4/22/2004
The Complete Works of M. de Montesquieu (1777) - Vol. 1 The Spirit of Laws: The ... Page 227 of 335
[∥ ] Flavius Vopiscus, in his life.
[* ] Sylla made a law of majesty, which is mentioned in Cicero’s orations, pro Cluentio, Art. 3. in Pisonem, Art. 21. 2d against Verres, Art. 5. Familiar Epistles, book 3, letter 11. Cæsar and Augustus inserted them in the Julian laws; others made additions to them.
[† ] Et quo quis distinctior accusator, eo magis honores assequebatur, ac veluti sacrosanctus erat. Tacit.
[‡ ] Deuteron. chap. xiii. v. 6.
[§ ] Collection of voyages that contributed to the establishment of the East-India Company, p. 423, book 5, part 2d.
[∥ ] Dionys. Halicarn. Roman Antiquities, book 8.
[* ] Tyranno occiso, quinque ejus proximus cognatione magistratus necato. Cic. de invent. lib. 2.
[¶ ] Book 8, p. 547.
[§ ] Of the civil wars, book 4.
[* ] Quod felix faustumque fit.
[† ] Sacris et epulis dent bunc diem: qui secus faxit inter proscriptos esto.
[§ ] It is not sufficient, in the courts of justice of that kingdom, that the evidence be of such a nature as to satisfy the judges; there must be a legal proof; and the law requires the deposition of two witnesses against the accused. No other proof will do. Now, if a person, who is presumed guilty of high-treason, should contrive to secrete the
witnesses, so as to render it impossible for him to be legally condemned, the
government then may bring a bill of attainder against him; that is, they may enact a particular law for that single fact. They proceed then in the same manner as in all other bills brought into parliament: it must pass the two houses, and have the king’s consent; otherwise it is not a bill, that is, a sentence of the legislature. The person accused may plead against the bill by counsel, and the members of the house may speak in defence of the bill.
[* ] Legem de singulari aliquo ne rogato, nisi sex millibus ita visum. Ex Andocide de mysteriis. This is what they called ostracism.
[† ] De privis hominibus latæ. Cicero de leg. lib. 3.
http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
4/22/2004
The Complete Works of M. de Montesquieu (1777) - Vol. 1 The Spirit of Laws: The ... Page 228 of 335
[‡ ] Scitum est juslum in omnes. Cicero, ibid.
[§ ] See Philostratus, book 1, Lives of the Sophists, life of Æschines. See likewise Plutarch and Phocius.
[* ] By the Remmian law.
[† ] Plutarch, in a treatise entitled, How a person may reap advantage from his enemies.
[* ] A great many sold their children to pay their debts. Plutarch, life of Solon.
[† ] Plutarch, life of Solon.
[‡ ] It appears, from history, that this custom was established among the Romans before the law of the twelve tables. Livy, 1 dec. book 2.
[§ ] Dionys. Halicarn. Rom. An. book 6.
[∥ ] Plutarch, life of Furius Camillus.
[¶ ] See what follows, in the 24th chapter of the book of laws, as relative to the use of money.
[* ] One hundred and twenty years after the law of the twelve tables, eo anno plebi Romanæ velut aliud initium libertatis factum est, quod necti desierunt. Livy, lib. 8.
[† ] Bona debitoris, non corpus obnoxium esset. Ibid.
[∥ ] The year of Rome 465.
[‡ ] That of Platius, who made an attempt upon the body of Veturius. Valerius Maximus, book 6, art. 9. These two events ought not to be confounded; they are neither the same persons nor the same times.
[§ ] See a fragment of Dronys. Halicarn. in the extract of virtues and vices; Livy’s epitome, book 2; and Freinshemius, book 2.
[* ] Plutarch’s Morals, Comparison of some Roman and Greek Histories, tom. 2, p. 487.
[† ] Leg. VI. Cod. Theod. de famosis libellis.
[* ] Nerva, says Tacitus, increased the ease of government.
[‡ ] State of Russia, p. 173. Paris edition, 1717.
http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
4/22/2004
The Complete Works of M. de Montesquieu (1777) - Vol. 1 The Spirit of Laws: The ... Page 229 of 335
[* ] The caliphs.
[† ] History of the Tartars, 3d part, p. 277, in the remarks.
[‡ ] See Francis Pirard.
[¶ ] As at present in Persia, according to sir John Chardin: this custom is very ancient.
They put Cavades, says Procopius, into the castle of oblivion. There is a law which forbids any one to speak of those who are shut up, or even to mention their name.
[§ ] The fifth law in the cod. ad leg. Jul. Maj.
[∥ ] In the 8th chapter of this book.
[* ] Frederic copied this law in the Constitutions of Naples, book 1.
[† ] In monarchies there is generally a law which forbids those who are invested with public employments to go out of the kingdom without the prince’s leave. This law ought to be established also in republics: but, in those that have particular institutions, the prohibition ought to be general, in order to prevent the introduction of foreign manners.
BOOK XIII. OF THE RELATION WHICH THE LEVYING OF TAXES AND
THE GREATNESS OF THE PUBLIC REVENUES HAVE TO LIBERTY.
CHAP. I.
Of the public Revenues.
THE public revenues are a portion that each subject gives of his property, in order to secure or enjoy the remainder.
To fix these revenues in a proper manner, regard should be had both to the necessities of the state and to those of the subject. The real wants of the people ought never to give way to the imaginary wants of the state.
Imaginary wants are those which flow from the passions and the weakness of the
governors, from the vain conceit of some extraordinary project, from the inordinate desire of glory, and from a certain impotence of mind incapable of withstanding the impulse of fancy. Often have ministers of a restless disposition imagined that the wants of their own mean and ignoble souls were those of the state.
Nothing requires more wisdom and prudence than the regulation of that portion of which the subject is deprived, and that which he is suffered to retain.
http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
4/22/2004
The Complete Works of M. de Montesquieu (1777) - Vol. 1 The Spirit of Laws: The ... Page 230 of 335
The public revenues should not be measured by the people’s abilities to give, but by what they ought to give; and, if they are measured by their abilities to give, it should be considered what they are able to give for a constancy.
CHAP. II.
That it is bad Reasoning to say that the Greatness of Taxes is good in
its own Nature.
THERE have been instances, in particular monarchies, of petty states, exempt from taxes, that have been as miserable as the circumjacent places which groaned under the weight of exactions. The chief reason of this is, that the petty state can hardly have any such thing as industry, arts, or manufactures, because of its being subject to a thousand restraints from the great state by which it is environed. The great state is blessed with industry, manufactures, and arts; and establishes laws by which those several advantages are procured. The petty state becomes, therefore, necessarily poor, let it pay never so few taxes.
And yet some have concluded, from the poverty of those petty states, that, in order to render the people industrious, they should be loaded with taxes. But it would be a juster inference, that they ought to pay no taxes at all. None live here but wretches who retire from the neighbouring parts to avoid working; wretches, who, disheartened by labour, make their whole felicity consist in idleness.
The effect of wealth in a country is to inspire every heart with ambition: that of poverty is to give birth to despair. The former is excited by labour; the latter is soothed by indolence.
Nature is just to all mankind, and repays them for their industry: she renders them industrious by annexing rewards in proportion to their labour. But, if an arbitrary prince should attempt to deprive people of nature’s bounty, they would fall into a disrelish of industry; and then indolence and inaction must be their only happiness.
CHAP. III.
Of Taxes in Countries where Part of the People are Villains or
Bondmen.
THE state of villainage is sometimes established after a conquest. In that case the http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
4/22/2004
The Complete Works of M. de Montesquieu (1777) - Vol. 1 The Spirit of Laws: The ... Page 231 of 335
bondman or villain that tills the land ought to have a kind of partnership with his master. Nothing but a communication of loss or profit can reconcile those who are doomed to labour to such as are blessed with a state of affluence.
CHAP. IV.
Of a Republic in the like Case.
WHEN a republic has reduced a nation to the drudgery of cultivating her lands, she ought never to suffer the free subject to have a power of increasing the tribute of the
*
bondman. This was not permitted at Sparta. Those brave people thought the Helotes would be more industrious in cultivating their lands, upon knowing that their servitude was not to increase: they imagined likewise that the masters would be better citizens, when they desired no more than what they were accustomed to enjoy.
CHAP. V.
Of a Monarchy in the like Case.
WHEN the nobles of a monarchical state cause the lands to be cultivated for their own use by a conquered people, they ought never to have a power of increasing the service
*
or tribute . Besides, it is right the prince should be satisfied with his own demesne and the military service. But, if he wants to raise taxes on the vassals of his nobility, the
†
lords of the several districts ought to be answerable for the tax , and be obliged to pay it for the vassals, by whom they may be afterwards reimbursed. If this rule be not followed, the lord and the collectors of the public taxes will harrass the poor vassal by turns, till he perishes with misery, or flies into the woods.
CHAP. VI.
Of a despotic Government in the like Case.
THE foregoing rule is still more indispensably necessary in a despotic government. The lord, who is every moment liable to be stripped of his lands and his vassals, is not so eager to preserve them.
When Peter I. thought proper to follow the custom of Germany, and to demand his http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
4/22/2004
The Complete Works of M. de Montesquieu (1777) - Vol. 1 The Spirit of Laws: The ... Page 232 of 335
taxes in money, he made a very prudent regulation, which is still followed in Russia.
The gentleman levies the tax on the peasant, and pays it to the Czar. If the number of peasants diminishes, he pays all the same; if it increases, he pays no more; so that it is his interest not to worry or oppress his vassals.
CHAP. VII.
Of Taxes in Countries where Villainage is not established.
WHEN the inhabitants of a state are all free subjects, and each man enjoys his property with as much right as the prince his sovereignty, taxes may then be laid either on persons, on lands, on merchandizes, on two of these, or on all three together.
In the taxing of persons, it would be an unjust proportion to conform exactly to that of
‡
property. At Athens the people were divided into four classes. Those who drew five
*
hundred measures of liquid or dry fruit from their estates paid a talent to the public; those who drew three hundred measures paid half a talent; those who had two hundred measures paid ten minæ; those of the fourth class paid nothing at all. The tax was fair, though it was not proportionable: if it did not follow the measure of peoples property, it followed that of their wants. It was judged that every man had an equal share of what was necessary for nature; that whatsoever was necessary for nature ought not to be taxed; that to this succeeded the useful, which ought to be taxed, but less than the superfluous; and that the largeness of the taxes on what was superfluous prevented superfluity.
In the taxing of lands, it is customary to make lifts or registers, in which the different classes of estates are ranged. But it is very difficult to know these differences, and still more so to find people that are not interested in mistaking them. Here therefore are two sorts of injustice, that of the man and that of the thing. But if in general the tax be not exorbitant, and the people continue to have plenty of necessaries, these particular acts of injustice will do no harm. On the contrary, if the people are permitted to enjoy only just what is necessary for subsistence, the least disproportion will be of the greatest consequence.
If some subjects do not pay enough, the mischief is not so great; their convenience and ease turn always to the public advantage: if some private people pay too much, their ruin redounds to the public detriment. If the government proportions its fortune to that of individuals, the ease and conveniency of the latter will soon make its fortune rise.
The whole depends upon a critical moment: shall the state begin with impoverishing the subjects to enrich itself, or had it better wait to be enriched by its subjects? Is it more adviseable for it to have the former or the latter advantage? Which shall it chuse; to http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
4/22/2004
The Complete Works of M. de Montesquieu (1777) - Vol. 1 The Spirit of Laws: The ... Page 233 of 335
begin, or to end, with opulence?
The duties felt least by the people are those on merchandize, because they are not demanded of them in form. They may be so prudently managed, that the people
themselves shall hardly know they pay them. For this purpose it is of the utmost consequence that the person who sells the merchandize should pay the duty. He is very sensible that he does not pay it for himself; and the consumer, who pays it in the main, confounds it with the price. Some authors have observed that Nero had abolished the
*
duty of the five and twentieth part arising from the sale of slaves ; and yet he had only ordained that it should be paid by the seller instead of the purchaser; this regulation, which left the impost intire, seemed nevertheless to suppress it.
There are two states in Europe where the imposts are very heavy upon liquors; in one the brewer alone pays the duty, in the other it is levied indiscriminately upon all the consumers; in the first no body feels the rigor of the impost, in the second it is looked upon as a grievance. In the former the subject is sensible only of the liberty he has of not paying, in the latter he feels only the necessity that compels him to pay.
Farther, the obliging the consumers to pay requires a perpetual rummaging and
searching into their houses. Now nothing is more contrary than this to liberty; and those who establish these sorts of duties have not surely been so happy as to hit upon the best method of collecting the revenue.
CHAP. VIII.
In what Manner the Deception is preserved.
IN order to make the purchaser confound the price of the commodity with the impost, there must be some proportion between the impost and the value of the commodity; for which reason there ought not to be an excessive duty upon merchandizes of little value.
There are countries in which the duty exceeds seventeen or eighteen times the value of the commodity. In this case the prince removes the disguise: his subjects plainly see they are dealt with in an unreasonable manner; which renders them most exquisitely sensible of their servile condition.
Besides, the prince, to be able to levy a duty so disproportioned to the value of the commodity, must be himself the vender, and the people must not have it in their power to purchase it elsewhere: a practice subject to a thousand inconveniencies.
Smuggling being in this case extremely lucrative, the natural and most reasonable penalty, namely, the confiscation of the merchandize, becomes incapable of putting a stop to it; especially as this very merchandize is intrinsically of an inconsiderable value.
http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
4/22/2004
The Complete Works of M. de Montesquieu (1777) - Vol. 1 The Spirit of Laws: The ... Page 234 of 335
Recourse must therefore be had to extravagant punishments, such as those inflicted for capital crimes. All proportion then of penalties is at an end. Persons, that cannot really be considered as vicious, are punished like the most infamous criminals; which, of all things in the world, is the most contrary to the spirit of a moderate government.
Again, in proportion as people are tempted to cheat the farmer of the revenues, the more the latter is enriched, and the former impoverished. To put a stop to smuggling, the farmer must be invested with extraordinary means of oppressing, and then the country is ruined.
CHAP. IX.
Of a bad kind of Impost.
WE shall here, by the way, take notice of an impost laid in particular countries on the different articles of civil contracts. As these are things subject to very nice disquisitions, a vast deal of knowledge is necessary to make any tolerable defence against the farmer of the revenues, who interprets, in that case, the regulations of the prince, and exercises an arbitrary power over people’s fortunes. Experience has demonstrated that a duty on the paper, on which the deeds are drawn, would be of far greater service.
CHAP. X.
That the Greatness of Taxes depends on the Nature of the
Government.
TAXES ought to be very light in despotic governments; otherwise who would be at the trouble of tilling the land? Besides, how is it possible to pay heavy duties in a government that makes no manner of return to the different contributions of the subject?
The exorbitant power of the prince, and the extreme depression of the people, require that there should not be even a possibility of the least mistake between them. The taxes ought to be so easy to collect, and so clearly settled, as to leave no opportunity for the collectors to increase or diminish them. A portion of the fruits of the earth, a capitation, a duty of so much per cent. on merchandizes, are the only taxes suitable to that government.
Merchants in despotic countries ought to have a personal safeguard, to which all due http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
4/22/2004
The Complete Works of M. de Montesquieu (1777) - Vol. 1 The Spirit of Laws: The ... Page 235 of 335
respect should be paid. Without this they would be too weak to dispute with the custom-house officers.
CHAP. XI.
Of Confiscations.
WITH respect to confiscations, there is one thing very particular, that, contrary to the general custom, they are more severe in Europe than in Asia. In Europe not only the merchandizes, but even sometimes the ships and carriages are confiscated; which is never practised in Asia. This is because in Europe the merchant can have recourse to magistrates, who are able to shelter him from oppression; in Asia the magistrates themselves would be the greatest oppressors. What remedy could a merchant have
against a bashaw, who was determined to confiscate his goods?
The prince therefore checks his own power, finding himself under a necessity of acting with some kind of lenity. In Turkey they raise only a single duty for the importation of goods, and afterwards the whole country is open to the merchant. Smuggling is not
*
attended with confiscation or increate of duty. In China they never look into the baggage of those who are not merchants. Defrauding the customs in the territory of the
†
Mogul is not punished with confiscation, but with doubling the duty. The Princes of Tartary, who reside in towns, impose scarce any duty at all on the goods that pass through their country. In Japan, it is true, to cheat the customs is a capital crime; but this is because they have particular reasons for prohibiting all communication with
‡
foreigners; hence the fraud is rather a contravention of the laws made for the security of the government than of those of commerce.
CHAP. XII.
Relation between the Weight of Taxes and Liberty.
IT is a general rule that taxes may be heavier in proportion to the liberty of the subject, and that there is a necessity for reducing them in proportion to the increase of slavery.
This has always been and always will be the case. It is a rule derived from nature that never varies. We find it in all parts, in England, in Holland, and in every state where liberty gradually declines, till we come to Turky. Swisserland seems to be an exception to this rule, because they pay no taxes; but the particular reason for that exemption is well known, and even confirms what I have advanced. In those barren mountains
provisions are so dear, and the country is so populous, that a Swiss pays four times http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
4/22/2004
The Complete Works of M. de Montesquieu (1777) - Vol. 1 The Spirit of Laws: The ... Page 236 of 335
more to nature, than a Turk does to the sultan.
A conquering people, such as were formerly the Athenians and the Romans, may rid themselves of all taxes, as they reign over vanquished nations. Then, indeed, they do not pay in proportion to their liberty, because in this respect they are no longer a people, but a monarch.
But the general rule still holds good. In moderate governments there is an indemnity for
*
the weight of the taxes, which is liberty. In despotic countries there is an equivalent for liberty, which is the lightness of the taxes.
‡
In some monarchies in Europe there are particular provinces, which, from the very nature of their civil government, are in a more flourishing condition than the rest. It is pretended that these provinces are not sufficiently taxed, because, through the goodness of their government, they are able to be taxed higher: hence the ministers seem constantly to aim at depriving them of this very government, from whence a diffusive blessing is derived, which redounds even to the prince’s advantage.
CHAP. XIII.
In what Government Taxes are capable of Increase.
TAXES may be increased in most republics, because the citizen, who thinks he is paying himself, chearfully submits to them, and moreover is generally able to bear their weight from the nature of the government.
In a monarchy taxes may be increased, because the moderation of the government is capable of procuring opulence: it is a recompence, as it were, granted to the prince for the respect he shews to the laws. In despotic governments they cannot be increased, because there can be no increase of the extremity of slavery.
CHAP. XIV.
That the Nature of the Taxes is relative to the Government.
A CAPITATION is more natural to slavery; a duty on merchandizes is more natural to liberty, by reason it has not so direct a relation to the person.
It is natural in a despotic government for the prince not to give money to his soldiers, or to those belonging to his court, but to distribute lands amongst them, and, of course, http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
4/22/2004
The Complete Works of M. de Montesquieu (1777) - Vol. 1 The Spirit of Laws: The ... Page 237 of 335
that there should be very few taxes. But, if the prince gives money, the most natural tax he can raise is a capitation, which can never be considerable. For, as it is impossible to make different classes of the contributors, because of the abuses that might arise from thence, considering the injustice and violence of the government, they are under an absolute necessity of regulating themselves by the rate of what even the poorest and most wretched are able to contribute.
The natural tax of moderate governments is the duty laid on merchandizes. As this is really paid by the consumer, though advanced by the merchant, it is a loan which the latter has already made to the former. Hence the merchant must be considered on the one side as the general debtor of the state, and on the other as the creditor of every individual. He advances to the state the duty which the consumer will some time or other refund; and he has paid for the consumer the duty which he has advanced for the merchandize. It is therefore obvious, that, in proportion to the moderation of the government, to the prevalence of the spirit of liberty, and to the security of private fortunes, a merchant has it in his power to advance money to the state, and to pay considerable duties for individuals. In England a merchant lends really to the
government fifty or sixty pounds sterling for every tun of wine he imports. Where is the merchant that would dare do any such thing in a country like Turky? And, were he so presumptuous, how could he do it with a crazy or shattered fortune?
CHAP. XV.
Abuse of Liberty.
TO these great advantages of liberty it is owing that liberty itself has been abused.
Because a moderate government has been productive of admirable effects, this
moderation has been laid aside; because great taxes have been raised, they wanted to carry them to excess: and, ungrateful to the hand of liberty of whom they received this present, they addressed themselves to slavery who never grants the least favour.
Liberty