The following work may with the strictest justice be said to have done honour to human nature as well as to the great abilities of the author. The wisest and most learned man, and those most distinguished by birth and the elevation of their stations, have, in every country in Europe, considered it as a most excellent performance. And may we be permitted to add, that a sovereign prince  as justly celebrated for his probity and good sense, as for his political and military skill, has declared that from M. de Montesquieu he has learnt the art of government. But had the illustrious author received no such distinguished honour, the numerous editions of this work in French, and their sudden spreading through all Europe, are a sufficient testimony of the high esteem with which it has been received by the public.
But notwithstanding the deserved applause which has been so liberally bestowed on the author, there have been some who have not only endeavoured to blast his laurels, but have treated him with all that scurrility which bigotry and superstition are apt, on every occasion, to throw out against truth, reason and good sense. These M. de Montesquieu has himself answered, in a separate treatise intitled, A Defense of the Spirit of Laws, from whence we have thought proper to extract, for the sake of such as have not seen that treatise, the principal of those objections, and the substance of what has been given in reply: Only first observing, that this defense is divided into three parts, in the first of which he answers the general reproaches that have been thrown out against him; in the second he replies to particular reproaches; and in the third, he gives some reflections on the manner in which his work has been criticized.
The author first complains of his being charged both with espousing the doctrines of Spinoza, and with being a Deist, two opinions directly contradictory to each other. To the former of these he answers, by placing in one view the several passages in the Spirit of Laws directly levelled against the doctrines of Spinoza; and then he replies to the objections that have been made to those passages, upon which this injurious charge is founded.
The critic asserts that our author stumbles at his first setting out, and is offended at his saying, that Laws in their most extensive signification, are the necessary relations derived from the nature of things. To this he replies, that the critic had heard it said that Spinoza had maintained that the world was governed by a blind and necessary principle; and from hence on seeing the word necessary, he concludes that this must be Spinozism; tho' what is most surprising, this article is directly levelled at the dangerous principles maintained by Spinoza: That he had Hobbes's system in his eye, a system, which, as it makes all the virtues and vices depend on the establishment of human laws, and as it would prove that men were born in a state of war, and that the first law of nature is a war of all against all, overturns, like Spinoza, all religion, and all morality. Hence he laid down this position, that there were laws of justice and equity before the establishment of positive laws: hence also he has proved that all beings had laws; that even before their creation they had possible laws; and that God himself had laws, that is, the laws which he himself had made. He has shewn  that nothing can be more false than the assertion that men were born in a state of war; and he has made it appear that wars did not commence till after the establishment of society. His principles are here extremely clear; from whence it follows, that as he has attacked Hobbes's errors, he has consequently those of Spinoza; and he has been so little understood, that they have taken for the opinions of Spinoza, those very objections which were made against Spinozism.
Again, the author has said that the creation which appears to be an arbitrary act, supposes laws as invariable as the fatality of the Atheists. From these words the critic concludes that the author admits the fatality of the Atheists.
To this he answers, that he had just before destroyed this fatality, by representing it as the greatest absurdity to suppose that a blind fatality was capable of producing intelligent beings. Besides, in the passage here censured, he can only be made to say what he really does say: he does not speak of causes, nor does he compare causes; but he speaks of effects and compares effects. The whole article, what goes before and what follows, make it evident, that there is nothing here intended but the laws of motion, which, according to the author, had been established by God: these laws are invariable; this he as asserted, and all natural philosophy has asserted the same thing; they are invariable because God has been pleased to make them so, and because he has pleased to preserve the world. When the author therefore says that the creation which appears to be an arbitrary act, supposes laws as invariable as the fatality of the Atheists, he cannot be understood to say that the creation was a necessary act like the fatality of the Atheists.
Having vindicated himself from the charge of Spinozism, he proceeds to the other accusation, and from a multitude of passages collected together proves that he has not only acknowledged the truth of revealed religion; but that he is in love with Christianity, and endeavours to make it appear amiable in the eyes of others. He then enquires into what his adversaries have said to prove the contrary, observing that the proofs ought to bear some proportion to the accusation; that this accusation is not of a frivolous nature, and that the proofs therefore ought not to be frivolous.
The first objection is, that he has praised the Stoics, who admitted a blind fatality, and that this is the foundation of natural religion. To this he replies, "I will for a moment suppose that this false manner of reasoning has some weight: has the author praised the philosophy and metaphysics of the Stoics? He has praised their morals, and has said that the people reaped great benefit from them: he has said this, and he has said no more: I am mistaken, he has said more, he has at the beginning of his book attacked this fatality, he does not then praise it, when he praises the Stoics."
The second objection is, that he has praised Bayle, in calling him a great man. To this he answers, "It is true that the author has called Bayle a great man, but he has censured his opinions: if he has censured them, he has not espoused them: and since he has censured his opinions, he does not call him a great man because of his opinions. Every body knows that Bayle had a great genius which he abused; but this genius which he abused, he had: the author has attacked his sophisms, and pities him on account of his errors. I don't love the men who subvert the laws of their country; but I should find great difficulty in believing that Caesar and Cromwell had little minds: I am not in love with conquerors, but it would be very difficult to persuade me to believe that Alexander and Jenghiz-Khan were men of only a common genius. Besides, I have remarked, that the declamations of angry men make but little impression on any except those who are angry: the greatest part of the readers are men of moderation, and seldom take up a book but when they are in cool blood; for rational and sensible men love reason. Had the author loaded Bayle with a thousand injurious reproaches, it would not have followed from thence, that Bayle had reasoned well or ill; all that his readers would have been able to conclude from it would have been, that the author knew how to be abusive."
The third objection is, that he has not in his first chapter spoken of original sin. To which he replies: "I ask every sensible man if this chapter is a treatise of divinity? if the author had spoken of original sin, they might have imputed it to him as a crime that he had not spoken of redemption."
The next objection takes notice, that "The author has said that in England self-murder is the effect of a distemper, and that it cannot be punished without punishing the effects of madness; the consequence the critic draws from thence is, that a follower of natural religion can never forget that England is the cradle of his sect, and that he rubs a sponge over all the crimes he found there." He replies, "The author does not know that England is the cradle of natural religion; but he knows that England was not his cradle. He is not of the same religious sentiments as an Englishman, any more than an Englishman who speaks of the physical effects he found in France, is not of the same religion as the French. He is not a follower of natural religion; but he wishes that his critic was a follower of natural logic."
These are the principle objections levelled against our author, on this head, from which our readers will sufficiently see on what trifling, what puerile arguments this charge of Deism is founded. He concludes however this article, with a defense of the religion of nature, and such a defense as every rational Christian must undoubtedly approve.
"Before I conclude this first part, I am tempted to make one objection against him who has made so many; but he has so stunned my ears with the words follower of natural religion, that I scarcely dare pronounce them. I shall endeavour however to take courage. Do not the critic's two pieces stand in greater need of an explication, than that which I defend? Does he do well, while speaking of natural religion and revelation, to fall perpetually upon one side of the subject, and to lose all traces of the other? Does he do well never to distinguish those who acknowledge only the religion of nature, from those who acknowledge both natural and revealed religion? Does he do well to turn frantic whenever the author considers man in the state of natural religion, and whenever he explains any thing on the principles of natural religion? Does he do well to confound natural religion with Atheism? Have I not heard that we have all natural religion? Have I not heard that Christianity is the perfection of natural religion? Have I not heard that natural religion is employed to prove the truth of revelation against the Deists? and that the same natural religion is employed to prove the existence of a God against the Atheists? He has said that the Stoics were the followers of natural religion; and I say, that they were Atheists, since they believed that a blind fatality governed the universe; and it is by the religion of nature that we ought to attack that of the Stoics. He says that the scheme of natural religion is connected with that of Spinoza; and I say, that they are contradictory to each other, and it is by natural religion that we ought to destroy Spinoza's scheme. I say, that to confound natural religion with Atheism, is to confound the proof with the thing to be proved, and the objections against error with error itself, and that this is to take away the most powerful arms we have against this error."
The author now proceeds to the second part of his defence, in which he has the following remarks. "What has the critic done to give an ample scope to his declamations, and to open the widest door to invectives? he has considered the author, as if he had intended to follow the example of M. Abbadye, and had been writing a treatise on the Christian religion: he has attacked him, as if his two books on religion were two treatises on divinity; he has cavilled against him, as if while he had been talking of any religion whatsoever which was not Christian, he should have examined it according to the principles, and doctrines of Christianity; he has judged him as if in his two books relating to religion he ought to have preached to Mahometans and Idolators the doctrines of Christianity. Whenever he has spoken of religion in general, whenever he has made use of the word religion, the critic says, 'that is the Christian religion'; whenever he has compared the religious rites of different nations and has said that they are more conformable to the political government of these countries, than some other rites, the critic again says, 'you approve them then and abandon the Christian faith': when he has spoken of a people who have never embraced Christianity, or who have lived before Christ, again says the critic, 'you don't then acknowledge the morals of Christianity'; when he has canvassed any custom whatsoever, which he has found in a political writer, the critic asks him, 'Is this a doctrine of Christianity?' He might as well add, 'You say you are a civilian, and I will make you a divine in spite of yourself: you have given us elsewhere some very excellent things on the Christian religion, but this was only to conceal your real sentiments, for I know your heart, and penetrate into your thoughts. It is true I do not understand your book, nor it is material that I should discover the good or bad design with which it has been written; but I know the bottom of all your thoughts: I don't know a word of what you have said, but I understand perfectly well, what you have not said.'"
But to proceed. The author has maintained the polygamy is necessarily and in its own nature bad; he has wrote a chapter expressly against it, and afterwards has examined in a philosophical manner, in what countries, in what climates, or in what circumstances it is least
pernicious; he has compared climates with climates, and countries with countries, and has found, that there are countries, where its effects are less pernicious than in others; because, according to the accounts that have been given of them, the number of men and women not being every where equal, it is evident, that if there are places where there are more women than men, polygamy, bad as it is in itself, is there less pernicious than in others. But as the title of this chapter  contains these words, That the law of polygamy is an affair of calculation, they have seized this title as an excellent subject for declamation. Having repeated the chapter itself, against which no objection is made, he proceeds to justify the title and adds: "Polygamy is an affair of calculation when we would know, if it is more or less pernicious in certain climates, in certain countries, in certain circumstances than in others; it is not an affair of calculation when we would decide whether it be good or bad in itself. It is not an affair of calculation when we reason on its nature; it may be an affair of calculation when we combine its effects; in short, it is never an affair of calculation when we enquire into the end of marriage, and it is even less so, when we enquire into marriage as a law established and confirmed by Jesus Christ."
Again, the author having said, that  polygamy is more conformable to nature in some countries than in others, the critic has seized the words more conformable to nature, to make his say, that he approves polygamy. To which he answers, "If I say, that I should like better to have a fever than the scurvy, does this signify that I should like to have a fever? or only that the scurvy is more disagreeable to me than a fever?"
Having finished his reply to what had been objected to on the subject of polygamy, he vindicates that excellent part of his work which treats of the climates; when speaking of the influence these have upon religion, he says, "I am very sensible that religion is in its own nature independent of all physical causes whatsoever, that the religion which is good in one country is good in another, and that it cannot be pernicious in one country without being so in all; but yet, I say, that as it is practiced by men, and has a relation to those who do not practice it, any religion whatsoever will find a greater facility in being practiced, either in the whole or in part, in certain circumstances than in others, and that whoever says the contrary must renounce all pretensions to sense and understanding."
But the critic has been greatly offended by our author's saying,  that when a state is at liberty to receive or to reject a new religion, it ought to be rejected; when it is received, it ought to be tolerated. From hence he objects, that the author has advised idolatrous princes, not to admit the Christian religion into their dominions. To this he
answers first by referring to a passage in which he says,  that the best civil and political laws are, next to Christianity, the greatest blessings that men can give or receive; and adds, "If then Christianity is the first and greatest blessing, and the political and civil laws the second, there are no political or civil laws in any state that can or ought to hinder the entrance of the Christian religion."
His second answer is, "That the religion of heaven is not established by the same methods as the religions of the earth; read the history of the church, and you will see the wonders performed by the Christian religion: was she to enter a country, she knew how to open its gates; every instrument was able to effect it; at one time God makes use of a few fisherman, at another he sets an emperor on the throne, and makes him bow down his head under the yolk of the gospel. Does Christianity hide herself in subterranean caverns? stay a moment, and you see an advocate speaking from the imperial throne on her behalf. She traverses, whenever she pleases, seas, rivers, and mountains; no obstacles here below can stop her progress: implant aversion in the mind, she will conquer this aversion: establish customs, form habits, publish edicts, enact laws, she will triumph over the climate, over the laws which result from it, and over the legislators who have made them. God acting according to decrees which are unknown to us, extends or contracts the limits of his religion."
The present Kind of Sardinia.
Book i. Chap. 1.
Book xvi. Chap. 4.
Book xvi. Chap. 4.
Book xxv. Ch. 10.
Ibid. Ch. 1.
Book I. Of Laws in General
1. Of the Relation of Laws to Different Beings
2. Of the Laws of Nature
3. Of Positive Laws
Book II. Of Laws Directly Derived from the Nature of Government
1. Of the Nature of the Three Different Governments
2. Of the Republican Government, and the Laws in Relation to Democracy
3. Of the Laws in Relation to the Nature of Aristocracy
4. Of the Relation of Laws to the Nature of Monarchical Government
5. Of the Laws in Relation to the Nature of a Despotic Government
Book III. Of the Principles of the Three Kinds of Government
1. Difference Between the Nature and Principle of Government
2. Of the Principle of Different Governments
3. Of the Principle of Democracy
4. Of the Principle of Aristocracy
5. That Virtue Is Not the Principle of a Monarchical Government
6. In What Manner Virtue Is Supplied in a Monarchical Government
7. Of the Principle of Monarchy
8. That Honour Is Not the Principle of Despotic Government
9. Of the Principle of Despotic Government
10. Difference of Obedience in Moderate and Despotic Governments
11. Reflections on the Preceding Chapters
Book IV. That the Laws of Education Ought to Be in Relation to the Principles of Government
1. Of the Laws of Education
2. Of Education in Monarchies
3. Of Education in a Despotic Government
4. Difference between the Effects of Ancient and Modern Education
5. Of Education in a Republican Government
6. Of some Institutions among the Greeks
7. In What Cases These Singular Institutions May Be of Service
8. Explanation of a Paradox of the Ancients in Respect to Manners
Book V. That the Laws Given by the Legislator Ought to Be in Relation to the Principle of Government
1. Idea of This Book
2. What Is Meant by Virtue in a Political State
3. What Is Meant by a Love of the Republic in a Democracy
4. In What Manner the Love of Equality and Frugality Is Inspired
5. In What Manner the Laws Establish Equality in a Democracy
6. In What Manner the Laws Ought to Maintain Frugality in a Democracy
7. Other Methods of Favouring the Principle of Democracy
8. In What Manner the Laws Should Relate to the Principle of Government in an Aristocracy
9. In What Manner the Laws Are in Relation to Their Principle in Monarchies
10. Of the Expedition Peculiar to the Executive Power in Monarchies
11. Of the Excellence of a Monarchical Government
12. The Same Subject Continued
13. An Idea of Despotic Power
14. In What Manner the Laws Are in Relation to the Principles of Despotic Government
15. The Same Subject Continued
16. Of the Communication of Power
17. Of Presents
18. Of Rewards Conferred by the Sovereign
19. New Consequences of the Principles of the Three Governments
Book VI. Consequences of the Principles of Different Governments with Respect to the Simplicity of Civil and Criminal Laws, the Form of Judgments, and the Inflicting of Punishments
1. Of the Simplicity of Civil Laws in Different Governments
2. Of the Simplicity of Criminal Laws in Different Governments
3. In What Governments and in What Cases the Judges Ought to Determine According to the Express Letter of the Law
4. Of the Manner of Passing Judgment
5. In What Governments the Sovereign May Be Judge
6. That in Monarchies Ministers Ought Not to Sit as Judges
7. Of a Single Magistrate
8. Of Accusation in Different Governments
9. Of the Severity of Punishments in Different Governments
10. Of the Ancient French Laws
11. That When People Are Virtuous, Few Punishments Are Necessary
12. Of the Power of Punishments
13. Insufficiency of the Laws of Japan
14. Of the Spirit of the Roman Senate
15. Of the Roman Laws in Respect to Punishments
16. Of the Just Proportion between Punishments and Crimes
17. Of the Rack
18. Of Pecuniary and Corporal Punishments
19. Of the Law of Retaliation
20. Of the Punishment of Fathers for the Crimes of Their Children
21. Of the Clemency of the Prince
Book VII. Consequences of the Different Principles of the Three Governments with Respect to Sumptuary Laws, Luxury, and the Condition of Women
1. Of Luxury
2. Of Sumptuary Laws in a Democracy
3. Of Sumptuary Laws in an Aristocracy
4. Of Sumptuary Laws in a Monarchy
5. In What Cases Sumptuary Laws Are Useful in a Monarchy
6. Of the Luxury of China
7. Fatal Consequences of Luxury in China
8. Of Public Continency
9. Of the Condition or State of Women in Different Governments
10. Of the Domestic Tribunal among the Romans
11. In What Manner the Institutions Changed at Rome, Together with the Government
12. Of the Guardianship of Women among the Romans
13. Of the Punishments Decreed by the Emperors against the Incontinence of Women
14. Sumptuary Laws among the Romans
15. Of Dowries and Nuptial Advantages in Different Constitutions
16. An Excellent Custom of the Samnites
17. Of Female Administration
Book VIII. Of the Corruption of the Principles of the Three Governments
1. General Idea of This Book
2. Of the Corruption of the Principles of Democracy
3. Of the Spirit of Extreme Equality
4. Particular Cause of the Corruption of the People
5. Of the Corruption of the Principle of Aristocracy
6. Of the Corruption of the Principle of Monarchy
7. The Same Subject Continued
8. Danger of the Corruption of the Principle of Monarchical Government
9. How Ready the Nobility Are to Defend the Throne
10. Of the Corruption of the Principle of Despotic Government
11. Natural Effects of the Goodness and Corruption of the Principles of Government
12. The Same Subject Continued
13. The Effect of an Oath among Virtuous People
14. How the Smallest Change of the Constitution Is Attended with the Ruin of its Principles
15. Sure Methods of Preserving the Three Principles
16. Distinctive Properties of a Republic
17. Distinctive Properties of a Monarchy
18. Particular Case of the Spanish Monarchy
19. Distinctive Properties of a Despotic Government
20. Consequence of the Preceding Chapters
21. Of the Empire of China
Book IX. Of Laws in the Relation They Bear to a Defensive Force
1. In What Manner Republics Provide for Their Safety
2. That a Confederate Government Ought to Be Composed of States of the Same Nature, Especially of the Republican Kind
3. Other Requisites in a Confederate Republic
4. In What Manner Despotic Governments Provide for their Security
5. In What Manner a Monarchical Government Provides for Its Security
6. Of the Defensive Force of States in General
7. A Reflection
8. A Particular Case in Which the Defensive Force of a State Is Inferior to the Offensive
5. Cases in Which We May Judge by the Principles of the Civil Law, in Limiting the Principles of the Law of Nature
6. That the Order of Succession or Inheritance Depends on the Principles of Political or Civil Law, and Not on Those of the Law of Nature
7. That We Ought Not to Decide by the Precepts of Religion What Belongs Only to the Law of Nature
8. That We Ought Not to Regulate by the Principles of the Canon Law Things Which Should Be Regulated by Those of the Civil Law
9. That Things Which Ought to Be Regulated by the Principles of Civil Law Can Seldom Be Regulated by Those of Religion.
10. In What Case We Ought to Follow the Civil Law Which Permits, and Not the Law of Religion Which Forbids
11. That Human Courts of Justice Should Not Be Regulated by the Maxims of Those Tribunals Which Relate to the Other Life
12. The Same Subject Continued
13. In What Cases, with Regard to Marriage, We Ought to Follow the Laws of Religion; and in What Cases We Should Follow the Civil Laws
14. In What Instances Marria between Relatives Should Be Regulated by the Laws of Nature; and in What Instances by the Civil Laws
15. That We Should Not Regulate by the Principles of Political Law Those Things Which Depend on the Principles of Civil Law
16. That We Ought Not to Decide by the Rules of the Civil Law, When It Is Proper to Decide by Those of the Political Law
17. The Same Subject Continued
18. That It Is Necessary to Inquire Whether the Laws Which Seem Contradictory Are of the Same Class
19. That We Should Not Decide Those Things by the Civil Law Which Ought to Be Decided by Domestic Laws
20. That We Ought Not to Decide by the Principles of the Civil Laws Those Things Which Belong to the Law of Nations
21. That We Should Not Decide by Political Laws Things Which Belong to the Law of Nations
22. The Unhappy State of the Inca Athualpa
23. That When, by Some Circumstance, the Political Law Becomes Destructive to the State, We Ought to Decide by Such a Political Law, as Will Preserve It, Which Sometimes Becomes a Law of Nations
24. That the Regulations of the Police Are of a Different Class from Other Civil Laws
25. That We Should Not Follow the General Disposition of the Civil Law in Things Which Ought to Be Subject to Particular Rules Drawn from Their Own Nature
1. Of the Origin and Revolutions of the Roman Laws on Successions
Book XXVIII. Of the Origin and Revolutions of the Civil Laws among the French
1. Different Character of the Laws of the Several People of Germany
2. That the Laws of the Barbarians Were All Personal
3. Capital Difference between the Salic Laws, and Those of the Visigoths and Burgundians
4. In What Manner the Roman Law Came to Be Lost in the Country Subject to the Franks, and Preserved in That Subject to the Goths and Burgundians
5. The Same Subject Continued
6. How the Roman Law Kept its Ground in the Demesne of the Lombards
7. How the Roman Law Came to Be Lost in Spain
8. A False Capitulary
9. In What Manner the Codes of Barbarian Laws, and the Capitularies Came to Be Lost
10. The Same Subject Continued
11. Other Causes of the Disuse of the Codes of Barbarian Laws, as well as of the Roman Law, and of the Capitularies
12. Of Local Customs. Revolution of the Laws of Barbarous Nations, as well as of the Roman Law
13. Difference between the Salic Law, or That of the Salian Franks, and That of the Ripuarian Franks, and other Barbarous Nations
14. Another Difference
15. A Reflection
16. Of the Ordeal or Trial by Boiling Water, Established by the Salic Law
17. Particular Notions of Our Ancestors
18. In What Manner the Custom of Judicial Combats Gained Ground
19. A New Reason of the Disuse of the Salic and Roman Laws, as Also of the Capitularies
20. Origin of the Point of Honour
21. A new Reflection on the Point of Honour among the Germans
22. Of the Manners in Relation to Judicial Combats
23. Of the Code of Laws on Judicial Combats
24. Rules Established in the Judicial Combat
25. Of the Bounds Prescribed to the Custom of Judicial Combats
26. On the Judiciary Combat between One of the Parties and One of the Witnesses
27. Of the Judicial Combat between One of the Parties and One of the Lords' Peers. Appeal of False Judgment
28. Of the Appeal of Default of Justice
29. Epoch of the Reign of St. Louis
30. Observation on Appeals
31. The Same Subject Continued
32. The Same Subject Continued
33. The Same Subject Continued
34. In What Manner the Proceedings at Law Became Secret
35. Of the Costs
36. Of the Public Prosecutor
37 In What Manner the Institutions of St. Louis Fell into Oblivion
38. The Same Subject Continued
39. The Same Subject Continued
40. In What Manner the Judiciary Forms Were Borrowed from the Decretals
41. Flux and Reflux of the Ecclesiastic and Temporal Jurisdiction
42. The Revival of the Roman Law, and the Result Thereof. Change of Tribunals
43. The Same Subject Continued
44 Of the Proof by Witnesses
45. Of the Customs of France
Book XXIX. Of the Manner of Composing Laws
1. Of the Spirit of a Legislator
2. The Same Subject Continued
3. That the Laws Which Seem to Deviate from the Views of the Legislator Are Frequently Agreeable to Them
4. Of the Laws Contrary to the Views of the Legislator
5. The Same Subject Continued
6. The Laws Which Appear the Same Have Not Always the Same Effect
7. The Same Subject Continued. Necessity of Composing Laws in a Proper Manner
8. That Laws Which Appear the Same Were Not Always Made through the Same Motive
9. That the Greek and Roman Laws Punished Suicide, but Not through the Same Motive
10. That Laws Which Seem Contrary Proceed Sometimes from the Same Spirit
11. How to Compare Two Different Systems of Laws
12. That Laws Which Appear the Same Are Sometimes Really Different
13. That We Must Not Separate Laws from the End for Which They Were Made: of the Roman Laws on Theft
14. That We Must Not Separate the Laws from the Circumstances in Which They Were Made
15. That Sometimes It Is Proper the Law Should Amend Itself
16. Things to Be Observed in the Composing of Laws
17. A bad Method of Giving Laws
18. Of the Ideas of Uniformity
19. Of Legislators
Book XXX. Theory of the Feudal Laws among the Franks in the Relation They Bear to the Establishment of the Monarchy
1. Of Feudal Laws
2. Of the Source of Feudal Laws
3. The Origin of Vassalage
4. The Same Subject Continued
5. Of the Conquests of the Franks
6. Of the Goths, Burgundians, and Franks
7. Different Ways of Dividing the Land
8. The Same Subject Continued
9. A Just Application of the Law of the Burgundians, and of That of the Visigoths, in Relation to the Division of Lands
10. Of Servitudes
11. The Same Subject Continued
12. That the Lands Belonging to the Division of the Barbarians Paid No Taxes
13. Of Taxes Paid by the Romans and Gauls, in the Monarchy of the Franks
14. Of What They Called Census
15. That What They Called Census Was Raised Only on the Bondmen and Not on the Freemen
16. Of the Feudal Lords or Vassals
17. Of the Military Service of Freemen
18. Of the Double Service
19. Of Compositions among the Barbarous Nations
20. Of What Was Afterwards Called the Jurisdiction of the Lords
21. Of the Territorial Jurisdiction of the Churches
22. That the Jurisdictions Were Established before the End of the Second Race
23. General Idea of the Abbé Du Bos' Book on the Establishment of the French Monarchy in Gaul
24. The Same Subject Continued. Reflection on the Main Part of the System
25. Of the French Nobility
Book XXXI. Theory of the Feudal Laws among the Franks, in the Relation They Bear to the Revolutions of their Monarchy
1. Changes in the Offices and in the Fiefs. Of the Mayors of the Palace
2. How the Civil Government Was Reformed
3. Authority of the Mayors of the Palace
4. Of the Genius of the Nation in Regard to the Mayors
5. In What Manner the Mayors Obtained the Command of the Armies
6. Second Epoch of the Humiliation of Our Kings of the First Race
7. Of the Great Offices and Fiefs under the Mayors of the Palace
8. In What Manner the Allodial Estates Were Changed into Fiefs
9. How the Church Lands Were Converted into Fiefs
10. Riches of the Clergy
11. State of Europe at the Time of Charles Martel
12. Establishment of the Tithes
13. Of the Election of Bishops and Abbots
14. Of the Fiefs of Charles Martel
15. The Same Subject Continued
16. Confusion of the Royalty and Mayoralty. The Second Race
17. A Particular Circumstance in the Election of the Kings of the Second Race
19. The Same Subject Continued
20. Louis the Debonnaire
21. The Same Subject Continued
22. The Same Subject Continued
23. The Same Subject Continued
24. That the Freemen Were Rendered Capable of Holding Fiefs
25. The Principal Cause of the Humiliation of the Second Race. Changes in the Allodia
26. Changes in the Fiefs
27. Another change Which Happened in the Fiefs
28. Changes Which Happened in the Great Offices and in the Fiefs
29. Of the Nature of the Fiefs after the Reign of Charles the Bald
30. The Same Subject Continued
31. In What Manner the Empire Was Transferred from the Family of Charlemagne
32. In What Manner the Crown of France Was Transferred to the House of Hugh Capet
33. Some Consequences of the Perpetuity of Fiefs
34. The Same Subject Continued
IF amidst the infinite number of subjects contained in this book there is anything which, contrary to my expectation, may possibly offend, I can at least assure the public that it was not inserted with an ill intention: for I am not naturally of a captious temper. Plato thanked the gods that he was born in the same age with Socrates: and for my part I give thanks to the Supreme that I was born a subject of that government under which I live; and that it is His pleasure I should obey those whom He has made me love. I beg one favour of my readers, which I fear will not be granted me; this is, that they will not judge by a few hours' reading of the labour of twenty years; that they will approve or condemn the book entire, and not a few particular phrases. If they would search into the design of the author, they can do it in no other way so completely as by searching into the design of the work. I have first of all considered mankind; and the result of my thoughts has been, that amidst such an infinite diversity of laws and manners, they were not solely conducted by the caprice of fancy. I have laid down the first principles, and have found that the particular cases follow naturally from them; that the histories of all nations are only consequences of them; and that every particular law is connected with another law, or depends on some other of a more general extent.
When I have been obliged to look back into antiquity, I have endeavoured to assume the spirit of the ancients, lest I should consider those things as alike which are really different; and lest I should miss the difference of those which appear to be alike.
I have not drawn my principles from my prejudices, but from the nature of things. Here a great many truths will not appear till we have seen the chain which connects them with others. The more we enter into particulars, the more we shall perceive the certainty of the principles on which they are founded. I have not even given all these particulars, for who could mention them all without a most insupportable fatigue?
The reader will not here meet with any of those bold flights which seem to characterise the works of the present age. When things are examined with never so small a degree of extent, the sallies of imagination must vanish; these generally arise from the mind's collecting all its powers to view only one side of the subject, while it leaves the other unobserved.
I write not to censure anything established in any country whatsoever. Every nation will here find the reasons on which its maxims are founded; and this will be the natural inference, that to propose alterations belongs only to those who are so happy as to be born with a genius capable of penetrating the entire constitution of a state.
It is not a matter of indifference that the minds of the people be enlightened. The prejudices of magistrates have arisen from national prejudice. In a time of ignorance they have committed even the greatest evils without the least scruple; but in an enlightened age they even tremble while conferring the greatest blessings. They perceive the ancient abuses; they see how they must be reformed; but they are sensible also of the abuses of a reformation. They let the evil continue, if they fear a worse; they are content with a lesser good, if they doubt a greater. They examine into the parts, to judge of them in connection; and they examine all the causes, to discover their different effects.
Could I but succeed so as to afford new reasons to every man to love his prince, his country, his laws; new reasons to render him more sensible in every nation and government of the blessings he enjoys, I should think myself the most happy of mortals.
Could I but succeed so as to persuade those who command, to increase their knowledge in what they ought to prescribe; and those who obey, to find a new pleasure resulting from obedience -- I should think myself the most happy of mortals.
The most happy of mortals should I think myself could I contribute to make mankind recover from their prejudices. By prejudices I here mean, not that which renders men ignorant of some particular things, but whatever renders them ignorant of themselves.
It is in endeavouring to instruct mankind that we are best able to practise that general virtue which comprehends the love of all. Man, that flexible being, conforming in society to the thoughts and impressions of others, is equally capable of knowing his own nature, whenever it is laid open to his view; and of losing the very sense of it, when this idea is banished from his mind.
Often have I begun, and as often have I laid aside, this undertaking. I have a thousand times given the leaves I had written to the winds: I, every day, felt my paternal hands fall. I have followed my object without any fixed plan: I have known neither rules nor exceptions; I have found the truth, only to lose it again. But when I once discovered my first principles, everything I sought for appeared; and in the course of twenty years, I have seen my work begun, growing up, advancing to maturity, and finished.
If this work meets with success, I shall owe it chiefly to the grandeur and majesty of the subject. However, I do not think that I have been totally deficient in point of genius. When I have seen what so many great men both in France, England, and Germany have said before me, I have been lost in admiration; but I have not lost my courage: I have said with Correggio, "And I also am a painter."
1. For the better understanding of the first four books of this work, it is to be observed that what I distinguish by the name of virtue, in a republic, is the love of one's country, that is, the love of equality. It is not a moral, nor a Christian, but a political virtue; and it is the spring which sets the republican government in motion, as honour is the spring which gives motion to monarchy. Hence it is that I have distinguished the love of one's country, and of equality, by the appellation of political virtue. My ideas are new, and therefore I have been obliged to find new words, or to give new acceptations to old terms, in order to convey my meaning. They, who are unacquainted with this particular, have made me say most strange absurdities, such as would be shocking in any part of the world, because in all countries and governments morality is requisite.
2. The reader is also to notice that there is a vast difference between saying that a certain quality, modification of the mind, or virtue, is not the spring by which government is actuated, and affirming that it is not to be found in that government. Were I to say such a wheel or such a pinion is not the spring which sets the watch going, can you infer thence that they are not to be found in the watch? So far is it from being true that the moral and Christian virtues are excluded from monarchy, that even political virtue is not excluded. In a word, honour is found in a republic, though its spring be political virtue; and political virtue is found in a monarchical government, though it be actuated by honour.
To conclude, the honest man of whom we treat in the third book, chapter 5, is not the Christian, but the political honest man, who is possessed of the political virtue there mentioned. He is the man who loves the laws of his country, and who is actuated by the love of those laws. I have set these matters in a clearer light in the present edition, by giving a more precise meaning to my expression: and in most places where I have made use of the word virtue I have taken care to add the term political.
Of Laws in General Of the Relation of Laws to different Beings.
Laws, in their most general signification, are the necessary relations arising from the nature of things. In this sense all beings have their laws: the Deity1 His laws, the material world its laws, the intelligences superior to man their laws, the beasts their laws, man his laws.
They who assert that a blind fatality produced the various effects we behold in this world talk very absurdly; for can anything be more unreasonable than to pretend that a blind fatality could be productive of intelligent beings?
There is, then, a prime reason; and laws are the relations subsisting between it and different beings, and the relations of these to one another.
God is related to the universe, as Creator and Preserver; the laws by which He created all things are those by which He preserves them. He acts according to these rules, because He knows them; He knows them, because He made them; and He made them, because they are in relation to His wisdom and power.
Since we observe that the world, though formed by the motion of matter, and void of understanding, subsists through so long a succession of ages, its motions must certainly be directed by invariable laws; and could we imagine another world, it must also have constant rules, or it would inevitably perish.
Thus the creation, which seems an arbitrary act, supposes laws as invariable as those of the fatality of the Atheists. It would be absurd to say that the Creator might govern the world without those rules, since without them it could not subsist.
These rules are a fixed and invariable relation. In bodies moved, the motion is received, increased, diminished, or lost, according to the relations of the quantity of matter and velocity; each diversity is uniformity, each change is constancy.
Particular intelligent beings may have laws of their own making, but they have some likewise which they never made. Before there were intelligent beings, they were possible; they had therefore possible relations, and consequently possible laws. Before laws were made, there were relations of possible justice. To say that there is nothing just or unjust but what is commanded or forbidden by positive laws, is the same as saying that before the describing of a circle all the radii were not equal.
We must therefore acknowledge relations of justice antecedent to the positive law by which they are established: as, for instance, if human societies existed, it would be right to conform to their laws; if there were intelligent beings that had received a benefit of another being, they ought to show their gratitude; if one intelligent being had created another intelligent being, the latter ought to continue in its original state of dependence; if one intelligent being injures another, it deserves a retaliation; and so on.
But the intelligent world is far from being so well governed as the physical. For though the former has also its laws, which of their own nature are invariable, it does not conform to them so exactly as the physical world. This is because, on the one hand, particular intelligent beings are of a finite nature, and consequently liable to error; and on the other, their nature requires them to be free agents. Hence they do not steadily conform to their primitive laws; and even those of their own instituting they frequently infringe.
Whether brutes be governed by the general laws of motion, or by a particular movement, we cannot determine. Be that as it may, they have not a more intimate relation to God than the rest of the material world; and sensation is of no other use to them than in the relation they have either to other particular beings or to themselves.
By the allurement of pleasure they preserve the individual, and by the same allurement they preserve their species. They have natural laws, because they are united by sensation; positive laws they have none, because they are not connected by knowledge. And yet they do not invariably conform to their natural laws; these are better observed by vegetables, that have neither understanding nor sense.
Brutes are deprived of the high advantages which we have; but they have some which we have not. They have not our hopes, but they are without our fears; they are subject like us to death, but without knowing it; even most of them are more attentive than we to self-preservation, and do not make so bad a use of their passions.
Man, as a physical being, is like other bodies governed by invariable laws. As an intelligent being, he incessantly transgresses the laws established by God, and changes those of his own instituting. He is left to his private direction, though a limited being, and subject, like all finite intelligences, to ignorance and error: even his imperfect knowledge he loses; and as a sensible creature, he is hurried away by a thousand impetuous passions. Such a being might every instant forget his Creator; God has therefore reminded him of his duty by the laws of religion. Such a being is liable every moment to forget himself; philosophy has provided against this by the laws of morality. Formed to live in society, he might forget his fellow-creatures; legislators have therefore by political and civil laws confined him to his duty.
Of the Laws of Nature.
Antecedent to the above-mentioned laws are those of nature, so called, because they derive their force entirely from our frame and existence. In order to have a perfect knowledge of these laws, we must consider man before the establishment of society: the laws received in such a state would be those of nature.
The law which, impressing on our minds the idea of a Creator, inclines us towards Him, is the first in importance, though not in order, of natural laws. Man in a state of nature would have the faculty of knowing, before he had acquired any knowledge. Plain it is that his first ideas would not be of a speculative nature; he would think of the preservation of his being, before he would investigate its origin. Such a man would feel nothing in himself at first but impotency and weakness; his fears and apprehensions would be excessive; as appears from instances (were there any necessity of proving it) of savages found in forests,2 trembling at the motion of a leaf, and flying from every shadow.
In this state every man, instead of being sensible of his equality, would fancy himself inferior. There would therefore be no danger of their attacking one another; peace would be the first law of nature.
The natural impulse or desire which Hobbes attributes to mankind of subduing one another is far from being well founded. The idea of empire and dominion is so complex, and depends on so many other notions, that it could never be the first which occurred to the human understanding.
Hobbes3inquires, "For what reason go men armed, and have locks and keys to fasten their doors, if they be not naturally in a state of war?" But is it not obvious that he attributes to mankind before the establishment of society what can happen but in consequence of this establishment, which furnishes them with motives for hostile attacks and self-defence?
Next to a sense of his weakness man would soon find that of his wants. Hence another law of nature would prompt him to seek for nourishment.
Fear, I have observed, would induce men to shun one another; but the marks of this fear being reciprocal, would soon engage them to associate. Besides, this association would quickly follow from. the very pleasure one animal feels at the approach of another of the same species. Again, the attraction arising from the difference of sexes would enhance this pleasure, and the natural inclination they have for each other would form a third law.
Beside the sense or instinct which man possesses in common with brutes, he has the advantage of acquired knowledge; and thence arises a second tie, which brutes have not. Mankind have therefore a new motive of uniting; and a fourth law of nature results from the desire of living in society.
Of Positive Laws.
As soon as man enters into a state of society he loses the sense of his weakness; equality ceases, and then commences the state of war.
Each particular society begins to feel its strength, whence arises a state of war between different nations. The individuals likewise of each society become sensible of their force; hence the principal advantages of this society they endeavour to convert to their own emolument, which constitutes a state of war between individuals.
These two different kinds of states give rise to human laws. Considered as inhabitants of so great a planet, which necessarily contains a variety of nations, they have laws relating to their mutual intercourse, which is what we call the law of nations. As members of a society that must be properly supported, they have laws relating to the governors and the governed, and this we distinguish by the name of politic law. They have also another sort of law, as they stand in relation to each other; by which is understood the civil law.
The law of nations is naturally founded on this principle, that different nations ought in time of peace to do one another all the good they can, and in time of war as little injury as possible, without prejudicing their real interests.
The object of war is victory; that of victory is conquest; and that of conquest preservation. From this and the preceding principle all those rules are derived which constitute the law of nations.
All countries have a law of nations, not excepting the Iroquois themselves, though they devour their prisoners: for they send and receive ambassadors, and understand the rights of war and peace. The mischief is that their law of nations is not founded on true principles.
Besides the law of nations relating to all societies, there is a polity or civil constitution for each particularly considered. No society can subsist without a form of government. "The united strength of individuals," as Gravina4 well observes, "constitutes what we call the body politic."
The general strength may be in the hands of a single person, or of many. Some think that nature having established paternal authority, the most natural government was that of a single person. But the example of paternal authority proves nothing. For if the power of a father relates to a single government, that of brothers after the death of a father, and that of cousins-german after the decease of brothers, refer to a government of many. The political power necessarily comprehends the union of several families.
Better is it to say, that the government most conformable to nature is that which best agrees with the humour and disposition of the people in whose favour it is established.
The strength of individuals cannot be united without a conjunction of all their wills. "The conjunction of those wills," as Gravina again very justly observes, "is what we call the civil state."
Law in general is human reason, inasmuch as it governs all the inhabitants of the earth: the political and civil laws of each nation ought to be only the particular cases in which human reason is applied.
They should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another.
They should be in relation to the nature and principle of each government; whether they form it, as may be said of politic laws; or whether they support it, as in the case of civil institutions.
They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen, or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs. In fine, they have relations to each other, as also to their origin, to the intent of the legislator, and to the order of things on which they are established; in all of which different lights they ought to be considered.
This is what I have undertaken to perform in the following work. These relations I shall examine, since all these together constitute what I call the Spirit of Laws.
I have not separated the political from the civil institutions, as I do not pretend to treat of laws, but of their spirit; and as this spirit consists in the various relations which the laws may bear to different objects, it is not so much my business to follow the natural order of laws as that of these relations and objects.
I shall first examine the relations which laws bear to the nature and principle of each government; and as this principle has a strong influence on laws, I shall make it my study to understand it thoroughly: and if I can but once establish it, the laws will soon appear to flow thence as from their source. I shall proceed afterwards to other and more particular relations.
Of Laws Directly Derived from the Nature of Government Of the Nature of the three different Governments.
There are three species of government: republican, monarchical, and despotic. In order to discover their nature, it is sufficient to recollect the common notion, which supposes three definitions, or rather three facts: that a republican government is that in which the body, or only a part of the people, is possessed of the supreme power; monarchy, that in which a single person governs by fixed and established laws; a despotic government, that in which a single person directs everything by his own will and caprice.
This is what I call the nature of each government; we must now inquire into those laws which directly conform to this nature, and consequently are the fundamental institutions.
Of the Republican Government, and the Laws in relation to Democracy.5
When the body of the people is possessed of the supreme power, it is called a democracy. When the supreme power is lodged in the hands of a part of the people, it is then an aristocracy.
In a democracy the people are in some respects the sovereign, and in others the subject.
There can be no exercise of sovereignty but by their suffrages, which are their own will; now the sovereign's will is the sovereign himself. The laws therefore which establish the right of suffrage are fundamental to this government. And indeed it is as important to regulate in a republic, in what manner, by whom, to whom, and concerning what, suffrages are to be given, as it is in a monarchy to know who is the prince, and after what manner he ought to govern.
Libanius6 says that at Athens a stranger who intermeddled in the assemblies of the people was punished with death. This is because such a man usurped the rights of sovereignty.
It is an essential point to fix the number of citizens who are to form the public assemblies; otherwise it would be uncertain whether the whole, or only a part of the people, had given their votes. At Sparta the number was fixed at ten thousand. But Rome, designed by Providence to rise from the weakest beginnings to the highest pitch of grandeur; Rome, doomed to experience all the vicissitudes of fortune; Rome, who had sometimes all her inhabitants without her walls, and sometimes all Italy and a considerable part of the world within them; Rome, I say, never fixed the number7 and this was one of the principal causes of her ruin.
The people, in whom the supreme power resides, ought to have the management of everything within their reach: that which exceeds their abilities must be conducted by their ministers.
But they cannot properly be said to have their ministers, without the power of nominating them: it is, therefore, a fundamental maxim in this government, that the people should choose their ministers -- that is, their magistrates.
They have occasion, as well as monarchs, and even more so, to be directed by a council or senate. But to have a proper confidence in these, they should have the choosing of the members; whether the election be made by themselves, as at Athens, or by some magistrate deputed for that purpose, as on certain occasions was customary at Rome.
The people are extremely well qualified for choosing those whom they are to entrust with part of their authority. They have only to be determined by things to which they cannot be strangers, and by facts that are obvious to sense. They can tell when a person has fought many battles, and been crowned with success; they are, therefore, capable of electing a general. They can tell when a judge is assiduous in his office, gives general satisfaction, and has never been charged with bribery: this is sufficient for choosing a prætor. They are struck with the magnificence or riches of a fellow-citizen; no more is requisite for electing an edile. These are facts of which they can have better information in a public forum than a monarch in his palace. But are they capable of conducting an intricate affair, of seizing and improving the opportunity and critical moment of action? No; this surpasses their abilities.
Should we doubt the people's natural capacity, in respect to the discernment of merit, we need only cast an eye on the series of surprising elections made by the Athenians and Romans; which no one surely will attribute to hazard.
We know that though the people of Rome assumed the right of raising plebeians to public offices, yet they never would exert this power; and though at Athens the magistrates were allowed, by the law of Aristides, to be elected from all the different classes of inhabitants, there never was a case, says Xenophon,8 when the common people petitioned for employments which could endanger either their security or their glory.
As most citizens have sufficient ability to choose, though unqualified to be chosen, so the people, though capable of calling others to an account for their administration, are incapable of conducting the administration themselves.
The public business must be carried on with a certain motion, neither too quick nor too slow. But the motion of the people is always either too remiss or too violent. Sometimes with a hundred thousand arms they overturn all before them; and sometimes with a hundred thousand feet they creep like insects.
In a popular state the inhabitants are divided into certain classes. It is in the manner of making this division that great legislators have signalised themselves; and it is on this the duration and prosperity of democracy have ever depended.
Servius Tullius followed the spirit of aristocracy in the distribution of his classes. We find in Livy9 and in Dionysius Halicarnassus,10 in what manner he lodged the right of suffrage in the hands of the principal citizens. He had divided the people of Rome into 193 centuries, which formed six classes; and ranking the rich, who were in smaller numbers, in the first centuries, and those in middling circumstances, who were more numerous, in the next, he flung the indigent multitude into the last; and as each century had but one vote11 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 made12 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.13 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.14 The suffrage by lot is a method of electing that offends no one, but animates each citizen with the pleasing hope of serving his country.
Yet as this method is in itself defective, it has been the endeavour of the most eminent legislators to regulate and amend it.
Solon made a law at Athens that military employments should be conferred by choice; but that senators and judges should be elected by lot.
The same legislator ordained that civil magistracies, attended with great expense, should be given by choice; and the others by lot.
In order, however, to amend the suffrage by lot, he made a rule that none but those who presented themselves should be elected; that the person elected should be examined by judges15 and that every one should have a right to accuse him if he were unworthy of the office:16 this participated at the same time of the suffrage by lot, and of that by choice. When the time of their magistracy had expired, they were obliged to submit to another judgment in regard to their conduct. Persons utterly unqualified must have been extremely backward in giving in their names to be drawn by lot.
The law which determines the manner of giving suffrage is likewise fundamental in a democracy. It is a question of some importance whether the suffrages ought to be public or secret. Cicero observes17 that the laws18 which rendered them secret towards the close of the republic were the cause of its decline. But as this is differently practised in different republics, I shall offer here my thoughts concerning this subject.
The people's suffrages ought doubtless to be public19 and this should be considered as a fundamental law of democracy. The lower class ought to be directed by those of higher rank, and restrained within bounds by the gravity of eminent personages. Hence, by rendering the suffrages secret in the Roman republic, all was lost; it was no longer possible to direct a populace that sought its own destruction. But when the body of the nobles are to vote in an aristocracy20 or in a democracy the senate21 as the business is then only to prevent intrigues, the suffrages cannot be too secret.
Intriguing in a senate is dangerous; it is dangerous also in a body of nobles; but not so among the people, whose nature is to act through passion. In countries where they have no share in the government, we often see them as much inflamed on account of an actor as ever they could be for the welfare of the state. The misfortune of a republic is when intrigues are at an end; which happens when the people are gained by bribery and corruption: in this case they grow indifferent to public affairs, and avarice becomes their predominant passion. Unconcerned about the government and everything belonging to it, they quietly wait
for their hire.
It is likewise a fundamental law in democracies, that the people should have the sole power to enact laws. And yet there are a thousand occasions on which it is necessary the senate should have the power of decreeing; nay, it is frequently proper to make some trial of a law before it is established. The constitutions of Rome and Athens were excellent. The decrees of the senate22 had the force of laws for the space of a year, but did not become perpetual till they were ratified by the consent of the people.
Of the Laws in relation to the Nature of Aristocracy.
In an aristocracy the supreme power is lodged in the hands of a certain number of persons. These are invested both with the legislative and executive authority; and the rest of the people are, in respect to them, the same as the subjects of a monarchy in regard to the sovereign.
They do not vote here by lot, for this would be productive of inconveniences only. And indeed, in a government where the most mortifying distinctions are already established, though they were to be chosen by lot, still they would not cease to be odious; it is the nobleman they envy, and not the magistrate.
When the nobility are numerous, there must be a senate to regulate the affairs which the body of the nobles are incapable of deciding, and to prepare others for their decision. In this case it may be said that the aristocracy is in some measure in the senate, the democracy in the body of the nobles, and the people are a cipher.
It would be a very happy thing in an aristocracy if the people, in some measure, could be raised from their state of annihilation. Thus at Genoa, the bank of St. George being administered by the people23 gives them a certain influence in the government, whence their whole prosperity is derived.
The senators ought by no means to have the right of naming their own members; for this would be the only way to perpetuate abuses. At Rome, which in its early years was a kind of aristocracy, the senate did not fill up the vacant places in their own body; the new members were nominated by the censors.24 In a republic, the sudden rise of a private citizen to exorbitant power produces monarchy, or something more than monarchy. In the latter the laws have provided for, or in some measure adapted themselves to, the constitution; and the principle of government checks the monarch: but in a republic, where a private citizen has obtained an exorbitant power,25 the abuse of this power is much greater, because the laws foresaw it not, and consequently made no provision against it.
There is an exception to this rule, when the constitution is such as to have immediate need of a magistrate invested with extraordinary power. Such was Rome with her dictators, such is Venice with her state inquisitors; these are formidable magistrates, who restore, as it were by violence, the state to its liberty. But how comes it that these magistracies are so very different in these two republics? It is because Rome supported the remains of her aristocracy against the people; whereas Venice employs her state inquisitors to maintain her aristocracy
against the nobles. The consequence was that at Rome the dictatorship could be only of short duration, as the people acted through passion and not with design. It was necessary that a magistracy of this kind should be exercised with lustre and pomp, the business being to intimidate, and not to punish, the multitude. It was also proper that the dictator should be created only for some particular affair, and for this only should have an unlimited authority, as he was always created upon some sudden emergency. On the contrary, at Venice they have occasion for a permanent magistracy; for here it is that schemes may be set on foot, continued, suspended, and resumed; that the ambition of a single person becomes that of a family, and the ambition of one family that of many. They have occasion for a secret magistracy, the crimes they punish being hatched in secrecy and silence. This magistracy must have a general inquisition, for their business is not to remedy known disorders, but to prevent the unknown. In a word, the latter is designed to punish suspected crimes; whereas the former used rather menaces than punishment even for crimes that were openly avowed.
In all magistracies, the greatness of the power must be compensated by the brevity of the duration. This most legislators have fixed to a year; a longer space would be dangerous, and a shorter would be contrary to the nature of government. For who is it that in the management even of his domestic affairs would be thus confined? At Ragusa26 the chief magistrate of the republic is changed every month, the other officers every week, and the governor of the castle every day. But this can take place only in a small republic environed27 by formidable powers, who might easily corrupt such petty and insignificant magistrates.
The best aristocracy is that in which those who have no share in the legislature are so few and inconsiderable that the governing party have no interest in oppressing them. Thus when28 Antipater made a law at Athens that whosoever was not worth two thousand drachms should have no power to vote, he formed by this method the best aristocracy possible; because this was so small a sum as to exclude very few, and not one of any rank or consideration in the city.
Aristocratic families ought therefore, as much as possible, to level themselves in appearance with the people. The more an aristocracy borders on democracy, the nearer it approaches perfection: and, in proportion as it draws towards monarchy, the more is it imperfect.
But the most imperfect of all is that in which the part of the people that obeys is in a state of civil servitude to those who command, as the aristocracy of Poland, where the peasants are slaves to the nobility.
Of the Relation of Laws to the Nature of Monarchical Government.
The intermediate, subordinate, and dependent powers constitute the nature of monarchical government; I mean of that in which a single person governs by fundamental laws. I said the intermediate, subordinate, and dependent powers. And indeed, in monarchies the prince is the source of all power, political and civil. These fundamental laws necessarily suppose the intermediate channels through which the power flows: for if there be only the momentary and capricious will of a single person to govern the state, nothing can be fixed, and of course there is no fundamental law.
The most natural, intermediate, and subordinate power is that of the nobility. This in some measure seems to be essential to a monarchy, whose fundamental maxim is: no monarch, no nobility; no nobility, no monarch; but there may be a despotic prince.
There are men who have endeavoured in some countries in Europe to suppress the jurisdiction of the nobility, not perceiving that they were driving at the very thing that was done by the parliament of England. Abolish the privileges of the lords, the clergy and cities in a monarchy, and you will soon have a popular state, or else a despotic government.
The courts of a considerable kingdom in Europe have, for many ages, been striking at the patrimonial jurisdiction of the lords and clergy. We do not pretend to censure these sage magistrates; but we leave it to the public to judge how far this may alter the constitution. Far am I from being prejudiced in favour of the privileges of the clergy; however, I should be glad if their jurisdiction were once fixed. The question is not whether their jurisdiction was justly established; but whether it be really established; whether it constitutes a part of the laws of the country, and is in every respect in relation to those laws: whether between two powers acknowledged independent, the conditions ought not to be reciprocal; and whether it be not equally the duty of a good subject to defend the prerogative of the prince, and to maintain the limits which from time immemorial have been prescribed to his authority.
Though the ecclesiastic power be so dangerous in a republic, yet it is extremely proper in a monarchy, especially of the absolute kind. What would become of Spain and Portugal, since the subversion of their laws, were it not for this only barrier against the incursions of arbitrary power? A barrier ever useful when there is no other: for since a despotic government is productive of the most dreadful calamities to human nature, the very evil that restrains it is beneficial to the subject.
In the same manner as the ocean, threatening to overflow the whole earth, is stopped by weeds and pebbles that lie scattered along the shore, so monarchs, whose power seems unbounded, are restrained by the smallest obstacles, and suffer their natural pride to be subdued by supplication and prayer.
The English, to favour their liberty, have abolished all the intermediate powers of which their monarchy was composed. They have a great deal of reason to be jealous of this liberty; were they ever to be so unhappy as to lose it, they would be one of the most servile nations upon earth.
Mr. Law, through ignorance both of a republican and monarchical constitution, was one of the greatest promoters of absolute power ever known in Europe. Besides the violent and extraordinary changes owing to his direction, he would fain suppress all the intermediate ranks, and abolish the political communities. He was dissolving29 the monarchy by his chimerical reimbursements, and seemed as if he even wanted to redeem the constitution.
It is not enough to have intermediate powers in a monarchy; there must be also a depositary of the laws. This depositary can only be the judges of the supreme courts of justice, who promulgate the new laws, and revive the obsolete. The natural ignorance of the nobility, their indolence and contempt of civil government, require that there should be a body invested with the power of reviving and executing the laws, which would be otherwise buried in oblivion. The prince's council are not a proper depositary. They are naturally the depositary of the momentary will of the prince, and not of the fundamental laws. Besides, the prince's council is continually changing; it is neither permanent nor numerous; neither has it a sufficient share of the confidence of the people; consequently it is capable of setting them right in difficult conjunctures, or of reducing them to proper obedience.
Despotic governments, where there are no fundamental laws, have no such kind of depositary. Hence it is that religion has generally so much influence in those countries, because it forms a kind of permanent depositary; and if this cannot be said of religion, it may of the customs that are respected instead of laws.
Of the Laws in relation to the Nature of a despotic Government.
From the nature of despotic power it follows that the single person, invested with this power, commits the execution of it also to a single person. A man whom his senses continually inform that he himself is everything and that his subjects are nothing, is naturally lazy, voluptuous, and ignorant. In consequence of this, he neglects the management of public affairs. But were he to commit the administration to many, there would be continual disputes among them; each would form intrigues to be his first slave; and he would be obliged to take the reins into his own hands. It is, therefore, more natural for him to resign it to a vizir,30 and to invest him with the same power as himself. The creation of a vizir is a fundamental law of this government.
It is related of a pope that he had started an infinite number of difficulties against his election, from a thorough conviction of his incapacity. At length he was prevailed on to accept of the pontificate, and resigned the administration entirely to his nephew. He was soon struck with surprise, and said, "I should never have thought that these things were so easy." The same may be said of the princes of the East, who, being educated in a prison where eunuchs corrupt their hearts and debase their understandings, and where they are frequently kept ignorant even of their high rank, when drawn forth in order to be placed on the throne, are at first confounded: but as soon as they have chosen a vizir, and abandoned themselves in their seraglio to the most brutal passions; pursuing, in the midst of a prostituted court, every capricious extravagance, they would never have dreamed that they could find matters so easy.
The more extensive the empire, the larger the seraglio; and consequently the more voluptuous the prince. Hence the more nations such a sovereign has to rule, the less he attends to the cares of government; the more important his affairs, the less he makes them the subject of his deliberations.
Of the Principles of the Three Kinds of Government Difference between the Nature and Principle of Government.
Having examined the laws in relation to the nature of each government, we must investigate those which relate to its principle.
There is this difference between the nature and principle of government, that the former is that by which it is constituted, the latter that by which it is made to act. One is its particular structure, and the other the human passions which set it in motion.
Now, laws ought no less to relate to the principle than to the nature of each government. We must, therefore, inquire into this principle, which shall be the subject of this third book.
Of the Principle of different Governments.
I have already observed that it is the nature of a republican government that either the collective body of the people, or particular families, should be possessed of the supreme power; of a monarchy, that the prince should have this power, but in the execution of it should be directed by established laws; of a despotic government, that a single person should rule according to his own will and caprice. This enables me to discover their three principles; which are thence naturally derived. I shall begin with a republican government, and in particular with that of democracy.
Of the Principle of Democracy.
There is no great share of probity necessary to support a monarchical or despotic government. The force of laws in one, and the prince's arm in the other, are sufficient to direct and maintain the whole. But in a popular state, one spring more is necessary, namely, virtue.
What I have here advanced is confirmed by the unanimous testimony of historians, and is extremely agreeable to the nature of things. For it is clear that in a monarchy, where he who commands the execution of the laws generally thinks himself above them, there is less need of virtue than in a popular government, where the person entrusted with the execution of the laws is sensible of his being subject to their direction.
Clear is it also that a monarch who, through bad advice or indolence, ceases to enforce the execution of the laws, may easily repair the evil; he has only to follow other advice; or to shake off this indolence. But when, in a popular government, there is a suspension of the laws, as this can proceed only from the corruption of the republic, the state is certainly undone.
A very droll spectacle it was in the last century to behold the impotent efforts of the English towards the establishment of democracy. As they who had a share in the direction of public affairs were void of virtue; as their ambition was inffamed by the success of the most daring of their members; as the prevailing parties were successively animated by the spirit of faction, the government was continually changing: the people, amazed at so many revolutions, in vain attempted to erect a commonwealth. At length, when the country had undergone the most violent shocks, they were obliged to have recourse to the very government which they had so wantonly proscribed.
When Sylla thought of restoring Rome to her liberty, this unhappy city was incapable of receiving that blessing. She had only the feeble remains of virtue, which were continually diminishing. Instead of being roused from her lethargy by Cæsar, Tiberius, Caius Claudius, Nero, and Domitian, she riveted every day her chains; if she struck some blows, her aim was at the tyrant, not at the tyranny.
The politic Greeks, who lived under a popular government, knew no other support than virtue. The modern inhabitants of that country are entirely taken up with manufacture, commerce, finances, opulence, and luxury.
When virtue is banished, ambition invades the minds of those who are disposed to receive it, and avarice possesses the whole community. The objects of their desires are changed; what they were fond of before has become indifferent; they were free while under the restraint of laws, but they would fain now be free to act against law; and as each citizen is like a slave who has run away from his master, that which was a maxim of equity he calls rigour; that which was a rule of action he styles constraint; and to precaution he gives the name of fear. Frugality, and not the thirst of gain, now passes for avarice. Formerly the wealth of individuals constituted the public treasure; but now this has become the patrimony of private persons. The members of the commonwealth riot on the public spoils, and its strength is only the power of a few, and the licence of many.
Athens was possessed of the same number of forces when she triumphed so gloriously as when with such infamy she was enslaved. She had twenty thousand citizens when she defended the Greeks against the Persians, when she contended for empire with Sparta, and invaded Sicily. She had twenty thousand when Demetrius Phalereus numbered them as slaves are told by the head in a market-place. When Philip attempted to lord it over Greece, and appeared at the gates of Athens she had even then lost nothing but time. We may see in Demosthenes how difficult it was to awaken her; she dreaded Philip, not as the enemy of her liberty, but of her pleasures. This famous city, which had withstood so many defeats, and having been so often destroyed had as often risen out of her ashes, was overthrown at Chæronea, and at one blow deprived of all hopes of resource. What does it avail her that Philip sends back her prisoners, if he does not return her men? It was ever after as easy to triumph over the forces of Athens as it had been difficult to subdue her virtue.
How was it possible for Carthage to maintain her ground? When Hannibal, upon his being made prætor, endeavoured to hinder the magistrates from plundering the republic, did not they complain of him to the Romans? Wretches, who would fain be citizens without a city, and be beholden for their riches to their very destroyers! Rome soon insisted upon having three hundred of their principal citizens as hostages; she obliged them next to surrender their arms and ships; and then she declared war. From the desperate efforts of this defenceless city, one may judge of what she might have performed in her full vigour, and assisted by virtue.
Of the Principle of Aristocracy.
As virtue is necessary in a popular government, it is requisite also in an aristocracy. True it is that in the latter it is not so absolutely requisite.
The people, who in respect to the nobility are the same as the subjects with regard to a monarch, are restrained by their laws. They have, therefore, less occasion for virtue than the people in a democracy. But how are the nobility to be restrained? They who are to execute the laws against their colleagues will immediately perceive that they are acting against themselves. Virtue is therefore necessary in this body, from the very nature of the constitution.
An aristocratic government has an inherent vigour, unknown to democracy. The nobles form a body, who by their prerogative, and for their own particular interest, restrain the people; it is sufficient that there are laws in being to see them executed.
But easy as it may be for the body of the nobles to restrain the people, it is difficult to restrain themselves. Such is the nature of this constitution, that it seems to subject the very same persons to the power of the laws, and at the same time to exempt them.
Now such a body as this can restrain itself only in two ways; either by a very eminent virtue, which puts the nobility in some measure on a level with the people, and may be the means of forming a great republic; or by an inferior virtue, which puts them at least upon a level with one another, and upon this their preservation depends.
Moderation is therefore the very soul of this government; a moderation, I mean, founded on virtue, not that which proceeds from indolence and pusillanimity.
That Virtue is not the Principle of a Monarchical Government.
In monarchies, policy effects great things with as little virtue as possible. Thus in the nicest machines, art has reduced the number of movements, springs, and wheels.
The state subsists independently of the love of our country, of the thirst of true glory, of self-denial, of the sacrifice of our dearest interests, and of all those heroic virtues which we admire in the ancients, and to us are known only by tradition.
The laws supply here the place of those virtues; they are by no means wanted, and the state dispenses with them: an action performed here in secret is in some measure of no consequence.
Though all crimes be in their own nature public, yet there is a distinction between crimes really public and those that are private, which are so called because they are more injurious to individuals than to the community.
Now in republics private crimes are more public, that is, they attack the constitution more than they do individuals; and in monarchies, public crimes are more private, that is, they are more prejudicial to private people than to the constitution.
I beg that no one will be offended with what I have been saying; my observations are founded on the unanimous testimony of historians. I am not ignorant that virtuous princes are so very rare; but I venture to affirm that in a monarchy it is extremely difficult for the people to be virtuous.
Let us compare what the historians of all ages have asserted concerning the courts of monarchs; let us recollect the conversations and sentiments of people of all countries, in respect to the wretched character of courtiers, and we shall find that these are not airy speculations, but truths confirmed by a sad and melancholy experience.
Ambition in idleness; meanness mixed with pride; a desire of riches without industry; aversion to truth; flattery, perfidy, violation of engagements, contempt of civil duties, fear of the prince's virtue, hope from his weakness, but, above all, a perpetual ridicule cast upon virtue, are, I think, the characteristics by which most courtiers in all ages and countries have been constantly distinguished. Now, it is exceedingly difficult for the leading men of the nation to be knaves, and the inferior sort to be honest; for the former to be cheats, and the latter to rest satisfied with being only dupes.
But if there should chance to be some unlucky honest man 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.
In what Manner Virtue is supplied in a Monarchical Government.
But it is high time for me to have done with this subject, lest I should be suspected of writing a satire against monarchical government. Far be it from me; if monarchy wants one spring, it is provided with another. Honour, that is, the prejudice of every person and rank, supplies the place of the political virtue of which I have been speaking, and is
everywhere her representative: here it is capable of inspiring the most glorious actions, and, joined with the force of laws, may lead us to the end of government as well as virtue itself.
Hence, in well-regulated monarchies, they are almost all good subjects, and very few good men; for to be a good man 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.
Of the Principle of Monarchy.
xyzA monarchical government supposes, as we have already observed, pre-eminences and ranks, as likewise a noble descent. Now since it is the nature of honour to aspire to preferments and titles, it is properly placed in this government.
Ambition is pernicious in a republic. But in a monarchy it has some good effects; it gives life to the government, and is attended with this advantage, that it is in no way dangerous, because it may be continually checked.
It is with this kind of government as with the system of the universe, in which there is a power that constantly repels all bodies from the centre, and a power of gravitation that attracts them to it. Honour sets all the parts of the body politic in motion, and by its very action connects them; thus each individual advances the public good, while he only thinks of promoting his own interest.
True it is that, philosophically speaking, it is a false honour which moves all the parts of the government; but even this false honour is as useful to the public as true honour could possibly be to private persons.
Is it not very exacting to oblige men to perform the most difficult actions, such as require an extraordinary exertion of fortitude and resolution, without other recompense than that of glory and applause?
That Honour is not the Principle of Despotic Government.
Honour is far from being the principle of despotic government: mankind being here all upon a level, no one person can prefer himself to another; and as on the other hand they are all slaves, they can give themselves no sort of preference.
Besides, as honour has its laws and rules, as it knows not how to submit; as it depends in a great measure on a man's own caprice, and not on that of another person; it can be found only in countries in which the constitution is fixed, and where they are governed by settled laws.
How can despotism abide with honour? The one glories in the contempt of life; and the other is founded on the power of taking it away. How can honour, on the other hand, bear with despotism? The former has its fixed rules, and peculiar caprices; but the latter is directed by no rule, and its own caprices are subversive of all others.
Honour, therefore, a thing unknown in arbitrary governments, some of which have not even a proper word to express it, is the prevailing principle in monarchies; here it gives life to the whole body politic, to the laws, and even to the virtues themselves.
Of the Principle of Despotic Government.
As virtue is necessary in a republic, and in a monarchy honour, so fear is necessary in a despotic government: with regard to virtue, there is no occasion for it, and honour would be extremely dangerous.
Here the immense power of the prince devolves entirely upon those whom he is pleased to entrust with the administration. Persons capable of setting a value upon themselves would be likely to create disturbances. Fear must therefore depress their spirits, and extinguish even the least sense of ambition.
A moderate government may, whenever it pleases, and without the least danger, relax its springs. It supports itself by the laws, and by its
own internal strength. But when a despotic prince ceases for one single moment to uplift his arm, when he cannot instantly demolish those whom he has entrusted with the first employments, all is over: for as fear, the spring of this government, no longer subsists, the people are left without a protector.
It is probably in this sense the Cadis maintained that the Grand Seignior was not obliged to keep his word or oath, when he limited thereby his authority.
It is necessary that the people should be judged by laws, and the great men by the caprice of the prince, that the lives of the lowest subject should be safe, and the pasha's head ever in danger. We cannot mention these monstrous governments without horror. The Sophi of Persia, dethroned in our days by Mahomet, the son of Miriveis, saw the constitution subverted before this resolution, because he had been too sparing of blood.
History informs us that the horrid cruelties of Domitian struck such a terror into the governors that the people recovered themselves a little during his reign. Thus a torrent overflows one side of a country, and on the other leaves fields untouched, where the eye is refreshed by the prospect of fine meadows.
Difference of Obedience in Moderate and Despotic Governments.
In despotic states, the nature of government requires the most passive obedience; and when once the prince's will is made known, it ought infallibly to produce its effect.
Here they have no limitations or restrictions, no mediums, terms, equivalents, or remonstrances; no change to propose: man is a creature that blindly submits to the absolute will of the sovereign.
In a country like this they are no more allowed to represent their apprehensions of a future danger than to impute their miscarriage to the capriciousness of fortune. Man's portion here, like that of beasts, is instinct, compliance, and punishment.
Little does it then avail to plead the sentiments of nature, filial respect, conjugal or parental tenderness, the laws of honour, or want of health; the order is given, and, that is sufficient.
In Persia, when the king has condemned a person, it is no longer lawful to mention his name, or to intercede in his favour. Even if the prince were intoxicated, or non compos, the decree must be executed; otherwise he would contradict himself, and the law admits of no contradiction. This has been the way of thinking in that country in all ages; as the order which Ahasuerus gave, to exterminate the Jews, could not be revoked, they were allowed the liberty of defending themselves.
One thing, however, may be sometimes opposed to the prince's will, namely, religion. They will abandon, nay they will slay a parent, if the prince so commands; but he cannot oblige them to drink wine. The laws of religion are of a superior nature, because they bind the sovereign as well as the subject. But with respect to the law of nature, it is otherwise; the prince is no longer supposed to be a man.
In monarchical and moderate states, the power is limited by its very spring, I mean by honour, which, like a monarch, reigns over the prince and his people. They will not allege to their sovereign the laws of religion; a courtier would be apprehensive of rendering himself ridiculous. But the laws of honour will be appealed to on all occasions. Hence arise the restrictions necessary to obedience; honour is naturally subject to whims, by which the subject's submission will be ever directed.
Though the manner of obeying be different in these two kinds of~government, the power is the same. On which side soever the monarch~turns, he inclines the scale, and is obeyed. The whole difference is~that in a monarchy the prince receives instruction, at the same time~that his ministers have greater abilities, and are more versed in public~affairs, than the ministers of a despotic government.~
Reflections on the preceding Chapters.
Such are the principles of the three sorts of government: which does not imply that in a particular republic they actually are, but that they ought to be, virtuous; nor does it prove that in a particular monarchy they are actuated by honour, or in a particular despotic government by fear; but that they ought to be directed by these principles, otherwise the government is imperfect.
1. This is a very important distinction, whence I shall draw many consequences; for it is the key of an infinite number of laws.
3. Plutarch, Pericles; Plato, in Critias.
4. She had at that time twenty-one thousand citizens, ten thousand strangers, and four hundred thousand slaves. See Athenæus, vi.
5. She had then twenty thousand citizens. See Demosthenes in Aristog.
6. They had passed a law, which rendered it a capital crime for any one to propose applying the money designed for the theatres to military
7. This lasted three years.
8. Public crimes may be punished, because it is here a common concern; but private crimes will go unpunished, because it is the common interest not to punish them.
9. I speak here of political virtue, which is also moral virtue as it is directed to the public good; very little of private moral virtue, and not at all of that virtue which relates to revealed truths. This will appear better in v. 2.
10. This is to be understood in the sense of the preceding note.
11. We must not, says he, employ people of mean extraction; they are too rigid and morose. -- Testament Polit., 4.
12. This word good man is understood here in a political sense only.
13. See Footnote 1.
14. See Perry, p. 447.
15. As it often happens in a military aristocracy.
16. Ricaut on the Ottoman Empire. I, ii.
17. See the history of this revolution by Father du Cerceau.
18. Suetonius, Life of Domitian, viii. His was a military constitution, which is one of the species of despotic government.
19. See Sir John Chardin.
That the Laws of Education Ought to Be in Relation to the Principles of Government Of the Laws of Education.
The laws of education are the first impressions we receive; and as they prepare us for civil life, every private family ought to be governed by the plan of that great household which comprehends them all.
If the people in general have a principle, their constituent parts, that is, the several families, will have one also. The laws of education will be therefore different in each species of government: in monarchies they will have honour for their object; in republics, virtue; in despotic governments, fear.
Of Education in Monarchies.
In monarchies the principal branch of education is not taught in colleges or academies. It commences, in some measure, at our setting out in the world; for this is the school of what we call honour, that universal preceptor which ought everywhere to be our guide.
Here it is that we constantly hear three rules or maxims, viz., that we should have a certain nobleness in our virtues, a kind of frankness in our morals, and a particular politeness in our behaviour.
The virtues we are here taught are less what we owe to others than to ourselves; they are not so much what draws us towards society, as what distinguishes us from our fellow-citizens. Here the actions of men are judged, not as virtuous, but as shining; not as just, but as great; not as reasonable, but as extraordinary. When honour here meets with anything noble in our actions, it is either a judge that approves them, or sophist by whom they are excused.
It allows of gallantry when united with the idea of sensible affection, or with that of conquest; this is the reason why we never meet with so strict a purity of morals in monarchies as in republican governments.
It allows of cunning and craft, when joined with the notion of greatness of soul or importance of affairs; as, for instance, in politics, with finesses of which it is far from being offended.
It does not forbid adulation, save when separated from the idea of a large fortune, and connected only with the sense of our mean condition.
With regard to morals, I have observed that the education of monarchies ought to admit of a certain frankness and open carriage. Truth, therefore, in conversation is here a necessary point. But is it for the sake of truth? By no means. Truth is requisite only because a person habituated to veracity has an air of boldness and freedom. And indeed a man of this stamp seems to lay a stress only on the things themselves, not on the manner in which they are received.
Hence it is that in proportion as this kind of frankness is commended, that of the common people is despised, which has nothing but truth and simplicity for its object.
In fine, the education of monarchies requires a certain politeness of behaviour. Man, a sociable animal, is formed to please in society; and a person that would break through the rules of decency, so as to shock those he conversed with, would lose the public esteem, and become incapable of doing any good.
But politeness, generally speaking, does not derive its origin from so pure a source. It arises from a desire of distinguishing ourselves. It is pride that renders us polite; we are flattered with being taken notice of for behaviour that shows we are not of a mean condition, and that we have not been bred with those who in all ages are considered the scum of the people.
Politeness, in monarchies, is naturalised at court. One man excessively great renders everybody else little. Hence that regard which is paid to our fellow-subjects; hence that politeness, equally pleasing to those by whom, as to those towards whom, it is practised, because it gives people to understand that a person actually belongs, or at least deserves to belong, to the court.
A courtly air consists in quitting a real for a borrowed greatness. The latter pleases the courtier more than the former. It inspires him with a certain disdainful modesty, which shows itself externally, but whose pride insensibly diminishes in proportion to its distance from the source of this greatness.
At court we find a delicacy of taste in everything -- a delicacy arising from the constant use of the superfluities of life, from the variety, and especially the satiety, of pleasures, from the multiplicity and even confusion of fancies, which, if they are but agreeable, are sure of being well received.
These are the things which properly fall within the province of education, in order to form what we call a man of honour, a man possessed of all the qualities and virtues requisite in this kind of government.
Here it is that honour interferes with everything, mixing even with people's manner of thinking, and directing their very principles.
To this whimsical honour it is owing that the virtues are only just what it pleases; it adds rules of its own invention to everything prescribed to us; it extends or limits our duties according to its own fancy, whether they proceed from religion, politics, or morality.
There is nothing so strongly inculcated in monarchies, by the laws, by religion and honour, as submission to the prince's will; but this very honour tells us that the prince never ought to command a dishonourable action, because this would render us incapable of serving him.
Crillon refused to assassinate the Duke of Guise, but offered to fight him. After the massacre of St. Bartholomew, Charles IX, having sent orders to the governors in the several provinces for the Huguenots to be murdered, Viscount Dorte, who commanded at Bayonne, wrote thus to the king: "Sire, among the inhabitants of this town, and your majesty's troops, I could not find so much as one executioner; they are honest citizens and brave soldiers. We jointly, therefore, beseech your majesty to command our arms and lives in things that are practicable." This great and generous soul looked upon a base action as a thing impossible.
There is nothing that honour more strongly recommends to the nobility than to serve their prince in a military capacity. And, indeed, this is their favourite profession, because its dangers, its success, and even its miscarriages are the road to grandeur. Yet this very law of its own making honour chooses to explain: and in case of any affront, it requires or permits us to retire.
It insists also that we should be at liberty either to seek or to reject employments, a liberty which it prefers even to an ample fortune.
Honour therefore has its supreme laws, to which education is obliged to conform. The chief of these are that we are permitted to set a value upon our fortune, but are absolutely forbidden to set any upon our lives.
The second is that, when we are raised to a post or preferment, we should never do or permit anything which may seem to imply that we look upon ourselves as inferior to the rank we hold.
The third is that those things which honour forbids are more rigorously forbidden, when the laws do not concur in the prohibition; and those it commands are more strongly insisted upon, when they happen not to be commanded by law.
Of Education in a Despotic Government.
As education in monarchies tends to raise and ennoble the mind, in despotic governments its only aim is to debase it. Here it must necessarily be servile; even in power such an education will be an advantage, because every tyrant is at the same time a slave.
Excessive obedience supposes ignorance in the person that obeys: the same it supposes in him that commands, for he has no occasion to deliberate, to doubt, to reason; he has only to will.
In despotic states, each house is a separate government. As education, therefore, consists chieflv in social converse, it must be here very much limited; all it does is to strike the heart with fear, and to imprint on the understanding a very simple notion of a few principles of religion. Learning here proves dangerous, emulation fatal; and as to virtue, Aristotle cannot think that there is any one virtue belonging to slaves; if so, education in despotic countries is confined within a very narrow compass.
Here, therefore, education is in some measure needless: to give something, one must take away everything, and begin with making a bad subject in order to make a good slave.
For why should education take pains in forming a good citizen, only to make him share in the public misery? If he loves his country, he will
strive to relax the springs of government; if he miscarries he will be undone; if he succeeds, he must expose himself, the prince, and his country to ruin.
Difference between the Effects of Ancient and Modern Education.
Most of the ancients lived under governments that had virtue for their principle; and when this was in full vigour they performed actions unusual in our times, and at which our narrow minds are astonished.
Another advantage their education possessed over ours was that it never could be effaced by contrary impressions. Epaminondas, the last year of his life, said, heard, beheld, and performed the very same things as at the age in which he received the first principles of his education.
In our days we receive three different or contrary educations, namely, of our parents, of our masters, and of the world. What we learn in the latter effaces all the ideas of the former. This, in some measure, arises from the contrast we experience between our religious and worldly engagements, a thing unknown to the ancients.
Of Education in a Republican Government.
It is in a republican government that the whole power of education is required. The fear of despotic governments naturally arises of itself amidst threats and punishments; the honour of monarchies is favoured by the passions, and favours them in its turn; but virtue is a self-renunciation, which is ever arduous and painful.
This virtue may be defined as the love of the laws and of our country. As such love requires a constant preference of public to private interest, it is the source of all private virtues; for they are nothing more than this very preference itself.
This love is peculiar to democracies. In these alone the government is entrusted to private citizens. Now a government is like everything else: to preserve it we must love it.
Has it ever been known that kings were not fond of monarchy, or that despotic princes hated arbitrary power?
Everything therefore depends on establishing this love in a republic; and to inspire it ought to be the principal business of education: but the surest way of instilling it into children is for parents to set them an example.
People have it generally in their power to communicate their ideas to their children; but they are still better able to transfuse their passions.
If it happens otherwise, it is because the impressions made at home are effaced by those they have received abroad.
It is not the young people that degenerate; they are not spoiled till those of maturer age are already sunk into corruption.
Of some Institutions among the Greeks.
The ancient Greeks, convinced of the necessity that people who live under a popular government should be trained up to virtue, made very singular institutions in order to inspire it. Upon seeing in the life of Lycurgus the laws that legislator gave to the Lacedæmonians, I imagine I am reading the history of the Sevarambes. The laws of Crete were the model of those of Sparta; and those of Plato reformed them.
Let us reflect here a little on the extensive genius with which those legislators must have been endowed, to perceive that by striking at received customs, and by confounding all manner of virtues, they should display their wisdom to the universe. Lycurgus, by blending theft with the spirit of justice, the hardest servitude with excess of liberty, the most rigid sentiments with the greatest moderation, gave stability to his city. He seemed to deprive her of all resources, such as arts, commerce, money, and walls; ambition prevailed among the citizens without hopes of improving their fortune; they had natural sentiments without the tie of a son, husband, or father; and chastity was stripped even of modesty and shame. This was the road that led Sparta to grandeur and glory; and so infallible were these institutions, that it signified nothing to gain a victory over that republic without subverting her polity.
By these laws Crete and Laconia were governed. Sparta was the last that fell a prey to the Macedonians, and Crete to the Romans.
The Samnites had the same institutions, which furnished those very Romans with the subject of four-and-twenty triumphs.
A character so extraordinary 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 free men, in the prejudices they overcame, and in the passions which they subdued.
Another example we have from Paraguay. This has been the subject of an invidious charge against a society that considers the pleasure of commanding as the only happiness in life: but it will be ever a glorious undertaking to render a government subservient to human happiness.
It is glorious indeed for this society to have been the first in pointing out to those countries the idea of religion joined with that of humanity. By repairing the devastations of the Spaniards, she has begun to heal one of the most dangerous wounds that the human species ever received.
An exquisite sensibility to whatever she distinguishes by the name of honour, joined to her zeal for a religion which is far more humbling in respect to those who receive than to those who preach its doctrines, has set her upon vast undertakings, which she has accomplished with success. She has drawn wild people from their woods, secured them a maintenance, and clothed their nakedness; and had she only by this step improved the industry of mankind, it would have been sufficient to eternise her fame.
They who shall attempt hereafter to introduce like institutions must establish the community of goods as prescribed in Plato's republic; that high respect he required for the gods; that separation from strangers, for the preservation of morals; and an extensive commerce carried on by the community, and not by private citizens: they must give our arts without our luxury, and our wants without our desires.
They must proscribe money, the effects of which are to swell people's fortunes beyond the bounds prescribed by nature; to learn to preserve for no purpose what has been idly hoarded up; to multiply without end our desires; and to supply the sterility of nature, from whom we have received very scanty means of inflaming our passions, and of corrupting each other.
"The Epidamnians, perceiving their morals depraved by conversing with barbarians, chose a magistrate for making all contracts and sales in the name and behalf of the city." Commerce then does not corrupt the constitution, and the constitution does not deprive society of the advantages of commerce.
In what Cases these singular Institutions may be of Service.
Institutions of this kind may be proper in republics, because they have virtue for their principle; but to excite men to honour in monarchies, or to inspire fear in despotic governments, less trouble is necessary.
Besides, they can take place but in a small state, in which there is a possibility of general education, and of training up the body of the people like a single family.
The laws of Minos, of Lycurgus, and of Plato suppose a particular attention and care, which the citizens ought to have over one another's conduct. But an attention of this kind cannot be expected in the confusion and multitude of affairs in which a large nation is entangled.
In institutions of this kind, money, as we have above observed, must be banished. But in great societies, the multiplicity, variety, embarrassment, and importance of affairs, as well as the facility of purchasing, and the slowness of exchange, require a common measure. In order to support or extend our power, we must be possessed of the means to which, by the unanimous consent of mankind, this power is annexed.
Explanation of a Paradox of the Ancients in respect to Manners.
That judicious writer, Polybius, informs us that music was necessary to soften the manners of the Arcadians, who lived in a cold, gloomy country; that the inhabitants of Cynete, who slighted music, were the cruellest of all the Greeks, and that no other town was so immersed in luxury and debauchery. Plato is not afraid to affirm that there is no possibility of making a change in music without altering the frame of government. Aristotle, who seems to have written his Politics only in order to contradict Plato, agrees with him, notwithstanding, in regard to the power and influence of music over the manners of the people. 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. Thus it was they enacted laws, and thus they required that cities should be governed.
This I fancy must be explained in the following manner. It is observable that in the cities of Greece, especially those whose .principal object was war, all lucrative arts and professions were considered unworthy of a freeman. "Most arts," says Xenophon, "corrupt and enervate the bodies of those that exercise them; they oblige them to sit in the shade, or near the fire. They can find no leisure, either for their friends or for the republic." It was only by the corruption of some democracies that artisans became freemen. This we learn from Aristotle, who maintains that a well-regulated republic will never give them the right and freedom of the city.
Agriculture was likewise a servile profession, and generally practised by the inhabitants of conquered countries, such as the Helotes among the Lacedæmonians, the Periecians among the Cretans, the Penestes among the Thessalians, and other conquered people in other republics.
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 Plato in his Laws orders a citizen to be punished if he attempts to concern himself with trade.
Thus in the Greek republics the magistrates were extremely embarrassed. They would not have the citizens apply themselves to trade, to agriculture, or to the arts, and yet they would not have them idle. They found, therefore, employment for them in gymnic and military exercises; and none else were allowed by their institution. Hence the Greeks must be considered as a society of wrestlers and boxers. Now, these exercises having a natural tendency to render people hardy and fierce, there was a necessity for tempering them with others that might soften their manners. For this purpose, music, which influences the
mind by means of the corporeal organs, was extremely proper. It is a kind of medium between manly exercises, which harden the body, and speculative sciences, which are apt to render us unsociable and sour. It cannot be said that music inspired virtue, for this would be inconceivable: but it prevented the effects of a savage institution, and enabled the soul to have such a share in the education as it could never have had without the assistance of harmony.
Let us suppose among ourselves a society of men so passionately fond of hunting as to make it their sole employment; they would doubtless contract thereby a kind of rusticity and fierceness. But if they happen to imbibe a taste for music, we should quickly perceive a sensible difference in their customs and manners. In short, the exercises used by the Greeks could raise but one kind of passions, viz., fierceness, indignation, and cruelty. But music excites all these; and is likewise able to inspire the soul with a sense of pity, lenity, tenderness, and love. Our moral writers, who declaim so vehemently against the stage, sufficiently demonstrate the power of music over the mind.
If the society above mentioned were to have no other music than that of drums, and the sound of the trumpet, would it not be more difficult to accomplish this end than by the more melting tones of softer harmony? The ancients were therefore in the right when, under particular circumstances, they preferred one mode to another in regard to manners.
But some will ask, why should music be pitched upon as preferable to any other entertainment? It is because of all sensible pleasures there is none that less corrupts the soul. We blush to read in Plutarch that the Thebans, in order to soften the manners of their youth, authorised by law a passion which ought to be proscribed by all nations.
1. See d'Aubigny's History.
2. We mention here what actually is, and not what ought to be; honour is a prejudice, which religion sometimes endeavours to remove, and at other times to regulate.
3. Politics, i. 13.
4. Philopoemen obliged the Lacedæmonians to change their manner of educating their children, being convinced that if he did not take this measure they would always be noted for their magnanimity. -- Plutarch, Philopoemen. See Livy, xxxviii.
5. She defended her laws and liberty for the space of three years. See the 98th, 99th, and 100th book of Livy, in Florus's epitome. She made a braver resistance than the greatest kings.
6. Florus, i. 16.
7. In fece Romuli. -- Cicero, Letters to Atticus, ii. 1.
8. The Indians of Paraguay do not depend on any particular lord; they
pay only a fifth of the taxes, and are allowed the use of firearms to defend themselves.
9. Plutarch in his Questions Concerning the Greek Affairs, xxix.
10. Such as were formerly the cities of Greece.
11. Republic, iv.
12. Politics, viii. 5.
14. Plato, in his seventh book of Laws, says that the præfectures of music and gymnic exercises are the most important employments in the city; and, in his Republic, iii, Damon will tell you, says he, what sounds are capable of corrupting the mind with base sentiments, or of inspiring the contrary virtues.
15. Memorabilia, v.
16. Politics, iii. 4.
17. Diophantes, says Aristotle, Politics, ii. 7, made a law formerly at Athens, that artisans should be slaves to the republic.
18. Plato, likewise, and Aristotle require slaves to till the land, Laws, viii. Politics, vii. 10. True it is that agriculture was not everywhere exercised by slaves: on the contrary, Aristotle observes the best republics were those in which the citizens themselves tilled the land: but this was brought about by the corruption of the ancient governments, which had become democratic: for in earlier times the cities of Greece were subject to an aristocratic government.
20. Book v.
21. Aristotle, Politics, vii-viii.
22. Ibid., viii. 3.
23. Aristotle observes that the children of the Lacedæmonians, who began these exercises at a very tender age, contracted thence too great a ferocity and rudeness of behaviour. -- Ibid., viii. 4.
That the Laws Given by the Legislator Ought to Be in Relation to the Principle of Government Idea of this Book.
That the laws of education should relate to the principle of each government has been shown in the preceding book. Now the same may be said of those which the legislator gives to the whole society. The relation of laws to this principle strengthens the several springs of government; and this principle derives thence, in its turn, a new degree of vigour. And thus it is in mechanics, that action is always
followed by reaction.
Our design is, to examine this relation in each government, beginning with the republican state, the principle of which is virtue.
What is meant by Virtue in a political State.
Virtue in a republic is a most simple thing: it is a love of the republic; it is a sensation, and not a consequence of acquired knowledge: a sensation that may be felt by the meanest as well as by the highest person in the state. When the common people adopt good maxims, they adhere to them more steadily than those whom we call gentlemen. It is very rarely that corruption commences with the former: nay, they frequently derive from their imperfect light a stronger attachment to the established laws and customs.
The love of our country is conducive to a purity of morals, and the latter is again conducive to the former. The less we are able to satisfy our private passions, the more we abandon ourselves to those of a general nature. How comes it that monks are so fond of their order? It is owing to the very cause that renders the order insupportable. Their rule debars them from all those things by which the ordinary passions are fed; there remains therefore only this passion for the very rule that torments them. The more austere it is, that is, the more it curbs their inclinations, the more force it givfes to the only passion left them.
What is meant by a Love of the Republic in a Democracy.
A love of the republic in a democracy is a love of the democracy; as the latter is that of equality.
A love of the democracy is likewise that of frugality. Since every individual ought here to enjoy the same happiness and the same advantages, they should consequently taste the same pleasures and form the same hopes, which cannot be expected but from a general frugality.
The love of equality in a democracy limits ambition to the sole desire, to the sole happiness, of doing greater services to our country than the rest of our fellow-citizens. They cannot all render her equal services, but they all ought to serve her with equal alacrity. At our coming into the world, we contract an immense debt to our country, which we can never discharge.
Hence distinctions here arise from the principle of equality, even when it seems to be removed by signal services or superior abilities.
The love of frugality limits the desire of having to the study of procuring necessaries to our family, and superfluities to our country. Riches give a power which a citizen cannot use for himself, for then he would be no longer equal. They likewise procure pleasures which he ought not to enjoy, because these would be also repugnant to the equality.
Thus well-regulated democracies, by establishing domestic frugality, made way at the same time for public expenses, as was the case at Rome and Athens, when magnificence and profusion arose from the very fund of frugality. And as religion commands us to have pure and unspotted hands when we make our offerings to the gods, the laws required a frugality of life to enable them to be liberal to our country.
The good sense and happiness of individuals depend greatly upon the mediocrity of their abilities and fortunes. Therefore, as a republic, where the laws have placed many in a middling station, is composed of wise men, it will be wisely governed; as it is composed of happy men, it will be extremely happy.
In what Manner the Love of Equality and Frugality is inspired.
The love of equality and of a frugal economy is greatly excited by equality and frugality themselves, in societies where both these virtues are established by law.
In monarchies and despotic governments, nobody aims at equality; this does not so much as enter their thoughts; they all aspire to superiority. People of the very lowest condition desire to emerge from their obscurity, only to lord it over their fellow-subjects.
It is the same with respect to frugality. To love it, we must practise and enjoy it. It is not those who are enervated by pleasure that are fond of a frugal life; were this natural and common, Alcibiades would never have been the admiration of the universe. Neither is it those who envy or admire the luxury of the great; people that have present to their view none but rich men, or men miserable like themselves, detest their wretched condition, without loving or knowing the real term or point of misery.
A true maxim it is, therefore, that in order to love equality and frugality in a republic, these virtues must have been previously established by law.
In what Manner the Laws establish Equality in a Democracy.
Some ancient legislators, as Lycurgus and Romulus, made an equal division of lands. A settlement of this kind can never take place except upon the foundation of a new republic; or when the old one is so corrupt, and the minds of the people are so disposed, that the poor think themselves obliged to demand, and the rich obliged to consent to a remedy of this nature.
If the legislator, in making a division of this kind, does not enact laws at the same time to support it, he forms only a temporary constitution; inequality will break in where the laws have not precluded it, and the republic will be utterly undone.
Hence for the preservation of this equality it is absolutely necessary there should be some regulation in respect to women's dowries, donations, successions, testamentary settlements, and all other forms of contracting. For were we once allowed to dispose of our property to whom and how we pleased, the will of each individual would disturb the order of the fundamental law.
Solon, by permitting the Athenians, upon failure of issue to leave their estates to whom they pleased, acted contrary to the ancient laws, by which the estates were ordered to continue in the family of the testator; and even contrary to his own laws, for by abolishing debts he had aimed at equality.
The law which prohibited people having two inheritances was extremely well adapted for a democracy. It derived its origin from the equal distribution of lands and portions made to each citizen. The law would not permit a single man to possess more than a single portion.
From the same source arose those laws by which the next relative was ordered to marry the heiress. This law was given to the Jews after the like distribution. Plato, who grounds his laws on this division, made the same regulation which had been received as a law by the Athenians.
At Athens there was a law whose spirit, in my opinion, has not been hitherto rightly understood. It was lawful to marry a sister only by the father's side, but it was not permitted to espouse a sister by the same venter. This custom was originally owing to republics, whose spirit would not permit that two portions of land, and consequently two inheritances, should devolve on the same person. A man who married his sister only by the father's side could inherit but one estate, namely, that of his father; but by espousing his sister by the same venter, it might happen that this sister's father, having no male issue, might leave her his estate, and consequently the brother who married her might be possessed of two.
Little will it avail to object to what Philo says, that although the Athenians were allowed to marry a sister by the father's side, and not by the mother's, yet the contrary practice prevailed among the Lacedæmonians, who were permitted to espouse a sister by the mother's side, and not by the father's. For I find in Strabo that at Sparta, whenever a woman was married to her brother she had half his portion for her dowry. Plain is it that this second law was made in order to prevent the bad consequences of the former. That the estate belonging to the sister's family might not devolve on the brother's, they gave half the brother's estate to the sister for her dowry.
Seneca speaking of Silanus, who had married his sister, says that the permission was limited at Athens, but general at Alexandria. In a monarchical government there was very little concern about any such thing as a division of estates.
Excellent was that law which, in order to maintain this division of lands in a democracy, ordained that a father who had several children should pitch upon one of them to inherit his portion, 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, instead of giving them fortunes. But I do not remember that a regulation of this kind ever took place in any republic. It lays the citizens under such hard and oppressive conditions as would make them detest the very equality which they designed to establish. It is proper sometimes that the laws should not seem to tend so directly to the end they propose.
Though real equality be the very soul of a democracy, it is so difficult to establish that an extreme exactness in this respect would not be always convenient. Sufficient is it to establish a census which shall reduce or fix the differences to a certain point: it is afterwards the business of particular laws to level, as it were, the inequalities, by the duties laid upon the rich, and by the ease afforded to the poor. It is moderate riches alone that can give or suffer this sort of compensation; for as to men of overgrown estates, everything which does not contribute to advance their power and honour is considered by them as an injury.
All inequality in democracies ought to be derived from the nature of the government, and even from the principle of equality. For example, it may be apprehended that people who are obliged to live by their labour would be too much impoverished by a public employment, or neglect the duties attending it; that artisans would grow insolent, and that too great a number of freemen would overpower the ancient citizens. In this case the equality in a democracy may be suppressed for the good of the state. But this is only an apparent equality; for a man ruined by a public employment would be in a worse condition than his fellow-citizens; and this same man, being obliged to neglect his duty, would reduce the rest to a worse condition than himself, and so on.
In what Manner the Laws ought to maintain Frugality in a Democracy.
It is not sufficient in a well-regulated democracy that the divisions of land be equal; they ought also to be small, as was customary among the Romans. "God forbid," said Curius to his soldiers, "that a citizen should look upon that as a small piece of land which is sufficient to maintain him."
As equality of fortunes supports frugality, so the latter maintains the former. These things, though in themselves different, are of such a nature as to be unable to subsist separately; they reciprocally act upon each other; if one withdraws itself from a democracy, the other surely follows it.
True is it that when a democracy is founded on commerce, private people may acquire vast riches without a corruption of morals.
This is because the spirit of commerce is naturally attended with that of frugality, economy, moderation, labour, prudence, tranquillity, order, and rule. So long as this spirit subsists, the riches it produces have no bad effect. The mischief is, when excessive wealth destroys the spirit of commerce, then it is that the inconveniences of inequality begin to be felt.
In order to support this spirit, commerce should be carried on by the principal citizens; this should be their sole aim and study; this the chief object of the laws: and these very laws, by dividing the estates of individuals in proportion to the increase of commerce, should set every poor citizen so far at his ease as to be able to work like the rest, and every wealthy citizen in such a mediocrity as to be obliged to take some pains either in preserving or acquiring a fortune.
It is an excellent law in a trading republic to make an equal division of the paternal estate among the children. The consequence of this is that how great soever a fortune the father has made, his children, being not so rich as he, are induced to avoid luxury, and to work as he has done. I speak here only of trading republics; as to those that have no commerce, the legislator must pursue quite different measures.
In Greece there were two sorts of republics: the one military, like Sparta; the other commercial, as Athens. In the former, the citizens were obliged to be idle; in the latter, endeavours were used to inspire them with the love of industry and labour. Solon made idleness a crime, and insisted that each citizen should give an account of his manner of getting a livelihood. And, indeed, in a well-regulated democracy, where people's expenses should extend only to what is necessary, every one ought to have it; for how should their wants be otherwise supplied?
Other Methods of favouring the Principle of Democracy.
An equal division of lands cannot be established in all democracies. There are some circumstances in which a regulation of this nature would be impracticable, dangerous, and even subversive of the constitution. We are not always obliged to proceed to extremes. If it appears that this division of lands, which was designed to preserve the people's morals, does not suit the democracy, recourse must be had to other methods.
If a permanent body be established to serve as a rule and pattern of manners; a senate, to which years, virtue, gravity, and eminent services procure admittance; the senators, by being exposed to public view like the statues of the gods, must naturally inspire every family with sentiments of virtue.
Above all, this senate must steadily adhere to the ancient institutions, and mind that the people and the magistrates never swerve from them.
The preservation of the ancient customs is a very considerable point in respect to manners. Since a corrupt people seldom perform any memorable actions, seldom establish societies, build cities, or enact laws; on the contrary, since most institutions are derived from people whose manners are plain and simple, to keep up the ancient customs is the way to preserve the original purity of morals.
Besides, if by some revolution the state has happened to assume a new form, this seldom can be effected without infinite pains and labour, and hardly ever by idle and debauched persons. Even those who had been the instruments of the revolution were desirous it should be relished, which is difficult to compass without good laws. Hence it is that ancient institutions generally tend to reform the people's manners, and those of modern date to corrupt them. In the course of a long administration, the descent to vice is insensible; but there is no reascending to virtue without making the most generous efforts.
It has been questioned whether the members of the senate we are speaking of ought to be for life or only chosen for a time. Doubtless they ought to be for life, as was the custom at Rome, at Sparta, and even at Athens. For we must not confound the senate at Athens, which was a body that changed every three months, with the Areopagus, whose members, as standing patterns, were established for life.
Let this be therefore a general maxim; that in a senate designed to be a rule, and the depository, as it were, of manners, the members ought to be chosen for life: in a senate intended for the administration of affairs, the members may be changed.
The spirit, says Aristotle, waxes old as well as the body. This reflection holds good only in regard to a single magistrate, but cannot be applied to a senatorial assembly.
At Athens, besides the Areopagus, there were guardians of the public morals, as well as of the laws. At Sparta, all the old men were censors. At Rome, the censorship was committed to two particular magistrates. As the senate watched over the people, the censors were to have an eye over the people and the senate. Their office was to reform the corruptions of the republic, to stigmatise indolence, to censure neglects, and to correct mistakes; as to flagrant crimes, these were left to the punishment of the laws.
That Roman law which required the accusations in cases of adultery to be public was admirably well calculated for preserving the purity of morals; it intimidated married women, as well as those who were to watch over their conduct.
Nothing contributes more to the preservation of morals than an extreme
subordination of the young to the old. Thus they are both restrained, the former by their respect for those of advanced age, and the latter by their regard for themselves.
Nothing gives a greater force to the law than a perfect subordination between the citizens and the magistrate. "The great difference which Lycurgus established between Sparta and the other cities," says Xenophon, "consists chiefly in the obedience the citizens show to their laws; they run when the magistrate calls them. But at Athens a rich man would be highly displeased to be thought dependent on the magistrate."
Paternal authority is likewise of great use towards the preservation of morals. We have already observed that in a republic there is not so coercive a force as in other governments. The laws must therefore endeavour to supply this defect by some means or other; and this is done by paternal authority.
Fathers at Rome had the power of life and death over their children. At Sparta, every father had a right to correct another man's child.
Paternal authority ended at Rome together with the republic. In monarchies, where such a purity of morals is not required, they are controlled by no other authority than that of the magistrates.
The Roman laws, which accustomed young people to dependence, established a long minority. Perhaps we are mistaken in conforming to this custom; there is no necessity for so much constraint in monarchies.
This very subordination in a republic might make it necessary for the father to continue in the possession of his children's fortune during life, as was the custom at Rome. But this is not agreeable to the spirit of monarchy.
In what Manner the Laws should relate to the Principle of Government in an Aristocracy.
If the people are virtuous in an aristocracy, they enjoy very nearly the same happiness as in a popular government, and the state grows powerful. But as a great share of virtue is very rare where men's fortunes are so unequal, the laws must tend as much as possible to infuse a spirit of moderation, and endeavour to re-establish that equality which was necessarily removed by the constitution.
The spirit of moderation is what we call virtue in an aristocracy; it supplies the place of the spirit of equality in a popular state.
As the pomp and splendour with which kings are surrounded form a part of their power, so modesty and simplicity of manners constitute the strength of an aristocratic nobility. When they affect no distinction, when they mix with the people, dress like them, and with them share all their pleasures, the people are apt to forget their subjection and weakness.
Every government has its nature and principle. An aristocracy must not therefore assume the nature and principle of monarchy; which would be the case were the nobles to be invested with personal privileges distinct from those of their body; privileges ought to be for the senate, and simple respect for the senators.
In aristocratic governments there are two principal sources of disorder: excessive inequality between the governors and the governed; and the same inequality between the different members of the body that governs. From these two inequalities, hatreds and jealousies arise, which the laws ought ever to prevent or repress.
The first inequality is chiefly when the privileges of the nobility are honourable only as they are ignominious to the people. Such was the law at Rome by which the patricians were forbidden to marry plebeians; a law that had no other effect than to render the patricians on the one side more haughty, and on the other more odious. The reader may see what advantages the tribunes derived thence in their harangues.
This inequality occurs likewise when the condition of the citizens differs with regard to taxes, which may happen in four different ways: when the nobles assume the privilege of paying none; when they commit frauds to exempt themselves; when they engross the public money, under pretence of rewards or appointments for their respective employments; in fine, when they render the common people tributary, and divide among their own body the profits arising from the several subsidies. This last case is very rare; an aristocracy so instituted would be the most intolerable of all governments.
While Rome inclined towards aristocracy, she avoided all these inconveniences. The magistrates never received any emoluments from their office. The chief men of the republic were taxed like the rest, nay, more heavily; and sometimes the taxes fell upon them alone. In fine, far from sharing among themselves the revenues of the state, all they could draw from the public treasure, and all the wealth that fortune flung into their laps, they bestowed freely on the people, to be excused from accepting public honours.
It is a fundamental maxim that largesses are pernicious to the people in a democracy, but salutary in an aristocratic government. The former make them forget they are citizens, the latter bring them to a sense of it. If the revenues of the state are not distributed among the people, they must be convinced at least of their being well administered: to feast their eyes with the public treasure is with them the same thing almost as enjoying it. The golden chain displayed at Venice, the riches exhibited at Rome in public triumphs, the treasures preserved in the temple of Saturn, were in reality the wealth of the people.
It is a very essential point in an aristocracy that the nobles themselves should not levy the taxes. The first order of the state in Rome never concerned themselves with it; the levying of the taxes was committed to the second, and even this in process of time was attended with great inconveniences. In an aristocracy of this kind, where the nobles levied the taxes, the private people would be all at the discretion of persons in public employments; and there would be no such thing as a superior tribunal to check their power. The members appointed to remove the abuses would rather enjoy them. The nobles would be like the princes of despotic governments, who confiscate whatever estates they please.
Soon would the profits hence arising be considered as a patrimony, which avarice would enlarge at pleasure. The farms would be lowered, and the public revenues reduced to nothing. This is the reason that some governments, without having ever received any remarkable shock, have dwindled away to such a degree as not only their neighbours, but even their own subjects, have been surprised at it.
The laws should likewise forbid the nobles all kinds of commerce: merchants of such unbounded credit would monopolise all to themselves. Commerce is a profession of people who are upon an equality; hence among despotic states the most miserable are those in which the prince applies himself to trade.
The laws of Venice debar the nobles from commerce, by which they might even innocently acquire exorbitant wealth.
The laws ought to employ the most effectual means for making the nobles do justice to the people. If they have not established a tribune, they ought to be a tribune themselves.
Every sort of asylum in opposition to the execution of the laws destroys aristocracy, and is soon succeeded by tyranny. They ought always to mortify the lust of dominion. There should be either a temporary or perpetual magistrate to keep the nobles in awe, as the Ephori at Sparta and the State Inquisitors at Venice -- magistrates subject to no formalities. This sort of government stands in need of the strongest springs: thus a mouth of stone is open to every informer at Venice -- a mouth to which one would be apt to give the appellation of tyranny.
These arbitrary magistrates in an aristocracy bear some analogy to the censorship in democracies, which of its own nature is equally independent. And, indeed, the censors ought to be subject to no inquiry in relation to their conduct during their office; they should meet with a thorough confidence, and never be discouraged. In this respect the practice of the Romans deserved admiration; magistrates of all denominations were accountable for their administration, except the censors.
There are two very pernicious things in an aristocracy -- excess either of poverty, or of wealth in the nobility. To prevent their poverty, it is necessary, above all things, to oblige them to pay their debts in time. To moderate the excess of wealth, prudent and gradual regulations should be made; but no confiscations, no agrarian laws, no expunging of debts; these are productive of infinite mischief.
The laws ought to abolish the right of primogeniture among the nobles to the end that by a continual division of the inheritances their fortunes may be always upon a level.
There should be no substitutions, no powers of redemption, no rights of Majorasgo, or adoption. The contrivances for perpetuating the grandeur of families in monarchical governments ought never to be employed in aristocracies.
When the laws have compassed the equality of families, the next thing is to preserve a proper harmony and union among them. The quarrels of the nobility ought to be quickly decided; otherwise the contests of individuals become those of families. Arbiters may terminate, or even prevent, the rise ot disputes.
In fine, the laws must not favour the distinctions raised by vanity among families, under pretence that they are more noble or ancient than others. Pretences of this nature ought to be ranked among the weaknesses of private persons.
We have only to cast an eye upon Sparta; there we may see how the Ephori contrived to check the foibles of the kings, as well as those of the nobility and common people.
In what Manner the Laws are in relation to their Principle in Monarchies.
As honour is the principle of a monarchical government, the laws ought to be in relation to this principle.
They should endeavour to support the nobility, in respect to whom honour may be, in some measure, deemed both child and parent.
They should render the nobility hereditary, not as a boundary between the power of the prince and the weakness of the people, but as the link which connects them both.
In this government, substitutions which preserve the estates of families undivided are extremely useful, though in others not so proper.
Here the power of redemption is of service, as it restores to noble families the lands that had been alienated by the prodigality of a parent.
The land of the nobility ought to have privileges as well as their persons. The monarch's dignity is inseparable from that of his kingdom; and-the dignity of the nobleman from that of his fief.
All these privileges must be peculiar to the nobility, and incommunicable to the people, unless we intend to act contrary to the principle of government, and to diminish the power of the nobles together with that of the people.
Substitutions are a restraint to commerce, the power of redemption produces an infinite number of processes; every estate in land that is sold throughout the kingdom is in some measure without an owner for the space of a year. Privileges annexed to fiefs give a power very burdensome to those governments which tolerate them. These are the inconveniences of nobility -- inconveniences, however, that vanish when confronted with its general utility: but when these privileges are communicated to the people, every principle of government is wantonly violated.
In monarchies a person may leave the bulk of his estate to one of his children -- a permission improper in any other government.
The laws ought to favour all kinds of commerce consistent with the constitution, to the end that the subjects may, without ruining themselves, be able to satisfy the continual cravings of the prince and his court.
They should establish some regulation that the manner of collecting the taxes may not be more burdensome than the taxes themselves.
The weight of duties produces labour, labour weariness, and weariness the spirit of indolence.
Of the Expedition peculiar to the Executive Power in Monarchies.
Great is the advantage which a monarchical government has over a republic: as the state is conducted by a single person, the executive power is thereby enabled to act with greater expedition. But as this expedition may degenerate into rapidity, the laws should use some contrivance to slacken it. They ought not only to favour the nature of each constitution, but likewise to remedy the abuses that might result from this very nature.
Cardinal Richelieu advises monarchs to permit no such things as societies or communities that raise difficulties upon every trifle. If this man's heart had not been bewitched with the love of despotic power, still these arbitrary notions would have filled his head.
The bodies entrusted with the deposition of the laws are never more obedient than when they proceed slowly, and use that reflection in the prince's affairs which can scarcely be expected from the ignorance of a court, or from the precipitation of its councils.
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?
Of the Excellence of a Monarchical Government.
Monarchy has a great advantage over a despotic government. As it naturally requires there should be several orders or ranks of subjects, the state is more permanent, the constitution more steady, and the person of him who governs more secure.
Cicero is of opinion that the establishing of the tribunes preserved the republic. "And indeed," says he, "the violence of a headless people is more terrible. A chief or head is sensible that the affair depends upon himself, and therefore he thinks; but the people in their impetuosity are ignorant of the danger into which they hurry themselves." This reflection may be applied to a despotic government, which is a people without tribunes; and to a monarchy, where the people have some sort of tribunes.
Accordingly it is observable that in the commotions of a despotic government, the people, hurried away by their passions, are apt to push things as far as they can go. The disorders they commit are all extreme; whereas in monarchies matters are seldom carried to excess. The chiefs are apprehensive on their own account; they are afraid of being abandoned, and the intermediate dependent powers do not choose that the populace should have too much the upper hand. It rarely happens that the states of the kingdom are entirely corrupted: the prince adheres to these; and the seditious, who have neither will nor hopes to subvert the government, have neither power nor will to dethrone the prince.
In these circumstances men of prudence and authority interfere; moderate measures are first proposed, then complied with, and things at length are redressed; the laws resume their vigour, and command submission.
Thus all our histories are full of civil wars without revolutions, while the histories of despotic governments abound with revolutions without civil wars.
The writers of the history of the civil wars of some countries, even those who fomented them, sufficiently demonstrate the little foundation princes have to suspect the authority with which they invest particular bodies of men; since, even under the unhappy circumstance of their errors, they sighed only after the laws and their duty; and restrained, more than they were capable of inflaming, the impetuosity of the revolted. Cardinal Richelieu, reflecting perhaps that he had too much reduced the states of the kingdom, has recourse to the virtues of the prince and of his ministers for the support of government: but he requires so many things, that indeed there is none but an angel capable of such attention, such resolution and knowledge; and scarcely can we flatter ourselves that we shall ever see such a prince and ministers while monarchy subsists.
As people who live under a good government are happier than those who without rule or leaders wander about the forests, so monarchs who live under the fundamental laws of their country are far happier than despotic princes who have nothing to regulate, neither their own passions nor those of their subjects.
The same Subject continued.
Let us not look for magnanimity in despotic governments; the prince cannot impart a greatness which he has not himself; with him there is no such thing as glory.
It is in monarchies that we behold the subjects encircling the throne, and cheered by the irradiancy of the sovereign; there it is that each person filling, as it were, a larger space, is capable of exercising those virtues which adorn the soul, not with independence, but with true dignity and greatness.
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. This is an emblem of despotic government.
In what Manner the Laws are in relation to the Principles of Despotic Government.
The principle of despotic government is fear; but a timid, ignorant, and faint-spirited people have no occasion for a great number of laws.
Everything ought to depend here on two or three ideas; hence there is no necessity that any new notions should be added. When we want to break a horse, we take care not to let him change his master, his lesson, or his pace. Thus an impression is made on his brain by two or three motions, and no more.
If a prince is shut up in a seraglio, he cannot leave his voluptuous abode without alarming those who keep him confined. Thev will not bear that his person and power should pass into other hands. He seldom therefore wages war in person, and hardly ventures to entrust the command to his generals.
A prince of this stamp, unaccustomed to resistance in his palace, is enraged to see his will opposed by armed force; hence he is generally governed by wrath or vengeance. Besides, he can have no notion of true glory. War therefore is carried on under such a government in its full natural fury, and less extent is given to the law of nations than in other states.
Such a prince has so many imperfections that they are afraid to expose his natural stupidity to public view. He is concealed in his palace, and the people are ignorant of his situation. It is lucky for him that the inhabitants of those countries need only the name of a prince to govern them.
When Charles XII was at Bender, he met with some opposition from the senate of Sweden; upon which he wrote word home that he would send one of his boots to command them. This boot would have governed like a despotic prince.
If the prince is a prisoner, he is supposed to be dead, and another mounts the throne. The treaties made by the prisoner are void, his successor will not ratify them; and indeed, as he is the law, the state, and the prince: when he is no longer a prince, he is nothing: were he not therefore deemed to be deceased, the state would be subverted.
One thing which chiefly determined the Turks to conclude a separate peace with Peter I was the Muscovites telling the Vizir that in Sweden another prince had been placed upon the throne.
The preservation of the state is only the preservation of the prince, or rather of the palace where he is confined. Whatever does not directly menace this palace or the capital makes no impression on ignorant, proud, and prejudiced minds; and as for the concatenation of events, they are unable to trace, to foresee, or even to conceive it. Politics, with its several springs and laws, must here be very much limited; the political government is as simple as the civil.
The whole is reduced to reconciling the political and civil administration to the domestic government, the officers of state to those of the seraglio.
Such a state is happiest when it can look upon itself as the only one in the world, when it is environed with deserts, and separated from those people whom they call Barbarians. Since it cannot depend on the militia, it is proper it should destroy a part of itself.
As fear is the principle of despotic government, its end is tranquillity; but this tranquillity cannot be called a peace: no, it is only the silence of those towns which the enemy is ready to invade.
Since strength does not lie in the state, but in the army that founded it, in order to defend the state the army must be preserved, how formidable soever to the prince. How, then, can we reconcile the security of the government to that of the prince's person?
Observe how industriously the Russian government endeavours to temper its arbitrary power, which it finds more burdensome than the people themselves. They have broken their numerous guards, mitigated criminal punishments, erected tribunals, entered into a knowledge of the laws, and instructed the people. But there are particular causes that will probably once more involve them in the very misery which they now endeavour to avoid.
In those states religion has more influence than anywhere else; it is fear added to fear. In Mahomedan countries, it is partly from their religion that the people derive the surprising veneration they have for their prince.
It is religion that amends in some measure the Turkish constitution. The subjects, who have no attachment of honour to the glory and grandeur of the state, are connected with it by the force and principle of religion.
Of all despotic governments there is none that labours more under its own weight than that wherein the prince declares himself proprietor of all the lands, and heir to all his subjects. Hence the neglect of agriculture arises; and if the prince intermeddles likewise in trade, all manner of industry is ruined.
Under this sort of government, nothing is repaired or improved. Houses are built only for the necessity of habitation; there is no digging of ditches or planting of trees; everything is drawn from, but nothing restored to, the earth; the ground lies untilled, and the whole country becomes a desert.
Is it to be imagined that the laws which abolish the property of land and the succession of estates will diminish the avarice and cupidity of the great? By no means. They will rather stimulate this cupidity and avarice. The great men will be prompted to use a thousand oppressive methods, imagining they have no other property than the gold and silver which they are able to seize upon by violence, or to conceal.
To prevent, therefore, the utter ruin of the state, the avidity of the prince ought to be moderated by some established custom. Thus, in Turkey, the sovereign is satisfied with the right of three per cent on the value of inheritances. But as he gives the greatest part of the lands to his soldiery, and disposes of them as he pleases; as he seizes on all the inheritances of the officers of the empire at their decease; as he has the property of the possessions of those who die without issue, and the daughters have only the usufruct; it thence follows that the greatest part of the estates of the country are held in a precarious manner.
By the laws of Bantam, the king seizes on the whole inheritance, even wife, children, and habitation. In order to elude the cruelest part of this law, they are obliged to marry their children at eight, nine, or ten years of age, and sometimes younger, to the end that they may not be a wretched part of the father's succession.
In countries where there are no fundamental laws, the succession to the empire cannot be fixed. The crown is then elective, and the right of electing is in the prince, who names a successor either of his own or of some other family. In vain would it be to establish here the succession of the eldest son; the prince might always choose another. The successor is declared by the prince himself, or by a civil war. Hence a despotic state is, upon another account, more liable than a monarchical government to dissolution.
As every prince of the royal family is held equally capable of being chosen, hence it follows that the prince who ascends the throne immediately strangles his brothers, as in Turkey; or puts out their eyes, as in Persia; or bereaves them of their understanding, as in the Mogul's country; or if these precautions are not used, as in Morocco, the vacancy of the throne is always attended with the horrors of a civil war.
By the constitution of Russia the Czar may choose whom he has a mind for his successor, whether of his own or of a strange family. Such a settlement produces a thousand revolutions, and renders the throne as tottering as the succession is arbitrary. The right of succession being one of those things which are of most importance to the people to know, the best is that which most sensibly strikes them. Such as a certain order of birth. A settlement of this kind puts a stop to intrigues, and stifles ambition; the mind of a weak prince is no longer enslaved, nor is he made to speak his will as he is just expiring.
When the succession is established by a fundamental law, only one prince is the successor, and his brothers have neither a real nor apparent right to dispute the crown with him. They can neither pretend to nor take any advantage of the will of a father. There is then no more occasion to confine or kill the king's brother than any other subject.
But in despotic governments, where the prince's brothers are equally his slaves and his rivals, prudence requires that their persons be secured; especially in Mahomedan countries, where religion considers victory or success as a divine decision in their favour; so that they have no such thing as a monarch de jure, but only de facto.
There is a far greater incentive to ambition in countries where the princes of the blood are sensible that if they do not ascend the throne they must be either imprisoned or put to death, than among us, where
they are placed in such a station as may satisfy, if not their ambition, at least their moderate desires.
The princes of despotic governments have ever perverted the use of marriage. They generally take a great many wives, especially in that
part of the world where absolute power is in some measure naturalised, namely, Asia. Hence they come to have such a multitude of children that they can hardly have any great affection for them, nor the children for one another.
The reigning family resembles the state; it is too weak itself, and its head too powerful; it seems very numerous and extensive, and yet is suddenly extinct. Artaxerxes put all his children to death for conspiring against him.
It is not at all probable that fifty children would conspire against their father, and much less that this conspiracy would be owing to his having refused to resign his concubine to his eldest son. It is more natural to believe that the whole was an intrigue of those oriental seraglios, where fraud, treachery, and deceit reign in silence and darkness; and where an old prince, grown every day more infirm, is the first prisoner of the palace.
After what has been said, one would imagine that human nature should perpetually rise up against despotism. But notwithstanding the love of liberty, so natural to mankind, notwithstanding their innate detestation of force and violence, most nations are subject to this very government. This is easily accounted for. To form a moderate government, it is necessary to combine the several powers; to regulate, temper, and set them in motion; to give, as it were, ballast to one, in order to enable it to counterpoise the other. This is a masterpiece of legislation; rarely produced by hazard, and seldom attained by prudence. On the contrary, a despotic government offers itself, as it were, at first sight; it is uniform throughout; and as passions only are requisite to establish it, this is what every capacity may reach.
The same Subject continued.
In warm climates, where despotic power generally prevails, the passions disclose themselves earlier, and are sooner extinguished; the understanding is sooner ripened; they are less in danger of squandering their fortunes; there is less facility of distinguishing themselves in the world; less communication between young people, who are confined at home; they marry much earlier, and consequently may be sooner of age than in our European climates. In Turkey they are of age at fifteen.
They have no such thing as a cession of goods; in a government where there is no fixed property, people depend rather on the person than on his estate.
The cession of goods is naturally admitted in moderate governments, but especially in republics, because of the greater confidence usually placed in the probity of the citizens, and the lenity and moderation arising from a form of government which every subject seems to nave preferred to all others.
Had the legislators of the Roman republic established the cession of goods, they never would have been exposed to so many seditions and civil discords; neither would they have experienced the danger of the evils, nor the inconvenience of the remedies.
Poverty and the precariousness of property in a despotic state render usury natural, each person raising the value of his money in proportion to the danger he sees in lending it. Misery therefore pours from all parts into those unhappy countries; they are bereft of everything, even of the resource of borrowing.
Hence it is that a merchant under this government is unable to carry on an extensive commerce; he lives from hand to mouth; and were he to encumber himself with a large quantity of merchandise, he would lose more by the exorbitant interest he must give for money than he could possibly get by the goods. Hence they have no laws here relating to commerce; they are all reduced to what is called the bare police.
A government cannot be unjust without having hands to exercise its injustice. Now, it is impossible but that these hands will be grasping for themselves. The embezzling of the public money is therefore natural in despotic states.
As this is a common crime under such a government, confiscations are very useful. By these the people are eased; the money drawn by this method being a considerable tribute which could hardly be raised on the exhausted subject: neither is there in those countries any one family which the prince would be glad to preserve.
In moderate governments it is quite a different thing. Confiscations would render property uncertain, would strip innocent children, would destroy a whole family, instead of punishing a single criminal. In republics they would be attended with the mischief of subverting equality, which is the very soul of this government, by depriving a citizen of his necessary subsistence.
There is a Roman law against confiscations, except in the case of crimen majestatis, or high treason of the most heinous nature. It would be a prudent thing to follow the spirit of this law, and to limit confiscations to particular crimes. In countries where a local custom has rendered real estates alienable, Bodin very justly observes that confiscations should extend only to such as are purchased or acquired.
Of the Communication of Power.
In a despotic government the power is communicated entire to the person entrusted with it. The vizir himself is the despotic prince; and each particular officer is the vizir. In monarchies the power is less immediately applied, being tempered by the monarch as he gives it. He makes such a distribution of his authority as never to communicate a part of it without reserving a greater share to himself.
Hence in monarchies the governors of towns are not so dependent on the governor of the province as not to be still more so on the prince; and the private officers or military bodies are not so far subject to their general as not to owe still a greater subjection to their sovereign.
In most monarchies it has been wisely regulated that those who have an extensive command should not belong to any military corps; so that as they have no authority but through the prince's pleasure, and as they may be employed or not, they are in some measure in the service, and in some measure out of it.
This is incompatible with a despotic government. For if those who are not actually employed were still invested with privileges and titles, the consequence must be that there would be men in the state who might
be said to be great of themselves; a thing directly opposite to the nature of this government.
Were the governor of a town independent of the pasha, expedients would be daily necessary to make them agree; which is highly absurd in a despotic state. Besides, if a particular governor should refuse to obey, how could the other answer for his province with his head?
In this kind of government, authority must ever be wavering; nor is that of the lowest magistrate more steady than that of the despotic prince. Under moderate governments, the law is prudent in all its parts, and perfectly well known, so that even the pettiest magistrates are capable of following it. But in a despotic state, where the prince's will is the law, though the prince were wise, yet how could the magistrate follow a will he does not know? He must certainly follow his own.
Again, as the law is only the prince's will, and as the prince can only will what he knows, the consequence is that there are an infinite number of people who must will for him, and make their wills keep pace with his. In fine, as the law is the momentary will of the prince, it is necessary that those who will for him should follow his sudden manner of willing.
It is a received custom in despotic countries never to address any superior whomsoever, not excepting their kings, without making them a present. The Mogul never receives the petitions of his subjects if they come with empty hands. These princes spoil even their own favours.
But thus it must ever be in a government where no man is a citizen; where they have all a notion that a superior is under no obligation to an inferior; where men imagine themselves bound by no other tie than the chastisements inflicted by one party upon another; where, in fine, there is very little to do, and where the people have seldom an occasion of presenting themselves before the great, of offering their petitions, and much less their complaints.
In a republic, presents are odious, because virtue stands in no need of them. In monarchies, honour is a much stronger incentive than presents. But in a despotic government, where there is neither honour nor virtue, people cannot be determined to act but through hope of the conveniences of life.
It is in conformity with republican ideas that Plato ordered those who received presents for doing their duty to be punished with death. "They must not take presents," says he, "neither for good nor for evil actions."
A very bad law was that among the Romans which gave the magistrates leave to accept small presents[ provided they did not exceed one hundred crowns in the whole year. They who receive nothing expect nothing; they who receive a little soon covet more, till at length their desires swell to an exorbitant height.
Besides, it is much easier to convict a man who knows himself obliged to accept no present at all, and yet will accept something, than a person who takes more when he ought to take less, and who always finds pretexts, excuses, and plausible reasons in justification of his conduct.
Of Rewards conferred by the Sovereign.
In despotic governments, where, as we have already observed, the principal motive of action is the hope of the conveniences of life, the prince who confers rewards has nothing to bestow but money. In monarchies, where honour alone predominates, the prince's rewards would consist only of marks of distinction, if the distinctions established by honour were not attended with luxury, which necessarily brings on its wants: the prince therefore is obliged to confer such honours as lead to wealth. But in a republic where virtue reigns -- a motive self-sufficient, and which excludes all others -- the recompenses of the state consist only of public attestations of this virtue.
It is a general rule that great rewards in monarchies and republics are a sign of their decline; because they are a proof of their principles being corrupted, and that the idea of honour has no longer the same force in a monarchy, nor the title of citizen the same weight in a republic.
The very worst Roman emperors were those who were most profuse in their largesses; for example, Caligula, Claudius, Nero, Otho, Vitellius, Commodus, Heliogabalus, and Caracalla. The best, as Augustus, Vespasian, Antoninus Pius, Marcus Aurelius, and Pertinax, were economists. Under good emperors the state resumed its principles; all other treasures were supplied by that of honour.
New Consequences of the Principles of the three Governments.
I cannot conclude this book without making some applications of my three principles.
1st Question.] It is a question whether the laws ought to oblige a subject to accept a public employment. My opinion is that they ought in a republic, but not in a monarchical government. In the former, public employments are attestations of virtue, depositions with which a citizen is entrusted by his country, for whose sake alone he ought to live, to act, and to think, consequently lie cannot refuse them. In the latter, public offices are testimonials of honour; now such is the capriciousness of honour that it chooses to accept none of these testimonies but when and in what manner it pleases.
The late King of Sardinia inflicted punishments on his subjects who refused the dignities and public offices of the state. In this he unknowingly followed republican ideas: but his method of governing in other respects sufficiently proves that this was not his intention.
2nd Question.] Secondly, it is questioned whether a subject should be obliged to accept a post in the army inferior to that which he held before. Among the Romans it was usual to see a captain serve the next year under his lieutenant. This is because virtue in republics requires a continual sacrifice of our persons and of our repugnances for the good of the state. But in monarchies, honour, true or false, will never bear with what it calls degrading itself. In despotic governments, where honour, posts, and ranks are equally abused, they indiscriminately make a prince a scullion, and a scullion a prince.
3rd Question.] Thirdly, it may be inquired, whether civil and military employments should be conferred on the same person. In republics I think they should be joined, but in monarchies separated. In the former it would be extremely dangerous to make the profession of arms a particular state, distinct from that of civil functions; and in the latter, no less dangerous would it be to confer these two employments on the same person.
In republics a person takes up arms only with a view to defend his country and its laws; it is because he is a citizen he makes himself for a while a soldier. Were these two distinct states, the person who under
arms thinks himself a citizen would soon be made sensible he is only a soldier.
In monarchies, they whose condition engages them in the profession of arms have nothing but glory, or at least honour or fortune, in view. To men, therefore, like these, the prince should never give any civil employments; on the contrary, they ought to be checked by the civil magistrate, that the same persons may not have at the same time the confidence of the people and the power to abuse it.
We have only to cast an eye on a nation that may be justly called a republic, disguised under the form of monarchy, and we shall see how jealous they are of making a separate order of the profession of arms, and how the military state is constantly allied with that of the citizen, and even sometimes of the magistrate, to the end that these qualities may be a pledge for their country, which should never be forgotten.
The division of civil and military employments, made by the Romans after the extinction of the republic, was not an arbitrary thing. It was a consequence of the change which happened in the constitution of Rome; it was natural to a monarchical government; and what was only commenced under Augustus succeeding emperors were obliged to finish, in order to temper the military government.
Procopius, therefore, the competitor of Valens the emperor, was very much to blame when, conferring the pro-consular dignity upon Hormisdas, a prince of the blood royal of Persia, he restored to this magistracy the military command of which it had been formerly possessed; unless indeed he had very particular reasons for so doing. A person that aspires to the sovereignty concerns himself less about what is serviceable to the state than what is likely to promote his own interest.
4th Question.] Fourthly, it is a question whether public employments should be sold. They ought not, I think, in despotic governments, where the subjects must be instantaneously placed or displaced by the prince.
But in monarchies this custom is not at all improper, by reason it is an inducement to engage in that as a family employment which would not be undertaken through a motive of virtue; it fixes likewise every one in his duty, and renders the several orders of the kingdom more permanent. Suidas very justly observes that Anastasius had changed the empire into a kind of aristocracy, by selling all public employments.
Plato cannot bear with this prostitution: "This is exactly," says he, "as if a person were to be made a mariner or pilot of a ship for his money. Is it possible that this rule should be bad in every other employment of life, and hold good only in the administration of a republic?" But Plato speaks of a republic founded on virtue, and we of a monarchy. Now, in monarchies (where, though there were no such thing as a regular sale of public offices, still the indigence and avidity of the courtier would equally prompt him to expose them to sale) chance will furnish better subjects than the prince's choice. In short, the method of attaining to honours through riches inspires and cherishes industry, a thing extremely wanting in this kind of government.
5th Question.] The fifth question is in what kind of government censors are necessary. My answer is, that they are necessary in a republic, where the principle of government is virtue. We must not imagine that criminal actions only are destructive of virtue; it is destroyed also by omissions, by neglects, by a certain coolness in the love of our country, by bad examples, and by the seeds of corruption: whatever does not openly violate but elude the laws, does not subvert but weaken them, ought to fall under the inquiry and correction of the censors.
We are surprised at the punishment of the Areopagite for killing a sparrow which, to escape the pursuit of a hawk, had taken shelter in his bosom. Surprised we are also that an Areopagite should put his son to death for putting out the eyes of a little bird. But let us reflect that the question here does not relate to a criminal sentence, but to a judgment concerning manners in a republic founded on manners.
In monarchies there should be no censors; the former are founded on honour, and the nature of honour is to have the whole world for its censor. Every man who fails in this article is subject to the reproaches even of those who are void of honour.
Here the censors would be spoiled by the very people whom they ought to correct: they could not prevail against the corruption of a monarchy; the corruption rather would be too strong against them.
Hence it is obvious that there ought to be no censors in despotic governments. The example of China seems to derogate from this rule; but we shall see, in the course of this work, the particular reasons of that institution.
1. Plutarch, Solon.
3. Philolaus of Corinth made a law at Athens that the number of the portions of land and that of inheritances should be always the same. -- Aristotle, Politics, ii. 7, 12.
4. Laws, xi.
5. Cornelius Nepos, preface. This custom began in the earliest times. Thus Abraham says of Sarah, "She is my sister, my father's daughter, but not my mother's." The same reasons occasioned the establishing the same law among different nations.
6. De specialibus legibus quæ pertinent ad præceptar Decalogi.
7. Book x.
8. Athenis dimidium licet, Alexandriæ totum. -- Seneca, De Morte Claudii.
9. Plato has a law of this kind. Laws, v.
10. Aristotle. ii. 7.
11. Solon made four classes: the first, of those who had an income of 500 minas either in corn or liquid fruits; the second, of those who had 300, and were able to keep a horse; the third, of such as had only 200; the fourth, of all those who lived by their manual labour. -- Plutarch, Solon.
12. Solon excludes from public employments all those of the fourth class.
13. They insisted upon a larger division of the conquered lands. -- Plutarch, Lives of the ancient Kings and Commanders.
14. In these, the portions or fortunes of women ought to be very much limited.
15. The magistrates there were annual, and the senators for life.
16. Lycurgus, says Xenophon, De Repub. Lacedæm., 10. § 1, 2, ordained that the senators should be chosen from amongst the old men, to the end that they might not be neglected in the decline of life; thus by making them judges of the courage of young people, he rendered the old age of the former more honourable than the strength and vigour of the latter.
17. Even the Areopagus itself was subject to their censure.
18. De Repub. Lacedæm., 8.
19. We may see in the Roman History how useful this power was to the republic. I shall give an instance even in the time of its greatest corruption. Aulus Fulvius was set out on his journey in order to join Catiline; his father called him back, and put him to death. -- Sallust, De Bello Catil., xxxiv.
20. In our days the Venetians, who in many respects may be said to have a very wise government, decided a dispute between a noble Venetian and a gentleman of Terra Firma in respect to precedency in a church, by declaring that out of Venice a noble Venetian had no pre-eminence over any other citizen.
21. It was inserted by the decemvirs in the two last tables. See Dionysius Helicarnassus, x.
22. As in some aristocracies in our time; nothing is more prejudicial to the government.
23. See in Strabo, xiv., in what manner the Rhodians behaved in this respect.
24. Amelot de la Houssaye, Of the Government of Venice, part III. The Claudian law forbade the senators to have any ship at sea that held above forty bushels. -- Livy, xxi. 63.
25. The informers throw their scrolls into it.
26. See Livy, xlix. A censor could not be troubled even by a censor; each made his remark without taking the opinion of his colleague; and when it otherwise happened, the censorship was in a manner abolished.
27. At Athens the Logistæ, who made all the magistrates accountable for their conduct, gave no account themselves.
28. It is so practised at Venice. -- Amelot de la Houssaye, pp. 30, 31.
29. The main design of some aristocracies seems to be less the support of the state than of their nobility.
30. It is tolerated only in the common people. See Leg. 3, Cod. de comm. et mercatoribus, which is full of good sense.
31. Testament polit.
32. Barbaris cunctatio servilis, statim exequi regium videtur. -- Tacitus, Annals., v. 32.
33. Memoirs of Cardinal de Retz, and other histories.
34. Testament polit.
35. Edifying Letters, coll. ii, p. 315.
36. Continuation of Pufendorf, Introduction to the History of Europe, in the article on Sweden, 10.
37. According to Sir John Chardin, there is no council of state in Persia.
38. See Ricaut, State of the Ottoman Empire, p. 196.
39. See concerning the inheritances of the Turks, Ancient and Modern Sparta. See also Ricaut on the Ottoman empire.
40. Collection of Voyages that Contributed to the Establishment of the East India Company, i. The law of Pegu is less cruel; if there happen to be children, the king succeeds only to two-thirds. Ibid., iii, p. 1.
41. See the different constitutions, especially that of 1722.
42. See Justin.
43. See the book of laws as relative to the nature of the climate. Book xiv, below.
44. Laquilletiere, Ancient and Modern Sparta, p. 463.
45. The same may be said of compositions in regard to fair bankrupts.
46. There was no such establishment made till the Julian law, De Cessione bonorum; which preserved them from prison and from an ignominious division of their goods. -- Cod., ii. tit. 12.
47 They seem to have been too fond of confiscations in the republic of Athens.
48. Authentica bona damnatorum. -- Cod. de bon. proscript. seu damn.
49. De la Republique, v. 3.
50. Ut esse Phoebi dulcius lumen solet Jamjam cadentis -- Seneca, Troas, V. i. 1.
51. Collection of Voyages that Contributed to the Establishment of the East India Company, i, p. 80.
52. Laws, xii.
53. Leg. 6, § 2; Dig. ad leg. Jul. repet.
55. Plato, in his Republic, viii, ranks these refusals among the marks of the corruption of a republic. In his Laws, vi, he orders them to be punished by a fine; at Venice they are punished with banishment.
56. Victor Amadeus.
57. Some centurions having appealed to the people for the employments which they had before enjoyed, "It is just, my comrades," said a centurion, "that you should look upon every post as honourable in which you have an opportunity of defending the republic." -- Livy, dec. 5, xlii, 34.
58. Ne imperium ad optimos nobilium transferretur, Senatum militia vetuit Gallienus, etiam adire exercitum. -- Aurelius Victor, De Cæsaribus.
59. Augustus deprived the senators, proconsuls, and governors of the privilege of wearing arms. -- Dio, xxxiii.
60. Constantine. See Zozimus, ii.
61. Ammianus Marcellinus, xxvi, Et Civilia, more veterum, et bella recturo.
62. Republic, viii.
63. We see the laziness of Spain, where all public employments are given away.
Consequences of the Principles of Different Governments with Respect to the Simplicity of Civil and Criminal Laws, the Form of Judgments, and the Inflicting of Punishments Of the Simplicity of Civil Laws in different Governments.
Monarchies do not permit of so great a simplicity of laws as despotic governments. For in monarchies there must be courts of judicature; these must give their decisions; the decisions must be preserved and learned, that we may judge in the same manner to-day as yesterday, and that the lives and property of the citizens may be as certain and fixed as the very constitution of the state.
In monarchies, the administration of justice, which decides not only in whatever belongs to life and property, but likewise to honour, demands very scrupulous inquiries. The delicacy of the judge increases in proportion to the increase of his trust, and of the importance of the interests on which he determines.
We must not, therefore, be surprised to find so many rules, restrictions, and extensions in the laws of those countries -- rules that multiply the particular cases, and seem to make of reason itself an art.
The difference of rank, birth, and condition established in monarchical governments is frequently attended with distinctions in the nature of property; and the laws relating to the constitution of this government may augment the number of these distinctions. Hence, among us goods are divided into real estates, purchases, dowries, paraphernalia, paternal and maternal inheritances; movables of different kinds; estates held in fee-simple, or in tail; acquired by descent or conveyance; allodial, or held by soccage; ground rents; or annuities. Each sort of goods is subject to particular rules, which must be complied with in the disposal of them. These things must needs diminish the simplicity of the laws.
In our governments the fiefs have become hereditary. It was necessary that the nobility should have a fixed property, that is, the fief should have a certain consistency, to the end that the proprietor might be always in a capacity of serving the prince. This must have been productive of great varieties; for instance, there are countries where fiefs could not be divided among the brothers; in others, the younger brothers may be allowed a more generous subsistence.
The monarch who knows each of his provinces may establish different laws, or tolerate different customs. But as the despotic prince knows nothing, and can attend to nothing, he must take general measures, and govern by a rigid and inflexible will, which throughout his whole dominions produces the same effect; in short, everything bends under his feet.
In proportion as the decisions of the courts of judicature are multiplied in monarchies, the law is loaded with decrees that sometimes contradict one another; either because succeeding judges are of a different way of thinking, or because the same causes are sometimes well, and at other times ill, defended; or, in fine, by reason of an infinite number of abuses, to which all human regulations are liable. This is a necessary evil, which the legislator redresses from time to time, as contrary even to the spirit of moderate governments. For when people are obliged to have recourse to courts of judicature, this should come from the nature of the constitution, and not from the contradiction or uncertainty of the law.
In governments where there are necessary distinctions of persons, there must likewise be privileges. This also diminishes the simplicity, and creates a thousand exceptions.
One of the privileges least burdensome to society, and especially to him who confers it, is that of pleading in one court in preference to another. Here new difficulties arise, when it becomes a question before which court we shall plead.
Far different is the case of the people under despotic governments. In those countries I can see nothing that the legislator is able to decree, or the magistrate to judge. As the lands belong to the prince, it follows that there are scarcely any civil laws in regard to landed property. From the right the sovereign has to successions, it follows, likewise, that there are none relating to inheritances. The monopolies established by the prince for himself in some countries render all sorts of commercial laws quite useless. The marriages which they usually contract with female slaves are the cause that there are scarcely any civil laws relating to dowries, or to the particular advantage of married women. From the prodigious multitude of slaves, it follows, likewise, that there are very few who have any such thing as a will of their own, and of course are answerable for their conduct before a judge. Most moral actions that are only in consequence of a father's, a husband's, or a master's will, are regulated by them, and not by the magistrates.
I forgot to observe that as what we call honour is a thing hardly known in those countries, the several difficulties relating to this article, though of such importance with us, are with them quite out of the question. Despotic power is self-sufficient; round it there is an absolute vacuum. Hence it is that when travellers favour us with the description of countries where arbitrary sway prevails, they seldom make mention of civil laws.
All occasions, therefore, of wrangling and law-suits are here removed. And to this in part is it owing that litigious people in those countries are so roughly handled. As the injustice of their demand is neither screened, palliated, nor protected by an infinite number of laws, of course it is immediately discovered.
2. Of the Simplicity of Criminal Laws in different Governments. We hear it generally said, that justice ought to be administered with us as in Turkey. Is it possible, then, that the most ignorant of all nations should be the most clear-sighted on a point which it most behoves mankind to know?
If we examine the set forms of justice with respect to the trouble the subject undergoes in recovering his property, or in obtaining satisfaction for an injury or affront, we shall find them doubtless too numerous: but if we consider them in the relation they bear to the liberty and security of every individual, we shall often find them too few; and be convinced that the trouble, expense, delays, and even the very dangers of our judiciary proceedings, are the price that each subject pays for his liberty.
In Turkey, where little regard is shown to the honour, life, or estate of the subject, all causes are speedily decided. The method of determining them is a matter of indifference, provided they be determined. The pasha, after a quick hearing, orders which party he pleases to be bastinadoed, and then sends them about their business.
Here it would be dangerous to be of a litigious disposition; this supposes a strong desire of obtaining justice, a settled aversion, an active mind, and a steadiness in pursuing one's point. All this should be avoided in a government where fear ought to be the only prevailing sentiment, and in which popular disturbances are frequently attended with sudden and unforeseen revolutions. Here every man ought to know that the magistrate must not hear his name mentioned, and that his security depends entirely on his being reduced to a kind of annihilation.
But in moderate governments, where the life of the meanest subject is deemed precious, no man is stripped of his honour or property until after a long inquiry; and no man is bereft of life till his very country has attacked him -- an attack that is never made without leaving him all possible means of making his defence.
Hence it is that when a person renders himself absolute, he immediately thinks of reducing the number of laws. In a government thus constituted they are more affected with particular inconveniences than with the liberty of the subject, which is very little minded.
In republics, it is plain that as many formalities at least are necessary as in monarchies. In both governments they increase in proportion to the value which is set on the honour, fortune, liberty, and life of the subject.
In republican governments, men are all equal; equal they are also in despotic governments: in the former, because they are everything; in the latter, because they are nothing.
3. In what Governments and in what Cases the Judges ought to determine according to the express Letter of the Law. The nearer a government approaches towards a republic, the more the manner of judging becomes settled and fixed; hence it was a fault in the republic of Sparta for the Ephori to pass such arbitrary judgments without having any laws to direct them. The first consuls at Rome pronounced sentence in the same manner as the Ephori; but the inconvenience of this proceeding was soon felt, and they were obliged to have recourse to express and determinate laws.
In despotic governments there are no laws; the judge himself is his own rule. There are laws in monarchies; and where these are explicit, the judge conforms to them; where they are otherwise, he endeavours to investigate their spirit. In republics, the very nature of the constitution requires the judges to follow the letter of the law; otherwise the law might be explained to the prejudice of every citizen, in cases where their honour, property, or life is concerned.
At Rome the judges had no more to do than to declare that the persons accused were guilty of a particular crime, and then the punishment was found in the laws, as may be seen in divers laws still extant. In England the jury give their verdict whether the fact brought under their cognisance be proved or not; if it be proved, the judge pronounces the punishment inflicted by the law, and for this he needs only to open his eyes.
4. Of the Manner of passing Judgment. Hence arise the different modes of passing judgment. In monarchies the judges choose the method of arbitration; they deliberate together, they communicate their sentiments for the sake of unanimity; they moderate their opinions, in order to render them conformable to those of others: and the lesser number are obliged to give way to the majority. But this is not agreeable to the nature of a republic. At Rome, and in the cities of Greece, the judges never entered into a consultation; each gave his opinion in one of these three ways: "I absolve," "I condemn," "It does not appear clear to me"; this was because the people judged, or were supposed to judge. But the people are far from being civilians; all these restrictions and methods of arbitration are above their reach; they must have only one object and one single fact set before them; and then they have only to see whether they ought to condemn, to acquit, or to suspend their judgment.
The Romans introduced set forms of actions, after the example of the Greeks, and established a rule that each cause should be directed by its proper action. This was necessary in their manner of judging; it was necessary to fix the state of the question, that the people might have it always before their eyes. Otherwise, in a long process, this state of the question would continually change, and be no longer distinguished.
Hence it followed that the Roman judges granted only the simple demand, without making any addition, deduction, or limitation. But the prætors devised other forms of actions, which were called ex bona fide, in which the method of pronouncing sentence was left to the disposition of the judge. This was more agreeable to the spirit of monarchy. Hence it is a saying among the French lawyers, that in France all actions are ex bona fide.
5. 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 inconvenience that the people should be judges in their own cause), in order to remedy this evil, the laws must provide as much as possible for the security of individuals.
With this view the Roman legislators did two things: they gave the persons accused permission to banish themselves 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 Book XI the other limitations that were set to the judicatory power residing in the people.
Solon knew how to prevent the abuse which the people might make of their power in criminal judgments. He ordained that the Court of Areopagus should re-examine the affair; that if they believed the party accused was unjustly acquitted 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 rejudge the proceeding -- an admirable law, that subjected the people to the censure of the magistracy which they most revered, and even to their own!
In affairs of this kind it is always proper to throw in some delays, especially when the party accused is under confinement; to the end that the people may grow calm and give their judgment coolly.
In despotic governments, the prince himself may be judge. But in monarchies this cannot be; the constitution by such means would be subverted, and the dependent intermediate powers annihilated; all set forms of judgment would cease; fear would take possession of the people's minds, and paleness spread itself over every countenance: the more confidence, honour, affection, and security in the subject, the more extended is the power of the monarch.
We shall give here a few more reflections on this point. In monarchies, the prince is the party that prosecutes the person accused, and causes him to be punished or acquitted. Now, were he himself to sit upon the trial, he would be both judge and party.
In this government the prince has frequently the benefit of confiscation, so that here again, by determining criminal causes, he would be both judge and party.
Further, by this method he would deprive himself of the most glorious attribute of sovereignty, namely, that of granting pardon, for it would be quite ridiculous of him to make and unmake his decisions; surely he would not choose to contradict himself.
Besides, this would be confounding all ideas; it would be impossible to tell whether a man was acquitted, or received his pardon.
Louis XIII being desirous to sit in judgment upon the trial of the Duke de la Valette, sent for some members of the parliament and of the privy council, to debate the matter; upon their being ordered by the king to give their opinion concerning the warrant for his arrest, the president, De Believre, said "that he found it very strange that a prince should pass sentence upon a subject; that kings had reserved to themselves the power of pardoning, and left that of condemning to their officers; that his majesty wanted to see before him at the bar a person who, by his decision, was to be hurried away into the other world! That the prince's countenance should inspire with hopes, and not confound with fears; that his presence alone removed ecclesiastic censures; and that subjects ought not to go away dissatisfied from the sovereign." When sentence was passed, the same magistrate declared, "This is an unprecedented judgment to see, contrary to the example of past ages -- a king of France, in the quality of a judge, condemning a gentleman to death."
Again, sentences passed by the prince would be an inexhaustible source of injustice and abuse; the courtiers by their importunity would always be able to extort his decisions. Some Roman emperors were so mad as to sit as judges themselves; the consequence was that no reigns ever so surprised the world with oppression and injustice.
"Claudius," says Tacitus, "having appropriated to himself the determination of lawsuits, and the function of magistrates, gave occasion to all manner of rapine." But Nero, upon coming to the empire after Claudius, endeavoured to conciliate the minds of the people by declaring "that he would take care not to be judge himself in private causes, that the parties might not be exposed within the walls of a palace to the iniquitous influence of a few freedmen."
"Under the reign of Arcadius," says Zozimus, "a swarm of calumniators spread themselves on every side, and infested the court. Upon a person's decease, it was immediately supposed he had left no children; and, in consequence of this, his property was given away by a rescript. For as the prince was surprisingly stupid, and the empress excessively enterprising, she was a slave to the insatiable avarice of her domestics and confidants; insomuch that to an honest man nothing could be more desirable than death."
"Formerly," says Procopius "there used to be very few people at court; but in Justinian's reign, as the judges had no longer the liberty of administering justice, their tribunals were deserted, while the prince's palace resounded with the litigious clamours of the several parties." Everybody knows what a prostitution there was of public judgments, and even of the very laws themselves, at that emperor's court.
The laws are the eye of the prince; by them he sees what would otherwise escape his observation. Should he attempt the function of a judge, he would not then labour for himself, but for impostors, whose aim is to deceive him.
6. That in Monarchies Ministers ought not to sit as Judges. It is likewise a very great inconvenience in monarchies for the ministers of the prince to sit as judges. We have still instances of states where there are a great number of judges to decide exchequer causes, and where the ministers nevertheless (a thing most incredible!) would fain determine them. Many are the reflections that here arise; but this single one will suffice for my purpose.
There is in the very nature of things a kind of contrast between a prince's council and his courts of judicature. The king's council ought to be composed of a few persons, and the courts of judicature of a great many. The reason is, in the former, things should be undertaken and conducted with a kind of warmth and passion, which can hardly be expected but from four or five men who make it their sole business. On the contrary, in courts of judicature a certain coolness in requisite, and an indifference, in some measure, to all manner of affairs.
7. Of a single Magistrate. A magistracy of this kind cannot take place but in a despotic government. We have an instance in the Roman history how far a single magistrate may abuse his power. Might it not be very well expected that Appius on his tribunal should contemn all laws, after having violated that of his own enacting? Livy has given us the iniquitous distinction of the Decemvir. He had suborned a man to reclaim Virginia in his presence as his slave; Virginia's relatives insisted that by virtue of his own law she should be consigned to them, till the definitive judgment was passed. Upon which he declared that his law had been enacted only in favour of the father, and that as Virginius was absent, no application could be made of it to the present case.
8. 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.
By Plato's Laws those who neglect to inform or to. assist the magistrates are liable to punishment. This would not be so proper in our days. The public prosecutor watches for the safety of the citizens; he proceeds in his office while they enjoy their quiet and ease.
9. Of the Severity of Punishments in different Governments. The severity of punishments is fitter for despotic governments, whose principle is terror, than for a monarchy or a republic, whose spring is honour and virtue.
In moderate governments, the love of one's country, shame, and the fear of blame are restraining motives, capable of preventing a multitude of crimes. Here the greatest punishment of a bad action is conviction. The civil laws have therefore a softer way of correcting, and do not require so much force and severity.
In those states a good legislator is less bent upon punishing than preventing crimes; he is more attentive to inspire good morals than to inflict penalties.
It is a constant remark of the Chinese authors that the more the penal laws were increased in their empire, the nearer they drew towards a revolution. This is because punishments were augmented in proportion as the public morals were corrupted.
It would be an easy matter to prove that in all, or almost all, the governments of Europe, penalties have increased or diminished in proportion as those governments favoured or discouraged liberty.
In despotic governments, people are so unhappy as to have a greater dread of death than regret for the loss of life; consequently their punishments ought to be more severe. In moderate states they are more afraid of losing their lives than apprehensive of the pain of dying; those punishments, therefore, which deprive them simply of life are sufficient.
Men in excess of happiness or misery are equally inclinable to severity; witness conquerors and monks. It is mediocrity alone, and a mixture of prosperous and adverse fortune, that inspires us with lenity and pity.
What we see practised by individuals is equally observable in regard to nations. In countries inhabited by savages who lead a very hard life, and in despotic governments, where there is only one person on whom fortune lavishes her favours, while the miserable subjects lie exposed to her insults, people are equally cruel. Lenity reigns in moderate governments.
When in reading history we observe the cruelty of the sultans in administration of justice, we shudder at the very thought of the miseries of human nature.
In moderate governments, a good legislator may make use of everything by way of punishment. Is it not very extraordinary that one of the chief penalties at Sparta was to deprive a person of the power of lending out his wife, or of receiving the wife of another man, and to oblige him to have no company at home but virgins? In short, whatever the law calls a punishment is such effectively.
10. Of the ancient French Laws. In the ancient French laws we find the true spirit of monarchy. In cases relating to pecuniary mulcts, the common people are less severely punished than the nobility. 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.
11. That when People are virtuous few Punishments are necessary. The people of Rome had some share of probity. Such was the force of this probity that the legislator had frequently no further occasion than to point out the right road, and they were sure to follow it; one would imagine that instead of precepts it was sufficient to give them counsels.
The punishments of the regal laws, and those of the Twelve Tables, were almost all abolished in the time of the republic, in consequence either of the Valerian 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.
12. Of the Power of Punishments. Experience shows that in countries remarkable for the lenity of their laws the spirit of the inhabitants is as much affected by slight penalties as in other countries by severer punishments.
If an inconvenience or abuse arises in the state, a violent government endeavours suddenly to redress it; and instead of putting the old laws in execution, it establishes some cruel punishment, which instantly puts a stop to the evil. But the spring of government hereby loses its elasticity; the imagination grows accustomed to the severe as well as the milder punishment; and as the fear of the latter diminishes, they are soon obliged in every case to have recourse to the former. Robberies on the highway became common in some countries; in order to remedy this evil, they invented the punishment of breaking upon the wheel, the terror of which put a stop for a while to this mischievous practice. But soon after robberies on the highways became as common as ever.
Desertion in our days has grown to a very great height; in consequence of which it was judged proper to punish those delinquents with death; and yet their number did not diminish. The reason is very natural; a soldier, accustomed to venture his life, despises, or affects to despise, the danger of losing it. He is habituated to the fear of shame; it would have been therefore much better to have continued a punishment which branded him with infamy for life; the penalty was pretended to be increased, while it really diminished.
Mankind must not be governed with too much severity; we ought to make a prudent use of the means which nature has given us to conduct them. If we inquire into the cause of all human corruptions, we shall find that they proceed from the impunity of criminals, and not from the moderation of punishments.
Let us follow nature, who has given shame to man for his scourge; and let the heaviest part of the punishment be the infamy attending it.
But if there be some countries where shame is not a consequence of punishment, this must be owing to tyranny, which has inflicted the same penalties on villains and honest men.
And if there are others where men are deterred only by cruel punishments, we may be sure that this must, in a great measure, arise from the violence of the government which has used such penalties for slight transgressions.
It often happens that a legislator, desirous of remedying an abuse, thinks of nothing else; his eyes are open only to this object, and shut to its inconveniences. When the abuse is redressed, you see only the severity of the legislator; yet there remains an evil in the state that has sprung from this severity; the minds of the people are corrupted, and become habituated to despotism.
Lysander having obtained a victory over the Athenians, the prisoners were ordered to be tried, in consequence of an accusation brought against that nation of having thrown all the captives of two galleys down a precipice, and of having resolved in full assembly to cut off the hands of those whom they should chance to make prisoners. The Athenians were therefore all massacred, except Adymantes, who had opposed this decree. Lysander reproached Phylocles, before he was put to death, with having depraved the people's minds, and given lessons of cruelty to all Greece.
"The Argives," says Plutarch, "having put fifteen hundred of their citizens to death, the Athenians ordered sacrifices of expiation, that it might please the gods to turn the hearts of the Athenians from so cruel a thought."
There are two sorts of corruptions -- one when the people do not observe the laws; the other when they are corrupted by the laws: an incurable evil, because it is in the very remedy itself.
13. Insufficiency of the Laws of Japan. Excessive punishments may even corrupt a despotic government; of this we have an instance in Japan.
Here almost all crimes are punished with death, because disobedience to so great an emperor as that of Japan is reckoned an enormous crime. The question is not so much to correct the delinquent as to vindicate the authority of the prince. These notions are derived from servitude, and are owing especially to this, that as the emperor is universal proprietor, almost all crimes are directly against his interests.
They punish with death lies spoken before the magistrate; a proceeding contrary to natural defence.
Even things which have not the appearance of a crime are severely punished; for instance, a man that ventures his money at play is put to death.
True it is that the character of this people, so amazingly obstinate, capricious, and resolute as to defy all dangers and calamities, seems to absolve their legislators from the imputation of cruelty, notwithstanding the severity of their laws. But are men who have a natural contempt for death, and who rip open their bellies for the least fancy -- are such men, I say, mended or deterred, or rather are they not hardened, by the continual prospect of punishments?
The relations of travellers inform us, with respect to the education of the Japanese, that children must be treated there with mildness, because they become hardened to punishment; that their slaves must not be too roughly used, because they immediately stand upon their defence. Would not one imagine that they might easily have judged of the spirit which ought to reign in their political and civil government from that which should prevail in their domestic concerns?
A wise legislator would have endeavoured to reclaim people by a just temperature of punishments and rewards; by maxims of philosophy, morality, and religion, adapted to those characters; by a proper application of the rules of honour, and by the enjoyment of ease and tranquillity of life. And should he have entertained any apprehension that their minds, being inured to the cruelty of punishments, would no longer be restrained by those of a milder nature, he would have conducted himself in another manner, and gained his point by degrees, in particular cases that admitted of any indulgence, he would have mitigated the punishment, till he should have been able to extend this mitigation to all cases.
But these are springs to which despotic power is a stranger; it may abuse itself, and that is all it can do: in Japan it has made its utmost effort, and has surpassed even itself in cruelty.
As the minds of the people grew wild and intractable, they were obliged to have recourse to the most horrid severity.
This is the origin, this the spirit, of the laws of Japan. They had more fury, however, than force. They succeeded the extirpation of Christianity; but such unaccountable efforts are a proof of their insufficiency. They wanted to establish a good policy, and they have shown greater marks of their weakness.
We have only to read the relation of the interview between the Emperor and the Deyro at Meaco. The number of those who were suffocated or murdered in that city by ruffians is incredible; young maids and boys were carried off by force, and found afterwards exposed in public places, at unseasonable hours, quite naked, and sewn in linen bags, to prevent their knowing which way they had passed; robberies were committed in all parts; the bellies of horses were ripped open, to bring their riders to the ground; and coaches were overturned, in order to strip the ladies. The Dutch, who were told they could not pass the night on the scaffolds without exposing themselves to the danger of being assassinated, came down, &c.
I shall here give one instance more from the same nation. The Emperor having abandoned himself to infamous pleasures, lived unmarried, and was consequently in danger of dying without issue. The Deyro sent him two beautiful damsels; one he married out of respect, but would not meddle with her. His nurse caused the finest women of the empire to be sent for, but all to no purpose. At length, an armourer's daughter having pleased his fancy, he determined to espouse her, and had a son. The ladies belonging to the court, enraged to see a person of such mean extraction preferred to themselves, stifled the child. The crime was concealed from the Emperor; for he would have deluged the land with blood. The excessive severity of the laws hinders, therefore, their execution: when the punishment surpasses all measure, they are frequently obliged to prefer impunity to it.
14. Of the Spirit of the Roman Senate. Under the consulate of Acilius Glabrio and Piso, the Asilian law was made to prevent the intriguing for places. Dio says that the senate engaged the consuls to propose it, by reason that C. Cornelius, the tribune, had resolved to cause more severe punishments to be established against this crime; to which the people seemed greatly inclined. The senate rightly judged that immoderate punishments would strike, indeed, a terror into people's minds, but must have also this effect, that there would be nobody afterwards to accuse or condemn; whereas, by proposing moderate penalties, there would be always judges and accusers.
15. Of the Roman Laws in respect to Punishments. I am strongly confirmed in my sentiments upon finding the Romans on my side; and I think that punishments are connected with the nature of governments when I behold this great people changing in this respect their civil laws, in proportion as they altered their form of government.
The regal laws, made for fugitives, slaves, and vagabonds, were very severe. The spirit of a republic would have required that the decemvirs should not have inserted those laws in their Twelve Tables; but men who aimed at tyranny were far from conforming to a republican spirit.
Livy says, in relation to the punishment of Metius Suffetius, dictator of Alba, who was condemned by Tullius Hostilius to be fastened to two chariots drawn by horses, and torn asunder, that this was the first and last punishment in which the remembrance of humanity seemed to have been lost. He is mistaken; the Twelve Tables are full of very cruel laws.
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.
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 Romans, that no people were ever fonder of moderation in punishments.
But if to the lenity of penal laws we add the right which the party accused had of withdrawing before judgment was pronounced, we shall find that the Romans followed the spirit which I have observed to be natural to a republic.
Sulla, who confounded tyranny, anarchy, and liberty, made the Cornelian laws. He seemed to have contrived regulations merely with a view to create new crimes. Thus distinguishing an infinite number of actions by the name of murder, he found murderers in all parts; and by a practice too much followed, he laid snares, sowed thorns, and opened precipices, wheresoever the citizens set their feet.
Almost all Sulla's laws contained only the interdiction of fire and water. To this Cæsar added the confiscation of goods because the rich, by preserving their estates in exile, became bolder in the perpetration of crimes.
The emperors, having established a military government, soon found that it was as terrible to the prince as to the subject; they endeavoured therefore to temper it, and with this view had recourse to dignities, and to the respect with which those dignities were attended.
The government thus drew nearer a little to monarchy, and punishments were divided into three classes: those which related to the principal persons in the state, which were very mild: those which were inflicted on persons of an inferior rank, and were more severe; and, in fine, such as concerned only persons of the lowest condition, which were the most rigorous.
Maximinus, that fierce and stupid prince, increased the rigour of the military government which he ought to have softened. The senate were informed, says Capitolinus, that some had been crucified, others exposed to wild beasts, or sewn up in the skins of beasts lately killed, without any manner of regard to their dignity. It seemed as if he wanted to exercise the military discipline, on the model of which he pretended to regulate the civil administration.
In The Consideration on the Rise and Declension of the Roman Grandeur we find in what manner Constantine changed the military despotism into a military and civil government, and drew nearer to monarchy. There we may trace the different revolutions of this state, and see how they fell from rigour to indolence, and from indolence to impunity.
16. Of the just Proportion between Punishments and Crimes. It is an essential point, that there should be a certain proportion in punishments, because it is essential that a great crime should be avoided rather than a smaller, and that which is more pernicious to society rather than that which is less.
"An impostor, who called himself Constantine Ducas, raised a great insurrection at Constantinople. He was taken and condemned to be whipped; but upon informing against several persons of distinction, he was sentenced to be burned as a calumniator." It is very extraordinary that they should thus proportion the punishments between the crime of high treason and that of calumny.
This puts me in mind of a saying of Charles II, King of Great Britain. He saw a man one day standing in the pillory; upon which he asked what crime the man had committed. He was answered, "Please your Majesty, he has written a libel against your ministers." "The fool!" said the King, "why did he not write against me? They would have done nothing to him."
"Seventy persons having conspired against the Emperor Basil, he ordered them to be whipped, and the hair of their heads and beards to be burned. A stag, one day, having taken hold of him by the girdle with his horn, one of his retinue drew his sword, cut the girdle, and saved him; upon which he ordered that person's head to be cut off, for having," said he, "drawn his sword against his sovereign." Who could imagine that the same prince could ever have passed two such different judgments?
It is a great abuse amongst us to condemn to the same punishment a person that only robs on the highway and another who robs and murders. Surely, for the public security, some difference should be made in the punishment.
In China, those who add murder to robbery are cut in pieces: but not so the others; to this difference it is owing that though they rob in that country they never murder.
In Russia, where the punishment of robbery and murder is the same, they always murder. The dead, say they, tell no tales.
Where there is no difference in the penalty, there should be some in the expectation of pardon. In England they never murder on the highway, because robbers have some hopes of transportation, which is not the case in respect to those that commit murder.
Letters of grace are of excellent use in moderate governments. This power which the prince has of pardoning, exercised with prudence, is capable of producing admirable effects. The principle of despotic government, which neither grants nor receives any pardon, deprives it of these advantages.
17. Of the Rack. The wickedness of mankind makes it necessary for the law to suppose them better than they really are. Hence the deposition of two witnesses is sufficient in the punishment of all crimes. The law believes them, as if they spoke by the mouth of truth. Thus we judge that every child conceived in wedlock is legitimate; the law having a confidence in the mother, as if she were chastity itself. But the use of the rack against criminals cannot be defended on a like plea of necessity.
We have before us the example of a nation blessed with an excellent civil government, where without any inconvenience the practice of racking criminals is rejected. It is not, therefore, in its own nature necessary.
So many men of learning and genius have written against the custom of torturing criminals, that after them I dare not presume to meddle with the subject. I was going to say that it might suit despotic states, where whatever inspires fear is the fittest spring of government. I was going to say that the slaves among the Greeks and Romans -- but nature cries out aloud, and asserts her rights.
18. Of pecuniary and corporal Punishments. Our ancestors, the Germans, admitted of none but pecuniary punishments. Those free and warlike people were of opinion that their blood ought not to be spilled but with sword in hand. On the contrary, these punishments are rejected by the Japanese, under pretence that the rich might elude them. But are not the rich afraid of being stripped of their property? And might not pecuniary penalties be proportioned to people's fortunes? And, in fine, might not infamy be added to those punishments?
A good legislator takes a just medium; he ordains neither always pecuniary, nor always corporal punishments.
19. Of the Law of Retaliation. The use of the law of retaliation is very frequent in despotic countries, where they are fond of simple laws. Moderate governments admit of it sometimes; but with this difference, that the former exercise it in full rigour, whereas among the latter it ever receives some kind of limitation.
The law of the Twelve Tables admitted two: first, it never condemned to retaliation, but when the plaintiff could not be satisfied in any other manner. Secondly, after condemnation they might pay damages and interest, and then the corporal was changed into a pecuniary punishment.
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 established, and the laws themselves have improved. This still supposes that there is no honour among the Chinese. Amongst us, parents whose children are condemned by the laws of their country, and children whose parents have undergone the like fate, are as severely punished by shame, as they would be in China by the loss of their lives.
21. Of the Clemency of the Prince. Clemency is the characteristic of monarchs. In republics, whose principle is virtue, it is not so necessary. In despotic governments, where fear predominates, it is less customary, because the great men are to be restrained by examples of severity. It is more necessary in monarchies, where they are governed by honour, which frequently requires what the very law forbids. Disgrace is here equivalent to chastisement; and even the forms of justice are punishments. This is because particular kinds of penalty are formed by shame, which on every side invades the delinquent.
The great men in monarchies are so heavily punished by disgrace, by the loss (though often imaginary) of their fortune, credit, acquaintances, and pleasures, that rigour in respect to them is needless. It can tend only to divest the subject of the affection he has for the person of his prince, and of the respect he ought to have for public posts and employments.
As the instability of the great is natural to a despotic government, so their security is interwoven with the nature of monarchy.
So many are the advantages which monarchs gain by clemency, so greatly does it raise their fame, and endear them to their subjects, that it is generally happy for them to have an opportunity of displaying it; which in this part of the world is seldom wanting.
Some branch, perhaps, of their authority, but never hardly the whole, will be disputed; and if they sometimes fight for their crown, they do not fight for their life.
But some may ask when it is proper to punish, and when to pardon. This is a point more easily felt that prescribed. When there is danger in the exercise of clemency, it is visible; nothing so easy as to distinguish it from that imbecility which exposes princes to contempt and to the very incapacity of punishing.
The Emperor Maurice made a resolution never to spill the blood of his subjects. Anastasius punished no crimes at all. Isaac Angelus took an oath that no one should be put to death during his reign. Those Greek emperors forgot that it was not for nothing they were entrusted with the sword.
1. In Mazulipatam it could never be found out that there was such a thing as a written law. See the Collection of Voyages that Contributed to the Establishment of the East India Company, iv., part I, p. 391. The Indians are regulated in their decisions by certain customs. The Vedan and such books do not contain civil laws, but religious precepts. See Edifying Letters, coll. xiv.
2. Cæsar, Cromwell, and many others.
3. Non liquet.
4. Quas actiones ne populus prout vellet institueret, certas solemnesque esse voluerunt -- Dig. de Orig. Jur., ii, § 6.
5. In France a person, though sued for more than he owes, loses his costs if he has not offered to pay the exact debt.
6. Discourse on the first decade of Livy, i. 7.
7. This is well explained in Cicero's oration Pro Cæcina, towards the end, 100.
8. This was the law at Athens, as appears by Demosthenes. Socrates refused to make use of it.
9. Demosthenes, Pro Corona, p. 494, Frankfort, 1604.
10. See Philostratus, Lives of the Sophists, i. Life of Æschines.
11. Plato does not think it right that kings, who, as he says, are priests, should preside at trials where people are condemned to death, to exile, or to imprisonment.
12. See the account of the trial of the Duke de la Valette. It is printed in the Memoirs of Montresor, ii, p. 62.
13. It was afterwards revoked. See the same account, ii. p. 236. It was ordinarily a right of the peerage that a peer criminally accused should be judged by the king, as Francis II in the trial of the Prince of Condé, and Charles VII in the case of the Duc d'Alençon. To-day, the presence of the king at the trial of a peer, in order to condemn him would seem an act of tyranny. -- Voltaire.
14. Annals, xi. 5.
15. Ibid., xiii. 4.
16. Histories, v.
17. The same disorder happened under Theodosius the younger.
18. Secret History.
19. See Leg. 2, § 24, Dig. ff. de orig. jur.
20. Quod pater puellce abesset, locum injuria esse ratus. -- Livy, dec. I, iii. 44.
21. And in a great many other cities.
22. See in Tacitus the rewards given to those informers. -- Annals, i. 30.
23. Book ix.
24. I shall show hereafter that China is, in this respect, in the same case as a republic or a monarchy.
25. Suppose, for instance, to prevent the execution of a decree, the common people paid a fine of forty sous, and the nobility of sixty livres. -- Somme Rurale, ii, p. 198, ed. Goth. 1512; and Beaumanoir, 61, p. 309.
26. See the Council of Peter Defontaines, 13, especially art. 22.
27. It was made by Valerius Publicola soon after the expulsion of the kings, and was twice renewed, both times by magistrates of the same family. As Livy observes, x, 9, the question was not to give it a greater force, but to render its injunctions more perfect. "Diligentius sanctum," says Livy, ibid.
28. Lex Porcia pro tergo civium lata. It was made in the 454th year of the foundation of Rome.
29. Nihil ultra quam improbe factum adjecet -- Livy, loc. cit.
30. They slit his nose or cut off his ears.
31. Xenophon, Hist., iii. 8, §§ 20-22.
32. Of Those Who Are Intrusted with the Direction of the State Affairs, 14.
33. See Kempfer.
34. Collection of Voyages that Contributed to the Establishment of the East India Company, iii, part I, p. 428.
35. Let this be observed as a maxim in practice, with regard to cases where the minds of people have been depraved by too great a severity of punishments.
36. Collection of Voyages that Contributed to the Establishment of the East India Company, v, p. 2.
38. The guilty were condemned to a fine; they could not be admitted into the rank of senators, nor nominated to any public office. -- Dio, xxxvi. 21.
40. Book i. 28.
41. We find there the punishment of fire, and generally capital punishments, theft punished with death, &c.
42. Sulla, animated with the same spirit as the decemvirs, followed their example in augmenting the penal laws against satirical writers.
43. Book i, 28.
44. Poenas facinorum auxit, cum locupletes eo facilius scelere se obligarent, quod integris patrimoniis exularent. -- Suetonius in Life of Julius Cæsar, 162.
45. See the Leg. 3, § legis, ad leg. Cornel, de sicariis, and a vast number of others in the Digest and in the Codex.
48. Infirnos. Leg. 3, § legis, ad leg. Cornel, de sicariis.
49. Jul. Cap., Maximini duo, 8.
50. Chapter 17.
51. Hist. of Nicephorus, patriarch of Constantinople.
52. In Nicephorus' History.
53. Father Du Halde, i, p. 6.
54. Present State of Russia, Perry.
55. The English.
56. The citizens of Athens could not be put to the rack (Lysias, Orat. contra Agorat.) unless it was for high treason. The torture was used within thirty days after condemnation. (Curius Fortunatus. Rhetor, scol., ii.) There was no preparatory torture. In regard to the Romans, the Leg. 3, 4, ad leg. Jul. majest., show that birth, dignity, and the military profession exempted people from the rack, except in cases of high treason. See the prudent restrictions of this practice made by the laws of the Visigoths.
57. See Kempfer.
58. It is established in the Koran. See the chapter, Of the Cow.
59. Si membrum rupit, ni cum eo pacit, talio esto. Aulus Gellius, xx. i. 60. Ibid.
61. See also the Law of the Visigoths, vi, tit. 4, §§ 3, 5.
62. See Garcilasso, History of the Civil Wars of the Spaniards in the West Indies.
63. "Instead of punishing them," says Plato, "they ought to be commended for not having followed their fathers' example." -- Laws, ix.
64. Fragment of Suidas, in Constantine Porphyrogenitus.
Consequences of the Different Principles of the Three Governments with Respect to Sumptuary Laws, Luxury, and the Condition of Women Of Luxury.
Luxury is ever in proportion to the inequality of fortunes. If the riches of a state are equally divided there will be no luxury; for it is founded merely on the conveniences acquired by the labour of others.
[Stopped editing at this point. It seems to be a hot potch. Mainly socialist/tribalist/collectivist.]
In order to have this equal distribution of riches, the law ought to
give to each man only what is necessary for nature. If they exceed these
bounds, some will spend, and others will acquire, by which means an
inequality will be established.
Supposing what is necessary for the support of nature to be equal to a
given sum, the luxury of those who have only what is barely necessary
will be equal to a cipher: if a person happens to have double that sum,
his luxury will be equal to one; he that has double the latter's
substance will have a luxury equal to three; if this be still doubled,
there will be a luxury equal to seven; so that the property of the
subsequent individual being always supposed double to that of the
preceding, the luxury will increase double, and a unit be always added,
in this progression, 0, 1, 3, 7, 15, 31, 63, 127
In Plato's republic, luxury might have been exactly calculated. There
were four sorts of censuses or rates of estates. The first was exactly
the term beyond poverty, the second was double, the third triple, the
fourth quadruple to the first. In the first census, luxury was equal to
a cipher; in the second to one, in the third to two, in the fourth to
three: and thus it followed in an arithmetical proportion.
Considering the luxury of different nations with respect to one another,
it is in each state a compound proportion to the inequality of fortunes
among the subjects, and to the inequality of wealth in different states.
In Poland, for example, there is an extreme inequality of fortunes, but
the poverty of the whole binders them from having so much luxury as in a
more opulent government.
Luxury is also in proportion to the populousness of the towns, and
especially of the capital; so that it is in a compound proportion to the
riches of the state, to the inequality of private fortunes, and to the
number of people settled in particular places.
In proportion to the populousness of towns, the inhabitants are filled
with notions of vanity, and actuated by an ambition of distinguishing
themselves by trifles. If they are very numerous, and most of them
strangers to one another, their vanity redoubles, because there are
greater hopes of success. As luxury inspires these hopes, each man
assumes the marks of a superior condition. But by endeavouring thus at
distinction, every one becomes equal, and distinction ceases; as all are
desirous of respect, nobody is regarded.
Hence arises a general inconvenience. Those who excel in a profession
set what value they please on their labour; this example is followed by
people of inferior abilities, and then there is an end of all proportion
between our wants and the means of satisfying them. When I am forced to
go to law, I must be able to fee counsel; when I am sick, I must have it
in my power to fee a physician.
It is the opinion of several that the assemblage of so great a multitude
of people in capital cities is an obstruction to commerce, because the
inhabitants are no longer at a proper distance from each other. But I
cannot think so; for men have more desires, more wants, more fancies,
when they live together.
2. Of sumptuary Laws in a Democracy. We have observed that in a
republic, where riches are equally divided, there can be no such thing
as luxury; and as we have shown in the 5th Book that this equal
distribution constitutes the excellence of a republican government;
hence it follows, that the less luxury there is in a republic, the more
it is perfect. There was none among the old Romans, none among the
Lacedæmonians; and in republics where this equality is not quite lost,
the spirit of commerce, industry, and virtue renders every man able and
willing to live on his own property, and consequently prevents the
growth of luxury.
The laws concerning the new division of lands, insisted upon so eagerly
in some republics, were of the most salutary nature. They are dangerous,
only as they are sudden. By reducing instantly the wealth of some, and
increasing that of others, they form a revolution in each family, and
must produce a general one in the state.
In proportion as luxury gains ground in a republic, the minds of the
people are turned towards their particular interests. Those who are
allowed only what is necessary have nothing but their own reputation and
their country's glory in view. But a soul depraved by luxury has many
other desires, and soon becomes an enemy to the laws that confine it.
The luxury in which the garrison of Rhegium began to live was the cause
of their massacring the inhabitants.
No sooner were the Romans corrupted than their desires became boundless
and immense. Of this we may judge by the price they set on things. A
pitcher of Falernian wine was sold for a hundred Roman denarii; a
barrel of salt meat from the kingdom of Pontus cost four hundred; a good
cook four talents; and for boys, no price was reckoned too great. When
the whole world, impelled by the force of corruption, is immersed in
voluptuousness what must then become of virtue?
3. Of sumptuary Laws in an Aristocracy. There is this inconvenience in
an ill-constituted aristocracy, that the wealth centres in the nobility,
and yet they are not allowed to spend; for as luxury is contrary to the
spirit of moderation, it must be banished thence. This government
comprehends, therefore, only people who are extremely poor and cannot
acquire, and people who are vastly rich and cannot spend.
In Venice, they are compelled by the laws to moderation. They are so
habituated to parsimony that none but courtesans can make them part with
their money. Such is the method made use of for the support of industry;
the most contemptible of women may be profuse without danger, whilst
those who contribute to their extravagance consume their days in the
Admirable in this respect were the institutions of the principal
republics of Greece. The rich employed their money in festivals, musical
choruses, chariots, horse-races, and chargeable offices. Wealth was,
therefore, as burdensome there as poverty.
4. Of sumptuary Laws in a Monarchy. Tacitus says that the Suiones, a
German nation, has a particular respect for riches; for which reason
they live under the government of one person. This shows that luxury is
extremely proper for monarchies, and that under this government there
must be no sumptuary laws.
As riches, by the very constitution of monarchies, are unequally
divided, there is an absolute necessity for luxury. Were the rich not to
be lavish, the poor would starve. It is even necessary here that the
expenses of the opulent should be in proportion to the inequality of
fortunes, and that luxury, as we have already observed, should increase
in this proportion. The augmentation of private wealth is owing to its
having deprived one part of the citizens of their necessary support;
this must therefore be restored to them.
Hence it is that for the preservation of a monarchical state, luxury
ought continually to increase, and to grow more extensive, as it rises
from the labourer to the artificer, to the merchant, to the magistrate,
to the nobility, to the great officers of state, up to the very prince;
otherwise the nation will be undone.
In the reign of Augustus, a proposal was made in the Roman senate, which
was composed of grave magistrates, learned civilians, and of men whose
heads were filled with the notion of the primitive times, to reform the
manners and luxury of women. It is curious to see in Dio, with what
art this prince eluded the importunate solicitations of those senators.
This was because he was founding a monarchy, and dissolving a republic.
Under Tiberius, the Ædiles proposed in the senate the re-establishment
of the ancient sumptuary laws. This prince, who did not want sense,
opposed it. "The state," said he, "could not possibly subsist in the
present situation of things. How could Rome, how could the provinces,
live? We were frugal, while we were only masters of one city; now we
consume the riches of the whole globe, and employ both the masters and
their slaves in our service." He plainly saw that sumptuary laws would
not suit the present form of government.
When a proposal was made under the same emperor to the senate, to
prohibit the governors from carrying their wives with them into the
provinces, because of the dissoluteness and irregularity which followed
those ladies, the proposal was rejected. It was said that the examples
of ancient austerity had been changed into a more agreeable method of
living. They found there was a necessity for different manners.
Luxury is therefore absolutely necessary in monarchies; as it is also in
despotic states. In the former, it is the use of liberty; in the latter,
it is the abuse of servitude. A slave appointed by his master to
tyrannise over other wretches of the same condition, uncertain of
enjoying tomorrow the blessings of to-day, has no other felicity than
that of glutting the pride, the passions, and voluptuousness of the
Hence arises a very natural reflection. Republics end with luxury;
monarchies with poverty.
5. In what Cases sumptuary Laws are useful in a Monarchy. Whether it was
from a republican spirit, or from. some other particular circumstance,
sumptuary laws were made in Aragon, in the middle of the thirteenth
century. James the First ordained that neither the king nor any of his
subjects should have above two sorts of dishes at a meal, and that each
dish should be dressed only one way, except it were game of their own
In our days, sumptuary laws have been also enacted in Sweden; but with a
different view from those of Aragon.
A government may make sumptuary laws with a view to absolute frugality;
this is the spirit of sumptuary laws in republics; and the very nature
of the thing shows that such was the design of those of Aragon.
Sumptuary laws may likewise be established with a design to promote a
relative frugality: when a government, perceiving that foreign
merchandise, being at too high a price, will require such an exportation
of home manufactures as to deprive them of more advantages by the loss
of the latter than they can receive from the possession of the former,
they will forbid their being introduced. And this is the spirit of the
laws which in our days have been passed in Sweden. Such are the
sumptuary laws proper for monarchies.
In general, the poorer a state, the more it is ruined by its relative
luxury; and consequently the more occasion it has for relative sumptuary
laws. The richer a state, the more it thrives by its relative luxury;
for which reason it must take particular care not to make any relative
sumptuary laws. This we shall better explain in the book on
commerce; here we treat only of absolute luxury.
6. Of the Luxury of China. Sumptuary laws may, in some governments, be
necessary for particular reasons. The people, by the influence of the
climate, may grow so numerous, and the means of subsisting may be so
uncertain, as to render a universal application to agriculture extremely
necessary. As luxury in those countries is dangerous, their sumptuary
laws should be very severe. In order, therefore, to be able to judge
whether luxury ought to be encouraged or proscribed, we should examine
first what relation there is between the number of people and the
facility they have of procuring subsistence. In England the soil
produces more grain than is necessary for the maintenance of such as
cultivate the land, and of those who are employed in the woollen
manufactures. This country may be therefore allowed to have some
trifling arts, and consequently luxury. In France, likewise, there is
corn enough for the support of the husbandman and of the manufacturer.
Besides, a foreign trade may bring in so many necessaries in return for
toys that there is no danger to be apprehended from luxury.
On the contrary, in China, the women are so prolific, and the huma.n
species multiplies so fast, that the lands, though never so much
cultivated, are scarcely sufficient to support the inhabitants. Here,
therefore, luxury is pernicious, and the spirit of industry and economy
is as requisite as in any republic. They are obliged to pursue the
necessary arts, and to shun those ot luxury and pleasure.
This is the spirit of the excellent decrees of the Chinese emperors.
"Our ancestors," says an emperor of the family of the Tangs "held it
as a maxim that if there was a man who did not work, or a woman that was
idle, somebody must suffer cold or hunger in the empire." And on this
principle he ordered a vast number of the monasteries of Bonzes to be
The third emperor of the one-and-twentieth dynasty, to whom some
precious stones were brought that had been found in a mine, ordered it
to be shut up, not choosing to fatigue his people with working for a
thing that could neither feed nor clothe them.
"So great is our luxury," says Kiayventi, "that people adorn with
embroidery the shoes of boys and girls, whom they are obliged to sell."
Is employing so many people in making clothes for one person the way to
prevent a great many from wanting clothes? There are ten men who eat the
fruits of the earth to one employed in agriculture; and is this the
means of preserving numbers from wanting nourishment?
7. Fatal Consequence of Luxury in China. In the history of China we find
it has had twenty-two successive dynasties, that is, it has experienced
twenty-two general, without mentioning a prodigious number of