Nothing consolidates a conquest more than the union formed between the two nations by marriages. Alexander chose his wives, from the nation he had subdued; he insisted on his cour- tiers doing the same; and the rest of the Macedonians followed the example. The Franks and Burgundians permitted those marriages;« the Visigoths forbade them in Spain, and after- wards allowed them.*' By the Lombards they were not only al- lowed, but encouraged.^ When the Romans wanted to weaken Macedonia, they ordered that there should be no intermarriages between the people of different provinces.
Alexander, whose aim was to unite the two nations, thought fit to establish in Persia a great number of Greek colonies. He built, therefore, a multitude of towns; and so strongly were all the parts of this new empire cemented, that after his decease, amidst the disturbances and confusion of the most frightful civil wars, when the Greeks had reduced themselves, as it were, to a state of annihilation, not a single province of Persia revolted.
To prevent Greece and Macedon from being too much ex- hausted, he sent a colony of Jewso to Alexandria; the man- ners of those people signified nothing to him, provided he could be sure of their fidelity.
He not only suffered the conquered nations to retain their own customs and manners, but likewise their civil laws; and frequently the very kings and governors to whom they had been subject: the Macedonians^ he placed at the head of the troops, and the natives of the country at the head of the gov- ernment, rather choosing to run the hazard of a particular dis- loyalty (which sometimes happened) than of a general revolt.
He paid great respect to the ancient traditions, and to all the public monuments of the glory or vanity of nations. The Per- sian monarchs having destroyed the temples of the Greeks, Babylonians, and Egyptians, Alexander rebuilt theniic few nations submitted to his yoke to whose religion he did not con- form; and his conquests seem to have been intended only to q See the " Law of the Burgundians," a The kings of Syria, abandoning the tit. 12, art. 5. plan laid down by the founder of the r See the " Law of the Visigoths," empire, resolved to oblige the Jews to book III. tit. I, sec. i, which abrogates conform to the manners of the Greeks the ancient law, that had more regard, — a resolution that gave the most terit says, to the difference of nations than rible shock to their government, to that of people's conditions. h See Arrian, " De Expedit. Alexans See the " Law of the Lombards," dri," lib. III., and others, book II. tit. 7, sees, i and 2. c Ibid.
146 MONTESQUIEU make him the particular monarch of each nation, and the first inhabitant of each city. The aim of the Romans in conquest was to destroy, his to preserve; and wherever he directed his victorious arms, his chief view was to achieve something, whence that country might derive an increase of prosperity and power. To attain this end, he was enabled first of all by the greatness of his genius; secondly, by his frugality and private economy \d thirdly, by his profusion in matters of importance. He was close and reserved in his private expenses, but gen- erous to the highest degree in those of a public nature. In regulating his household, he was the private Macedonian; but in paying the troops, in sharing his conquests with the Greeks, and in his largesses to every soldier in his army, he was Alex- ander.
He committed two very bad actions in setting Persepolis on fire and slaying Clitus; but he rendered them famous by his repentance. Hence it is that his crimes are forgotten, while his regard for virtue was recorded: they were considered rather as unlucky accidents than as his own deliberate acts. Poster- ity, struck with the beauty of his mind, even in the midst of his irregular passion, can view him only with pity, but never with an eye of hatred.
Let us draw a comparison between him and Caesar. The Roman general, by attempting to imitate the Asiatic monarch, flung his fellow-citizens into a state of despair for a matter of mere ostentation; the Macedonian prince, by the same imita- tion, did a thing which was quite agreeable to his original scheme of conquest.
15. — New Methods of preserving a Conquest When a monarch has subdued a large country, he may make use of an admirable method equally proper for moderating des- potic power, and for preserving the conquest; it is a method practised by the conquerors of China.
In order to prevent the vanquished nation from falling into despair, the victors from growing insolent and proud, the gov- ernment from becoming military, and to contain the two na- tions within their duty, the Tartar family now on the throne of China has ordained that every military corps in the provinces d See Arrian, " Pe Expedit. Alexandri," lib. III., and others.
THE SPIRIT OF LAWS 147 should be composed half of Chinese and half Tartars, to the end that the jealousy between the two nations may keep them with- in bounds. The courts of judicature are likewise half Chinese and half Tartars. This is productive of several good effects: I. The two nations are a check to one another. 2. They both preserve the civil and military power, and one is not destroyed by the other. 3. The conquering nation may spread itself with- out being weakened and lost. It is likewise enabled to with- stand civil and foreign wars. The want of so wise an institu- tion as this has been the ruin of almost all the conquerors that ever existed.
16. — Of Conquests made by a despotic Prince When a conquest happens to be vastly large, it supposes a despotic power; and then the army dispersed in the provinces is not sufficient. There should be always a body of faithful troops near the prince, ready to fall instantly upon any part of the empire that may chance to waver. This military corps ought to awe the rest, and to strike terror into those who through necessity have been intrusted with any authority in the empire. The emperor of China has always a large body of Tartars near his person, ready upon all occasions. In India, in Turkey, in Japan, the prince has always a body-guard inde- pendent of the other regular forces. This particular corps keeps the dispersed troops in awe.
17. — The same Subject continued We have observed that the countries subdued by a despotic monarch ought to be held by a vassal. Historians are very lavish of their praises of the generosity of those conquerors who restored the princes to the throne whom they had van- quished. Extremely generous, then, were the Romans, who made such a number of kings, in order to have instruments of slavery.^ A proceeding of that kind is absolutely necessary. If the conqueror intends to preserve the country which he has subdued, neither the governors he sends will be able to contain the subjects within duty, nor he himself the governors. He will be obliged to strip his ancient patrimony of troops, in e " Ut haberent instrumenta servitutis et reges."— Tacitus, " Life of Agricola," 148 MONTESQUIEU order to secure his new dominions. The miseries of each na- tion will be common to both; civil broils will spread them- selves from one to the other. On the contrary, if the conqueror restores the legitimate prince to the throne, he will of course have an ally; by the junction of whose forces his own power will be augmented. We have a recent instance of this in Shah Nadir, who conquered the Mogul, seized his treasures, and left him in possession of Hindostan.
BOOK XI BOOK XI OF THE LAWS WHICH ESTABLISH POLITICAL LIBERTY WITH REGARD TO THE CONSTITUTION.
I. — A general Idea I MAKE a distinction between the laws that estabUsh poHti- cal liberty as it relates to the constitution, and those by which it is established as it relates to the citizen. The former shall be the subject of this book; the latter I shall ex- amine in the next.
2. — Different Significations of the word Liberty There is no word that admits of more various significations, and has made more varied impressions on the human mind, than that of liberty. Some have taken it as a means of depos- ing a person on whom they had conferred a tyrannical author- ity; others for the power of choosing a superior whom they are obliged to obey; others for the right of bearing arms, and of being thereby enabled to use violence; others, in fine, for the privilege of being governed by a native of their own coun- try, or by their own laws.« A certain nation for a long time thought liberty consisted in the privilege of wearing a long beard.& Some have annexed this name to one form of govern- ment exclusive of others: those who had a republican taste applied it to this species of polity; those who liked a monarchi- cal state gave it to monarchy.^ Thus they have all applied the name of liberty to the government most suitable to their own customs and inclinations: and as in republics the people have not so constant and so present a view of the causes of their misery, and as the magistrates seem to act only in conformity o " I have copied," says Cicero, b The Russians could not bear that " Scsevola's edict, which permits the Czar Peter should make them cut if ofif.
Greeks to terminate their difference c The Cappadocians refused the conamong themselves according to their dition of a republican state, which was own laws; this makes them consider offered them by the Romans, themselves a free people."
I50 MONTESQUIEU to the laws, hence Hberty is generally said to reside in republics, and to be banished from monarchies. In fine, as in democra- cies the people seem to act almost as they please, this sort of government has been deemed the most free, and the power of the people has been confounded with their liberty.
3. — In what Liberty consists It is true that in democracies the people seem to act as they please; but political liberty does not consist in an un- limited freedom. In governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will.
We must have continually present to our minds the differ- ence between independence and liberty. Liberty is a right of doing whatever the laws permit,^ and if a citizen could do what they forbid he would be no longer possessed of liberty, because all his fellow-citizens would have the same power.
4. — The same Subject continued Democratic and aristocratic states are not in their own nat- ure free. Political liberty is to be found only in moderate gov- ernments; and even in these it is not always found. It is there only when there is no abuse of power. But constant experi- ence shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. Is it not strange, though true, to say that virtue itself has need of limits?
To prevent this abuse, it is necessary from the very nature of things that power should be a check to power. A govern- ment may be so constituted, as no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits.
5. — Of the End or View or different Governments Though all governments have the same general end, which is that of preservation, yet each has another particular object. Increase of dominion was the object of Rome; war, that of d " Omnes legum servi sumus ut liberi esse possimus."— Cicero, " pro Clu- entio," S3.
I THE SPIRIT OF LAWS 151 Sparta; religion, that of the Jewish laws; commerce, that of Marseilles; public tranquillity, that of the laws of China:^ navigation, that of the laws of Rhodes; natural liberty, that of the policy of the Savages; in general, the pleasures of the prince, that of despotic states; that of monarchies, the prince's and the kingdom's glory; the independence of individuals is the end aimed at by the laws of Poland, thence results the op- pression of the whole/ One nation there is also in the world that has for the direct end of its constitution political liberty. We shall presently ex- amine the principles on which this liberty is founded; if they are sound, liberty will appear in its highest perfection.
To discover political liberty in a constitution, no great labor is requisite. If we are capable of seeing it where it exists, it is soon found, and we need not go far in search of it.
6. — Of the Constitution of England g In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law.
By virtue of the first, the prince or magistrate enacts tem- porary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public secur- ity, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between indi- viduals. The latter we shall call the judiciary power, and the other simply the executive power of the state.
The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another.
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same eThe natural end of a state that has ^ The greater part of the principles no foreign enemies, or that thinks itself produced in this chapter by Montessecured against them by barriers. quieu is derived from Locke's " Treatise f Inconvenience of the " Liberum upon Civil Government," xii.— Ed. veto."
152 MONTESQUIEU monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of exe- cuting the public resolutions, and of trying the causes of indi- viduals.
Most kingdoms in Europe enjoy a moderate government because the prince who is invested with the two first powers leaves the third to his subjects. In Turkey, where these three powers are united in the Sultan's person, the subjects groan under the most dreadful oppression.
In the repubHcs of Italy, where these three powers are united, there is less liberty than in our monarchies. Hence their government is obliged to have recourse to as violent methods for its support as even that of the Turks; witness the state inquisitors,/* and the lion's mouth into which every in- former may at all hours throw his written accusations.
In what a situation must the poor subject be in those re- publics! The same body of magistrates are possessed, as exec- utors of the laws, of the whole power they have given them- selves in quality of legislators. They may plunder the state by their general determinations; and as they have likewise the judiciary power in their hands, every private citizen may be ruined by their particular decisions.
The whole power is here united in one body; and though there is no external pomp that indicates a despotic sway, yet the people feel the effects of it every moment.
Hence it is that many of the princes of Europe, whose aim has been levelled at arbitrary power, have constantly set out with uniting in their own persons all the branches of magis- tracy, and all the great offices of state.
I allow indeed that the mere hereditary aristocracy of the h At Venice.
> THE SPIRIT OF LAWS 153 Italian republics does not exactly answer to the despotic power of the Eastern princes. The number of magistrates sometimes moderate the power of the magistracy; the whole body of the nobles do not always concur in the same design; and dif- ferent tribunals are erected, that temper each other. Thus at Venice the legislative power is in the council, the executive in the pregadi, and the judiciary in the quarantia. But the mis- chief is, that these different tribunals are composed of magis- trates all belonging to the same body; which constitutes al- most one and the same power.
The judiciary power ought not to be given to a standing senate; it should be exercised by persons taken from the body of the people i at certain times of the year, and consistently with a form and manner prescribed by law, in order to erect a tribunal that should last only so long as necessity requires.
By this method the judicial power, so terrible to mankind, not being annexed to any particular state or profession, be- comes, as it were, invisible. People have not then the judges continually present to their view; they fear the office, but not the magistrate.
In accusations of a deep and criminal nature, it is proper the person accused should have the privilege of choosing, in some measure, his judges, in concurrence with the law; or at least he should have a right to except against so great a num- ber that the remaining part may be deemed his own choice.
The other two powers may be given rather to magistrates or permanent bodies, because they are not exercised on any pri- vate subject; one being no more than the general will of the state, and the other the execution of that general will.
But though the tribunals ought not to be fixed, the judg- ments ought; and to such a degree as to be ever conformable to the letter of the law. Were they to be the private opinion of the judge, people would then live in society, without exactly knowing the nature of their obligations.
The judges ought likewise to be of the same rank as the accused, or, in other words, his peers; to the end that he may not imagine he is fallen into the hands of persons inclined to treat him with rigor.
If the legislature leaves the executive power in possession »As at Athens.
154 MONTESQUIEU of a right to imprison those subjects who can give security for their good behavior, there is an end of hberty; unless they are taken up, in order to answer without delay to a capital crime, in which case they are really free, being subject only to the power of the law.
But should the legislature think itself in danger by some secret conspiracy against the state, or by a correspondence with a foreign enemy, it might authorize the executive power, for a short and limited time, to imprison suspected persons, who in that case would lose their liberty only for a while, to preserve it forever.
And this is the only reasonable method that can be sub- stituted to the tyrannical magistracy of the Ephori, and to the state inquisitors of Venice, who are also despotic.
As in a country of liberty, every man who is supposed a free agent ought to be his own governor; the legislative power should reside in the whole body of the people. But since this is impossible in large states, and in small ones is subject to many inconveniences, it is fit the people should transact by their representatives what they cannot transact by themselves.
The inhabitants of a particular town are much better ac- quainted with its wants and interests than with those of other places; and are better judges of the capacity of their neighbors than of that of the rest of their countrymen. The members, therefore, of the legislature should not be chosen from the general body of the nation; but it is proper that in every con- siderable place a representative should be elected by the in- habitants.; The great advantage of representatives is, their capacity of discussing public affairs. For this the people collectively are extremely unfit, which is one of the chief inconveniences of a democracy.
It is not at all necessary that the representatives who have received a general instruction from their constituents should wait to be directed on each particular affair, as is practised in the diets of Germany. True it is that by this way of proceeding the speeches of the deputies might with greater propriety be called the voice of the nation; but, on the other hand, this would occasion infinite delays; would give each deputy a j See Aristotle, " Polit." III. cap. vii.
THE SPIRIT OF LAWS 155 power of controlling the assembly; and, on the most urgent and pressing occasions, the wheels of government might be stopped by the caprice of a single person.
When the deputies, as Mr. Sidney well observes, represent a body of people, as in Holland, they ought to be accountable to their constituents; but it is a different thing in England, where they are deputed by boroughs.
All the inhabitants of the several districts ought to have a right of voting at the election of a representative, except such as are in so mean a situation as to be deemed to have no will of their own.
One great fault there was in most of the ancient republics, that the people had a right to active resolutions, such as re- quire some execution, a thing of which they are absolutely incapable. They ought to have no share in the government but for the choosing of representatives, which is within their reach. For though few can tell the exact degree of men's capacities, yet there are none but are capable of knowing in general whether the person they choose is better qualified than most of his neighbors.
Neither ought the representative body to be chosen for the executive part of government, for which it is not so fit; but for the enacting of laws, or to see whether the laws in being are duly executed, a thing suited to their abilities, and which none indeed but themselves can properly perform.
In such a state there are always persons distinguished by their birth, riches, or honors: but were they to be confounded with the common people, and to have only the weight of a sin- gle vote like the rest, the common liberty would be their slavery, and they would have no interest in supporting it, as most of the popular resolutions would be against them. The share they have, therefore, in the legislature ought to be pro- portioned to their other advantages in the state; which hap- pens only when they form a body that has a right to check the licentiousness of the people, as the people have a right to oppose any encroachment of theirs.
The legislative power is therefore committed to the body of the nobles, and to that which represents the people, each hav- ing their assemblies and deliberations apart, each their sepa- rate views and interests.
156 MONTESQUIEU Of the three powers above mentioned, the judiciary is in some measure next to nothing: there remain, therefore, only two; and as these have need of a regulating power to mod- erate them, the part of the legislative body composed of the nobility is extremely proper for this purpose.
The body of the nobility ought to be hereditary. In the first place it is so in its own nature; and in the next there must be a considerable interest to preserve its privileges — privileges that in themselves are obnoxious to popular envy, and of course in a free state are always in danger.
But as a hereditary power might be tempted to pursue its own particular interests, and forget those of the people, it is proper that where a singular advantage may be gained by corrupting the nobility, as in the laws relating to the supplies, they should have no other share in the legislation than the power of rejecting, and not that of resolving.
By the power of resolving I mean the right of ordaining by their own authority, or of amending what has been or- dained by others. By the power of rejecting I would be under- stood to mean the right of annulling a resolution taken by an- other; which was the power of the tribunes at Rome. And though the person possessed of the privilege of rejecting may likewise have the right of approving, yet this approbation passes for no more than a declaration, that he intends to make no use of his privilege of rejecting, and is derived from that very privilege.
The executive power ought to be in the hands of a monarch, because this branch of government, having need of despatch, is better administered by one than by many: on the other hand, whatever depends on the legislative power is oftentimes better regulated by many than by a single person.
But if there were no monarch, and the executive power should be committed to a certain number of persons selected from the legislative body, there would be an end then of lib- erty; by reason the two powers would be united, as the same persons would sometimes possess, and would be always able to possess, a share in both.
Were the legislative body to be a considerable time without meeting, this would likewise put an end to liberty. For of two things one would naturally follow: either that there would be THE SPIRIT OF LAWS 157 no longer any legislative resolutions, and then the state would fall into anarchy; or that these resolutions would be taken by the executive power, which would render it absolute.
It would be needless for the legislative body to continue always assembled. This would be troublesome to the repre- sentatives, and, moreover, would cut out too much work for the executive power, so as to take off its attention to its office, and oblige it to think only of defending its own prerogatives, and the right it has to execute.
Again, were the legislative body to be always assembled, it might happen to be kept up only by filling the places of the deceased members with new representatives; and in that case, if the legislative body were once corrupted, the evil would be past all remedy. When different legislative bodies succeed one another, the people who have a bad opinion of that which is actually sitting may reasonably entertain some hopes of the next: but were it to be always the same body, the people upon seeing it once corrupted would no longer expect any good from its laws; and of course they would either become desperate or fall into a state of indolence.
The legislative body should not meet of itself. For a body is supposed to have no will but when it is met; and besides, were it not to meet unanimously, it would be impossible to de- termine which was really the legislative body; the part assem- bled, or the other. And if it had a right to prorogue itself, it might happen never to be prorogued; which would be ex- tremely dangerous, in case it should ever attempt to encroach on the executive power. Besides, there are seasons, some more proper than others, for assembling the legislative body: it is fit, therefore, that the executive power should regulate the time of meeting, as well as the duration of those assemblies, ac- cording to the circumstances and exigencies of a state known to itself.
Were the executive power not to have a right of restraining the encroachments of the legislative body, the latter would be- come despotic; for as it might arrogate to itself what authority it pleased, it would soon destroy all the other powers.
But it is not proper, on the other hand, that the legislative power should have a right to stay the executive. For as the execution has its natural limits, it is useless to confine it; be- 158 MONTESQUIEU sides, the executive power is generally employed in momentary operations. The power, therefore, of the Roman tribunes was faulty, as it put a stop not only to the legislation, but likewise to the executive part of government; which was attended with infinite mischief.
But if the legislative power in a free state has no right to stay the executive, it has a right and ought to have the means of examining in what manner its laws have been executed; an advantage which this government has over that of Crete and Sparta, where the Cosmi k and the Ephori I gave no account of their administration.
But whatever may be the issue of that examination, the legislative body ought not to have a power of arraigning the person, nor, of course, the conduct, of him who is intrusted with the executive power. His person should be sacred, because as it is necessary for the good of the state to prevent the legislative body from rendering themselves arbitrary, the moment he is accused or tried there is an end of liberty.
In this case the state would be no longer a monarchy, but a kind of republic, though not a free government. But as the person intrusted with the executive power cannot abuse it with- out bad counsellors, and such as have the laws as ministers, though the laws protect them as subjects, these men may be examined and punished — an advantage which this government has over that of Gnidus, where the law allowed of no such thing as calling the Amymones ^ to an account, even after their administration;n and therefore the people could never obtain any satisfaction for the injuries done them.
Though, in g^eneral, the judiciary power ought not to be united with any part of the legislative, yet this is liable to three exceptions, founded on the particular interest of the party ac- cused.
The great are always obnoxious to popular envy; and were they to be judged by the people, they might be in danger from their judges, and would, moreover, be deprived of the privilege which the meanest subject is possessed of in a free state, of being tried by his peers. The nobility, for this reason, ought k See Aristotle, " Repub." II. cap. x. n It was lawful to accuse the Roman / Ibid. cap. ix. magistrates after the expiration of their