We must not therefore be surprised to find so many rules, restrictions, and extensions, in the laws of those countries; rules that multiply the particular cases, and seem to make of reason itself an art.
The difference of rank, birth, and condition, established in monarchical governments, is frequently attended with distinctions in the nature of property; and the laws relative to the constitution of this government may augment the number of these distinctions.
Hence, among us, goods are divided into real estates, purchases, dowries,
paraphernalia, paternal and maternal inheritances; moveables of different kinds; estates held in fee-simple or in tail; acquired by descent or conveyance; allodial, or held by soccage; ground-rents, or annuities. Each sort of goods is subject to particular rules, which must be complied with in the disposal of them. These things must needs diminish the simplicity of the laws.
In our governments the fiefs are become hereditary. It was necessary that the nobility should have a fixt property; that is, the fief should have a certain consistency; to the end that the proprietor might be always in a capacity of serving the prince. This must have been productive of great varieties: for instance, there are countries where fiefs could not be divided among the brothers; in others, the younger brothers may be allowed a more generous subsistence.
The monarch, who knows each of his provinces, may establish different laws, or tolerate different customs. But, as the despotic prince knows nothing, and can attend to nothing, he must take general measures, and govern by a rigid and inflexible will, which, throughout his whole dominions, produces the same effect: in short, every thing bends under his feet.
In proportion as the decisions of the courts of judicature are multiplied in monarchies, the law is loaded with decrees that sometimes contradict one another; either because succeeding judges are of a different way of thinking, or because the same causes are sometimes well, and at other times ill, defended; or, in fine, by reason of an infinite number of abuses, to which all human regulations are liable. This is a necessary evil, http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
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which the legislator redresses from time to time, as contrary even to the spirit of moderate governments: for, when people are obliged to have recourse to courts of judicature, this should come from the nature of the constitution, and not from the contradiction or uncertainty of the law.
In governments where there are necessary distinctions of persons there must likewise be privileges. This also diminishes the simplicity, and creates a thousand exceptions.
One of the privileges least burthensome to society, and especially to him who confers it, is that of pleading in one court preferably to another. Here new difficulties arise, when it becomes a question before which court we shall plead.
Far different is the case of the people under despotic governments. In those countries I can see nothing that the legislator is able to decree, or the magistrate to judge. As the lands belong to the prince, it follows that there are scarce any civil laws in regard to landed property. From the right the sovereign has to successions it follows likewise that there are none relating to inheritances. The monopolies, established by the prince for himself in some countries, render all sorts of commercial laws quite useless. The marriages, which they usually contract with female slaves, are the cause that there are scarce any civil laws relating to dowries, or to the particular advantage of married women. From the prodigious multitude of slaves it follows likewise that there are very few who have any such thing as a will of their own, and of course are answerable for their conduct before a judge. Most moral actions, that are only in consequence of a father’s, a husband’s, or a master’s, will, are regulated by them, and not by the magistrates.
I forgot to observe, that, as what we call honour is a thing hardly known in those countries, the several difficulties relating to this article, though of such importance with us, are with them quite out of the question. Despotic power is self-sufficient: round it there is an absolute vacuum. Hence it is, that, when travellers favour us with the description of countries where arbitrary sway prevails, they seldom make mention of
*
civil laws.
All occasions, therefore, of wrangling and lawsuits are here removed. And to this, in part, it is owing that litigious people, in those countries, are so roughly handled: as the injustice of their demand is neither screened, palliated, nor protected, by an infinite number of laws, of course it is immediately discovered.
CHAP. II.
Of the Simplicity of criminal Laws in different Governments.
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WE hear it generally said, that justice ought to be administered with us as in Turkey. Is it possible, then, that the most ignorant of all nations should be the most clear-sighted in a point which it most behoves mankind to know?
If we examine the set forms of justice, with respect to the trouble the subject undergoes, in recovering his property, or in obtaining satisfaction for an injury or affront, we shall find them doubtless too numerous: but, if we consider them in the relation they bear to the liberty and security of every individual, we shall often find them too few, and be convinced that the trouble, expence, delays, and even the very dangers, of our judiciary proceedings, are the price that each subject pays for his liberty.
In Turkey, where little regard is shewn to the honour, life, or estate, of the subject, all causes are speedily decided. The method of determining them is a matter of
indifference, provided they be determined. The bashaw, after a quick hearing, orders which party he pleases to be bastinadoed, and then sends them about their business.
Here it would be dangerous to be of a litigious disposition: this supposes a strong desire of obtaining justice, a settled aversion, an active mind, and a steadiness in pursuing one’s point. All this should be avoided in a government where fear ought to be the only prevailing sentiment, and in which popular disturbances are frequently attended with sudden and unforeseen revolutions. Here every man ought to know that the magistrate must not hear his name mentioned, and that his security depends entirely on his being reduced to a kind of annihilation.
But, in moderate governments, where the life of the meanest subject is deemed
precious, no man is stript of his honour or property but after a long enquiry; and no man is bereft of life till his very country has attacked him; an attack that is never made without leaving him all possible means of making his defence.
*
Hence it is, that, when a person renders himself absolute , he immediately thinks of reducing the number of laws. In a government thus constituted, they are more affected with particular inconveniences than with the liberty of the subject, which is very little minded.
In republics, it is plain, that as many formalities, at least, are necessary as in monarchies. In both governments, they increase in proportion to the value which is set on the honour, fortune, liberty, and life, of the subject.
In republican governments, men are all equal; equal they are, also, in despotic governments: in the former, because they are every thing; in the latter, because they are nothing.
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CHAP. III.
In what Governments, and in what Cases, the Judges ought to
determine according to the express Letter of the Law.
THE nearer the government approaches towards a republic, the more the manner of judging becomes settled and fixt: hence it was a fault, in the republic of Sparta, for the Ephori to pass such arbitrary judgements, without having any laws to direct them. The first consuls, at Rome, pronounced sentence in the same manner as the Ephori; but the inconveniency of this proceeding was soon felt, and they were obliged to have recourse to express and determinate laws.
In despotic governments there are no laws; the judge himself is his own rule. There are laws in monarchies; and, where these are explicit, the judge conforms to them; where they are otherwise, he endeavours to investigate their spirit. In republics, the very nature of the constitution requires the judges to follow the letter of the law; otherwise, the law might be explained to the prejudice of every citizen, in cases where their honour, property, or life, are concerned.
At Rome, the judges had no more to do than to declare that the person accused was guilty of a particular crime, and then the punishment was found in the laws, as may be seen in divers laws still extant. In England, the jury give their verdict, whether the fact, brought under their cognizance, be proved or not; if it be proved, the judge pronounces the punishment inflicted by the law, and for this he needs only to open his eyes.
CHAP. IV.
Of the Manner of passing Judgement.
HENCE arises the different manner of passing judgement. In monarchies the judges choose the method of arbitration: they deliberate together; they communicate their sentiments for the sake of unanimity; they moderate their opinions, in order to render them conformable to those of others; and the lesser number is obliged to give way to the majority. But this is not agreeable to the nature of a republic. At Rome, and in the cities of Greece, the judges never entered into a consultation; each gave his opinion
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one of these three ways; I absolve; I condemn; it does not appear clear to me : this was because the people judged, or were supposed to judge. But the people are far from being civilians; all these restrictions and methods of arbitration are above their reach; they must have only one object, and one single fact, set before them; and then they have only to see whether they ought to condemn, to acquit, or to suspend their
judgement.
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†
The Romans introduced fet forms of actions , after the example of the Greeks, and established a rule, that each cause should be directed by its proper action. This was necessary in their manner of judging; it was necessary to fix the state of the question, that the people might have it always before their eyes: otherwise, in a long process, this state of the question would continually change, and be no longer distinguished.
Hence it followed, that the Roman judges granted only the simple demand, without making any addition, deduction, or limitation. But the prætors devised other forms of actions, which were called ex bona fide, where the method of pronouncing sentence was left to the disposition of the judge. This was more agreeable to the spirit of monarchy.
‡
Hence it is a saying among the French lawyers, that, in France , all actions are EX BONA FIDE.
CHAP. V.
In what Governments the Sovereign may be Judge.
§
MACHIAVEL attributes the loss of the liberty of Florence to the people’s not judging in a body in cases of high-treason against themselves, as was customary at Rome. For this purpose they had eight judges: but the few, says Machiavel, are corrupted by a few. I should willingly adopt the maxim of this great man: but as, in those cases, the political interest prevails, in some measure, over the civil, (for it is always an inconveniency that the people should be judges in their own cause,) in order to remedy this evil, the laws must provide as much as possible for the security of individuals.
With this view, the Roman legislators did two things; they gave the persons accused
¶
permission to banish themselves∥ before sentence was pronounced ; and they
ordained, that the goods of those who were condemned should be sacred, to prevent their being confiscated to the people. We shall see, in the XIth book, the other limitations that were set to the judicatory power residing in the people.
Solon knew how to prevent the abuse which the people might make of their power in criminal judgements. He ordained, that the court of Areopagus should re-examine the
*
affair; that, if they believed the party accused was unjustly acquitted , they should †
impeach him again before the people; that, if they believed him unjustly condemned , they should prevent the execution of the sentence, and make them re-judge the
proceeding. An admirable law, that subjected the people to the censure of the
magistracy which they most revered, and even to their own!
In affairs of this kind, it is always proper to throw in some delays, especially when the party accused is under confinement; to the end that the people may grow calm, and http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
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give their judgement coolly.
In despotic governments, the prince himself may be judge: but in monarchies this cannot be; the constitution by such means would be subverted, and the dependent intermediate powers annihilated; all set forms of judgement would cease; fear would take possession of the people’s minds, and paleness spread itself over every
countenance: the more confidence, honour, affection, and security, in the subject, the more extended is the power of the monarch.
We shall give here a few more reflections on this point. In monarchies, the prince is the party that prosecutes the person accused, and causes him to be punished or acquitted; now, were he himself to sit upon the trial, he would be both judge and party.
In this government the prince has frequently the benefit of confiscation; so that here again, by determining criminal causes, he would be both judge and party.
Farther, 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.
†
Lewis XIII. being desirous to sit in judgement upon the trial of the duke ae la Valette , sent for some members of the parliament and of the privy-council to debate the matter.
Upon their being ordered by the king to give their opinion concerning the warrant for his arrest, the president de Believre said, “That he found it very strange a prince should pass sentence upon a subject: that kings had reserved to themselves the power of pardoning, and left that of condemning to their officers: that his majesty wanted to see before him at the bar a person, who, by his decision, was to be hurried away into the other world: that the prince’s countenance should inspire with hopes, and not confound with fears: that his presence alone removed ecclesiastic censures: and that subjects ought not to go away dissatisfied from the sovereign.” When sentence was passed, the same magistrate declared, “This is an unprecedented judgement; to see, contrary 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 inexhaustible source of injustice and abuse; the courtiers, by their importunity, would always be able to extort his decisions.
Some Roman emperors were so mad as to sit as judges themselves; the consequence was, that no reigns ever so surprized the world with oppression and injustice.
“Claudius, (says Tacitus∥,) having appropriated to himself the determination of law suits and the function of magistrates, gave occasion to all manner of rapine.” But Nero, upon http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
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coming to the empire after Claudius, endeavoured to conciliate the minds of the people, by declaring, “That he would take care not to be judge himself in private causes, that the parties might not be exposed, within the walls of a palace, to the iniquitous
§
influence of a few freedmen .”
¶
“Under the reign of Arcadius, (says Zozimus ,) a swarm of calumniators spread
themselves on every side, and infected the court. Upon a person’s decease, it was
*
immediately supposed he had left no children ; and, in consequence of this, his property was given away by a recript. For, as the prince was surprizingly stupid, and the empress excessively enterprizing, she was a slave to the insatiable avarice of her domestics and confidents; insomuch, that, to an honest man, nothing could be more desirable than death.”
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“Formerly, (says Procopius ,) there used to be very few people at court; but, in Justinian’s reign, as the judges had no longer the liberty of administering justice, their tribunals were deserted, while the prince’s palace resounded with the litigious clamours of the several parties.” Every body knows what a prostitution there was of public judgements, and even of the very laws themselves, at the emperor’s court.
The laws are the eye of the prince; by them he sees what would otherwise escape his observation. Should he attempt the function of a judge, he would not then labour for himself, but for impostors, whose aim is to deceive him.
CHAP. VI.
That, in Monarchies, Ministers ought not to sit as Judges.
IT is, likewise, a very great inconveniency, in monarchies, for the ministers of the prince to sit as judges. We have still instances of states where there is a great number of judges to decide exchequer causes, and where the ministers, nevertheless, (a thing most incredible,) would fain determine them. Many are the reflections that here arise; but this single one will suffice for my purpose.
There is, in the very nature of things, a kind of contrast between a prince’s council and his courts of judicature. The king’s council ought to be composed of a few persons, and the courts of judicature of a great many. The reason is, in the former, things should be undertaken and conducted with a kind of warmth and passion, which can hardly be expected but from four or five men who make it their sole business. On the contrary, in courts of judicature, a certain coolness is requisite, and an indifference, in some measure, to all manner of affairs.
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CHAP. VII.
Of a single Magistrate.
A magistracy of this kind cannot take place but in a despotic government. We have an instance, in the Roman history, how far a single magistrate may abuse his power. Might it not be very well expected that Appius, on his tribunal, should contemn all laws, after
‡
having violated that of his own enacting? Livy has given us the iniquitous distinction of the decemvir. He had suborned a man to reclaim Virginia, in his presence, as his slave: Virginia’s relations insisted, that, by virtue of his own law, she should be consigned to them till the definitive judgement was passed. Upon which, he declared, that his law had been enacted only in favour of the father; and that, as Virginius was absent, no application could be made of it to the present case∥.
CHAP. VIII.
Of Accusation in different Governments.
§
AT Rome it was lawful for one citizen to accuse another: this was agreeable to the spirit of a republic, where each citizen ought to have an unlimited zeal for the public good, and is supposed to hold all the rights of his country in his own hands. Under the emperors the republican maxims were still pursued; and instantly appeared a pernicious tribe, a swarm of informers. Crafty wicked men, who could stoop to any indignity to serve the purposes of their ambition, were sure to busy themselves in the search of criminals whose condemnation might be agreeable to the prince: this was the road to
¶
honour and preferment : but luckily we are strangers to it in our country.
We have at present an admirable law, namely, that by which the prince, who is
established for the execution of the laws, appoints an officer in each court of judicature to prosecute all sorts of crimes in his name: hence the profession of informers is a thing unknown to us; for, if this public avenger were suspected to abuse his office, he would soon be obliged to mention his author.
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By Plato’s laws , those who neglect to inform or assist the magistrates are liable to punishment. This would not be so proper in our days. The public prosecutor warches for the safety of the citizens; he proceeds in his office while they enjoy their quiet and ease.
CHAP. IX.
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Of the Severity of Punishments in different Governments.
THE severity of punishments is fitter for despotic governments, whose principle is terror, than for a monarchy or a republic, whose spring is honour and virtue.
In moderate governments, the love of one’s country, shame, and the fear of blame, are restraining motives, capable of preventing a multitude of crimes. Here the greatest punishment of a bad action is conviction. The civil laws have, therefore, a softer way of correcting, and do not require so much force and severity.
In those states, a good legislator is less bent upon punishing, than preventing, crimes; he is more attentive to inspire good morals than to inflict penalties.
†
It is a constant remark of the Chinese authors , that, the more the penal laws were increased in their empire, the nearer they drew towards a revolution. This is because punishments were augmented in proportion as the public morals were corrupted.
It would be an easy matter to prove, that, in all, or almost all, the governments of Europe, penalties have increased or diminished in proportion as those governments favoured or discouraged liberty.
In despotic governments, people are so unhappy as to have a greater dread of death than regret for the loss of life; consequently, their punishments ought to be more severe. In moderate states, they are more afraid of losing their lives than apprehensive of the pain of dying; those punishments, therefore, which deprive them simply of life, are sufficient.
Men, in excess of happiness or misery, are equally inclinable to severity; witness conquerors and monks. It is mediocrity alone, and a mixture of prosperous and adverse fortune, that inspire us with lenity and pity.
What we see practised by individuals is equally observable in regard to nations. In countries inhabited by savages, who lead a very hard life, and in despotic governments, where there is only one person on whom fortune lavishes her favours, while the
miserable subjects lie exposed to her insults, people are equally cruel. Lenity reigns in moderate governments.
When, in reading history, we observe the cruelty of the sultans in the 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 every thing by way of punishment. Is it not very extraordinary, that one of the chief penalties, at Sparta, was to deprive a person of the power of lending out his wife, or of receiving the wife of another man, and to oblige him to have no company at home but virgins? In short, http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
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whatever the law calls a punishment, is such effectively.
CHAP. X.
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 loses his honour and his voice in court, while the peasant, who has no honour to lose, undergoes a corporal punishment.
CHAP. XI.
That, when People are virtuous, few Punishments are necessary.
THE people of Rome had some share of probity. Such was the force of this probity, that the legislator had frequently no farther occasion than to point out the right road, and they were sure to follow it. One would imagine, that, instead of precepts, it was sufficient to give them counsels.
The punishments of the regal laws, and those of the twelve tables, were almost all
§
abolished in the time of the republic, in consequence either of the Valerian or of the
¶
Porcian law. It was never observed that this step did any manner of prejudice to the civil administration.
This Valerian law, which restrained the magistrates from using violent methods against a citizen that had appealed to the people, inflicted no other punishment on the person
*
who infringed it than that of being reputed a dishonest man.
CHAP. XII.
Of the Power of Punishments.
EXPERIENCE shews, that, in countries remarkable for the lenity of their laws, the spirit of the inhabitants is as much affected, by slight penalties, as in other countries by severer punishments.
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suddenly to redress it; and, instead of putting the old laws in execution, it establishes some cruel punishment, which instantly puts a stop to the evil. But the spring of government hereby loses its elasticity; the imagination grows accustomed to the severe as well as the milder punishment; and, as the fear of the latter diminishes, they are soon obliged, in every case, to have recourse to the former. Robberies on the high-way were grown common in some countries. In order to remedy this evil, they invented the punishment of breaking upon the wheel;