No people were so easily moved by public spectacles as the Romans. That of the impurpled body of Lucretia put an end to the regal government. The debtor who appeared in the Forum covered with wounds caused an alteration in the repub- lic. The decemvirs owed their expulsion to the tragedy of Vir- ginia. To condemn Manlius, it was necessary to keep the peo- ple from seeing the Capitol. Caesar's bloody garment flung Rome again into slavery.
16. — Of the legislative Power in the Roman Republic There were no rights to contest under the decemvirs: but upon the restoration of liberty, jealousies revived; and so long as the patricians had any privileges left, they were sure to be stripped of them by the plebeians.
The mischief would not have been so great had the plebeians been satisfied with this success; but they also injured the pa- tricians as citizens. When the people assembled by curice or centuries, they were composed of senators, patricians, and ple- beians; in their disputes the plebeians gained this point,« that they alone without patricians or senate should enact the laws » Dionys. Halicarn. book XI. p. 725.
172 MONTESQUIEU called Plebiscita; and the assemblies in which they were made had the name of comitia by tribes. Thus there were cases in which the patricians; had no share in the legislative power, but k were subject to the legislation of another body of the state. This was the extravagance of liberty. The people, to establish a democracy, acted against the very principles of that government. One would have imagined that so exorbitant a power must have destroyed the authority of the senate. But Rome had admirable institutions. Two of these were espe- cially remarkable: one by which the legislative power of the people was established, and the other by which it was limited.
The censors, and before them the consuls, modelled I and created, as it were, every five years, the body of the people; they exercised the legislation on the very part that was pos- sessed of the legislative power. " Tiberius Gracchus," says Cicero, " caused the freedmen to be admitted into the tribes, not by the force of his eloquence, but by a word, by a gesture; w^hich had he not effected, the republic, whose drooping head we are at present scarcely able to uphold, would not even exist."
On the other hand, the senate had the power of rescuing, as it were, the republic out of the hands of the people, by creating a dictator, before whom the sovereign bowed his head, and the most popular laws were silent.^ 17. — Of the executive Power in the same Republic Jealous as the people were of their legislative power, they had no great uneasiness about the executive. This they left almost entirely to the senate and to the consuls, reserving scarcely anything more to themselves than the right of choos- ing the magistrates, and of confirming the acts of the senate and of the generals.
Rome, whose passion was to command, whose ambition was y By the sacred laws, the plebeians Halicarn. book XI. p. 725. This law had the power of making the plebiscita was confirmed by that of Publius Philo by themselves, without admitting the the dictator, in the year of Rome 416.
patricians into their assembly. — Dionys. Livy, book VIII.
Halicarn. book VI. p. 410, and book / In the year 312 of Rome the consuls VII. p. 430. performed still the business of surveyk By the law enacted after the expul- mg the people and their estates, as ap- sion of the decemvirs, the patricians pears by Dionys. Halicarn. book XI, were made subject to the plebiscita, m Such as those by which it was al- though they had not a right of voting lowed to appeal from the decisions of all there. Livy, book III. and Dionys. the magistrates to the people.
THE SPIRIT OF LAWS to conquer, whose commencement and progress were one con- tinued usurpation, had constantly affairs of the greatest weight upon her hands; her enemies were ever conspiring against her, or she against her enemies.
As she was obHged to behave on the one hand with heroic courage, and on the other with consummate prudence, it was requisite, of course, that the management of affairs should be committed to the senate. Thus the people disputed every branch of the legislative power with the senate, because they were jealous of their liberty; but they had no disputes about the executive, because they were animated with the love of glory.
So great was the share the senate took in the executive power, that, as Polybius n informs us, foreign nations imagined that Rome was an aristocracy. The senate disposed of the pubHc money, and farmed out the revenue; they were arbiters of the affairs of their allies; they determined war or peace, and directed in this respect the consuls; they fixed the number of the Roman and of the allied troops, disposed of the provinces and armies to the consuls or pretors, and upon the expiration of the year of command had the power of appointing succes- sors; they decreed triumphs, received and sent embassies: they nominated, rewarded, punished, and were judges of kings, de- clared them alHes of the Roman people, or stripped them of that title.
The consuls levied the troops which they were to carry into the field; had the command of the forces by sea and by land; disposed of the forces of the allies; were invested with the whole power of the republic in the provinces; gave peace to the vanquished nations, imposed conditions on them, or re- ferred them to the senate.
In the earliest times, when the people had some share in the affairs relating to war or peace, they exercised rather their leg- islative than their executive power. They scarcely did any- thing else but confirm the acts of the kings, and after their ex- pulsion those of the consuls or senate. So far were they from being the arbiters of war, that we have instances of its having been often declared, notwithstanding the opposition of the trib- unes. But growing wanton in their prosperity, they increased n Book VI.
174 MONTESQUIEU their executive power. Thus o they created the military trib- unes, the nomination of whom till then had belonged to the generals; and some time before the first Punic war, they de- creed that only their own body should have the right of declar- ing war./' i8. — Of the judiciary Power in the Roman Government The judiciary power was given to the people, to the senate, to the magistrates, and to particular judges. We must see in what manner it was distributed; beginning with their civil affairs.
The consuls had the judiciary power q after the expulsion of the kings, as the pretors were judges after the consuls. Servius Tullius had divested himself of the power of determining civil causes, which was not resumed by the consuls, except in some r very rare cases, for that reason called extraordinary.^ They were satisfied with naming the judges, and establishing the several tribunals. By a discourse of Appius Claudius, in Dionysius Halicarnassus,^ it appears that as early as the 259th year of Rome this was looked upon as a settled custom among the Romans; and it is not tracing it very high to refer it to Servius Tullius.
Every year the pretor made a list a of such as he chose for the office of judges during his magistracy. A sufficient num- ber was pitched upon for each cause; a custom very nearly the same as that now practised in England. And what was ex- tremely favorable to liberty & was the pretor's fixing the judges with the consent c of the parties. The great number of excep- tions that can be made in England amounts pretty nearly to this very custom.
o In the year of Rome 444, Livy, dec. dered them more odious. — Dionys. Hali- I, book IX. As the war against Perseus earn, book XI. p. 709. appeared somewhat dangerous, it was s Judicia extraordinaria. See the " In- ordained by a senatus-consultum that stitutes," book IV. this law should be suspended, and the / Book VI. p. 360.
feople agreed to it. Livy, dec. 5, book a Album Judicium.
I. _ h " Our ancestors," says Cicero, pro p They extorted it from the Senate, Cluentio, " would not suffer any man says Freinshemius, dec. 2, book VI. whom the parties had not agreed to to q There is no manner of doubt but be judge of the least pecuniary affair, the consuls had the power of trying much less of a citizen's reputation."
civil causes before the creation of the c See in the fragments of the Servilian, pretors. See Livy, dec. i, book IL p. Cornelian, and other laws, in what man- 19; Dionys. Halicarn. book X. p. 627, ner these laws appointed judges for the and the same book, p. 645. crimes they proposed to punish. They r The tribunes frequently tried causes were often pitched upon by choice, by themselves only, but nothing ren- sometimes by lot, or, in fine, by lot mixed together with choice.
THE SPIRIT OF LAWS 175 The judges decided only the questions relating to matter of fact;,^ for example, whether a sum of money had been paid or not, whether an act had been committed or not. But as to questions of law,^ as these required a certain capacity, they were always carried before the tribunal of the centumvirs/ The kings reserved to themselves the judgment of criminal affairs, and in this were succeeded by the consuls. It was in consequence of this authority that Brutus put his children and all those who were concerned in the Tarquinian conspiracy to death. This was an exorbitant power. The consuls already invested with the military command extended the exercise of it even to civil affairs; and their procedures, being stripped of all forms of justice, were rather exertions of violence than legal judgments.
This gave rise to the Valerian law, by which it was made lawful to appeal to the people from every decision of the con- suls that endangered the life of a citizen. The consuls had no longer the power of pronouncing sentence in capital cases against a Roman citizen, without the consent of the people.^ We see in the first conspiracy for the restoration of the Tar- quins that the criminals were tried by Brutus the consul; in the second the senate and comitia were assembled to try them./t The laws distinguished by the name of sacred allowed the plebeians the privilege of choosing tribunes; whence was formed a body whose pretensions at first were immense. It is hard to determine which was greater, the insolence of the ple- beians in demanding, or the condescension of the senate in granting. The Valerian law allowed appeals to the people, that is, to the people composed of senators, patricians, and ple- beians. The plebeians made a law that appeals should be brought before their own body. A question was soon after started, whether the plebeians had a right to try a patrician; this was the subject of a dispute to which the impeachment of Coriolanus gave rise, and which ended with that affair. When Coriolanus was accused by the tribunes before the people, he d Seneca, " de Benefic." lib. II. cap. ^ " Quoniam de eapite civis Romani, vii. in fine. injussu populi Romani, non erat pere See Quintilian, lib. IV. p. 54, in fol. missum consulibus jus dicere."— See edit, of Paris, 1541. Pomponius, Leg. 2 ff. " de Grig. Jur."
f Leg. 2 ff. '^de Grig. Jur." Magis- A Dionys. Halicarn. book V. p. 322. trates who were called decemvirs pre- sided in court, the whole under a pre- tor's direction.
176 MONTESQUIEU insisted, contrary to the spirit of the Valerian law, that as he was a patrician, none but the consuls had the power to try him; on the other hand, the plebeians, also contrary to the spirit of that same law, pretended that none but their body were empowered to be his judges, and accordingly they pronounced sentence upon him.
This was moderated by the law of the Twelve Tables; where- by it was ordained that none but the great assemblies of the people i should try a citizen in capital cases. Hence the body of the plebeians, or, which amounts to the very same, the comitia by tribes, had no longer any power of hearing criminal causes, except such as were punished with fines. To inflict a capital punishment a law was requisite; but to condemn to a pecuniary mulct, there was occasion only for a plebiscitum.
This regulation of the law of the Twelve Tables was ex- tremely prudent. It produced an admirable balance between the body of the plebeians and the senate. For as the full ju- diciary power of both depended on the greatness of the punish- ment and the nature of the crime, it was necessary they should both agree.
The Valerian law abolished all the remains of the Roman government in any way relating to that of the kings of the heroic times of Greece. The consuls were divested of the power to punish crimes. Though all crimes are public, yet we must distinguish between those which more nearly concern the mutual intercourse of the citizens and those which more immediately interest the state in the relation it bears to its subjects. The first are called private, the second public. The latter were tried by the people; and in regard to the former, they named by particular commission a questor for the prosecu- tion of each crime. The person chosen by the people was fre- quently one of the magistrates, sometimes a private man. He was called the questor of parricide, and is mentioned in the law of the Twelve Tables./ The questor nominated the judge of the question, who drew lots for the judges, and regulated the tribunal in which he presided.^ i The comitia by centuries. Thus k See a fragment of Ulpian, who gives Manlius Capitolinus was tried in these another of the Cornelian law: it is to be comitia.— Livy, dec. i, book VI. p. 60. met with in the Collation of the Mosaic j Pomponius, in the second Law in and Roman Laws, tit. 1, de sicariis et the Digest " de Grig. Jur." homicidiis.
THE SPIRIT OF LAWS Here it is proper to observe what share the senate had in the nomination of the questor, that we may see how far the two powers were balanced. Sometimes the senate caused a dicta- tor to be chosen, in order to exercise the office of questor; I at other times they ordained that the people should be convened by a tribune, with the view of proceeding to the nomination of a questor: nt and, in fine, the people frequently appointed a magistrate to make his report to the senate concerning a par- ticular crime, and to desire them to name a questor, as may be seen in the judgment upon Lucius Scipio n in Livy.o In the year of Rome 604, some of these commissions were rendered permanent,/' All criminal causes were gradually di- vided into different parts; to which they gave the name of per- petual questions. Different pretors were created, to each of whom some of those questions were assigned. They had a power conferred upon them for the term of a year, of trying such criminal causes as bore any relation to those questions, and then they were sent to govern their province.
At Carthage the senate of the hundred was composed of judges who enjoyed that dignity for Hfe.5 But at Rome the pretors were annual; and the judges were not even for so long a term, but were nominated for each cause. We have already shown in the sixth chapter of this book how favorable this regulation was to liberty in particular governments.
The judges were chosen from the order of senators, till the time of the Gracchi. Tiberius Gracchus caused a law to pass that they should be taken from the equestrian order; a change so very considerable that the tribune boasted of having cut, by one rogation only, the sinews of the senatorian dignity.
It is necessary to observe that the three powers may be very well distributed in regard to the liberty of the constitution, though not so well in respect to the liberty of the subject. At Rome the people had the greatest share of the legislative, a part of the executive, and part of the judiciary power; by which means they had so great a weight in the government as /This took place, especially in regard to crimes committed in Italy, which were subject chiefly to the inspection of the Senate. See Livy, dec. i, book IX., concerning the conspiracies at Capua.
»n This was the case in the prosecu- tion for the murder of Posthumius, in the year 340 of Rome. See Livy.
Vol. l.—iz n This judgment was passed in the year of Rome 567.
0 Book VIII.
p Cicero, in " Bruto."
oThis is proved from Livy, book XLlIL, who says that Hannibal ren- dered their magistracy annual.
178 MONTESQUIEU required some other power to balance it. The senate, indeed, had part of the executive power, and some share of the legisla- tive; r but this was not sufficient to counterbalance the weight of the people. It was necessary that they should partake of the judiciary power: and accordingly they had a share when the judges were chosen from among the senators. But when the Gracchi deprived the senators of the judicial power,^ the senate were no longer able to withstand the people. To favor, there- fore, the liberty of the subject, they struck at that of the con- stitution; but the former perished with the latter.
Infinite were the mischiefs that thence arose. The constitu- tion was changed at a time when the fire of civil discord had scarcely left any such thing as a constitution. The knights ceased to be that middle order which united the people to the senate; and the chain of the constitution was broken.
There were even particular reasons against transferring the judiciary power to the equestrian order. The constitu- tion of Rome was founded on this principle, that none should be enHsted as soldiers but such as were men of sufficient prop- erty to answer for their conduct to the republic. The knights, as persons of the greatest property, formed the cavalry of the legions. But when their dignity increased, they refused to serve any longer in that capacity, and another kind of cavalry was obliged to be raised: thus Marius enlisted all sorts of peo- ple into his army, and soon after the republic was lost.* Besides, the knights were the farmers of the revenue; men whose great rapaciousness increased the public calamities. In- stead of giving to such as those the judicial power, they ought to have been constantly under the eye of the judges. This we must say in commendation of the ancient French laws, that they have acted towards the officers of the revenue with as great a diffidence as would be observed between enemies. When the judiciary power at Rome was transferred to the pub- licans, there was then an end of all virtue, polity, laws, and government.
Of this we find a very ingenious description in some frag- ments of Diodorus Siculus and Dio. " Mutius Scaevola," says r The senatus-consultums were in s In the year 630.
force for the space of a year, though not t " Capite censes plerosque." — Sallust, confirmed by the people.— Dionvs. Hali- " de bello Jugurth." cam. book IX. p. 595, and book XI. p.
THE SPIRIT OF LAWS Diodorus,w " wanted to revive the ancient manners, and the laudable custom of sober and frugal living. For his prede- cessors having entered into a contract with the farmers of the revenue, who at that time were possessed of the judiciary power at Rome, had infected the province with all manner of corrup- tion. But Scsevola made an example of the publicans, and im- prisoned those by whom others had been confined."
Dio informs us a that Publius Rutilius, his lieutenant, was equally obnoxious to the equestrian order, and that upon his return they accused him of having received some presents, and condemned him to a fine; upon which he instantly made a ces- sion of his goods. His innocence appeared in this, that he was found to be worth a great deal less than what he was charged with having extorted, and he showed a just title to what he possessed: but he would not live any longer in the same city with such profligate wretches.
The Italians, says Diodorus again,& bought up whole droves of slaves in Sicily, to till their lands and to take care of their cattle; but refused them a necessary subsistence. These wretches were then forced to go and rob on the highways, armed with lances and clubs, covered with beasts' skins, and followed by large mastiffs. Thus the whole province was laid waste, and the inhabitants could not call anything their own but what was secured by fortresses. There was neither pro- consul nor pretor that could or would oppose this disorder, or that presumed to punish these slaves, because they belonged to the knights, who, at Rome, were possessed of the judiciary power.c And yet this was one of the causes of the war of the slaves. But I shall add only one word more. A profession deaf and inexorable, that can have no other view than lucre, that was always asking and never granting, that impoverished the rich and increased even the misery of the poor — such a pro- fession, I say, should never have been intrusted with the ju- diciary power at Rome.
M Fragment of this author, book b Fragment of the 34th book in the XXXVI., in the collection of Con- " Extract of Virtues and Vices."
stantine Porphyrogenitus, of " Virtues c '* Penes quos Romae turn judicia and Vices." erant, atque ex equestri ordine solerent a Fragment of his history, taken from sortito judices eligi in causa PrsRtorum the " Extract of Virtues and Vices." et Proconsulum, quibus post administratam provinciam dies dicta erat."
i8o MONTESQUIEU 19. — Of the Government of the Roman Provinces Such was the distribution of the three powers in Rome. But they were far from being thus distributed in the provinces. Liberty prevailed in the centre and tyranny in the extreme parts.
While Rome extended her dominions no farther than Italy, the people were governed as confederates, and the laws of each republic were preserved. But when she enlarged her con- quests, and the senate had no longer an immediate inspection over the provinces, nor the magistrates residing at Rome were any longer capable of governing the empire, they were obliged to send pretors and proconsuls. Then it was that the harmony of the three powers was lost. The persons appointed to that office were intrusted with a power which comprehended that of all the Roman magistracies; nay, even that of the people.^ They were despotic magistrates, extremely well adapted to the distance of the places to which they were destined. They ex- ercised the three powers; and were, if I may presume to use the expression, the bashaws of the republic.
We have elsewhere observed that in a commonwealth the same magistrate ought to be possessed of the executive power, as well civil as military. Hence a conquering republic can hardly communicate her government, and rule the conquered state according to her own constitution. And, indeed, as the magistrate she sends to govern is invested with the executive power, both civil and military, he must also have the legisla- tive: for who is it that could make laws without him? It is necessary, therefore, that the governor she sends be intrusted with the three powers, as was practised in the Roman provinces.
It is more easy for a monarchy to communicate its govern- ment, because the officers it sends have, some the civil execu- tive, and others the military executive power, which does not necessarily imply a despotic authority.
It was a privilege of the utmost consequence to a Roman citizen to have none but the people for his judge. Were it not for this, he would have been subject in the provinces to the arbitrary power of a proconsul or of a propretor. The city d They made their edicts upon entering the provinces.
THE SPIRIT OF LAWS i8i never felt the tyranny which was exercised only on conquered nations.
Thus, in the Roman world, as at Sparta, the freemen en- joyed the highest degree of liberty, while those who were slaves labored under the extremity of servitude.
While the citizens paid taxes, they were raised with great justice and equality. The regulation of Servius Tullius was observed, who had distributed the people into six classes, ac- cording to their difference of property, and fixed the several shares of the public imposts in proportion to that which each person had in the government. Hence they bore with the greatness of the tax because of their proportionable greatness of credit, and consoled themselves for the smallness of their credit because of the smallness of the tax.
There was also another thing worthy of admiration, which is, that as Servius Tullius's division into classes was in some measure the fundamental principle of the constitution, it thence followed that an equal levying of the taxes was so connected with this fundamental principle that the one could not be abol- ished without the other.
But while the city paid the taxes as she pleased, or paid none at all,^ the provinces were plundered by the knights, who were the farmers of the public revenue. We have already made mention of their oppressive extortions, with which all history abounds.
" All Asia," says Mithridates,^ " expects me as her deliverer; so great is the hatred which the rapaciousness of the procon- suls,s^ the confiscations made by the officers of the revenue, and the quirks and cavils of judicial proceedings,/^ have excited against the Romans."
Hence it was that the strength of the provinces did not in- crease, but rather weakened, the strength of the republic. Hence it was that the provinces looked upon the loss of the liberty of Rome as the epoch of their own freedom.
e After the conquest of Macedonia g See the orations against Verres.
the Romans paid no taxes. h It is well known what sort of a trif Speech taken from Trogus Pom- bunal was that of Varus, which pro- )eius, and related by Justin, book voked the Germans to revolt.
i82 MONTESQUIEU 20. — The End of this Book I should be glad to inquire into the distribution of the three powers, in all the moderate governments we are acquainted with, in order to calculate the degrees of liberty which each may enjoy. But we must not always exhaust a subject, so as to leave no work at all for the reader. My business is not to make people read, but to make them think.
BOOK XII OF THE LAWS THAT FORM POLITICAL LIB- ERTY, IN RELATION TO THE SUBJECT I. — Idea of this Book IT is not sufficient to have treated of political liberty in rela- tion to the constitution; we must examine it likewise in the relation it bears to the subject.
We have observed that in the former case it arises from a certain distribution of the three powers; but in the latter, we must consider it in another Hght. It consists in security, or in the opinion people have of their security.
The constitution may happen to be free, and the subject not. The subject may be free, and not the constitution. In those cases, the constitution will be free by right, and not in fact; the subject will be free in fact, and not by right.
It is the disposition only of the laws, and even of the funda- mental laws, that constitutes liberty in relation to the consti- tution. But as it regards the subject: manners, customs, or received examples may give rise to it, and particular civil laws may encourage it, as we shall presently observe.
Further, as in most states liberty is more checked or de- pressed than their constitution requires, it is proper to treat of the particular laws that in each constitution are apt to assist or check the principle of liberty which each state is capable of re- ceiving.
2. — Of the Liberty of the Subject Philosophic liberty consists in the free exercise of the will; or at least, if we must speak agreeably to all systems, in an opinion that we have the free exercise of our will. Political liberty consists in security, or, at least, in the opinion that we enjoy security.
This security is never more dangerously attacked than in 1 84 MONTESQUIEU public or private accusations. It is, therefore, on the goodness of criminal laws that the liberty of the subject principally de- pends.
Criminal laws did not receive their full perfection all at once. Even in places where liberty has been most sought after, it has not been always found. Aristotle a informs us that at Cumse the parents of the accuser might be witnesses. So imperfect was the law under the kings of Rome, that Servius Tullius pronounced sentence against the children of Ancus Martius, who were charged with having assassinated the king, his father- in-law.^ Under the first kings of France, Clotarius made a law,c that nobody should be condemned without being heard; which shows that a contrary custom had prevailed in some par- ticular case or among some barbarous people. It was Charon- das that first established penalties against false witnesses.^? When the subject has no fence to secure his innocence, he has none for his liberty.
The knowledge already acquired in some countries, or that may be hereafter attained in others, concerning the surest rule^ to be observed in criminal judgments, is more interesting to mankind than any other thing in the world.
Liberty can be founded on the practice of this knowledge only; and supposing a state to have the best laws imaginable in this respect, a person tried under that state, and condemned to be hanged the next day, would have much more liberty than a pasha enjoys in Turkey.
3. — The same Subject continued Those laws which condemn a man to death on the deposi- tion of a single witness are fatal to liberty. In reason there should be two, because a witness who affirms, and the accused who denies, make an equal balance, and a third must decline the scale.
The Greeks e and Romans f required one voice more to con- demn: but our French laws insist upon two. The Greeks prea " Polit." book II. He gave his laws at Thurium in the b Tarquinius Priscus. See Dionys. 84th Olympiad.
Halicarn. book IV. e See Aristid. Orat. '* in Minervam."
c As early as the year 560. / Dionys. Halicarn. on the Judgment d Aristot. " Polit." book II. chap. xii. of Coriolanus, book VII.
THE SPIRIT OF LAWS 185