A government cannot be unjust without having hands to exercise its injustice. Now, it is impossible but that these hands will be grasping for themselves. The embezzling of the public money is therefore natural in despotic states.
As this is a common crime under such a government, con- fiscations are very useful. By these the people are eased; the money drawn by this method being a considerable tribute which could hardly be raised on the exhausted subject: neither is there in those countries any one family which the prince would be glad to preserve.
In moderate governments it is quite a different thing. Con- fiscations would render property uncertain, would strip inno- cent children, would destroy a whole family, instead of punish- ing a single criminal. In republics they would be attended with the mischief of subverting equality, which is the very soul of this government, by depriving a citizen of his necessary sub- sistence.
e There was no such establishment prison and from an ignominious division made till the Julian law, De ccssione of their goods, bonorum; which preserved them from 64 MONTESQUIEU There is a Roman \2Lwf against confiscations, except in the case of crimen majestatis, or high treason of the most heinous nature. It would be a prudent thing to follow the spirit of this law, and to limit confiscations to particular crimes.^ In coun- tries where a local custom has rendered real estates alienable, Bodin very justly observes that confiscations should extend only to such as are purchased or acquired./^ 1 6. — Of the Communication of Power In a despotic government the power is communicated entire to the person intrusted with it. The vizier himself is the des- potic prince; and each particular officer is the vizier. In mon- archies the power is less immediately applied, being tempered by the monarch as he gives it.« He makes such a distribution of his authority as never to communicate a part of it without reserving a greater share to himself.
Hence in monarchies the governors of towns are not so de- pendent on the governor of the province as not to be still more so on the prince; and the private officers or military bodies are not so far subject to their general as not to owe still a greater subjection to their sovereign.
In most monarchies it has been wisely regulated that those who have an extensive command should not belong to any military corps; so that as they have no authority but through the prince's pleasure, and as they may be employed or not, they are in some measure in the service, and in some measure out of it.
This is incompatible with a despotic government. For if those who are not actually employed were still invested with privileges and titles, the consequence must be that there would be men in the state who might be said to be great of themselves; a thing directly opposite to the nature of this government.
Were the governor of a town independent of the pasha, ex- pedients would be daily necessary to make them agree; which is highly absurd in a despotic state. Besides, if a particular governor should refuse to obey, how could the other answer for his province with his head?
f Authentica bona damnatorum. — Cod. h Book V. chap. iii.
de bon damn. t " Ut esse Phoebi dulcius lumen solet g They seem to have been too fond of Jamjam cadentis ".
confiscations in the republic of Athens. — Sen. " Trias," act v. sc. i.
THE SPIRIT OF LAWS 65 In this kind of government, authority must ever be waver- ing; nor is that of the lowest magistrate more steady than that of the despotic prince. Under moderate governments, the law is prudent in all its parts, and perfectly well known, so that even the pettiest magistrates are capable of following it. But in a despotic state, where the prince's will is the law, though the prince were wise, yet how could the magistrate follow a will he does not know? He must certainly follow his own.
Again, as the law is only the prince's will, and as the prince can only will what he knows, the consequence is, that there are an infinite number of people who must will for him, and make their wills keep pace with his.
In line, as the law is the momentary will of the prince, it is necessary that those who will for him should follow his sud- den manner of willing.
17. — Of Presents It is a received custom in despotic countries never to ad- dress any superior whomsoever, not excepting their kings, without making them a present./ The Mogul^ never receives the petitions of his subjects if they come with empty hands. These princes spoil even their own favors.
But thus it must ever be in a government where no man is a citizen; where they have all a notion that a superior is under no obligation to an inferior; where men imagine them- selves bound by no other tie than the chastisements inflicted by one party upon another; where, in fine, there is very little to do, and where the people have seldom an occasion of pre- senting themselves before the great, of offering their petitions, and much less their complaints.
In a republic, presents are odious, because virtue stands in no need of them. In monarchies, honor is a much stronger incentive than presents. But in a despotic government, where there is neither honor nor virtue, people cannot be determined to act but through hope of the conveniences of life.
It is in conformity with republican ideas that Plato/ ordered those who received presents for doing their duty, to be puny Chardin, chap. xi. tributed to the establishment of the k " Collection of Voyages that con- East India Company," torn. i. p. 8q, / Book XII. of Laws.
Vol. I.-5 66 MONTESQUIEU ished with death. " They must not take presents," says he, " neither for good nor for evil actions."
A very bad law was that among the Romans^* which gave the magistrates leave to accept small presents,^ provided they did not exceed one hundred crowns in the whole year. They who receive nothing expect nothing; they who receive a little soon covet more, till at length their desires swell to an exorbitant height. Besides, it is much easier to convict a man who knows himself obliged to accept no present at all, and yet will accept something, than a person who takes more when he ought to take less, and who always finds pretexts, excuses, and plausible reasons in justification of his conduct.
1 8. — Of Rewards conferred by the Sovereign In despotic governments, where, as we have already ob- served, the principal motive of action is the hope of the con- veniences of life, the prince who confers rewards has nothing to bestow but money. In monarchies, where honor alone pre- dominates, the prince's rewards would consist only of marks of distinction, if the distinctions established by honor were not attended with luxury, which necessarily brings on its wants: the prince, therefore, is obliged to confer such honors as lead to wealth. But in a republic where virtue reigns — a motive self-sufficient, and which excludes all others — the recompenses of the state consist only of public attestations of this virtue.
It is a general rule, that great rewards in monarchies and re- publics are a sign of their decline; because they are a proof of their principles being corrupted, and that the idea of honor has no longer the same force in a monarchy, nor the title of citizen the same weight in a republic.
The very worst Roman emperors were those who were most profuse in their largesses; for example, Caligula, Claudius, Nero, Otho, Vitellius, Commodus, Heliogabalus, and Cara- calla. The best, as Augustus, Vespasian, Antoninus Pius, Mar- cus Aurelius, and Pertinax, were economists. Under good em- perors the state resumed its principles; all other treasures were supplied by that of honor.
m Leg. 5, sec. ad leg. Jul. repet. n Mimuscula.
THE SPIRIT OF LAWS 67 19. — New Consequences of the Principles of the three Governments I cannot conclude this book without making some appHca- tions of my three principles.
1st Question.'] It is a question whether the laws ought to oblige a subject to accept a public employment. My opinion is that they ought in a republic, but not in a monarchical gov- ernment. In the former, public employments are attestations of virtue, depositions with which a citizen is intrusted by his country, for whose sake alone he ought to live, to act, and to think; consequently he cannot refuse them.o In the latter, pub- lic offices are testimonials of honor; now such is the capricious- ness of honor that it chooses to accept none of these testimonies but when and in what manner it pleases.
The late King of Sardinia/' inflicted punishments on his sub- jects who refused the dignities and public offices of the state. In this he unknowingly followed republican ideas: but his method of governing in other respects sufficiently proves that this was not his intention.
2d Question.] Secondly, it is questioned whether a subject should be obliged to accept a post in the army inferior to that which he held before. Among tlie Romans it was usual to see a captain serve the next year under his lieutenant.? This is be- cause virtue in republics requires a continual sacrifice of our persons and of our repugnances for the good of the state. But in monarchies, honor, true or false, will never bear with what it calls degrading itself.
In despotic governments, where honor, posts, and ranks are equally abused, they indiscriminately make a prince a scullion, and a scullion a prince.
2,d Question.] Thirdly, it may be inquired, whether civil and military employments should be conferred on the same person. In republics I think they should be joined, but in monarchies separated. In the former it would be extremely dangerous to 0 Plato, in his " Republic," book q Some centurions having appealed to VIII., ranks these refusals among the the people for the employments which marks of the corruption of a republic. they had before enjoyed, " It is just, my In his " Laws," book VI., he orders comrades," said a centurion, " that you them to be punished by a fine. At should look upon every post as honor- Venice they are punished with banish- able in which you have an opportunity ™ent. of defending the republic." — Livy, dec.
p Victor Amadeus. S, lib. XLII.
68 MONTESQUIEU make the profession of arms a particular state, distinct from that of civil functions; and in the latter, no less dangerous would it be to confer these two employments on the same per- son.
In republics a person takes up arms only with a view to de- fend his country and its laws; it is because he is a citizen he makes himself for a while a soldier. Were these two distinct states, the person who under arms thinks himself a citizen would soon be made sensible he is only a soldier.
In monarchies, they whose condition engages them in the profession of arms have nothing but glory, or at least honor or fortune, in view. To men, therefore, like these, the' prince should never give any civil employments; on the contrary, they ought to be checked by the civil magistrate, that the same persons may not have at the same time the confidence of the people and the power to abuse it.^ We have only to cast an eye on a nation that may be justly called a republic, disguised under the form of monarchy, and we shall see how jealous they are of making a separate order of the profession of arms, and how the military state is con- stantly allied with that of the citizen, and even sometimes of the magistrate, to the end that these qualities may be a pledge for their country, which should never be forgotten.
The division of civil and military employments, made by the Romans after the extinction of the republic, was not an arbitrary thing. It was a consequence of the change which happened in the constitution of Rome; it was natural to a monarchical government; and what was only commenced under Augustus,-? succeeding emperors^ were obHged to finish, in order to temper the military government.
Procopius, therefore, the competitor of Valens the emperor, was very much to blame when, conferring the proconsular dig- nity" upon Hormisdas, a prince of the blood royal of Persia, he restored to this magistracy the military command of which it had been formerly possessed; unless, indeed, he had very particular reasons for so doing. A person that aspires to the r " Ne imperium ad optimos nobilium consuls, and governors of the privilege transferretur, Senatum militia vetuit of vi^earing arms. — Die, lib. LIII.
Gallienus, etiam adire exercitum." — / Constantine. See Zozimus, lib. II.
Aurelius Victor, " de virii illustribus." u Ammianus Marcellinus, lib. XXVI., ^ Augustus deprived the senators, pro- " More veterum et bella recturo."
THE SPIRIT OF LAWS 69 sovereignty concerns himself less about what is serviceable to the state than what is likely to promote his own interest.
4th Question.] Fourthly, it is a question whether public em- ployments should be sold. They ought not, I think, in despotic governments, where the subjects must be instantaneously placed or displaced by the prince.
But in monarchies this custom is not at all improper, by reason it is an inducement to engage in that as a family employ- ment^ which would not be undertaken through a motive of virtue; it fixes likewise every one in his duty, and renders the several orders of the kingdom more permanent. Suidas^^ very justly observes, that Anastasius had changed the empire into a kind of aristocracy, by selling all public employments.
Plato^ cannot bear with this prostitution: " This is ex- actly," says he, " as if a person were to be made a mariner or pilot of a ship, for his money. Is it possible that this rule should be bad in every other employment of life, and hold good only in the administration of a republic?" But Plato speaks of a republic founded on virtue, and we of a monarchy. Now, in monarchies (where, though there were no such thing as a reg- ular sale of public offices, still the indigence and avidity of the courtier would equally prompt him to expose them to sale) chance will furnish better subjects than the prince's choice. In short, the method of attaining to honors through riches in- spires and cherishes industry jj a thing extremely wanting in this kind of government.
^th Question.] The fifth question is, in what kind of govern- ment censors are necessary. My answer is, that they are neces- sary in a republic, where the principle of government is virtue. We must not imagine that criminal actions only are destructive of virtue; it is destroyed also by omissions, by neglects, by a certain coolness in the love of our country, by bad examples, and by the seeds of corruption: whatever does not openly vio- late but elude the laws, does not subvert but weaken them, ought to fall under the inquiry and correction of the censors.
V Voltaire exclaims, " Let us lament w Fragments taken from the embassies that Montesquieu has defamed his work of Constantine Porphyrogenitus. by such paradoxes. But we can forgive x " Repub." lib. VIII.
him: his uncle purchased the office of y We see the laziness of Spain, where President in the country, and left it to all public employments are given away, him. After all we find the man. No one of us is without his weak point."— Ed.
70 MONTESQUIEU We are surprised at the punishment of the Areopagite for kiUing a sparrow which, to escape the pursuit of a hawk, had taken shelter in his bosom. Surprised we are also that an Areopagite should put his son to death for putting out the eyes of a little bird. But let us reflect, that the question here does not relate to a criminal sentence, but to a judgment concern- ing manners in a republic founded on manners.
In monarchies there should be no censors; the former are founded on honor, and the nature of honor is to have the whole world for its censor. Every man who fails in this article is subject to the reproaches even of those who are void of honor.
Here the censors would be spoiled by the very people whom they ought to correct: they could not prevail against the cor- ruption of a monarchy; the corruption rather would be too strong against them.
Hence it is obvious that there ought to be no censors in despotic governments. The example of China seems to dero- gate from this rule; but we shall see, in the course of this work, the particular reasons of that institution.
BOOK VI CONSEQUENCES OF THE PRINCIPLES OF DIF- FERENT GOVERNMENTS WITH RESPECT TO THE SIMPLICITY OF CIVIL AND CRIMINAL LAWS, THE FORM OF JUDGMENTS, AND THE INFLICTING OF PUNISHMENTS I. — Of the Simplicity of Civil Laws in different Governments MONARCHIES do not permit of so great a simplicity of laws as despotic governments. For in monarchies there must be courts of judicature; these must give their decisions; the decisions must be preserved and learned, that we may judge in the same manner to-day as yesterday, and that the lives and property of the citizens may be as cer- tain and fixed as the very constitution of the state.
In monarchies, the administration of justice, which decides not only 'in whatever belongs to life and property, but like- wise to honor, demands very scrupulous inquiries. The deli- cacy of the judge increases in proportion to the increase of his trust, and of the importance of the interests on which he de- termines.
We must not, therefore, be surprised to find so many rules, restrictions, and extensions in the laws of those countries — rules that multiply the particular cases, and seem to make of reason itself an art.
The difference of rank, birth, and condition established in monarchical governments is frequently attended with distinc- tions in the nature of property; and the laws relating to the constitution of this government may augment the number of these distinctions. Hence, among us goods are divided into real estates, purchases, dowries, paraphernalia, paternal and maternal inheritances; movables of different kinds; estates held in fee-simple, or in tail; acquired by descent or convey- 71 72 MONTESQUIEU ance; allodial, or held by socage; ground rents; or annui- ties. Each sort of goods is subject to particular rules, which must be complied with in the disposal of them. These things must needs diminish the simplicity of the laws.
In our governments the fiefs have become hereditary. It was necessary that the nobility should have a fixed property, that is, the fief should have a certain consistency, to the end that the proprietor might be always in a capacity of serving the prince. This must have been productive of great varieties; for in- stance, there are countries where fiefs could not be divided among the brothers; in others, the younger bro:hers may be allowed a more generous subsistence.
The monarch who knows each of his provinces may estab- lish different laws or tolerate different customs. But as the despotic prince knows nothing, and can attend to nothing, he must take general measures, and govern by a rigid and in- flexible will, which throughout his whole dominions produces the same effect; in short, everything bends under his feet.
ki proportion as the decisions of the courts of judicature are multiplied in monarchies, the law is loaded with decrees that sometimes contradict one another; either because succeeding judges are of a different way of thinking, or because the same causes are sometimes well, and at other timesvill, defended; or, in fine, by reason of an infinite number of abuses, to which all human regulations are liable. This is a necessary evil, which the legislator redresses from time to time, as contrary even to the spirit of moderate governments. For when people are obliged to have recourse to courts of judicature, this should come from the nature of the constitution, and not from the con- tradiction or uncertainty of the law.
In governments where there are necessary distinctions of persons, there must likewise be privileges. This also dimin- ishes the simplicity, and creates a thousand exceptions.
One of the privileges least burdensome to society, and es- pecially to him who confers it, is that of pleading in one court in preference to another. Here new difficulties arise, when it becomes a question before which court we shall plead.
Far different is the case of the people undei* despotic govern- ments. In those countries I can see nothing that the legislator is able to decree, or the magistrate to judge. As the lands be- THE SPIRIT OF LAWS 73 long to the prince, it follows that there are scarcely any civil laws in regard to landed property. From the right the sove- reign has to successions, it follows, likewise, that there are none relating to inheritances. The monopolies established by the prince for himself in some countries render all sorts of commer- cial laws quite useless. The marriages which they usually con- tract with female slaves are the cause that there are scarcely any civil laws relating to dowries, or to the particular advantage of married women. From the prodigious multitude of slaves, it follows, likewise, that there are very few who have any such thing as a will of their own, and of course are answerable for their conduct before a judge. Most moral actions, that are only in consequence of a father's, a husband's, or a master's will, are regulated by them, and not by the magistrates.
I forgot to observe that as what we call honor is a thing hardly known in those countries, the several difficulties relat- ing to this article, though of such importance with us, are with them quite out of the question. Despotic power is self-suffi- cient; round it there is an absolute vacuum. Hence it is that when travellers favor us with the description of countries where arbitrary sway prevails, they seldom make mention of civil laws.ct All occasions, therefore, of wrangling and law-suits are here removed. And to this in part is it owing that litigious people in those countries are so roughly handled. As the injustice of their demand is neither screened, palliated, nor protected by an infinite number of laws, of course it is immediately discovered.
2. — Of the Simplicity of Criminal Laws in different Governments We hear it generally said that justice ought to be adminis- tered with us as in Turkey. Is it possible, then, that the most ignorant of all nations should be the most clear-sighted on a point which it most behooves mankind to know?
If we examine the set forms of justice with respect to the trouble the subject undergoes in recovering his property or a In MazuHpatam it could never be regulated in their decisions by certain found out that there was such a thing customs. The Vedas and such books as a written law. See the " Collection of do not contain civil laws,^ but religious yoyages that contributed to the estab- precepts. See " Lettres edifiantes," 14, lishment of the East India Company," collect. torn. iv. part I. p. 391. The Indians are 74 MONTESQUIEU in obtaining satisfaction for an injury or afifront, wc shall find them doubtless too numerous: but if we consider them in the relation they bear to the liberty and security of every individual, we shall often find them too few; and be convinced that the trouble, expense, delays, and even the very dangers of our judiciary proceedings are the price that each subject pays for his liberty.
In Turkey, where little regard is shown to the honor, life, or estate of the subject, all causes are speedily decided. The method of determining them is a matter of indifference, pro- vided they be determined. The pasha, after a quick hearing, orders which party he pleases to be bastinadoed, and then sends theni about their business.
Here it would be dangerous to be of a litigious disposition; this supposes a strong desire of obtaining justice, a settled aver- sion, an active mind, and a steadiness in pursuing one's point. All this should be avoided in a government where fear ought to be the only prevailing sentiment, and in which popular dis- turbances are frequently attended with sudden and unforeseen revolutions. Here every man ought to know that the magis- trate must not hear his name mentioned, and that his security depends entirely on his being reduced to a kind of annihilation.
But in moderate governments, where the life of the meanest subject is deemed precious, no man is stripped of his honor or property until after a long inquiry; and no man is bereft of life till his very country has attacked him — an attack that is never made without leaving him all possible means of making his defence.
Hence it is that when a person renders himself absolute,^ he immediately thinks of reducing the number of laws. In a gov- ernment thus constituted they are more affected with particular inconveniences than with the liberty of the subject, which is very little minded.
In republics, it is plain that as many formalities at least are necessary as in monarchies. In both governments they in- crease in proportion to the value which is set on the honor, fortune, liberty, and life of the subject.
In republican governments, men are all equal; equal they are also in despotic governments: in the former, because they are everything; in the latter, because they are nothing.
b Caesar, Cromwell, and many others.
THE SPIRIT OF LAWS 75 3. — In what Governments and in what Cases the Judges ought to determine according to the express Letter of the Law The nearer a government approaches towards a republic, the more the manner of judging becomes settled and fixed; hence it was a fault in the Republic of Sparta for the Ephori to pass such arbitrary judgments without having any laws to direct them. The First Consuls at Rome pronounced sentence in the same manner as the Ephori; but the inconvenience of this proceeding was soon felt, and they were obliged to have recourse to express and determinate laws.
In despotic governments there are no laws; the judge him- self is his own rule. There are laws in monarchies; and where these are explicit, the judge conforms to them; where they are otherwise, he endeavors to investigate their spirit. In republics, the very nature of the constitution requires the judges to follow the letter of the law; otherwise the law might be explained to the prejudice of every citizen, in cases where their honor, prop- erty, or life is concerned.
At Rome the judges had no more to do than to declare that the persons accused were guilty of a particular crime, and then the punishment was found in the laws, as may be seen in divers laws still extant. In England the jury give their verdict whether the fact brought under their cognizance be proved or not; if it be proved, the judge pronounces the punishment in- flicted by the law, and for this he needs only to open his eyes.
4. — Of the Manner of passing Judgment Hence arises the dififierent modes of passing judgment. In monarchies the judges choose the method of arbitration; they deliberate together, they communicate their sentiments for the sake of unanimity; they moderate their opinions, in order to render them conformable to those of others: and the lesser number are obliged to give way to the majority. But this is not agreeable to the nature of a republic. At Rome, and in the cities of Greece, the judges never entered into a consul- tation; each gave his opinion in one of these three ways: I absolve, I condemn. It does not appear clear to me: c this was cNon liquet.
76 MONTESQUIEU because the people judged, or were supposed to judge. But the people are far from being civilians; all these restrictions and methods of arbitration are above their reach; they must have only one object and one single fact set before them; and then they have only to see whether they ought to condemn, to acquit, or to suspend their judgment.
The Romans introduced set forms of actions,flJ after the ex- ample of the Greeks, and established a rule that each cause should be directed by its proper action. This was necessary in their manner of judging; it was necessary to fix the state of the question, that the people might have it always before their eyes. Otherwise, in a long process, this state of the question would continually change, and be no longer distinguished.
Hence it followed that the Roman judges granted only the simple demand, without making any addition, deduction, or limitation. But the prcetors devised other forms of actions, which were called ex bona Me, in which the method of pro- nouncing sentence was left to the disposition of the judge. This was more agreeable to the spirit of monarchy. Hence it is a saying among the French lawyers, " that in France e all actions are ex bona Me."
5. — In what Governments the Sovereign may be Judge Machiavel f attributes the loss of the liberty of Florence to the people's not judging in a body in cases of high treason against themselves, as was customary at Rome. For this pur- pose they had eight judges: " but the few," says Machiavel, " are corrupted by a few." I should willingly adopt the maxim of this great man. But as in those cases the political interest prevails in some measure over the civil (for it is always an in- convenience that the people should be judges in their own cause), in order to remedy this evil, the laws must provide as much as possible for the security of individuals.
With this view the Roman legislators did two things: they gave the persons accused permission to banish themselves^ bed " Quas actiones ne populus prout f " Discourse on the first Decade of vellet institueret, certas solemnesque Livy," book I. chap, vii. esse voluerunt."— Lib. II. sec. 6, Digest. g This is well explained in Cicero's de Griff. Jur. oration " pro Csecina," towards the end.
e In France a person, though sued for more than he owes, loses his costs if he has not offered to pay the exact debt.
THE SPIRIT OF LAWS 77