5 " Collection of Voyages that Con- part II. tributed to the Establishment of the 198 MONTESQUIEU business is not to destroy the rebel, but the rebeUion. They ought to return as quickly as possible into the usual track of government, in which every one is protected by the laws, and no one injured.
The Greeks set no bounds to the vengeance they took upon tyrants, or of those they suspected of tyranny; they put their children to death,^ nay, sometimes five of their nearest rela- tives;o and they proscribed an infinite number of families. By such means their republics suffered the most violent shocks: exiles, or the return of the exiled, were always epochs that indicated a change of the constitution.
The Romans had more sense. When Cassius was put to death for having aimed at tyranny, the question was proposed whether his children should undergo the same fate: but they were preserved. " They," says Dionysius Halicarnassus,^ " who wanted to change this law at the end of the Marsian and civil wars, and to exclude from public offices the children of those who had been proscribed by Sylla, are very much to blame."
We find in the wars of Marius and Sylla to what excess the Romans had gradually carried their barbarity. Such scenes of cruelty it was hoped would never be revived. But under the triumvirs, they committed greater acts of oppression, though with some appearance of lenity; and it is provoking to see what sophisms they make use of to cover their inhumanity. Appian has given use the formula of the proscriptions. One would imagine they had no other aim than the good of the repubhc, with such calmness do they express themselves; such advantages do they point out to the state; such expediency do they show in the means they adopt; such security do they promise to the opulent; such tranquillity to the poor; so ap- prehensive do they seem of endangering the lives of the citi- zens; so desirous of appeasing the soldiers; such felicity, in fine, do they presage to the commonwealth.^ Rome was drenched in blood when Lepidus triumphed over Spain: yet, by an unparalleled absurdity, he ordered public rejoicing in that city, upon pain of proscription.^ tiquities," book VIII. c Of the civil wars, book IV.
a " Tyranno occiso quinque ejus prox- d " Quod felix faustumque sit."
imos cognatione magistratus necato." — e " Sacris et epulis dent hunc diem; Cic. " de invent." lib. II. qui secus faxit, inter proscriptos esto."
THE SPIRIT OF LAWS 19. — In what Manner the Use of Liberty is suspended in a Republic In countries where liberty is most esteemed, there are laws by which a single person is deprived of it, in order to preserve it for the whole community. Such are in England what they call Bills of Attainder/ These are in relation to those Athen- ian laws by which a private person was condemned,^' provided they were made by the unanimous suffrage of six thousand citizens. They are in relation also to those laws which were made at Rome against private citizens, and were called privil- eges.^ These were never passed except in the great meetings of the people. But in what manner soever they were enacted, Cicero was for having them abolished, because the force of a law consists in its being made for the whole community.* I must own, notwithstanding, that the practice of the freest na- tion that ever existed induces me to think that there are cases in which a veil should be drawn for a while over liberty, as it was customary to cover the statues of the gods.
20. — Of Laws favorable to the Liberty of the Subject in a Republic In popular governments it often happens that accusations are carried on in public, and every man is allowed to accuse whomsoever he pleases. This rendered it necessary to estab- lish proper laws, in order to protect the innocence of the sub- ject. At Athens, if an accuser had not the fifth part of the votes on his side, he was obliged to pay a fine of a thousand drachms. yEschines, who accused Ctesiphon, was condemned to pay this fine.; At Rome, a false accuser was branded with _ / It is not sufficient in the courts of the two houses, and have the King's justice of that kingdom that the evi- consent, otherwise it is not a bill: that dence be of such a nature as to satisfy is, a sentence of the Legislature. The the judges; there must be a legal person accused may plead against the proof^; and the law requires the depo- bill by counsel, and the members of the sition of two witnesses against the ac- house may speak in defence of the bill, cused. No other proof will do. Now, g " Legem de singulari aliquo ne roif a person who is presumed guilty of gato, nisi sex millibus ita visum." — high treason should contrive to secrete " Ex Andocide de Mysteriis." This is the witnesses, so as to render it impos- what they called Ostracism, sible for him to be legally condemned, h " De privis hominibus latae." — Cithe government then may bring a bill cero, " de Leg." lib. HL. of attainder against him; that is, they t '* Scitum est jussum in omnes." — may enact a particular law for that Ibid.
single fact. They proceed then in the; See Philostratus, book I.: "Lives same manner as in all other bills of the Sophists," " Life of ^schines," brought into parliament; it must pass See likewise Plutarch and Phocius.
200 MONTESQUIEU infamy k by marking the letter K / on his forehead. Guards were also appointed to watch the accuser, in order to prevent his corrupting either the judges or the witnesses.^ I have already taken notice of that Athenian and Roman law by which the party accused was allowed to withdraw be- fore judgment was pronounced.
21. — Of the Cruelty of Laws in respect to Debtors in a Republic Great is the superiority which one fellow-subject has already over another, by lending him money, which the latter borrows in order to spend, and, of course, has no longer in his posses- sion. What must be the consequence if the laws of a republic make a further addition to this servitude and subjection?
At Athens and Rome" it was at first permitted to sell such debtors as were insolvent. Solon redressed this abuse at Athens^ by ordaining that no man's body should answer for his civil debts. But the decemvirs/' did not reform the same custom at Rome; and though they had Solon's regulation before their eyes yet they did not choose to follow it. This is not the only passage of the law of the Twelve Tables in which the decemvirs show their design of checking the spirit of democ- racy.
Often did those cruel laws against debtors throw the Roman republic into danger. A man covered with wounds made his escape from his creditor's house and appeared in the forum. g The people were moved with this spectacle, and other citizens whom their creditors durst no longer confine broke loose from their dungeons. They had promises made them, which were all broken. The people upon this, having withdrawn to the Sacred Mount, obtained, not an abrogation of those laws, but a magistrate to defend them. Thus they quitted a state of anarchy, but were soon in danger of falling into tyranny. Manlius, to render himself popular, was going to set those citik By the Remmian law. o Plutarch, " Life of Solon."
/ This was the initial of an old Latin p It appears from history that this word which to-day is written " Calum- custom was established among the nia."— P. Romans before the law of the Twelve m Plutarch, in a treatise entitled, Tables,— Livy, dec. i, book II.
" How a person may reap advantage q Dionys. Halicarn., " Roman Anfrom his enemies." tiquities,^' book VI.
n " A great many sold their children to pay their debts."— Plutarch, " Life of Solon."
THE SPIRIT OF LAWS 2or zens at liberty who by their inhuman creditors'* had been re- duced to slavery. Manlius's designs were prevented, but with- out remedying the evil. Particular laws facilitated to debtors the means of paying;s and in the year of Rome 428 the consuls proposed a law/ which deprived creditors of the power of con- fining their debtors in their own houses.w A usurer, by name Papirius, attempted to corrupt the chastity of a young man named Publius, whom he kept in irons. Sextus's crime gave to Rome its political liberty; that of Papirius gave it also the civil.
Such was the fate of this city, that new crimes confirmed the liberty which those of a more ancient date had procured it. Appius's attempt upon Virginia flung the people again into that horror against tyrants with which the misfortune of Lu- cretia had first inspired them. Thirty-seven years after^^ the crime of the infamous Papirius, an action of the like criminal naturew was the cause of the people's retiring to the Janicu- \um,a and of giving new vigor to the law made for the safety of debtors.
Since that time creditors were oftener prosecuted by debtors for having violated the laws against usury than the latter were sued for refusing to pay them.
22. — Of Things that strike at Liberty in Monarchies Liberty often has been weakened in monarchies by a thing of the least use in the world to the prince: this is the naming of commissioners to try a private person.
The prince himself derives so very little advantage from those commissioners that it is not worth while to change for their sake the common course of things. He is morally sure that he has more of the spirit of probity and justice than his commissioners, who think themselves sufficiently justified by his nomination and orders, by a vague interest of state, and even by their very apprehensions.
r Plutarch, " Life of Furius Camil- v The year of Rome 465.
lus." a; That of Plautius, who made an ats See what follows in the 24th chapter tempt upon the body of Veturius.— of the book of Laws as relative to the Valerius Maximus, book VI. art. 9.
use of money. These two events ought not to be conf One hundred and twenty years after founded; they are neither the same perthe law of the Twelve Tables: " Eo sons nor the same times.
anno plebi Romanae, velut aliud initium a See a fragment of Dionys. Halicarn.
libertatis factum est, quod necti desie- in the " Extract of Virtues and Vices "; runt." — Livy, lib. VIII. Livy's epitome, book II.; and Freinu " Bona debitoris, non corpus ob- shemius, book II. noxium esset." — Ibid.
202 MONTESQUIEU Upon the arraigning of a peer under Henry VIII it was cus- tomary to try him by a committee of the House of Lords: by which means he put to death as many peers as he pleased.
23. — Of Spies in Monarchies Should I be asked whether there is any necessity for spies in monarchies my answer would be, that the usual practice of good princes is not to employ them. When a man obeys the laws, he has discharged his duty to his prince. He ought at least to have his own house for an asylum, and the rest of his conduct should be exempt from inquiry. The trade of a spy might perhaps be tolerable, were it practised by honest men; but the necessary infamy of the person is sufficient to make us judge of the infamy of the thing. A prince ought to act towards his subjects with candor, frankness, and confidence. He that has so much disquiet, suspicion, and fear is an actor embar- rassed in playing his part. When he finds that the laws are generally observed and respected, he may judge himself safe. The behavior of the public answers for that of every individual. Let him not be afraid: he cannot imagine how natural it is for his people to love him. And how should they do otherwise than love him, since he is the source of almost all bounties and favors; punishments being generally charged to the ac- count of the laws? He never shows himself to his people but with a serene countenance; they have even a share of his glory, and they are protected by his power. A proof of his being be- loved is that his subjects have confidence in him: what the minister refuses, they imagine the prince would have granted. Even under public calamities they do not accuse his person; they are apt to complain of his being misinformed, or beset by corrupt men. " Did the prince but know," say the people; these words are a kind of invocation, and a proof of the confi- dence they have in his person.
24. — Of Anonymous Letters The Tartars are obliged to put their names to their arrows, that the arm may be known which shoots them. When Philip of Macedon was wounded at the siege of a certain town, these words were found on the javelin, " Aster has given this mortal THE SPIRIT OF LAWS 203 wound to Philip."^ If they who accuse a person did it merely to serve the public, they would not carry their complaint to the prince, who may be easily prejudiced, but to the magis- trates, who have rules that are formidable only to calumniators. But if they are unwilling to leave the laws open between them and the accused, it is a presumption they have reason to be afraid of them; and the least punishment they ought to suffer is not to be credited. No notice, therefore, should ever be taken of those letters, except in cases that admit not of the de- lays of the ordinary course of justice, and in which the prince's welfare is concerned. Then it may be imagined that the ac- cuser has made an effort, which has untied his tongue. But in other cases one ought to say, with the Emperor Constan- tius: " We cannot suspect a person who has wanted an ac- cuser, whilst he did not want an enemy."c 25. — Of the Manner of governing in Monarchies The royal authority is a spring that ought to move with the greatest freedom and ease. The Chinese boast of one of their emperors, who governed, they say, like the heavens, that is, by his example.
There are some cases in which a sovereign ought to exert the full extent of his power; and others in which he should reduce it within narrower limits. The sublimity of adminis- tration consists in knowing the proper degree of power, which should be exerted on different occasions.
The whole felicity of monarchies consists in the opinion which the subjects entertain of the lenity of the government. A weak minister is ever ready to remind us of our slavery. But granting, even, that we are slaves, he should endeavor to conceal our misery from us. All he can say or write is that the prince is uneasy, that he is surprised, and that he will redress all grievances. There is a certain ease in commanding; the prince ought only to encourage, and let the laws menace.^ h Plutarch's "Morals: Comparison of d " Nerva," says Tacitus, " increased some Roman and Greek Histories," the ease of government." It is worthy tom. ii. p. 487. of note that the best editions of Tacitus c Leg. 6, Cod. Theod. " de famosis li- have " felicitatem imperii," and not bellis." " facilitatem imperii."— Ed.
204 MONTESQUIEU 26. — That in a Monarchy the Prince ought to he of easy Access The utility of this maxim will appear from the inconvenience attending the contrary practice. ** The Czar Peter I," says the Sieur Perry/ " has published a new edict, by which he forbids any of his subjects to offer him a petition till after having pre- sented it to two of his officers. In case of refusal of justice they may present him a third, but upon pain of death if they are in the wrong. After this no one ever presumed to ofifer a peti- tion to the Czar."
27. — Of the Manners of a Monarch The manners of a prince contribute as much as the laws themselves to liberty; like these he may transform men into brutes, and brutes into men. If he prefers free and generous spirits, he will have subjects; if he likes base, dastardly souls, he will have slaves. Would he know the great art of ruling, let him call honor and virtue to attend his person; and let him encourage personal merit. He may even sometimes cast an eye on talents and abilities. Let him not be afraid of those rivals who are called men of merit; he is their equal when once he loves them. Let him gain the hearts of his people, without subduing their spirits. Let him render himself popular; he ought to be pleased with the affections of the lowest of his sub- jects, for they too are men. The common people require so very little condescension, that it is fit they should be humored; the infinite distance between the sovereign and them will surely prevent them from giving him any uneasiness. Let him be ex- orable to supplication, and resolute against demands; let him be sensible, in fine, that his people have his refusals, while his courtiers enjoy his favors.
28. — Of the Regard which Monarchs owe to their Subjects Princes ought to be extremely circumspect with regard to raillery. It pleases with moderation, because it is an introduc- tion to familiarity; but a satirical raillery is less excusable in them than in the meanest of their subjects, for it is they alone that give a mortal wound.
e" State of Russia," p. 173, Paris edition, 1717.
THE SPIRIT OF LAWS 205 Much less should they offer a public affront to any of their subjects; kings were instituted to pardon and to punish, but never to insult.
When they affront their subjects, their treatment is more cruel than that of the Turk or the Muscovite. The insults of these are a humiliation, not a disgrace; but both must follow from the insolent behavior of monarchs.
Such is the prejudice of the eastern nations, that they look upon an affront from the prince as the effect of paternal good- ness; and such, on the contrary, is our way of thinking, that besides the cruel vexation of being affronted, we despair of ever being able to wipe off the disgrace.
Princes ought to be overjoyed to have subjects to whom honor is dearer than life, an incitement to fidelity as well as to courage.
They should remember the misfortunes that have happened to sovereigns for insulting their subjects: the revenge of Chaerea, of the eunuch Narses, of Count Julian, and, in fine, of the Duchess of Montpensier, who, being enraged against Henry III for having published some of her private failings, tormented him during her whole life.
29. — Of the civil Laws proper for mixing some portion of Liberty in a despotic Government Though despotic governments are of their own nature every- where the same, yet from circumstances — from a religious opinion, from prejudice, from received examples, from a par- ticular turn of mind, from manners or morals — it is possible they may admit of a considerable difference.
It is useful that some particular notions should be established in those governments. Thus in China the prince is considered as the father of his people; and at the commencement of the empire of the Arabs, the prince was their preacher.^ It is proper there should be some sacred book to serve for a rule, as the Koran among the Arabs, the books of Zoroaster among the Persians, the Veda among the Indians, and the clas- sic books among the Chinese. The religious code supplies the civil and fixes the extent of arbitrary sway.
It is not at all amiss that in dubious cases the judges should cdnsult the ministers of religion.^ Thus, in Turkey, the Cadis / The Caliphs. g " History of the Tartars," 3d part, p. 277, in the remarks.
2o6 MONTESQUIEU consult the Mollahs./t But if it is a capital crime, it may be proper for the particular judge, if such there be, to take the gov- ernor's advice, to the end that the civil and ecclesiastical power may be tempered also by the political authority.
30. — The same Subject continued Nothing but the very excess and rage of despotic power ordained that the father's disgrace should drag after it that of his wife and children. They are wretched enough already without being criminals: besides, the prince ought to leave suppliants or mediators between himself and the accused, to assuage his wrath or to inform his justice.
It is an excellent custom of the Maldivians,* that when a lord is disgraced he goes every day to pay his court to the king till he is taken again into favor: his presence disarms the prince's indignation.
In some despotic governments/ they have a notion that it is trespassing against the respect due to their prince to speak to him in favor of a person in disgrace. These princes seem to use all their endeavors to deprive themselves of the virtue of clemency.
Arcadius and Honorius, by a law^ on which we have already descanted,^ positively declare that they will show no favor to those who shall presume to petition them in behalf of the guil- ty.w This was a very bad law indeed, since it is bad even under a despotic government.
The custom of Persia, which permits every man that pleases to leave the kingdom, is excellent; and though the contrary practice derives its origin from despotic power, which has ever considered the subjects as slaves,w and those who quit the coun- try as fugitives, yet the Persian practice is useful even to a des- potic government, because the apprehension of people's with- drawing for debt restrains or moderates the oppressions ot pashas and extortioners.
h It is plain here that Montesquieu / In the 8th chapter of this book, confounds the Mollahs with the Mufti. m Frederick copied this law in the — P. " Constitutions of Naples," book I.
i See Francis Pirard. n In monarchies there is generally a y As at present in Persia, according to law which forbids those who are in- Sir ^John Chardin, this custom is very vested with public employments to go ancient. " They put Cavades," says out of the kingdom without the prince's Procopius, " into the castle of oblivion; leave. This law ought to be established there is a law which forbids any one to also in republics. But in those that speak of those who are shut up, or even have particular institutions the prohibito mention their name." tion ought to be general, in order to k The fifth law irj the cod. " ad leg. prevent the introduction of foreign Jul. Maj," maniiers.
BOOK XIII OF THE RELATION WHICH THE LEVYING OF TAXES AND THE GREATNESS OF THE PUBLIC REVENUES BEAR TO LIBERTY I. — Of the Public Revenues THE public revenues are a portion that each subject gives of his property, in order to secure or enjoy the remainder.
To fix these revenues in a proper manner, regard should be had both to the necessities of the state and to those of the sub- ject. The real wants of the people ought never to give way to the imaginary wants of the state.
Imaginary wants are those which flow from the passions and the weakness of the governors, from the vain conceit of some extraordinary project, from the inordinate desire of glory, and from a certain impotence of mind incapable of withstanding the impulse of fancy. Often have ministers of a restless disposi- tion imagined that the wants of their own mean and ignoble souls were those of the state.
Nothing requires more wisdom and prudence than the regu- lation of that portion of which the subject is deprived, and that which he is suffered to retain.
The public revenues should not be measured by the people's abilities to give, but by what they ought to give; and if they arc measured by their abilities to give, it should be considered what they are able to give for a constancy.
2. — That it is bad Reasoning to say that the Greatness of Taxes is good in its own Nature There have been instances in particular monarchies of petty states exempt from taxes that have been as miserable as the circumjacent places which groaned under the weight of exac- 2o8 MONTESQUIEU tions. The chief reason of this is, that the petty state can hardly have any such thing as industry, arts, or manufactures, because of its being subject to a thousand restraints from the great state by which it is environed. The great state is blessed with in- dustry, manufactures, and arts, and establishes laws by which those several advantages are procured. The petty state be- comes, therefore, necessarily poor, let it pay never so few taxes.
And yet some have concluded from the poverty of those petty states that in order to render the people industrious they should be loaded with taxes. But it would be a juster inference, that they ought to pay no taxes at all. None live here but wretches who retire from the neighboring parts to avoid working — wretches who, disheartened by labor, make their whole felicity consist in idleness.
The efifect of wealth in a country is to inspire every heart with ambition: that of poverty is to give birth to despair. The former is excited by labor the latter is soothed by indolence.
Nature is just to all mankind, and repays them for their in- dustry: she renders them industrious by annexing rewards in proportion to their labor. But if an arbitrary prince should attempt to deprive the people of nature's bounty, they would fall into a disrelish of industry; and then indolence and inac- tion must be their only happiness.
3- — Of Taxes in Countries where Part of the People are Villains or Bondmen The state of villanage is sometimes established after a con- quest. In that case, the bondman or villain that tills the land ought to have a kind of partnership with his master. Nothing but a communication of loss or profit can reconcile those who are doomed to labor to such as are blessed with a state of afifluence.
4- — Of a Republic in the like Case When a republic has reduced a nation to the drudgery of cultivating her lands, she ought never to suffer the free sub- ject to have the power of increasing the tribute of the bond- man. This was not permitted at Sparta. Those brave people thought the Helotes a would be more industrious in cultivato Plutarch, THE SPIRIT OF LAWS ing their lands, and knowing that their servitude was not to increase; they imagined, Hkewise, that the masters would be better citizens, when they desired no more than what they were accustomed to enjoy.
5. — Of a Monarchy in the like Case When the nobles of a monarchical state cause the lands to be cultivated for their own use by a conquered people, they ought never to have the power of increasing the service or tribute.^ Besides, it is right the prince should be satisfied with his own demesne and the military service. But if he wants to raise taxes on the vassals of his nobility, the lords of the sev- eral districts ought to be answerable for the tax,c and be obliged to pay it for the vassals, by whom they may be afterwards re- imbursed. If this rule be not followed, the lord and the collec- tors of the public taxes will harass the poor vassal by turns till he perishes with misery or flies into the woods.
6. — Of a despotic Government in the like Case The foregoing rule is still more indispensably necessary in a despotic government. The lord who is every moment liable to be stripped of his lands and his vassals is not so eager to preserve them.
When Peter I thought proper to follow the custom of Ger- many, and to demand his taxes in money, he made a very pru- dent regulation, which is still followed in Russia. The gen- tleman levies the tax on the peasant, and pays it to the Czar. If the number of peasants diminishes, he pays all the same; if it increases, he pays no more; so that it is his interest not to worry or oppress his vassals.
7. — Of Taxes in Countries where Villanage is not established When the inhabitants of a state are all free subjects, and each man enjoys his property with as much right as the prince his sovereignty, taxes may then be laid either on persons, on lands, on merchandise, on two of these, or on all three together.
In the taxing of persons, it would be an unjust proportion to 6 This is what induced Charlemagne this head. See the fifth book of the to make his excellent institution upon " Capitularies," art. 303.
c This is the practice in Germany.
2IO MONTESQUIEU conform exactly to that of property. At Athens the people were divided into four classes. c^ Those who drew five hundred measures of liquid or dried fruit from their estates paid a talent e to the public; those who drew three hundred measures paid half a talent; those who had two hundred measures paid ten minse; those of the fourth class paid nothing at all. The tax was fair, though it was not proportionable: if it did not follow the measure of people's property, it followed that of their wants. It was judged that every man had an equal share of what was necessary for nature, that whatsoever was necessary for nature ought not to be taxed; that to this succeeded the useful, which ought to be taxed, but less than the superfluous; and that the largeness of the taxes on what was superfluous prevented super- fluity.
In the taxing of lands it is customary to make lists or regis- ters, in which the different classes of estates are ranged. But it is very difficult to know these differences, and still more so to find people that are not interested in mistaking them. Here, therefore, are two sorts of injustice, that of the man and that of the thing. But if in general the tax be not exorbitant, and the people continue to have plenty of necessaries, these partic- ular acts of injustice will do no harm. On the contrary, if the people are permitted to enjoy only just what is necessary for subsistence, the least disproportion will be of the greatest con- sequence.