The spirit of laws by Charles de Secondat, Baron de Montesquieu

particular crime, and to desire them to name a quæstor, as may be seen

Download 3.53 Mb.
Size3.53 Mb.
1   ...   14   15   16   17   18   19   20   21   ...   62

particular crime, and to desire them to name a quæstor, as may be seen
in the judgment upon Lucius Scipio[67] in Livy.[68]

In the year of Rome 604, some of these commissions were rendered

permanent.[69] All criminal causes were gradually divided into different
parts; to which they gave the name of perpetual questions. Different
prætors were created, to each of whom some of those questions were
assigned. They had a power conferred upon them for the term of a year,
of trying such criminal causes as bore any relation to those questions,
and then they were sent to govern their province.

At Carthage the senate of the hundred was composed of judges who enjoyed

that dignity for life.[70] But at Rome the prætors were annual; and the
judges were not even for so long a term, but were nominated for each
cause. We have already shown in the sixth chapter of this book how
favourable this regulation was to liberty in particular governments.

The judges were chosen from the order of senators, till the time of the

Gracchi. Tiberius Gracchus caused a law to pass that they should be
taken from the equestrian order; a change so very considerable that the
tribune boasted of having cut, by one rogation only, the sinews of the
senatorial dignity.

It is necessary to observe that the three powers may be very well

distributed in regard to the liberty of the constitution, though not so
well in respect to the liberty of the subject. At Rome the people had
the greatest share of the legislative, a part of the executive, and part
of the judiciary power; by which means they had so great a weight in the
government as required some other power to balance it. The senate indeed
had part of the executive power, and some share of the legislative;[71]
but this was not sufficient to counterbalance the weight of the people.
It was necessary that they should partake of the judiciary power: and
accordingly they had a share when the judges were chosen from among the
senators. But when the Gracchi deprived the senators of the judicial
power,[72] the senate were no longer able to withstand the people. To
favour, therefore, the liberty of the subject, they struck at that of
the constitution; but the former perished with the latter.

Infinite were the mischiefs that thence arose. The constitution was

changed at a time when the fire of civil discord had scarcely left any
such thing as a constitution. The knights ceased to be that middle order
which united the people to the senate; and the chain of the constitution
was broken.

There were even particular reasons against transferring the judiciary

power to the equestrian order. The constitution of Rome was founded on
this principle, that none should be enlisted as soldiers but such as
were men of sufficient property to answer for their conduct to the
republic. The knights, as persons of the greatest property, formed the
cavalry of the legions. But when their dignity increased, they refused
to serve any longer in that capacity, and another kind of cavalry was
obliged to be raised: thus Marius enlisted all sorts of people into his
army, and soon after the republic was lost.[73]

Besides, the knights were the farmers of the revenue; men whose great

rapaciousness increased the public calamities. Instead of giving to such
as those the judicial power, they ought to have been constantly under
the eye of the judges. This we must say in commendation of the ancient
French laws, that they have acted towards the officers of the revenue
with as great a diffidence as would be observed between enemies. When
the judiciary power at Rome was transferred to the publicans, there was
then an end of all virtue, polity, laws, and government.

Of this we find a very ingenious description in some fragments of

Diodorus Siculus and Dio. "Mutius Scævola," says Diodorus,[74] "wanted
to revive the ancient manners, and the laudable custom of sober and
frugal living. For his predecessors having entered into a contract with
the farmers of the revenue, who at that time were possessed of the
judiciary power at Rome, had infected the province with all manner of
corruption. But Scævola made an example of the publicans, and imprisoned
those by whom others had been confined."

Dio informs us[75] that Publius Rutilius, his lieutenant, was equally

obnoxious to the equestrian order, and that upon his return they accused
him of having received some presents, and condemned him to a fine; upon
which he instantly made a cession of his goods. His innocence appeared
in this, that he was found to be worth a great deal less than what he
was charged with having extorted, and he showed a just title to what he
possessed: but he would not live any longer in the same city with such
profligate wretches.

The Italians, says Diodorus again,[76] bought up whole droves of slaves

in Sicily, to till their lands and to take care of their cattle; but
refused them a necessary subsistence. These wretches were then forced to
go and rob on the highways, armed with lances and clubs, covered with
beasts' skins, and followed by large mastiffs. Thus the whole province
was laid waste, and the inhabitants could not call anything their own
but what was secured by fortresses. There was neither proconsul nor
prætor that could or would oppose this disorder, or that presumed to
punish these slaves, because they belonged to the knights, who at Rome
were possessed of the judiciary power.[77] And yet this was one of the
causes of the war of the slaves. But I shall add only one word more. A
profession deaf and inexorable, that can have no other view than lucre,
that was always asking and never granting, that impoverished the rich
and increased even the misery of the poor -- such a profession, I say,
should never have been entrusted with the judiciary power at Rome.

19. Of the Government of the Roman Provinces. Such was the distribution

of the three powers in Rome. But they were far from being thus
distributed in the provinces. Liberty prevailed in the centre and
tyranny in the extreme parts.

While Rome extended her dominions no farther than Italy, the people were

governed as confederates, and the laws of each republic were preserved.
But when she enlarged her conquests, and the senate had no longer an
immediate inspection over the provinces, nor the magistrates residing at
Rome were any longer capable of governing the empire, they were obliged
to send prætors and proconsuls. Then it was that the harmony of the
three powers was lost. The persons appointed to that office were
entrusted with a power which comprehended that of all the Roman
magistracies; nay, even that of the people.[78] They were despotic
magistrates, extremely well adapted to the distance of the places to
which they were destined. They exercised the three powers; and were, if
I may presume to use the expression, the bashaws of the republic.

We have elsewhere observed[79] that in a commonwealth the same

magistrate ought to be possessed of the executive power, as well civil
as military. Hence a conquering republic can hardly communicate her
government, and rule the conquered state according to her own
constitution. And indeed as the magistrate she sends to govern is
invested with the executive power, both civil and military, he must also
have the legislative: for who is it that could make laws without him? It
is necessary, therefore, that the governor she sends be entrusted with
the three powers, as was practised in the Roman provinces.

It is more easy for a monarchy to communicate its government, because

the officers it sends have, some the civil executive, and others the
military executive power, which does not necessarily imply a despotic

It was a privilege of the utmost consequence to a Roman citizen to have

none but the people for his judge. Were it not for this, he would have
been subject in the provinces to the arbitrary power of a proconsul or
of a proprætor. The city never felt the tyranny which was exercised only
on conquered nations.

Thus, in the Roman world, as at Sparta, the freemen enjoyed the highest

degree of liberty, while those who were slaves laboured under the
extremity of servitude.

While the citizens paid taxes, they were raised with great justice and

equality. The regulation of Servius Tullius was observed, who had
distributed the people into six classes, according to their difference
of property, and fixed the several shares of the public imposts in
proportion to that which each person had in the government. Hence they
bore with the greatness of the tax because of their proportionable
greatness of credit, and consoled themselves for the smallness of their
credit because of the smallness of the tax.

There was also another thing worthy of ad miration, which is, that as

Servius Tullius's division into classes was in some measure the
fundamental principle of the constitution, it thence followed that an
equal levying of the taxes was so connected with this fundamental
principle that the one could not be abolished without the other.

But while the city paid the taxes as she pleased, or paid none at

all,[80] the provinces were plundered by the knights, who were the
farmers of the public revenue. We have already made mention of their
oppressive extortions, with which all history abounds.

"All Asia," says Mithridates,[81] "expects me as her deliverer; so great

is the hatred which the rapaciousness of the proconsuls,[82] the
confiscations made by the officers of the revenue, and the quirks and
cavils of judicial proceedings,[83] have excited against the Romans."

Hence it was that the strength of the provinces did not increase, but

rather weakened, the strength of the republic. Hence it was that the
provinces looked upon the loss of the liberty of Rome as the epoch of
their own freedom.

20. The End of this Book. I should be glad to inquire into the

distribution of the three powers, in all the moderate governments we are
acquainted with, in order to calculate the degrees of liberty which each
may enjoy. But we must not always exhaust a subject, so as to leave no
work at all for the reader. My business is not to make people read, but
to make them think.


1. "I have copied," says Cicero, "Scævola's edict, which permits the
Greeks to terminate their difference among themselves according to their
own laws; this makes them consider themselves a free people."

2. The Russians could not bear that Czar Peter should make them cut it


3. The Cappadocians refused the condition of a republican state, which

was offered them by the Romans.

4. The natural end of a state that has no foreign enemies, or that

thinks itself secured against them by barriers.

5. Inconvenience of the Liberum veto.

6. At Venice.

7. As at Athens.

8. See Aristotle, Politics, iv. 4.

9. See Aristotle, Politics, ii, 10.

10. Ibid., 9.

11. These were magistrates chosen annually by the people. See Stephen of


12. It was lawful to accuse the Roman magistrates after the expiration

of their several offices. See in Dionysius Halicarnassus, ix, the affair
of Genutius the tribune.

13. De minoribus rebus principes consultant, de majoribus omnes; ita

tamen lit ea quoque quorum penes plebem arbitrium est, apud principes
pertractentur. -- ix.

14. Politics, iii. 14.

15. See Justin, xvii. 3.

16. Aristotle, Politics, v. 11.

17. Ibid., iii. 14.

18. Ibid.

19. See what Plutarch says in the Theseus. See likewise Thucydides, i.

20. Aristotle, Politics, iv. 8.

21. Dionysius Halicarnassus, ii, p. 120, and iv, pp. 242, 243.

22. See Tanaquil's Discourse on Livy, i dec. l, and the regulations of

Servius Tullius in Dionysius Halicarnassus, iv. p. 229.

23. See Dionysius Halicarnassus, ii, p. 118, and iii, p. 171.

24. It was by virtue of a senatus-consultum that Tullius Hostilius

ordered Alba to be destroyed. -- Ibid., iii, pp. 167 and 172.

25. Ibid., iv, p. 276.

26. Ibid., ii. And yet they could not have the nomination of all

offices, since Valerius Publicola made that famous law by which every
citizen was forbidden to exercise any employment, unless he had obtained
it by the suffrage of the people.

27. Ibid., iii, p. 159.

28. Ibid., iv.

29. He divested himself of half the regal power, says Dionysius

Halicarnassus, iv, p. 229.

30. It was thought that if he had not been prevented by Tarquin he would

have established a popular government. -- Ibid., iv, p. 243.

31. Ibid., iv.

32. Livy, dec. 1, vi.

33. Quæstores parricidii. -- Pomponius, Leg. 2,§ 23, ff. de orig. jur.

34. Plutarch, Poplicola.

35. Comitiis centuriatis.

36. See Livy, i, 43; Dionysius Halicarnassus, iv, vii.

37. Dionysius Halicarnassus, ix, p. 598.

38. Ibid., vii.

39. Contrary to the ancient custom, as may be seen: ibid., v, p. 320.

40. Ibid., pp. 410, 411.

41. Ibid., ix, p. 605.

42. Ibid., xi, p. 725.

43. By the sacred laws, the plebeians had the power of making the

plebiscita by themselves, without admitting the patricians into their
assembly -- Ibid., vi, p. 410; vii, p. 430.

44. By the law enacted after the expulsion of the decemvirs, the

patricians were made subject to the plebiscita, though they had not a
right of voting there. Livy, iii. 55, and Dionysius Halicarnassus, xi,
p. 725. This law was confirmed by that of Publius Philo the dictator, in
the year of Rome 416. Livy, viii. 12.

45. In the year 312 of Rome the consuls performed still the business of

surveying the people and their estates, as appears by Dionysius
Halicarnassus, ix.

46. Such as those by which it was allowed to appeal from the decisions

of all the magistrates to the people.

47. Book vi.

48. In the year of Rome 444, Livy, dec. 1, ix. 30. As the war against

Perseus appeared somewhat dangerous, it was ordained by a
senatus-consultum that this law should be suspended, and the people
agreed to it. Livy, dec. 5, ii.

49. They extorted it from the senate, says Freinshemius, dec. 2, vi.

50. There is no manner of doubt but the consuls had the power of trying

civil causes before the creation of the prætors. See Livy, dec. l, ii.
1; Dionysius Halicarnassus, x, pp. 627, 645.

51. The tribunes frequently tried causes by themselves only, but nothing

rendered them more odious. -- Dionysius Halicarnassus, xi, p. 709.

52. Judicia extraordinaria. See the Institutes, iv.

53. Book vi, p. 360.

54. Album Judicium.

55. "Our ancestors," says Cicero, Pro Cluentio, "would not suffer any

man whom the parties had not agreed to, to be judge of the least
pecuniary affair, much less of a citizen's reputation."

56. See in the fragments of the Servilian, Cornelian, and other laws, in

what manner these laws appointed judges for the crimes they proposed to
punish. They were often pitched upon by choice, sometimes by lot, or, in
fine, by lot mixed together with choice.

57. Seneca, De Benefic. iii. 7, in fine.

58. See Quintilian, iv, p. 54, in fol. ed., Paris, 1541.

59. Leg. 2 ff. de orig. jur. Magistrates who were called decemvirs

presided in court, the whole under a prætor's direction.

60. Quoniam de capite civis Romani, injussu populi Romani, non erat

permissum consulibus jus dicere. -- See Pomponius,Leg. 2, §6, ff. de
orig. jur.

61. Dionysius Halicarnassus, v, p. 322.

62. The comitia by centuries. Thus Manlius Capitolinus was tried in

these comitia. -- Livy, Dec. 1, vi. 20.

63. Pomponius, in Leg. 2, Dig., de orig. jur.

64. See a fragment of Ulpian, who gives another of the Cornelian Law: it

is to be met with in the Collation of the Mosaic and Roman Laws, tit. i,
De Sicariis et homicidiis.

65. This took place, especially in regard to crimes committed in Italy,

which were subject chiefly to the inspection of the senate. See Livy,
Dec. 1, ix, 26, concerning the conspiracies at Capua.

66. This was the case in the prosecution for the murder of Posthumius,

in the year 340 of Rome. See Livy, iv. 50.

67. This judgment was passed in the year of Rome 567.

68. Book viii.

69. Cicero, in Brutus.

70. This is proved from Livy, book xliii. 46, who says that Hannibal

rendered their magistracy annual.

71. The senatus-consultums were in force for the space of a year, though

not confirmed by the people. -- Dionysius Halicarnassus ix, p. 595; xi,
p. 735.

72. In the year 630.

73. Capite censos plerosque. -- Sallust, De Bello Jugurth, 84.

74. Fragment of this author, xxxvi, in the collection of Constantine

Porphyrogenitus, Of Virtues and Vices [Historica].

75. Fragment of his history, taken from the extract Of Virtues and Vices


76. Fragment of the book xxxiv in the extract Of Virtues and Vices


77. Penes quos Romæ tum judicia erant, atque ex equestri ordine solerent

sortito judices eligi in causa Prætorum et Proconsulum, quibus post
administratam provinciam dies dicta erat.

78. They made their edicts upon entering the provinces.

79. Book v. 19. See also ii, iii, iv, and v.

80. After the conquest of Macedonia the Romans paid no taxes.

81. Speech taken from Trogus Pompeius, and related by Justin, xxxviii.


82. See the orations against Verres.

83. It is well known what sort of a tribunal was that of Varus, which

provoked the Germans to revolt.

Book XII. Of the Laws That Form Political Liberty, in Relation to the


1. Idea of this Book. It is not sufficient to have treated of political

liberty in relation to the constitution; we must examine it likewise in
the relation it bears to the subject.

We have observed that in the former case it arises from a certain

distribution of the three powers; but in the latter, we must consider it
in another light. It consists in security, or in the opinion people have
of their security.

The constitution may happen to be free, and the subject not. The subject

may be free, and not the constitution. In those cases, the constitution
will be free by right, and not in fact; the subject will be free in
fact, and not by right.

It is the disposition only of the laws, and even of the fundamental

laws, that constitutes liberty in relation to the constitution. But as
it regards the subject: manners, customs, or received examples may give
rise to it, and particular civil laws may encourage it, as we shall
presently observe.

Further, as in most states liberty is more checked or depressed than

their constitution requires, it is proper to treat of the particular
laws that in each constitution are apt to assist or check the principle
of liberty which each state is capable of receiving.

2. Of the Liberty of the Subject. Philosophic liberty consists in the

free exercise of the will; or at least, if we must speak agreeably to
all systems, in an opinion that we have the free exercise of our will.
Political liberty consists in security, or, at least, in the opinion
that we enjoy security.

This security is never more dangerously attacked than in public or

private accusations. It is, therefore, on the goodness of criminal laws
that the liberty of the subject principally depends.

Criminal laws did not receive their full perfection all at once. Even in

places where liberty has been most sought after, it has not been always
found. Aristotle[1] informs us that at Cumæ the parents of the accuser
might be witnesses. So imperfect was the law under the kings of Rome
that Servius Tullius pronounced sentence against the children of Ancus
Martius, who were charged with having assassinated the king, his
father-in-law.[2] Under the first kings of France, Clotarius made a
law[3] that nobody should be condemned without being heard; which shows
that a contrary custom had prevailed in some particular case or among
some barbarous people. It was Charondas that first established penalties
against false witnesses.[4] When the subject has no fence to secure his
innocence, he has none for his liberty.

The knowledge already acquired in some countries, or that may be

hereafter attained in others, concerning the surest rules to be observed
in criminal judgments, is more interesting to mankind than any other
thing in the world.

Liberty can be founded on the practice of this knowledge only; and

supposing a state to have the best laws imaginable in this respect, a
person tried under that state, and condemned to be hanged the next day,
would have much more liberty than a pasha enjoys in Turkey.

3. The same Subject continued. Those laws which condemn a man to death

on the deposition of a single witness are fatal to liberty. In reason
there should be two, because a witness who affirms, and the accused who
denies, make an equal balance, and a third must incline the scale.

The Greeks[5] and Romans[6] required one voice more to condemn: but our

French laws insist upon two. The Greeks pretend that their custom was
established by the gods;[7] but this more justly may be said of ours.

4. That Liberty is favoured by the Nature and Proportion of Punishments.

Liberty is in perfection when criminal laws derive each punishment from
the particular nature of the crime. There are then no arbitrary
decisions; the punishment does not flow from the capriciousness of the
legislator, but from the very nature of the thing; and man uses no
violence to man.

There are four sorts of crimes. Those of the first species are

prejudicial to religion, the second to morals, the third to the public
tranquillity, and the fourth to the security of the subject. The
punishments inflicted for these crimes ought to proceed from the nature
of each of these species.

In the class of crimes that concern religion, I rank only those which

attack it directly, such as all simple sacrileges. For as to crimes that
disturb the exercise of it, they are of the nature of those which
prejudice the tranquillity or security of the subject, and ought to be
referred to those classes.

In order to derive the punishment of simple sacrileges from the nature

of the thing,[8] it should consist in depriving people of the advantages
conferred by religion in expelling them out of the temples, in a
temporary or perpetual exclusion from the society of the faithful, in
shunning their presence, in execrations, comminations, and conjurations.

In things that prejudice the tranquillity or security of the state,

secret actions are subject to human jurisdiction. But in those which
offend the Deity, where there is no public act, there can be no criminal
matter, the whole passes between man and God, who knows the measure and
time of His vengeance. Now if magistrates, confounding things, should
inquire also into hidden sacrileges, this inquisition would be directed
to a kind of action that does not at all require it: the liberty of the
subject would be subverted by arming the zeal of timorous as well as of
presumptuous consciences against him.

The mischief arises from a notion which some people have entertained of

revenging the cause of the Deity. But we must honour the Deity and leave
him to avenge his own cause. And, indeed, were we to be directed by such
a notion, where would be the end of punishments? If human laws are to
avenge the cause of an infinite Being, they will be directed by his
infinity, and not by the weakness, ignorance, and caprice of man.

An historian[9] of Provence relates a fact which furnishes us with an

excellent description of the consequences that may arise in weak
capacities from the notion of avenging the Deity's cause. A Jew was
accused of having blasphemed against the Virgin Mary; and upon
conviction was condemned to be flayed alive. A strange spectacle was
then exhibited: gentlemen masked, with knives in their hands, mounted
the scaffold, and drove away the executioner, in order to be the
avengers themselves of the honour of the blessed Virgin. I do not here
choose to anticipate the reflections of the reader.

The second class consists of those crimes which are prejudicial to

morals. Such is the violation of public or private continence, that is,
of the police directing the manner in which the pleasure annexed to the
conjunction of the sexes is to be enjoyed. The punishment of those
crimes ought to be also derived from the nature of the thing; the
privation of such advantages as society has attached to the purity of
morals, fines, shame, necessity of concealment, public infamy, expulsion
from home and society, and, in fine, all such punishments as belong to a
corrective jurisdiction, are sufficient to repress the temerity of the
two sexes. In effect these things are less founded on malice than on
carelessness and self-neglect.

We speak here of none but crimes which relate merely to morals, for as

to those that are also prejudicial to the public security, such as
rapes, they belong to the fourth species.

The crimes of the third class are those which disturb the public

tranquillity. The punishments ought therefore to be derived from the
nature of the thing, and to be in relation to this tranquillity; such as
imprisonment, exile, and other like chastisements proper for reclaiming
turbulent spirits, and obliging them to conform to the established

I confine those crimes that injure the public tranquillity to things

which imply a bare offence against the police; for as to those which by
disturbing the public peace attack at the same time the security of the
subject, they ought to be ranked in the fourth class.

The punishments inflicted upon the latter crimes are such as are

properly distinguished by that name. They are a kind of retaliation, by
which the society refuses security to a member who has actually or
intentionally deprived another of his security. These punishments are
derived from the nature of the thing, founded on reason, and drawn from
the very source of good and evil. A man deserves death when he has
violated the security of the subject so far as to deprive, or attempt to
deprive, another man of his life. This punishment of death is the
remedy, as it were, of a sick society. When there is a breach of
security with regard to property, there may be some reasons for
inflicting a capital punishment: but it would be much better, and
perhaps more natural, that crimes committed against the security of
property should be punished with the loss of property; and this ought,
indeed, to be the case if men's fortunes were common or equal. But as
those who have no property of their own are generally the readiest to
attack that of others, it has been found necessary, instead of a
pecuniary, to substitute a corporal, punishment.

All that I have here advanced is founded in nature, and extremely

favourable to the liberty of the subject.

5. Of certain Accusations that require particular Moderation and

Prudence. It is an important maxim, that we ought to be very circumspect
in the prosecution of witchcraft and heresy. The accusation of these two
crimes may be vastly injurious to liberty, and productive of infinite
oppression, if the legislator knows not how to set bounds to it. For as
it does not directly point at a person's actions, but at his character,
it grows dangerous in proportion to the ignorance of the people; and
then a man is sure to be always in danger, because the most exceptional
conduct, the purest morals, and the constant practice of every duty in
life are not a sufficient security against the suspicion of his being
guilty of the like crimes.

Under Manuel Comnenus, the Protestator[10] was accused of having

conspired against the emperor, and of having employed for that purpose
some secrets that render men invisible. It is mentioned in the life of
this emperor[11] that Aaron was detected, as he was poring over a book
of Solomon's, the reading of which was sufficient to conjure up whole
legions of devils. Now by supposing a power in witchcraft to rouse the
infernal spirits to arms, people look upon a man whom they call a
sorcerer as the person in the world most likely to disturb and subvert
society; and of course they are disposed to punish him with the utmost

But their indignation increases when witchcraft is supposed to have the

power of subverting religion. The history of Constantinople[12] informs
us that in consequence of a revelation made to a bishop of a miracle
having ceased because of the magic practices of a certain person, both
that person and his son were put to death. On how many surprising things
did not this single crime depend? That revelations should not be
uncommon, that the bishop should be favoured with one, that it was real,
that there had been a miracle in the case, that this miracle had ceased,
that there was a magic art, that magic could subvert religion, that this
Directory: mrhomepage.nsf

Share with your friends:
1   ...   14   15   16   17   18   19   20   21   ...   62

The database is protected by copyright © 2020
send message

    Main page