voyages that Contributed to the Establishment of the
East India Company, v, p. 2.
37. Ibid.
38. The guilty were condemned to a fine; they could not be admitted into
the rank of senators, nor nominated to any public office. -- Dio, xxxvi.
21.
39. Ibid.
40. Book i. 28.
41. We find there the punishment of fire, and generally capital
punishments, theft punished with death, &c.
42. Sulla, animated with the same spirit as the decemvirs, followed
their example in augmenting the penal laws against satirical writers.
43. Book i, 28.
44. Poenas facinorum auxit, cum locupletes eo facilius scelere se
obligarent, quod integris patrimoniis exularent. -- Suetonius in Life of
Julius Cæsar, 162.
45. See the Leg. 3, § legis, ad leg. Cornel, de sicariis, and a vast
number of others in the Digest and in the Codex.
46. Sublimiores.
47. Medios.
48. Infirnos. Leg. 3, § legis, ad leg. Cornel, de sicariis.
49. Jul. Cap., Maximini duo, 8.
50. Chapter 17.
51. Hist. of Nicephorus, patriarch of Constantinople.
52. In Nicephorus' History.
53. Father Du Halde, i, p. 6.
54. Present State of Russia, Perry.
55. The English.
56. The citizens of Athens could not be put to the rack (Lysias, Orat.
contra Agorat.) unless it was for high treason. The torture was used
within thirty days after condemnation. (Curius Fortunatus. Rhetor,
scol., ii.) There was no preparatory torture. In regard to the Romans,
the Leg. 3, 4, ad leg. Jul. majest., show that birth, dignity, and the
military profession exempted people from the rack, except in cases of
high treason. See the prudent restrictions of this practice made by the
laws of the Visigoths.
57. See Kempfer.
58. It is established in the Koran. See the chapter, Of the Cow.
59. Si membrum rupit, ni cum eo pacit, talio esto. Aulus Gellius, xx. i.
60. Ibid.
61. See also the Law of the Visigoths, vi, tit. 4, §§ 3, 5.
62. See Garcilasso, History of the Civil Wars of the Spaniards in the
West Indies.
63. "Instead of punishing them," says Plato, "they ought to be commended
for not having followed their fathers' example." -- Laws, ix.
64. Fragment of Suidas, in Constantine Porphyrogenitus.
------------------------------------------------------------------------
Book VII. Consequences of the Different Principles of the Three
Governments with Respect to Sumptuary Laws, Luxury, and the Condition of
Women
1. Of Luxury. Luxury is ever in proportion to the inequality of
fortunes. If the riches of a state are equally divided there will be no
luxury; for it is founded merely on the conveniences acquired by the
labour of others.
In order to have this equal distribution of riches, the law ought to
give to each man only what is necessary for nature. If they exceed these
bounds, some will spend, and others will acquire, by which means an
inequality will be established.
Supposing what is necessary for the support of nature to be equal to a
given sum, the luxury of those who have only what is barely necessary
will be equal to a cipher: if a person happens to have double that sum,
his luxury will be equal to one; he that has double the latter's
substance will have a luxury equal to three; if this be still doubled,
there will be a luxury equal to seven; so that the property of the
subsequent individual being always supposed double to that of the
preceding, the luxury will increase double, and a unit be always added,
in this progression, 0, 1, 3, 7, 15, 31, 63, 127
In Plato's republic,[1] luxury might have been exactly calculated. There
were four sorts of censuses or rates of estates. The first was exactly
the term beyond poverty, the second was double, the third triple, the
fourth quadruple to the first. In the first census, luxury was equal to
a cipher; in the second to one, in the third to two, in the fourth to
three: and thus it followed in an arithmetical proportion.
Considering the luxury of different nations with respect to one another,
it is in each state a compound proportion to the inequality of fortunes
among the subjects, and to the inequality of wealth in different states.
In Poland, for example, there is an extreme inequality of fortunes, but
the poverty of the whole binders them from having so much luxury as in a
more opulent government.
Luxury is also in proportion to the populousness of the towns, and
especially of the capital; so that it is in a compound proportion to the
riches of the state, to the inequality of private fortunes, and to the
number of people settled in particular places.
In proportion to the populousness of towns, the inhabitants are filled
with notions of vanity, and actuated by an ambition of distinguishing
themselves by trifles.[2] If they are very numerous, and most of them
strangers to one another, their vanity redoubles, because there are
greater hopes of success. As luxury inspires these hopes, each man
assumes the marks of a superior condition. But by endeavouring thus at
distinction, every one becomes equal, and distinction ceases; as all are
desirous of respect, nobody is regarded.
Hence arises a general inconvenience. Those who excel in a profession
set what value they please on their labour; this example is followed by
people of inferior abilities, and then there is an end of all proportion
between our wants and the means of satisfying them. When I am forced to
go to law, I must be able to fee counsel; when I am sick, I must have it
in my power to fee a physician.
It is the opinion of several that the assemblage of so great a multitude
of people in capital cities is an obstruction to commerce, because the
inhabitants are no longer at a proper distance from each other. But I
cannot think so; for men have more desires, more wants, more fancies,
when they live together.
2. Of sumptuary Laws in a Democracy. We have observed that in a
republic, where riches are equally divided, there can be no such thing
as luxury; and as we have shown in the 5th Book[3] that this equal
distribution constitutes the excellence of a republican government;
hence it follows, that the less luxury there is in a republic, the more
it is perfect. There was none among the old Romans, none among the
Lacedæmonians; and in republics where this equality is not quite lost,
the spirit of commerce, industry, and virtue renders every man able and
willing to live on his own property, and consequently prevents the
growth of luxury.
The laws concerning the new division of lands, insisted upon so eagerly
in some republics, were of the most salutary nature. They are dangerous,
only as they are sudden. By reducing instantly the wealth of some, and
increasing that of others, they form a revolution in each family, and
must produce a general one in the state.
In proportion as luxury gains ground in a republic, the minds of the
people are turned towards their particular interests. Those who are
allowed only what is necessary have nothing but their own reputation and
their country's glory in view. But a soul depraved by luxury has many
other desires, and soon becomes an enemy to the laws that confine it.
The luxury in which the garrison of Rhegium began to live was the cause
of their massacring the inhabitants.
No sooner were the Romans corrupted than their desires became boundless
and immense. Of this we may judge by the price they set on things. A
pitcher of Falernian wine[4] was sold for a hundred Roman denarii; a
barrel of salt meat from the kingdom of Pontus cost four hundred; a good
cook four talents; and for boys, no price was reckoned too great. When
the whole world, impelled by the force of corruption, is immersed in
voluptuousness[5] what must then become of virtue?
3. Of sumptuary Laws in an Aristocracy. There is this inconvenience in
an ill-constituted aristocracy, that the wealth centres in the nobility,
and yet they are not allowed to spend; for as luxury is contrary to the
spirit of moderation, it must be banished thence. This government
comprehends, therefore, only people who are extremely poor and cannot
acquire, and people who are vastly rich and cannot spend.
In Venice, they are compelled by the laws to moderation. They are so
habituated to parsimony that none but courtesans can make them part with
their money. Such is the method made use of for the support of industry;
the most contemptible of women may be profuse without danger, whilst
those who contribute to their extravagance consume their days in the
greatest obscurity.
Admirable in this respect were the institutions of the principal
republics of Greece. The rich employed their money in festivals, musical
choruses, chariots, horse-races, and chargeable offices. Wealth was,
therefore, as burdensome there as poverty.
4. Of sumptuary Laws in a Monarchy. Tacitus says[6] that the Suiones, a
German nation, has a particular respect for riches; for which reason
they live under the government of one person. This shows that luxury is
extremely proper for monarchies, and that under this government there
must be no sumptuary laws.
As riches, by the very constitution of monarchies, are unequally
divided, there is an absolute necessity for luxury. Were the rich not to
be lavish, the poor would starve. It is even necessary here that the
expenses of the opulent should be in proportion to the inequality of
fortunes, and that luxury, as we have already observed, should increase
in this proportion. The augmentation of private wealth is owing to its
having deprived one part of the citizens of their necessary support;
this must therefore be restored to them.
Hence it is that for the preservation of a monarchical state, luxury
ought continually to increase, and to grow more extensive, as it rises
from the labourer to the artificer, to the merchant, to the magistrate,
to the nobility, to the great officers of state, up to the very prince;
otherwise the nation will be undone.
In the reign of Augustus, a proposal was made in the Roman senate, which
was composed of grave magistrates, learned civilians, and of men whose
heads were filled with the notion of the primitive times, to reform the
manners and luxury of women. It is curious to see in Dio,[7] with what
art this prince eluded the importunate solicitations of those senators.
This was because he was founding a monarchy, and dissolving a republic.
Under Tiberius, the Ædiles proposed in the senate the re-establishment
of the ancient sumptuary laws.[8] This prince, who did not want sense,
opposed it. "The state," said he, "could not possibly subsist in the
present situation of things. How could Rome, how could the provinces,
live? We were frugal, while we were only masters of one city; now we
consume the riches of the whole globe, and employ both the masters and
their slaves in our service." He plainly saw that sumptuary laws would
not suit the present form of government.
When a proposal was made under the same emperor to the senate, to
prohibit the governors from carrying their wives with them into the
provinces, because of the dissoluteness and irregularity which followed
those ladies, the proposal was rejected. It was said that the examples
of ancient austerity had been changed into a more agreeable method of
living.[9] They found there was a necessity for different manners.
Luxury is therefore absolutely necessary in monarchies; as it is also in
despotic states. In the former, it is the use of liberty; in the latter,
it is the abuse of servitude. A slave appointed by his master to
tyrannise over other wretches of the same condition, uncertain of
enjoying tomorrow the blessings of to-day, has no other felicity than
that of glutting the pride, the passions, and voluptuousness of the
present moment.
Hence arises a very natural reflection. Republics end with luxury;
monarchies with poverty.[10]
5. In what Cases sumptuary Laws are useful in a Monarchy. Whether it was
from a republican spirit, or from. some other particular circumstance,
sumptuary laws were made in Aragon, in the middle of the thirteenth
century. James the First ordained that neither the king nor any of his
subjects should have above two sorts of dishes at a meal, and that each
dish should be dressed only one way, except it were game of their own
killing.[11]
In our days, sumptuary laws have been also enacted in Sweden; but with a
different view from those of Aragon.
A government may make sumptuary laws with a view to absolute frugality;
this is the spirit of sumptuary laws in republics; and the very nature
of the thing shows that such was the design of those of Aragon.
Sumptuary laws may likewise be established with a design to promote a
relative frugality: when a government, perceiving that foreign
merchandise, being at too high a price, will require such an exportation
of home manufactures as to deprive them of more advantages by the loss
of the latter than they can receive from the possession of the former,
they will forbid their being introduced. And this is the spirit of the
laws which in our days have been passed in Sweden.[12] Such are the
sumptuary laws proper for monarchies.
In general, the poorer a state, the more it is ruined by its relative
luxury; and consequently the more occasion it has for relative sumptuary
laws. The richer a state, the more it thrives by its relative luxury;
for which reason it must take particular care not to make any relative
sumptuary laws. This we shall better explain in the book on
commerce;[13] here we treat only of absolute luxury.
6. Of the Luxury of China. Sumptuary laws may, in some governments, be
necessary for particular reasons. The people, by the influence of the
climate, may grow so numerous, and the means of subsisting may be so
uncertain, as to render a universal application to agriculture extremely
necessary. As luxury in those countries is dangerous, their sumptuary
laws should be very severe. In order, therefore, to be able to judge
whether luxury ought to be encouraged or proscribed, we should examine
first what relation there is between the number of people and the
facility they have of procuring subsistence. In England the soil
produces more grain than is necessary for the maintenance of such as
cultivate the land, and of those who are employed in the woollen
manufactures. This country may be therefore allowed to have some
trifling arts, and consequently luxury. In France, likewise, there is
corn enough for the support of the husbandman and of the manufacturer.
Besides, a foreign trade may bring in so many necessaries in return for
toys that there is no danger to be apprehended from luxury.
On the contrary, in China, the women are so prolific, and the huma.n
species multiplies so fast, that the lands, though never so much
cultivated, are scarcely sufficient to support the inhabitants. Here,
therefore, luxury is pernicious, and the spirit of industry and economy
is as requisite as in any republic.[14] They are obliged to pursue the
necessary arts, and to shun those ot luxury and pleasure.
This is the spirit of the excellent decrees of the Chinese emperors.
"Our ancestors," says an emperor of the family of the Tangs[15] "held it
as a maxim that if there was a man who did not work, or a woman that was
idle, somebody must suffer cold or hunger in the empire." And on this
principle he ordered a vast number of the monasteries of Bonzes to be
destroyed.
The third emperor of the one-and-twentieth dynasty,[16] to whom some
precious stones were brought that had been found in a mine, ordered it
to be shut up, not choosing to fatigue his people with working for a
thing that could neither feed nor clothe them.
"So great is our luxury," says Kiayventi,[17] "that people adorn with
embroidery the shoes of boys and girls, whom they are obliged to sell."
Is employing so many people in making clothes for one person the way to
prevent a great many from wanting clothes? There are ten men who eat the
fruits of the earth to one employed in agriculture; and is this the
means of preserving numbers from wanting nourishment?
7. Fatal Consequence of Luxury in China. In the history of China we find
it has had twenty-two successive dynasties, that is, it has experienced
twenty-two general, without mentioning a prodigious number of
particular, revolutions. The first three dynasties lasted a long time,
because they were wisely administered, and the empire had not so great
an extent as it afterwards obtained. But we may observe in general that
all those dynasties began very well. Virtue, attention, and vigilance
are necessary in China; these prevailed in the commencement of the
dynasties, and failed in the end. It was natural that emperors trained
up in military toil, who had compassed the dethroning of a family
immersed in pleasure, should adhere to virtue, which they had found so
advantageous, and be afraid of voluptuousness, which they knew had
proved so fatal to the family dethroned. But after the three or four
first princes, corruption, luxury, indolence, and pleasure possessed
their successors; they shut themselves up in a palace; their
understanding was impaired; their life was shortened; the family
declined; the grandees rose up; the eunuchs gained credit; none but
children were set on the throne; the palace was at variance with the
empire; a lazy set of people that dwelt there ruined the industrious
part of the nation; the emperor was killed or destroyed by a usurper,
who founded a family, the third or fourth successor of which went and
shut himself up in the very same palace.
8. Of public Continency. So many are the imperfections that attend the
loss of virtue in women, and so greatly are their minds depraved when
this principal guard is removed, that in a popular state public
incontinency may be considered as the last of miseries, and as a certain
forerunner of a change in the constitution.
Hence it is that the sage legislators of republican states have ever
required of women a particular gravity of manners. They have proscribed
not only vice, but the very appearance of it. They have banished even
all commerce of gallantry -- a commerce that produces idleness, that
renders the women corrupters, even before they are corrupted, that gives
a value to trifles, and debases things of importance: a commerce, in
fine, that makes people act entirely by the maxims of ridicule, in which
the women are so perfectly skilled.
9. Of the Condition or State of Women in different Governments. In
monarchies women are subject to very little restraint, because as the
distinction of ranks calls them to court, there they assume a spirit of
liberty, which is almost the only one tolerated in that place. Each
courtier avails himself of their charms and passions, in order to
advance his fortune: and as their weakness admits not of pride, but of
vanity, luxury constantly attends them.
In despotic governments women do not introduce, but are themselves an
object of, luxury. They must be in a state of the most rigorous
servitude. Every one follows the spirit of the government, and adopts in
his own family the customs he sees elsewhere established. As the laws
are very severe and executed on the spot, they are afraid lest the
liberty of women should expose them to danger. Their quarrels,
indiscretions, repugnancies, jealousies, piques, and that art, in fine,
which little souls have of interesting great ones, would be attended
there with fatal consequences.
Besides, as princes in those countries make a sport of human nature,
they allow themselves a multitude of women; and a thousand
considerations oblige them to keep those women in close confinement.
In republics women are free by the laws and restrained by manners;
luxury is banished thence, and with it corruption and vice.
In the cities of Greece, where they were not under the restraint of a
religion which declares that even amongst men regularity of manners is a
part of virtue; where a blind passion triumphed with a boundless
insolence, and love appeared only in a shape which we dare not mention,
while marriage was considered as nothing more than simple
friendship;[18] such was the virtue, simplicity, and chastity of women
in those cities, that in this respect hardly any people were ever known
to have had a better and wiser polity.[19]
10. Of the domestic Tribunal among the Romans. The Romans had no
particular magistrates, like the Greeks, to inspect the conduct of
women. The censors had not an eye over them, as over the rest of the
republic.
The institution of the domestic tribunal[20] supplied the magistracy
established among the Greeks.[21]
The husband summoned the wife's relatives, and tried her in their
presence.[22] This tribunal preserved the manners of the republic; and
at the same time those very manners maintained this tribunal. For it
decided not only in respect to the violation of the laws, but also of
manners: now, in order to judge of the violation of the latter, manners
are requisite. The penalties inflicted by this tribunal ought to be, and
actually were, arbitrary: for all that relates to manners, and to the
rules of modesty, can hardly be comprised under one code of laws. It is
easy indeed to regulate by laws what we owe to others; but it is very
difficult of comprise all we owe to ourselves.
The domestic tribunal inspected the general conduct of women: but there
was one crime which, beside the animadversion of this tribunal, was
likewise subject to a public accusation. This was adultery; whether that
in a republic so great a depravation of manners interested the
government; or whether the wife's immorality might render the husband
suspected; or whether, in fine, they were afraid lest even honest people
might choose that this crime should rather be concealed than punished.
11. In what Manner the Institutions changed at Rome, together with the
Government. As manners were supported by the domestic tribunal, they
were also supported by the public accusation; and hence it is that these
two things fell together with the public manners, and ended with the
republic.[23]
The establishing of perpetual questions, that is, the division of
jurisdiction among the prætors, and the custom gradually introduced of
the prætors determining all causes themselves,[24] weakened the use of
the domestic tribunal. This appears by the surprise of historians, who
look upon the decisions which Tiberius caused to be given by this
tribunal as singular facts, and as a renewal of the ancient course of
pleading.
The establishment of monarchy and the change of manners put likewise an
end to public accusations. It might be apprehended lest a dishonest man,
affronted at the slight shown him by a woman, vexed at her refusal, and
irritated even by her virtue, should form a design to destroy her. The
Julian law ordained that a woman should not be accused of adultery till
after her husband had been charged with favouring her irregularities;
which limited greatly, and annihilated, as it were, this sort of
accusation.[25] Sextus Quintus seemed to have been desirous of reviving
the public accusations.[26] But there needs very little reflection to
see that this law would be more improper in such a monarchy as his than
in any other.
12. Of the Guardianship of Women among the Romans. The Roman laws
subjected women to a perpetual guardianship, except they were under
cover and subject to the authority of a husband.[27] This guardianship
was given to the nearest of the male relatives; and by a vulgar
expression[28] it appears they were very much confined. This was proper
for a republic, but not at all necessary in a monarchy.[29]
That the women among the ancient Germans were likewise under a perpetual
tutelage appears from the different codes of the Laws of the
Barbarians.[30] This custom was communicated to the monarchies founded
by those people; but was not of long duration.
13. Of the Punishments decreed by the Emperors against the Incontinence
of Women. The Julian law ordained a punishment against adultery. But so
far was this law, any more than those afterwards made on the same
account, from being a mark of regularity of manners, that on the
contrary it was a proof of their depravity.
The whole political system in respect to women received a change in the
monarchical state. The question was no longer to oblige them to a
regularity of manners, but to punish their crimes. That new laws were
made to punish their crimes was owing to their leaving those
transgressions unpunished which were not of so criminal a nature.
The frightful dissolution of manners obliged indeed the emperors to
enact laws in order to put some stop to lewdness; but it was not their
intention to establish a general reformation. Of this the positive facts
related by historians are a much stronger proof than all these laws can
be of the contrary. We may see in Dio the conduct of Augustus on this
occasion, and in what manner he eluded, both in his prætorian and
censorian office, the repeated instances that were made him[31] for that
purpose.
It is true that we find in historians very rigid sentences, passed in
the reigns of Augustus and Tiberius, against the lewdness of some Roman
ladies: but by showing us the spirit of those reigns, at the same time
they demonstrate the spirit of those decisions.
The principal design of Augustus and Tiberius was to punish the
dissoluteness of their relatives. It was not their immorality they
punished, but a particular crime of impiety or high treason[32] of their
own invention, which served to promote a respect for majesty, and
answered their private revenge. Hence it is that the Roman historians
inveigh so bitterly against this tyranny.
The penalty of the Julian law was small.[33] The emperors insisted that
in passing sentence the judges should increase the penalty of the law.
This was the subject of the invectives of historians. They did not
examine whether the women were deserving of punishment, but whether they
had violated the law, in order to punish them.
One of the most tyrannical proceedings of Tiberius[34] was the abuse he
made of the ancient laws. When he wanted to extend the punishment of a
Roman lady beyond that inflicted by the Julian law, he revived the
domestic tribunal.[35]
These regulations in respect to women concerned only senatorial
families, not the common people. Pretences were wanted to accuse the
great, which were constantly furnished by the dissolute behaviour of the
ladies.
In fine, what I have above observed, namely, that regularity of manners
is not the principle of monarchy, was never better verified than under
those first emperors; and whoever doubts it need only read Tacitus,
Suetonius, Juvenal, or Martial.
14. Sumptuary Laws among the Romans. We have spoken of public
incontinence because it is the inseparable companion of luxury. If we
leave the motions of the heart at liberty, how shall we be able to
restrain the weaknesses of the mind?
At Rome, besides the general institutions, the censors prevailed on the
magistrates to enact several particular laws for maintaining the
frugality of women. This was the design of the Fannian, Licinian, and
Oppian laws. We may see in Livy[36] the great ferment the senate was in
when the women insisted upon the revocation of the Oppian law. The
abrogation of this law is fixed upon by Valerius Maximus as the period
whence we may date the luxury of the Romans.
15. Of Dowries and Nuptial Advantages in different Constitutions.
Dowries ought to be considerable in monarchies, in order to enable
husbands to support their rank and the established luxury. In republics,
where luxury should never reign,[37] they ought to be moderate; but
there should be hardly any at all in despotic governments, where women
are in some measure slaves.
The community of goods introduced by the French laws between man and
wife is extremely well adapted to a monarchical government; because the
women are thereby interested in domestic affairs, and compelled, as it
were, to take care of their family. It is less so in a republic, where
women are possessed of more virtue. But it would be quite absurd in
despotic governments, where the women themselves generally constitute a
part of the master's property.
As women are in a state that furnishes sufficient inducements to
marriage, the advantages which the law gives them over the husband's
property are of no service to society. But in a republic they would be
extremely prejudicial, because riches are productive of luxury. In
despotic governments the profits accruing from marriage ought to be mere
subsistence, and no more.
16. An excellent Custom of the Samnites. The Samnites had a custom which
in so small a republic, and especially in their situation, must have
been productive of admirable effects. The young people were all convened
in one place, and their conduct was examined. He that was declared the
best of the whole assembly had leave given him to take which girl he
pleased for his wife; the second best chose after him; and so on.[38]
Admirable institution! The only recommendation that young men could have
on this occasion was their virtue and the services done their country.
He who had the greatest share of these endowments chose which girl he
liked out of the whole nation. Love, beauty, chastity, virtue, birth,
and even wealth itself, were all, in some measure, the dowry of virtue.
A nobler and grander recompense, less chargeable to a petty state, and
more capable of influencing both sexes, could scarcely be imagined.
The Samnites were descended from the Lacedæmonians; and Plato, whose
institutes are only an improvement of those of Lycurgus, enacted nearly
the same law.[39]
17. Of Female Administration. It is contrary to reason and nature that
women should reign in families, as was customary among the Egyptians;
but not that they should govern an empire. In the former case the state
of their natural weakness does not permit them to have the pre-eminence;
in the latter their very weakness generally gives them more lenity and
moderation, qualifications fitter for a good administration than
roughness and severity.
In the Indies they are very easy under a female government; and it is
settled that if the male issue be not of a mother of the same blood, the
females born of a mother of the blood-royal must succeed.[40] And then
they have a certain number of persons who assist them to bear the weight
of the government. According to Mr. Smith,[41] they are very easy in
Africa under female administration. If to this we add the example of
England and Russia, we shall find that they succeed alike both in
moderate and despotic governments.
______
1. The first census was the hereditary share in land, and Plato would
not allow them to have, in other effects, above a triple of the
hereditary share. See his Laws, v.
2. "In large and populous cities," says the author of the Fable of the
Bees, i, p. 133, "they wear clothes above their rank, and, consequently,
have the pleasure of being esteemed by a vast majority, not as what they
are, but what they appear to be. They have the satisfaction of imagining
that they appear what they would be: which, to weak minds, is a pleasure
almost as substantial as they could reap from the very accomplishment of
their wishes."
3. Chapters 3, 4.
4. Fragment of the 36th book of Diodorus, quoted by Constantine
Porphyrogenitus, in his Extract of Virtues and Vices.
5. Cum maximus omnium impetus ad luxuriant esset. -- Ibid.
6. De Moribus Germanorum, 44.
7. Dio Cassius, liv. 16.
8. Tacitus, Annals, iii. 34.
9. Malta duritiei veterum melius et latius mutata -- Tacitus,Annals,
iii. 34.
10. Opulentia paritura mox egestatem. -- Florus, iii. 12.
11. Constitution of James I in the year 1234, art. 6, in Marca
Hispanica, p. 1429.
12. They have prohibited rich wines and other costly merchandise.
13. Lettres persanes, 106. See below, xx. 20.
14. Luxury has been here always prohibited.
15. In an ordinance quoted by Father Du Halde, ii, p. 497.
16. History of China, 21st Dynasty, in Father Du Halde's work, i.
17. In a discourse cited by Father Du Halde, iii, p. 418.
18. "In respect to true love," says Plutarch, "the women have nothing to
say to it." In his Treatise of Love, p. 600. He spoke in the style of
his time. See Xenophon in the dialogue intitled Hiero.
19. At Athens there was a particular magistrate who inspected the
conduct of women.
20. Romulus instituted this tribunal, as appears from Dionysius
Halicarnassus, ii, p. 96.
21. See in Livy, xxxix, the use that was made of this tribunal at the
time of the conspiracy of the Bacchanalians (they gave the name of
conspiracy against the republic to assemblies in which the morals of
women and young people were debauched.)
22. It appears from Dionysius Halicarnassus, ii, that Romulus's
institution was that in ordinary cases the husband should sit as judge
in the presence of the wife's relatives, but that in heinous crimes he
should determine in conjunction with five of them. Hence Ulpian, tit. 6,
9, 12, 13, distinguishes in respect to the different judgments of
manners between those which he calls important, and those which are less
so: mores graviores, mores leviores.
23. Judicio de moribus (quod antea quidem in antiquis legibus positum
erat, non autem frequentabatur) penitus abolito. Leg. 11. Cod. de repud.
24. Judicia extraordinaria.
25. It was entirely abolished by Constantine: "It is a shame," said he,
"that settled marriages should be disturbed by the presumption of
strangers."
26. Sextus Quintus ordained, that if a husband did not come and make his
complaint to him of his wife's infidelity, he should be put to death.
See Leti, Life of Sextus V.
27. Nisi convenissent in manum viri.
28. Ne sis mihi patruus oro.
29. The Papian law ordained, under Augustus, that women who had borne
three children should be exempt from this tutelage.
30. This tutelage was by the Germans called Mundeburdium.
31. Upon their bringing before him a young man who had married a woman
with whom he had before carried on an illicit commerce, he hesitated a
long while, not daring to approve or to punish these things. At length
recollecting himself, "Seditions," says he, "have been the cause of very
great evils; let us forget them." Dio, liv. 16. The senate having
desired him to give them some regulations in respect to women's morals,
he evaded their petition by telling them that they should chastise their
wives in the same manner as he did his; upon which they desired him to
tell them how he behaved to his wife. (I think a very indiscreet
question.)
32. Tacitus, Annals, iii. 24.
33. This law is given in the Digest, but without mentioning the penalty.
It is supposed it was only relegatio, because that of incest was only
deportatio. Leg., si quis viduam, ff. de quæst.
34. Tacitus, Annals, iv. 19.
35. Ibid., ii. 50.
36. Dec. 4, iv.
37. Marseilles was the wisest of all the republics in its time; here it
was ordained that dowries should not exceed one hundred crowns in money,
and five in clothes, as Strabo observes, iv.
38. Fragment of Nicolaus Damascenus, taken from Stobæus in the
collection of Constantine Porphyrogenitus.
39. He even permits them to have a more frequent interview with one
another.
40. Edifying Letters, coll. xiv.
41. Voyage to Guinea, part the second, p. 165, of the kingdom of Angola,
on the Golden Coast.
------------------------------------------------------------------------
Book VIII. Of the Corruption of the Principles of the Three Governments
1. General Idea of this Book. The corruption of this government
generally begins with that of the principles.
2. Of the Corruption of the Principles of Democracy. The principle of
democracy is corrupted not only when the spirit of equality is extinct,
but likewise when they fall into a spirit of extreme equality, and when
each citizen would fain be upon a level with those whom he has chosen to
command him. Then the people, incapable of bearing the very power they
have delegated, want to manage everything themselves, to debate for the
senate, to execute for the magistrate, and to decide for the judges.
When this is the case, virtue can no longer subsist in the republic. The
people are desirous of exercising the functions of the magistrates, who
cease to be revered. The deliberations of the senate are slighted; all
respect is then laid aside for the senators, and consequently for old
age. If there is no more respect for old age, there will be none
presently for parents; deference to husbands will be likewise thrown
off, and submission to masters. This licence will soon become general,
and the trouble of command be as fatiguing as that of obedience. Wives,
children, slaves will shake off all subjection. No longer will there be
any such thing as manners, order, or virtue.
We find in Xenophon's Banquet a very lively description of a republic in
which the people abused their equality. Each guest gives in his turn the
reason why he is satisfied. "Content I am," says Chamides, "because of
my poverty. When I was rich, I was obliged to pay my court to informers,
knowing I was more liable to be hurt by them than capable of doing them
harm. The republic constantly demanded some new tax of me; and I could
not decline paying. Since I have grown poor, I have acquired authority;
nobody threatens me; I rather threaten others. I can go or stay where I
please. The rich already rise from their seats and give me the way. I am
a king, I was before a slave: I paid taxes to the republic, now it
maintains me: I am no longer afraid of losing: but I hope to acquire."
The people fall into this misfortune when those in whom they confide,
desirous of concealing their own corruption, endeavour to corrupt them.
To disguise their own ambition, they speak to them only of the grandeur
of the state; to conceal their own avarice, they incessantly flatter
theirs.
The corruption will increase among the corruptors, and likewise among
those who are already corrupted. The people will divide the public money
among themselves, and, having added the administration of affairs to
their indolence, will be for blending their poverty with the amusements
of luxury. But with their indolence and luxury, nothing but the public
treasure will be able to satisfy their demands.
We must not be surprised to see their suffrages given for money. It is
impossible to make great largesses to the people without great
extortion: and to compass this, the state must be subverted. The greater
the advantages they seem to derive from their liberty, the nearer they
approach towards the critical moment of losing it. Petty tyrants arise
who have all the vices of a single tyrant. The small remains of liberty
soon become insupportable; a single tyrant starts up, and the people are
stripped of everything, even of the profits of their corruption.
Democracy has, therefore, two excesses to avoid -- the spirit of
inequality, which leads to aristocracy or monarchy, and the spirit of
extreme equality, which leads to despotic power, as the latter is
completed by conquest.
True it is that those who corrupted the Greek republics did not always
become tyrants. This was because they had a greater passion for
eloquence than for the military art. Besides there reigned an implacable
hatred in the breasts of the Greeks against those who subverted a
republican government; and for this reason anarchy degenerated into
annihilation, instead of being changed into tyranny.
But Syracuse being situated in the midst of a great number of petty
states, whose government had been changed from oligarchy to tyranny,[1]
and being governed by a senate[2] scarcely ever mentioned in history,
underwent such miseries as are the consequence of a more than ordinary
corruption. This city, ever a prey to licentiousness[3] or oppression,
equally labouring under the sudden and alternate succession of liberty
and servitude, and notwithstanding her external strength, constantly
determined to a revolution by the least foreign power -- this city, I
say, had in her bosom an immense multitude of people, whose fate it was
to have always this cruel alternative, either of choosing a tyrant to
govern them, or of acting the tyrant themselves.
3. Of the Spirit of extreme Equality. As distant as heaven is from
earth, so is the true spirit of equality from that of extreme equality.
The former does not imply that everybody should command, or that no one
should be commanded, but that we obey or command our equals. It
endeavours not to shake off the authority of a master, but that its
masters should be none but its equals.
In the state of nature, indeed, all men are born equal, but they cannot
continue in this equality. Society makes them lose it, and they recover
it only by the protection of the laws.
Such is the difference between a well-regulated democracy and one that
is not so, that in the former men are equal only as citizens, but in the
latter they are equal also as magistrates, as senators, as judges, as
fathers, as husbands, or as masters.
The natural place of virtue is near to liberty; but it is not nearer to
excessive liberty than to servitude.
4. Particular Cause of the Corruption of the People. Great success,
especially when chiefly owing to the people, intoxicates them to such a
degree that it is impossible to contain them within bounds. Jealous of
their magistrates, they soon became jealous likewise of the magistracy;
enemies to those who govern, they soon prove enemies also to the
constitution. Thus it was that the victory over the Persians in the
straits of Salamis corrupted the republic of Athens;[4] and thus the
defeat of the Athenians ruined the republic of Syracuse.[5]
Marseilles never experienced those great transitions from lowness to
grandeur; this was owing to the prudent conduct of that republic, which
always preserved her principles.
5. Of the Corruption of the Principle of Aristocracy. Aristocracy is
corrupted if the power of the nobles becomes arbitrary: when this is the
case, there can no longer be any virtue either in the governors or the
governed.
If the reigning families observe the laws, it is a monarchy with several
monarchs, and in its own nature one of the most excellent; for almost
all these monarchs are tied down by the laws. But when they do not
observe them, it is a despotic state swayed by a great many despotic
princes.
In the latter case, the republic consists only in the nobles. The body
governing is the republic; and the body governed is the despotic state;
which forms two of the most heterogeneous bodies in the world.
The extremity of corruption is when the power of the nobles becomes
hereditary;[6] for then they can hardly have any moderation. If they are
only a few, their power is greater, but their security less: if they are
a larger number, their power is less, and their security greater,
insomuch that power goes on increasing, and security diminishing, up to
the very despotic prince who is encircled with excess of power and
danger.
The great number, therefore, of nobles in an hereditary aristocracy
renders the government less violent: but as there is less virtue, they
fall into a spirit of supineness and negligence, by which the state
loses all its strength and activity.[7]
An aristocracy may maintain the full vigour of its constitution if the
laws be such as are apt to render the nobles more sensible of the perils
and fatigues than of the pleasure of command: and if the government be
in such a situation as to have something to dread, while security
shelters under its protection, and uncertainty threatens from abroad.
As a certain kind of confidence forms the glory and stability of
monarchies, republics, on the contrary, must have something to
apprehend.[8] A fear of the Persians supported the laws of Greece.
Carthage and Rome were alarmed, and strengthened by each other. Strange,
that the greater security those states enjoyed, the more, like stagnated
waters, they were subject to corruption!
6. Of the Corruption of the Principle of Monarchy. As democracies are
subverted when the people despoil the senate, the magistrates, the
judges of their functions, so monarchies are corrupted when the prince
insensibly deprives societies or cities of their privileges. In the
former case the multitude usurp the power, in the latter it is usurped
by a single person.
"The destruction of the dynasties of Tsin and Soui," says a Chinese
author, "was owing to this: the princes, instead of confining
themselves, like their ancestors, to a general inspection, the only one
worthy of a sovereign, wanted to govern everything immediately by
themselves."[9] The Chinese author gives us in this instance the cause
of the corruption of almost all monarchies.
Monarchy is destroyed when a prince thinks he shows a greater exertion
of power in changing than in conforming to the order of things; when he
deprives some of his subjects of their hereditary employments to bestow
them arbitrarily upon others; and when he is fonder of being guided by
fancy than judgment.
Again, it is destroyed when the prince, directing everything entirely to
himself, calls the state to his capital, the capital to his court, and
the court to his own person.
It is destroyed, in fine, when the prince mistakes his authority, his
situation and the love of his people, and when he is not fully persuaded
that a monarch ought to think himself secure, as a despotic prince ought
to think himself in danger.
7. The same Subject continued. The principle of monarchy is corrupted
when the first dignities are marks of the first servitude, when the
great men are deprived of public respect, and rendered the low tools of
arbitrary power.
It is still more corrupted when honour is set up in contradiction to
honours, and when men are capable of being loaded at the very same time
with infamy[10] and with dignities.
It is corrupted when the prince changes his justice into severity; when
he puts, like the Roman emperors, a Medusa's head on his breast;[11] and
when he assumes that menacing and terrible air which Commodus ordered to
be given to his statues.[12]
Again, it is corrupted when mean and abject souls grow vain of the pomp
attending their servitude, and imagine that the motive which induces
them to be entirely devoted to their prince exempts them from all duty
to their country.
But if it be true (and indeed the experience of all ages has shown it)
that in proportion as the power of the monarch becomes boundless and
immense, his security diminishes, is the corrupting of this power, and
the altering of its very nature, a less crime than that of high treason
against the prince?
8. Danger of the Corruption of the Principle of monarchical Government.
The danger is not when the state passes from one moderate to another
moderate government, as from a republic to a monarchy, or from a
monarchy to a republic; but when it is precipitated from a moderate to a
despotic government.
Most of the European nations are still governed by the principles of
morality. But if from a long abuse of power or the fury of conquest,
despotic sway should prevail to a certain degree, neither morals nor
climate would be able to withstand its baleful influence: and then human
nature would be exposed, for some time at least, even in this beautiful
part of the world, to the insults with which she has been abused in the
other three.
9. How ready the Nobility are to defend the Throne. The English nobility
buried themselves with Charles the First under the ruins of the throne;
and before that time, when Philip the Second endeavoured to tempt the
French with the allurement of liberty, the crown was constantly
supported by a nobility who think it an honour to obey a king, but
consider it as the lowest disgrace to share the power with the people.
The house of Austria has ever used her endeavours to oppress the
Hungarian nobility; little thinking how serviceable that very nobility
would be one day to her. She would fain have drained their country of
money, of which they had no plenty; but took no notice of the men, with
whom it abounded. When princes combined to dismember her dominions, the
several parts of that monarchy fell motionless, as it were one upon
another. No life was then to be seen but in those very nobles, who,
resenting the affronts offered to the sovereign, and forgetting the
injuries done to themselves, took up arms to avenge her cause, and
considered it the highest glory bravely to die and to forgive.
10. Of the Corruption of the Principle of despotic Government. The
principle of despotic government is subject to a continual corruption,
because it is even in its nature corrupt. Other governments are
destroyed by particular accidents, which do violence to the principles
of each constitution; this is ruined by its own intrinsic imperfections,
when some accidental causes do not prevent the corrupting of its
principles. It maintains itself therefore only when circumstances, drawn
from the climate, religion, situation, or genius of the people, oblige
it to conform to order, and to admit of some rule. By these things its
nature is forced without being changed; its ferocity remains; and it is
made tame and tractable only for a time.
11. Natural Effects of the Goodness and Corruption of the Principles of
Government. When once the principles of government are corrupted, the
very best laws become bad, and turn against the state: but when the
principles are sound, even bad laws have the same effect as good; the
force of the principle draws everything to it.
The inhabitants of Crete used a very singular method to keep the
principal magistrates dependent on the laws, which was that of
Insurrection. Part of the citizens rose up in arms,[13] put the
magistrates to flight, and obliged them to return to a private life.
This was supposed to be done in consequence of the law. One would have
imagined that an institution of this nature, which established sedition
to hinder the abuse of power, would have subverted any republic
whatsoever; and yet it did not subvert that of Crete. The reason is
this.[14]
When the ancients would cite a people that had the strongest affection
for their country, they were sure to mention the inhabitants of Crete:
"Our Country," said Plato,[15] "a name so dear to the Cretans." They
called it by a name which signifies the love of a mother for her
children.[16] Now the love of our country sets everything right.
The laws of Poland have likewise their Insurrection: but the
inconveniences thence arising plainly show that the people of Crete
alone were capable of using such a remedy with success.
The gymnic exercises established among the Greeks had the same
dependence on the goodness of the principle of government. "It was the
Lacedæmonians and Cretans," said Plato,[17] "that opened those
celebrated academies which gave them so eminent a rank in the world.
Modesty at first was alarmed; but it yielded to the public utility." In
Plato's time these institutions were admirable:[18] as they bore a
relation to a very important object, which was the military art. But
when virtue fled from Greece, the military art was destroyed by these
institutions; people appeared then on the arena, not for improvement,
but for debauch.[19] Plutarch informs us[20] that the Romans in his time
were of opinion that those games had been the principal cause of the
slavery into which the Greeks had fallen. On the contrary, it was the
slavery of the Greeks that corrupted those exercises. In Plutarch's
time,[21] their fighting naked in the parks, and their wrestling,
infected the young people with a spirit of cowardice, inclined them to
infamous passions, and made them mere dancers. But under Epaminondas the
exercise of wrestling made the Thebans win the famous battle of
Leuctra.[22]
There are very few laws which are not good, while the state retains its
principles: here I may apply what Epicurus said of riches. "It is not
the liquor, but the vessel that is corrupted."
12. The same Subject continued. In Rome the judges were chosen at first
from the order of senators. This privilege the Gracchi transferred to
the knights; Drusus gave it to the senators and knights; Sulla to the
senators only: Cotta to the senators, knights, and public treasurers;
Cæsar excluded the latter; Antony made decuries of senators, knights,
and centurions.
When once a republic is corrupted, there is no possibility of remedying
any of the growing evils, but by removing the corruption and restoring
its lost principles; every other correction is either useless or a new
evil. While Rome preserved her principles entire, the judicial power
might without any abuse be lodged in the hands of senators; but as soon
as this city became corrupt, to whatsoever body that power was
transferred, whether to the senate, to the knights, to the treasurers,
to two of those bodies, to all three together, or to any other, matters
still went wrong. The knights had no more virtue than the senate, the
treasurers no more than the knights, and these as little as the
centurions.
After the people of Rome had obtained the privilege of sharing the
magistracy with the patricians, it was natural to think that their
flatterers would immediately become arbiters of the government. But no
such thing ever happened. -- It was observable that the very people who
had rendered the plebeians capable of public offices ever fixed their
choice upon the patricians. Because they were virtuous, they were
magnanimous; and because they were free, they had a contempt of power.
But when their morals were corrupted, the more power they were possessed
of, the less prudent was their conduct, till at length, upon becoming
their own tyrants and slaves, they lost the strength of liberty to fall
into the weakness and impotency of licentiousness.
13. The Effect of an Oath among virtuous People. There is no nation,
says Livy,[23] that has been longer uncorrupted than the Romans; no
nation where moderation and poverty have been longer respected.
Such was the influence of an oath among those people that nothing bound
them more strongly to the laws. They often did more for the observance
of an oath than they would ever have performed for the thirst of glory
or for the love of their country.
When Quintus Cincinnatus, the consul, wanted to raise an army in the
city against the Æqui and the Volsci, the tribunes opposed him. "Well,"
said he, "let all those who have taken an oath to the consul of the
preceding year march under my banner."[24] In vain did the tribunes cry
out that this oath was no longer binding, and that when they took it
Quintus was but a private person: the people were more religious than
those who pretended to direct them; they would not listen to the
distinctions or equivocations of the tribunes.
When the same people thought of retiring to the Sacred Mount, they felt
some remorse from the oath they had taken to the consuls, that they
would follow them into the field.[25] They entered then into a design of
killing the consuls; but dropped it when they were given to understand
that their oath would still be binding. Now it is easy to judge of the
notion they entertained of the violation of an oath from the crime they
intended to commit.
After the battle of Cannæ, the people were seized with such a panic that
they would fain have retired to Sicily. But Scipio having prevailed upon
them to swear they would not stir from Rome, the fear of violating this
oath surpassed all other apprehensions. Rome was a ship held by two
anchors, religion and morality, in the midst of a furious tempest.
14. How the smallest Change of the Constitution is attended with the
Ruin of its Principles. Aristotle mentions the city of Carthage as a
well-regulated republic. Polybius tells us[26] that there was this
inconvenience at Carthage in the second Punic war, that the senate had
lost almost all its authority. We are informed by Livy that when
Hannibal returned to Carthage he found that the magistrates and the
principal citizens had abused their power, and converted the public
revenues to their private emolument. The virtue, therefore, of the
magistrates, and the authority of the senate, both fell at the same
time; and all was owing to the same cause.
Every one knows the wonderful effects of the censorship among the
Romans. There was a time when it grew burdensome; but still it was
supported because there was more luxury than corruption. Claudius[27]
weakened its authority, by which means the corruption became greater
than the luxury, and the censorship dwindled away of itself.[28] After
various interruptions and resumptions, it was entirely laid aside, till
it became altogether useless, that is, till the reigns of Augustus and
Claudius.
15. Sure Methods of preserving the three Principles. I shall not be able
to make myself rightly understood till the reader has perused the four
following chapters.
16. Distinctive Properties of a Republic. It is natural for a republic
to have only a small territory; otherwise it cannot long subsist. In an
extensive republic there are men of large fortunes, and consequently of
less moderation; there are trusts too considerable to be placed in any
single subject; he has interests of his own; he soon begins to think
that he may be happy and glorious, by oppressing his fellow-citizens;
and that he may raise himself to grandeur on the ruins of his country.
In an extensive republic the public good is sacrificed to a thousand
private views; it is subordinate to exceptions, and depends on
accidents. In a small one, the interest of the public is more obvious,
better understood, and more within the reach of every citizen; abuses
have less extent, and of course are less protected.
The long duration of the republic of Sparta was owing to her having
continued in the same extent of territory after all her wars. The sole
aim of Sparta was liberty; and the sole advantage of her liberty, glory.
It was the spirit of the Greek republics to be as contented with their
territories as with their laws. Athens was first fired with ambition and
gave it to Lacedæmon; but it was an ambition rather of commanding a free
people than of governing slaves; rather of directing than of breaking
the union. All was lost upon the starting up of monarchy -- a government
whose spirit is more turned to increase of dominion.
Excepting particular circumstances,[29] it is difficult for any other
than a republican government to subsist longer in a single town. A
prince of so petty a state would naturally endeavour to oppress his
subjects, because his power would be great, while the means of enjoying
it or of causing it to be respected would be inconsiderable. The
consequence is, he would trample upon his people. On the other hand,
such a prince might be easily crushed by a foreign or even a domestic
force; the people might any instant unite and rise up against him. Now
as soon as the sovereign of a single town is expelled, the quarrel is
over; but if he has many towns, it only begins.
17. Distinctive Properties of a Monarchy. A monarchical state ought to
be of moderate extent. Were it small, it would form itself into a
republic; were it very large, the nobility, possessed of great estates,
far from the eye of the prince, with a private court of their own, and
secure, moreover, from sudden executions by the laws and manners of the
country -- such a nobility, I say, might throw off their allegiance,
having nothing to fear from too slow and too distant a punishment.
Thus Charlemagne had scarcely founded his empire when he was obliged to
divide it; whether the governors of the provinces refused to obey; or
whether, in order to keep them more under subjection, there was a
necessity of parcelling the empire into several kingdoms.
After the decease of Alexander his empire was divided. How was it
possible for those Greek and Macedonian chiefs, who were each of them
free and independent, or commanders at least of the victorious bands
dispersed throughout that vast extent of conquered land -- how was it
possible, I say, for them to obey?
Attila's empire was dissolved soon after his death; such a number of
kings, who were no longer under restraint, could not resume their
fetters.
The sudden establishment of unlimited power is a remedy, which in those
cases may prevent a dissolution: but how dreadful the remedy, which
after the enlargement of dominion opens a new scene of misery!
The rivers hasten to mingle their waters with the sea; and monarchies
lose themselves in despotic power.
18. Particular Case of the Spanish Monarchy. Let not the example of
Spain be produced against me, it rather proves what I affirm. To
preserve America she did what even despotic power itself does not
attempt: she destroyed the inhabitants. To preserve her colony, she was
obliged to keep it dependent even for its subsistence.
In the Netherlands, she essayed to render herself arbitrary; and as soon
as she abandoned the attempt, her perplexity increased. On the one hand
the Walloons would not be governed by Spaniards; and on the other, the
Spanish soldiers refused to submit to Walloon officers.[30]
In Italy she maintained her ground, merely by exhausting herself and by
enriching that country. For those who would have been pleased to have
got rid of the king of Spain were not in a humour to refuse his gold.
19. Distinctive Properties of a despotic Government. A large empire
supposes a despotic authority in the person who governs. It is necessary
that the quickness of the prince's resolutions should supply the
distance of the places they are sent to; that fear should prevent the
remissness of the distant governor or magistrate; that the law should be
derived from a single person, and should shift continually, according to
the accidents which necessarily multiply in a state in proportion to its
extent.
20. Consequence of the preceding Chapters. If it be, therefore, the
natural property of small states to be governed as a republic, of
middling ones to be subject to a monarch, and of large empires to be
swayed by a despotic prince; the consequence is, that in order to
preserve the principles of the established government, the state must be
supported in the extent it has acquired, and that the spirit of this
state will alter in proportion as it contracts or extends its limits.
21. Of the Empire of China. Before I conclude this book, I shall answer
an objection that may be made to the foregoing doctrine.
Our missionaries inform us that the government of the vast empire of
China is admirable, and that it has a proper mixture of fear, honour,
and virtue. Consequently I must have given an idle distinction in
establishing the principles of the three governments.
But I cannot conceive what this honour can be among a people who act
only through fear of being bastinadoed.[31]
Again, our merchants are far from giving us any such accounts of the
virtue so much talked of by the missionaries; we need only consult them
in relation to the robberies and extortions of the mandarins.[32] I
likewise appeal to another unexceptional witness, the great Lord Anson.
Besides, Father Perennin's letters concerning the emperor's proceedings
against some of the princes of the blood[33] who had incurred his
displeasure by their conversion, plainly show us a settled plan of
tyranny, and barbarities committed by rule, that is, in cold blood.
We have likewise Monsieur de Mairan's, and the same Father Perennin's,
letters on the government of China. I find therefore that after a few
proper questions and answers the whole mystery is unfolded.
Might not our missionaries have been deceived by an appearance of order?
Might not they have been struck with that constant exercise of a single
person's will -- an exercise by which they themselves are governed, and
which they are so pleased to find in the courts of the Indian princes;
because as they go thither only in order to introduce great changes, it
is much easier to persuade those princes that there are no bounds to
their power, than to convince the people that there are none to their
submission.[34]
In fine, there is frequently some kind of truth even in errors
themselves. It may be owing to particular and, perhaps, very
extraordinary circumstances that the Chinese government is not so
corrupt as one might naturally expect. The climate and some other
physical causes may, in that country, have had so strong an influence on
their morals as in some measure to produce wonders.
The climate of China is surprisingly favourable to the propagation of
the human species.[35] The women are the most prolific in the whole
world. The most barbarous tyranny can put no stop to the progress of
propagation. The prince cannot say there like Pharaoh, "Let us deal
wisely with them, lest they multiply." He would be rather reduced to
Nero's wish, that mankind had all but one head. In spite of tyranny,
China by the force of its climate will be ever populous, and triumph
over the tyrannical oppressor.
China, like all other countries that live chiefly upon rice, is subject
to frequent famines. When the people are ready to starve, they disperse
in order to seek for nourishment; in consequence of which, gangs of
robbers are formed on every side. Most of them are extirpated in their
very infancy; others swell, and are likewise suppressed. And yet in so
great a number of such distant provinces, some band or other may happen
to meet with success. In that case they maintain their ground,
strengthen their party, form themselves into a military body, march up
to the capital, and place their leader on the throne.
From the very nature of things, a bad administration is here immediately
punished. The want of subsistence in so populous a country produces
sudden disorders. The reason why the redress of abuses in other
countries is attended with such difficulty is because their effects are
not immediately felt; the prince is not informed in so sudden and
sensible a manner as in China.
The Emperor of China is not taught like our princes that if he governs
ill he will be less happy in the other life, less powerful and less
opulent in this. He knows that if his government be not just he will be
stripped both of empire and life.
As China grows every day more populous, notwithstanding the exposing of
children,[36] the inhabitants are incessantly employed in tilling the
lands for their subsistence. This requires a very extraordinary
attention in the government. It is their perpetual concern that every
man should have it in his power to work, without the apprehension of
being deprived of the fruits of his labour. Consequently this is not so
much a civil as a domestic government.
Such has been the origin of those regulations which have been so greatly
extolled. They wanted to make the laws reign in conjunction with
despotic power; but whatever is joined to the latter loses all its
force. In vain did this arbitrary sway, labouring under its own
inconveniences, desire to be fettered; it armed itself with its chains,
and has become still more terrible.
China is therefore a despotic state, whose principle is fear. Perhaps in
the earliest dynasties, when the empire had not so large an extent, the
government might have deviated a little from this spirit; but the case
is otherwise at present.
______
1. See Plutarch in Timoleon and Dion.
2. It was that of the Six Hundred, of whom mention is made by Diodorus,
xix. 5.
3. Upon the expulsions of the tyrants, they made citizens of strangers
and mercenary troops, which gave rise to civil wars. -- Aristotle,
Politics, v. 3. The people having been the cause of the victory over the
Athenians, the republic was changed. -- Ibid., 4. The passion of two
young magistrates, one of whom carried off the other's boy, and in
revenge the other debauched his wife, was attended with a change in the
form of this republic. -- Ibid.
4. Ibid.
5. Ibid.
6. The aristocracy is changed into an oligarchy.
7. Venice is one of those republics that has enacted the best laws for
correcting the inconveniences of an hereditary aristocracy.
8. Justin attributes the extinction of Athenian virtue to the death of
Epaminondas. Having no further emulation, they spent their revenues in
feasts, frequentius coenam, quam castra visentes. Then it was that the
Macedonians emerged from obscurity, 9, 1. 6.
9. Compilation of works made under the Mings, related by Father Du
Halde, Description of China, ii, p. 648.
10. During the reign of Tiberius statues were erected to, and triumphal
ornaments conferred on, informers; which debased these honours to such a
degree that those who had really merited them disdained to accept them.
Frag. of Dio, lviii. 14, taken from the Extract of Virtues and Vices, by
Constantine Porphyrogenitus. See in Tacitus in what manner Nero, on the
discovery and punishment of a pretended conspiracy, bestowed triumphal
ornaments on Petronius Turpilianus, Nerva, and Tigellinus. -- Annals,
xiv. 72. See likewise how the generals refused to serve, because they
condemned the military honours: pervulgatis triumphi insignibus --
Ibid., xiii. 53.
11. In this state the prince knew extremely well the principle of his
government.
12. Herodian.
13. Aristotle, Politics, ii. 10.
14. They always united immediately against foreign enemies, which was
called Syncretism. -- Plutarch Moralia, p. 88.
15. Republic, ix.
16. Plutarch, Whether a Man Advanced in Years Ought to Meddle with
Public Affairs.
17. Republic, v.
18. The Gymnic art was divided into two parts, dancing and wrestling. In
Crete they had the armed dances of the Curetes; at Sparta they had those
of Castor and Pollux; at Athens the armed dances of Pallas, which were
extremely proper for those that were not yet of age for military
service. Wrestling is the image of war, said Plato Laws, vii. He
commends antiquity for having established only two dances, the pacific
and the Pyrrhic. See how the latter dance was applied to the military
art, Plato, ibid.
19. Aut libidinosce. Ladæas Lacedamonis palæstras. -- Mutual, iv, 55.
20. Plutarch, in the treatise entitled Questions Concerning the Affairs
of the Romans, question 40.
21. Ibid.
22. Plutarch, Table Propositions, book ii, question 5.
23. Book i, pref.
24. Livy, iii. 20.
25. Ibid., 32.
26. About a hundred years after.
27. See xi, 12.
28. See Dio, xxxviii, Cicero in Plutarch, Cicero to Atticus, iv. 10, 15.
Asconius on Cicero, De Divinatione.
29. As when a petty sovereign supports himself between two great powers
by means of their mutual jealousy; but then he has only a precarious
existence.
30. See M. Le Clerc, the History of the United Provinces.
31. "It is the cudgel that governs China," says Father Du Halde, Disc.
de la Chine, ii, p. 134.
32. Among others, De Lange's account.
33. Of the Family of Sourniama, Edifying Letters, coll. xviii.
34. See in Father Du Halde how the missionaries availed themselves of
the authority of Canhi to silence the mandarins, who constantly declared
that by the laws of the country no foreign worship could be established
in the empire.
35. See Lettres persanes, 210.
36. See the order of Tsongtou for tilling the land, in the Edifying
Letters, coll. xxi.
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Book IX. Of Laws in the Relation They Bear to a Defensive Force
1. In what Manner Republics provide for their Safety. If a republic be
small, it is destroyed by a foreign force; if it be large, it is ruined
by an internal imperfection.
To this twofold inconvenience democracies and aristocracies are equally
liable, whether they be good or bad. The evil is in the very thing
itself, and no form can redress it.
It is, therefore, very probable that mankind would have been, at length,
obliged to live constantly under the government of a single person, had
they not contrived a kind of constitution that has all the internal
advantages of a republican, together with the external force of a
monarchical, government. I mean a confederate republic.
This form of government is a convention by which several petty states
agree to become members of a larger one, which they intend to establish.
It is a kind of assemblage of societies, that constitute a new one,
capable of increasing by means of further associations, till they arrive
at such a degree of power as to be able to provide for the security of
the whole body.
It was these associations that so long contributed to the prosperity of
Greece. By these the Romans attacked the whole globe, and by these alone
the whole globe withstood them; for when Rome had arrived at her highest
pitch of grandeur, it was the associations beyond the Danube and the
Rhine -- associations formed by the terror of her arms -- that enabled
the barbarians to resist her.
Hence it proceeds that Holland,[1] Germany, and the Swiss cantons are
considered in Europe as perpetual republics.
The associations of cities were formerly more necessary than in our
times. A weak, defenceless town was exposed to greater danger. By
conquest it was deprived not only of the executive and legislative
power, as at present, but moreover of all human property.[2]
A republic of this kind, able to withstand an external force, may
support itself without any internal corruption; the form of this society
prevents all manner of inconveniences.
If a single member should attempt to usurp the supreme power, he could
not be supposed to have an equal authority and credit in all the
confederate states. Were he to have too great an influence over one,
this would alarm the rest; were he to subdue a part, that which would
still remain free might oppose him with forces independent of those
which he had usurped, and overpower him before he could be settled in
his usurpation.
Should a popular insurrection happen in one of the confederate states,
the others are able to quell it. Should abuses creep into one part, they
are reformed by those that remain sound. The state may be destroyed on
one side, and not on the other; the confederacy may be dissolved, and
the confederates preserve their sovereignty.
As this government is composed of petty republics, it enjoys the
internal happiness of each; and with regard to its external situation,
by means of the association, it possesses all the advantages of large
monarchies.
2. That a confederate Government ought to be composed of States of the
same Nature, especially of the republican Kind. The Canaanites were
destroyed by reason that they were petty monarchies, that had no union
or confederacy for their common defence; and, indeed, a confederacy is
not agreeable to the nature of petty monarchies.
As the confederate republic of Germany consists of free cities, and of
petty states subject to different princes, experience shows us that it
is much more imperfect than that of Holland and Switzerland.
The spirit of monarchy is war and enlargement of dominion: peace and
moderation are the spirit of a republic. These two kinds of government
cannot naturally subsist in a confederate republic.
Thus we observe, in the Roman history, that when the Veientes had chosen
a king, they were immediately abandoned by all the other petty republics
of Tuscany. Greece was undone as soon as the kings of Macedon obtained a
seat among the Amphyktyons.
The confederate republic of Germany, composed of princes and free towns,
subsists by means of a chief, who is, in some respects, the magistrate
of the union, in others, the monarch.
3. Other Requisites in a confederate Republic. In the republic of
Holland one province cannot conclude an alliance without the consent of
the others. This law, which is an excellent one, and even necessary in a
confederate republic, is wanting in the Germanic constitution, where it
would prevent the misfortunes that may happen to the whole confederacy,
through the imprudence, ambition, or avarice of a single member. A
republic united by a political confederacy has given itself entirely up,
and has nothing more to resign.
It is difficult for the united states to be all of equal power and
extent. The Lycian[3] republic was an association of twenty-three towns;
the large ones had three votes in the common council, the middling ones
two, and the small towns one. The Dutch republic consists of seven
provinces of different extent of territory, which have each one voice.
The cities of Lycia[4] contributed to the expenses of the state,
according to the proportion of suffrages. The provinces of the United
Netherlands cannot follow this proportion; they must be directed by that
of their power.
In Lycia[5] the judges and town magistrates were elected by the common
council, and according to the proportion already mentioned. In the
republic of Holland they are not chosen by the common council, but each
town names its magistrates. Were I to give a model of an excellent
confederate republic, I should pitch upon that of Lycia.
4. In what Manner despotic Governments provide for their Security. As
republics provide for their security by uniting, despotic governments do
it by separating, and by keeping themselves, as it were, single. They
sacrifice a part of the country; and by ravaging and desolating the
frontiers they render the heart of the empire inaccessible.
It is a received axiom in geometry that the greater the extent of
bodies, the more their circumference is relatively small. This practice,
therefore, of laying the frontiers waste is more tolerable in large than
in middling states.
A despotic government does all the mischief to itself that could be
committed by a cruel enemy, whose arms it were unable to resist.
It preserves itself likewise by another kind of separation, which is by
putting the most distant provinces into the hands of a great vassal. The
Mogul, the king of Persia, and the emperors of China have their
feudatories; and the Turks have found their account in putting the
Tartars, the Moldavians, the Wallachians, and formerly the
Transylvanians, between themselves and their enemies.
5. In what Manner a Monarchical Government provides for its Security. A
monarchy never destroys itself like a despotic government. But a kingdom
of a moderate extent is liable to sudden invasions: it must therefore
have fortresses to defend its frontiers; and troops to garrison those
fortresses. The least spot of ground is disputed with military skill and
resolution. Despotic states make incursions against one another; it is
monarchies only that wage war.
Fortresses are proper for monarchies; despotic governments are afraid of
them. They dare not entrust their officers with such a command, as none
of them have any affection for the prince or his government.
6. Of the defensive Force of States in general. To preserve a state in
its due force, it must have such an extent as to admit of a proportion
between the celerity with which it may be invaded, and that with which
it may defeat the invasion. As an invader may appear on every side, it
is requisite that the state should be able to make on every side its
defence; consequently it should be of a moderate extent, proportioned to
the degree of velocity that nature has given to man, to enable him to
move from one place to another.
France and Spain are exactly of a proper extent. They have so easy a
communication for their forces as to be able to convey them immediately
to what part they have a mind; the armies unite and pass with rapidity
from one frontier to another, without any apprehension of such
difficulties as require time to remove.
It is extremely happy for France that the capital stands near to the
different frontiers in proportion to their weakness; and the prince has
a better view of each part of his country according as it is more
exposed.
But when a vast empire, like Persia, is attacked, it is several months
before the troops are assembled in a body; and then they are not able to
make such forced marches, for that space of time, as they could for
fifteen days. Should the army on the frontiers be defeated, it is soon
dispersed, because there is no neighbouring place of retreat. The
victor, meeting with no resistance, advances with all expedition, sits
down before the capital, and lays siege to it, when there is scarcely
time sufficient to summon the governors of the provinces to its relief.
Those who foresee an approaching revolution hasten it by their
disobedience. For men whose fidelity is entirely owing to the danger of
punishment are easily corrupted as soon as it becomes distant; their aim
is their own private interest. The empire is subverted, the capital
taken, and the conqueror disputes the several provinces with the
governors.
The real power of a prince does not consist so much in the facility he
meets with in making conquests as in the difficulty an enemy finds in
attacking him, and, if I may so speak, in the immutability of his
condition. But the increase of territory obliges a government to lay
itself more open to an enemy.
As monarchs therefore ought to be endued with wisdom in order to
increase their power, they ought likewise to have an equal share of
prudence to confine it within bounds. Upon removing the inconveniences
of too small a territory, they should have their eye constantly on the
inconveniences which attend its extent.
7. A Reflection. The enemies of a great prince, whose reign was
protracted to an unusual length, have very often accused him, rather, I
believe, from their own fears than upon any solid foundation, of having
formed and carried on a project of universal monarchy. Had he attained
his aim, nothing would have been more fatal to his subjects, to himself,
to his family, and to all Europe. Heaven, that knows our true interests,
favoured him more by preventing the success of his arms than it could
have done by crowning him with victories. Instead of raising him to be
the only sovereign in Europe, it made him happier by rendering him the
most powerful.
The subjects of this prince, who in travelling abroad are never affected
but with what they have left at home; who on quitting their own
habitations look upon glory as their chief object, and in distant
countries as an obstacle to their return; who disgust you even by their
good qualities, because they are tainted with so much vanity; who are
capable of supporting wounds, perils, and fatigues, but not of foregoing
their pleasures; who are supremely fond of gaiety, and comfort
themselves for the loss of a battle by a song upon the general: those
subjects, I say, would never have the solidity requisite for an
enterprise of this kind, which if defeated in one country would be
unsuccessful everywhere else; and if once unsuccessful, would be so for
ever.
8. A particular Case in which the defensive Force of a State is inferior
to the offensive. It was a saying of the Lord of Coucy to King Charles V
that the English are never weaker, nor more easily overcome, than in
their own country. The same was observed of the Romans; the same of the
Carthaginians; and the same will happen to every power that sends armies
to distant countries, in order to reunite by discipline and military
force those who are divided among themselves by political or civil
interests. The state finds itself weakened by the disorder that still
continues, and more so by the remedy.
The Lord of Coucy's maxim is an exception to the general rule, which
disapproves of wars against distant countries. And this exception
confirms likewise the rule because it takes place only with regard to
those by whom such wars are undertaken.
9. Of the relative Force of States. All grandeur, force, and power are
relative. Care therefore must be taken that in endeavouring to increase
the real grandeur, the relative be not diminished.
During the reign of Louis XIV France was at its highest pitch of
relative grandeur. Germany had not yet produced such powerful princes as
have since appeared in that country. Italy was in the same case. England
and Scotland were not yet formed into one united kingdom. Aragon was not
joined to Castile: the distant branches of the Spanish monarchy were
weakened by it, and weakened it in their turn; and Muscovy was as little
known in Europe as Crim Tartary.
10. Of the Weakness of neighbouring States. Whensoever a state lies
contiguous to another that happens to be in its decline, the former
ought to take particular care not to precipitate the ruin of the latter,
because this is the happiest situation imaginable; nothing being so
convenient as for one prince to be near another, who receives for him
all the rebuffs and insults of fortune. And it seldom happens that by
subduing such a state the real power of the conqueror is as much
increased as the relative is diminished.
______
1. It is composed of about fifty different republics, all different from
one another. -- M. Janisson, State of the United Provinces.
2. Civil liberty, goods, wives, children, temples, and even
burying-places.
3. Strabo, xiv.
4. Ibid.
5. Ibid.
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Book X. Of Laws in the Relation They Bear to Offensive Force
1. Of offensive Force. Offensive force is regulated by the law of
nations, which is the political law of each country considered in its
relation to every other.
2. Of War. The life of governments is like that of man. The latter has a
right to kill in case of natural defence: the former have a right to
wage war for their own preservation.
In the case of natural defence I have a right to kill, because my life
is in respect to me what the life of my antagonist is to him: in the
same manner a state wages war because its preservation is like that of
any other being.
With individuals the right of natural defence does not imply a necessity
of attacking. Instead of attacking they need only have recourse to
proper tribunals. They cannot therefore exercise this right of defence
but in sudden cases, when immediate death would be the consequence of
waiting for the assistance of the law. But with states the right of
natural defence carries along with it sometimes the necessity of
attacking; as for instance, when one nation sees that a continuance of
peace will enable another to destroy her, and that to attack that nation
instantly is the only way to prevent her own destruction.
Thence it follows that petty states have oftener a right to declare war
than great ones, because they are oftener in the case of being afraid of
destruction.
The right of war, therefore, is derived from necessity and strict
justice. If those who direct the conscience or councils of princes do
not abide by this maxim, the consequence is dreadful: when they proceed
on arbitrary principles of glory, convenience, and utility, torrents of
blood must overspread the earth.
But, above all, let them not plead such an idle pretext as the glory of
the prince: his glory is nothing but pride; it is a passion, and not a
legitimate right.
It is true the fame of his power might increase the strength of his
government; but it might be equally increased by the reputation of his
justice.
3. Of the Right of Conquest. From the right of war comes that of
conquest; which is the consequence of that right, and ought therefore to
follow its spirit.
The right the conqueror has over a conquered people is directed by four
sorts of laws: the law of nature, which makes everything tend to the
preservation of the species; the law of natural reason, which teaches us
to do to others what we would have done to ourselves; the law that forms
political societies, whose duration nature has not limited; and, in
fine, the law derived from the nature of the thing itself. Conquest is
an acquisition, and carries with it the spirit of preservation and use,
not of destruction.
The inhabitants of a conquered country are treated by the conqueror in
one of the four following ways: Either he continues to rule them
according to their own laws, and assumes to himself only the exercise of
the political and civil government; or he gives them new political and
civil government; or he destroys and disperses the society; or, in fine,
he exterminates the people.
The first way is conformable to the law of nations now followed; the
fourth is more agreeable to the law of nations followed by the Romans:
in respect to which I leave the reader to judge how far we have improved
upon the ancients. We must give due commendations to our modern
refinements in reason, religion, philosophy, and manners.
The authors of our public law, guided by ancient histories, without
confining themselves to cases of strict necessity, have fallen into very
great errors. They have adopted tyrannical and arbitrary principles, by
supposing the conquerors to be invested with I know not what right to
kill: thence they have drawn consequences as terrible as the very
principle, and established maxims which the conquerors themselves, when
possessed of the least grain of sense, never presumed to follow. It is a
plain case that when the conquest is completed, the conqueror has no
longer a right to kill, because he has no longer the plea of natural
defence and self-preservation.
What has led them into this mistake is, that they imagined a conqueror
had a right to destroy the state; whence they inferred that he had a
right to destroy the men that compose it: a wrong consequence from a
false principle. For from the destruction of the state it does not at
all follow that the people who compose it ought to be also destroyed.
The state is the association of men, and not the men themselves; the
citizen may perish, and the man remain.
From the right of killing in the case of conquest, politicians have
drawn that of reducing to slavery -- a consequence as ill-grounded as
the principle.
There is no such thing as a right of reducing people to slavery, save
when it becomes necessary for the preservation of the conquest.
Preservation, and not servitude, is the end of conquest; though
servitude may happen sometimes to be a necessary means of preservation.
Even in that case it is contrary to the nature of things that the
slavery should be perpetual. The people enslaved ought to be rendered
capable of becoming subjects. Slavery in conquests is an accidental
thing. When after the expiration of a certain space of time all the
parts of the conquering state are connected with the conquered nation,
by custom, marriages, laws, associations, and by a certain conformity of
disposition, there ought to be an end of the slavery. For the rights of
the conqueror are founded entirely on the opposition between the two
nations in those very articles, whence prejudices arise, and the want of
mutual confidence.
A conqueror, therefore, who reduces the conquered people to slavery,
ought always to reserve to himself the means (for means there are
without number) of restoring them to their liberty.
These are far from being vague and uncertain notions. Thus our ancestors
acted, those ancestors who conquered the Roman empire. The laws they
made in the heat and transport of passion and in the insolence of
victory were gradually softened; those laws were at first severe, but
were afterwards rendered impartial. The Burgundians, Goths, and Lombards
would have the Romans continue a conquered people; but the laws of
Euric, Gundebald, and Rotharis made the Romans and barbarians
fellow-citizens.[1]
Charlemagne, to tame the Saxons, deprived them of their liberty and
property. Louis the Debonnaire made them a free people,[2] and this was
one of the most prudent regulations during his whole reign. Time and
servitude had softened their manners, and they ever after adhered to him
with the greatest fidelity.
4. Some Advantages of a conquered People. Instead of inferring such
destructive consequences from the right of conquest, much better would
it have been for politicians to mention the advantages which this very
right may sometimes give to a conquered people -- advantages which would
be more sensibly and more universally experienced were our law of
nations exactly followed, and established in every part of the globe.
Conquered countries are, generally speaking, degenerated from their
original institution. Corruption has crept in, the execution of the laws
has been neglected, and the government has grown oppressive. Who can
question but such a state would be a gainer, and derive some advantages
from the very conquest itself, if it did not prove destructive? When a
government has arrived at that degree of corruption as to be incapable
of reforming itself, it would not lose much by being newly moulded. A
conqueror who enters triumphant into a country where the moneyed men
have, by a variety of artifices, insensibly arrived at innumerable ways
of encroaching on the public, where the miserable people, who see abuses
grown into laws, are ready to sink under the weight of impression, yet
think they have no right to apply for redress -- a conqueror, I say, may
make a total change, and then the tyranny of those wretches will be the
first thing exposed to his resentment.
We have beheld, for instance, countries oppressed by the farmers of the
revenues, and eased afterwards by the conqueror, who had neither the
engagements nor wants of the legitimate prince. Even the abuses have
been often redressed without any interposition of the conqueror.
Sometimes the frugality of a conquering nation has enabled them to allow
the conquered those necessaries of which they had been deprived under a
lawful prince.
A conquest may destroy pernicious prejudices, and lay, if I may presume
to use the expression, the nation under a better genius.
What good might not the Spaniards have done to the Mexicans? They had a
mild religion to impart to them; but they filled their heads with a
frantic superstition. They might have set slaves at liberty; they made
freemen slaves. They might have undeceived them with regard to the abuse
of human sacrifices; instead of that they destroyed them. Never should I
have finished, were I to recount all the good they might have done, and
all the mischief they committed.
It is a conqueror's business to repair a part of the mischief he has
occasioned. The right, therefore, of conquest I define thus: a
necessary, lawful, but unhappy power, which leaves the conqueror under a
heavy obligation of repairing the injuries done to humanity.
5. Gelon, King of Syracuse. The noblest treaty of peace ever mentioned
in history is, in my opinion, that which Gelon made with the
Carthaginians. He insisted upon their abolishing the custom of
sacrificing their children.[3] Glorious indeed! After having defeated
three hundred thousand Carthaginians, he required a condition that was
advantageous only to themselves, or rather he stipulated in favour of
human nature.
The Bactrians exposed their aged fathers to be devoured by large
mastiffs -- a custom suppressed by Alexander, whereby he obtained a
signal triumph over superstition.
6. Of Conquest made by a Republic. It is contrary to the nature of
things that in a confederate government one state should make any
conquest over another, as in our days we have seen in Switzerland.[4] In
mixed confederate republics, where the association is between petty
republics and monarchies, of a small extent, this is not so absurd.
Contrary is it also to the nature of things that a democratic republic
should conquer towns which cannot enter into the sphere of its
democracy. It is necessary that the conquered people should be capable
of enjoying the privileges of sovereignty, as was settled in the very
beginning among the Romans. The conquest ought to be limited to the
number of citizens fixed for the democracy.
If a democratic republic subdues a nation in order to govern them as
subjects, it exposes its own liberty; because it entrusts too great a
power to those who are appointed to the command of the conquered
provinces.
How dangerous would have been the situation of the republic of Carthage
had Hannibal made himself master of Rome? What would he not have done in
his own country, had he been victorious, he who caused so many
revolutions in it after his defeat?[5]
Hanno could never have dissuaded the senate from sending succour to
Hannibal, had he used no other argument than his own jealousy. The
Carthaginian senate, whose wisdom is so highly extolled by Aristotle
(and which has been evidently proved by the prosperity of that
republic), could never have been determined by other than solid reasons.
They must have been stupid not to see that an army at the distance of
three hundred leagues would necessarily be exposed to losses which
required reparation.
Hanno's party insisted that Hannibal should be delivered up to the
Romans.[6] They could not at that time be afraid of the Romans; they
were therefore apprehensive of Hannibal.
It was impossible, some will say, for them to imagine that Hannibal had
been so successful. But how was it possible for them to doubt it? Could
the Carthaginians, a people spread over all the earth, be ignorant of
what was transacting in Italy? No: they were sufficiently acquainted
with it, and for that reason they did not care to send supplies to
Hannibal.
Hanno became more resolute after the battle of Trebia, after the battle
of Thrasimenus, after that of Cannæ; it was not his incredulity that
increased, but his fear.
7. The same Subject continued. There is still another inconvenience in
conquests made by democracies: their government is ever odious to the
conquered states. It is apparently monarchical: but in reality it is
much more oppressive than monarchy, as the experience of all ages and
countries evinces.
The conquered people are in a melancholy situation; they neither enjoy
the advantages of a republic, nor those of a monarchy.
What has been here said of a popular state is applicable to aristocracy.
8. The same Subject continued. When a republic, therefore, keeps another
nation in subjection, it should endeavour to repair the inconveniences
arising from the nature of its situation by giving it good laws both for
the political and civil government of the people.
We have an instance of an island in the Mediterranean, subject to an
Italian republic, whose political and civil laws with regard to the
inhabitants of that island were extremely defective. The act of
indemnity,[7] by which it ordained that no one should be condemned to
bodily punishment in consequence of the private knowledge of the
governor, ex informata conscientia, is still recent in everybody's
memory. There have been frequent instances of the people's petitioning
for privileges; here the sovereign grants only the common right of all
nations.
9. Of Conquests made by a Monarchy. If a monarchy can long subsist
before it is weakened by its increase, it will become formidable; and
its strength will remain entire, while pent up by the neighbouring
monarchies.
It ought not, therefore, to aim at conquests beyond the natural limits
of its government. So soon as it has passed these limits, it is prudence
to stop.
In this kind of conquest things must be left as they were found -- the
same courts of judicature, the same laws, the same customs, the same
privileges: there ought to be no other alteration than that of the army
and of the name of the sovereign.
When a monarchy has extended its limits by the conquest of neighbouring
provinces, it should treat those provinces with great lenity.
If a monarchy has been long endeavouring at conquest, the provinces of
its ancient demesne are generally ill-used. They are obliged to submit
both to the new and to the ancient abuses; and to be depopulated by a
vast metropolis, that swallows up the whole. Now if, after having made
conquests round this demesne, the conquered people were treated like the
ancient subjects, the state would be undone; the taxes sent by the
conquered provinces to the capital would never return; the inhabitants
of the frontiers would be ruined, and consequently the frontiers would
be weaker; the people would be disaffected; and the subsistence of the
armies designed to act and remain there would become more precarious.
Such is the necessary state of a conquering monarchy: a shocking luxury
in the capital; misery in the provinces somewhat distant; and plenty in
the most remote. It is the same with such a monarchy as with our planet;
fire at the centre, verdure on the surface, and between both a dry,
cold, and barren earth.
10. Of one Monarchy that subdues another. Sometimes one monarchy subdues
another. The smaller the latter, the better it is overawed by
fortresses; and the larger it is, the better will it be preserved by
colonies.
11. Of the Manners of a conquered People. It is not sufficient in those
conquests to let the conquered nation enjoy their own laws; it is,
perhaps, more necessary to leave them also their manners, because people
in general have a stronger attachment to these than to their laws.
The French have been driven nine times out of Italy, because, as
historians say,[8] of their insolent familiarities with the fair sex. It
is too much for a nation to be obliged to bear not only with the pride
of conquerors, but with their incontinence and indiscretion; these are,
without doubt, most grievous and intolerable, as they are the source of
infinite outrages.
12. Of a Law of Cyrus. Far am I from thinking that a good law which
Cyrus made to oblige the Lydians to practise none but mean or infamous
professions. It is true he directed his attention to an object of the
greatest importance: he thought of guarding against revolts, and not
invasions; but invasions will soon come, when the Persians and Lydians
unite and corrupt each other. I would therefore much rather support by
laws the simplicity and rudeness of the conquering nation than the
effeminacy of the conquered.
Aristodemus, tyrant of Cumæ,[9] used all his endeavours to banish
courage, and to enervate the minds of youth. He ordered that boys should
let their hair grow in the same manner as girls, that they should deck
it with flowers, and wear long robes of different colours down to their
heels; that when they went to their masters of music and dancing, they
should have women with them to carry their umbrellas, perfumes, and
fans, and to present them with combs and looking-glasses whenever they
bathed. This education lasted till the age of twenty -- an education
that could be agreeable to none but to a petty tyrant, who exposes his
sovereignty to defend his life.
13. Charles XII. This prince, who depended entirely on his own strength,
hastened his ruin by forming designs that could never be executed but by
a long war -- a thing which his kingdom was unable to support.
It was not a declining state he undertook to subvert, but a rising
empire. The Russians made use of the war he waged against them as of a
military school. Every defeat brought them nearer to victory; and,
losing abroad, they learned to defend themselves at home.
Charles, in the deserts of Poland, imagined himself sovereign of the
whole world: here he wandered, and with him in some measure wandered
Sweden; while his capital enemy acquired new strength against him,
locked him up, made settlements along the Baltic, destroyed or subdued
Livonia.
Sweden was like a river whose waters are cut off at the fountain head in
order to change its course.
It was not the affair of Pultowa that ruined Charles. Had he not been
destroyed at that place, he would have been in another. The casualties
of fortune are easily repaired; but who can be guarded against events
that incessantly arise from the nature of things?
But neither nature nor fortune were ever so much against him as he
himself.
He was not directed by the present situation of things, but by a kind of
plan of his forming; and even this he followed very ill. He was not an
Alexander; but he would have made an excellent soldier under that
monarch.
Alexander's project succeeded because it was prudently concerted. The
bad success of the Persians in their several invasions of Greece, the
conquests of Agesilaus, and the retreat of the ten thousand had shown to
demonstration the superiority of the Greeks in their manner of fighting
and in their arms; and it was well known that the Persians were too
proud to be corrected.
It was no longer possible for them to weaken Greece by divisions: Greece
was then united under one head, which could not pitch upon a better
method of rendering her insensible to her servitude than by flattering
her vanity with the destruction of her hereditary enemy, and with the
hopes of the conquest of Asia.
An empire cultivated by the most industrious nation in the world, that
followed agriculture from a principle of religion -- an empire abounding
with every convenience of life, furnished the enemy with all necessary
means of subsisting.
It was easy to judge by the pride of those kings, who in vain were
mortified by their numerous defeats, that they would precipitate their
ruin by their forwardness in venturing battles; and that the flattery of
their courtiers would never permit them to doubt of their grandeur.
The project was not only wise, but wisely executed. Alexander, in the
rapidity of his conquests, even in the impetuosity of his passion, had,
if I may so express myself, a flash of reason by which he was directed,
and which those who would fain have made a romance of his history, and
whose minds were more corrupt than his, could not conceal from our view.
Let us descend more minutely into his history.
14. Alexander. He did not set out upon his expedition till he had
secured Macedonia against the neighbouring barbarians, and completed the
reduction of Greece; he availed himself of this conquest for no other
end than for the execution of his grand enterprise; he rendered the
jealousy of the Lacedæmonians of no effect; he attacked the maritime
provinces; he caused his land forces to keep close to the sea-coast,
that they might not be separated from his fleet; he made an admirable
use of discipline against numbers; he never wanted provisions; and if it
be true that victory gave him everything, he, in his turn, did
everything to obtain it.
In the beginning of his enterprise -- a time when the least check might
have proved his destruction -- he trusted very little to fortune; but
when his reputation was established by a series of prosperous events, he
sometimes had recourse to temerity. When before his departure for Asia
he marched against the Triballians and Illyrians, you find he waged
war[10] against those people in the very same manner as Cæsar afterwards
conducted that against the Gauls. Upon his return to Greece,[11] it was
in some measure against his will that he took and destroyed Thebes. When
he invested that city, he wanted the inhabitants to come into terms of
peace; but they hastened their own ruin. When it was debated whether he
should attack the Persian fleet,[12] it is Parmenio who shows his
presumption, Alexander his wisdom. His aim was to draw the Persians from
the sea-coast, and to lay them under a necessity of abandoning their
marine, in which they had a manifest superiority. Tyre being from
principle attached to the Persians, who could not subsist without the
commerce and navigation of that city, Alexander destroyed it. He subdued
Egypt, which Darius had left bare of troops while he was assembling
immense armies in another world.
To the passage of the Granicus, Alexander owed the conquest of the Greek
colonies; to the battle of Issus, the reduction of Tyre and Egypt; to
the battle of Arbela, the empire of the world.
After the battle of Issus, he suffered Darius to escape, and employed
his time in securing and regulating his conquests: after the battle of
Arbela, he pursued him so close[13] as to leave him no place of refuge
in his empire. Darius enters his towns, his provinces, to quit them the
next moment; and Alexander marches with such rapidity that the empire of
the world seems to be rather the prize of an Olympian race than the
fruit of a great victory. In this manner he carried on his conquests:
let us now see how he preserved them.
He opposed those who would have had him treat the Greeks as masters[14]
and the Persians as slaves. He thought only of uniting the two nations,
and of abolishing the distinctions of a conquering and a conquered
people. After he had completed his victories, he relinquished all those
prejudices that had helped him to obtain them. He assumed the manners of
the Persians, that he might not chagrin them too much by obliging them
to conform to those of the Greeks. It was this humanity which made him
show so great a respect for the wife and mother of Darius; and this that
made him so continent. What a conqueror! He is lamented by all the
nations he has subdued! What a usurper! At his death the very family he
has cast from the throne is all in tears. These were the most glorious
passages in his life, and such as history cannot produce an instance of
in any other conqueror.
Nothing consolidates a conquest more than the union formed between the
two nations by marriages.[15] Alexander chose his wives from the nation
he had subdued; he insisted on his courtiers doing the same; and the
rest of the Macedonians followed the example. The Franks and Burgundians
permitted those marriages;[16] the Visigoths forbade them in Spain, and
afterwards allowed them.[17] By the Lombards they were not only allowed
but encouraged.[18] When the Romans wanted to weaken Macedonia, they
ordered that there should be no intermarriages between the people of
different provinces.
Alexander, whose aim was to unite the two nations, thought fit to
establish in Persia a great number of Greek colonies. He built,
therefore, a multitude of towns; and so strongly were all the parts of
this new empire cemented, that after his decease, amidst the
disturbances and confusion of the most frightful civil wars, when the
Greeks had reduced themselves, as it were, to a state of annihilation,
not a single province of Persia revolted.
To prevent Greece and Macedon from being too much exhausted, he sent a
colony of Jews[19] to Alexandria; the manners of those people signified
nothing to him, provided he could be sure of their fidelity.
He not only suffered the conquered nations to retain their own customs
and manners, but likewise their civil laws; and frequently the very
kings and governors to whom they had been subject: the Macedonians[20]
he placed at the head of the troops, and the natives of the country at
the head of the government, rather choosing to run the hazard of a
particular disloyalty (which sometimes happened) than of a general
revolt.
He paid great respect to the ancient traditions, and to all the public
monuments of the glory or vanity of nations. The Persian monarchs having
destroyed the temples of the Greeks, Babylonians, and Egyptians,
Alexander rebuilt them:[21] few nations submitted to his yoke to whose
religion he did not conform; and his conquests seem to have been
intended only to make him the particular monarch of each nation, and the
first inhabitant of each city. The aim of the Romans in conquest was to
destroy, his to preserve; and wherever he directed his victorious arms,
his chief view was to achieve something whence that country might derive
an increase of prosperity and power. To attain this end, he was enabled
first of all by the greatness of his genius; secondly, by his frugality
and private economy;[22] thirdly, by his profusion in matters of
importance. He was close and reserved in his private expenses, but
generous to the highest degree in those of a public nature. In
regulating his household, he was the private Macedonian; but in paying
the troops, in sharing his conquests with the Greeks, and in his
largesses to every soldier in his army, he was Alexander.
He committed two very bad actions in setting Persepolis on fire and
slaying Clitus; but he rendered them famous by his repentance. Hence it
is that his crimes are forgotten, while his regard for virtue was
recorded: they were considered rather as unlucky accidents than as his
own deliberate acts. Posterity, struck with the beauty of his mind, even
in the midst of his irregular passion, can view him only with pity, but
never with an eye of hatred.
Let us draw a comparison between him and Cæsar. The Roman general, by
attempting to imitate the Asiatic monarch, flung his fellow-citizens
into a state of despair for a matter of mere ostentation; the Macedonian
prince, by the same imitation, did a thing which was quite agreeable to
his original scheme of conquest.
15. New Methods of preserving a Conquest. When a monarch has subdued a
large country, he may make use of an admirable method, equally proper
for moderating despotic power, and for preserving the conquest; it is a
method practised by the conquerors of China.
In order to prevent the vanquished nation from falling into despair, the
victors from growing insolent and proud, the government from becoming
military, and to contain the two nations within their duty, the Tartar
family now on the throne of China has ordained that every military corps
in the provinces should be composed half of Chinese and half Tartars, to
the end that the jealousy between the two nations may keep them within
bounds. The courts of judicature are likewise half Chinese and half
Tartars. This is productive of several good effects, 1. The two nations
are a check to one another. 2. They both preserve the civil and military
power, and one is not destroyed by the other, 3. The conquering nation
may spread itself without being weakened and lost. It is likewise
enabled to withstand civil and foreign wars. The want of so wise an
institution as this has been the ruin of almost all the conquerors that
ever existed.
16. Of Conquests made by a despotic Prince. When a conquest happens to
be vastly large, it supposes a despotic power; and then the army
dispersed in the provinces is not sufficient. There should be always a
body of faithful troops near the prince, ready to fall instantly upon
any part of the empire that may chance to waver. This military corps
ought to awe the rest, and to strike terror into those who through
necessity have been entrusted with any authority in the empire. The
emperor of China has always a large body of Tartars near his person,
ready upon all occasions. In India, in Turkey, in Japan, the prince has
always a body-guard independent of the other regular forces. This
particular corps keeps the dispersed troops in awe.
17. The same Subject continued. We have observed that the countries
subdued by a despotic monarch ought to be held by a vassal. Historians
are very lavish of their praises of the generosity of those conquerors
who restored the princes to the throne whom they had vanquished.
Extremely generous then were the Romans, who made such a number of
kings, in order to have instruments of slavery.[23] A proceeding of that
kind is absolutely necessary. If the conqueror intends to preserve the
country which he has subdued, neither the governors he sends will be
able to contain the subjects within duty, nor he himself the governors.
He will be obliged to strip his ancient patrimony of troops, in order to
secure his new dominions. The miseries of each nation will be common to
both; civil broils will spread themselves from one to the other. On the
contrary, if the conqueror restores the legitimate prince to the throne,
he will of course have an ally; by the junction of whose forces his own
power will be augmented. We have a recent instance of this in Shah
Nadir, who conquered the Mogul, seized his treasures, and left him in
possession of Hindostan.
______
1. See the Code of Barbarian Laws, and Book xxviii below.
2. See the anonymous author of the Life of Louis le Debonnaire, in
Duchesne's collection, ii, p. 296.
3. See M. Barbeyrac's collection, art. 112.
4. With regard to Tockenburg.
5. He was at the head of a faction.
6. Hanno wanted to deliver Hannibal up to the Romans, as Cato would fain
have delivered up Cæsar to the Gauls.
7. Of the 18th of October, 1738, printed at Genoa by Franchelli. See
also the Amsterdam Gazette, Dec. 23, 1738.
8. See Pufendorff's Universal History.
9. Dionysius Halicarnassus, vii.
10. See Arrian, De Expedit. Alex., i.
11. Ibid.
12. Ibid.
13. Ibid., iii.
14. This was Aristotle's advice. Plutarch, Of the Fortune and Virtue of
Alexander.
15. Arrian, De Expedit. Alex., vii.
16. See the Law of the Burgundians, tit. 12, art. 5.
17. See the Law of the Visigoths, iii, tit. 1, § 1, which abrogates the
ancient law that had more regard, it says, to the difference of nations
than to that of people's conditions.
18. See the Law of the Lombards, ii, tit. 7, §§ 1, 2.
19. The kings of Syria, abandoning the plan laid down by the founder of
the empire, resolved to oblige the Jews to conform to the manners of the
Greeks -- a resolution that gave the most terrible shock to their
government.
20. See Arrian, De Expedit. Alex., iii, and others.
21. Ibid.
22. Ibid., vii.
23. Tacitus, Life of Agricola, 14.
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Book XI. Of the Laws Which Establish Political Liberty, with
Regard to the Constitution
1. A general Idea. I make a distinction between the laws that establish
political liberty, as it relates to the constitution, and those by which
it is established, as it relates to the citizen. The former shall be the
subject of this book; the latter I shall examine in the next.
2. Different Significations of the word Liberty. There is no word that
admits of more various significations, and has made more varied
impressions on the human mind, than that of liberty. Some have taken it
as a means of deposing a person on whom they had conferred a tyrannical
authority; others for the power of choosing a superior whom they are
obliged to obey; others for the right of bearing arms, and of being
thereby enabled to use violence; others, in fine, for the privilege of
being governed by a native of their own country, or by their own
laws.[1] A certain nation for a long time thought liberty consisted in
the privilege of wearing a long beard.[2] Some have annexed this name to
one form of government exclusive of others: those who had a republican
taste applied it to this species of polity; those who liked a
monarchical state gave it to monarchy.[3] Thus they have all applied the
name of liberty to the government most suitable to their own customs and
inclinations: and as in republics the people have not so constant and so
present a view of the causes of their misery, and as the magistrates
seem to act only in conformity to the laws, hence liberty is generally
said to reside in republics, and to be banished from monarchies. In
fine, as in democracies the people seem to act almost as they please,
this sort of government has been deemed the most free, and the power of
the people has been confounded with their liberty.
3. In what Liberty consists. It is true that in democracies the people
seem to act as they please; but political liberty does not consist in an
unlimited freedom. In governments, that is, in societies directed by
laws, liberty can consist only in the power of doing what we ought to
will, and in not being constrained to do what we ought not to will.
We must have continually present to our minds the difference between
independence and liberty. Liberty is a right of doing whatever the laws
permit, and if a citizen could do what they forbid he would be no longer
possessed of liberty, because all his fellow-citizens would have the
same power.
4. The same Subject continued. Democratic and aristocratic states are
not in their own nature free. Political liberty is to be found only in
moderate governments; and even in these it is not always found. It is
there only when there is no abuse of power. But constant experience
shows us that every man invested with power is apt to abuse it, and to
carry his authority as far as it will go. Is it not strange, though
true, to say that virtue itself has need of limits?
To prevent this abuse, it is necessary from the very nature of things
that power should be a check to power. A government may be so
constituted, as no man shall be compelled to do things to which the law
does not oblige him, nor forced to abstain from things which the law
permits.
5. Of the End or View of different Governments. Though all governments
have the same general end, which is that of preservation, yet each has
another particular object. Increase of dominion was the object of Rome;
war, that of Sparta; religion, that of the Jewish laws; commerce, that
of Marseilles; public tranquillity, that of the laws of China:[4]
navigation, that of the laws of Rhodes; natural liberty, that of the
policy of the Savages; in general, the pleasures of the prince, that of
despotic states; that of monarchies, the prince's and the kingdom's
glory; the independence of individuals is the end aimed at by the laws
of Poland, thence results the oppression of the whole.[5]
One nation there is also in the world that has for the direct end of its
constitution political liberty. We shall presently examine the
principles on which this liberty is founded; if they are sound, liberty
will appear in its highest perfection.
To discover political liberty in a constitution, no great labour is
requisite. If we are capable of seeing it where it exists, it is soon
found, and we need not go far in search of it.
6. Of the Constitution of England. In every government there are three
sorts of power: the legislative; the executive in respect to things
dependent on the law of nations; and the executive in regard to matters
that depend on the civil law.
By virtue of the first, the prince or magistrate enacts temporary or
perpetual laws, and amends or abrogates those that have been already
enacted. By the second, he makes peace or war, sends or receives
embassies, establishes the public security, and provides against
invasions. By the third, he punishes criminals, or determines the
disputes that arise between individuals. The latter we shall call the
judiciary power, and the other simply the executive power of the state.
The political liberty of the subject is a tranquillity of mind arising
from the opinion each person has of his safety. In order to have this
liberty, it is requisite the government be so constituted as one man
need not be afraid of another.
When the legislative and executive powers are united in the same person,
or in the same body of magistrates, there can be no liberty; because
apprehensions may arise, lest the same monarch or senate should enact
tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty, if the judiciary power be not separated from
the legislative and executive. Were it joined with the legislative, the
life and liberty of the subject would be exposed to arbitrary control;
for the judge would be then the legislator. Were it joined to the
executive power, the judge might behave with violence and oppression.
There would be an end of everything, were the same man or the same body,
whether of the nobles or of the people, to exercise those three powers,
that of enacting laws, that of executing the public resolutions, and of
trying the causes of individuals.
Most kingdoms in Europe enjoy a moderate government because the prince
who is invested with the two first powers leaves the third to his
subjects. In Turkey, where these three powers are united in the Sultan's
person, the subjects groan under the most dreadful oppression.
In the republics of Italy, where these three powers are united, there is
less liberty than in our monarchies. Hence their government is obliged
to have recourse to as violent methods for its support as even that of
the Turks; witness the state inquisitors,[6] and the lion's mouth into
which every informer may at all hours throw his written accusations.
In what a situation must the poor subject be in those republics! The
same body of magistrates are possessed, as executors of the laws, of the
whole power they have given themselves in quality of legislators. They
may plunder the state by their general determinations; and as they have
likewise the judiciary power in their hands, every private citizen may
be ruined by their particular decisions.
The whole power is here united in one body; and though there is no
external pomp that indicates a despotic sway, yet the people feel the
effects of it every moment.
Hence it is that many of the princes of Europe, whose aim has been
levelled at arbitrary power, have constantly set out with uniting in
their own persons all the branches of magistracy, and all the great
offices of state.
I allow indeed that the mere hereditary aristocracy of the Italian
republics does not exactly answer to the despotic power of the Eastern
princes. The number of magistrates sometimes moderates the power of the
magistracy; the whole body of the nobles do not always concur in the
same design; and different tribunals are erected, that temper each
other. Thus at Venice tlie legislative power is in the council, the
executive in the pregadi, and the judiciary in the quarantia. But the
mischief is, that these different tribunals are composed of magistrates
all belonging to the same body; which constitutes almost one and the
same power.
The judiciary power ought not to be given to a standing senate; it
should be exercised by persons taken from the body of the people[7] at
certain times of the year, and consistently with a form and manner
prescribed by law, in order to erect a tribunal that should last only so
long as necessity requires.
By this method the judicial power, so terrible to mankind, not being
annexed to any particular state or profession, becomes, as it were,
invisible. People have not then the judges continually present to their
view; they fear the office, but not the magistrate.
In accusations of a deep and criminal nature, it is proper the person
accused should have the privilege of choosing, in some measure, his
judges, in concurrence with the law; or at least he should have a right
to except against so great a number that the remaining part may be
deemed his own choice.
The other two powers may be given rather to magistrates or permanent
bodies, because they are not exercised on any private subject; one being
no more than the general will of the state, and the other the execution
of that general will.
But though the tribunals ought not to be fixed, the judgments ought; and
to such a degree as to be ever conformable to the letter of the law.
Were they to be the private opinion of the judge, people would then live
in society, without exactly knowing the nature of their obligations.
The judges ought likewise to be of the same rank as the accused, or, in
other words, his peers; to the end that he may not imagine he is fallen
into the hands of persons inclined to treat him with rigour.
If the legislature leaves the executive power in possession of a right
to imprison those subjects who can give security for their good
behaviour, there is an end of liberty; unless they are taken up, in
order to answer without delay to a capital crime, in which case they are
really free, being subject only to the power of the law.
But should the legislature think itself in danger by some secret
conspiracy against the state, or by a correspondence with a foreign
enemy, it might authorise the executive power, for a short and limited
time, to imprison suspected persons, who in that case would lose their
liberty only for a while, to preserve it for ever.
And this is the only reasonable method that can be substituted to the
tyrannical magistracy of the Ephori, and to the state inquisitors of
Venice, who are also despotic.
As in a country of liberty, every man who is supposed a free agent ought
to be his own governor; the legislative power should reside in the whole
body of the people. But since this is impossible in large states, and in
small ones is subject to many inconveniences, it is fit the people
should transact by their representatives what they cannot transact by
themselves.
The inhabitants of a particular town are much better acquainted with its
wants and interests than with those of other places; and are better
judges of the capacity of their neighbours than of that of the rest of
their countrymen. The members, therefore, of the legislature should not
be chosen from the general body of the nation; but it is proper that in
every considerable place a representative should be elected by the
inhabitants.[8]
The great advantage of representatives is, their capacity of discussing
public affairs. For this the people collectively are extremely unfit,
which is one of the chief inconveniences of a democracy.
It is not at all necessary that the representatives who have received a
general instruction from their constituents should wait to be directed
on each particular affair, as is practised in the diets of Germany. True
it is that by this way of proceeding the speeches of the deputies might
with greater propriety be called the voice of the nation; but, on the
other hand, this would occasion infinite delays; would give each deputy
a power of controlling the assembly; and, on the most urgent and
pressing occasions, the wheels of government might be stopped by the
caprice of a single person.
When the deputies, as Mr. Sidney well observes, represent a body of
people, as in Holland, they ought to be accountable to their
constituents; but it is a different thing in England, where they are
deputed by boroughs.
All the inhabitants of the several districts ought to have a right of
voting at the election of a representative, except such as are in so
mean a situation as to be deemed to have no will of their own.
One great fault there was in most of the ancient republics, that the
people had a right to active resolutions, such as require some
execution, a thing of which they are absolutely incapable. They ought to
have no share in the government but for the choosing of representatives,
which is within their reach. For though few can tell the exact degree of
men's capacities, yet there are none but are capable of knowing in
general whether the person they choose is better qualified than most of
his neighbours.
Neither ought the representative body to be chosen for the executive
part of government, for which it is not so fit; but for the enacting of
laws, or to see whether the laws in being are duly executed, a thing
suited to their abilities, and which none indeed but themselves can
properly perform.
In such a state there are always persons distinguished by their birth,
riches, or honours: but were they to be confounded with the common
people, and to have only the weight of a single vote like the rest, the
common liberty would be their slavery, and they would have no interest
in supporting it, as most of the popular resolutions would be against
them. The share they have, therefore, in the legislature ought to be
proportioned to their other advantages in the state; which happens only
when they form a body that has a right to check the licentiousness of
the people, as the people have a right to oppose any encroachment of
theirs.
The legislative power is therefore committed to the body of the nobles,
and to that which represents the people, each having their assemblies
and deliberations apart, each their separate views and interests.
Of the three powers above mentioned, the judiciary is in some measure
next to nothing: there remain, therefore, only two; and as these have
need of a regulating power to moderate them, the part of the legislative
body composed of the nobility is extremely proper for this purpose.
The body of the nobility ought to be hereditary. In the first place it
is so in its own nature; and in the next there must be a considerable
interest to preserve its privileges -- privileges that in themselves are
obnoxious to popular envy, and of course in a free state are always in
danger.
But as a hereditary power might be tempted to pursue its own particular
interests, and forget those of the people, it is proper that where a
singular advantage may be gained by corrupting the nobility, as in the
laws relating to the supplies, they should have no other share in the
legislation than the power of rejecting, and not that of resolving.
By the power of resolving I mean the right of ordaining by their own
authority, or of amending what has been ordained by others. By the power
of rejecting I would be understood to mean the right of annulling a
resolution taken by another; which was the power of the tribunes at
Rome. And though the person possessed of the privilege of rejecting may
likewise have the right of approving, yet this approbation passes for no
more than a declaration that he intends to make no use of his privilege
of rejecting, and is derived from that very privilege.
The executive power ought to be in the hands of a monarch, because this
branch of government, having need of despatch, is better administered by
one than by many: on the other hand, whatever depends on the legislative
power is oftentimes better regulated by many than by a single person.
But if there were no monarch, and the executive power should be
committed to a certain number of persons selected from the legislative
body, there would be an end then of liberty; by reason the two powers
would be united, as the same persons would sometimes possess, and would
be always able to possess, a share in both.
Were the legislative body to be a considerable time without meeting,
this would likewise put an end to liberty. For of two things one would
naturally follow: either that there would be no longer any legislative
resolutions, and then the state would fall into anarchy; or that these
resolutions would be taken by the executive power, which would render it
absolute.
It would be needless for the legislative body to continue always
assembled. This would be troublesome to the representatives, and,
moreover, would cut out too much work for the executive power, so as to
take off its attention to its office, and oblige it to think only of
defending its own prerogatives, and the right it has to execute.
Again, were the legislative body to be always assembled, it might happen
to be kept up only by filling the places of the deceased members with
new representatives; and in that case, if the legislative body were once
corrupted, the evil would be past all remedy. When different legislative
bodies succeed one another, the people who have a bad opinion of that
which is actually sitting may reasonably entertain some hopes of the
next: but were it to be always the same body, the people upon seeing it
once corrupted would no longer expect any good from its laws; and of
course they would either become desperate or fall into a state of
indolence.
The legislative body should not meet of itself. For a body is supposed
to have no will but when it is met; and besides, were it not to meet
unanimously, it would be impossible to determine which was really the
legislative body; the part assembled, or the other. And if it had a
right to prorogue itself, it might happen never to be prorogued; which
would be extremely dangerous, in case it should ever attempt to encroach
on the executive power. Besides, there are seasons, some more proper
than others, for assembling the legislative body: it is fit, therefore,
that the executive power should regulate the time of meeting, as well as
the duration of those assemblies, according to the circumstances and
exigencies of a state known to itself.
Were the executive power not to have a right of restraining the
encroachments of the legislative body, the latter would become despotic;
for as it might arrogate to itself what authority it pleased, it would
soon destroy all the other powers.
But it is not proper, on the other hand, that the legislative power
should have a right to stay the executive. For as the execution has its
natural limits, it is useless to confine it; besides, the executive
power is generally employed in momentary operations. The power,
therefore, of the Roman tribunes was faulty, as it put a stop not only
to the legislation, but likewise to the executive part of government;
which was attended with infinite mischief.
But if the legislative power in a free state has no right to stay the
executive, it has a right and ought to have the means of examining in
what manner its laws have been executed; an advantage which this
government has over that of Crete and Sparta, where the Cosmi[9] and the
Ephori[10] gave no account of their administration.
But whatever may be the issue of that examination, the legislative body
ought not to have a power of arraigning the person, nor, of course, the
conduct, of him who is entrusted with the executive power. His person
should be sacred, because as it is necessary for the good of the state
to prevent the legislative body from rendering themselves arbitrary, the
moment he is accused or tried there is an end of liberty.
In this case the state would be no longer a monarchy, but a kind of
republic, though not a free government. But as the person entrusted with
the executive power cannot abuse it without bad counsellors, and such as
have the laws as ministers, though the laws protect them as subjects,
these men may be examined and punished -- an advantage which this
government has over that of Gnidus, where the law allowed of no such
thing as calling the Amymones[11] to an account, even after their
administration;[12] and therefore the people could never obtain any
satisfaction for the injuries done them.
Though, in general, the judiciary power ought not to be united with any
part of the legislative, yet this is liable to three exceptions, founded
on the particular interest of the party accused.
The great are always obnoxious to popular envy; and were they to be
judged by the people, they might be in danger from their judges, and
would, moreover, be deprived of the privilege which the meanest subject
is possessed of in a free state, of being tried by his peers. The
nobility, for this reason, ought not to be cited before the ordinary
courts of judicature, but before that part of the legislature which is
composed of their own body.
It is possible that the law, which is clearsighted in one sense, and
blind in another, might, in some cases, be too severe. But as we have
already observed, the national judges are no more than the mouth that
pronounces the words of the law, mere passive beings, incapable of
moderating either its force or rigour. That part, therefore, of the
legislative body, which we have just now observed to be a necessary
tribunal on another occasion, is also a necessary tribunal in this; it
belongs to its supreme authority to moderate the law in favour of the
law itself, by mitigating the sentence.
It might also happen that a subject entrusted with the administration of
public affairs may infringe the rights of the people, and be guilty of
crimes which the ordinary magistrates either could not or would not
punish. But, in general, the legislative power cannot try causes: and
much less can it try this particular case, where it represents the party
aggrieved, which is the people. It can only, therefore, impeach. But
before what court shall it bring its impeachment? Must it go and demean
itself before the ordinary tribunals, which are its inferiors, and,
being composed, moreover, of men who are chosen from the people as well
as itself, will naturally be swayed by the authority of so powerful an
accuser? No: in order to preserve the dignity of the people, and the
security of the subject, the legislative part which represents the
people must bring in its charge before the legislative part which
represents the nobility, who have neither the same interests nor the
same passions.
Here is an advantage which this government has over most of the ancient
republics, where this abuse prevailed, that the people were at the same
time both judge and accuser.
The executive power, pursuant of what has been already said, ought to
have a share in the legislature by the power of rejecting, otherwise it
would soon be stripped of its prerogative. But should the legislative
power usurp a share of the executive, the latter would be equally
undone.
If the prince were to have a part in the legislature by the power of
resolving, liberty would be lost. But as it is necessary he should have
a share in the legislature for the support of his own prerogative, this
share must consist in the power of rejecting.
The change of government at Rome was owing to this, that neither the
senate, who had one part of the executive power, nor the magistrates,
who were entrusted with the other, had the right of rejecting, which was
entirely lodged in the people.
Here then is the fundamental constitution of the government we are
treating of. The legislative body being composed of two parts, they
check one another by the mutual privilege of rejecting. They are both
restrained by the executive power, as the executive is by the
legislative.
These three powers should naturally form a state of repose or inaction.
But as there is a necessity for movement in the course of human affairs,
they are forced to move, but still in concert.
As the executive power has no other part in the legislative than the
privilege of rejecting, it can have no share in the public debates. It
is not even necessary that it should propose, because as it may always
disapprove of the resolutions that shall be taken, it may likewise
reject the decisions on those proposals which were made against its
will.
In some ancient commonwealths, where public debates were carried on by
the people in a body, it was natural for the executive power to propose
and debate in conjunction with the people, otherwise their resolutions
must have been attended with a strange confusion.
Were the executive power to determine the raising of public money,
otherwise than by giving its consent, liberty would be at an end;
because it would become legislative in the most important point of
legislation.
If the legislative power was to settle the subsidies, not from year to
year, but for ever, it would run the risk of losing its liberty, because
the executive power would be no longer dependent; and when once it was
possessed of such a perpetual right, it would be a matter of
indifference whether it held it of itself or of another. The same may be
said if it should come to a resolution of entrusting, not an annual, but
a perpetual command of the fleets and armies to the executive power.
To prevent the executive power from being able to oppress, it is
requisite that the armies with which it is entrusted should consist of
the people, and have the same spirit as the people, as was the case at
Rome till the time of Marius. To obtain this end, there are only two
ways, either that the persons employed in the army should have
sufficient property to answer for their conduct to their
fellow-subjects, and be enlisted only for a year, as was customary at
Rome: or if there should be a standing army, composed chiefly of the
most despicable part of the nation, the legislative power should have a
right to disband them as soon as it pleased; the soldiers should live in
common with the rest of the people; and no separate camp, barracks, or
fortress should be suffered.
When once an army is established, it ought not to depend immediately on
the legislative, but on the executive, power; and this from the very
nature of the thing, its business consisting more in action than in
deliberation.
It is natural for mankind to set a higher value upon courage than
timidity, on activity than prudence, on strength than counsel. Hence the
army will ever despise a senate, and respect their own officers. They
will naturally slight the orders sent them by a body of men whom they
look upon as cowards, and therefore unworthy to command them. So that as
soon as the troops depend entirely on the legislative body, it becomes a
military government; and if the contrary has ever happened, it has been
owing to some extraordinary circumstances. It is because the army was
always kept divided; it is because it was composed of several bodies
that depended each on a particular province; it is because the capital
towns were strong places, defended by their natural situation, and not
garrisoned with regular troops. Holland, for instance, is still safer
than Venice; she might drown or starve the revolted troops; for as they
are not quartered in towns capable of furnishing them with necessary
subsistence, this subsistence is of course precarious.
In perusing the admirable treatise of Tacitus On the Manners of the
Germans,[13] we find it is from that nation the English have borrowed
the idea of their political government. This beautiful system was
invented first in the woods.
As all human things have an end, the state we are speaking of will lose
its liberty, will perish. Have not Rome, Sparta, and Carthage perished?
It will perish when the legislative power shall be more corrupt than the
executive.
It is not my business to examine whether the English actually enjoy this
liberty or not. Sufficient it is for my purpose to observe that it is
established by their laws; and I inquire no further.
Neither do I pretend by this to undervalue other governments, nor to say
that this extreme political liberty ought to give uneasiness to those
who have only a moderate share of it. How should I have any such design,
I who think that even the highest refinement of reason is not always
desirable, and that mankind generally find their account better in
mediums than in extremes?
Harrington, in his Oceana, has also inquired into the utmost degree of
liberty to which the constitution of a state may be carried. But of him
indeed it may be said that for want of knowing the nature of real
liberty he busied himself in pursuit of an imaginary one; and that he
built a Chalcedon, though he had a Byzantium before his eyes.
7. Of the Monarchies we are acquainted with. The monarchies we are
acquainted with have not, like that we have been speaking of, liberty
for their direct view: the only aim is the glory of the subject, of the
state, and of the sovereign. But hence there results a spirit of
liberty, which in those states is capable of achieving as great things,
and of contributing as much perhaps to happiness as liberty itself.
Here the three powers are not distributed and founded on the model of
the constitution above-mentioned; they have each a particular
distribution, according to which they border more or less on political
liberty; and if they did not border upon it, monarchy would degenerate
into despotic government.
8. Why the Ancients had not a clear Idea of Monarchy. The ancients had
no notion of a government founded on a body of nobles, and much less on
a legislative body composed of the representatives of the people. The
republics of Greece and Italy were cities that had each their own form
of government, and convened their subjects within their walls. Before
Rome had swallowed up all the other republics, there was scarcely
anywhere a king to be found, no, not in Italy, Gaul, Spain, or Germany;
they were all petty states or republics. Even Africa itself was subject
to a great commonwealth: and Asia Minor was occupied by Greek colonies.
There was, therefore, no instance of deputies of towns or assemblies of
the states; one must have gone as far as Persia to find a monarchy.
I am not ignorant that there were confederate republics; in which
several towns sent deputies to an assembly. But I affirm there was no
monarchy on that model.
The first plan, therefore, of the monarchies we are acquainted with was
thus formed. The German nations that conquered the Roman empire were
certainly a free people. Of this we may be convinced only by reading
Tacitus On the Manners of the Germans. The conquerors spread themselves
over all the country; living mostly in the fields, and very little in
towns. When they were in Germany, the whole nation was able to assemble.
This they could no longer do when dispersed through the conquered
provinces. And yet as it was necessary that the nation should deliberate
on public affairs, pursuant to their usual method before the conquest,
they had recourse to representatives. Such is the origin of the Gothic
government amongst us. At first it was mixed with aristocracy and
monarchy -- a mixture attended with this inconvenience, that the common
people were bondmen. The custom afterwards succeeded of granting letters
of enfranchisement, and was soon followed by so perfect a harmony
between the civil liberty of the people, the privileges of the nobility
and clergy, and the prince's prerogative, that I really think there
never was in the world a government so well tempered as that of each
part of Europe, so long as it lasted. Surprising that the corruption of
the government of a conquering nation should have given birth to the
best species of constitution that could possibly be imagined by man!
9. Aristotle's Manner of Thinking. Aristotle is greatly puzzled in
treating of monarchy.[14] He makes five species; and he does not
distinguish them by the form of constitution, but by things merely
accidental, as the virtues and vices of the prince; or by things
extrinsic, such as tyranny usurped or inherited.
Among the number of monarchies he ranks the Persian empire and the
kingdom of Sparta. But is it not evident that the one was a despotic
state and the other a republic?
The ancients, who were strangers to the distribution of the three powers
in the government of a single person, could never form a just idea of
monarchy.
10. What other Politicians thought. To temper monarchy, Arybas, king of
Epirus,[15] found no other remedy than a republic. The Molossi, not
knowing how to limit the same power, made two kings,[16] by which means
the state was weakened more than the prerogative; they wanted rivals,
and they created enemies.
Two kings were tolerable nowhere but at Sparta; here they did not form,
but were only a part of the constitution.
11. Of the Kings of the heroic Times of Greece. In the heroic times of
Greece, a kind of monarchy arose that was not of long duration.[17]
Those who had been inventors of arts, who had fought in their country's
cause, who had established societies, or distributed lands among the
people, obtained the regal power, and transmitted it to their children.
They were kings, priests, and judges. This was one of the five species
of monarchy mentioned by Aristotle;[18] and the only one that can give
us any idea of the monarchical constitution. But the plan of this
constitution is opposite to that of our modern monarchies.
The three powers were there distributed in such a manner that the people
were the legislature,[19] and the king had the executive together with
the judiciary power; whereas in modern monarchies the prince is invested
with the executive and legislative powers, or at least with part of the
legislative, but does not act in a judiciary capacity.
In the government of the kings of the heroic times, the three powers
were ill-distributed. Hence those monarchies could not long subsist. For
as soon as the people got the legislative power into their hands, they
might, as they everywhere did, upon the very least caprice, subvert the
regal authority.
Among a free people possessed of the legislative power, and enclosed
within walls, where everything tending towards oppression appears still
more odious, it is the masterpiece of legislation to know where to place
properly the judiciary power. But it could not be in worse hands than in
those of the person to whom the executive power had been already
committed. From that very instant the monarch became terrible. But at
the same time as he had no share in the legislature, he could make no
defence against it, thus his power was in one sense too great, in
another too little.
They had not as yet discovered that the true function of a prince was to
appoint judges, and not to sit as judge himself. The opposite policy
rendered the government of a single person insupportable. Hence all
these kings were banished. The Greeks had no notion of the proper
distribution of the three powers in the government of one person; they
could see it only in that of many; and this kind of constitution they
distinguished by the name of Polity.[20]
12. Of the Government of the Kings of Rome, and in what Manner the three
Powers were there distributed. The government of the kings of Rome had
some relation to that of the kings of the heroic times of Greece. Its
subversion, like the latter's, was owing to its general defect, though
in its own particular nature it was exceedingly good.
In order to give an adequate idea of this government, I shall
distinguish that of the first five kings, that of Servius Tullius, and
that of Tarquin.
The crown was elective, and under the first five kings the senate had
the greatest share in the election.
Upon the king's decease the senate examined whether they should continue
the established form of government. If they thought proper to continue
it, they named a magistrate[21] taken from their own body, who chose a
king; the senate were to approve of the election, the people to confirm
it, and the augurs to declare the approbation of the gods. If any of
these three conditions was wanting, they were obliged to proceed to
another election.
The constitution was a mixture of monarchy, aristocracy, and democracy;
and such was the harmony of power that there was no instance of jealousy
or dispute in the first reigns. The king commanded the armies, and had
the direction of the sacrifices: he had the power of determining[22]
civil and criminal[23] causes; he called the senate together, convened
the people, laid some affairs before the latter, and regulated the rest
with the senate.[24]
The authority of the senate was very great. The kings oftentimes pitched
upon senators with whom they sat in judgment; and they never laid any
affair before the people till it had been previously debated[25] in that
august assembly.
The people had the right of choosing[26] magistrates, of consenting to
the new laws, and, with the king's permission, of making war and peace;
but they had not the judicial power. When Tullius Hostilius referred the
trial of Horatius to the people, he had his particular reasons, which
may be seen in Dionysius Halicarnassus.[27]
The constitution altered under[28] Servius Tullius. The senate had no
share in his election; he caused himself to be proclaimed by the people;
he resigned the power of hearing civil causes,[29] reserving none to
himself but those of a criminal nature; he laid all affairs directly
before the people, eased them of the taxes, and imposed the whole burden
on the patricians. Hence in proportion as he weakened the regal together
with the senatorial power, he augmented that of the plebeians.[30]
Tarquin would neither be chosen by the senate nor by the people; he
considered Servius Tullius as a usurper, and seized the crown as his
hereditary right. He destroyed most of the senators; those who remained
he never consulted; nor did he even so much as summon them to assist at
his decisions.[31] Thus his power increased: but the odium of that power
received a new addition, by usurping also the authority of the people,
against whose consent he enacted several laws. The three powers were by
these means re-united in his person; but the people at a critical minute
recollected that they were legislators, and there was an end of Tarquin.
13. General Reflections on the State of Rome after the Expulsion of its
Kings. It is impossible to be tired of so agreeable a subject as ancient
Rome: thus strangers at present leave the modern palaces of that
celebrated capital to visit the ruins; and thus the eye, after
recreating itself with the view of flowery meads, is pleased with the
wild prospect of rocks and mountains.
The patrician families were at all times possessed of great privileges.
These distinctions, which were considerable under the kings, became much
more important after their expulsion. Hence arose the jealousy of the
plebeians, who wanted to reduce them. The contest struck at the
constitution, without weakening the government; for it was very
indifferent as to what family were the magistrates, provided the
magistracy preserved its authority.
An elective monarchy, like that of Rome, necessarily supposes a powerful
aristocratic body to support it, without which it changes immediately
into tyranny or into a popular state. But a popular state has no need of
this distinction of families to maintain itself. To this it was owing
that the patricians, who were a necessary part of the constitution under
the regal government, became a superfluous branch under the consuls; the
people could suppress them without hurting themselves, and change the
constitution without corrupting it.
After Servius Tullius had reduced the patricians, it was natural that
Rome should fall from the regal hands into those of the people. But the
people had no occasion to be afraid of relapsing under a regal power by
reducing the patricians.
A state may alter in two different ways, either by the amendment or by
the corruption of the constitution. If it has preserved its principles
and the constitution changes, this is owing to its amendment; if upon
changing the constitution its principles are lost, this is because it
has been corrupted.
The government of Rome, after the expulsion of the kings, should
naturally have been a democracy. The people had already the legislative
power in their hands; it was their unanimous consent that had expelled
the Tarquins; and if they had not continued steady to those principles,
the Tarquins might easily have been restored. To pretend that their
design in expelling them was to render themselves slaves to a few
families is quite absurd. The situation therefore of things required
that Rome should have formed a democracy, and yet this did not happen.
There was a necessity that the power of the principal families should be
tempered, and that the laws should have a bias to democracy.
The prosperity of states is frequently greater in the insensible
transition from one constitution to another than in either of those
constitutions. Then it is that all the springs of government are upon
the stretch, that the citizens assert their claims, that friendships or
enmities are formed amongst the jarring parties, and that there is a
noble emulation between those who defend the ancient and those who are
strenuous in promoting the new constitution.
14. In what Manner the Distribution of the three Powers began to change
after the Expulsion of the Kings. There were four things that greatly
prejudiced the liberty of Rome. The patricians had engrossed to
themselves all public employments whatever; an exorbitant power was
annexed to the consulate; the people were often insulted; and, in fine,
they had scarcely any influence at all left in the public suffrages.
These four abuses were redressed by the people.
1st. It was regulated that the plebeians might aspire to some
magistracies; and by degrees they were rendered capable of them all,
except that of Inter-rex.
2nd. The consulate was dissolved into several other magistracies;[32]
prætors were created, on whom the power was conferred of trying private
causes; quæstors[33] were nominated for determining those of a criminal
nature; ædiles were established for the civil administration;
treasurers[34] were made for the management of the public money; and, in
fine, by the creation of censors the consuls were divested of that part
of the legislative power which regulates the morals of the citizens and
the transient polity of the different bodies of the state. The chief
privileges left them were to preside in the great meetings[35] of the
people, to assemble the senate, and to command the armies.
3rd. The sacred laws appointed tribunes, who had a power of checking the
encroachments of the patricians, and prevented not only private but
likewise public injuries.
In fine, the plebeians increased their influence in the general
assemblies. The people of Rome were divided in three different manners
-- by centuries, by curiæ, and by tribes; and whenever they gave their
votes, they were convened in one of those three ways.
In the first the patricians, the leading men, the rich and the senate,
which was very nearly the same thing, had almost the whole authority; in
the second they had less; and less still in the third.
The division into centuries was a division rather of estates and
fortunes than of persons The whole people were distributed into a
hundred and ninety-three centuries,[36] which had each a single vote.
The patricians and leading men composed the first ninety-eight
centuries; and the other ninety-five consisted of the remainder of the
citizens. In this division therefore the patricians were masters of the
suffrages.
In the division into curiæ,[37] the patricians had not the same
advantages; some, however, they had, for it was necessary to consult the
augurs, who were under the direction of the patricians; and no proposal
could be made there to the people unless it had been previously laid
before the senate, and approved of by a senatus-consultum. But, in the
division into tribes they had nothing to do either with the augurs or
with the decrees of the senate; and the patricians were excluded.
Now the people endeavoured constantly to have those meetings by curiæ
which had been customary by centuries, and by tribes, those they used to
have before by curiæ; by which means the direction of public affairs
soon devolved from the patricians to the plebeians.
Thus when the plebeians obtained the power of trying the patricians -- a
power which commenced in the affair of Coriolanus,[38] they insisted
upon assembling by tribes,[39] and not by centuries; and when the new
magistracies[40] of tribunes and ædiles were established in favour of
the people, the latter obtained that they should meet by curiæ in order
to nominate them; and after their power was quite settled, they
gained[41] so far their point as to assemble by tribes to proceed to
this nomination.
15. In what Manner Rome, in the flourishing State of that Republic,
suddenly lost its Liberty. In the heat of the contests between the
patricians and the plebeians, the latter insisted upon having fixed
laws, to the end that the public judgments should no longer be the
effect of capricious will or arbitrary power. The senate, after a great
deal of resistance, acquiesced; and decemvirs were nominated to compose
those laws. It was thought proper to grant them an extraordinary power,
because they were to give laws to parties whose views and interest it
was almost impossible to unite. The nomination of all magistrates was
suspended; and the decemvirs were chosen in the comitia sole
administrators of the republic. Thus they found themselves invested with
the consular and the tribunition power. By one they had the privilege of
assembling the senate, by the other that of convening the people; but
they assembled neither senate nor people. Ten men only of the republic
had the whole legislative, the whole executive, and the whole judiciary
power. Rome saw herself enslaved by as cruel a tyranny as that of
Tarquin. When Tarquin trampled on the liberty of that city, she was
seized with indignation at the power he had usurped; when the decemvirs
exercised every act of oppression, she was astonished at the
extraordinary power she had granted.
What a strange system of tyranny -- a tyranny carried on by men who had
obtained the political and military power, merely from their knowledge
in civil affairs, and who at that very juncture stood in need of the
courage of those citizens to protect them abroad who so tamely submitted
to domestic oppression!
The spectacle of Virginia's death, whom her father immolated to chastity
and liberty, put an end to the power of the decemvirs. Every man became
free, because every man had been injured; each showed himself a citizen
because each had a tie of the parent. The senate and the people resumed
a liberty which had been committed to ridiculous tyrants.
No people were so easily moved by public spectacles as the Romans. That
of the empurpled body of Lucretia put an end to the regal government.
The debtor who appeared in the forum covered with wounds caused an
alteration in the republic. The decemvirs owed their expulsion to the
tragedy of Virginia. To condemn Manlius, it was necessary to keep the
people from seeing the Capitol. Cæsar's bloody garment flung Rome again
into slavery.
16. Of the legislative Power in the Roman Republic. There were no rights
to contest under the decemvirs: but upon the restoration of liberty,
jealousies revived; and so long as the patricians had any privileges
left, they were sure to be stripped of them by the plebeians.
The mischief would not have been so great had the plebeians been
satisfied with this success; but they also injured the patricians as
citizens. When the people assembled by curiæ or centuries, they were
composed of senators, patricians, and plebeians; in their disputes the
plebeians gained this point,[42] that they alone without patricians or
senate should enact the laws called Plebiscita; and the assemblies in
which they were made had the name of comitia by tribes. Thus there were
cases in which the patricians[43] had no share in the legislative power,
but[44] were subject to the legislation of another body of the state.
This was the extravagance of liberty. The people, to establish a
democracy, acted against the very principles of that government. One
would have imagined that so exorbitant a power must have destroyed the
authority of the senate. But Rome had admirable institutions. Two of
these were especially remarkable: one by which the legislative power of
the people was established, and the other by which it was limited.
The censors, and before them the consuls, modelled[45] and created, as
it were, every five years the body of the people; they exercised the
legislation on the very part that was possessed of the legislative
power. "Tiberius Gracchus," says Cicero, "caused the freedmen to be
admitted into the tribes, not by the force of his eloquence, but by a
word, by a gesture; which had he not effected, the republic, whose
drooping head we are at present scarcely able to uphold, would not even
exist."
On the other hand, the senate had the power of rescuing, as it were, the
republic out of the hands of the people, by creating a dictator, before
whom the sovereign bowed his head, and the most popular laws were
silent.[46]
17. Of the executive Power in the same Republic. Jealous as the people
were of their legislative power, they had no great uneasiness about the
executive. This they left almost entirely to the senate and to the
consuls, reserving scarcely anything more to themselves than the right
of choosing the magistrates, and of confirming the acts of the senate
and of the generals.
Rome, whose passion was to command, whose ambition was to conquer, whose
commencement and progress were one continued usurpation, had constantly
affairs of the greatest weight upon her hands; her enemies were ever
conspiring against her, or she against her enemies.
As she was obliged to behave on the one hand with heroic courage, and on
the other with consummate prudence, it was requisite, of course, that
the management of affairs should be committed to the senate. Thus the
people disputed every branch of the legislative power with the senate,
because they were jealous of their liberty; but they had no disputes
about the executive, because they were animated with the love of glory.
So great was the share the senate took in the executive power, that, as
Polybius[47] informs us, foreign nations imagined that Rome was an
aristocracy. The senate disposed of the public money, and farmed out the
revenue; they were arbiters of the affairs of their allies; they
determined war or peace, and directed in this respect the consuls; they
fixed the number of the Roman and of the allied troops, disposed of the
provinces and armies to the consuls or prætors, and upon the expiration
of the year of command had the power of appointing successors; they
decreed triumphs, received and sent embassies: they nominated, rewarded,
punished, and were judges of kings, declared them allies of the Roman
people, or stripped them of that title.
The consuls levied the troops which they were to carry into the field;
had the command of the forces by sea and by land; disposed of the forces
of the allies; were invested with the whole power of the republic in the
provinces; gave peace to the vanquished nations, imposed conditions on
them, or referred them to the senate.
In the earliest times, when the people had some share in the affairs
relating to war or peace, they exercised rather their legislative than
their executive power. They scarcely did anything else but confirm the
acts of the kings, and after their expulsion those of the consuls or
senate. So far were they from being the arbiters of war that we have
instances of its having been often declared, notwithstanding the
opposition of the tribunes. But growing wanton in their prosperity, they
increased their executive power. Thus[48] they created the military
tribunes, the nomination of whom till then had belonged to the generals;
and some time before the first Punic war, they decreed that only their
own body should have the right of declaring war.[49]
18. Of the judiciary Power in the Roman Government. The judiciary power
was given to the people, to the senate, to the magistrates, and to
particular judges. We must see in what manner it was distributed;
beginning with their civil affairs.
The consuls had the judiciary power[50] after the expulsion of the
kings, as the prætors were judges after the consuls. Servius Tullius had
divested himself of the power of determining civil causes, which was not
resumed by the consuls, except in some[51] very rare cases, for that
reason called extraordinary.[52] They were satisfied with naming the
judges, and establishing the several tribunals. By a discourse of Appius
Claudius, in Dionysius Halicarnassus,[53] it appears that as early as
the 259th year of Rome this was looked upon as a settled custom among
the Romans; and it is not tracing it very high to refer it to Servius
Tullius.
Every year the prætor made a list[54] of such as he chose for the office
of judges during his magistracy. A sufficient number was pitched upon
for each cause; a custom very nearly the same as that now practised in
England. And what was extremely favourable to liberty[55] was the
prætor's fixing the judges with the consent[56] of the parties. The
great number of exceptions that can be made in England amounts pretty
nearly to this very custom.
The judges decided only the questions relating to matter of fact;[57]
for example, whether a sum of money had been paid or not, whether an act
had been committed or not. But as to questions of law,[58] as these
required a certain capacity, they were always carried before the
tribunal of the centumvirs.[59]
The kings reserved to themselves the judgment of criminal affairs, and
in this were succeeded by the consuls. It was in consequence of this
authority that Brutus put his children and all those who were concerned
in the Tarquinian conspiracy to death. This was an exorbitant power. The
consuls already invested with the military command extended the exercise
of it even to civil affairs; and their procedures, being stripped of all
forms of justice, were rather exertions of violence than legal
judgments.
This gave rise to the Valerian law, by which it was made lawful to
appeal to the people from every decision of the consuls that endangered
the life of a citizen. The consuls had no longer the power of
pronouncing sentence in capital cases against a Roman citizen, without
the consent of the people.[60]
We see in the first conspiracy for the restoration of the Tarquins that
the criminals were tried by Brutus the consul; in the second the senate
and comitia were assembled to try them.[61]
The laws distinguished by the name of sacred allowed the plebeians the
privilege of choosing tribunes; whence was formed a body whose
pretensions at first were immense. It is hard to determine which was
greater, the insolence of the plebeians in demanding, or the
condescension of the senate in granting. The Valerian law allowed
appeals to the people, that is, to the people composed of senators,
patricians, and plebeians. The plebeians made a law that appeals should
be brought before their own body. A question was soon after started,
whether the plebeians had a right to try a patrician; this was the
subject of a dispute to which the impeachment of Coriolanus gave rise,
and which ended with that affair. When Coriolanus was accused by the
tribunes before the people, he insisted, contrary to the spirit of the
Valerian law, that as he was a patrician, none but the consuls had the
power to try him; on the other hand, the plebeians, also contrary to the
spirit of that same law, pretended that none but their body were
empowered to be his judges, and accordingly they pronounced sentence
upon him.
This was moderated by the law of the Twelve Tables; whereby it was
ordained that none but the great assemblies of the people[62] should try
a citizen in capital cases. Hence the body of the plebeians, or, which
amounts to the very same, the comitia by tribes, had no longer any power
of hearing criminal causes, except such as were punished with fines. To
inflict a capital punishment a law was requisite; but to condemn to a
pecuniary mulct, there was occasion only for a plebiscitum.
This regulation of the law of the Twelve Tables was extremely prudent.
It produced an admirable balance between the body of the plebeians and
the senate. For as the full judiciary power of both depended on the
greatness of the punishment and the nature of the crime, it was
necessary they should both agree.
The Valerian law abolished all the remains of the Roman government in
any way relating to that of the kings of the heroic times of Greece. The
consuls were divested of the power to punish crimes. Though all crimes
are public, yet we must distinguish between those which more nearly
concern the mutual intercourse of the citizens and those which more
immediately interest the state in the relation it bears to its subjects.
The first are called private, the second public. The latter were tried
by the people; and in regard to the former, they named by particular
commission a quæstor for the prosecution of each crime. The person
chosen by the people was frequently one of the magistrates, sometimes a
private man. He was called the quæstor of parricide, and is mentioned in
the law of the Twelve Tables.[63]
The quæstor nominated the judge of the question, who drew lots for the
judges, and regulated the tribunal in which he presided.[64]
Here it is proper to observe what share the senate had in the nomination
of the quæstor, that we may see how far the two powers were balanced.
Sometimes the senate caused a dictator to be chosen, in order to
exercise the office of quæstor;[65] at other times they ordained that
the people should be convened by a tribune, with the view of proceeding
to the nomination of a quæstor;[66] and, in fine, the people frequently
appointed a magistrate to make his report to the senate concerning a
particular crime, and to desire them to name a quæstor, as may be seen
in the judgment upon Lucius Scipio[67] in Livy.[68]
In the year of Rome 604, some of these commissions were rendered
permanent.[69] All criminal causes were gradually divided into different
parts; to which they gave the name of perpetual questions. Different
prætors were created, to each of whom some of those questions were
assigned. They had a power conferred upon them for the term of a year,
of trying such criminal causes as bore any relation to those questions,
and then they were sent to govern their province.
At Carthage the senate of the hundred was composed of judges who enjoyed
that dignity for life.[70] But at Rome the prætors were annual; and the
judges were not even for so long a term, but were nominated for each
cause. We have already shown in the sixth chapter of this book how
favourable this regulation was to liberty in particular governments.
The judges were chosen from the order of senators, till the time of the
Gracchi. Tiberius Gracchus caused a law to pass that they should be
taken from the equestrian order; a change so very considerable that the
tribune boasted of having cut, by one rogation only, the sinews of the
senatorial dignity.
It is necessary to observe that the three powers may be very well
distributed in regard to the liberty of the constitution, though not so
well in respect to the liberty of the subject. At Rome the people had
the greatest share of the legislative, a part of the executive, and part
of the judiciary power; by which means they had so great a weight in the
government as required some other power to balance it. The senate indeed
had part of the executive power, and some share of the legislative;[71]
but this was not sufficient to counterbalance the weight of the people.
It was necessary that they should partake of the judiciary power: and
accordingly they had a share when the judges were chosen from among the
senators. But when the Gracchi deprived the senators of the judicial
power,[72] the senate were no longer able to withstand the people. To
favour, therefore, the liberty of the subject, they struck at that of
the constitution; but the former perished with the latter.
Infinite were the mischiefs that thence arose. The constitution was
changed at a time when the fire of civil discord had scarcely left any
such thing as a constitution. The knights ceased to be that middle order
which united the people to the senate; and the chain of the constitution
was broken.
There were even particular reasons against transferring the judiciary
power to the equestrian order. The constitution of Rome was founded on
this principle, that none should be enlisted as soldiers but such as
were men of sufficient property to answer for their conduct to the
republic. The knights, as persons of the greatest property, formed the
cavalry of the legions. But when their dignity increased, they refused
to serve any longer in that capacity, and another kind of cavalry was
obliged to be raised: thus Marius enlisted all sorts of people into his
army, and soon after the republic was lost.[73]
Besides, the knights were the farmers of the revenue; men whose great
rapaciousness increased the public calamities. Instead of giving to such
as those the judicial power, they ought to have been constantly under
the eye of the judges. This we must say in commendation of the ancient
French laws, that they have acted towards the officers of the revenue
with as great a diffidence as would be observed between enemies. When
the judiciary power at Rome was transferred to the publicans, there was
then an end of all virtue, polity, laws, and government.
Of this we find a very ingenious description in some fragments of
Diodorus Siculus and Dio. "Mutius Scævola," says Diodorus,[74] "wanted
to revive the ancient manners, and the laudable custom of sober and
frugal living. For his predecessors having entered into a contract with
the farmers of the revenue, who at that time were possessed of the
judiciary power at Rome, had infected the province with all manner of
corruption. But Scævola made an example of the publicans, and imprisoned
those by whom others had been confined."
Dio informs us[75] that Publius Rutilius, his lieutenant, was equally
obnoxious to the equestrian order, and that upon his return they accused
him of having received some presents, and condemned him to a fine; upon
which he instantly made a cession of his goods. His innocence appeared
in this, that he was found to be worth a great deal less than what he
was charged with having extorted, and he showed a just title to what he
possessed: but he would not live any longer in the same city with such
profligate wretches.
The Italians, says Diodorus again,[76] bought up whole droves of slaves
in Sicily, to till their lands and to take care of their cattle; but
refused them a necessary subsistence. These wretches were then forced to
go and rob on the highways, armed with lances and clubs, covered with
beasts' skins, and followed by large mastiffs. Thus the whole province
was laid waste, and the inhabitants could not call anything their own
but what was secured by fortresses. There was neither proconsul nor
prætor that could or would oppose this disorder, or that presumed to
punish these slaves, because they belonged to the knights, who at Rome
were possessed of the judiciary power.[77] And yet this was one of the
causes of the war of the slaves. But I shall add only one word more. A
profession deaf and inexorable, that can have no other view than lucre,
that was always asking and never granting, that impoverished the rich
and increased even the misery of the poor -- such a profession, I say,
should never have been entrusted with the judiciary power at Rome.
19. Of the Government of the Roman Provinces. Such was the distribution
of the three powers in Rome. But they were far from being thus
distributed in the provinces. Liberty prevailed in the centre and
tyranny in the extreme parts.
While Rome extended her dominions no farther than Italy, the people were
governed as confederates, and the laws of each republic were preserved.
But when she enlarged her conquests, and the senate had no longer an
immediate inspection over the provinces, nor the magistrates residing at
Rome were any longer capable of governing the empire, they were obliged
to send prætors and proconsuls. Then it was that the harmony of the
three powers was lost. The persons appointed to that office were
entrusted with a power which comprehended that of all the Roman
magistracies; nay, even that of the people.[78] They were despotic
magistrates, extremely well adapted to the distance of the places to
which they were destined. They exercised the three powers; and were, if
I may presume to use the expression, the bashaws of the republic.
We have elsewhere observed[79] that in a commonwealth the same
magistrate ought to be possessed of the executive power, as well civil
as military. Hence a conquering republic can hardly communicate her
government, and rule the conquered state according to her own
constitution. And indeed as the magistrate she sends to govern is
invested with the executive power, both civil and military, he must also
have the legislative: for who is it that could make laws without him? It
is necessary, therefore, that the governor she sends be entrusted with
the three powers, as was practised in the Roman provinces.
It is more easy for a monarchy to communicate its government, because
the officers it sends have, some the civil executive, and others the
military executive power, which does not necessarily imply a despotic
authority.
It was a privilege of the utmost consequence to a Roman citizen to have
none but the people for his judge. Were it not for this, he would have
been subject in the provinces to the arbitrary power of a proconsul or
of a proprætor. The city never felt the tyranny which was exercised only
on conquered nations.
Thus, in the Roman world, as at Sparta, the freemen enjoyed the highest
degree of liberty, while those who were slaves laboured under the
extremity of servitude.
While the citizens paid taxes, they were raised with great justice and
equality. The regulation of Servius Tullius was observed, who had
distributed the people into six classes, according to their difference
of property, and fixed the several shares of the public imposts in
proportion to that which each person had in the government. Hence they
bore with the greatness of the tax because of their proportionable
greatness of credit, and consoled themselves for the smallness of their
credit because of the smallness of the tax.
There was also another thing worthy of ad miration, which is, that as
Servius Tullius's division into classes was in some measure the
fundamental principle of the constitution, it thence followed that an
equal levying of the taxes was so connected with this fundamental
principle that the one could not be abolished without the other.
But while the city paid the taxes as she pleased, or paid none at
all,[80] the provinces were plundered by the knights, who were the
farmers of the public revenue. We have already made mention of their
oppressive extortions, with which all history abounds.
"All Asia," says Mithridates,[81] "expects me as her deliverer; so great
is the hatred which the rapaciousness of the proconsuls,[82] the
confiscations made by the officers of the revenue, and the quirks and
cavils of judicial proceedings,[83] have excited against the Romans."
Hence it was that the strength of the provinces did not increase, but
rather weakened, the strength of the republic. Hence it was that the
provinces looked upon the loss of the liberty of Rome as the epoch of
their own freedom.
20. The End of this Book. I should be glad to inquire into the
distribution of the three powers, in all the moderate governments we are
acquainted with, in order to calculate the degrees of liberty which each
may enjoy. But we must not always exhaust a subject, so as to leave no
work at all for the reader. My business is not to make people read, but
to make them think.
______
1. "I have copied," says Cicero, "Scævola's edict, which permits the
Greeks to terminate their difference among themselves according to their
own laws; this makes them consider themselves a free people."
2. The Russians could not bear that Czar Peter should make them cut it
off.
3. The Cappadocians refused the condition of a republican state, which
was offered them by the Romans.
4. The natural end of a state that has no foreign enemies, or that
thinks itself secured against them by barriers.
5. Inconvenience of the Liberum veto.
6. At Venice.
7. As at Athens.
8. See Aristotle, Politics, iv. 4.
9. See Aristotle, Politics, ii, 10.
10. Ibid., 9.
11. These were magistrates chosen annually by the people. See Stephen of
Byzantium.
12. It was lawful to accuse the Roman magistrates after the expiration
of their several offices. See in Dionysius Halicarnassus, ix, the affair
of Genutius the tribune.
13. De minoribus rebus principes consultant, de majoribus omnes; ita
tamen lit ea quoque quorum penes plebem arbitrium est, apud principes
pertractentur. -- ix.
14. Politics, iii. 14.
15. See Justin, xvii. 3.
16. Aristotle, Politics, v. 11.
17. Ibid., iii. 14.
18. Ibid.
19. See what Plutarch says in the Theseus. See likewise Thucydides, i.
20. Aristotle, Politics, iv. 8.
21. Dionysius Halicarnassus, ii, p. 120, and iv, pp. 242, 243.
22. See Tanaquil's Discourse on Livy, i dec. l, and the regulations of
Servius Tullius in Dionysius Halicarnassus, iv. p. 229.
23. See Dionysius Halicarnassus, ii, p. 118, and iii, p. 171.
24. It was by virtue of a senatus-consultum that Tullius Hostilius
ordered Alba to be destroyed. -- Ibid., iii, pp. 167 and 172.
25. Ibid., iv, p. 276.
26. Ibid., ii. And yet they could not have the nomination of all
offices, since Valerius Publicola made that famous law by which every
citizen was forbidden to exercise any employment, unless he had obtained
it by the suffrage of the people.
27. Ibid., iii, p. 159.
28. Ibid., iv.
29. He divested himself of half the regal power, says Dionysius
Halicarnassus, iv, p. 229.
30. It was thought that if he had not been prevented by Tarquin he would
have established a popular government. -- Ibid., iv, p. 243.
31. Ibid., iv.
32. Livy, dec. 1, vi.
33. Quæstores parricidii. -- Pomponius, Leg. 2,§ 23, ff. de orig. jur.
34. Plutarch, Poplicola.
35. Comitiis centuriatis.
36. See Livy, i, 43; Dionysius Halicarnassus, iv, vii.
37. Dionysius Halicarnassus, ix, p. 598.
38. Ibid., vii.
39. Contrary to the ancient custom, as may be seen: ibid., v, p. 320.
40. Ibid., pp. 410, 411.
41. Ibid., ix, p. 605.
42. Ibid., xi, p. 725.
43. By the sacred laws, the plebeians had the power of making the
plebiscita by themselves, without admitting the patricians into their
assembly -- Ibid., vi, p. 410; vii, p. 430.
44. By the law enacted after the expulsion of the decemvirs, the
patricians were made subject to the plebiscita, though they had not a
right of voting there. Livy, iii. 55, and Dionysius Halicarnassus, xi,
p. 725. This law was confirmed by that of Publius Philo the dictator, in
the year of Rome 416. Livy, viii. 12.
45. In the year 312 of Rome the consuls performed still the business of
surveying the people and their estates, as appears by Dionysius
Halicarnassus, ix.
46. Such as those by which it was allowed to appeal from the decisions
of all the magistrates to the people.
47. Book vi.
48. In the year of Rome 444, Livy, dec. 1, ix. 30. As the war against
Perseus appeared somewhat dangerous, it was ordained by a
senatus-consultum that this law should be suspended, and the people
agreed to it. Livy, dec. 5, ii.
49. They extorted it from the senate, says Freinshemius, dec. 2, vi.
50. There is no manner of doubt but the consuls had the power of trying
civil causes before the creation of the prætors. See Livy, dec. l, ii.
1; Dionysius Halicarnassus, x, pp. 627, 645.
51. The tribunes frequently tried causes by themselves only, but nothing
rendered them more odious. -- Dionysius Halicarnassus, xi, p. 709.
52. Judicia extraordinaria. See the Institutes, iv.
53. Book vi, p. 360.
54. Album Judicium.
55. "Our ancestors," says Cicero, Pro Cluentio, "would not suffer any
man whom the parties had not agreed to, to be judge of the least
pecuniary affair, much less of a citizen's reputation."
56. See in the fragments of the Servilian, Cornelian, and other laws, in
what manner these laws appointed judges for the crimes they proposed to
punish. They were often pitched upon by choice, sometimes by lot, or, in
fine, by lot mixed together with choice.
57. Seneca, De Benefic. iii. 7, in fine.
58. See Quintilian, iv, p. 54, in fol. ed., Paris, 1541.
59. Leg. 2 ff. de orig. jur. Magistrates who were called decemvirs
presided in court, the whole under a prætor's direction.
60. Quoniam de capite civis Romani, injussu populi Romani, non erat
permissum consulibus jus dicere. -- See Pomponius,Leg. 2, §6, ff. de
orig. jur.
61. Dionysius Halicarnassus, v, p. 322.
62. The comitia by centuries. Thus Manlius Capitolinus was tried in
these comitia. -- Livy, Dec. 1, vi. 20.
63. Pomponius, in Leg. 2, Dig., de orig. jur.
64. See a fragment of Ulpian, who gives another of the Cornelian Law: it
is to be met with in the Collation of the Mosaic and Roman Laws, tit. i,
De Sicariis et homicidiis.
65. This took place, especially in regard to crimes committed in Italy,
which were subject chiefly to the inspection of the senate. See Livy,
Dec. 1, ix, 26, concerning the conspiracies at Capua.
66. This was the case in the prosecution for the murder of Posthumius,
in the year 340 of Rome. See Livy, iv. 50.
67. This judgment was passed in the year of Rome 567.
68. Book viii.
69. Cicero, in Brutus.
70. This is proved from Livy, book xliii. 46, who says that Hannibal
rendered their magistracy annual.
71. The senatus-consultums were in force for the space of a year, though
not confirmed by the people. -- Dionysius Halicarnassus ix, p. 595; xi,
p. 735.
72. In the year 630.
73. Capite censos plerosque. -- Sallust, De Bello Jugurth, 84.
74. Fragment of this author, xxxvi, in the collection of Constantine
Porphyrogenitus, Of Virtues and Vices [Historica].
75. Fragment of his history, taken from the extract Of Virtues and Vices
[Historica].
76. Fragment of the book xxxiv in the extract Of Virtues and Vices
[Historica].
77. Penes quos Romæ tum judicia erant, atque ex equestri ordine solerent
sortito judices eligi in causa Prætorum et Proconsulum, quibus post
administratam provinciam dies dicta erat.
78. They made their edicts upon entering the provinces.
79. Book v. 19. See also ii, iii, iv, and v.
80. After the conquest of Macedonia the Romans paid no taxes.
81. Speech taken from Trogus Pompeius, and related by Justin, xxxviii.
4.
82. See the orations against Verres.
83. It is well known what sort of a tribunal was that of Varus, which
provoked the Germans to revolt.
------------------------------------------------------------------------
Book XII. Of the Laws That Form Political Liberty, in Relation
to the Subject
1. Idea of this Book. It is not sufficient to have treated of political
liberty in relation to the constitution; we must examine it likewise in
the relation it bears to the subject.
We have observed that in the former case it arises from a certain
distribution of the three powers; but in the latter, we must consider it
in another light. It consists in security, or in the opinion people have
of their security.
The constitution may happen to be free, and the subject not. The subject
may be free, and not the constitution. In those cases, the constitution
will be free by right, and not in fact; the subject will be free in
fact, and not by right.
It is the disposition only of the laws, and even of the fundamental
laws, that constitutes liberty in relation to the constitution. But as
it regards the subject: manners, customs, or received examples may give
rise to it, and particular civil laws may encourage it, as we shall
presently observe.
Further, as in most states liberty is more checked or depressed than
their constitution requires, it is proper to treat of the particular
laws that in each constitution are apt to assist or check the principle
of liberty which each state is capable of receiving.
2. Of the Liberty of the Subject. Philosophic liberty consists in the
free exercise of the will; or at least, if we must speak agreeably to
all systems, in an opinion that we have the free exercise of our will.
Political liberty consists in security, or, at least, in the opinion
that we enjoy security.
This security is never more dangerously attacked than in public or
private accusations. It is, therefore, on the goodness of criminal laws
that the liberty of the subject principally depends.
Criminal laws did not receive their full perfection all at once. Even in
places where liberty has been most sought after, it has not been always
found. Aristotle[1] informs us that at Cumæ the parents of the accuser
might be witnesses. So imperfect was the law under the kings of Rome
that Servius Tullius pronounced sentence against the children of Ancus
Martius, who were charged with having assassinated the king, his
father-in-law.[2] Under the first kings of France, Clotarius made a
law[3] that nobody should be condemned without being heard; which shows
that a contrary custom had prevailed in some particular case or among
some barbarous people. It was Charondas that first established penalties
against false witnesses.[4] When the subject has no fence to secure his
innocence, he has none for his liberty.
The knowledge already acquired in some countries, or that may be
hereafter attained in others, concerning the surest rules to be observed
in criminal judgments, is more interesting to mankind than any other
thing in the world.
Liberty can be founded on the practice of this knowledge only; and
supposing a state to have the best laws imaginable in this respect, a
person tried under that state, and condemned to be hanged the next day,
would have much more liberty than a pasha enjoys in Turkey.
3. The same Subject continued. Those laws which condemn a man to death
on the deposition of a single witness are fatal to liberty. In reason
there should be two, because a witness who affirms, and the accused who
denies, make an equal balance, and a third must incline the scale.
The Greeks[5] and Romans[6] required one voice more to condemn: but our
French laws insist upon two. The Greeks pretend that their custom was
established by the gods;[7] but this more justly may be said of ours.
4. That Liberty is favoured by the Nature and Proportion of Punishments.
Liberty is in perfection when criminal laws derive each punishment from
the particular nature of the crime. There are then no arbitrary
decisions; the punishment does not flow from the capriciousness of the
legislator, but from the very nature of the thing; and man uses no
violence to man.
There are four sorts of crimes. Those of the first species are
prejudicial to religion, the second to morals, the third to the public
tranquillity, and the fourth to the security of the subject. The
punishments inflicted for these crimes ought to proceed from the nature
of each of these species.
In the class of crimes that concern religion, I rank only those which
attack it directly, such as all simple sacrileges. For as to crimes that
disturb the exercise of it, they are of the nature of those which
prejudice the tranquillity or security of the subject, and ought to be
referred to those classes.
In order to derive the punishment of simple sacrileges from the nature
of the thing,[8] it should consist in depriving people of the advantages
conferred by religion in expelling them out of the temples, in a
temporary or perpetual exclusion from the society of the faithful, in
shunning their presence, in execrations, comminations, and conjurations.
In things that prejudice the tranquillity or security of the state,
secret actions are subject to human jurisdiction. But in those which
offend the Deity, where there is no public act, there can be no criminal
matter, the whole passes between man and God, who knows the measure and
time of His vengeance. Now if magistrates, confounding things, should
inquire also into hidden sacrileges, this inquisition would be directed
to a kind of action that does not at all require it: the liberty of the
subject would be subverted by arming the zeal of timorous as well as of
presumptuous consciences against him.
The mischief arises from a notion which some people have entertained of
revenging the cause of the Deity. But we must honour the Deity and leave
him to avenge his own cause. And, indeed, were we to be directed by such
a notion, where would be the end of punishments? If human laws are to
avenge the cause of an infinite Being, they will be directed by his
infinity, and not by the weakness, ignorance, and caprice of man.
An historian[9] of Provence relates a fact which furnishes us with an
excellent description of the consequences that may arise in weak
capacities from the notion of avenging the Deity's cause. A Jew was
accused of having blasphemed against the Virgin Mary; and upon
conviction was condemned to be flayed alive. A strange spectacle was
then exhibited: gentlemen masked, with knives in their hands, mounted
the scaffold, and drove away the executioner, in order to be the
avengers themselves of the honour of the blessed Virgin. I do not here
choose to anticipate the reflections of the reader.
The second class consists of those crimes which are prejudicial to
morals. Such is the violation of public or private continence, that is,
of the police directing the manner in which the pleasure annexed to the
conjunction of the sexes is to be enjoyed. The punishment of those
crimes ought to be also derived from the nature of the thing; the
privation of such advantages as society has attached to the purity of
morals, fines, shame, necessity of concealment, public infamy, expulsion
from home and society, and, in fine, all such punishments as belong to a
corrective jurisdiction, are sufficient to repress the temerity of the
two sexes. In effect these things are less founded on malice than on
carelessness and self-neglect.
We speak here of none but crimes which relate merely to morals, for as
to those that are also prejudicial to the public security, such as
rapes, they belong to the fourth species.
The crimes of the third class are those which disturb the public
tranquillity. The punishments ought therefore to be derived from the
nature of the thing, and to be in relation to this tranquillity; such as
imprisonment, exile, and other like chastisements proper for reclaiming
turbulent spirits, and obliging them to conform to the established
order.
I confine those crimes that injure the public tranquillity to things
which imply a bare offence against the police; for as to those which by
disturbing the public peace attack at the same time the security of the
subject, they ought to be ranked in the fourth class.
The punishments inflicted upon the latter crimes are such as are
properly distinguished by that name. They are a kind of retaliation, by
which the society refuses security to a member who has actually or
intentionally deprived another of his security. These punishments are
derived from the nature of the thing, founded on reason, and drawn from
the very source of good and evil. A man deserves death when he has
violated the security of the subject so far as to deprive, or attempt to
deprive, another man of his life. This punishment of death is the
remedy, as it were, of a sick society. When there is a breach of
security with regard to property, there may be some reasons for
inflicting a capital punishment: but it would be much better, and
perhaps more natural, that crimes committed against the security of
property should be punished with the loss of property; and this ought,
indeed, to be the case if men's fortunes were common or equal. But as
those who have no property of their own are generally the readiest to
attack that of others, it has been found necessary, instead of a
pecuniary, to substitute a corporal, punishment.
All that I have here advanced is founded in nature, and extremely
favourable to the liberty of the subject.
5. Of certain Accusations that require particular Moderation and
Prudence. It is an important maxim, that we ought to be very circumspect
in the prosecution of witchcraft and heresy. The accusation of these two
crimes may be vastly injurious to liberty, and productive of infinite
oppression, if the legislator knows not how to set bounds to it. For as
it does not directly point at a person's actions, but at his character,
it grows dangerous in proportion to the ignorance of the people; and
then a man is sure to be always in danger, because the most exceptional
conduct, the purest morals, and the constant practice of every duty in
life are not a sufficient security against the suspicion of his being
guilty of the like crimes.
Under Manuel Comnenus, the Protestator[10] was accused of having
conspired against the emperor, and of having employed for that purpose
some secrets that render men invisible. It is mentioned in the life of
this emperor[11] that Aaron was detected, as he was poring over a book
of Solomon's, the reading of which was sufficient to conjure up whole
legions of devils. Now by supposing a power in witchcraft to rouse the
infernal spirits to arms, people look upon a man whom they call a
sorcerer as the person in the world most likely to disturb and subvert
society; and of course they are disposed to punish him with the utmost
severity.
But their indignation increases when witchcraft is supposed to have the
power of subverting religion. The history of Constantinople[12] informs
us that in consequence of a revelation made to a bishop of a miracle
having ceased because of the magic practices of a certain person, both
that person and his son were put to death. On how many surprising things
did not this single crime depend? That revelations should not be
uncommon, that the bishop should be favoured with one, that it was real,
that there had been a miracle in the case, that this miracle had ceased,
that there was a magic art, that magic could subvert religion, that this
particular person was a magician, and, in fine, that he had committed
that magic act.
The Emperor Theodorus Lascaris attributed his illness to witchcraft.
Those who were accused of this crime had no other resource left than to
handle a red-hot iron without being hurt. Thus among the Greeks a person
ought to have been a sorcerer to be able to clear himself of the
imputation of witchcraft. Such was the excess of their stupidity that to
the most dubious crime in the world they joined the most dubious proofs
of innocence.
Under the reign of Philip the Long, the Jews were expelled from France,
being accused of having poisoned the springs with their lepers. So
absurd an accusation ought to make us doubt all those that are founded
on public hatred.
I have not here asserted that heresy ought not to be punished; I said
only that we ought to be extremely circumspect in punishing it.
6. Of the Crime against Nature. God forbid that I should have the least
inclination to diminish the public horror against a crime which
religion, morality, and civil government equally condemn. It ought to be
proscribed, were it only for its communicating to one sex the weaknesses
of the other, and for leading people by a scandalous prostitution of
their youth to an ignominious old age. What I shall say concerning it
will in no way diminish its infamy, being levelled only against the
tyranny that may abuse the very horror we ought to have against the
vice.
As a natural circumstance of this crime is secrecy, there are frequent
instances of its having been punished by legislators upon the deposition
of a child. This was opening a very wide door to calumny. "Justinian,"
says Procopius,[13] "published a law against this crime; he ordered an
inquiry to be made not only against those who were guilty of it, after
the enacting of that law, but even before. The deposition of a single
witness, sometimes of a child, sometimes of a slave, was sufficient,
especially against such as were rich, and against those of the green
faction."
It is very odd that these three crimes, witchcraft, heresy, and that
against nature, of which the first might easily be proved not to exist;
the second to be susceptible of an infinite number of distinctions,
interpretations, and limitations; the third to be often obscure and
uncertain -- it is very odd, I say, that these three crimes should
amongst us be punished with fire.
I may venture to affirm that the crime against nature will never make
any great progress in society, unless people are prompted to it by some
particular custom, as among the Greeks, where the youths of that country
performed all their exercises naked; as amongst us, where domestic
education is disused; as amongst the Asiatics, where particular persons
have a great number of women whom they despise, while others can have
none at all. Let there be no customs preparatory to this crime; let it,
like every other violation of morals, be severely proscribed by the
civil magistrate; and nature will soon defend or resume her rights.
Nature, that fond, that indulgent parent, has strewn her pleasures with
a bounteous hand, and while she fills us with delights, she prepares us,
by means of our issue, in whom we see ourselves, as it were, reproduced
-- she prepares us, I say, for future satisfactions of a more exquisite
kind than those very delights.
7. Of the Crime of High Treason. It is determined by the laws of China
that whosoever shows any disrespect to the emperor is to be punished
with death. As they do not mention in what this disrespect consists,
everything may furnish a pretext to take away a man's life, and to
exterminate any family whatsoever.
Two persons of that country who were employed to write the court
gazette, having inserted some circumstances relating to a certain fact
that was not true, it was pretended that to tell a lie in the court
gazette was a disrespect shown to the court, in consequence of which
they were put to death.[14] A prince of the blood having inadvertently
made some mark on a memorial signed with the red pencil by the emperor,
it was determined that he had behaved disrespectfully to the sovereign;
which occasioned one of the most terrible persecutions against that
family that ever was recorded in history.[15]
If the crime of high treason be indeterminate, this alone is sufficient
to make the government degenerate into arbitrary power. I shall descant
more largely on this subject when I come to treat[16] of the composition
of laws.
8. Of the Misapplication of the Terms Sacrilege and High Treason. It is
likewise a shocking abuse to give the appellation of high treason to an
action that does not deserve it. By an imperial law[17] it was decreed
that those who called in question the prince's judgment, or doubted the
merit of such as he had chosen for a public office, should be prosecuted
as guilty of sacrilege.[18] Surely it was the cabinet council and the
prince's favourites who invented that crime. By another law, it was
determined that whosoever made any attempt to injure the ministers and
officers belonging to the sovereign should be deemed guilty of high
treason, as if he had attempted to injure the sovereign himself.[19]
This law is owing to two princes[20] remarkable for their weakness --
princes who were led by their ministers as flocks by shepherds; princes
who were slaves in the palace, children in the council, strangers to the
army; princes, in fine, who preserved their authority only by giving it
away every day. Some of those favourites conspired against their
sovereigns. Nay, they did more, they conspired against the empire --
they called in barbarous nations; and when the emperors wanted to stop
their progress the state was so enfeebled as to be under a necessity of
infringing the law, and of exposing itself to the crime of high treason
in order to punish those favourites.
And yet this is the very law which the judge of Monsieur de Cinq-Mars
built upon[21] when endeavouring to prove that the latter was guilty of
the crime of high treason for attempting to remove Cardinal Richelieu
from the ministry. He says: "Crimes that aim at the persons of ministers
are deemed by the imperial constitutions of equal consequence with those
which are levelled against the emperor's own person. A minister
discharges his duty to his prince and to his country: to attempt,
therefore, to remove him, is endeavouring to deprive the former one of
his arms,[22] and the latter of part of its power." It is impossible for
the meanest tools of power to express themselves in more servile
language.
By another law of Valentinian, Theodosius, and Arcadius,[23] false coiners
are declared guilty of high treason. But is not this confounding the
ideas of things? Is not the very horror of high treason diminished by
giving that name to another crime?
9. The same Subject continued. Paulinus having written to the Emperor
Alexander that "he was preparing to prosecute for high treason a judge
who had decided contrary to his edict," the emperor answered, "that
under his reign there was no such thing as indirect high treason."[24]
Faustinian wrote to the same emperor that as he had sworn by the
prince's life never to pardon his slave, he found himself thereby
obliged to perpetuate his wrath, lest he should incur the guilt of læsa
majestas. Upon which the emperor made answer, "Your fears are
groundless,[25] and you are a stranger to my principles."
It was determined by a senatus-consultum[26] that whosoever melted down
any of the emperor's statues which happened to be rejected should not be
deemed guilty of high treason. The Emperors Severus and Antoninus wrote
to Pontius[27] that those who sold unconsecrated statues of the emperor
should not be charged with high treason. The same princes wrote to
Julius Cassianus that if a person in flinging a stone should by chance
strike one of the emperor's statues he should not be liable to a
prosecution for high treason.[28] The Julian law requires this sort of
limitations; for in virtue of this law the crime of high treason was
charged not only upon those who melted down the emperor's statues, but
likewise on those who committed any such like action,[29] which made it
an arbitrary crime. When a number of crimes of læsa majestas had been
established, they were obliged to distinguish the several sorts. Hence
Ulpian, the civilian, after saying that the accusation of læsa majestas
did not die with the criminal, adds that this does not relate to all the
treasonable acts established by the Julian law,[30] but only to that
which implies an attempt against the empire, or against the emperor's
life.
10. The same Subject continued. There was a law passed in England under
Henry VIII, by which whoever predicted the king's death was declared
guilty of high treason. This law was extremely vague; the terror of
despotic power is so great that it recoils upon those who exercise it.
In this king's last illness, the physicians would not venture to say he
was in danger; and surely they acted very right.[31]
11. Of Thoughts. Marsyas dreamed that he had cut Dionysius's throat.[32]
Dionysius put him to death, pretending that he would never have dreamed
of such a thing by night if he had not thought of it by day. This was a
most tyrannical action: for though it had been the subject of his
thoughts, yet he had made no attempt[33] towards it. The laws do not
take upon them to punish any other than overt acts.
12. Of indiscreet Speeches. Nothing renders the crime of high treason
more arbitrary than declaring people guilty of it for indiscreet
speeches. Speech is so subject to interpretation; there is so great a
difference between indiscretion and malice; and frequently so little is
there of the latter in the freedom of expression, that the law can
hardly subject people to a capital punishment for words unless it
expressly declares what words they are.[34]
Words do not constitute an overt act; they remain only in idea. When
considered by themselves, they have generally no determinate
signification; for this depends on the tone in which they are uttered.
It often happens that in repeating the same words they have not the same
meaning; this depends on their connection with other things, and
sometimes more is signified by silence than by any expression whatever.
Since there can be nothing so equivocal and ambiguous as all this, how
is it possible to convert it into a crime of high treason? Wherever this
law is established, there is an end not only of liberty, but even of its
very shadow.
In the manifesto of the late Czarina against the family of the
D'Olgoruckys,[35] one of these princes is condemned to death for having
uttered some indecent words concerning her person: another, for having
maliciously interpreted her imperial laws, and for having offended her
sacred person by disrespectful expressions.
Not that I pretend to diminish the just indignation of the public
against those who presume to stain the glory of their sovereign; what I
mean is that, if despotic princes are willing to moderate their power, a
milder chastisement would be more proper on those occasions than the
charge of high treason -- a thing always terrible even to innocence
itself.[36]
Overt acts do not happen every day; they are exposed to the eye of the
public; and a false charge with regard to matters of fact may be easily
detected. Words carried into action assume the nature of that action.
Thus a man who goes into a public market-place to incite the subject to
revolt incurs the guilt of high treason, because the words are joined to
the action, and partake of its nature. It is not the words that are
punished, but an action in which words are employed. They do not become
criminal, but when they are annexed to a criminal action: everything is
confounded if words are construed into a capital crime, instead of
considering them only as a mark of that crime.
The Emperors Theodosius, Arcadius, and Honorius wrote thus to Rufinus,
who was præfectus prætorio: "Though a man should happen to speak amiss
of our person or government, we do not intend to punish him:[37] if he
has spoken through levity, we must despise him; if through folly, we
must pity him; and if he wrongs us, we must forgive him. Therefore,
leaving things as they are, you are to inform us accordingly, that we
may be able to judge of words by persons, and that we may duly consider
whether we ought to punish or overlook them."
13. Of Writings. In writings there is something more permanent than in
words, but when they are in no way preparative to high treason they
cannot amount to that charge.
And yet Augustus and Tiberius subjected satirical writers to the same
punishment as for having violated the law of maiestas. Augustus,[38]
because of some libels that had been written against persons of the
first quality; Tiberius, because of those which he suspected to have
been written against himself. Nothing was more fatal to Roman liberty.
Cremutius Cordus was accused of having called Cassius in his annals the
last of the Romans.[39]
Satirical writings are hardly known in despotic governments, where
dejection of mind on the one hand, and ignorance on the other, afford
neither abilities nor will to write. In democracies they are not
hindered, for the very same reason which causes them to be prohibited in
monarchies; being generally levelled against men of power and authority,
they flatter the malignancy of the people, who are the governing party.
In monarchies they are forbidden, but rather as a subject of civil
animadversion than as a capital crime. They may amuse the general
malevolence, please the malcontents, diminish the envy against public
employments, give the people patience to suffer, and make them laugh at
their sufferings.
But no government is so averse to satirical writings as the
aristocratic. There the magistrates are petty sovereigns, but not great
enough to despise affronts. If in a monarchy a satirical stroke is
designed against the prince, he is placed on such an eminence that it
does not reach him; but an aristocratic lord is pierced to the very
heart. Hence the decemvirs, who formed an aristocracy, punished
satirical writings with death.[40]
14. Breach of Modesty in punishing Crimes. There are rules of modesty
observed by almost every nation in the world; now it would be very
absurd to infringe these rules in the punishment of crimes, the
principal view of which ought always to be the establishment of order.
Was it the intent of those Oriental nations who exposed women to
elephants trained up for an abominable kind of punishment -- was it, I
say, their intent to establish one law by the breach of another?
By an ancient custom of the Romans it was not permitted to put girls to
death till they were ripe for marriage. Tiberius found an expedient of
having them debauched by the executioner before they were brought to the
place of punishment:[41] that bloody and subtle tyrant destroyed the
morals of the people to preserve their customs.
When the magistrates of Japan caused women to be exposed naked in the
market-places, and obliged them to go upon all fours like beasts,
modesty was shocked:[42] but when they wanted to compel a mother -- when
they wanted to force a son -- I cannot proceed; even Nature herself is
struck with horror.[43]
15. Of the Enfranchisement of Slaves in order to accuse their Master.
Augustus made a law that the slaves of those who conspired against his
person should be sold to the public, that they might depose against
their master.[44] Nothing ought to be neglected which may contribute to
the discovery of a heinous crime; it is natural, therefore, that in a
government where there are slaves they should be allowed to inform; but
they ought not to be admitted as witnesses.
Vindex discovered the conspiracy that had been formed in favour of
Tarquin; but he was not admitted a witness against the children of
Brutus. It was right to give liberty to a person who had rendered so
great a service to his country; but it was not given him with a view of
enabling him to render this service.
Hence the Emperor Tacitus ordained that slaves should not be admitted as
witnesses against their masters, even in the case of high treason:[45] a
law which was not inserted in Justinian's compilation.
16. Of Calumny with regard to the Crime of High Treason. To do justice
to the Cæsars, they were not the first devisers of the horrid laws which
they enacted. It was Sulla[46] that taught them that calumniators ought
not to be punished; but the abuse was soon carried to such excess as to
reward them.[47]
17. Of the revealing of Conspiracies. "If thy brother, the son of thy
mother, or thy son, or thy daughter, or the wife of thy bosom, or thy
friend, which is as thine own soul, entice thee secretly, saying, 'Let
us go and serve other gods,' thou shalt surely kill him, thou shalt
stone him."[48] This law of Deuteronomy cannot be a civil law among most
of the nations known to us, because it would pave the way for all manner
of wickedness.
No less severe is the law of several countries which commands the
subjects, on pain of death, to disclose conspiracies in which they are
not even so much as concerned. When such a law is established in a
monarchical government, it is very proper it should be under some
restrictions.
It ought not to be applied in its full severity save to the strongest
cases of high treason. In those countries it is of the utmost importance
not to confound the different degrees of this crime. In Japan, where the
laws subvert every idea of human reason, the crime of concealment is
applied even to the most ordinary cases.
A certain relation[49] makes mention of two young ladies who were shut
up for life in a box thick set with pointed nails, one for having had a
love intrigue, and the other for not disclosing it.
18. How dangerous it is in Republics to be too severe in punishing the
Crime of High Treason. As soon as a republic has compassed the
destruction of those who wanted to subvert it, there should be an end of
terrors, punishments, and even of rewards.
Great punishments, and consequently great changes, cannot take place
without investing some citizens with an exorbitant power. It is,
therefore, more advisable in this case to exceed in lenity than in
severity; to banish but few, rather than many; and to leave them their
estates, instead of making a vast number of confiscations. Under
pretence of avenging the republic's cause, the avengers would establish
tyranny. The business is not to destroy the rebel, but the rebellion.
They ought to return as quickly as possible into the usual track of
government, in which every one is protected by the laws, and no one
injured.
The Greeks set no bounds to the vengeance they took upon tyrants, or of
those they suspected of tyranny; they put their children to death,[50]
nay, sometimes five of their nearest relatives;[51] and they proscribed
an infinite number of families. By such means their republics suffered
the most violent shocks: exiles, or the return of the exiled, were
always epochs that indicated a change of the constitution.
The Romans had more sense. When Cassius was put to death for having
aimed at tyranny, the question was proposed whether his children should
undergo the same fate: but they were preserved. "They," says Dionysius
Halicarnassus,[52] "who wanted to change this law at the end of the
Marsian and civil wars, and to exclude from public offices the children
of those who had been proscribed by Sulla, are very much to blame."
We find in the wars of Marius and Sulla to what excess the Romans had
gradually carried their barbarity. Such scenes of cruelty it was hoped
would never be revived. But under the triumvirs they committed greater
acts of oppression, though with some appearance of lenity; and it is
provoking to see what sophisms they made use of to cover their
inhumanity. Appian has given us[53] the formula of the proscriptions.
One would imagine they had no other aim than the good of the republic,
with such calmness do they express themselves; such advantages do they
point out to the state; such expediency do they show in the means they
adopt; such security do they promise to the opulent; such tranquillity
to the poor; so apprehensive do they seem of endangering the lives of
the citizens; so desirous of appeasing the soldiers; such felicity, in
fine, do they presage to the commonwealth.
Rome was drenched in blood when Lepidus triumphed over Spain: yet, by an
unparalleled absurdity, he ordered public rejoicings in that city, upon
pain of proscription.
19. In what Manner the Use of Liberty is suspended in a Republic. In
countries where liberty is most esteemed, there are laws by which a
single person is deprived of it, in order to preserve it for the whole
community. Such are in England what they call Bills of Attainder.[54]
These are in relation to those Athenian laws by which a private person
was condemned,[55] provided they were made by the unanimous suffrage of
six thousand citizens. They are in relation also to those laws which
were made at Rome against private citizens, and were called
privileges.[56] These were never passed except in the great meetings of
the people. But in what manner soever they were enacted, Cicero was for
having them abolished, because the force of a law consists in its being
made for the whole community.[57] I must own, notwithstanding, that the
practice of the freest nation that ever existed induces me to think that
there are cases in which a veil should be drawn for a while over
liberty, as it was customary to cover the statues of the gods.
20. Of Laws favourable to the Liberty of the Subject in a Republic. In
popular governments it often happens that accusations are carried on in
public, and every man is allowed to accuse whomsoever he pleases. This
rendered it necessary to establish proper laws, in order to protect the
innocence of the subject. At Athens, if an accuser had not the fifth
part of the votes on his side, he was obliged to pay a fine of a
thousand drachms. Æschines, who accused Ctesiphon, was condemned to pay
this fine.[58] At Rome, a false accuser was branded with infamy[59] by
marking the letter K on his forehead. Guards were also appointed to
watch the accuser, in order to prevent his corrupting either the judges
or the witnesses.[60]
I have already taken notice of that Athenian and Roman law by which the
party accused was allowed to withdraw before judgment was pronounced.
21. Of the Cruelty of Laws in respect to Debtors in a Republic. Great is
the superiority which one fellow-subject has already over another, by
lending him money, which the latter borrows in order to spend, and, of
course, has no longer in his possession. What must be the consequence if
the laws of a republic make a further addition to this servitude and
subjection?
At Athens and Rome[61] it was at first permitted to sell such debtors as
were insolvent. Solon redressed this abuse at Athens[62] by ordaining
that no man's body should answer for his civil debts. But the
decemvirs[63] did not reform the same custom at Rome; and though they
had Solon's regulation before their eyes, yet they did not choose to
follow it. This is not the only passage of the law of the Twelve Tables
in which the decemvirs show their design of checking the spirit of
democracy.
Often did those cruel laws against debtors throw the Roman republic into
danger. A man covered with wounds made his escape from his creditor's
house and appeared in the forum.[64] The people were moved with this
spectacle, and other citizens whom their creditors durst no longer
confine broke loose from their dungeons. They had promises made them,
which were all broken. The people upon this, having withdrawn to the
Sacred Mount, obtained, not an abrogation of those laws, but a
magistrate to defend them. Thus they quitted a state of anarchy, but
were soon in danger of falling into tyranny. Manlius, to render himself
popular, was going to set those citizens at liberty who by their inhuman
creditors[65] had been reduced to slavery. Manlius's designs were
prevented, but without remedying the evil. Particular laws facilitated
to debtors the means of paying;[66] and in the year of Rome 428 the
consuls proposed a law[67] which deprived creditors of the power of
confining their debtors in their own houses.[68] A usurer, by name
Papirius, attempted to corrupt the chastity of a young man named
Publius, whom he kept in irons. Sextus's crime gave to Rome its
political liberty; that of Papirius gave it also the civil.
Such was the fate of this city, that new crimes confirmed the liberty
which those of a more ancient date had procured it. Appius's attempt
upon Virginia flung the people again into that horror against tyrants
with which the misfortune of Lucretia had first inspired them.
Thirty-seven years after[69] the crime of the infamous Papirius, an
action of the like criminal nature[70] was the cause of the people's
retiring to the Janiculum,[71] and of giving new vigour to the law made
for the safety of debtors.
Since that time creditors were oftener prosecuted by debtors for having
violated the laws against usury than the latter were sued for refusing
to pay them.
22. Of Things that strike at Liberty in Monarchies. Liberty often has
been weakened in monarchies by a thing of the least use in the world to
the prince: this is the naming of commissioners to try a private person.
The prince himself derives so very little advantage from those
commissioners that it is not worth while to change for their sake the
common course of things. He is morally sure that he has more of the
spirit of probity and justice than his commissioners, who think
themselves sufficiently justified by his nomination and orders, by a
vague interest of state, and even by their very apprehensions.
Upon the arraigning of a peer under Henry VIII it was customary to try
him by a committee of the House of Lords: by which means he put to death
as many peers as he pleased.
23. Of Spies in Monarchies. Should I be asked whether there is any
necessity for spies in monarchies, my answer would be that the usual
practice of good princes is not to employ them. When a man obeys the
laws, he has discharged his duty to his prince. He ought at least to
have his own house for an asylum, and the rest of his conduct should be
exempt from inquiry. The trade of a spy might perhaps be tolerable, were
it practised by honest men; but the necessary infamy of the person is
sufficient to make us judge of the infamy of the thing. A prince ought
to act towards his subjects with candour, frankness, and confidence.
He that has so much disquiet, suspicion, and fear is an actor
embarrassed in playing his part. When he finds that the laws are
generally observed and respected, he may judge himself safe. The
behaviour of the public answers for that of every individual. Let him
not be afraid: he cannot imagine how natural it is for his people to
love him. And how should they do otherwise than love him, since he is
the source of almost all bounties and favours; punishments being
generally charged to the account of the laws? He never shows himself to
his people but with a serene countenance; they have even a share of his
glory, and they are protected by his power. A proof of his being beloved
is that his subjects have confidence in him: what the minister refuses,
they imagine the prince would have granted. Even under public calamities
they do not accuse his person; they are apt to complain of his being
misinformed, or beset by corrupt men. "Did the prince but know," say the
people; these words are a kind of invocation, and a proof of the
confidence they have in his person.
24. Of Anonymous Letters. The Tartars are obliged to put their names to
their arrows, that the arm may be known which shoots them. When Philip
of Macedon was wounded at the siege of a certain town, these words were
found on the javelin, "Aster has given this mortal wound to Philip."[72]
If they who accuse a person did it merely to serve the public, they
would not carry their complaint to the prince, who may be easily
prejudiced, but to the magistrates, who have rules that are formidable
only to calumniators. But if they are unwilling to leave the laws open
between them and the accused, it is a presumption they have reason to be
afraid of them; and the least punishment they ought to suffer is not to
be credited. No notice, therefore, should ever be taken of those
letters, except in cases that admit not of the delays of the ordinary
course of justice, and in which the prince's welfare is concerned. Then
it may be imagined that the accuser has made an effort, which has untied
his tongue. But in other cases one ought to say, with the Emperor
Constantius: "We cannot suspect a person who has wanted an accuser,
whilst he did not want an enemy."[73]
25. Of the Manner of governing in Monarchies. The royal authority is a
spring that ought to move with the greatest freedom and ease. The
Chinese boast of one of their emperors who governed, they say, like the
heavens, that is, by his example.
There are some cases in which a sovereign ought to exert the full extent
of his power; and others in which he should reduce it within narrower
limits. The sublimity of administration consists in knowing the proper
degree of power which should be exerted on different occasions.
The whole felicity of monarchies consists in the opinion which the
subjects entertain of the lenity of the government. A weak minister is
ever ready to remind us of our slavery. But granting, even, that we are
slaves, he should endeavour to conceal our misery from us. All he can
say or write is that the prince is uneasy, that he is surprised, and
that he will redress all grievances. There is a certain ease in
commanding; the prince ought only to encourage, and let the laws
menace.[74]
26. That in a Monarchy the Prince ought to be of easy Access. The
utility of this maxim will appear from the inconvenience attending the
contrary practice. "The Czar Peter I," says the Sieur Perry,[75] "has
published a new edict, by which he forbids any of his subjects to offer
him a petition till after having presented it to two of his officers. In
case of refusal of justice they may present him a third, but upon pain
of death if they are in the wrong. After this no one ever presumed to
offer a petition to the Czar."
27. Of the Manners of a Monarch. The manners of a prince contribute as
much as the laws themselves to liberty; like these he may transform men
into brutes, and brutes into men. If he prefers free and generous
spirits, he will have subjects; if he likes base, dastardly souls, he
will have slaves. Would he know the great art of ruling, let him call
honour and virtue to attend his person; and let him encourage personal
merit. He may even sometimes cast an eye on talents and abilities. Let
him not be afraid of those rivals who are called men of merit; he is
their equal when once he loves them. Let him gain the hearts of his
people, without subduing their spirits. Let him render himself popular;
he ought to be pleased with the affections of the lowest of his
subjects, for they too are men. The common people require so very little
condescension, that it is fit they should be humoured; the infinite
distance between the sovereign and them will surely prevent them from
giving him any uneasiness. Let him be exorable to supplication, and
resolute against demands; let him be sensible, in fine, that his people
have his refusals, while his courtiers enjoy his favours.
28. Of the Regard which Monarchs owe to their Subjects. Princes ought to
be extremely circumspect with regard to raillery. It pleases with
moderation, because it is an introduction to familiarity; but a
satirical raillery is less excusable in them than in the meanest of
their subjects, for it is they alone that give a mortal wound.
Much less should they offer a public affront to any of their subjects;
kings were instituted to pardon and to punish, but never to insult.
When they affront their subjects, their treatment is more cruel than
that of the Turk or the Muscovite. The insults of these are a
humiliation, not a disgrace; but both must follow from the insolent
behaviour of monarchs.
Such is the prejudice of the eastern nations that they look upon an
affront from the prince as the effect of paternal goodness; and such, on
the contrary, is our way of thinking that besides the cruel vexation of
being affronted, we despair of ever being able to wipe off the disgrace.
Princes ought to be overjoyed to have subjects to whom honour is dearer
than life, an incitement to fidelity as well as to courage.
They should remember the misfortunes that have happened to sovereigns
for insulting their subjects: the revenge of Chærea, of the eunuch
Narses, of Count Julian, and, in fine, of the Duchess of Montpensier,
who, being enraged against Henry III for having published some of her
private failings, tormented him during her whole life.
29. Of the civil Laws proper for mixing some portion of Liberty in a
despotic Government. Though despotic governments are of their own nature
everywhere the same, yet from circumstances -- from a religious opinion,
from prejudice, from received examples, from a particular turn of mind,
from manners or morals -- it is possible they may admit of a
considerable difference.
It is useful that some particular notions should be established in those
governments. Thus in China the prince is considered as the father of his
people; and at the commencement of the empire of the Arabs, the prince
was their preacher.[76]
It is proper there should be some sacred book to serve for a rule, as
the Koran among the Arabs, the books of Zoroaster among the Persians,
the Veda among the Indians, and the classic books among the Chinese. The
religious code supplies the civil and fixes the extent of arbitrary
sway.
It is not at all amiss that in dubious cases the judges should consult
the ministers of religion.[77] Thus, in Turkey, the Cadis consult the
Mollahs. But if it is a capital crime, it may be proper for the
particular judge, if such there be, to take the governor's advice, to
the end that the civil and ecclesiastical power may be tempered also by
the political authority.
30. The same Subject continued. Nothing but the very excess and rage of
despotic power ordained that the father's disgrace should drag after it
that of his wife and children. They are wretched enough already without
being criminals: besides, the prince ought to leave suppliants or
mediators between himself and the accused, to assuage his wrath or to
inform his justice.
It is an excellent custom of the Maldivians[78] that when a lord is
disgraced he goes every day to pay his court to the king till he is
taken again into favour: his presence disarms the prince's indignation.
In some despotic governments[79] they have a notion that it is
trespassing against the respect due to their prince to speak to him in
favour of a person in disgrace. These princes seem to use all their
endeavours to deprive themselves of the virtue of clemency.
Arcadius and Honorius, by a law[80] on which we have