THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA RIVERSIDE IN MEMORY OF Bon Adams and Don Adams PRESENTED BY Mrs. Bon Adams and Mrs. Ray B. MoCarty ^^^^^^^^^ /, - . ^' /S - ? v7 BOM'S STANDARD LIBKARY. THE SPIEIT OF LAWS. Vol. L GEORGE BELL & SONS LONDON : YORK ST., COVENT GARDEN ^EW YORK : 66 FIFTH AVENUE, AND BOMBAY: 53 ESPLANADE ROAD CAMBRIDGE : DEIGHTON BELL & CO. ■jt*«s^^?is?WBMv-^;^ifS¥,l -: ' " 'U-e/i <^ THE SPIEIT OF LAWS By M. DE SECONDAT, BAEON DE MONTESQUIEU, ^^ --- ■ :" " WITH D'ALEMBERT'S ANALYSIS OF THE WORK TRANSLATED FROM THE FRENCH By THOMAS NUGENT, LL.D. Prolem sine matre creatam. A NEW EDITION, IXVI8ED, WITH ADDITIONAL NOTES, AND A NEW MEMOIB FROM THE LATKRC FRENCH EDITIONS, B¥ J. V. PRICHAED. IN TWO VOLUMES, Vol. I. LONDON GEORGE BELL AND SONS 1897 [Reprinted from Stereotype plates. NOTICE. This is a corrected version of the well-known transla- tion of Dr. Nugent which passed through many editions. The translation has been carefully compared with and corrected from the latest French editions, from which also additional notes and the Memoir of Montesquieii have been selected. The analysis by D'Alembert has also been improved by the insertion of references to the text, which will, it is believed, materially increase its usefulness as a summary or synopsis of the various subdivisions of the work. CONTENTS OF VOL. I. PACK Memoir of Montesqmeu xix Aualysia of this work by D'Alombert xxvii The Author's Preface xliii The Author's Advertisemeut xlvii BOOK I. — Of Ijaics in General. 1. Of the Relation of Laws to different Beings 1 2. Of the Laws of Nature 4 3. Of Positive Laws 5 BOOK II. — Of Laws directly derived from the Nature of Government. 1. Of the Nature of the three different Governments ... 8 .2. Of the Republican Government, aud the Laws in relation to Democracy ibid. 3. Of the Laws in relation to the Nature of Aristocracy ... 14 4. Of the Relation of Laws to the Nature of Monarchical Govern- ment 10 5. Of the Laws in relation to the Nature of a Despotic Govern- ment . . 19 BOOK III. — Of the Principles of the three Kinds of Government. 1. Difference between the Nature and Principle of Government 20 2. Of the Principle of different Governments 21 3. Of the Principle of Demncnicy ibid. 4. Of the Principle of Aristocracy 24 • 5. That Virtue is not tlie Principle of a IMonarchical Government 25 6. In what Manner Virtue is supplied in a Monarchical Govern- ment 26 VIU CONTENTS. PAOK '"7. Of the Principle of Monarchy 27 8. That Honour is not the Principle of Despotic Government . ihid. 9. Of the Principle of Despotic Government 28 ] 0. Difference of Obedience in Moderate and Despotic Govern- ments 29 11. Reflections on the preceding Chapters 31 P.OOK IV. — That the Laws of Education ought to he in relation to the Frinciples of Government. 1. Of the Laws of Education 31 2. Of Education in IMonarchies 32 ?,. Of Education in a Despotic Government 35 4. Difference between the Effects of Ancient and Modern Edu- cation . . 36 '). Of Education in a Republican Government ibid. C. Of some Institutions among the Greeks 37 7. In what Cases these singular Institutions may be of Service. 40 8. Explanation of a Paradox of the Ancients in respect to Manners ibid, BOOK V. — Tliat the Laws given by the Legislator ought to be in relation to the Frinciinle of Government. 1 . Idea of this Book 43 2. What is meant by Virtue in a Political State ibid. " 3. Whnt is meant by a Love of the Republic in a Democracy . 44 4. In what Manner the Love of Equality and Frugality is inspired 45 5. In what Manner the Laws establish Equality in a Democracy 46 G. In what Manner the Laws ought to maintain Frugality in a Democracy 49 7. Other Methods of favouring the Principle of Democracy . . 51 8. In what Manner the Laws should relate to the Principle of Government in an Aristocracy 54 9. In what Planner the Laws are in relation to their Principle in Monarchies h8 10. Of the Expedition peculiar to the Executive Power in ^Monarchies 59 11. Of the Excellence of a Monarchical Govemmeni .... 60 12. The same Subject continued 62 13. An Idea of Despotic Power ibid. 1 1. In what Manner the Laws are in relation to the Principles of Despotic Government {bid. CONTENTS. IX PACK 15. The same Subject continued (58 16. Of the Coiumunication of Power 70 17. Of Presents 71 18. Of Rewards conferred by the Sovereign 72 19. New Consequences of the Principles of the three Govern- ments 73 BOOK VI. — Consequences of the Principles of different Govern- ments with respict to the Sinijilicity of Civil and Criminal Laws, the Form of Judgments, and the inflicting of Punishments. 1. Of the Simplicity of CiN-il Laws in different Governments . 77 2. Of the Simplicity of Criminal Laws in different Goverimients 80 3. In what Governments and in what Cases the Judges ouglit to determine according to the express Letter of the Law . 81 4. Of the Manner of passing Judgment 82 5. In what Governments the Sovereign may be Judge ... 83 6. That in ]\Ionarchies Ministers ought not to sit as Judges 80 7. Of a single Magistrate il^id. 8. Of Accusation in different Governments 87 9. Of the Severity of Punishments in different Governments . 88 10. Of the ancient French Laws 89 11. That when People are virtuous, few Punishments are neces- sary ibid. 12. Of the Power of Punishments 90 13. Insufliciency of the I aws of Japan 92 14. Of the Spirit of the Roman Senate 9-i 15. Of the Roman Laws in respect to Punishments .... 95 16. Of the ju.st Proportion between Punishments and Crimes . 97 17. Of the Rack 98 18. Of pecuniary and corporal Punishments 99 19. Of the Law of Retaliation 100 20. Of the Punishment of Fathers for the Crimes of their Children ^'1>i■^■ 21. Of the Clemency of the Prince 101 BOOK VII. — Consequences of the different Principles of the three Governments icith respect to Sumptuary Laws, Luxury, and the Condition of Women. 1. Of Luxury 102 2. Of Sumptuary Ijaws in a Democracy 1"! 3. Of Sumptuary Laws in an Aristocracy 105 X CONTENTS. FAGB 4. Of Sumptuary Laws in a Monarchy 106 5. In what Cases Sumptuary Laws are useful in a Monarchy . 107 6. Of the Luxury of China 108 7. Fatal Consequences of Luxury in China 109 8. Of Public Continency 110 9. Of the Condition or State of Women in different Governments 111 10. Of the Domestic Tribunal among the Romans . . . .112 11. In what Manner the Institutions changed at Eome, together with the Government 113 12. Of the Guardianship of Women among the Romans . . . 114 13. Of the Punishments decreed by the Emperors against the Incontinence of Women ibid. li. Sumptuary Laws among the Romans 116 15. Of Dowries and Nuptial Advantages in different Constitutions ibid. 16. An excellent Custom of the Samnites IIV 17. Of Female Administration .... llts BOOK VIII. — Of the Corruption of the Principles of the three Governments. " 1. General Idea of this Book 118 2. Of the Corruption of the Principles of Democracy . . . . 119 3. Of the Spirit of extreme Equality 121 4. Particular Cause of the Corruption of the People .... ibid. 5. Of the Corruption of the Principle of Aristocracy. . . . 122 ■"■6. Of the Corruption of the Principle of Monarchy .... 123 7. The same Subject continued 124 8. Danger of the Corruption of the Principle of Monarchical Government 125 9. How ready the Nobility are to defend the Throne . . . ibid. 10. Of the Corruption of the Principle of Despotic Government . 126 1 1. Natural Effects of the Goodness and Corruption of the Prin- ciples of Government ibid. 12. The same Subject continued 128 13. The Effect of an Oath among vii'tuous Peoj^le 129 14. How the smallest Change of the Constitution is attended with the Ruin of its Principles 130 15. Sure Methods of preserving the three Principles .... ibid. 16. Distinctive Properties of a Republic ibid. 17. Distinctive Properties of a Monarchy 131 18. Particular Case of the Spanish Monarchy 132 19. Distinctive Properties of a Despotic Government .... 133 20. Con.i 5. How far we should be attentive lest the general Spirit of u Nation W' changed ihiil. 6. Tliat Everything ought not to be corrected 317 7. Of tlie Atlieiiiaiis a:i'l Lacelaeuioniaus Hid. 8. Ktfects of a sociable Temper ibid. 9. Of the Vanity and Pi ide of Nations 318 10. Of the Cliaiacter of the Spaniards and Chinese . . . . JiU> "11. A Uefieciion o2() 12. Of Customs and Manners in a Despotic State .... ihiil. 1,-i. Of the Behaviour of the Chinese 321 14. What are the natural Means of changing the Manners aiul Customs of a Nation ibid. 1.1. The Influence of Domestic Government on the Political . . 322 1(J. Hdw some Legi.>lat irs liave confounded tiie Principles which govern Mankind . 323 17. Of the peculiar Quality of the Chinese Government . . . 324 18. A Consequence drawn fr>ra the preceding Chapter . . . 325 I'J. How this Union of Religion, Laws, Manners, and Customs am')ng the Chinese was effected ... .... 320 20. Rxplan.ition of a Paradox relating to the Chinese. . . . 3'7 21. How the Laws ought to have a Relation to Manners and Customs 328 22. The same Subject continued ibid. 23. How the Laws are founded on the Manners of a People . . ibid. 24. The same Subje<'t continued 32'.> 2.5. Tlie same Subject continued 330 26. The same Subject continued ibid. 27. How the Laws contiilaite to form the Manners, Customs, and Character of a Nation 331 BOOK XX. — Of Laws in relation to Commerce, considered in its Nature and Distinctions, 1. Of Commerce 3-"^ 2. Of the Spirit of Commeroe 341 VOL. I. l» XVlll CONTENTS. PAGB 3. Of the Poverty of the People . . 342 '1. Of Commerce in different Governments ibid. 5. Of Nations that have entered into an economical Commerce 344 6. Some Effects of an extensive Navigation ibid. 7. Tlie Spirit of England with respect to Commerce .... 345 8. In wliat Manner economical Commerce has been some- times restrained 346 9. Of the Prohibition of Commerce ibid. 10. An Institution adapted to economical Commerce .... 347 11. The same Subject continued 348 12. Of the Freedom of Commerce ibid. 13. What it is that destroys this Liberty ibid. 14. The Laws of Commerce concerning the Confiscation of Mer- eliandise 349 15. Of seizing the Persons of Merchants 350 16. An excellent Law . ibid. 17. A Law of Rhodes 351 18. Of the Judges of Commerce ibid. 19. That a Prince ought not to engage himself in Commerce. . 352 20. The same Subject continued ibid, 21. Of the Commerce of tJie Nobility in a Monarchy .... ibid. 22. A singular Reflection 353 23. To what Nations Commerce is prejudicial ^k MEMOIR OF MONTESQUIEU. At the Chateau do la Brcdc, near Bordeaux, on the 18tli nf January 1689, was born Charles do Secondat, Baron dv la Biede and de Moutesfiuieu. The faniilj', a distinguished one in Guiiinie, boasted of two centuries and a half of nobility. Unimportant as this detail in itself would seem, it is nevertheless worthy of note as having; bten epeeially mentioned by the author of 'The Spirit of Laws' himself. There is ample assurance that Montesquieu was by no moans proof against the egotism of an ancestral tree, for he says, apologetically, " I am having a somewliat foolish thing made ; namely, my genealogy." Never was a life more harmoniously ordered than was Montesquieu's. He was not rich, yet he possessed a sufficiency. He ujanaged his fortune with ability and economy, and was never embarrassed. His rank in life was not so lofty as to induce pride, nor so humble as to summon a blush. He tested the enjoyments which his world offered, yet his passions were his slaves, not his masters. His propensity ftr study early displayed itself. He himself says that he never under- went any annoyance or vexation for which an hour's serious rcadhig would not compensate. In 17H he was admitted a coun.sellor in the parliament of Bordeaux, and two years latir became president a moriicr (eliief justice), in con- sequence of the death of an uncle, who, being cliiidless, bequeath- d liim his office and his fortune. Though at tlie time but twenty-six < r twi nty-sevcn years of age, Montesquieu was already married, having on the 3rd of April 1715 espoused Mdlle. Jeanne de Lartigues, the daughter of a lieutenant-colonel, by whom he had three children: one son and two daughters. Tiic office of presidenl a mortier, even in a provincial parliament, afforded a jwsition of distinction, an ample • From the ' Notice sur Montesquieu ' in the edition of 1870 (Hachette rt Cie.). h 2 XX MEMOIR. i:idcpc'udence, and yet imposed no laborions restraint. Nevertheless, tliougli attracted by questions of the day, Montesquieu felt neither taste nor aptitude for the exercise of the magistracy, and so sold his office in 1726, having occupied it for ten years. Tlien, being released from public duty, he gave himself, body and soul, to his darling studies. Even at this epoch Montesquieu was favourably known through the medium of his works. He began to write early in life, and even at the age of twenty had composed a treatise upon theology, which was never printed. Montesquieu dearly loved to write, but he loved less to be read. He was no true author in this respect, as he con- fesses. After this first work, he busied himself for a time with natural history. Together with his friend, the Due de la Force, lie endeavoured to reform the Academy of Fine Arts at Bordeaux, of which he was a member. Several essays upon natural history and philosophy were read by Montesqiiieu before this academy which are sufficient to have immortalised him in another line of culture. It was also before the Academy of Bordeaux that he delivered his Dissertation snr la jjolitique des Bomains dans la Beligion. This essay received attention, but not such as it deserved. For Montesquieu, however, this was like the opening out of his domain, his province for future labour. Hnving once entered upon the philosophy of history, he only abandoned it for occasional light compositions, insignificant episodes in a life so greatly occupied ; and in spite of the piquant style adopted in the first of his great works, it must be acknowledged that he passed from the ' liettres Persanes ' to the ' Esprit des Lois ' without a change of subject or study, and almost without variation of method. Montesquieu was but thirty-two years old when he published the ' Lettres Persanes.' The body of this work was derived from the ' Siamois ' in the 'Amusements Serieux et Comiques,' by Dufresny ; but Dufresny had but written an entertaining sketch, whereas Montesquieu composed a romance of custcims which, under a brilliant and fascinating garb, concealed a profound policy. The ' Lettres Persanes ' attained instantaneous popularity. Everybody criticised tliem. Booksellers said to authors, " Let us get up some Persian Letters too!" The work had been published anonymously: the infatuation increased when it was bruited abroad that this book, so bold in its judgments, to fascinating, so fatal to scandal, and so impartial in its comments upon the Church, the State, and the boudoir, was tlie work of a President of the Supreme Court. The elite easily understood that the author was at home in his subject, and that he Was more Machiavel than Dufresny. Four years later Montf squieu published the ' Tempe de Gnide,' a MEMOIR. XXI poem in prose, which is not deficient in grace or charming details, tmt in which it would be a matter of dilficulty to recognise the same author. It was composed I'or tlie amusement of Mdlle. de (Clermont's circle, and Montesquieu was never anxiuus to claim tlie paternity. " Je suis," he says, "a I'egard des onvrages que I'o.i m'attribue, couiine .M'me. Fontaine-Martel e'tait pour Ics ridicules: on me les donne, mais je nt' ii-8 prends pas." Upon quitting the Parliament, Montesquieu wished to secure tht pnst in the French Academy left vac;int by M. de Sacy ; but the • Lettres Persanes' were still fresh in the mind oi Canhnal de Fleury. He made haste to inform tlie Academy tliat the King would not Banction the election of an author who had given otfcnce to the Churcii. This unexpected opposition tided Montes(iuieu with consternation, and irritated him beyond measure. He was not ambitions, but he possessed eome sense of self-respect. He declared that, after the outrage which had been offered him, he would go abroad and seek among friendly strangers that repose and recompense to wliich he was justly entitled in his own country. Upon this the Cardinal persisted in his opjio- bition no longer, and Montesquieu svas received. However, tlie Church- man's prejudices were not banished; for later, when the new Aca ie- mician wrote from Vienna to demand a certain diplomatic position, d.. Fleury pretended not to understand him. The entree of Montesquieu into the French Academy is thus de- scribed by Voltaire, in the ' Siecle de Louis XIV.': "Montesquieu," he writes, "by an adroit stroke, secured the Minister to his interestrs. He immediately set to work to prepare a new edition of his book, in which he undertook to retract, or at least modify, all which might be condemned by that potentate oi by the Cardinal. This revised form he himself carried to de Fleury, who scarcely ever read anything, and who but just glanced over tiie revision. This affectation of con- tideuce, supported by the solicitations of certain persons in high ])lace, mollified the Cardinal, and IMoutesquien entereu ti.e Academy.'' This doubtful practice hardly accords with Montiscpiitiu's fevling of injured pride, and witli the haugiity dL<-laration wliicli is attributed to liim. Still more diffi-ult is it to reconcile such nn act with the stiiti- nients of right and attachment to such principles as are exemplified in all his works and life. No doubt Jloniesquieu iiad reason to regret sundry satirical touches in his ' Lettres Persanes,' but he was far removed from the weakne.-s of such a mamjeuvre as Voltiire discribts. Tiiis was undoubtedly a careless sally of the great wit, between whom and Montesquieu there was no love lost. Oace secure in his poaitiou in the Academy, Moates^uiea enkred XXll MEMOIB. upon an extended European journey. At Vienna he met Prince Eugene ; lie subseiiuently visited Hungary. At Venice he saw much of Law and the Count de Bonneval, two adventurers, of whom the Tornier possessed considerable genius. The Pope accorded him a hearty welcome to Rome, thereby proving himsflf far less scrupulous than « 'ordinal de Fleury. It is further recounted that the Holy Father, desirous of gratifying his guest, of his own free will granted Moutes- qiiieu and his family the indulgence of meat on Fridays. Upon votiving from the audience the Cardinal who accompanied him wished to deliver him his licence at once. Montesquieu followed his guide into tlie offices, and after an hour, passed in the lobbies of the chan- cellor's department, was presented with a parchment duly sealed, signed, and registered, with a bill of expenses. Accused, as Montes- quieu has been, of avarice, in this case he was certainly economical. " Take back the document," he said ; " the Holy Fatlier is a worthy man, and I will trust to his word." From Italy Montesquieu journeyed to Switzerland, Holland, and England. The latter nation he judged most severely, though he remained there but for the space of two years. However, through all his criticisms one expression constantly recurs, and is significant as being his. " On est treslibre ici !" he says. The customs of England might displease him ; certainly not her constitution or her laws. He was honoured with a membership of the Royal Society of London, and was received at Court with consideration. Upon returning to his own land, Montesquieu divided his time between Paris and La Biede ; and in 1784 published his ' Considerations sur les causes de la grandeur et de la decadence des Remains,' the ablest, if not the most important, of his works. Never has the sense of history been grasped with such a depth of insight, and interpreted with such precision. The elteet produced was overwhelming. Mon- tesquieu was inflamed with more ardour than ever to labour at ' The Spirit of Laws,' which had already occupied his attention for six years, and of which his ' Traite' sur I'histoire roraaiiie ' was, as it were, but a detached chapter. Fourteen years longer he worked, until all this accumulated erudition, all these observations upon men and things, being organised, were developed; and he was in condition to write a book in which all policies are sunnned up, explained, and judged, and in which universal history ofters at the same time its origin, and the proof of its philosophy. Before placing himself in the publisher's hands, Montesquieu sent his manuscript to Helve'tins. Though a bad philosopher, Helve'tins was not wanting in penetration and originality, .and passed for an able judge. He was the first to whom was accorded MEMOIR. XXlll the opportunity of reading 'The Spirit of Laws,' and he wns at once alarmed for tiie reputation of Montesquieu. At first he dared not reply to the autlior, but bepfged permission to send tlie manuscript to Saurin, their mutual friend, the author of ' Beverley ' and ' Spartacus.' and one of ^Inntesquieu's colleagues at the Academy. Saurin agreed with Helve'tius. They deemed the author of the ' Letti03 Persanes ' lost, and that he must now sink into the insignificance of a simple gentleman, an advocate, and a wit. " This is whnt troubles me,' aiid Helve'tius, " for his own sake and for that of humanity, which he might have been able to serve bettor." " It was agreed between the two friends," says M. Wnlckenaer, " that Helve'tius should write to Montesquieu and inform him of their estimate of his manuscript, in order to incite him to revise it and not permit it to be published in its present state." Saurin feared lest Montesquieu might have been offended : but Helve'tius hastened to assure his friend of the contrary. " Set yourself at ease," he wrote; "our remarks have not wounded him. He likes in his friends the freedom that he adopts with them. He willingly submits to discussion, replies with witty attacks, but he rarely alters nis opinions. In showing him ours, I never tliought that they would modify his ; but at any cost, one must be sincere with one's friends, Wlien the day of truth dawns and self-love departs, it must not bo possible for tin ni to reproach us with having been less severe than tlio public.'' In fact, the advice of these two friends had so slight an influence upon Montesquieu, that he sent his manuscript to pre^^s with- out altering a syllable; and he placed upon it this epigraph — " Proleni sine matre creatam"; thus indicating that he owed his work to no model ; while in his preface he congratulates himself that he is not bereft of genius. Helve'tius and Saurin were speedily set at ease, for 'Tlie Spirit of Laws' was translated into all civilised tongues, and in France, during the first year and a. half of its existence, passed through twenty-two oilitions. History expLiined by laws, and laws by customs; the secret of these customs sought for in the hidden instincts of human nature, in the mode of development of each society, in the influences of climate, and in the particular needs created for each Uiition by its geographical position ; all tlie diflerences of race, genius, and legislation ranged in liarmcmious order; the science of government, which embraces moral.-, religion, commerce, and industry, and, withal, order, method, and perspicuity, joined to an ever-present consciousness of the moral grandeur of man, of the responsibility of the powerful, of the rights vl XXIV MEMOIR. tUe opj)resscd, and a vigorous love of justice and right — these are some of the merita which won public favour, and obliged the contem- poraries of Montesquieu to judge ' The Spirit of Laws ' as worthy of po.-terity. It was read with astonishment, studied with fervour, and by its publication marked a memorable date in the history of thcnight. There is no need to revive its numerous defects. Montesquieu's style lacks development ; his phraseology is curt, and devoid of period ; his ideas are evolved in a string of propositions bound together only by logic, and ia appearance isolated; he seems frequently to be searching an antithesis and a paradox; silence upon important points remains unexplained, while chapters are unnecessarily multiplied, and divided with astonishing inequality. The best erudition of the author is not without its faults; too readily content, he accepts sus- picious authorities, and halts to refute authors and opinions of no value whatever; by deducing great effects from sligiit causes he lays himself open io the accusation of being a it-later of wonders rather than an in.-tructor, and of affecting to explain what he has failed to judge ; thus is it that the display of his intellectual gifts occasionally degenerates into weakness. It is also to be regretted that the work fails to indicate its ideal ; a sequel to ' The Spirit of Laws ' might, perhaps, have been expected. Having gone over the entire ground, a resume should liiive been given, that philosophy might have had her place in the lust chapter, derived from, yet free of, history; and that the la:3t word in tlie discussion u^Mn governments sliould be a description of the true type. Montesquieu might also be reproached for dwelling too affectionately upon the past ; for explaining, yet complicating, complicatiims, inas- much as lie submits so easily to the yoke of history and psychological analysis. It is necessary to interpret the writer before being able to afKrm that his conclusion is in favour of a constituti(jnal government analogous to tljat which England enjoys, wliere the power which frames the law does not possess the right to execute it, nor that which executes it the liglit to modify it; where liberty is guaranteed to all by the sovereignty of the law and the independence of the magistrate ; where aristocracy subsists, as much through custom as by the consti- tution, to maintain stability, to overrule inconsiderate ambition, and to satisfy legitimate aspirations. It would appear that fatigue, though it may possibly have been prudence — a defence which all writers are loth to relinquish — prevented Montesquieu from making this finai recapitulation. Alter the publication of ' The Spirit of Laws,' the author would seem MEMOIR. XXV to Lave been entitlfd to it-poso; but work was his repose. He took part in the editiiij,' of the well-known ' Encyclope'die,' for which he contributed tlie' h'srsay ujKtn Taste.' He iiad also contemplated giving greater extension and profundity to certain chapters of ' The Spirit «( Laws'; but lie was wearied, and, in a word, his physical powers were rapidly declining. " My studies have weakened my eyes," he would say; "and it seems to nie that what sight I still have is only tlie dawn of the day when they will close for ever." Monti squieu died on the 10th of February 1755, at the age of si.\ty-six, and seven years after the publication of ' The Spirit of Laws.' He pos-sesstd all those qualities which go to make up a great citizen and an accomplished man of the world. If he courted pleasure, it was always with propriety, and never at the sacrifice of duty. His devotion to learning never induced him to neglect the performance of his duties while he was a magistrate ; and upon mf>re than one occasion he displayed the qualities of an upright judge and the respectful firmness of a subject who elects to disobey the court lather than viol.ite the sanctity of the law. He endeavoured to conceal his good acts; yet many deeds of remark- able generosity liave been recorded of him. His death-bed was the scene of much agitation. The Jesuits were anxious to olttain a retractation of the ' Lettres Persanes'; while the encyclopedists endeavoured ti) prevent it. Tlie curate of Saint-Sulpico presenteii himself as well, but he fulfilled his otiice with decency. The opening phrase of his exhortation has been preserved, because of Montesquieu's response. " Vous savez, Monsieur le President," cried the priest, " combien Dicu est grand !" " Oui, Monsieiu',* replied the dying author, "et combien les homnies sent petits !" Under the date of February 15, 1755, will be found tiie following note ill the ' Correspondance de Grimm ' : — "Charles Secondat, Baron de Montesquieu, expired in Paris ujion the tenth of the present month, having honoured humanity by his admirable works and his upright and irreproachable life for a term of tixty-five (sixty-seven) years. Were it not so agreeable to forget our faults and close our eyes to the evils which we cannot evadi', we should declare, to the shame of the nation, that this great man, to whom France will owe all the haj)py effects which must arise frou) the revolution which his works liave efiected among us, has quitted life almost without the knowleilge of the public. His funeral train was scant ind< ed ; ^I. Diderot being the sole representative of the qens de luttreg. Louis XV. hotioured the ilying sage with a mark of his esteem in sending M. le Due de Nivernois to inquire for him. But had we XXVI MEMOIR. deserved to be the contemporaries of so great a man, leaving our vain and frivolous pleasures, we should have vyept upon his tomb, and the nation, in mourning, would have displayed to all Europe an example of homage such as an enlightened and appreciative people should render to genius and virtue." J. V. P. THE ANALYSIS OF THE SPIRIT OF LAWS. BY D'ALEMliEBT. The generality of literary men who have mentioned ' The Spirit of Laws,' having rather endeavoured to criticise it than to give a just idea of it ; we shall endeavour to supply what they ought to have done, and to explain its plan, its nature, and its objects. Those who may think this Analysis too long will, perhaps, be of opinion, after having read it, that there was no other way of making the author's method properly understood. It ought also to be remembered that the history of celebrated writers is little more than that of their thoughts and their works ; and that this part of their history is the most essential and most useful. Men in the state of nature, abstracted from all religion, in those disputes which they may have, know no other law than that of all animals, the right of the strongest : the establishment of society ought to be regarded as a kind of treaty against this unjust title — a treaty destined to establish a sort of balance between the different divisions of the human race. But it happens in the moral as in the physical equilibrium, that it is seldoui perfect and stable, and the treaties of the human race are like treaties amoug our princes — perpetual sources of dispute. Interest, necessity, and pleasure made men associate together. The same motives urge them con- tinually to desire the advantages of society without tho biu'dens of it ; and it is in this sense, that we may say with XXVIU ANALYSIS OF THE SPIRIT OF LAWS. our author, that men, from tlie time they enter society, are in a state of war. For war supposes in those who make it, if not an equality of strength, at least an assumption of this equality: whence arise the mutual desire and hope of conquest. Now, in a state of society, if the balance among men be never perfect, neither is it, on the other hand, very unequal. But, in a state of nature, on the contrary, they would either have nothing to dispute about ; or if necessity obliged them to it, nothing would be seen but weakness flying before force, oppressors meeting with no resistance, and those who were oppressed tamely submitting. Behold then men, united and hostile at the same time, on one side, if we may be allowed the expression, embracing each other, and on the other endeavouring mutually to wound each other. Laws are the chains, more or less efficacious, which are destined to suspend or to restrain their blows. But the prodigious extent of the globe which we inhabit, the different nature of the regions of the earth, and of the people who are spread over it, not permitting that all mankind should live under one and the same government, the human race was obliged to divide itself into a certain number of states, dis- tinguished by the difference of those laws to which they are subjected. Under one single government the human race would have been no more than one enfeebled and languishing body, extended without vigour over the surface of the earth. The different governments are so many robust and active bodies; by mutually assisting each other they form one whole, whose reciprocal action maintains and keeps up motion and life everywhere. We may distinguish three sorts of governments : the re- publican, the monarchical, the despotic. In the re- publican, the people in a body possess the sovereign power. In the monarchical, one single person governs by fundamental laws. In the despotic, no other law is known than the will of a master, or rather of a tyrant. Not that there are in the universe only these three kinds of govern- ment ; or that there are states which belong only and strictly to some one of these forms. Tor the greatest number of them ANALYSIS OF THE SPIRIT OF LAWS. XXIX the three forms are mixed or blended the one with the otlier. Here monarchy inclines to despotism ; there the monarchical government is combined with the republican; elsewhere it is not the whole people, it is only a part of them, which make the laws. But the preceding division is not on that account the less just and exact. The three kinds of government which it includes are so distinguished that they have properly nothing in common ; and yet all the governments which we know participate the one in the other. It was, therefore, necessary to form particular classes of these three kinds, and afterwards to determine the laws which are proper for each ; it would be easy afterwards to adapt those laws to any particular government, according as it might belong more or less to one of those different forms. In different states, the laws ought to have relation to their nature, that is to say, to that which constitutes thtin ; and to their principle, or, to that which supports them and puts them in motion: an important distinction, the key of an infinite number of laws, and from which the author draws many consequences. The principal laws in relation to the nature of democra- y are, that the people be in some respects the monarch, and in others the subject ; that it elect and judge of its magisti-ates, and that the magistrates on certain occasions pronounce decisions. The nature of monarchy requires that there be between the monarch and the people some body to whom tlie laws are intrusted, and which ought to be a mediator between the subject and the prince. The nature of despotism requires that the tyrant exercise his authority, either by himself alone, or by one who represents him. As to the principle of the three governments, that of democracy is the love of the commonwealth, that is, of equality. In monarchies, where the single person is the dis- penser of distinctions and rewards, and where they are accustomed to confound the state with this single man, the principle is honour, that is, ambition, and the love ur. Move laws are necessary for a people which follows agriculture than for one which tends flocks ; and for the latter than for a hunt- ing people ; for a people which makes use of money, than for one that does not : in a word, the particular genius of a nation ought to be attended to. Vanity, which magnifies objects, is a good spi'ing for government ; pride, which undervalues ^ \ix them, is a dangerous one. The legislator ought to respect, to a certain degree, prejudices, passions, abuses. He ought to imitate Solon, who gave the Athenians, not those laws which were best in themselves, but the best which they were capable of receiving : the gay character of this people required gentle, the austere character of the Lacecla-monians severe, laws. Laws are a bad method of changing the manners and customs; it is by rewards and example that we ought to endeavour to bi'ing that about. It is, however, true, at the same time, that the laws of a people, when they do not grossly and directly tend to shock its manners, must insensibly have an influence upon them, either to confirm or change them. After having in this manner deeply considered the Nature and Spirit of Laws with relation to diff'erent kinds of climates and peoples, our author returns again to consider states in that relation which they bear to each other, At first, when com- paring them in a general manner, he could only view them with respect to the harm which they can do each other : here he considers them with respect to that mutual succour which they can give. Now this succour is principally founded on commerce. If the spirit of commerce naturally produces a spirit of interest, which is opposed to the sublimity of moral virtues, it also renders the people naturally just, and averse to idleness and living on plunder. Free people who live under moderate governments must be more given to it than enslaved nations. No nation ought ever to exclude from its commerce another nation without great reasons. Besides, liberty in this way is not an absolute privilege gi-anted to merchants to do what they will — a power which would be often prejudicial to them : it consists in laying no restraint on merchants except for the advantage of commerce. In a XXXVIU ANALYSIS OF THE SPIRIT OF LAWS. raonarcliy, the nobility ought not to have recourse to it, and •till less the prince. In short, there are some nations to which commerce is disadvantageous ; but they are not such as stand in need of nothing, but such as stand in need of everything ; a paradox which our author renders intelligible by the example of Poland, which wants everything except corn, and which, by that commerce which it can-ies on in corn, deprives the common people of the necessaries of life, to gratify the luxury of the nobility. M. de Montesquieu takes occasion, when treating of those laws which commerce requires, to give us a history of ' its different revolutions : and this part of his book e neither the least interesting nor the least curious. He compares the impoverishment of Spain by the discovery of America to the fate of that weak prince in the fable, ready to perish for hunger, because he had requested of the gods that everything he touched should be turned into gold. The use of money being one considerable part of the object of commerce, and its principal instrument, he was of ' opinion that he ought, in consequence of this, to treat of the different operations with respect to money ; of exchange ; of the payment of public debts; of lending out money for interest, the rules and limits of which he fixes, and which he distinguishes accurately from that excess so justly condemned us usury. Population and the number of inhabitants have an im- mediate connection with commerce; and marriages having population as their object, under this article ]SI. de Montesquieu goes to tne root of this important subject. That which favoui-s propagation most is general chastity : experience proves that illicit amo\u*s contribute very little, and even sometimes are prejudicial to it. The consent of fathers has with justice been required in man-iages : nevertheless some restrictions ought to be added, for the law ought in general to favoui" marriage. That law which forbids the marriage of mothers with their sons is, independently of the precepts of religion, a very good civil law : for, without mentioning several other reasons, the parties being of very different ages, this sort ANALYSIS OF THE SPIRIT OF LAWS. XXXIX of marnages can rarely have propagation as their object. That law which forbids the maiTiage of a father with a daughter is founded upon the same motives, although (speaking only in a political sense) it is not so indispensably necessary to the object of population as the other, because the power of propagating continues much longer in men ; and the contrary custom has, besides, been established among certain nations ■which the light of Christianity had not illuminated. As nature of herself prompts to marriage, that must be a bad government which is obliged to encourage it. Liberty, security, moderate taxes, absence of luxury, are the true principles and eupports of populousness. However, laws may, with success, be made to encourage maiTiage when, in spite of corrup- tion, there is still something remaining in the people which attaches them to the love of their country. Nothing is finer than the laws of Augustus to promote the propagation of the species. Unfortunately he made those laws in the decline, or rather after the downfall, of the republic ; and the dispirited citizens must have foreseen that they would no longer propagate anything but slaves : and, indeed, the execution of those laws ■was very faint during all the time of the Pagan Emperors. At last Constantine abolished them when he became a Christian : as if Christianity had had in view to unpeople the world when it recommended the perfection of celibacy to a small number. The establishment of charitable institutions, according tc the different spirit of these foundations, may be hurtful or favourable to population. There may, and indeed there ought to be, such institutions in a state where the greater part of the citizens are maintained by their industry: because this industiy may sometimes be unsuccessful ; but that relief which those institutions give ought to be only temporary, not to encourage beggary and idleness. The people are first to be made rich, and then almshouses to be built for unforeseen and pressing occasions. Unhappy are those countries whei-e the multitude of charities and of monasteries, which are only a kind of perpetual charities, makes all the world live at ease but those who work ! xl ANALYSIS OF THE SPIRIT Oj! LAWS. M. de Montesquieu Las hitherto only spoken of human laws ; he now proceeds to those of religion, which in almost & xxv. ^^ states compose so essential an object of govern- ment. Everywhere he breaks forth into praises of Christianity ; he points out its advantages and its grandeur ; he endeavours to make it beloved ; he maintains that it is not impossible, as Bayle has pretended, that a society of perfect Christians should actually fonn a durable state. But he also thought that he might be permitted to examine what different religions, humanly speaking, might have been suitable or imsuitable to the genius and situation of those people who profess them. It is from this point of view that we must read all that he has written upon this article, and which has been the subject of so many unjust declamations. It is especially surprising that, in an age which presumes to call so many others barbarous, what he has said of toleration should be objected to as a crime ; as if approving and tolerating a religion were the same ; as if the gospel itself did not forbid every other way of propagating it but that of meekness and persuasion. Those in whose heart superstition has not extinguished every sentiment of compassion and justice will not be able to read, without being moved, the Remonstrance to the Inquisitors, that odious tribunal, which outrageously affi'onts religion when it appears to avenge it. In fine, after having treated in particular of the different kinds of laws which men can have, there remains nothing more than to compare them all together, and to examine them in their relation to those things concerning which they prescribe rules. Men are governed by different kinds of laws ; by natural law common to each individual ; by the divine law, which ' is that of religion ; by the ecclesiastical law, which is that of the policy of religion ; by the civil law, which is that of the members of the same society ; by the political law, which is that of the government of that society ; by the law of nations, which is that of societies with respect to each other. These laws have each theu* distinct objects, which are carefully to be discriminated. That which belongs to the one ought ANALYSTS OF THE SPIRIT OF LAWS. sli never to be regulated by tbe other, lest disorder and injostice should be introduced iuto the principles which govern men. In short, those principles which prescribe the nature of the laws, and which determine their objects, ought to '. ;". ' ^ Book XXIX. prevail also in the manner oi enacting them. A spirit of moderation ought, as much as possible, to dictate all their different dispositions. Laws that are i)roperly made will conform to the intention of the legislator, even when they appear to be in opposition to it. Such was the famous law of Solon, by which all who should not take some part in the public insuirections were declared infamous. It prevented seditions, or rendered them useful by forcing all the members of the republic to attend to its true interests. Even the ostracism was a good law ; for, on the one hand, it was honour- able to the citizen who was the object of it, and on ^y^,,, the other it obviated the effects of ambition : more- over, a great number of suffrages were necessary, and they could only banish every fifth year. Laws which appear the same have often neither the same motive nor the same effect nor the same equity. The form of government, different conjunctures, and the genius of the people quite change them. In fine, the style of laws ought to be simple and grave. They may dispense with giving reasons, because the reason is supposed to exist in the mind of the legislator ; but when they do give reasons, they ought to be founded upon obvious principles : they ought not to resemble that law which, pro- hibiting blind people from pleading, gives this as a reason — that they cannot see the ornaments of magistracy. M. de Montesquieu, to point out by examples the application of his principles, has chosen two different people, the most celebrated in the world, and those whose history ^ xxvill. most interests us : the Romans and the French. He only dwells upon one point of the jui-isprudeuce of the fonner — that which regards succession. With regard to the French, he enters into a greater detail concerning the origin and re- volutions of their civil laws, and the different usages abolished or still subsisting which have been the consequences of them. y Xlii ANALYSIS OF THE SPIRIT OF LAWS. He principally enlarges upon the feudal laws, that kind of government unknown to all antiquity, which will perhaps for ever be so to future ages, and which has done so much ^'ixxi good and so much ill. He especially considers these laws in their relation to the establishment and revolutions of the French monarchy. He proves, against the Abbe du Bos, that the Franks actually entered as conquerors among the Gauls; and that it is not true, as this author pretends, that they had been called by the people to succeed to the rights of the Roman Emperors who oppressed them : an investigation profound, exact, and cimous, but in which it is impossible for us to follow him. Such is the general analysis, though a very imperfect one, of M. de Montesquieu's work on the Spirit of Laws. THE AUTHOR'S PREFACE. If amidst the infinite number of subjects contained in this book there is anything which, contraiy 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 parti- cular 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 diver- sity 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 Xliv THE AU-THOR's PREFACE. the liistories of all nations are only conseqitences 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 mi^ 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 powei's 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 THE author's preface. xlv 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 leformation. They let the evil continue, if they fear a worse ; they are con- tent 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 everj' nation and govern- ment of the blessings he enjoys, I should think myself the most happy of mortals. Could I but succeed so as to persuade those who com- mand, 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 preju- dices. By prejudices I here mean, not that which renders men ignorant of some particular things, but whatever renders them ignoi^nt of theniselvos. 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 xivi THE author's PREFACE. had written to the winds : * I, every day, felt my paternal hands fall.f 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 : 1 have said with Correggio, " And I also am a painter."J * Jjudibria ventis. t -Sis patrise cecidere manus X Ed io aiiche son piiiaiu THE AUTHOR'S ADVERTISEMENT. 1 . For the better understanding of the first four hooks of this work, it is to he observed that what I distinguish hij 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, hut a poli- tical virtue ; and it is the spring ichich sets the repuhlican 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 tcords, 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 he shocking in any part of the ivorld, because in all countries and governments morality is requisite. 2. Tlie reader is also to notice that there is a vast dif- ference between saying that a certain quality, modification of the 7nind, or virtue, is not the spring by which government is actuated, and affirming that it is not to be found in that govern- ment. Were I to say such a icheel or such a pinion is not the spring tohich sets the tcatch 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 he political xlviii THE author's advertisement. virtue ; and political virtue is found in a monarchical govern- ment, though it he actuated by honour. To conclude, the honest man of whom we treat in the third hook, chapter 5, is not the Christian, hut the political honest man, v)ho is possessed of the political virtue there mentioned. He is the man who loves the laws of his country, and who is actuated hy the love of those laws. I. have set these matters in a clearer light in the present edition, hy giving a more precise meaning to my expression : and in most places tvhere I have made use of the word virtue I have taken care to add the term political. THE SPIRIT OF LAWS. BOOK I. OF LAWS IN GENERAL. ^ 1. — Of the Relation of Laws to different Beings. V Laws, in their most general signification, are the neces- sary relations arising from the nature of things. In tliis sense all beings have their laws : the Deity * His hiw.s, tlio material world its laws, tlie intelligences superior to man their laws, the beasts their laws, man his laws. They who assert that a blind fatality produced tie vayious effects toe behold in this world talk very absurdly ; for tan 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 difi'erent beings, and the rela- tions of these to one another. Cod 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 the^o rules, because He knows them ; lie knows them, boeause He made them ; and He made them, because they are in relaiiou to His wisdom and power. Since we observe that the world, though formed by the motion of matter, and void of understanding, subsists • Law, says Plutarch, h the king of mortal ami immortal htimja. Bee hid treatise entitled A Discourse to an uulvarned Prince. VOL. I. B 2 THE SPIRIT or LAWS. [Book I through so long a succession of ages, its motions must certainly be diiected 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 qiiantityof matter and velocity ; each diversity is uniformity, each change is coiistancy. Particular intelligent beings maj'^ 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 conse- quently possible laws. Before laAvs were made, there were relations of jiossible justice. To say that there is notliing just «'r unjust but what is commanded or forbidden by positive laws, is the same as saying tliat 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 tliey ai'e esta- blished : as, fur instance, if human societies existed, it would be right to conform to their laws ; if theie wei e 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 ph}'sical. For though the former has also its laws, which of their own nature are invariable, it does not confirm to them so exactly as the physical world. This is becau.-e, 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 Chap. 1.] RELATION OF LAWS TO DIFFERENT BEINGS. l^ 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. lie 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 tliem than in the relation they have either to other particular beings or to themselves. By the allurement of pleasure they preserve the indi- vidual, and by the same allurement they preserve tlieir species. They have natural laws, because they arc united by sensation ; positive laws they have none, because tliey 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 winch 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-preserva- tion, 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 intelligeut 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 creatuie, 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. iSuch 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. B 2 4 THE SPIRIT OF LAWS. [Book I. / 2. — Of the Lmcs of Nature. Antecedent to the above-mentioned laws are those of nature, so called, because they derive their force entirely Ironi 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 \vould 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 appre- hensions would be excessive ; as appears from instances (weie there any necessity of proving it) of savages found in forests,* 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 there- fore 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 Avell 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 t inquires. For ichat reason go men armed, and have lucks and keys to fasten their doors, if they be not naturally in a state of war f Bnt 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 ? * Witness tlie savnge found in the forests of Hanover, who WM pariied over to England during the reign of George I. I In prsefat. lib. de Give: Chap. 3.] POSITIVE LAWS. T) Next to a senee 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, wouUl soon engage them to associate. Besides, this assuciation would quickly follow from the very pleasure one animal feels at the appioach 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 wliich man possesses in com- mon with brutes, he has the advantage of acquired know- ledge ; and thence arises a second tie, which biutes 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, yr As soon as man enters into a state of society he loses the sense of his weakness ; equality ceases, and then com- mences 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 stite of war between individuals. These two difierent 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 * Interpreter and admirer of tlie social instinct ns he was, ^lon- tes(]uieu has not he.-itutcd tu avow that war takes simultantou-s li^^e witli society. Bnt the true philosopliy of this unhappy truth, which Hobbes toolc advantage of in order to vaunt the serenity of despot i.sm, and Rousseau to celebrate the iiuiependence of tavnge life, gives birth to the wholesome necessity of laws which aie an annistice between states, and a treaty of perpetual peace for the citizens {Eloyt tU Montesquieu). 6 THE SPIPJT OB' LAWS, [Book I. the governors and the governed, and this we distinguish Ly the name of politic law. They have also another sort of laws, as they stand in relatiorx to each other ; by which is understood the civil laic. 'J'he law of nations is naturally founded on this prin- ciple, that different nations ought in time of peace to do one another all the good they can, and in time of war aa little injury as possible, without prejudicing their real interests. The object of war is victory ; that of victory is conq-nest ; and that of conquest preservation. From this and the preceding principle all those rules are derived which con- stitute the law of nations. All countries have a law of nations, not excepting the Itoquois themselves, though they devour their prisoners : for they send and receive ambassadors, and understand the riglits 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 con- sidered. No society can subsist without a form of govern- ment. Tlie united strength of individuals, as Gravina* well observes, constitutes ichat ice 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 govern- ment 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 cousin-germans 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 conform- able 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 Avithout a conjunction of all their wills. The conjunction of those ivilla, * An Italian poet and jurist, 1664-1718. Chap. 3.] POLITICAL AND CIVIL LAWS, 7 as Gravina again very justly observes, is what we call the CIVIL ST A IE. 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 fiained that it should be a gieat 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 thej 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 l)ear ; to the religion of the inhabitants, to their inclina- tions, 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 Laics. I have not separated the political from the civil institu- tions, 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 dilierent 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 oth«r and more particular relations. THE SPIRIT OF LAWS, [Book II. 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, vwnaj-chical, 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 repuhUcan government is that in ichich the body, or only a part of the people, is possessed of the supreme power ; monarcliy, that in which a single person governs by fix;d and established laws; a despotic government, that in which a single person dire is 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 Mepublican Government, and the Laws in relation to Democracy.* "When the body of the people is possessed of the supreme ]iower, it is called a democracy. When the supreme power is lodged in the hands of a part of the peoj)le, it is then an aristocracy. In a democracy the people are in some respects the sovereign, and in others the subject. Tliere 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 * Compare Aristotle's Folit. lib. VI. cap. ii., wherein are exposed the fundamental laws of democratic constitutions. — Ei>. Chai'. 2] REPUBLICAN GOVERNMENT. 9 estalilish the right of suffrage are fundamentjil to this government. And indeed it is as important to regulate in a republic, in what manner, by whom, to whom, and con- cerning what, suffrages are to be given, as it is in a monarcliy to know who is the prince, and after what manner be ought to govern. Libanius* says that at Athena a stranger who inter- meddled in the assembliea of the people teas punished icith death. This is because such a man usurped tlie rights of sovereignty.! It is an essential point to fix the number of citizens who are to form the public assemblies; (jtherwise 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 Kome, designed by Providence to rise from the weakest beginnings to the highest pitch of grandeur; Kome, doomed to experience all tlie vicissitudes of fortune ; Rome, who had sometimes all her inhabitants without her walls, and sometimes all Italy and a consider- al)le part of the world within them ; Rome, I say, never fixed the number ;J and this was one of the piincipal 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 bo con- ducted by their ministers. But tliey cannot properly be said to have their ministers, without the power of nominating tliem : it is, therefore, x fundamental maxim in this government, that the people should choose their ministers — that is, their maji^istrates. They have occasion, as well as monarchs, and even m^ro 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 bo made by tliem- selves, lis at Athens, or by some magistrate deputed for * Dcclivm. 17 aiul 18. t Libiuiiud luiiiself gives the rcnson for this law. "ItwnB,"lio avers, ' iu order to prevtut the stciets of tlie Kepuhlic fronx beiii:^ ilivulged." — Kd. X See the Considerations on the Causes of the Grandeiir anJ Decline of the I'omaus, chap. ix. 10 THE SPIRIT OF LAWS. [Book U. that purpose, as on certain occasions was customary at Rome.* The people are extremely well qualified for choosing those whom they are to intrust 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 peison 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 praetor. They are stmck 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 afiair, 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 re- spect to the discernment of merit, we need only cast an eye on the series of surprising elections made by the Athenians and Eomans ; which no one surely will attribute to hazard. We know that though the people of Eome 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,| 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 Eoman senators were invariably chosen by magistrates in Trhom the people had vested the power. — Cre'vier. t Pages 691 and 692. Edit. Wechel. Ann. 1596. CiiAi'. 2.] LAWS IN RELATION TO DIlMoCRACY, 1] ttie people is always either too remiss or too violent. Some- times 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 clas.ses. It is in the manner of making this division that great legislators have signalised themselves ; and it is on tliis 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* and in Dionysius Halicaraassus,"]" in what manner he lodged the right of suffrage in the hands of the principal citizens. He had divided the people of Rome into 19^ 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 voto.| 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§ 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. II 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.^^ The suffrage by lot is a method of electing that offends * Lib. I. t Lib. IV. art. 15 et eeq. X See in tbe Considerations on the Causes of thu Grandeur and Decline of tlie Romans, chap, ix., how this spirit of Servius TuUiue was preserved in the republic. § Dionysius Halicarn. Euloginm of Isocrates, p. 97, torn. ii. Edit Wo.hel. Pollux, VIIL cap. x. art. 130. Ii Sue Aristotle's Polit. lib. II. cap. xii. ^ Ibid, lib. IV. cap. ix. 12 THE SPIRIT OF LAWS. [Book II. BO 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 suifrage 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,| and that every one should have a right to accuse him if he were unworthy of the office 4 this, participated at the same time of the suifrage 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 sutirages ought to be public or secret. Cicero observes § that the laws || which * The mere suffrage might occasion mortification to those who were excluded, and undue pride to the favoured ones. It was in order to avoid this contingency that they had recourse to lot, and thus chance precluded this danger, for it does not deal in humiliation or inflation. — Servan. t See the oration of Demosthenes de falsa legal, and the oration against Timarchus. X They used eyen to draw two tickets for each place, one whicli gave the place, and the other which named the person who was to succeed, in case the first was rejected.' § Lib. I. and III. de Leg. II They were called Leges Tahuhres ; two tablets were presented to each citizen, the first marked with an A, for Antiquo, or I forbid it ; and the other with an V and an B, for Uti Bogas, or Be it as you desire. • These two tickets sufiBced when the people were called upon to deliberate in a question of law ; but in the election of amgistrates, each citizen received as xoMtj ticlcets as there were candidates. — Crivitr. Chap. 2.] LAWS IM RELATION TO DEMOCRACY. J3 rendered them secret towards the close of the re])iil»lic were the caixse of its decline. But as this is din'erently practised in different republics, I shall ofifer here my thoughts concerning this subject. 1'he people's suffrages otight doubtless to be pixblic :* and this should be considered as a fundamental law of democracy. The lower class ought to be directed by those of liigher rank, and resti ained 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,! or in a democracy the senatcj 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 pe<)))h', 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 repxiblic is when intrigues are at an end ; which happens when the people are gained by bribery and cor- ruption : in this case the)'' grow indifferent to public affairs, and avarice becomes their predominant passion. Uncon- cerned about the government and everything belonging to it, they quietly wait for their hire. It is likewise a fundanjental 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 necest-ary the senate should have the power of decreeing ; nay, it is fre(piently proper to make .>rivi- leges of the clergy; however, I should be glad if tlieir jurisdiction were once fixed. The question is not, whether their jurisdiction was justly established; but whether it be really established ; wliether it constitutes a part of the laws of the country, and is in every respect in relation to those laws : whether between two poAvers 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 pre- scribed to his authority. Though the ecclesiastic power be so dangerous in a republic, yet it is extremely proper in a monarchy, espe- cially of the absolute kind. ^Vhat would become of Spain and Portugal, since the subversion of thuir 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 * This maxim brings to mind the unfortunate Charles I., who said. "No bishop, no monarch;" wliile Henry IV. of France declared to the Seize, " No nobility, no monarch ! " — Voltnire. VOL. I. 18 THE SPIRIT OF LAWS. [Book II. 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 over- flow the vi^hole 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 sufier 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 promotej's 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;}: 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 jDromulgate the new laws, and revive the obsolete. The natural ignorance of the nobility, their indolence and contempt of civil government, require that tliere should be a body invested with the power of re- viviug 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 funda- mental laws. Besides, the prince's council is continually changing ; it is neither permanent nor numerous ; neither * Voltaire is inclined to doubt the justice of this comparison. — Ed. t On the contrary, the English have rendered the power of tLeir spiritual and temporal lords more legal, and have augmented that of the Commons. — Voltaire. X Ferdinand king of Arragon made himself grandmaster of the orders, an 1 that alone changed the constitution. Chap. 5.] DESPOTIC GOVERNMENT. 19 lias it a suflQcient share of the confidence of the people ; consequently it is incapable of setting them ri)k III. 4. — Of the Principle of Aristocracy. "J^ 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 there- fore necessary in this body, from the very nature of the constitution. An aristocratic government has an inherent vigour, unknown to democrac3\ 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.* 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 nobilitj' 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 sotxl of this govern- ment ; a moderation, I mean, founded on vii'tue, not that which proceeds from indolence and pusillanimity. * 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. Chap. 5.] MONARCHICAL GOVERNMENT. 25 6. — That Virtue is not the Principle of a Monarchical % Government. In monarchies, policy effects great things with as little virtue as i)Ossible. I'hus 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 bj^ no means wanted, and the state dispenses Avith them : an action performed here in secret is in some measure of no consequence. Though all crimes be in their own nature public, yet theie 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 pi'ivate 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 paying : my obsei vations are founded on the unanimous testimony of historians. I am not ignorant that virtuous princes are so very rare ; but I ventui e to affirm, that in a monarchy it is extremely difficult for the people to be virtuous.* Let us compare what the historians of all ages have asserted concerning the courts of monarchs ; let us re- collect the conversations and sentiments ot people of all countries, in respect to the wretched character of courtiers, and we shall find tliat these are not airy speculations, but truths confirmed by a sad and melancholy experience. * I speak here of political virtue, which is also moral virtue as it ia directed to the public good ; very little of private moral virtue, and not at all of that virtue which relates to revealed truths. This wiJJ appear better, book V. chap. 2. 26 THE SPIRIT OF LAWS. [Book III. 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 weak- ness, 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 * among the people, Cardinal Richelieu, in his political testament, seems to hint that a prince should take care not to employ him.| 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 monaichies, they are almost all good subjects, and very few good men ; for to be a good man,]; a good intention is necessary,§ and we should love our country, not so much on our own account, as out of regard to the community. * This is to be understood in the sense of the preceding note, t We must not, says he, employ people of mean extraction ; they are too rigid and morose. J This word good man is underetood here in a political sense only, § See the note p. 25. - Chap. 8.] DESPOTIC GOVERNMENT. 27 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 aspiro to prefevments 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, becaiiso 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 gravi- tation that attracts them to it. Honour sets ail 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 7-esolution, without other recom- pense than that of glory and applause ? 8. — Tliat 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. * These preferments, distinctions, and lionours, in the daj's of the Roman republic, were worth quite as mueli as the d(fhris whicli gcK'stu constitute a kingdom of to-day. Prefectures, consulates, axes, fasces, nnd triumphs were valued at the price of so many coloured ribbous. — Voltaire. 28 THE SPIEIT OF LAWS. [Book III. 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 con- stitution 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 govern- ments, some of which have not even a proper word to express it,* 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.f Here the immense power of the prince devolves entirely upon those whom he is pleased to intrust with the adminis- tration. Persons capable of setting a value upon them- selves 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 * See Perry, p. 447. t It has been thought that Montesquieu anticipated innumerable difficulties, if he entered upon Lis plan, and in his own style began to refute objections. It is evident that his only desire was to construct a aeries of his ideas, and that his motives should be conceived. Chap. 10.] OBEDIENCE IN GOVERNMENTS. 29 whom he lias intrusted with the first employments,* all is over : for as fear, the spring of this govornuieut, 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. f It i.s necessary that the peoi)le 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 horrur. The Sophi of Persia, dethroned in our days by Mahomet, the sou of Miriveis, saw the constitution subverted before this resolution, because he had been too spai ing of blood.J History informs us that the horrid cruelties of Domitian stinick such a terror into the governorrf, that the people recovered themselves a little during his reign. § 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 fi.ne meadows. 10. — Difference of Obedience in Moderate and Despotic Governments. In despotic states, the nature of government requin s the most passive obedience ; and when once the prince's will is made known, it ought infallibly to i)rodu<;e its effect. Here they have no limitations or restrictions, no mediums, terms, equivalents, or remonstrances; no cliange to pio- pose : man is a creature that blindly submits to the absolute will of the sovereign. In a coTintry like thi.s they are no more allowed to represent their apprehensions of a future danger than to * As it often happens in a military aristocracy. — Ed. t Kicaut on the Ottoman Empire. X See the history of tiiis revolution by Father Duccrceau. § His was a military constitution, which is one of the species o despotic government. 30 THE SPIRIT OF LAWS. [Book III. impute their miscarriage to the capricioiisness of fortune. Mau's portion here, like that of beasts, is instinct, compli- ance, 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 com- pos, the decree must be executed ;* otherwise he would contradict himstif, 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,f they were allowed the liberty of defending themselves. J One thing, however, may be sometimes opposed to the prince's will,§ 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 Avill be ever directed. * See Sir John Chardin. t This order was revoked by a new edict. See Esther xvi. 7. —Ed. X The Jews were not allowed to defend themselves, as the author avers, but to exterminate their enemies, as it had been permitted their enemies to exterminate them. So terrible was the success of the Jews that it was in memory of the event that the feast of Ptxim was instituted. — De Dupin. § See Sir John Chardin. BooiK IV.] LAWS OF EDUCATION. 31 Though the manner of obeying be diflferent in these two kinds of government, the power is the same. On which side soever the monarch turns, he inclines the scalo,-und 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. 1 1 . — Reflections on the preceding Clmptcrs. ^ Such are the principles of the three sorts of govern- ment: which docs not imply that in a particular republic they actually are, but tliat 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. BOOK IV. THAT THE LAWS OF EDUCATION OUGHT TO BE IN RELATION TO THE PKINCIPLES 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 })rivate 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 consti- tuent parts, that is, the several families, will have one also. The laws of education will be therefore diiferent in each species of government: in monarchies they will have honour for their object ; in republics, virtue ; in despotic governments, fear. 32 THE SPIRIT OF LAWS. [Book IV. 2. — Of Education in Monarchies. In monarcliies 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 ive 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 shilling ; 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 a 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 educa- tion 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 CHAr. 2.] EDUCATION IN MONARCHIES. 33 onl} on the things themselves, notou the manner in which they are received. Hence it is that in proportion as this kind of frankness is commended, that of the common i)eople is despiseil, 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 throngli the rules of decency, so as to shock those he conveised 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 oureelves. It is pride that renders us polite ; we are flattered with being taken notice of fi>r 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 ltllow-subjei;ts ; hence that politeness, equally pleasing to those by whom, as to those towards whom, it is practiscii, 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 dimini>lies 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 es2)ecially the satiety, of plcasui-es, from the multiplicity and even confusion oi fancies, which, if they are but agreeable, are sure of being well received. These are the things which properly fall within tliu province of education, in order to form wliat we call a man of honour, a man possessed of all the qualities and virtues requisite in this kind of government. VOL. I. D 34 THE SPIRIT OF LAWS. [Book IV. Here it is that honour interferes with everything, mixing even with people's manner of thinking, and direct- ing their very principles. To this whimsical hononr it is owing that the virtues are only just what it ])leases; it adds rules of its OAvn 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 xis incapable of serving him. Ciillon 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 ibr the Huguenots to be murdered, Viscount Dorte, who commanded at Bayonne, wrote thus to the king :* Sire, among the inhabitants of this town, and your rnnjestifs troops, I could not find so much as one executioner ; then ^''^ honest citizens and hrave soldiers. We jointly, there- fore, 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 imjjossible. 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 educa- tion is obliged to conform."^ The chief of these are, that Ave are permitted to set a value upon our fortune, but are alisolutely forbidden to set any upon our lives. * ?ee D'Auljigiiy's History. t We mention liere what nctuany is, and not wLat ought to be; honour is a prejudice, which religion sometimes endeavours to remo^e, and at other times to regulate. CuAr. 3J EDUCATION IN A DESPOTIC GOVERNMENT. 35 The second is, that when we are raised to a post or ])rc- ferment, we should never do or permit anything which may seem to imply that we look ui)on ourselves as inferior to the rank wo 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 tj^runt 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 doub*, to reason ; he has only to will. In despotic states, each house is a separate government. As education, therefore, consists chiefly 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 tinderstanding a very simple notion of a few principles of religion. Learning here proves dangei ous, emulation fatal ; and as to virtue, Aristotlef 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 isomc measure needless : to give something, one must take away everything, and begin Avith making a bad subject in order to make a gt)Oil slave. For why should education take pains in forming a good citizen, only to make him share in the public misery ? Jf he loves his country, he will strive to relax the springs of government; if he miscarries he will be undone; if he * Bv excessive obedience, Montesquieu intends blind olx-dience.— De iJiipin. f I'ulit. lib. I. X How can this be, asks one, when slaves have no will? — Kd. D 2 36 THE SPIRIT OF LAWS [Book IV. succeeds, lie 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 ncA-er could be effaced by contrary impressions. Epaminondas, the last year of his life, said, heard, beheld, Mud 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 edu- cations, 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. y/L 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 virtueisaself-renunciation,! which is ever arduous and painful. * The Christian religion forbids vengeance and prescribes humility ; this is perhaps the point of contrast wliich the author notes. But these precepts have not made of Europe a world of poltroons. It is well known that officeis most attached to the laws of this religion are commonly the most exact in fulfilling the duties of their state, and the most intrepid in danger. — D. t This virtue, which Montesquieu defines as "love of country," is not self-renunciation ; far from urging man to abnegation of his interests, it permits him to see the state flourishing and tranquil. In this public jirosperity the citizen often finds his own peace of mind and independ- ence, the peaceable possession and enjoyment of his property, the liope ot increasing it by liberty of commerce, and of being raised to posts ot dignity. — D. Chap. C] INSTITUTIONS AMONG THE GREEKS. 37 This virtue may be defined as the love of the laws and of our country. As such love requires a constant pre- ference 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 intnisted to private citizens. Now a government is like everything else : to preserve it we must love it. Has it ever been known that kings wei'e not fond of moiiarch3% or that despotic princes hated arbitrar}' power? Everytliing 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 communicMte 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 niaturer 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 ins]nie it. Upon seeing in the life of Lycurgus the laws that legislator gave to the Lacedaemonians, I imagine I am reading the history of the bevarambes.* The laws of Crete were the model of those of Sparta ; and those of Plato reformed them. Let us reJBlect here a little on the extensive genius with which those legislators must liave been endowed, to perceive that by striking at received cu&tt)ms, and by con- founding all manner of virtues,"]" they should display their wisdom to the universe. Lycurgus, by blending theft * See Vainisse d'Allais in his Voynf/es Imagumires, vol. v. — Ed. t Tlie autbor intomla that the Liiceila;iiiouiuiis confounded their virtuea and vices. — D. 88 THE SPfRIT OF LAWS. [Book IV. with the spirit of justice, the hardest servitude with excess of liberty, the most rig-id 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 Avitliout 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. '^I'lris was the road that led Sparta to grandeur and glory ; and so infallible were these institutions, that it signified ni)thing to gain a victory over that republic without sub- verting her polity.* By these laws Crete and Laconia were governed. Sparta was the last that fell a prey to the Macedonians, and Crete to the Romans. t The Samnites had the same institutions, Avhich furnished those very Eomans with the subject of four-and- twenty triumphs.! A character so extraordinaiy in the institutions of Greece has shown itself lately in the dregs and corruptions of modern times.§ 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 freo 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. 1| * Philopcemen obliged the Lacedsemonians 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, Life of Philopoemen. See Livy, book XXXVIII. t 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. I Floras, lib. I. cap. xvi. § In fxce Romuli. — Cicero. II Tlie 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. Chap. 6.] INSTITUTIONS AMONG THE GHEKKS. 39 It is glorious indeed fur this society to have been the first in }) intingout to those countries the idea of religion joined with that of humanit}'. By repairing the devasta- tions of the Spaniards, she has begun to heal one of the most dangerous wounds that the human species ever received. An exquisite sensibilit}- to whatever she distinguishes by the name of honour, joined to her zeal for a religion which is far more humbling in resj^cct to those wlio receive than to those who preach its doctrines, has set her u})on vast unuertakings, 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 in- Btitutions must establish the community of goods as ]ire- scribed in Plato's republic ; that high resi)ect he required for the gods ; that separation from strangers, for the pre- servation of morals ; and an extensive commerce carried on by the communit}^ 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 hav^- received very scanty means of inflaming our passions, anil of corrupting each other. " The Epidamnians,* 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 constitu- tion, and the constitution does not deprive society of the advantages of commerce.f * Phitarcli in his Questions concerning the Greek iiffaiis. The Epi« daninians were the inhabitants of Dyriachiiun, now Diirazzo.-— Kn. t But it does away with competition, and thua ruins commerce— Anon. Ed. 17G-i. 40 THE SPIRIT OF LAWS. [Book IV. l.—In lohat Cases these singular Institutions may he 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,* 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 slow- ness 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 usf that music was necessary to soften the manners of the Arcadians, M^ho 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 t^o immersed in luxury and debauchery. Plato | is not afraid to affirm that there is no possibility of making a change in music without altf ring 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.§ * Such as were formerly the cities of Greece. t Hist. iv. 20 and 21. J De Bepub. lib. IV. § Lib. VIII. cap. v. CbaP. 8.] A PARADOX OF THE ANCIENTS. 41 This was also the opinion of Theophrastus, of Plutarch,* and of all the ancients — an opinion grounded on mature reflection; being one of the principles of their polity. f 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 pro- fessions were considered 'anworthy of a freeman. Most arts, says Xenophon.J 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 repuhlic. It was only by the corruption of some democra- cies that artisans became freemen. This we learn from Aristotle,§ who maintains that a well-regulated republic will never give them the right and freedom of the city.|l Agriculture was likewise a servile profession, and generally practised by the inhabitants of conquered countries, such as the Helotes among the Lacedaemonians, the Periecians among the Cretans, the Penestes among the 'J'hessalians, and other conquered^ people in other re- publics. In fine, every kind of low commerce** 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 * Life of Pelopidaa. t Plato, in his fourth book of laws. Bays that the prsefectures of music and gymnic exi-rcisies are the most important employments in the city; and, in liis Kepublic, book III., Damon will tell you, says he, wliat sounds are capable of corrupting the mind with base senti- ments, or of inspiring the contrary virtues. X Bfx>k 5th of Memorable Sayings. § PoUt. book III. chap. iv. II Diophantes. says Aristotle, I'oUt. chnp. vii., made a law formerly at Athens, that artisjvns should bo slaves to the republic. ^ Plato, likewise, and Aristotle require slaves to till the land, I^aws, book v., Polit. book VII. chap. x. True it is tliat agriculture was not everywhere exercised by slaves: on tlie 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 govemmeut. ** Cauponatio. 42 THE SPIRIT OF LAWS. [Book IV. Plato* in his laws orders a citizen to be puiiislied if he attempts to concern himself with trade. 1'hus in the Greek republics the magistrates wero 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.f They found, therefore, employment for them in gymnil; and military exercises ; and none else were allowed by their institu- tion 4 Hence the Greeks must be cunsideied as a society of wrestlers and boxers. Kow, these exercises having a natural tendency to render people hardy and fierce, there was a necessity for tempering them with otheis that might soften their manners. § For this purpose, music, which influences the mind by means of the corporeal oi'gans, 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 em- ployment ; 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 exerciises used by the Greeks could raise but one kind of passiotis, 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 * Book XI. t Arist. Polit. lib. X. X " Ars corporum exercendorum gymnastica, variis certaminibua terendorum pcedotribica." — Arist. Polit. lib. VIII. cap. iii. § Aristotle observes that the children of the Lacedsemonians, who began these exercises at a very tender age, contracted theuce too great a ferocity and rudeness of behaviour. — Folit. lib. VIII. cap. iv. Book V.] VIRTUE IN A POLITICAL STATE. 43 music than that of dnims, and the sound of the trumpet, woidd it not be more difficult to accomplish this end than by the more melting tones of softer harmony ? I'he ancients were therefore in the ri,i;ht when, under particular cir- cumstances, they preferred one mode to another in regard to manners. But some will ask, why should music be pitched upon as preiei able to any other entertainment ? It is because of all sensible pleasures there is none that less corrupts the soul. We blush to read in I'lutarch* that the Thebans, in order to soften the manners of their youth, aiithorised by law a passion which ought to be proscribed by all nations. BOOK V. THAT THE LAWS GIVEN BY THE LEGISLATOR OUGHT TO BE IN RELATION TO THE PRINCIPLE OF GOVERNMENT. 1. — Idea of this Booh. 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 govern- ment ; and this princijilc derives thence, in its turn, anew degree of vigour. Ami thus it is in mechanics, that action is always followed by reaction. Our design is, to examine this relation in each govern- ment, 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 * Life of Pelopidas. 44 THE SPIRIT OF LAWS. [Book V. 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 insupport- able. 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 inclina- tions, the more force it gives 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 con- sequently 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 fe]low-citizen8. 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 bj signal services or superior abilities. Chap. 4.] LOVE OF EQUALITY AND FRUGALITY. 45 The love of frugality limits the desire of having to the study of procuring necessaries to our family, and super- fluities to our country. Kiches give a power which a citizen cannot use for himself, for then he w^ould be no longer equal. They likewise procure pleasures which he ouglit not to enjoy, because these would be also repugnant to the equality. Thus well-regulated democracies, by establishing domes- tic 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 lil)eral to our country. The good t-ense and happiness of individuals depend greatly iipon the mediocrity of their abilities and fortunes, 'i'herefure, 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 EqiCality and Frugality is inspired. The love of eqiiality 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 superiorit3\ People (^f the very lowest condition desire to emerge from their obscurity, only to lord it over their fellow-sulijects. It is the same with lespect to frugality. To love it, we must practise and enjoy it. It is not those who are ener- vated 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 * Voltairo takos oxception to this ndnlation of Alcibiades, and liolds that Phiturch and Montesciuicu do not ]irovail since liis standard of udmiration is tilled by such men as Cato and Marcus AmeUus — Ed. 46 THE SPIRIT OP LAWS. [Book V. who envy or admire the luxury of the great ; people that have present to their view none but lich 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 lohat Manner the Laws establish Equality in a Democracy. Some ancient legislators, as Lycurgus and Eomulus, made an equal division of lands. A settlement of thi» 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 form." only a temporary constitution ; ineqiiality will break i? where the laws have not precluded it, and the republic will be utterly undone. Hence for the preservation of this equality it is abso- lutely necessary there shoidd be some regulation in respect to women's dowries, donations, successions, testamentary settlements, and all other forms of C' mtracting. 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,* to leave their estates to whom they pleased, acted conti'ary to the ancient laws, by which the estates were ordered to continue in the family of the testator ; j" and even contrary to his own laws, for by abolishing debts he had aimed at equality. The law which prohibited people having two inherit- * Plutarch, Life of Solon. f Ibid, Chap. 5.] EQUALITY, 47 ances * was extremoly well adapted for a dciuooraoy. It derived its origin from the equal distribution of lands and portions made to each citizen. The law wouUl not permit a single man to po.-sess more than a sinjjjle portion. From the same source arose those laws by Avhich the next relative was ordered to marry the heiress. This law was given to the Jews after the like distribution. riato,t 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 b}' the same venter.J This custom was originally owing to republics, whose spirit would not permit that two portions of land, and con- sequently two inheritances, should devolve vn the same person. A man who married his sister only by the lather's side could inherit but one estate, namely, that of his father; but by espousing his sister by the same venter, it might hajipen 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,§ 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 Lacedajmonians, who were permitted to espouse a sister by the mother's side, and not by the father's. For I find in Strabo || that at Sparta, * Phildlans of Corinth matlon law at Athens that the number of tlie p(er, viy /athfr'$ tlanijhter, hut nut my innthcr'g. The same reasons occasioned the establishing; the same law anmng ditterent nations. § J)e iii>ecialihus legibus iiux pertinent ad pr.-eceptor Dccaloni. II Lib. X.^ 1 I'hilolaus was Icpislalor at Corinth, and not at Athens. — Ed. - Strain) sj)faks in this connection of the laws of Crete, and not of tho^e of lb« Lacediemotiiune. — Burthelemy. 48 THE SPIRIT OF LAWS [Book V wlienever a woman was married to her brotlier she had half his portion for her dowry. Plain is it that this second law was made in order to prevent the bad con- sequences 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,* speaking of Silanus, who had married his 8ister,f 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, :f 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 § 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, iiistead 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 * Athenis dimidium licet, Alexandrine lotum. — Seneca, de morte Claudii. t Montesquieu is here accused of an attempt at satire, since it ia Tacitus who says, " Silanus lived in great friendship with his sister, thougli not criminally, altliougli not without iudiscretion." — Gre'vier. X Plato has a law of this kind, lib. XI. Leg. § Aristot. lib. II. cap. vii. Chap. C] FRUGALITY. 49 it to establish a census,* wliich shall reduce or fix the differences to a certain point : it is afterwards the business of particular laws to level, as it were, the inetiualitios. by the duties laid upon the rich, and by the ease afforded t<» the poor. It is moderate riches alone tliat can give or suffer this sort of compensation ; for as to men of over- grown 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 frt)m the piinciple of equality. For examj)le, it may be apprehended that people who are obliged to live b}' theii- labour would bo too much impoverished by a public em))loyment, 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 f in a democracy may be suppressed for the good of the state. But this is only an ajjparent equality ; for a man ruined by a public employment would be in a worse condition than his fellow-citizens; and this same man, beitig obliged to neglect his duty, would reduce the rest to a worse con- dition 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 Komatis. God forbid, said Curius to his soldiers,^ 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 * Solon miide four classes : the first, of those who had an income of 500 niiiias either in corn or liquid fruits; the second, of those who hail 800, and were able to keep a horse ; tlic; third, of such as liad only 2ii0 ; tlie fourth, of all those who lived by their manual labour. — I'lut., Life of Solon. t Solon excludes from pubUc employments all those of the fourth class. X They insisted upon a larger division of I he oomiuered lands. — Plutarch's Moral Works, Lives of the ancient Kings itua Ck)mmandtrs. VOL. I. E 50 THE SPIRIT OF LAWS. [Book V. 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, jirivate people may acquire vast riches without a corrup- tion of morals. This is because the spirit of commerce is naturally attended with that of frugality, econom3\ mode- ration, labour, prudence, tranquillity, order, and rule. So long as this spiiit 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 tiio 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 onlj^ of trading republics ; as to those that liaA'e no commerce, the legislator must pursue quite dif- ferent measures.* 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 * lu these, the portions or fortunes of women ought to be very much Viiiiited. Chap. 7.J PRINCIPLE OF DEMOCRACY. 51 extend only to what is necessary, every one ought to h:\vo it ; for how should their wants be otherwise supplied 'i 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 :i regulation of this nature would be impracticable, dan- gerous, and even subversive of the constitution. We arc 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, recouise 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 statms of the gods, must naturally inspire every family with sentiments of virtue. Above all, this senate must steadily adhere io the ancient institutions, and mind that the people and the magistrates never swerve from them. The preservation of the ancient customs is a very con- siderable point in respect to manners. Since a corrupt people seldom perform any memorable actions, seldom establish societies, build cities, or enact laws; on tlie contrary, since most institutitms are derived from people whose manners are plain and simple, to keep up tlio ancient customs is the way to preserve the original puiit}' of morals. Besides, if by some revolution the state has happened to assiiiue a new form, this seldom can be effected without infinite pains and lal)Our, and hardly ever by idle ami debauched persona. Even those who had been the instru- ments of the revolution were desirous it should be re- lished, 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 administia- tiou, the descent to vice is insensible ; but tlu're is nu £ 2 52 THE SPIRIT OF LAWS. [Book V. reasoendit-g 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 Rnme,* at Sf>a)ta,'|" and even at Athens. For we must not confound the senate at Athens, which was a body that changed every thiee months, with the AieopagU'^, 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 clnanged. The spi) it. says Aristotle, waxes old as well as the body. This reflection holds good only in regard to a single magis- trate, 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. J At Sparta, all the oLi men were censors. At Eome, the censorship was committed to two particular magistrates. As the senate watcht^d 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 indohnc, to censuie negh cts, and to correct mi-stakes ; as to flagrant crimes, these were left to the punishment of the laws. That Eoman law which required the accusations in cases of adultery to be public was admiraVdy well calcu- latt d for piesetving the purity of morals ; it intimidated mariied v^omen, as well as those who were to watch over theii conduct. Nothing contributes more to the preservation of morals than an extreme subordination of the young to the old. * The magistrates there were finniial, and the senators for life. t Lycurgu^i, says Xt-nophon, de Bepuh. Laceda'm., ordained that the senatms should be chosen from amongst tlie old men, to the end that tliey might not be neglected in the decline of life ; thus by making them judges of the courage of young people, he nndered the old ago of the former more honourable than tht; strength and vigour of the latter. X Even the Areopagus itself was subject to tht ir censure. 3hap. 7.] r;;iNCirLE of democracy. 53 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 laws than a per- fect subordination between the citizens and the magistrate. The great d fference whirh Lycnrgus established between Sparta and the other cities, says Xi-nophon,* consis's chiefly in the obedience the citizens show to their laws ; they run ichen 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 alnady observed, that in a repul>lic there is not so coercive a force as in other governments. The laws must therefore endeavour to sup- jdy this defect by some means or other; and this is done by paternal authority. Fathes at Kome had the power of life and death over their childnn.f At Sjjarta, 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 authoiity than that of the magistrates. The Roman laws, which accustomed young people to dependence, est;iblished a long minority. Perhaps we aie mistaken in conforming to this custom ; there is no neces- sity fur so much constraint in monarchies. This very subordination in a republic might make it necessary for ihe fathej- 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. * Republic of the Laccdseinonians. t We may see in the Uoraan History how useful this power wns to the republic. I shall give an instance even in the time of its greatest corruption. Aulus Fulvius was set out on iiia journey in order to join Catiline; his father called him back, and put him to death. — Sallust, de hello Catil.^ i The instance is by no means Isolated. See Dion. lib. XXXVII. 36.— Kd. 64 THE SPIRIT OF LAWS. [Book V. 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 govern- ment, and the state grows powerful. But as a great share of virtue is very rare w^here men's fortunes are so uuequal, the laws must tend as much as possible to infuse a spii-it of moderation, and endeavour to re-esta- hlish 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 sur- rounded form a part of their power, so modesty and sim- jDlicity of manners constitute the streno;th of an aristocratic nobility.* 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 sub- jection and weakness. Every government has its nature and principle. An aristocracy must not theiefore 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 * In our days the Venetians, who in many respects may be said to liave a very wise government, decided a dispute between a noble Vene tian 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- iminence over any other citizen. CiiAP. 8.] GOVERNMENT IN AN ARISTOCKACY. 55 to the people. Such was the law at Kome hy which the patricians were forbidden to marry plebeians ;* 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 t) exempt themselves ;f when they engross the public money, under pretence of rewards or appointments fur their respec- tive employments ; in fine, when they render the common people tributary, and divide among their own bod}'- the profits arising fiom the several subsidies. This last case is very rare ; an aristocracy so instituted would be the most intoleraVde of all governments. While Kome 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 pul)lic treasure, and all the wealth that fortune flung into their laps, they bestowed freely on the people, to be excused from accepting public honours. J 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 nut 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 was inscrttd by the decemvirs in the two last tables. See Dionya. Halicarn. lib. X. t As in some aristocracies in our time; nothing is more prejudicial to the government. X See in Strabo, lib. XIY., in what manner the Bhodians behaved in this respect. 56 THE SPIRIT OF LAWS. [Book V. it. The golden chain displayed at Venice, the riches exhibited at Eoine in public triumphs, the treasures pre- served 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 Eome 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 neigh- bours, 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'rf 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 * the nobles from commerce, by wliich they might even innocently acquire exorbitant wealth. The laws ought to employ the most efiectual means for making the nobles do justice to the people. If they have not established a tribune, they ought to be a tribune themselves. * Amelot de lu Housaye, of the Government of Venice, part III. The Claudian law forbade the senators to have any ship at sea that held above torty bushels. — Liv. lib. XXI. cap. Ixiii. Chap. 8.] GOVERNMENT IN AN ARISTOCRACY. 67 Every sort of as3'lum in opposition to the execution of the laws destroys aristocracy, and is soon succeeded by tyranny. They ou<:ht always to mortify the lust of dominion. There shoulcl be either a temporary' or perpetual magis- trate 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* is open to every infoimer at Venice — a mouth to which one would be apt to give the appellation of tyranny. I'hese 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, J except the cen8ors.§ There are two very pernicious things in an aristocracy — excess either of poverty, or of wealth in the nobility. To prevent their povert3% it is necessary, above all things, to oblige them to pay their debts in time. To modi-rate the excess of wealth, prudent and gradual regulations should be made ; but no confiscations, no agrarian laws, no expung- ing of debts ; these are productive of infinite mischief. The laws ought to abolish the right of primogeniture among the nobles,! 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 redemp- tion, no rights of Majorasyo, or adoption. The cont) ivauces * The informers throw their scrolls into it. t Their vote is secret; whereas at Rome it was puhlic. — En. X See Livy, lib. XLIX. A censor could not l>e 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. § At Athens the Logist/e, who made all the magi^strates accountable for their conduct, giwe no account themselves. U It is 80 practised at Venice. — Amelot de la Homaye, pp. 30 and 31 58 THE SPlftlf Oy LAWS. [Book V. for perpetuating the grandeur of families in monarchical governments ought never to be employed in aristocracies.* When the laws haVe compassed the equality of families, the next thing is to preserve a proper harmony and union amongst 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 of 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 pee 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 weak- ness 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 main design of some aristocracies seems to be less the support of the stiite than of their nobility. t These were not kings of Sparta, but pretenders. The true sovereigns were the Ephori, since royalty itself was subserrient to them. — Ei>. Chap. 10.] EXECUTIVE POWER IN MONARCHIES. 59 The laud 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 noblo- nian from that of his tief. All these privileges must be peculiar to the nobility, and inconiinunicable 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 gold 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 permisbion improper in any other government. The laws ought to favour all kinds of commerce* con- sistent 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 govern- ment 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 ♦ It is tolerated only in the common people. See the third law Cod. de Comm. et Mercaioribut, which is full uf good sense. 60 THE SPIRIT OF LAWS. [Book V. degenerate into rapidity, the laws should use some con- trivance to slacken it. They ought not only to favour the nature of each constitution, but likew^ise to remedy the abuses that might result from this very nature. Cardinal Richelieu* advises monarchs to permit no such things as societies or communities tliat raise difficulties upon every trifle. If this man's heart had not been be- witched with the love of despotic power, still these arbi- trary notions would have filled his head. The bodies intrusted with the deposition of the laws are never more obedient than when they proceed slowlj'', 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.f 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 govern- ment. 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 J is of opinion that the establishing of the tri- bunes 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 winch they hurry themselves. This reflection may be applied to a despotic government, * Testam. polit. t Barharis cunotatio servilis, statim exequi regium videtur. — Tacit. Annul, lib. V. cap. xxxii. J Lib. III. de Leg. 10. Chap. 11.] MONARCHICAL GOVERNMENT. 61 which is a people without tribunes ; and to a monarchy, where the people have some sort of tribunes. Acc(»rdingly 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 cariied to excess. The chiefs are apprehensive on their own account ; they are afraid of being abandoned, and the intermediate depen- dent 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 com- plied with, and things at length are reilressed ; 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. f Cardinal Kichelieu, 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 sup- port J 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. * See the first noto of book 11. chnp. 4. t Memoirs of Cardinal de Retz and other histories. j Testam. poiit. 62 THE SPIRIT OF LAWS. [Book V. 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 funda- mental 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 govern- ments;* 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.j" 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 * Voltaire maintains that the conqueror of Caiidia, the Vizir Ibra- him, and many others of despotic sway contradict this statement. — Ed. t Edifying letters, col. ii. p. 315. Chap. 14.] DESPOTIC GOVERNMENT. 63 voluptuijus abode without alarming those who keep him confined. 'J'hey will not hear that his person and power should pass into other hands. He seldom therefore wages war in person, and hardly ventures to intrust the com- man'd 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 ho is generally governed by wrath or ven- geance. Besides, he can have no notion of true glory. War therefore is carried on under such a government in its fnll natural fnry, 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 stujiidity 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 be not therefore deemed to be deceased, the state would be subverted. One thing which chiefly determined the Turks to con- clude a Separate peace with Peter I. was the Musctjvites telling the Vizir that in Sweden another prince had been placed upon the throne.f 'J'he j)reservation of the state is only the preservation of the prince, or rather of the palace where he is confined. \\ hatever does not directly menace this palace or the capital makes no impression on ignorant, proud, and • The king was not then nt Bender, but at Demotica. — D. t Continuation of I'ufleiidorf 8 introduction to the History of Europe, in the article of Sweden, chap. x. 64 THE SPIRIT OF LAWS. [Book V. 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.* 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 wotld, 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 any- where 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 * According to Sir John Chardin, there is no council of state in Persia.' 1 See Chardin, chap. xL Ohap. u.] despotic govei:nmi:nt. 05 honour to the glory and grandeur of the state, aie con- nected with it by the force and principle of religion. Of all despotic govern m en t.s there i.s 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.* Houses are built only for the necessity of habitation ; there is no digging of ditch' s or pLinting of trees , everything is drawn from, but notliing restored to, tiie earth; the ground lies untilled, and tlie 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 oppres>ive methods, imagining they have no other propirty than the gold and silver which they are able to seize u])on by violence, or to conceal. To prevint, 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. t But as he gives the greatest part of the lands to his soldiery, and disposes of them as he jdeases ; 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 onl}'^ 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, J the king seizes on the whtilo * See Riciiut, Stei)se8 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 princi^jles being corrupted, and that the idea of hduour 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. * Munusoula, Chap. 10.] THE THREE PIIINCIPLES. 78 19. — New Consequences of the Principles of the three . Governments. I cannot conclude this book without making some appli- cations of my three principles. Ist Question.] It is a question whether the laws ought to oblige a subject to acci pt a public employment. My opinion is that they ought in a republic, but not in a monarchical government. In the former, public em])loy- uients are attestations of virtue, depositions with which a citizen is intrusted by his country, for whose sake alone he ought to live, to act, and to think, consequently he cannot refuse them.* In the latter, ])ublic offices are testi- monials of honour; now such is the capriciousness of lion our that it chooses to accept none of these testi- monies but when and in what manner it pleases. The late King of iSardiniaf inflicted punishments on his subjects who refused the dignities ami public offices of the state. In this he unknowingly followed republican ideas : but his method of governing in other respects siifficientlj 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 belbre. Among the liomans it was usual to see a captain serve the next year under his lieutenant.| This is because virtue in rejjublics requires a continual sacrifice of our persons and of our repug- uances 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 jjrince a scullion, and a scullion a prince. * Plato, in his Republic, book VIII,, ranks these refusals among the marks of the corruption of a republic. In his Laws, Ixjok VI., he orders them to be punished by a tine ; at Venic*; they are punished with banishment. t Victor Amadeus. X Some centurions having appealed to the people for the employ- ments which they had before enjoyed, It i« juxt, my comrmlcH, s-iid a ceu- turion, that you ohould look upon every pod its honourable, in ichiih you have an opportunity of defending the republic. — Livy, dec. 5, lib. XLil. 74 THE SPIRIT OF LAWS. [Book V 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 func- tions ; 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 employ- ments ; on the contrary, the^^ 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.* We have only to cast an eye on a nation that may be justly called a republic, disguised under the form of mo- narchy, 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 Komans after the extinction of the republic, was not an arbitrary thing. It was a consequence of the change which happened in the constitution of Kome ; it was natural to a monarchical government ; and what was only commenced under Augustus f succeeding em- * Ne imperium ad optimos nobilium transferretur, Senatum militia vetuit Gallienus, etiam adire exercitum. — Aurelius Victor, de virii illustribus. t Augustus deprived the senators, proconsuls, and governors of the privilege of wearing arms. — Dio, lib. LIII. Chap. 19.] THE THREE PiaNCIPLES. 75 perors* were obliged to finish, in order to temper the military j^overnment. Procopius, therefore, the competitor of VHlens the em- peror, was very much to blame when, conferring the pro- consular dignityt upon Hormisdas, a prince of the blood royal of Persia, he restored to tliis magistracy the military command of which it had been formerly possessed ; unless indeed he had very particular reasons for so doing. A person that asi)ires 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 tliis 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 oiders of the kingdom more per- manent. Suidas§ very justly observes, that Auastasius had changi d the empire into a kind of aristocracy, by selling all public em2)loyments. Plato II cannot bear with this prostitution : This is exactly, says he, as if a person were to he made a mariner or pilot of a ship for his momij. Is it possible that this rule should he bad in every other employment of life, and hold ut I'lato speaks of a republic founded on A-irtue, and we of a monarchy. Now, in monarchies (where, thougli there weie no such thing as a regular sale of public offices, still tlae indigence and avidity of the courtier would equally prompt him to expose them to sale) chance will furnish better subjects * Constatitine. See Zozimus, lib. II. t AmmiiinuH Mart-ellinus, lil). XXVI., Mnre reterum ft hflla rectum. X Voltaire excliiiins, " Lot us lament tliat Montesquieu has dcfanied his work by suoli jmnuioxes. lint we can f.n;;ivc liini ; iiis nncle purchased tiie office of Presi^red into a consultation ; each gave his opinion in one of these three vi^ays, I absolve, I condemn, it does not appeal- clear to me :* this w^as because the people judged, or Were supposed to judge. But the people are far from being civilians; all these restrictions and methods of aihitration 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 Eomans introduced set forms of actions,! after the example of the Greeks, and established a lule 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, de- duction, or limitation. But the prcetors devised othei 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 * Non liquet. t Quas actiones ne populus prout vellet inxtitneret, certaa solemnesqi»e esie voltierunt. —Lib. II. § 6, Digest, de Orig. Jut. Chap. 5. J THE SOVEREIGN AS JUDGE. 83 French lawyers, that in France* all actions are ex ddna FIDE. 5. — In what Governments the Sovereign may he Judge. Machiavelf attributes the loss of the liberty of FloreDco to the people's nut judging in a body in cases of high treason against themselves, as was customary at Rome. For this purpuse they had eight judges: hut the few, says Machiavel, are corrupted hy a few. I should willingly adopt the maxim of this great man. But as in thuse cases the political interest prevails in some mcas.ure ovei" the civil (for it is always an inconvenience that the pe p]e should be judges in their own cause), in ordtr to remedy this evil, the laws must provide as mu'h as po.^sillle for the security of individuals. With this view the Roman legislators did two things : they gave the persons accused permission to banish them- selves X before sentence was pronounced ;§ and thej^ ordained, that the goods of those who were condemned should Ix; 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 peo))1e might make of their power in criminal judj^ments. He or- dained that the Court of Areopagus shoukl re-examine the affair; that if they believed the party accused wasuiijui-tly acquitted, II they should impeach him again before tiie people; that if they believed him unjustly condemned^ 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 France a pt^rson, tliough sued for more than he owes, losca \Aa costs if he has not offered to jmy the exact debt. t Discourse on the first Decade of Livy, hook I. chap. vii. X This is well explained in Cicero's oration /jro Cwcina, towards the end. § This was tlie law at Athens, as appears by Demostiienea. Socrates refused to make use of it. II Demosthenes, jyro Corona, p. 494. edit. Frnnkf. an. 1604. ^ See Philostratus'a Lives of the Sophists, bouk I., Life of JSschinea. o 2 84 THE SPIRIT OF LAWS. [Book VI. In afiPairs 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 cooll}'. In despotic governments, the prince himself may be judge. Pmt in monaichies this cannot be ; the constitution by such means would be subverted, and the dependent intermediate powers annihilated; all set forms of judgment would cea«e ; fear would take possession of the people's minds, and paleness spread itself over every countenance : the more confidence honour, atfectiun, and securitv in the subject, the more extended is the power of the monnrch. 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,* 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 XI II. being desirous to sit in judgment upon the trial of the Duke de la Valette,! sent for some members of the pailiament and of the privy council, to debate the mattei- ; 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 lha a prince should pass sentence upon a subject ; that kings had reserved to themselves the power of pardoning, and * 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 imprisunmeut. t See tlie relation of the trial of the Duke de la Valette. It ia rinted in the JMtmoirs of Montresor, torn. ii. p. 62. Chap. 5.] THE SOVEREIGN AS JUDGE. 85 left tliat of condeninin<^ to their offirers ; that his majesty wanted to isee before him at the bar a ]>er.sun who, by his deci.sion, was to be hurried away into the other world ! That the prince's countenance shoukl inspiio with hopes, and not confound with fears ; that his jtresence alone removed ecclesiastic censures; and that subjects ought not to go away dissatisfied from the sove- reign." \\ lien Sentence was passed, the same magistrate declared, " This is an unprecedented judgiiunt to see, con- trary to the example of past ages — a king of France, in the quality of a judge, condemning a gentleman to death."* Again, sentences passed by the prince would be an inex- haustible source of injustice and abuse ; the courtiers by their importunity would always be able to extort his decisions. Some Koman emperors were so mad as to sit as judges themselves ; the consequence was, that no reigns ever so surprised the world witli oppression and injustice. Claudius, says Tacitus,| having appropriated to hiniself the determination of law-suits, and the function of magistrates, gave occasion to all manner of rapine. But Kero, upon coming to the empire afier Claudius, endeavoured to con- ciliate 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 witliin the walls of a palace to the iniquitous influence of a few freed- men."| Under the reign of Arcadius, says Zozimus,§ a swarm of calumniators spread themselves on every side, and infested the court. Upon a persons decease, it icas immediately supposed he had left no children ;\\ and, in consequence of this, his property was given away by a rescript. For as the prince was surprisiwjly stupid, and the empress excessively enter- prising, she was a slave to the insatiable avarice of her domes- * It was afterwards revoked. See the same relation. It whr ordi- narily a risjht of tlie peeraj^e that a prer criminally aooiisehed for tho execution of the laws, appoints an oflHcer in each court of judicature to prosecute all sorts of crimes in his name; hence the pro- fession of informers is a thing unknown to us, for if this public avenger were suspected to abuse his ofifice, he would soon be obliged to mention his author. By Plato's laws,l| those who neglect to inform or to assist * See the 2n(l law, § 24 ff. de Orig. Jur. t ''Qiiod pater jiuellaj abcystt, locum iiijurise ease ratus." — Liviua, dec. I. lit). III. X Ami in a great many other cities. § See in Tacitus the rewards given to those iul'oruiers. y Lib. IX. T 88 THE SPIRIT OF LAWS. [Book VI the magistrates are liable to punishment. This would not be so proper in our dajs. The public prusecntor watcliea for the saf'et}' of the citizens ; he proceeds in his oflBcte while they enjoy their quiet and ease. 9. — Of the Severity of Punishments in different Governments. The severit}' of punishments is fitter for despotic govetn- ments, whose princiide 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 theiefore a softer way of correcting, and do not require so much force and seveiity. In those states a good legislator is less bent upon punish- ing than preventing crimes; be is more attentive to inspire good morals than to inflict penalties. It is a constant remark of the Chinese authors,* that the more the penal laws were increased in their empire, the nearer they drew towarfls 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 diead of death than regret for the loss of life ; consequently their punishments ought to be more severe. In modeiate 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 inclin- able 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. * I shall show hereafter that China is, in this respect, in the same case as a republic or a monarchy. Chap. 11] PROBITY OF THE ROMANS. 89 What we "-eo ]iriictised \>y individuals is equally observ- alile in regard to natitms. In ccmntries inhaliited by savages who lead a very hard life, and in despotic govern- ments, where there is only one person on "vvhom lot tune lavishes her favouis, while the miserable subjects lie exposed to her insnlts, people are equally cruel. Lenity reigns in moderate governments. When iu 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 veiy extraordinary that one of the chief penalties at Sparta was to deprive a person of the power of lending oxit 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 ^uch 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.* But in criminal! cases it is quite the reverse ; the nobleman Icses 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 Eome had some share of probit3\ Such was the force of this probity that the legislator had frequently no further occasion than to point out the rigijt road, and they were sure 1o follow it ; one would imagine that instead of precepts it was sufficient to give them counsels. * 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. — Sonime liunde, book II. p. VJS, edit. Got. of the yiar 1512. t See tl\e Council of I'eter Dcfontaines, chap, xiii., especially th nder its injunctions more perfect. " Diligentius banctum,' says Livy, ibid. t " Lex Poreia pro tergo civium lata." It was made in the 454tb year of the foundation of Rome. J " Nihil ultra quam improbe factum adjecet." — Liv. Chav. 12] POM'ER OF PUNISHMENTS. 01 not diminish. The reason is veiy natural ; a Boldit-r, acciistomed to venture his life, despises, or affects to de.spi.se, the danger of losing it. lie is habituated to the fear of shame ; it would have been therefore much better to have continued a punishnu'nt* 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 ciiuse of all human corruptions, we shall find that tliey proceed from the impunity of criminals, and not from the moderation of punishments. let us follow nature, who hns given shame to man fnr his scourge ; and let the heaviest part of the punishment be the infamy attending it. But if tliere 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 tj^) this object, and shtit to its inconveniences. When the abuse is redressed, you see only the severity of the legis- lator; yet there lemains an evil in the state that has sprung from this severity ; the minds of the people are corrupted, and become habituated to despotism. Lysanderj 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 preci^nee, and of having resolved in full assemlily to cut off the hands of those whom they should chance to make pristuiers. The Athenians were therefore all massacrtd, except Adymantes, who had opposed this decree. Lysander re- pioached Phylocles, before he was put to death, with * They slit hiu nose or cut off his ears. f Xeuuph. Hist. lib. Ill 92 THE SPIRIT OF LAWS. [Book VI. having depraved the people's minds, and given lessons of cruelty to all Greece. The Argives, says Plntaich,* 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 thcuglit. 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,J because disobedience to so gi-eat an emperor as that of Japan is reckoned an enormous crime. The question is not so much to correct the delinqutnt as to vindicate the authority of the prince. These notions are deiived from servittxde, and are owing especially to this, that as the emperor is universal pi'oprietur, almost all crimes are directly against his interests. They punish with death lies spoken before the magis- trate ;§ a proceeding contrary' to natural defence. Even things which have not the appearance of a crime are seveiely 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 cruelt}', nijtwithstanding the severity of their laws. But are men who have a natural contempt for death, and who rip open their bellies for the least * Morals of those who are intrusted with the direction of the state affairs. t Montesquieu appears to have followed Amyot, who was mistaken here. Plutarcli says that the Athenians carried the victims of ex- piation around the assembly. It was done as an act of purification. — Cre'cier. % See Kempfer. § Collection of Voyages that contributed to the establishment of the East India Company, tom. iii. p. 428. Chap. 13.] LAWS OF JAPAN. 93 fancy — are such men, I say, mended or deten-ed, or rather are they not hardened, by the continual piospect of punishments? The relations of travellers infoim us, witli re>])ect to the education of the JapaJiese, that childieti must be treated tliere 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 miglit 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 luaxims of philosophy, morality, and religion, adapted to those chaiacters ; 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 punish- ments, would no longer be restrained by tliose of a milder nature, he would have conducted himself* 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 e.xtend 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 insuflSciency. They wanted to e -tablish a good polity, and they have shown greater marks of their weakness. * Let this bo observed as a maxim in pmcticc, with regard to caae« where the minds of people have been depraved by too great a sove'ity of punishmeats. 94 THE SPIRIT OP LAWS. [Book VI. We have f>nly to read the relation of the intTview between the I'-mperor and the Deyro at Meaco.* The number of those who were suffocated or murdered in that City by ruffians is incredible ; yo'mg 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 parsed ; 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 resi^ect, but would not meddle with her. His nurse caubcd 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 ,t 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 ex- cessive severity of the laws hinders, therefore, their execu- tion : 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 :f was made to prevent the intriguing for places. Dio says § that the senate engaged the consuls to propose * Collection of Voyages that contributed to the establishment of the East India Company, torn. v. p. 2. + Ibid, torn v. p. 2. X The guilty were condemned to a fine ; they could not be admitted into the rank of senators, nor nominated to any public office. — Dio, book XXXVI. § Book XXXVI. Chap. 15.] BOM.\N LAWS. 95 it, by reason lliat C. Cornelius, the tribune, had rcsclved to cause more severe pimisliuu'nts to be established ajraiii.st this crime; to which the people seemed greatly inclined. The senate jightly jiidge<1 that immodeiate punishments would strike, indeed, a terror into people's mind-:, but must have also this effi-'ct, tliat there would bo nohody afterwards to accii.-^e 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 liomans on my side ; and 1 think that punishmenia are connected with the nature of governments whin I behold this great people changing in this respect tlieir civil laws, in "proportion as they altered their foim (;f government. Tlie regal laws, made for fugitives, slaves, and vagabonds, were very severe. The spirit of a republic would have re- quired 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,* in relation to the punishment of Metius Suffetius, dictator of Alba, who was condemned by Tullius llostilius to be fastened to two chariots drawn by horses, and torn asunder, that this was the first and last punish- ment in which the remembrance of humanity seemed to have been lost. He is mistaken ; the Twelve Tables are full of very cruel laws.f 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.} * Lib. L t We find there the punishment of fire, and generally capital punisli nienta, theft panished with death, &c. J Sylla, animated with the same spirit as tlie decemvirs, fnllowtj their example in augmenting the penal lawa against batirical writers. 96 THE SPIRIT OF LAWS. [Book VI. 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 * of the Eomans, 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 re- public. Sylla, who confounded tj'rannj', anarchy, and liberty, made the Cornelian laws. He seemed to have contrived I'egulations merely with a view to create new crimes. Thus distinguishing an infinite number of actions by the name of murder, he f(jund 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 Sylla's laws contained only the interdiction of fire and water. To this Caesar added the confiscation of goods,t because the rich, by preserving their estates in exile, became bolder in the perpetration of crimes. The emperors, h iving established a military goveinment, 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 diew nearer a little to monarchy, and punishments were divided into three classes 4 those which related to the principal persons in the state,§ which were very mild : those which were inflicted on persons of an inferior rank, II and were more severe; and, in fine, such • Book I. t " Poenas facinorum auxit, cum locupletes eo faoilius scelcre se obli- garent, quod iiitegris patrimoniis exulareiit." — Snct. in Jul. Csesare. X See the 3rd law, § legis ad leg. Cornel, de Sicariis, and a vast number of others in the Digest and in the Codex. § Subliiaiores. 1| Medios. Chap. 16.] PUNISHMENTS AND CRIMES. 07 as concerned only persons of the lowest condition,* whicli were the most rigorous. Maximinns, that tierc and stupid (rince, increased tlu rio;onr of the military goveriuacnt which he onu,ht to havii softened. The senate were infornud, says Capitolinus.t that some had been crucified, o'hers exposed to wild hiasts, or sewn up in the skins of blasts latelv killid, witliuut any manner of regard to th'ir dignity. It soeined ns if lie wanted to exercise the military discipline, on the model (tf which he pretended to regulate the civil adminisf ration. In ' The Consideration o ■ the Rise and Declension of tiro Roman Grandeur,'| we find in what manner Con-t:in!iiie changed the militMrv despotism into a mili'ary and ci^il government, and drew nearer to monarcliy. There we may trace the different revolutions of this s'ate, and see how they fell from rigour to indolence, and from indolence to impunity. 16. — 0/ the j list 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 raiher than a smaller, and that which is moie peinicious to society rather than that which is less. " An impostor, § who called himself Constantine Ducas, raised a great insumction at Constnntinople. lit; was taken and condtinned to be whipped ; but upon inf rniing against several ])trsons of distinction, he was sentenced to be buined as a calumniator." It is very extraordinary that they should thus pioportion the jiunishinents between the crime of high tna.-on and that of caluniiiy. 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 a-ked what crime the man had committed. He was answered, Plcdsc your ntajesty, he has written a libel aijainst your ministers The foul ! said the * Infimoa. Leg. ?,, § le^is ad log. Cornel, d^ Sicariit. t Jul. Cap.. Maximini duo. J Cliap. xvii. § Hist, of Nict;phorus, patriarch of Coustautiiuiple. VOL. I. H 98 THE SPIRIT OF LAWS. [Book VI. king, why did Tie not write against me f 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 bnrned. A stag, one day, having taken hold of him by the girdle with his hern, one of his retinue drew his sword, cut the girdle, and saved him ; upon which he ordered that person's head to be cut oft" for having," t^aid he, " drawn his sword against his sovereign."* Who could imagine that the same prince could jever have passed two such different judgments ? It is a great abuse amongst us to condemn to the same punisliment 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 punish- ment. In China, those who add murder to robbery are cut in pieces :f but not so the others ; to this diiference it is owing that though they rob in that country they never murder. In Eussia, where the punishment of robbery and mxirder is the same, they always murder.J The dead, say they, tell no tales. Where there is no difference in the penal t3^ there shraild be some in the expectation of pardon. Jn England they never murder on the highway, because robbers have some liopes of transportation, which is not the case in respect to those that commit murder. Letters of grace are of excellent use in moderate govern- ments. This power which the prince has of pardoning, exercised with prudence, is capable of producing admirable effects. The princij^le of despotic government, which neither grants nor receives any pardon, deprives it of these advantages. 11 .—Of the Back. ^ The wickedness of mankind makes it necessary for the law to suppose them better than they really are. Hence * In Niccphorus's history. t I*u Haldc, torn. i. p. 6. X Present State of Russia, by Perry . CirAP. 18.] THE KINDS OF PENALTIES. 99 the deposition of two witnesses is .sufficient in the p'lnish- ment of all crimes. The law believes them, as if they spoke by the month of truth. Thus we jucl<^o that every child conceived in wedlock is legitimate; tlie law having a CO fidence in the mother, as if she were chastity itself. But the use of the rack against criminals cannot l>o defended on a like plea of necessity. We have before us the example of a nation blessed with an excellent civil government,* where without any incon- venience the practice of racking ciiminals is rejected. It is not, therefore, in its own nature nece-sary.j So many men of learning and geniu- have written against the custom of tor:uring criminals, that after them 1 dare not presume to meddle with the subject. I was going to flay 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 pecu- niary punishments. Those free and warlike people were of opinion that their blood ought not to be sj^illed but with sword in hand. On the contrary, these punishments are rejected by the Japanese,| under pretenco that the rich might elude them. But are not the rich afraid of beinj; stripped of their property ? And might ncjt 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 • The Enp;li9h. t The citizens of Athens could not ho put tti the rack (Lysias, Orat. in Agorat.) uuk-33 it was for hi(;h trea-on. The torture w.isuscil within thirty days after condemnation. (Cuiius Fortunatus, Rhetor. Schol. lib. II.) There was no preparatory torturi!. In re^ijard to the IJonians, the 3rd and 4th laws, ail Ivg. Juliam Mnji'sl.. show timt l)irth, dignity, uiiil tlie military profession exempted pe(>plf from tlu; rack, t xcept in cases of high tnasou. See the prudent restrictions of this practice made l>y the laws of the Visigoths^ J See Kempfcr. JI 2 100 THE SPIRIT OF LAWS. [UooK VI. iieither always pecuniary, nor always corporal punish- tueuts. 19. — Of the Law of Retaliation. The use of the law of retaliation * is very frequent in despotic countiies, where they are fond of simple laws. Moderate governments admit, of it sometimes ; but with this difference, that the furmer 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 piaintiif could not be satisfied in any other manner.f Secondly, after condemnation they might pay damages and in tenst,! and then the corporal was changed into a pecuniary punishment.f 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 || — 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 estalilished, and the laws themselves have improved. 'J'his 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 ^ 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. * It is establislied in the Koran. See the chapter of the Cow. t " Si membrum rupit, nicum eo pacit, talio esto." Aulus Gellius, lib. XX. cap. i. I Ibid. § See also the law of the Visigoths, book VI. tit. iv. §§ 3 and 5. II Sl'C Garcilaso, History of the Civil Wars of tiie Spaniards. % " Instead of punishing them," says Plato, " they ought to be com- mended for not having followed theix fathers' example." — B wk IX. of Laws. Chap. 21.1 CLEMENCY IN A PRINCE. 101 21. — Of the Cleiaeiicy of tlie Prince. Clemency is the characteristic of monarchs. In repuhlics, whose principle is virtue, it is not so necessary. Id despotic governments, where fear pn-dominates, it is less customary, because the great men are to be restrained by examples of severity. It is mtire necessary in monarchies, where they are govemtd by honour, which frequently requires what the very law forbids. Disgrace is here equivalent to cha-tisement ; and even the forms of justice are pl)ni^shments. 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 plea>ures, that rigour in respect to them is needless. It can tend only to divest the subject of the affection he has for the peison of bis prince, and of the respect he ought to have for public posts and emplnyraents. 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 monarch^^ 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 {iis))laying it; which in this part of the world is seldom wanting. Some branih, perhaps, of their authority, but never hardly the whole, will be disputed ; and if they some- times fight for their crown, they do not fight for their lif.^. But some may ask when it is proper to puuish, and when to pardon. This is a point more easily felt that prescribed. When there is danger in the exercise ot clemency, it is visible; nothing so easy as to distiuguisli it from that imbecility which exposes princes to conteiiii>t and to the very incapacity of puui.shiug. The Emperor Maurice * made a resolution never to spill ♦ Evagr. Hijit. lv'2 THE SPIIUT OF LAWS. [Book VII. tlie blood of his subjects. Anastasius * ]>unished 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 intrusted with the sword. 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 cf>nveniences acquired by the labour of others. In order to have this equal distribution of riches, the biw 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,! luxury might have been exactly * Frag, of Suidas, in ConBtantine Porpliyrogenitus. t The first census was the hereditary share in land, and Plato CuAP. 1.] OF LUXURY. 103 calculated. There were four sorts of censuses or rates of fst.ites. The first was exactly the term beyond poverty, the second was double, the tliird 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 fouith 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 i)ro2iortion to the inequality of fortunes among the subjects, and to the inequality of wealth in diffeient states. In Poland, for example, there is an extreme inecjuality of fortunes, l)Ut the poverty of the whole hinders them from having so much luxury as in a more opulent governniont. Luxuiy is also in proportion to the populou.^n. ss of the towns, and especially of the capital ; so that it is in a compound proportion to the riches of the state, to the in- equality of private fortunes, and to the number of people settled in particular places. In proportion to the populousness of towns, the inhabi- tants are filled with notions of vanity, and actuated by an ambition of distinguishing themselves by trifles.* If they are very numerous, and mo>t 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. I'ut by < iidi avouring thus at distinction, every one becomes equal, and distinction ceases ; as all are desirous of respect, no- bo y is regarded. llence 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 would not allow them to have, in other effects, above a triple of tlio lureditary share. See his Laws, book V. * "In large ami populous cities," says the autiior of the Fable of the rJoes, torn. i. p. 133, "they wear clothes above tliiir rank, and, conse- quently, liave the pleasurt> of bring esteemed by a vast majority, not ns wluit they are, but what tiiey appear to be. — They have the satisfac- tion of imagining that they appt^r what they would be: wbicli, to wrak minds, is a pleasure almost aa Bub.stantial as they could reap from the very accomplishment of their wishes." 104 THE SPiKlT OF LAWS. [Book VII abilities, and tlien ihere is an end of all proportion be- tween our wants arid 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 capitd cities is an obstruc- tion to commerce, because the inliabitants 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, -"-I 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,* 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 Komans, none among the Lacedaemonians ; 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 divieicm of lands, insisted upon so eagerly in some republics, weie of the most salu- tai"y nature. They are dangerous, oul}' 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 * Chaps, iv. and v. Chap. 3.] SUMPTUAUY LAWS IN AN AllISTOCHACY. lOj 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 jmige by the price they set on things. A pitcher of Faleinian wiuef 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 leckoned too great. When the whole world, impelled by the force of corruption, is immersed in voluptuousness.J what must then become of virtue? 3. — Of sumptuary Laws in an Aristocracy. There is this inconvenience in an ill-constituted aris- tocracy, that the wealth centres in the nobility, and yet they are not allowed to spend ; for as luxury is contrary to the S[.iiit of moderation, it must be hanislied 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 mi (dera- tion. They are so habituated to parsimony, that none but courtesans can make them pait with their money. Such is the method made use of for the support of Indus' ry ; the most contemptible of women may bo profuse without danger, whilst those who contribute to tlioir extravagance consume their days in the greatest obscuiity. Admirable in this respect were the institutions of the principal republics of Greece. The rich employed their money in festivals, musical choruses, chariots, hor.^e-races, and chargeable offices. Wealth was, therefore, as burden- some there as poverty. • The city at the extremity of Itnly, nearest Sicily ; pillaged bj Deciu8 Jubellius with a barbarian legion. — Ed. t Fragment of the 36th boijk of Diodorus, quoted by Constantine Pcx» phyrogenitus, in his Extract of Virtues and Vices. J " Gum maximus omnium unpotus ud luxuriam esset." — Pjtd. 106 THE SPIRIT OF LAWS. [Book VII. 4. — Of sum'ptuary Laws in a Monarchy. Tactitus says,* 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, b^' 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 tlie citizens of their necessary support ; this must therefore be restored to them. Hence it is that fur 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 pioposal was made in the Eoman senate, which was composed of grave magistrates, learned civilians, and of men whose heads were filled with the notion of the primitive times, to reftirm the manners and luxury of women. It is curious to see in Dio.J with what art this prince eluded the importunate solicitations of those senators. This was because he was founding a monarc;hy, and dissolving a republic. Under Tiberius, the ^diles proposed in the senate the re-establishment of the ancient sumptuar}' laws.§ This piince, who did not want sense, opposed it. The state, said he, could not possibly subsist in the present situation oj * De moribus Germanorum. t Tho Suiont-s were the iiibabitants of that part of Europe now known as Sweden. — Ed. J Dio Casbiud, hh. LIV. § Tucit. Annal. lib. III. Chap 5.] SUMPTUARY LAWS IN A MONARCHY. 107 things. How could Rome, how could the provinces, lire / We were frugal, while we were only masters of one city ; note we consume the riches of the whole globe, and emplny both the masters and their slaves in our service. He plainly saw that .sumptuary laws would not suit the present furm of government. When a proposal was made imder the same emperor to the senate, to prohibit the governors from cairying their ■wives witli them into the provinces, bccnu.se of the disso- luteness and iriegularity 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.* They found there was a necessity for different manners. Luxiiry is therefore absohitely necessary in moiiarchiis; as it is also in despotic states. In the former, it is tlie ti.-e of liberty; in the latter, it is the abu.se of servitude. A slave appointed by his master to tyrannise over other wretches of the same condition, uncertain of enjoying to- morrow 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.j 5. — In what Cases sumptuary Laws are useful in a Monarchy. Whether it was from a republican spint, or from some other particular circumstance, sumptuary laws were made in Aragon, in the middle of the thirteenth centnr3\ James the First ordained that neither the king nor any of his tubjects should liave 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. J In our days, sumptuary' laws have been also enacted in Sweden; but with a ditlerent view from those of Aragon. * Mnlta duriliei veterum melius et hrtlus mutata. — Tacit Annal. lib. III. t " Opulentia paritura mox ejjestatcm." — Florus, lib. III. X Constitution of James I. in the year 1234, article tJ, in Mar a HUpanica, p. 1429. 108 THE SPIRIT OF LAWS. [Book Ml 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 Buch was the design of tho.-e of Aragon. Sumptuary laws may likewise be established with a design to promote a relative frugality : when a government, perceiving that foreign luerchandise, being at too high a price, will require such an . exportation of nome manu- factures as to deprive them of more advantages by the loss of the latter than they can receive from the possession of the iormer, they will furbid their being introduced. And this is the spirit of the laws which in our days have been passed in Sweden.* Such are the sumptuary laws proper foi' 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 ; f 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 sliould 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 main- lenance 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 * They have prohibited rich wines and other costly merchandise, t See book XX, chap, 20. Chap. 7.] LUXUHY mr CHINA. 109 consequently luxury. In France, likewise, thore is corn enough for the sTipport 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 bn apprehended from luxuiy. On the contrary, in China, the women are so prolific, and the human species multiplies so fast, that the lands, though never so much cultivated, are ecarcely sufficient to suppoit the inhabitants. Here, therefore, luxury is per- nicious, and the spirit of industry and economy is as requi^ite as in any republic* 'Ihey are obliged to jnirsue the necessary ar's and to shun those of 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 TangSjf held it as a maxim that if there was a man who did not work, or a woman that was idle, sovtehody must suffer cold or hunger in the empire. And on this principle he ordeied a vast number of the monasteries of Bonzes to be destroyed. The tliird emperor of the one-and-twentieth dynasty,} to whum 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,§ 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 «"?» 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 * Luxury has been here always prohibitefl. t In an onliiisincc quotetl by Father Du Halde, toni. ii. p. 497. X History of China, 21st Dynasty, in Father Du Halde's work, lorn, i § In a discourse cited by Father Du Halde, torn. iii. p. 418. ] 10 THE SrmiT OF LAWS. [Book VII. a long time, because they were wisel}'' 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 vigi- lance are necessary in China ; these prevailed in the com- mencement of the dynasties, and failed in the end. It was natural that emperors trained up in military toil, who had compas ed 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 success* irs; they shut thcMiselves up in a palace; their understanding was impaiied ; their life was shortened ; the family de- clined ; 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 ineontinency 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. Chap. 9.] STATE OF WOMEN. Ill 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 tlieni to court, there the}' assume a spirit of liberty, which is almost the only one tolerated in tliat place. Kach couitier 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, Inxury. They must be in a state of the most rigorous servitude. Every one follows the sj'irit of the government, and adopts in his own family the customs he sees elsewhere established. As the laws aie very severe and executed on the spot they are afraid lest the liberty of wonaen should expose them to danger. Their quarrels, indiscretions, repnanancies, jealousies, piques, and tliat 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 ot human nature, they allow themselves a multitude ot women ; and a thousand considerations oblige them to keep those women in close confinement. In republics women are free by the laws and restiained bj manners ; luxury is banished thence, and with it corruption and vice. In the cities of Greece, where they were not under tlie 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 oidy in a shape which we dare not mention, while maniage was considered as nothing more than simple friendship;* such was the virtue, simplicity, and chastity of women in those cities, that in this respec:t • "In respect to true love," saj's Plutarch, " the women have notliinq to say to it." In his Treatise of Love, p. GOO. He spoke in the btjJ« of Ilia time. See Xenophon in the dialogue intituled ' ilicro.' 112 THE SPIRIT OF LAWS. [Book VII. hardly any people were ever known to have had a bettei and wiser polity.* 10. — Of the domestic Tribunal among the Romans. The Eomans had no particular magistrates, like the Greeks, to inspect the conduct of women. The censers had not an eye over them, as over the rest of the lepuhlic. The institution of the domestic tribunal f supplied the magistracy established among the Gieeks.l The husband summoned the wife's lelatives, and tried her in their presence. § 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, arbitiary: for all that relates to manners, and to the ridcs of modest}', 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 to comprise all we owe to ouiselves. 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. Tliis was adulteiy; whether that in a republic so great a depravation of manners interested * At Athens there was a particular magistrate who inspected the conduct of women. t Romulus instituted this tribunal, as appears from Dionysius Halicarnass. book II. p. 96. J See in Livy.book XXXIX., tlieuse that was made of this tribunal at the time of the conspiracy of the Bacchanalians (they y:ave the nam>i of conspiracy against the republic to assemblies iu which the morals of women and young people were debauched). § It appears from Dionys. Halicam. lib. II., that Romulus's institution was tliat 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, and 13, distinguishes in respect to the different judgments of man- ners between those whicb he calls important, and those which are less 80 : mores, graviores, leviores. CuAP. 11.] ROMAN INSTITUTIONS. 113 the goveniinent ; or whether the wife's immorality might render the liusband suspected ; or whether, in fine, tlu-y were afraid lest even honest people might choose that this crime Jshould rather be concealed than punished. 11. — In what Manner the Institutions changed at Borne, together with the Government. As manners were supported by the domestic tribunal, they were also supported by the public accu.sation ; and hence it is that these two things fell together with the public manners, and ended with the republic* The establishing of perpetual questions, that is, the division of jurisdiction among the praetors, and the custom gradually introduced of the prastorsdeternuning all cau>es themselves,! weakened the use of the domestic tribunal. This appears by the surprise of historians, who look upfdi the decisions which 'i'iberius 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 man- ners 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 destioy 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.^ Sextns Quintus seemed to have been desirous of reviving the public accu.-ation.§ But there needs very little reflec- tion to see that thi- la.v would be more improper in such a monarchy as his than in any other. * Judicio de viorihug (quod antea quidem in antiquis legihus positum erat,nut to dealh. St* Lcti. VOL. 1. I 114 THE SPIRIT OF LAWS. [Book VH. 12. — Of the Guardianship of Women among the Romans. The Eoman laws subjected women to a perpetual guar- dianship, except they were under cover and subject to the authority of a husband.* This guardianship was given to the nearest of the male relatives ; and by a vulgar expression f it appears they were very much confined. This was proper for a republic, but not at all necessary in a monarchy, J That the women among the ancient Germans were like- wise under a perpetual tutelage appears from the different codes of the Laws of the Barbarians. § 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 wa^ this law, any more than those afterwards made on the same account, from being a mark of regu- larity 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 munarcliical state. 'I'he 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 lewd- ness ; but it was not their intention to establish a general reformation. Of this the positive facts related by his- torians are a much stronger proof than all these laws can * J^isi convenissent in manum viri. t Ne sis mihi patruus oro. I The Papiiin law ordained, under Augustus, that -women who had b irue three children shoiild be exempt from this tutelage. § This tut»jlage was by tlie Germans called Mundeburdium, Chap. 13.] PUNISHMENTS FOR WOMEN. 1 1 f) be of the contrary. We may see in Dio the conduct of Au^ As democracies are subverted when the people despoil the senate, the magistrates, the judges of their functions, so monarchies are corruptL-d 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 conjinimj themselves, like their ancestors, to a general inspection, the only one worthy of a sovereign, wanted to govern everything immediately by them8elces.'\ 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 arbiti arily upon others ; and when he is fonder of being guided by fancy tlian judgment. Again, it is destroj-ed when the prince, directing every- thing entirely to himself, calls to the state his capital, the capital to his cuui t, and the court to his own person. * Just" n attributes thn extinction of Atlienian virtue to the death of EpamiiK-ndiiH. Havin;.; no furiher emulatioR, tlicy spent their revenues in fei\iit^, friqucntins cmmm, qnnm cii»tra riKentes. Then it was that the Maceiioniana emerged from obscurity, 1. G. t Compilation of worka made under the Mings, related by Fa'liel Du Ualde. 124 THE SPIRIT OF LAWS. [Book VIII. It is destroyed, in fine, when the prince mistakes his au- thority, his situation and the love of his people, and when he is not fully pursTiaded that a monarch ought to think him- self 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 con- tradiction to honours, and when men are capable of being loaded at the very same time with infamy* and with dignities. It is corrupted when the pr'nce changes his justice into severity ; when he puts, like the Roman emperors, a Medusa's head on his breast ; f and when he assumes that menacing and terrible air which Commodus ordered to be given to his statiies.J Again, it is coi rupted when mean and abject souls grow vain of the pomp attending their servitude, and imagine that the motive which induces them to be entirel}' 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 ? * 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 ha^l really merited them disdained to ac- cept them. Frag, of Dio, book LVIII., taken from the Extraf't of Virtuoa anriuccs combined to dis- member her dominions, the several parts oi 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. 126 THE SPIRIT OF LAWS. [Book VIH. 10. — Of the Corruption of the Principle of despotic Government. -f^ 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, whi(-h do violence to the principles of each con- istitution ; this is ruined by its own intrinsic imperfections, when some accidental causes do not prevent the coriupting 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 w^ithout 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 every- thing to it. The inhabitants of Crete used a very singular method to keep the principal magistrates dependent on the laws, which was tliat of Insurrection. Part of the citizens rose up in arms,* 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.f When the ancients would cite a people that had the strongest aifection for their country, they were s\ire to mention the inhabitants of Crete : Our Country, said Plato, J * Aristot. Polit. book II. chap. 10. t They always united immediately against foreign enemies, whioli was called Syncretism. — Plut. Mor. p. 88. I Ilepub. lib. IX Chap. 11] EFFECTS OF CORI UPTION. 127 a name so dear to the Cretans. They called it by a narao which si<;nifie8 the love of a mother f(;r her clnldren,* Now the love of our country sets everything ri<;ht. 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. Thegymnic exercises established among the Greeks had the same dependence on the goodness of the principle of government. It was the Lacedcemonians and Cretans, said Plato, t that opened those crlebrated academies which gave them so eminent a rank in the loorld. Modesty at first teas alarmed; but it yielded to the public utility. In Plato's time these institutions were admirable 4 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 debiiuch.§ Plutarch informs U8|| that the Romans in his time were of opinion that those gtmcs 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,l[ their fighting naked in the paiks, and their wrestling, infected the young people with a spirit of cowardice, inclined them to infam- ous passions, and made them mere dancers. But under Epaminondas the exercise of wrestling made the Thebans win the famous battle of Leuctra.** * Plutnrch's ]Mnials, treatise whether a man advanced in yearx ought to meddle with public affdin t liepub. lib. V. J The Gymiiicart was divided into two parts, dnnciruj nnd irro///;/;/. In Crete tliey had the armed dances of the Cureti'S ; at Sparfci tliey ha I tiiose of Castor and Pollux ; at Athens the armed dances of I'allns, which were extremely ])ri>pcr for those that were not yet of aire for military service. Wrestling is the image of war, said Plato (I^aws, book VII.). He commends antitjnity for having established only two dances, the pacitic and the Pyrrhic. See how the latter dance was applied to the military art, Plato, ibid. § Aut libidinoga; LadmcLS Lacedmmonis palxiiras.—'Hi&Ti. lib. IV, cp. 55. II Plntarcli's Morals, in the treatise entitled Quedions concerning th« affair* of (he Romang. % Ibid. ** Plutarch's INlorula, Table propositions, book II. 128 THE SPIEIT OF LAWS. [Book VIIl. There are very few laws which are not good, while the state retains its principles : here I may apply what Epicu- rus said of riches. It is not the liquor, but the vessel that i» 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 senatoi s and. knights ; Sylla to the senators only : Cotta to the senators, knights, and public treasurers; Ceesar excluded the latter; Antony made decuries of senators, knights, and centurions. Whenonte a republic is corrupted, there is no possibility of remedying any of the growing evils, but by removing the con uption and restoring its lost principles ; everj' 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 viitue than the senate, the treasuiers no moie than the knights, and these as little as the centurions. After the people of Rome had obtained the piivilege of sharing the magistracy with the patricians, it was natural to think that thtir flatterers would immediately become arbiters of the government. But no such thing ever happened. — It was observable that the very people who liad rendered the plebeians capable of public offices ever fixed their choice upon the patricians. Btcause they were virtuous, they were magnanimous ; and because they were fiee, 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. Chap. 13.] EFFECT OF AN OATH. 12D 13. — The Effect of an Oath among virtuous People. There is no nation, says Livy,* that has been longer uncorrupfed than the Komans ; no nation where modei ation 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 fur the observance of an oath than they would ever have performed for the thirst of glory or for the love of their conntiy. Wht-n Quintus Cincinnatus the consul wanted to raise an army iu the city against the ^](pii and the Volsci, the tribunes opposed him. Well, said he, let all those loho have taken an oath to the consul of the preceding year march under my banner.^ 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 jierson : the peo})le were mure religious than those who pretended to direct them ; they would not listen to the distinctions or eqiiivo- cations of the tribunes. \\ hen the same people thought of retiring to the Sacrert Mount, they felt some remorse from the oath they had taken to the consuls, that they would follow them into the field.J They entered then into a design of killing the consuls ; but dropped it when tliey were given to understand that their oath would Ktill 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 Cannae, the people were seized with such a panic that they would fain have re tiled to Sicily.^ But iScipio having prevailed upon them to swear they would not Ktir from Kome, the fear of violating this oath surpassed all other apprehensions. Kume was a ship held by two anchors, religion and morality, in the midbt of a furious tempest. * Book I. t Livy, book III. 20 J Ibid, book HI. § Tlie people bere referred to were several young oilicers, wlm, in despair, proposed to retire, but were realraiued bv iScipio.—CVe'f «'(-<■. V01-. I. ' K 130 THE SPIRIT OF LAWS. Book VIIL 14. — How the smallest Change of the Constitution is attended icith the Ruin of its Principles. Aiistotle mentions the city of Carthage as a well-iegu- lated republic. Polybius tells us* that there was this inconvenience at Carthage in the second Punic war, that the senate bad lost almost all its authority. We are in- formed 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 niagi^tiates, and the authority of the senate, both fell at the same time ; and all was owing to the hame cause. Everyone knows the wonderful effects of the censorship among the Eomans. There was a time when it grew burdensome; but still it was supported because there was more luxury than corruption. Claudius f weakened its authority, by which means the corrujition became greater than the luxury, and the censorship dwindled away of itself-l After various interruptions and resumptions, it was tntiiely laid aside, till it became altogether useless, that is, till the reigns of Augustus and Claudius. I shall not be able to make myself rightly understood till the 1 eader has penised the four following chapters. 15. — Sure Methods of preserving the three Principles. .4- 16. — Distinctive Properties of a Bepuhlic. 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 suV)ject ; he has interests of his own ; he soon begins to think that he may be happy and glurious, * About 8 hiinclred years after. f See Book XI. chap. xii. X See Dio, book XXX YII. Ciceio's life in Plutarch, Cicero to Atticus, Look IV. letters 10 and 15. Atcoriius on Cicero, de divinatione. CiiAr. 17.] DISTINCTIVE PKOrERTIES. I'M by oppressing his fellow-citizens ; and that lie may raise hiiuselt" to graiuleur on the ruins of his country. Ill an extensive repiiblic the piihlic gdod is sacrificed !(• a thousand private views; it is ."-ubordinato to exceptions. and depends on accidents. In a small one, the interest ol the public is more obvious, better undcstood, and niuic within the reach of every citizen ; abuses have le>s extent, and of course are less protected. The long duration of the republic of Sparta was ovvjiig to her having continued in the sunie extent of territory after all her wars. The sole aim of iSjiarta was liberty ; and the ^ole advantage of her liberty, glory. It was the spirit of the Greek republics to bo as contented with their teiritories as with their laws. Athens was first fired with ambition and gave it to LacedcKmon ; but it was an ambition rather of commanding a free people than of governing slaves; rather of diiecting than of breaking the union. All was lost upon the starting up nf nmnarchy — a government whose spirit is more turned to increase of dominion. Excepting particular circumstances,* it is difficult for any other than a republican government to subsist lunger in a single town. A prince of so petty a state would naturally endeavour to oppress his subjects, because his jiower would be gieat, while the means of enjoying it (u- uf causing it to be respected would be inconsiderable. The consequence is, he would trample upon his peoi>L'. On the other hand, such a prince might be easily crushed by a foreign or even a dome.•^tic force; the people might any instant unite and rise up against him. Kow as s^on 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 * As when a pttty sovereign supports liiiiisclf b( twccn two grcit pDWtrs by nieaii.s oi'tlieir muluiil jwiloii.-y ; but tlaii he has ouly a pro- caiious exibteuce. K 2 l.'^2 THE SPIRIT OF LAWS. [Book VIIl from the eye of the prince, with a private court of their awn, and secure, moreover, from sudden executions by the laws and manners of the country — such a nobility, 1 say, might throw off their allegiance, having nothing to fear from too slow and too distant a punitrhment. Thus Charlemagne had scarcely founded his empire when he was obliged to divide it; whether the governors of the ]>rovinces refused to obey ; or whether, in order to keep them more under subjection, there was a necessity of parcelling the en^pire ipto 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 throusihout that vast extent of conquered land — how was it possible, I say, for them to obey? Attila's empire was dissolved goon 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 ^, dissolution : l)ut how dreadful the remedy, which after the enlarge- ment of dominion opens a new scene of misery ! The rivers hasten to mingle their waters with the sea ; and monarchies lose themselves in despotic powef. 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 dsetroyed 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 arbi- tiary ; 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.* In Italy she maintained her ground, merely by exhaust- * See the History of the United Provinces, by M. Le Clerc. Chap. 21.j EMPIRE OP CHINA. 13 5 ing herself and by enriching that conntiy. F-r those who Would have been pleased to have got rid ot 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 desjiotic authority in tho person who governs. It is neces.sary 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 nece.s- saiitly 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 tliat it has a proper mixture of fear, honour, and virtue. Consequenily 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 ba.stinudoed.* Again, our merchants are far fiom giving us any such accounts of the virtue so much talked of by the missionaries; wo need only consult them in relation to the robberies aikl * " It is the cudgel that governs Cbinu," says Father Du HaiUe. i:U THE SPIRIT OF LAWS. [Book VIII. extortions of the mandarins.* I likewise appeal to another unexceptionable witness, the great Lord Anson. Besides, Father Perennin's letters concerning the emperor's proceedings against some of the princes of the blood f who had incurred his displeasnre by their conver- sion, plainly show ns a settled plan of tyranny, and bar- barities 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. 1 find therefore that after a few proper questions and answeis 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 exeicise 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.! 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.§ 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 * Among others, De Lange's relation. t Of the Family of Sourmaina, Edifying Letters, 18th collection. X See in Father Dn Halde how the missionaries availed themselves of the authoiity of Canhi to silence tlie mandarins, who constantly declared that by the laws of the coimtry no foreign worship could be established in the empire. § See Lettrea Persanes, cxs. Chai'. 21.] KMPIRE OF CHINA. 135 toisely with them, lest they multiply. He wouM bs rather reduced to Keru's wish, that mankind had all but one head. lu spite of tyranny, China by the force of its climate will be ever populous, and triumph over the tyranuic.il oppressor. China, like all other countries that live chiefly upon rice, is subject to frequent famines. When the people ai'e ready to starve, they disperse in order to seek for nour- ishment; in consequence of which, gang.s of rubbers an- formed on every side. Most of them are extirpated in their very infancy ; others swell, and are likewise sup- pressed. And yet in so great a number of sueh distant pi'ovinces, some band or other may happen to meet with success. In tiiat case they maintain their ground, strengthen their party, form themselves into a militaiy 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, 'i'he reason why the redress of abuses in other countries is attended with such difficulty is, because their eflects 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 bo not just he will be stripped both of empire and life. As China grows every day more populous, notwith- standing the exposing of children,* the inhabitants are incessantly employed in tilling the lauds for their sub- sistence. This requires a very extraordinary attention in the government. It is their perpetual concern that evei"y 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 goveniment, * See the order of Tsongtou for tilling the land, in the Edifying l^etters, 21st collection. 136 THE SPIRIT OF LAWS. [Book IX. Such has been the origin of those regulations which liave been so greatly extulled. They wanted to make the laws reign in conjunction with despotic power; but what- ever is joined to the latter loses all its force. In vain did this arbitrary' sway, labouring under its own incon- veniences, 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. BOOK IX. OF LAWS IN THE RELATION THEY BEAR TO A DEFEN- SIVE FORCE. 1. — In what Manner Bepiiblics 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 imper- fection. To this twofold inconvenience democracies and aristocra- cies 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 advan- tages 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 Chap. 1.] DEFENSIVE TROVISIONS OF A REPUBLIC. 137 assemblage of societies, ihtt constitiite a new one, eapiible of increaning by means of fuither assuciatioiis, till they arrive at such a degree of power as to bo 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 Komans attacked the whole globe, and bv these alone the whole globe withstood them ; for when b'ome had arrived at her highest ])itch of grandeur, it was the associations beyond the Danube and the Khine — a^^sociations formed by the tern a- of her arms — that enabled the barbarians to resist her. Hence it proceeds that Holland,* Germany, and the Swiss cantons are considered in Europe as perpetual re- publicji. The associations of cities were formerly more necessary than in our times. A waak, 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.f 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 incon- veniences. If a single member should attempt to usurp the supreme power, he could not be supposed to have an equal authoiity 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 f(jrces independent of those which he had usurped, and over- power him before he coiild be settled in his usurpation. Should a popular in>urrecti(jn 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 * It is composeil of al)Out fifty different rcpuhlios, nil different from one aniith' r. — Stnte of the UniUy it, and weakened it in their turn ; and Muscovy was as little known in Europe as Crim Tartary. 10. — Of the Weakness of ncvjhhoiirhKj Stales. ^C "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, beca\ise this is the happiest situation imaginable ; nothing being so convenient as for one prince to bo near another, who receives for him all the rebuiis 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. BOOK X. OF IjAws in the relation they bear to offensive FOECE. 1. — Of offensive Force. Offensive force is regulated by the law of nations, which is the political law of each country consideretl in its relation to every other. 2.-0/ War. I The life of governments is like that of man. The latter has a right to kill in case of natiiral defence : the former have a right to wage war for their own preservation. 144 THE SPIEIT OF LAWS. [Book X In the case of natural defence I have a right to kill, be- cause 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 pie^ervation 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 defc nee but in sudden < a>es, when immediate death would be the consequence of waiting for the as.>-istance of the law. But with states the right of natural defence carries along with it some- times 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, therefore, of war is derived from necessity and strict justice. If those who direct the conscience or coun- cils of princes do not abide by this maxim, the consequence is dreadful : when they proceed on arbitrary principh s 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 in- creased by the reputation of his justice. ] 3. — Of the Bight 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 peeple is directed by four sorts of laws : the law of nature, which makes eveiything tend to the preservation of the species ; the law of natural reason, which teaches us to do to others Chap. 3.] OP THE RIGHT OF CONQUEST. 145 ■what we would have done to our.-elves ; the hiw 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 goverament ; 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 ujion 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 stiict necessity, have fallen into very great errors. The}' have adopted tyrannical and arbitrary principles, by supposing the conquerors to be invested with 1 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 conic 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. * 8ou PuifeiKlorFs Universal History, t Diouys. Halicar. lib. VII. CuAP. 13.] CHARLES XII. 153 13.— Charles XII. This piince, 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 uucible to support. It was not a declining state he nndertook to subvert, bnt a rising empire. The Russians made use of the war he waged again.st tliem as of a military school. Every defeat brouglit tliem nearer to victory ; and, losing abroad, they learned to defend themselves at home. ( harles, in the deserts of Poland, imagined himself sove- reign of the whole vvurld : here he wandered, and with him in some measure wandered Sweden ; while his capital enemy acquired new strength against him, locked hiiu up, made settlements along the Baltic, destroyed or subdued Livonia. Sweden wius like a river whose waters are cut off at the fountain head in order to change its course. It was not the affair of I'nitowa that ruined Charles. Had he not been destroyed at that place, he would have been in another. The casualties of fortune are easily repaiied ; but who can be guarded against events that incessantly arise from the nature of things? But neither nature nor ibrtuno were ever so much against him as he himself. He was not directed by the present situation of things, but bv 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 s(ddier under that monarch. Alexander's project succeeded because it was pnidently 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 demon- stration the superiority of the Greeks in their manner of fighting and in their arms ; and it was well known that the I'ersiaus were too proud to be corrected. ♦ Montesquieu, Voltaire, and IJobcrtsnn, in his History of Araorica, wore the first historians to render justice to this extm<^>rdinary geiieruL — ticrvan. 154 THE SPIRIT OF LAWS. [Book X. 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 belter method of rendering her insensible to her sei-vitude 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 flatterj'- 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 my- self, 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 Lacedaimonians 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 tui"n, did everything to obtain it. Chai'. 14.] ALEXANDER. 155 Id the beginning of his enterprise — a time when the least check might have proved his destnicti(jn— lie trusted very little to fortune; Imt Avhen his n-j^utation was established by a series of prosperous events, he sometimes h.'d reco^lr^o to temerity. When befoie his dopaiture for Asia he marched against the Triballians and Illyrians, you find he waged war* against those people in the very mine manner as Caesar afterwards conducted that against the Gauls. Upon his return to Greece,! it was in some measure against his will that he took and destroyed Thebes. When he invested th;>t city, he wanted the inhabitants to come into terms of peace; but they hastened their own ruin. ^Vhen it was debated, whether he should attack the Persian fleet,| it is Parmenio who shows his presumption, Alexander his wisdom. His aim was, to draw tlie 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 piin- ciple attached to the Persians, who could not subsist without the commerce and navigation of that city, Alex- ander 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, ho suffered Darius to escape, and employed his time in securing and regulating his conquests: after the buttle of Arbela, he pursued him so close § as to leave him no place of refuge in his em})ire. Darius enters his towns, his p70vinces, to quit them the next moment; and Alexander marches with such rapidity that the empire of the world seems to bo rather the prize of an Olympian race than the fruit of a great victory. Jn this manner he carried on his cunque.-ts: let us new see how ho preserved them. * See Arrian, de expedit. Alexandri, lib. I. t Ibid. X Ibid. § Ibid. lib. HI. 156 THE SPIRIT OF LAWS. [Book X. He opposed those who would have had him treat the Greeks as masters* 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 nim 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 con- queror. Nothing consolidates a conquest more than the union formed between the two nations by marriages. 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 ;f the Visigoths forbade them in Spain, and afterwards allowed them.J By the Lombards they were not only allowed but encouraged.§ 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 ^n Persia a great number of Greek colonies. He built, therefore, a multitude of towns; arkd so strongly were all the parts of this new empire cemented, that after his decease, amidst the disturbances and con- fusion of the most frightful civil wars, when the Greeks * This was Aristotle's advice. Plutarch's Morals, of the fortune and virtue of Alexander. t See the Law of the Burgundians, tit. 12, art. 5. X See the Law of the Visigoths, book III. tit. I, § 1, which abrogates the ancient law, that had more regard, it says, to the difference of nations than to that of people's conditions. § See the Law of the Lombards, book II. tit. 7, §§ 1 and 2. Chap. 14.] ALEXANDER. 157 had reducctl thoni.selvos, as it were, to a state of annihila- tion, not a .single province of Persia revolted. To prevent Gieece and Miicedon from being t< o much exhausted, he sent a colony of .lews* to Alexandria; the manners of those people signified nothing to him, pro- vided 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 f 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 hap- pened) 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 mon-drehs having destroyed the temples of ihe Greeks, Babylonians, and Egyptians, Alexander rebuilt them : :f few nations submitted to his yoke to whose re- ligion 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 presei"ve ; and wherever he directed his victorious arras, 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 great- ness of his genius; secondly, by his frugality and private economy ; § thirdly, by his piofusion in matters of import- ance. He was close and le.served in his private expenses, but generous to the highest degree in those of a public nature. In regulating his hoiisehold, ho 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. * The kings of Syria, abandoning the plan l;iiil down by tlio founder of the empire, redolved to ol)lige tlic Jews to conform to the manners of the Greeks — a resolution that gave the mont terrible shock to their government. t See Arrian, de expedit. Alexandri, lib. Ht., and others. X Had. § Ibid 158 THE SPIRIT OF LAWS. [Book X. He committed two very bad actions in setting Persepolis on fire and slaying Clitus ; but lie rendered them famous by bis repentance. Hence it is that his crimes are for- gotten, while his regard for virtue was recorded : they were considered ratber 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 Cfesar. 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 agree- able to his original scheme of conquest. 15. — NeiD 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 con- quest; 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 conqueiing 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. Chap. 17.] CONQUESTS OF A DESPOT. 159 16. — Of Conquests made hy 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 ihe piince, ready to fall instantly upon any part of the empire that may chance to waver. This military corps ouj^ht to awe the rest, and to strike terror into tho-e who through necessity have been intrusted with awy authority in the empire. The emperor of China has always a largo 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 isgular forces. This particular corps keeps the dispersed t.'oops in awe. 17. — The same Subject continued. We have observed that the countries subdued by a des- potic monarch ought to be held b^' a vassal. Historians are very lavish of tlieir praists 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.* A proceeding of tliat 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 ho himself the governors. He will be obliged to strip his ancient patrinK»ny of troops, in order to secure his new dominions. The miseries of each nation will be common to both ; civil broils will spread them- selves 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 Hiudostan. * " Ut hobercnt iustrumeuta servitutis et reges." — Tucitiis, Life of Agricoln, 14. 160 THE SPIRIT OF LAWS. fBaoK XI 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 loord Liberty. There is no word that admits oi" more various significa- tions, and has made more varied impiessions 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.* A certain nation for a long time thought liberty con- sisted in the privilege of wearing a long beard.f Some have annexed this name to one form of government exclusiA^e 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. J Thus they have * " I have copied," says Cicero, " Scaevola'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." t The Russians could not bear that Czar Peter should make them cut it off. X The Cappadocians refused the condition of a republican etatO) wluoh was offered them hj the Romans. Chap. 4.] LIBERTY. 161 all applied the name of liberty to tlio govcrnmeut luuht suitable to their own customs and inclinations : and as in republics the people have not so constant .and so [irtsent a view of the causes of their misery, and as the magistrates seem to act only in conformity to tlie 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. — Hie same Subject continued. Democratic and aristocratic states are not in their own nature free. I'olitical 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. T>\it constant experience shows us that every man invested with power is apt to abuse it, and to carry his aiithority 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 bo a check to power. A government may be so constituted, as no man shall bo compelled to do things to which the law does not oblige * " Omnes legum servi sumus ut liberi esse poesimus " — Cioero, pro Cluentio, 53. VOL. I X 1G2 THE SPIEIT OF LAWS. [Book XI. him, nor forced to abstain from things which the law permits. 5. — Of the End or View of differeni Governments. Though all governments have the same general end, which is that of preservation, yet each has another par- ticular object. Increase of dominion was the object of Eome ; war, that of Sparta ; religion, that of the Jewish laws ; commerce, that of Marseilles ; public tranquillity, that of the laws of (Jhina :* navigation, that of the laws of Khodes ; 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 whule.f 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 ^ound, 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 execTitive 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 firht, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he * The natm-al end of a state that has no foreign enemies, or that thinks itself secured against them by barriers. t Tnconvt.aience of the Liberum veto. t Tlie greater part of the principles produced in this chapter by Montesquieu is deri?ed from Locke's Treatise upon Civil Govein- mtut, xii. — Eu. CiiAP. (;.] THE CONSTITUTION OF ENGLAND, ^C'^ makes poaco or war, seiuls or rfceiveseinliapsios, esfabli>lif'.s the public secuiity, and jirovides ajrainst invasions. By the thii-il, ho punishes criininalis, or determines tlie disputes that arise between indivichials. The hitter we shall eall tiie judiciary power, and the other simply the execntivt; power of the state. The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of hi« 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 nidnarch or senate sliould 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 exjjosed to arbitrary control; for the judge would be then the legislator. Were it joined to tho executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same bo'ly, whether of the nobles or of the people, to exercise tho^e three powers, that of enacting laws, that of executing the public resolutions, and of trying tho 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 thi-ee powers are united in the Sultan's person, the subjects groan under the most dreadful oppression. In the republics of Italy, where these tliree 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 sUitc inquisitors,* and the lion's mouth into which every informer may at all hours throw his written accusations, * At Vcuii-e. M 2 16\: THE SPIEIT OF LAWS. [Book XI. In wliat a situation must the poor subject be in those republics ! The same body of magistrates are possessed, HH 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 jiidiciaiy 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 externul pomp that indicates a despotic sway, yet the people feel the effects of it every moment. Hence it is that many of the piinces 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 hei'editary aristocracy of the Italian republics does not exactly answer to the despotic power of the Eastern princes. The number of magistrates sometimes moderate the power of the magis- tracy ; the whole body of the nobles do not always cojiciir in the same design ; and diiferent tribunals are erected, that temper each other. Thus at Venice the legislative power is in the council, the executive in the pregadi, and tlie judiciary in the quarantia. But the mischief is, that these ditferent 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 * 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 require-^. By this method the judicial power, so terrible to man- kind, not being annexed to any particular state or profes- sion, 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, * As at Athena Chap. G] THE CONSTITUTION OF ENGLAND. ICo in some measure, his judges, in concTirrenoe 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 chuice. The other two powers may be given rather to magis- trates or permanent bodies, because they are not exerci>eil ou 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 posses- sion of a right to imprison those subjects who can give Bf-curity for their good boliaviour, there is an end of libel ty; 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 legiv-.lature think itself in danger by some secret conspiracy against the state, or by a corre- spondence with a foreign enemy, it might authorise tlio 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 desjwtic. As in a country of liberty, every man who is suppf>sed a free agent ought to bo his own governor; the legislative power should reside in the whole body of the people. Biit 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 trans- act by themselves. 166 THE SPIRIT OF LAWS. [Book XI. 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 country- nien. The members, there ft)re, of the legislature should not be chosen from tlie general body of the nation ; but it is proper that in every considerable place a representative should be elected by the inhabitants.* The great advantage of representatives is, their capacity of discussing public affairs. For this the people collec- tively aie 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 geneial instruction from their constituents should wait to be directed on each paiticular aifair, 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 as- sembly ; and, on the most uigent and pressing occasions, the wheels of government might be stopped by the caprice /Crf a single person. When the deputies, as Mr. Sidney well observes, repre- sent a body of people, as in Holland, they ought to be accountable to their constituents ; but it is a difierent 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 Hnoh 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. * See Aristotle, Polit. III. cap. vii. Chap. C] THE CONSTITUTION OF EXGI.AND. 1G7 Neither ought the representative body to ho chosen f(jr the executivo part of government, for wliich it is not so fit ; but for the enacting of laws, or to see whether the laws in being are duly exocuted, a thing suited to tlicir abilities, and which none indeed but themselves can properly perform. In such a state there are always persons distinguished by their biith, I'iches, or honours : but were they to be confounded with the common people, and to have oul}' the weight of a single vote like the rest, the common liberty would be their slavery, and they would have no interest iti supporting it, as most of the popular resolutions would 1)6 against them. The shiire they huve, therefore, in the legislature ought to be proportioned to their other advan- tages 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 eucronch- ment of theirs. The legislative power is theiefore 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 jiowers 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 bea ct)nsiilerable 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 miglit be tempted to pursue its own particular interests, and forget those of the people, it is proper that where a singulai aiivantage may be gained by corrupting tlie nobility, as in the laws relating lo the supplies, the}' should have no other share in the legislation than the power of rejecting, and not that of resolving. By the power of resolriny I mean the right of ordaining by their own authority, or of amending what has been ordained by others. By the power of rejtciing I would be 1G8 THE SPIRIT OF LAWS. t^ooK Xl. understood to mean the right ofanniilUng a resolution taken by another; which was the power of the tribunes at Home. And th(>u<;h 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 tlian 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 hhare 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 woxxld 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, moieover, 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 Chap. 6.] THE CONSTITUTION Of fiNGLA-ND. 169 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 re- straining the encroachments of the legislative body, the latter would become despotic ; for as it might arrogate to itself what aiithority 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 Koman 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 sta}' 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 * and the Ephori f 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 * See Aristotle, Eepuh. II. cap. x. \ Ibid. fep. iz. 170 THE SPIRIT OF LAWS. [Book XL intrusted 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 them- selves 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 jepublic, though not a free government. But as the person intrusted 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 Amym(mes * to an account, even after their administration ;t and therefore the people could never obtain any satisfac- tion 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 clear-sighted 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, there- fore, of the legislative body, which we have just now observed to be a necessary tribunal on another occasion, is * These were magistrates chosen annually hy the people. See Stephen of Byzantium. t It was lawful to accuse the Roman magistrates after the expu-ation of their several offices. See in Dionys. Halicarn. lib. IX. the affair of Genutius the tribune. CiiAr. C] THE CONSTITUTION OF ENGLAND. 171 also a necessary tribunal in this ; it belongs to its supremo authoiity to modeiiite the law in favour of the law itself, by mitigatinj^ the sentence. It might also happen that a subject intrusted with the administration of public affairs may infringe the rights of the people, and bo guilty of critues which the ordinary magistrates either CMuld 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 cov;rt shall it bring its impeachment? Must it go and demean itself before the ordinary tribunals, which are its inferiois, and, being composed, moreover, of men who aie 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 abiise 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 b}' the power of rtijecting, otherwise it would soon be stripped of its prerogative. But should the legislative power usiu'p a share of the executive, the latter would be equally und(jne. If the prince were to have a part in the legislature by the power of resolving, liberty would be lost. Hut as it is necessary he should have a share in the legislature for the support of his own preiogative, 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 intrusted with the other, had the right of rejecting,,which was entirely lodged in the people. Here then is the fandamental constitution of the govern- 172 THE SPIRIT OF LAWS. [feooK XI. ment we are treating of. The legislative body being com- posed of two parts, they chock 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 move- ment 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 legisla- tive 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 stiange 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 indiiference whether it held it of itself or of another. The same may be said if it should come to a resolution of intrusting, 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 op- press, it is requisite that the armies with which it is intrusted should consist of the people, and have the same spirit as the people, as was the case at Eome 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 Chap. 6.] THE CONSTITUTION OF ENGLAND. 173 customaiy at Rome : or if there should bo a standing army, composed chiefly of the most despicable part of the nation, the legishitive power should liave 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 tiiey 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 alwa3's 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 })laces, defended by their natiiral situation, and not garrisoned with regular troops. Holland, for instance, is still safer than Venice ; she might drown or starve the re- volted troops ; for as they are not quartered in towns capable of furnishing them with necessary subsistence, this sub- sistence is of course precarious. In perusing the admirable treatise of Tacitus ' On the Manners of the Germans,'* we find it is from that nation the English have borrowed the idea of their political government. This beautiful system was invented fiist in the woods. As all human things have an end, the state we are speaking of will lose its liberty, will perish. Have not Eome, Sparta and Carthage perished ? It will perish when * De minoribus rehus prinripes consultant de majorihuit omnes ; itn tamen id ea qnoque quorum peneg plebem arbitrium est, apud principt* pertractentur. 17-i THK SPIEIT OF LAWS. [Book XL the legislative power shall be more corrupt than the executive. It is not my business to examine whether the English ac- tually enjoy this libei'ty or not. Sufficient it is for my purpose to observe that it is established by their laws ; and I inquire no furl her. 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 reasim 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 icith. 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 foxmded on a body of nobles, and much less on a legislative body com- posed of the representatives of the people. The iepubli< s Chap. 8.] ANCIENT FORMS OF GOVERNMENT. 175 of Greece and Italy were cities that had each thoir own form of governincnt, and convened their subjects within their walls. Before Eoiue 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 1 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 Koman empire were certainly a free people. Of this we msiy be convinced only by reading Tacitus ' On the Manners of the Germans.' The c mquerors .spread themselves over all the country ; living mostly in the fields, and veiy little in towns. AVlien 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 necessaiy that the nation should deliberate on public aftairs, 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 connuon 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 })rivilegfs of the nobility and clergy, and the prince's prerogative, that I really tliink 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 ! * Nevertheless, during the same cixieh tliere were kinga in Macedonia, Syria, Egypt, etc. — Crevier. 176 THE SPIRIT OF LAWS. [Book XI 9. — Aristotle's Manner of ThinJcing. Aristotle is greatly puzzled in treating of monarchy.* 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, snch 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. — Wliat other Politicians tliougJit. To temper monarchy, Arybas,t king of Epirus,| found no other remedy than a republic. The Molossi, not know- ing how to limit the same power, made two kings,§ by which means the state was weakened more than the pre- rogative ; 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. || Those who had been in- ventors 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. * Polit. book in. chap. xiv. t Notwithstanding the fact that Arybas sought to render hia monarchy more stable., the kings of Epirus retained their power until overthrown by Paulus -ffimilius. — D. X See Justin, book XVlI. § Arist. Polit. book V. chap viii. Montesquieu seems to have mis- construed Aristotle, since the Molossi never had but one king. — P. U Aristot. Polit. book III. chap. xiv. Chap. 11] KINGS OF THE HEROIC TIMES. 177 This was one of tlie five species of monarchy mentioned 1)V Aristotle ;* 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 modem monarchies. The three powers were there disbibuted in sucli a manner that the people were the legislature,! and the king had the executive together with the judiciary puwer ; 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 everywliere did, upon the very least caprice, subvert the regal authority. Amotig a free people possessed of the legislative power, and inclosed within walls, where everything tending towards oppression appiars still more odious, it is the masterpiece of legislation to know where to place propeily the judiciary power. But it could not be in worse hands th m in those of the person to whom the executive power ha I been already couiuiitted. 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 piince 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 banishfd. The Greeks had no nation of the proper dis- tribution of the three powers in the government of alaces of that celebrated tapital to visit the niin>f ; and thus the eye, after recreating itself with the view of floweiy meads, is pleased with the wild prospect of rocks and mountains. The patrician families were at all times posses^e(l 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 consti- tution, without weakening the government ; for it was very inditlerent as to what family were the magistrates, provided the magistracy preserveii its authority. An elective monarchy, like that of Eome, necessarily supposes a powerful aristocratic body to support it, without which it changes immediately into tyranny or iTito a popular sta'e. 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 Eome should fall from the regal hands into th' se of the people. But the people had no occasion to be afiaid 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 con- stitution its principles are lost, this is because it has been corrupted. The government of Eome, after the expulsion of the kiugg, ^hpuld naturally have been a democracy. The Chap. 11.] THE ROMAN REPUBLIC. 181 people hail already the legislative power in their hands it wa.s theit litianituons conBent that had ex])elled the Tarquins ; and if they had not continued eteaiiy to those priuciphs, the Tarcjiiins niiglit easily have been re-tored To pretend that tlieir design in expelling them was to render themselves slaves to a few families is qtiite absurd. The situation therefore of things required that h'cme should have formed a democracy, and j-et this did not happen. 'I'here w;is a necessity that tlie power of the principal families should be tempered, and that the laws shonld have a bias to democracy. 'J'he pros|^rity of states is fiequently greater in the insensible tiansition from one constitution to another than in either of those constitutions. Then it is that all the springs of government are upon the s* retch, that the citizens assert their claims, that fiiendships or enmitie« are ibrnied amongst the jarring parties, and that there is a noble emulation between those who defend the ancient and those who aie btrenuous in promoting the new constitution. 14. — Li ivhat Manner the Distribution of the three Powers began to change after the Expulsion of the Kings. There were four things that greatly piejudiced the liberty of Home. The patricians had engrossed to them- selves all public employments whatever; an exorbitant power was annexed to the consulate; the people were often insulted; and, in fine, they had scarcely any in- fluence at all left in the public suffrages. These four abuses were redres.sed by the people. 1st. It was regulated that the plebeians might a.spire 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 ; * prajtors were created, on whom the power was conferred of trying private causes; qmijstors | were nominated for detertuining those of a criminal nature ; aidiles were established for the civil administration ; * Livy, dec. 1, book VI. ^^Quaittores parricidii. — Pomponius, leg. 2 ff. de Orig. Jur. 182 THE SPIKIT OF LAWS. [Book XI. treasurers * were made for tlie management of tjie public money ; and, in tine, 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 tiansient ]X)lity of the difterent bodies of the state. The chief jtrivileges left them were, to preside in the great meetings f of the people, to assemble the seuate, and to command the aimies. .'hd. Tlie sacred laws appointed tribunes, who had a })(jwer 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 genei al assemblies. The people of Rome were divided in three different manners — by centm-ies, by curise, and by tribes ; and whenever they gave their votes, they were fonvened 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 fortimes than of persons. The whole people were distributed into a hundred and ninety-three cen- turies, J 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 curia5,§ the patricians had not the same advantages ; some, however, they had, for it was necessary to consult the augurs, who were under the direc- tion 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. • Phitiiioh, Life of Publicola. t Comitiis centuriatis, X St-e Livy, book I. ; Dionys. Halicarn. books IV. and VII. § Diouys. Halicarn. book IX. p. 598. CiiAi'. 15.] THE ROMAN RErUBLIC. 183 Now the people endeavoured constantly to have those meetings bycuriai which had been customary by centuries, and by tiibes, those tliey used to have before by curiaa ; by which means the direction of public aifaiis 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 afifair of Coriolanus,* thej' insisted upon assembling by t.ribes,t and not by centuries ; and when the new magistracies f of tribunes and aidiles were established in favour of the people, the latter obtained that they should meet by cuiiie in order to nominate them ; and after their power was ([uite settled, they gained § so far their point as to assemble hy tribes to proceed to this nomination. 15. — In what Manner Rome, in the flour isJiing State of thai Rejmhlic, suddenly lost its Liberty. In the heat of the contests between the patricians and the plebeians, the latter int^isted upon having fixed laws, to the end that the public judgments should no longer be the effect of capricious will or arbitrary power. I'he 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 thej' fo\ind themselves invested with the consular and the tribunition power. By one they had the privilege of assembiing the senate, by the other that of convening the people ; but they assembled neither senate nor people. Teu 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 * Dionys. Halitaru. hook VII. t Contrary to the ancient custom, as may bo seen Id Dionyi H^ilicarn. Uxik V. p. 320. t Dionvs. Halicarn. book V. pp. 410 ami 411. § Ibiii.'book IX. p. C50. 184 THE SPIRIT OF LAWS. [Book XI. of Tarquin. When Tarquin trampled on the liherty of that city, she was seized with indignation at the power he had u.surped ; when the di cemvirs exerci.'^ed every act uf oppression, she was astonished at the extraordinary power she had granted. V\ hat a strange system of tyranny — a tyranny cariied on hymen who had obtained the political and niilitiry p iwer, meiely from their knowledge in civil affairs, and who at tliat 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 tlie 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 p. ople resumed a liberty which had been committed to ridiculous tyrants. No people were so easily moved by public spectacles as tlie Romans. That of the impurpled 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 neces- sary to keep the people from seeing the Capitol. Caesar's bloody garment flung Rome again into slavery. 1(5, — Of the legislative Power in the Roman JRepuhlic. There were no rights to contest under the decemvirs: but upon the restoration of libert3% jealousies revived ; and so long as the patricians had any privileges left, they were sure to be stripped of them by tlie plebeians. The mischief would not hav© been so great had the plebeians been satisfied with this success ; but they also injured the patricians as citizens. When the people assembled by curisB or centuries, they were composed of senators, patricians, and plebeians; in their disputes the j.lebeians gained this point,* that they alone without * Dionys. Halicam. book XI. p. 725. Chap. 17.] THE ROMAN REPUBLIC. 185 patricians or senate should enaft the laws called Plebisoita; and the a.-semblies in wliich they weie luade had the name of comitin b}' tiibes. Thus there were cases in which the patrii iiiis ♦ had no share in the legislative power, but f wt'ie subject to the legi.-lation of another body of the state. This was the extravagance of liberty. The people, to es- tabli^ll a democracy, acted against the very principles of that g vernment. One would have imagined that so ex- orbitant a {X)Wer must have de8;ro3'td the aiithority of the senate. But Kome had admiialde iuhtitutions. Two of these were especiiiUy 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^ and created, as it weie, every five years the body of the people; they exercised the legislation on the very part that waa pc^sessed of the legislative power. Tiberius Gracchus, says Cicero, caused the frcedmen to he admitted into the tribes, not by the force of his eloquence, bnt by a tvord, by a gesture ; which had he not effected, the republic, ichose drooping head we are at present scarcely able to uphold, would not even exist. On the other hand, the senate had the power of reecuing, as it w-ere, the republic out of the hands of the people, by creating a dictator, befoie whom the sovereign bowed his head, and the most popular laws were silent.§ 17. — Of the executive Power in the same Bepublic. Jealous as the people were of their legislative power, * By the sacred laws, the plebeians had the power of making the plebiscitii by tlnmsclves, without admitting the patricians into their asscnilily. — Dionys. Hnliciirn. book VI. p. 410, und b 'ok VII. p. 430. t l{y the law enact d after the e.xpultiion of the decemvir.s. the pa- tricians were made subject to the ph'bisiita, though tliey iiad not a right of viiting there. Livy, Ixwik III. mid Dionys. Hulicarn. Ixxik XI. p. 72.5. This law was contirmed by thnt of Publius Philo the dictator, in the year of Home 410. Livy, lx)ok VIII. J III the year 312 of Rome the consuls [)erformed still the business of surveying the people and their estates, as appi'iirs by Dionys. Hali- rarn. book XI. § Such lis those by which it was allowed to appeal from the decisions of all the magistrates to the people. 186 THE SPIRIT OF LAWS. [Book Xt they had no great uneasiness about the exeeutive. 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 tlie generals. Rome, whose passion was to command, whose ambition was to conquer, whose commencement and progress were one continued usurpation, had constantly at^'airs of the greatest weight upon her hands ; her enemies were ever conspiring against her, or she against her eneujies. x\s she was obliged to behave on the one hand with heroic courage, and on the other with consummate pru- dence, it was requisite, of course, that the management of affairs should be committed to the senate. Thus the people disputed every branch of the legislati^^e 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* informs us, foreign nations imagined that Eome was an aristocracy. The senate dis- posed of the jniblic money, and farmed out the revenue ; they Avere arbiters of the afiairs 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 praetors, 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 afiairs relating to war or peace, they exercised * Book VI. CiiAi'. 18.] THE KOMAN REPUBLIC. 187 r.iiher their legislative than their executive power. They ^carcely did anything else but confirm the acts of the kings, and after their expulsion those of the consuls or senaie. fcjo far were they from being the arbiters of war, that we have instances of its having been often declared, notwith- standing the oj»poaition of the tribunes. But growing wanton in their prosperity, they increased their executive power. Thus * they created the military tribunes, the nomination of whom till then had belonged to the generals ; and some time before the first Punic wai\ they decreed tliat only their own body should have the rij^ht of declar- ing war. I 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. \Ve must see in what manner it was distributed ; beginning with their civil affairs. The Consuls had the judiciary power J after the expul- sion of the kings, as the piajtors were judges aftei- tlie consuls. Servius Tullius had divested himself of the power of determining civil causes, which was not re- sumed by the consuls, excejit in some § very rare cases, for that reason called extraordinari/.\\ They were sati>fied with naming the judges, and establishing the several tiibunals. By a disl.onr.^eof Appius Claudiub, in Uionysius Halicamassus,^ it appears that as early as the 25yth year of • In the year of Rome 444, Livy, dec. 1, book IX. As the war against Ptrscus appeared somewhat ilaiigcrous, it was ordained by a eeuatus-consultniii lliat tbi.s Itiw .-^lioidd be siisptnded, and the people agreed to it. Livy, dvc. .'i, book 11. t They extorted it t'mm the senate, savi* Freinsheniius, dec. 2, book YI. X There is no manner of doubt but the consuls had the power of trying civil causes before the creation of the prajtors. See Livy, dee. 1, buolv II. p. 19; Diouye. Halicarn. book X. p. 627, and the tame book, p. G4.5. § The tribunes frequently tried causes by themselves only, but nothing rendered them more odious. — Uionys. Halicarn. book XI. p. 701». II Judicia extraordinaria. See the Institutes, book IV. i Book VL p. 360. 188 THE SPIRIT OF LAWS. [Book XI, I?ome this was looked upon as a settled custom among the Romans ; and it is not tracing it very high to refer it to Servins Tulliiis. Every year the praetor made a list * 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 favonralde to liberty f was the praetor's fixing the judges with the consent | 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 ;§ for example, whether a sum of money had been paid or not, whether an act had been committed or not. But as to quest ons of law,|| as these required a certain capacity, the}' were always carried before the tribunal of the centiimvirs.*ir The kings reserved to themselves the judgment of crimi- nal 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 Tarqui- nian conspiracy to death. This was an exorbitant power. The consuls already invested with the military command extended the exercise of it even to civil atfairs ; and their procedures, being stripped of all forms of ju-^tice, were rather exeitions of violence than legnl judgment*!. 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 * Album Judicium. t " Our ancestors," says Cicero, pro Cluentio, " would not suffer any mail whom the parties had not agreed to to be jud^e ot tlie least pe- cuniary atfair, much les« of a citizen's reputation." % See in the fragments of the Servihan, Cornelian, and other laws, in what manner these laws appointed judges for the crimes they pro- Eosed to punish. They were often pitched upon by choice, sometimes y lot, or, in fine, by lot mixed together with choice. § Seneca, de Benefic. lib. II. cap. vii. in fine. II See Quintilian, lib. TV. p. 54, in fol. edit, of Paris, 1541. ^ Leg. 2 ff. de Orig. Jur. Magistrates who were called decemvin presided in court, the whole under a prsetor'a direction. Chak 18.] THE ROMAN REl'UBLIC. 189 in capital cases against a Roman citizen, without the consent of the people.* We see in the first conspiracy for tlie restoration of the Tarquins that the criminals were tried by Brutus the consul ; in the second the senate and comitia were as- semblfd to tiy them.f The laws distinguished by the name of sacred allowed the plebeians the privilege of choosing tribunes ; whence was formed a body whose pietensions 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 Ihw that appeals should be brought before their own body. A question was soon after started, wliether 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 ho was a patrician, none but the consuls had tde 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 peoplej 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 cf hearing criminal causes, except such as were puni.-hed with fines. To infliet a ca[)ital punishment a law was requisite ; but to condemn to a pecuniary mulct, there was occasion only for a plebiscitum. * " Quoniani de oapito civis Romani, injussu populi Bomnni, nonerat permissum cou.-ulibua jus dicere." — ISee Pomponius, Leg. 2 flf. de Orig. Jur. t Dionya. Halicam. book V. p. 322. j The comitia by centuries. Thus ]\Linliu8 Capitolinus was tried in these comitia. — Livy, dec. 1, book VI. p. DO. 190 THE SPIRIT OF LAWS. [Book XI. This regulation of the law cf the Twelve Tables was extremely prudent. It produced an admirable balance between tbe bndy 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 inteicourse of the citizx-ns 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 queestor 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 qucestor of parricide, and is mentioned in the law of the Twelve Tables.* The quaestor nominated the judge of the question, who drew lots for the judges, and regulated the tribunal in which he pre^ided.f Here it is proper to observe what share the senate had in the nomination of the quaestor, 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 quaestor; J at other times they ordained that the people should be convened by a tribune, with the view of proceeding to the nomination of a quaestor :§ and, in fine, the people frequently appointed a magistrate to make his report to the senate concerning a particular crime, and to * Pomponius, in the second Law in the Digest de Orig. Jur. t See a fragment of Ulpian, who gives anotlier of the Cornelian law : it is to be met with in the Collation of the Mosaic and Eoman Laws, tit- 1, de sicariis et homicidiis. X 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, book IX.. concerning the conspiracies at Capna. § This was the case in the prosecution for the murder of Posthuniius, in the year 340 of Rome. See Livy. CuAP. 18.] THE ROMAN RErUBLIC. 191 c?esire them to name a qneestor, as may Le seen in the judgment upon Lucius Scipiu* in Livy.| In the year of Kome G04, some of these commissions were rendered permanent.l All criminal causes were gradually divided into different parts ; to which they gave the name of perpetual questions. Different praitors were created, to each of whom some of those questions were assigned. They had a power conferred upon tliem for the term of a year, of trying such criminal causes as hore 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.§ But at Kome the praitors 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 ordei' ; a change so very considerable that the tribune boasted of having cut, by one rogation only, the sinews of the senatorian dignity. It is necessary to observe that the three powers may be very well distributed in regard to the liberty of the con- stitution, though not so well in respect to the liberty of the subject. At Eome 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;! but thia was not sufficient to counterbalance the weight of the people. It was necessary that they should parttike of the judiciary * This jiulKiiiont was passed in the year of ffome 567. t Book VIII. X Cicero, in Ilruto. § This is proved from Livy, book XLIII., who says that Hannibal rendered their magistracy animal. 11 The senatus consultuma were in force for the space of a ye«r, though not confirmed by the people. — Dionys. Ilalicnrn. book IX. jx 5^5, and book XI. p. 735. 192 THE SPIRIT OF LAWS. [Book XI. power : and accordingly they had a share when the judgos were chosen from among the senators. But when tho Gracchi deprived the senators of the judicial power,* tho senate were no longer able to withstand the people. T(» 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 con- stitution 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 consti- tution 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 propertx', formed the cavalry of the legions. But when their dignity increased, they lefused to serve any longer in that capacity, and another kind of cavalry was obliged to be raised : tiius Marius enlisted all sorts of people into his army, and soon after the republic was Io6t,| 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 (jffictrs 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 biculus and Dio. Mutius ScoBvola, says DiodoruSjij: wanted to revive the ancient manners, and the * In the year 630. t Capite censos plerosque. — Pallust, de hello Jugurth. X Fragment of this author, hook XXXVI., in the collection of Con- Btantine Porphyrogenitus, of Virtues and Vices. Dhak 1H.] the ncMAX UEi-UIJLlC. 1I'3 laudable custom of sober and frugal living. For his prede- cessors having entered into a contract with the farni' rs of the revenue, who at that titiie were possessed of the judiciary power at Rome, had infected the province with all manner of corrup- tion. But Scavola made an example of the publicans, and iinprisuned those bij whom others had been confined." Dio informs us* that Publius Kutilius, liis lienfonant, was equall}' obnoxious to llio equestrian order, and that upon liis return they accused him of having received si>me presents, and condemned him to a tine ; 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 protligate wretches. The Italians, says Diodorus again, f bought up whole droves of slaves in Sicily, to till their lands and to take care of their cattle ; but refused them a necessary sub- sistence. 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 pro consul nor praetor that could or would oppose this disorder, or that presumed to punish these slaves, because they belonged to the knights, who at Eome were possessed of the judiciary l)Ower.:J And yet this was one of the causes of the war of the slaves. But I shall add only one word more. A ])]ofe>sion 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 intrusted with the judiciary power at Kome. * Fragment of hid history, taken from the E.xtract of Virtues and Vices. + Frafjment of the 34th book in the Extract of Virtues and Vices. J " Pines quos Roni» tuni judicia crant, atque tx enucstri online so- lerent 8'irtito jiuhci a eligi in causa Pnetorum et Prucuusuhim, t consequence to a Roman ♦ They msule their edicts upon entering the provinces. b..AP. 19.] THE ROMAN^ PROVINCES. 195 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 proprjetor. The city never felt the tyranny which was exercised only on conquered nations. Thus, in the lioman 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 eqiiality. The regulatiou of Servius TuUiiis was observed, who had distribiited the people into six classes, according to their diiference 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 smalluess of the tax. There was also another thing worthy of admiration, which is, that as Servius Tnllins's divi.sion into classes was in souie measure the fundamental principle of the constitution, it thence followed that an equal Ifevying of the taxes was so connected with this fundamental prin- ciple that the one could not be abolished without the other. But while the city paid the taxes as she pleased, or paid /lone at all,* the provinces were plundered by the knights, who weie the farmers of the public revenue. "We have already made mention of their oppressive extortions, with which all history aboimds. All Asia, says Mithridates,t expects me as her deli- verer ; so great is the hatred ichich the rapaciousness of the proconsuls,'^ (he confiscations made by the ofiiccrs of the revenue, and the quirls and cavils of judicial proceediugs,i have ex- cited against the Romans. * After the conquest of Mnoedonia the Romans paJd no taxes. f Spcdli taken from Trogus I'ompcius, anil related by Justin, bonk XXXVIII. X Sec the orntions against Verrcs. § It is well iviiown what sort of a tribunal was that of Varus, whicli provoked the Ciermaus to revolt. 2 196 THE SPIRIT OF LAWS. [Book XII. Hence it was that ihe strength of the provinces did nut increase, but rather weakened, the strength of the republic. Hence it ^Aas that the provinces looked upon the loss of the liberty of Rome as the epoch of their own freedom. 20.— TJte End of this Book. yl. I should be glad to inquire into the distribution of the three powers, m all the moderate g(jvernments we are ac- quainted 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 thhik. BOOK XII. OF THE LAWS THAT FOEM POLITICAL LIBERTY, IN RELATION TO THE SUBJECT. 1. — Idea of this Booh. ^^^^ 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 aiises fi'om a certain distribution of the three powers ; but in the latter, we must consider it in another light. It con- sists 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 iioi in fact ; the subject will be free in fact, and not by right. '<" is the disposition only of the laws, and even f iLe Chap. 2.] Lir.KilTY OF THE SUBJECT. 1U7 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 de- pressed 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 th« 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 •nee. Even in places where liberty has been most sought after, it has not been always found. Aristotle* informs us that at Cumai the parents of the accuser might be witnesses. So imperfect was the law under the kings of Home, that Servius TuUins pronounced sentence against the children of Ancus Martins, who were charged with having assassinated the king, his father-in-law.l Under the first kings of France, Clotaiius made a law, J that nobody should be condemned without being heard ; which shows that a contrary custo>n had prevailed in some ]>articular case or among some barbarous people. It was ( 'harondas that first established penalties against false witnesses.§ W hen the subject has no fence to secure his innocence, he has none for liis liberty. * rolit. book II. t Tarqniiiius Priscns. See Dionys. Ualicarn. book IV. X As early as the year 560. § Aristot. Polit. book II. chap. xii. He gave his laws at Thurium in the 84th 01yiD*)iad. 198 THE SrilUT OF LAWS. [BuOK XII The knowledge already acquired in some countries, or that may be hereafter attained in others, concerning tho 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 imagin- able 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. — T](c same Sidiject continued. -7 Those laws which condemn a man to death on the de- position of a single witness are fatal to liberty. In reason there should be two, because a witness who affinus, and the accused who denies, make an equal balance, and a third must incline the scale. The Greeks* and Romansf required one voice more to condemn : but our French laws insist upon two. The Greeks pretend that their custom was established by the gods ; \ but this more justly may be said of ours.§ 4. — Tliat Liberty is favoured hij 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. * See Aristid. Orat. in Minervam. t Dionys. Halicarn. on the judgment of Coriolanus, book VII. X Minervse calculus. § Voltaire declares that it is England, and not France, that is deserving of this high praise ; for it is in the former that the juries must agree in order to condemn a man. — Ed. Chap. 4.] LIBERTY AND rUNISIlMENTR. 19.1 In the class of crimes that concern religion, I rank only those which att