m These were magistrates chosen an- several offices. See in Dionys. Halinually by the people. See Stephen of earn. lib. IX. the affair of Genutius the ByzantituHr tribune.
THE SPIRIT OF LAWS 159 not to be cited before the ordinary courts of judicature, but before that part of the legislature which is composed of their own body.
It is possible that the law, which is clear sighted in one sense, and bhnd in another, might, in some cases, be too severe. But as we have already observed, the national judges are no more than the mouth that pronounces the words of the law, mere passive beings, incapable of moderating either its force or rigor. That part, therefore, of the legislative body, which we have just now observed to be a necessary tribunal on an- other occasion, also is a necessary tribunal in this; it belongs to its supreme authority to moderate the law in favor of the law itself, by mitigating the sentence.
It might also happen that a subject intrusted with the admin- istration of public affairs may infringe the rights of the people, and be guilty of crimes which the ordinary magistrates either could not or would not punish. But, in general, the legislative power cannot try causes: and much less can it try this partic- ular case, where it represents the party aggrieved, which is the people. It can only, therefore, impeach. But before what court shall it bring its impeachment? Must it go and demean itself before the ordinary tribunals, which are its inferiors, and, being composed, moreover, of men who are chosen from the people as well as itself, will naturally be swayed by the author- ity of so powerful an accuser? No: in order to preserve the dignity of the people and the security of the subject, the legis- lative part which represents the people must bring in its charge before the legislative part which represents the nobility, who have neither the same interests nor the same passions.
Here is an advantage which this government has over most of the ancient republics, where this abuse prevailed, that the people were at the same time both judge and accuser.
The executive power, pursuant of what has been already said, ought to have a share in the legislature by the power of rejecting; otherwise it would soon be stripped of its preroga- tive. But should the legislative power usurp a share of the executive, the latter would be equally undone.
If the prince were to have a part in the legislature by the power of resolving, liberty would be lost. But as it is neces- sary he should have a share in the legislature for the support i6o MONTESQUIEU of his own prerogative, this share must consist in the power of rejecting.
The change of government at Rome was owing to this, that neither the senate, who had one part of the executive power, nor the magistrates, who were intrusted with the other, had the right of rejecting, which was entirely lodged in the people.
Here, then, is the fundamental constitution of the govern- ment we are treating of. The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting. They are both restrained by the executive power, as the executive is by the legislative.
These three powers should naturally form a state of repose or inaction. But as there is a necessity for movement in the course of human affairs, they are forced to move, but still in concert.
As the executive power has no other part in the legislative than the privilege of rejecting, it can have no share in the public debates. It is not even necessary that it should propose, because as it may always disapprove of the resolutions that shall be taken, it may Hkewise reject the decisions on those pro- posals which were made against its will.
In some ancient commonwealths, where public debates were carried on by the people in a body, it was natural for the execu- tive power to propose and debate in conjunction with the peo- ple, otherwise their resolutions must have been attended with a strange confusion.
Were the executive power to determine the raising of public money, otherwise than by giving its consent, liberty would be at an end; because it would become legislative in the most im- portant point of legislation.
If the legislative power was to settle the subsidies, not from year to year, but forever, it would run the risk of losing its liberty, because the executive power would be no longer de- pendent; and when once it was possessed of such a perpetual right, it would be a matter of indiflference whether it held it of itself or of another. The same may be said if it should come to a resolution of intrusting, not an annual, but a perpetual com- mand of the fleets and armies to the executive power.
To prevent the executive power from being able to oppress, it is requisite that the armies with which it is intrusted should THE SPIRIT OF LAWS 161 consist of the people, and have the same spirit as the people, as was the case at Rome till the time of Marius. To obtain this end, there are only two ways, either that the persons em- ployed in the army should have sufficient property to answer for their conduct to their fellow-subjects, and be enHsted only for a year, as was customary at Rome; or if there should be a standing army, composed chiefly of the most despicable part of the nation, the legislative power should have a right to dis- band them as soon as it pleased; the soldiers should live in common with the rest of the people; and no separate camp, barracks, or fortress should be suffered.
When once an army is established, it ought not to depend immediately on the legislative, but on the executive power; and this from the very nature of the thing, its business con- sisting more in action than in dehberation.
It is natural for mankind to set a higher value upon courage than timidity, on activity than prudence, on strength than counsel. Hence the army will ever despise a senate, and re- spect their own officers. They will naturally slight the orders sent them by a body of men whom they look upon as cowards, and therefore unworthy to command them. So that as soon as the troops depend entirely on the legislative body, it be- comes a military government; and if the contrary has ever happened, it has been owing to some extraordinary circum- stances. It is because the army was always kept divided; it is because it was composed of several bodies that depended each on a particular province: it is because the capital towns were strong places, defended by their natural situation, and not gar- risoned with regular troops. Holland, for instance, is still safer than Venice; she might drown or starve the revolted troops; for as they are not quartered in towns capable of furnishing them with necessary subsistence, this subsistence is of course precarious.
In perusing the admirabh treatise of Tacitus " On the Man- ners of the Germans," 0 we find it is from that nation the Eng- lish have borrowed the idea of their political government. This beautiful system was invented first in the woods.
As all human things have an end, the state we are speaking 0 De minoribus rebus principes con- arbitrium est, apud principes pertcac- sultant de majoribus omnes; ita tamen tentur. ut ea quoque quorum penes plebem Vol. I. — II i62 MONTESQUIEU of will lose its liberty, will perish. Have not Rome, Sparta, and Carthage perished? It will perish when the legislative power shall be more corrupt than the executive.
It is not my business to examine whether the English actu- ally enjoy this liberty or not. Sufficient it is for my purpose to observe that it is established by their laws; and I inquire no further.
Neither do I pretend by this to undervalue other govern- ments, nor to say that this extreme political liberty ought to give uneasiness to those who have only a moderate share of it. How should I have any such design, I who think that even the highest refinement of reason is not always desirable, and that mankind generally find their account better in mediums than ♦in extremes?
Harrington, in his " Oceana," has also inquired into the ut- most degree of liberty to which the constitution of a state may be carried. But of him, indeed, it may be said that for want of knowing the nature of real liberty he busied himself in pursuit of an imaginary one; and that he built a Chalcedon, though he had a Byzantium before his eyes.
7. — Of the Monarchies we are acquainted with The monarchies we are acquainted with have not, like that we have been speaking of, liberty for their direct view: the only aim is the glory of the subject, of the state, and of the sovereign. But hence there results a spirit of liberty, which in those states is capable of achieving as great things, and of contributing as much, perhaps, to happiness, as liberty itself.
Here the three powers are not distributed and founded on the model of the constitution above mentioned; they have each a particular distribution, according to which they border more or less on political liberty; and if they did not border upon it, monarchy would degenerate into despotic government.
8. — Why the Ancients had not a clear Idea of Monarchy The ancients had no notion of a government founded on a body of nobles, and much less on a legislative body composed of the representatives of the people. The republics of Greece and Italy were cities that had each their own form of govern- I THE SPIRIT OF LAWS 163 ment, and convened their subjects within their walls. Before Rome had swallowed up all the other repubhcs, there was scarcely- anywhere a king to be found, no, not in Italy, Gaul, Spain, or Germany;/' they were all petty states or repubhcs. Even Africa itself was subject to a great commonwealth: and Asia Minor was occupied by Greek colonies. There was, there- fore, no instance of deputies of towns or assemblies of the states; one must have gone as far as Persia to find a monarchy.
I am not ignorant that there were confederate republics; in which several towns sent deputies to an assembly. But I affirm there was no monarchy on that model.
The first plan, therefore, of the monarchies we are acquainted with was thus formed. The German nations that conquered the Roman Empire were certainly a free people. Of this we may be convinced only by reading Tacitus " On the Manners of the Germans." The conquerors spread themselves over all the country; living mostly in the fields, and very little in towns. When they were in Germany, the whole nation was able to assemble. This they could no longer do, when dis- persed through the conquered provinces. And yet as it was necessary that the nation should deHberate on public affairs, pursuant to their usual method before the conquest, they had recourse to representatives. Such is the origin of the Gothic government amongst us. At first it was mixed with aristoc- racy and monarchy — a mixture attended with this inconven- ience, that the common people were bondmen. The custom afterwards succeeded of granting letters of enfranchisement, and was soon followed by so perfect a harmony between the civil liberty of the people, the privileges of the nobility and clergy, and the prince's prerogative, that I really think there never was in the world a government so well tempered as that of each part of Europe, so long as it lasted. Surprising that the corruption of the government of a conquering nation should have given birth to the best species of constitution that could possibly be imagined by man!
p Nevertheless, during the same epoch there were kings in Macedonia, Syria, Egypt, etc.— Crevier.
1 64 MONTESQUIEU 9. — Aristotle's Manner of Thinking Aristotle is greatly puzzled in treating of monarchy.0 He makes five species; and he does not distinguish them by the form of constitution, but by things merely accidental, as the virtues and vices of the prince; or by things extrinsic, such as tyranny usurped or inherited.
Among the number of monarchies he ranks the Persian Em- pire and the Kingdom of Sparta. But is it not evident that the one was a despotic state and the other a republic?
The ancients, w^ho were strangers to the distribution of the three powers in the government of a single person, could never form a just idea of monarchy.
10. — What other Politicians thought To temper monarchy, Arybas,& King of Epirus,c found no other remedy than a republic. The Molossi, not knowing how to limit the same power, made two kings,^ by which means the state was weakened more than the prerogative; they wanted rivals, and they created enemies.
Two kings were tolerable nowhere but at Sparta; here they did not form, but were only a part of, the constitution.
II. — Of the Kings of the heroic Times of Greece In the heroic times of Greece, a kind of monarchy arose that was not of long duration.^ Those who had been inventors of arts, who had fought in their country's cause, who had es- tablished societies, or distributed lands among the people, ob- tained the regal power, and transmitted it to their children. They were kings, priests, and judges. This was one of the five species of monarchy mentioned by Aristotle f and the only one that can give us any idea of the monarchical constitution. But the plan of this constitution is opposite to that of our modern monarchies.
The three powers were there distributed in such a manner a " Polit." book III. chap. xiv. d Arist. " Polit." book V. chap. viii.
h Notwithstanding the fact that Ary- Montesquieu seems to have misconbas sought to render his monarchy strued Aristotle, since the Molossi never more stable, the kings of Epirus re- had but one kine. — P.
tained their power until overthrown by e Ibid., book III. chap. xiv.
c See Justin, book XVII.
THE SPIRIT OF LAWS 165 that the people were the legislature,^ and the king had the executive together with the judiciary power; whereas in mod- ern monarchies the prince is invested with the executive and legislative powers, or at least with part of the legislative, but does not act in a judiciary capacity.
In the government of the kings of the heroic times, the three powers were ill distributed. Hence those monarchies could not long subsist. For as soon as the people got the legislative power into their hands, they might, as they everywhere did, upon the very least caprice, subvert the regal authority.
Among a free people possessed of the legislative power, and enclosed within walls, where everything tending towards op- pression appears still more odious, it is the masterpiece of legis- lation to know where to place properly the judiciary power. But it could not be in worse hands than in those of the person to whom the executive power had been already committed. From that very instant the monarch became terrible. But at the same time as he had no share in the legislature, he could make no defence against it; thus his power was in one sense too great, in another too little.
They had not as yet discovered that the true function of a prince was to appoint judges, and not to sit as judge himself. The opposite policy rendered the government of a single per- son insupportable. Hence all these kings were banished. The Greeks had no notion of the proper distribution of the three powers in the government of one person; they could see it only in that of many; and this kind of constitution they distin- guished by the name of Polity.^ 12. — Of the Government of the Kings of Rome, and in what Manner the three Powers were there distributed The government of the kings of Rome had some relation to that of the kings of the heroic times of Greece. Its subver- sion, like the latter's, was owing to its general defect, though in its own particular nature it was exceedingly good.
In order to give an adequate idea of this government, I shall distinguish that of the first five kings, that of Servius Tullius, and that of Tarquin.
g See what Plutarch says in the " Life h Aristot. " Polit." book IV. chap, of Theseus." See likewise " Thucy- viii. dides," book I.
i66 MONTESQUIEU The crown was elective, and under the first five kings the Senate had the greatest share in the election.
Upon the king's decease the Senate examined whether they should continue the established form of government. If they thought proper to continue it, they named a magistrate i taken from their own body, who chose a king; the senate were to ap- prove of the election, the people to confirm it, and the augurs to declare the approbation of the gods. If any of these three conditions was wanting, they were obliged to proceed to an- other election.
The constitution was a mixture of monarchy, aristocracy, and democracy; and such was the harmony of power, that there was no instance of jealousy or dispute in the first reigns. The king commanded the armies, and had the direction of the sacri- fices: he had the power of determining j civil and criminal k causes; he called the Senate together, convened the people, laid some afifairs before the latter, and regulated the rest with the senate./ The authority of the senate was very great. The kings often- times pitched upon senators with whom they sat in judgment; and they never laid any affair before the people till it had been previously debated ^ in that august assembly.
The people had the right of choosing n magistrates, of con- senting to the new laws, and, with the king's permission, of making war and peace; but they had not the judicial power. When Tullius Hostilius referred the trial of Horatius to the people, he had his particular reasons, which may be seen in Dionysius Halicarnassus.o The constitution altered under p Servius Tullius. The Sen- ate had no share in his election; he caused himself to be pro- claimed by the people; he resigned the power of hearing civil causes,? reserving none to himself but those of a criminal nati Dionys. Halicarn. book II. p. 120, n Ibid., book II. And yet they could and book IV. pp. 242 and 243. not have the nomination of all offices, ;■ See Tanaquil's " Discourse on since Valerius Publicola made that fa- Livy," book I. dec. i, and the regula- mous law by which every citizen was tions of Servius Tullius in Dionys. forbidden to exercise any employment, Halicarn. book IV. p. 229. unless he had obtained it by the suffrage k See Dionys. Halicarn. book II. p. of the people, /It was by virtue of a senatus-con- /> Ibid., book IV.
sultum that Tullius Hostilius ordered q He divested himself of half the regal Alba to be destroyed.— Dionys, Hali- power, says Dionys. Halicarn, book IV. arn. book III. pp. 167 and tn Ibid, book IV, p. 276.
THE SPIRIT OF LAWS ure; he laid all affairs directly before the people, eased them of the taxes, and imposed the whole burden on the patricians. Hence in proportion as he weakened the regal together with the senatorian power, he augmented that of the plebeians.^ Tarquin would neither be chosen by the Senate nor by the people; he considered Servius Tullius as a usurper, and seized the crown as his hereditary right. He destroyed most of the senators; those who remained he never consulted; nor did he even so much as summon them to assist at his decisions.^ Thus his power increased: but the odium of that power received a new addition, by usurping also the authority of the people, against whose consent he enacted several laws. The three powers were by these means reunited in his person; but the people at a critical minute recollected that they were legislators, and there was an end of Tarquin.
13. — General Reflections on the State of Rome after the Expulsion of its Kings It is impossible to be tired of so agreeable a subject as an- cient Rome: thus strangers at present leave the modern pal- aces of that celebrated capital to visit the ruins; and thus the eye, after recreating itself with the view of flowery meads, is pleased with the wild prospect of rocks and mountains.
The patrician families were at all times possessed of great privileges. These distinctions, which were considerable under the kings, became much more important after their expulsion. Hence arose the jealousy of the plebeians, who wanted to re- duce them. The contest struck at the constitution, without weakening the government; for it was very indifferent as to what family were the magistrates, provided the magistracy pre- served its authority.
An elective monarchy, like that of Rome, necessarily sup- poses a powerful aristocratic body to support it, without which it changes immediately into tyranny or into a popular state. But a popular state has no need of this distinction of families to maintain itself. To this it was owing that the patricians, who were a necessary part of the constitution under the regal govr It was thought that if he had not been prevented by Tarquin he would have established a popular government. — Dionvs. Halicarn. book I V. p. 243. s Ibid., book IV.
1 68 MONTESQUIEU ernment, became a superfluous branch under the consuls; the people could suppress them without hurting themselves, and change the constitution without corrupting it.
After Servius Tullius had reduced the patricians, it was nat- ural that Rome should fall from the regal hands into those of the people. But the people had no occasion to be afraid of relapsing under a regal power by reducing the patricians.
A state may alter in two diflferent ways, either by the amend- ment or by the corruption of the constitution. If it has pre- served its principles and the constitution changes, this is owing to its amendment; if upon changing the constitution its princi- ples are lost, this is because it has been corrrupted.
The government of Rome, after the expulsion of the kings, should naturally have been a democracy. The people had al- ready the legislative power in their hands; it was their unani- mous consent that had expelled the Tarquins; and if they had not continued steady to those principles, the Tarquins might easily have been restored. To pretend that their design in ex- pelling them was to render themselves slaves to a few families is quite absurd. The situation therefore of things required that Rome should have formed a democracy, and yet this did not happen. There was a necessity that the power of the principal families should be tempered, and that the laws should have a bias to democracy.
The prosperity of states is frequently greater in the insensi- ble transition from one constitution to another than in either of those constitutions. Then it is that all the springs of gov- ernment are upon the stretch, that the citizens assert their claims, that friendships or enmities are formed amongst the jarring parties, and that there is a noble emulation between those who defend the ancient and those who are strenuous in promoting the new constitution.
14. — In what Manner the Distribution of the three Powers began to change after the Expulsion of the Kings There were four things that greatly prejudiced the liberty of Rome. The patricians had engrossed to themselves all public employments whatever; an exorbitant power was annexed to the consulate; the people were often insulted; and, in fine, THE SPIRIT OF LAWS 169 they had scarcely any influence at all left in the public suffrages. These four abuses were redressed by the people.
1st. It was regulated that the plebeians might aspire to some magistracies; and by degrees they were rendered capable of them all, except that of Inter-rex.
2d. The consulate was dissolved into several other magis- tracies; t pretors were created, on whom the power was con- ferred of trying private causes; questors w were nominated for determining those of a criminal nature; ediles were established for the civil administration; treasurers o were made for the management of the public money; and, in fine, by the creation of censors the consuls were divested of that part of the legisla- tive power which regulates the morals of the citizens and the transient polity of the different bodies of the state. The chief privileges left them were, to preside in the great meetings b of the people, to assemble the Senate, and to command the armies.
3d. The sacred laws appointed tribunes, who had a power of checking the encroachments of the patricians, and prevented not only private but Hkewise public injuries.
In fine the plebeians increased their influence in the general assemblies. The people of Rome were divided in three different manners — by centuries, by curice, and by tribes; and when- ever they gave their votes, they were convened in one of those three ways.
In the first the patricians, the leading men, the rich, and the Senate, which was very nearly the same thing, had almost the whole authority; in the second they had less; and less still in the third.
The division into centuries was a division rather of estates and fortunes than of persons. The whole people were dis- tributed into a hundred and ninety-three centuries,^ which had each a single vote. The patricians and leading men composed the first nine-eight centuries; and the other nine-five con- sisted of the remainder of the citizens. In this division there- fore the patricians were masters of the suffrages.
In the division into curi(u,d the patricians had not the same advantages; some, however, they had, for it was necessary to t Livy, dec. i, book VI. b Comitiis centuriatis.
u" Qusestores parricidii."— Pomponi- c See Livy, book I.; Dionys. Halicarn.
us, leg. 2 flf. " de Orig. Jur." books IV. and VII. a Plutarch, " Life of Publicola." d Dionys. Halicarn. book IX. p. 598.
I70 MONTESQUIEU consult the augurs, who were under the direction of the patri- cians; and no proposal could be made there to the people un- less it had been previously laid before the senate, and approved of by a senatus-consultum. But, in the division into tribes they had nothing to do either with the augurs or with the decrees of the Senate; and the patricians were excluded.
Now the people endeavored constantly to have those meet- ings by curice which had been customary by centuries, and by tribes those they used to have before by curice; by which means the direction of public affairs soon devolved from the patricians to the plebeians.
Thus when the plebeians obtained the power of trying the patricians — a power which commenced in the affair of Corio- lanus,^ they insisted upon assembling by tribes,/^ and not by centuries; and when the new magistracies g of tribunes and ediles were established in favor of the people, the latter ob- tained that they should meet by curice in order to nominate them; and after their power was quite settled, they gained h so far their point as to assemble by tribes to proceed to this nomination.
15. — In what Manner Rome, in the flourishing State of that Republic, suddenly lost its Liberty In the heat of the contests between the patricians and the plebeians, the latter insisted upon having fixed laws, to the end that the public judgments should no longer be the effect of capricious will or arbitrary power. The Senate, after a great deal of resistance, acquiesced; and decemvirs were nominated to compose those laws. It was thought proper to grant them an extraordinary power, because they were to give laws to parties whose views and interest it was almost impossible to unite. The nomination of all magistrates was suspended; and the decemvirs were chosen in the comitia sole administrators of the republic. Thus they found themselves invested with the consular and the tribunitial power. By one they had the privilege of assembling the senate, by the other that of con- vening the people; but they assembled neither Senate nor peoe Dionys. Halicarn. book VII, g Dionys. Halicarn. book V. pp. 410 f Contrary to the ancient custom, as and 411.
may be seen in Dionys. Halicarn. book h Ibid, book IX. p. 650.
THE SPIRIT OF LAWS 171 pie. Ten men only of the republic had the whole legislative, the whole executive, and the whole judiciary power. Rome saw herself enslaved by as cruel a tyranny as that of Tarquin. When Tarquin trampled on the liberty of that city, she was seized with indignation at the power he had usurped; when the decemvirs exercised every act of oppression, she was as- tonished at the extraordinary power she had granted.
What a strange system of tyranny — a tyranny carried on by men who had obtained the political and military power, merely from their knowledge in civil affairs, and who at that very junc- ture stood in need of the courage of those citizens to protect them abroad who so tamely submitted to domestic oppression!
The spectacle of Virginia's death, whom her father immo- lated to chastity and liberty, put an end to the power of the decemvirs. Every man became free, because every man had been injured; each showed himself a citizen, because each had a tie of the parent. The senate and the people resumed a liberty which had been committed to ridiculous tyrants.