fore sentence was pronounced; h and they ordained, that the goods of those who were condemned should be sacred, to pre- vent their being confiscated to the people. We shall see in book XL the other limitations that were set to the judicatory power residing in the people.
Solon knew how to prevent the abuse which the people might make of their power in criminal judgments. He or- dained that the Court of Areopagus should re-examine the affair; that if they believed the party accused was unjustly acquitted,^' they should impeach him again before the people; that if they believed him unjustly condemned,/ they should pre- vent the execution of the sentence, and make them rejudge the proceeding — an admirable law, that subjected the people to the censure of the magistracy which they most revered, and even to their own!
In affairs of this kind it is always proper to throw in some delays, especially when the party accused is under confinement; to the end that the people may grow calm and give their judg- ment coolly.
In despotic governments the prince himself may be judge. But in monarchies this cannot be; the constitution by such means would be subverted, and the dependent intermediate powers annihilated; all set forms of judgment would cease; fear would take possession of the people's minds, and paleness spread itself over every countenance: the more confidence, honor, affection, and security in the subject, the more extended is the power of the monarch.
We shall give here a few more reflections on this point. In monarchies, the prince is the party that prosecutes the person accused, and causes him to be punished or acquitted. Now, were he himself to sit upon the trial, he would be both judge and party.
In this government the prince has frequently the benefit of confiscation, so that here again, by determining criminal causes, he would be both judge and party.
Further, by this method he would deprive himself of the most glorious attribute of sovereignty, namely, that of granth This was the law at Athens, as ap- t Demosthenes, " pro Corona," p. 494, pears by Demosthenes. Socrates re- edit. Frankf. an. 1604. fused to make use of it. / See Philostratus's " Lives of the Sophists," book I., Life of ^schines.
78 MONTESQUIEU ing pardon,^ for it would be quite ridiculous of him to make and unmake his decisions; surely he would not choose to contra- dict himself.
Besides, this would be confounding all ideas; it would be impossible to tell whether a man was acquitted, or received his pardon.
Louis XIII being desirous to sit in judgment upon the trial of the Duke de la Valette,^ sent for some members of the Par- liament and of the Privy Council, to debate the matter; upon their being ordered by the King to give their opinion concern- ing the warrant for his arrest, the President, De Believre, said ** that he found it very strange that a prince should pass sen- tence upon a subject; that kings had reserved to themselves the power of pardoning, and left that of condemning to their officers; that his majesty wanted to see before him at the bar a person who, by his decision, was to be hurried away into the other world! That the prince's countenance should inspire with hopes, and not confound with fears; that his presence alone removed ecclesiastic censures; and that subjects ought not to go away dissatisfied from the sovereign." When sen- tence was passed, the same magistrate declared, " This is an unprecedented judgment to see, contrary to the example of past ages — a king of France, in the quality of a judge, con- demning a gentleman to death." ni Again, sentences passed by the prince would be an inex- haustible source of injustice and abuse; the courtiers by their importunity would always be able to extort his decisions. Some Roman emperors were so mad as to sit as judges them- selves; the consequence was, that no reigns ever so surprised the world with oppression and injustice.
" Claudius," says Tacitus,^^ " having appropriated to himself the determination of law-suits, and the function of magistrates, gave occasion to all manner of rapine." But Nero, upon coming to the empire after Claudius, endeavored to conciliate k Plato does not think it right that same relation. It was ordinarily a kings, who, as he says, are priests, right of the peerage that a peer crimshould preside at trials where people inally accused should be judged by the are condemned to death, to exile, or to king, as Francis II in the trial of the imprisonment. Prince of Conde, and Charles VII in / See the relation of the trial of the the case of the Due d'Alengon. To- Duke de la Valette. It is printed in day, the presence of the king at the trial the " Memoirs of Montresor, ' torn. ii. of a peer, in order to condemn him, p. 62. would seem an act of tyranny.— Voltaire.
m It was* afterwards revoked. See the n " Annal." lib. XI.
THE SPIRIT OF LAWS 79 the minds of the people by declaring " that he would take care not to be judge himself in private causes, that the parties might not be exposed within the walls of a palace to the iniqui- tous influence of a few freedmen." 0 " Under the reign of Arcadius," says Zozimus,/' "' a swarm of calumniators spread themselves on every side and infested the court. Upon a person's decease, it was immediately supposed he had left no children; q. and, in consequence of this, his property was given away by a rescript. For as the prince was surprisingly stupid, and the empress excessively enter- prising, she was a slave to the insatiable avarice of her domes- tics and confidants; insomuch that to an honest man nothing could be more desirable than death."
" Formerly," says Procopius,^ " there used to be very few people at court; but in Justinian's reign, as the judges had no longer the liberty of administering justice, their tribunals were deserted, while the prince's palace resounded with the litigious clamors of the several parties." Everybody knows what a prostitution there was of public judgments, and even of the very laws themselves, at that Emperor's court.
The laws are the eye of the prince; by them he sees what would otherwise escape his observation. Should he attempt the function of a judge, he would not then labor for himself, but for impostors, whose aim is to deceive him.
6. — That in Monarchies Ministers ought not to sit as Judges It is likewise a very great inconvenience in monarchies for the ministers of the prince to sit as judges. We have still in- stances of states where there are a great number of judges to decide exchequer causes, and where the ministers nevertheless (a thing most incredible!) would fain determine them. Many are the reflections that here arise; but this single one will suf- fice for my purpose.
There is in the very nature of things a kind of contrast be- tween a prince's council and his courts of judicature. The king's council ought to be composed of a few persons, and the courts of judicature of a great many. The reason is, in the 0 " Annal." lib. XIII. q The same disorder happened under p " Hist." lib. V. Theodosius the younger.
r " Secret History."
8o MONTESQUIEU former, things should be undertaken and conducted with a kind of warmth and passion, which can hardly be expected but from four or five men who make it their sole business. On the contrary, in courts of judicature a certain coolness is req- uisite, and an indifference, in some measure, to all manner of affairs.
7. — Of a single Magistrate A magistracy of this kind cannot take place but in a despotic government. We have an instance in the Roman history how far a single magistrate may abuse his power. Might it not be very well expected that Appius on his tribunal should contemn all laws, after having violated that of his own enacting? s Livy has given us the iniquitous distinction of the Decemvir. He had suborned a man to reclaim Virginia in his presence as his slave; Virginia's relatives insisted that by virtue of his own law she should be consigned to them, till the definitive judg- ment was passed. Upon which he declared that his law had been enacted only in favor of the father, and that as Virginius was absent, no application could be made of it to the present case.'
8. — Of Accusation in different Governments At Rome w it was lawful for one citizen to accuse another. This was agreeable to the spirit of a republic, where each citizen ought to have an unlimited zeal for the public good, and is supposed to hold all the rights of his country in his own hands. Under the emperors, the republican maxims were still pursued; and instantly appeared a pernicious tribe, a swarm of informers. Crafty, wicked men, who could stoop to any indignity to serve the purposes of their ambition, were sure to busy themselves in the search of criminals whose condemnation might be agree- able to the prince; this was the road to honor and preferment,^ but luckily we are strangers to it in our country.
We have at present an admirable law, namely, that by which the prince, who is established for the execution of the laws, appoints an officer in each court of judicature to prosecute all 5 See the 2d law, sec. 24 flF. " de u And in a great many other cities.
Grig. Jur." v See in Tacitus the rewards given to t " Quod pater puellse abesset, locum those informers, injuriae esse ratus." — Livius, dec. I. lib. III.
THE SPIRIT OF LAWS 8i sorts of crimes in his name; hence the profession of informers is a thing unknown to us, for if this pubHc avenger were sus- pected to abuse his office, he would soon be obHged to mention his author.
By Plato's laws,w those who neglect to inform or to assist the magistrates are liable to punishment. This would not be so proper in our days. The public prosecutor watches for the safety of the citizens; he proceeds in his office while they enjoy their quiet and ease.
9. — Of the Severity of Punishments in different Governments The severity of punishments is fitter for despotic govern- ments, whose principle is terror, than for a monarchy or a re- public, whose spring is honor and virtue.
In moderate governments, the love of one's country, shame, and the fear of blame are restraining motives, capable of pre- venting a multitude of crimes. Here the greatest punishment of a bad action is conviction. The civil laws have therefore a softer way of correcting, and do not require so much force and severity.
In those states a good legislator is less bent upon punish- ing than preventing crimes; he is more attentive to inspire good morals than to inflict penalties.
It is a constant remark of the Chinese authors,^ that the more the penal laws were increased in their empire, the nearer they drew towards a revolution. This is because punishments were augmented in proportion as the public morals were cor- rupted.
It would be an easy matter to prove that in all, or almost all, the governments of Europe, penalties have increased or di- minished in proportion as those governments favored or dis- couraged liberty.
In despotic governments, people are so unhappy as to have a greater dread of death than regret for the loss of life; con- sequently their punishments ought to be more severe. In mod- erate states they are more afraid of losing their lives than ap- prehensive of the pain of dying; those punishments, therefore, which deprive them simply of life are sufficient.
w Lib. IX. in this respect, in the same case as a X I shall show hereafter that China is, republic or a monarchy.
82 MONTESQUIEU Men in excess of happiness or misery are equally inclinable to severity; witness conquerors and monks. It is mediocrity alone, and a mixture of prosperous and adverse fortune, that inspire us with lenity and pity.
What we see practised by individuals is equally observable in regard to nations. In countries inhabited by savages who lead a Very hard life, and in despotic governments, where there is only one person on whom fortune lavishes her favors, while the miserable subjects lie exposed to her insults, people are equally cruel. Lenity reigns in moderate governments.
When in reading history we observe the cruelty of the sultans in administration of justice, we shudder at the very thought of the miseries of human nature.
In moderate governments, a good legislator may make use of everything by way of punishment. Is it not very extraor- dinary that one of the chief penalties at Sparta was to deprive a person of the power of lending out his wife, or of receiving the wife of another man, and to oblige him to have no com- pany at home but virgins? In short, whatever the law calls a punishment is such effectively.
10. — Of the ancient French Laws In the ancient French laws we find the true spirit of mon- archy. In cases relating to pecuniary mulcts, the common people are less severely punished than the nobility.^ But in criminal h cases it is quite the reverse; the nobleman loses his honor and his voice in court, while the peasant, who has no honor to lose, undergoes a corporal punishment.
II. — That when People are virtuous few Punishments are necessary The people of Rome had some share of probity. Such was the force of thi« probity that the legislator had frequently no further occasion than to point out the right road, and they were sure to follow it; one would imagine that instead of precepts it was sufficient to give them counsels.
a Suppose, for instance, to prevent the h See the " Council of Peter Defonexecutior of a decree, the common peo- taines," chap, xiii., especially the 22d pie paid a fine of forty sous, and the art. nobility of sixty livres. — " Somme Ru- rale," book II. p. 198, edit. Got. of the THE SPIRIT OF LAWS 83 The punishments of the regal laws, and those of the Twelve Tables, were almost all abolished in the time of the republic, in consequence either of the Valerian c or of the Porcian law.^ It was never observed that this step did any manner of preju- dice to the civil administration.
This Valerian law, which restrained the magistrates from using violent methods against a citizen that had appealed to the people, inflicted no other punishment on the person who infringed it than that of being reputed a dishonest man.^ 12. — Of the Power of Punishments Experience shows that in countries remarkable for the lenity of their laws the spirit of the inhabitants is as much affected by slight penalties as in other countries by severer punish- ments.
If an inconvenience or abuse arises in the state, a violent government endeavors suddenly to redress it; and instead of putting the old laws in execution, it establishes some cruel punishment, which instantly puts a stop to the evil. But the spring of government hereby loses its elasticity; the imagina- tion grows accustomed to the severe as well as the milder punishment; and as the fear of the latter diminishes, they are soon obliged in every case to have recourse to the former. Robberies on the highway became common in some countries; in order to remedy this evil, they invented the punishment of breaking upon the wheel, the terror of which put a stop for a while to this mischievous practice. But soon after robberies on the highways became as common as ever.
Desertion in our days has grown to a very great height; in consequence of which it was judged proper to punish those de- linquents with death; and yet their number did not diminish. The reason is very natural: a soldier accustomed to venture his life, despises, or afifects to despise, the danger of losing it. He is habituated to the fear of shame; it would have been therefore much better to have continued a punishment f which branded clt was made by Valerius Publicola <f " Lex Porcia pro tergo civium lata."
soon after the expulsion of the kings, It was made in the 4S4th year of the and was twice renewed, both times by foundation of Rome, magistrates of the same familj^. As e " Nihil ultra quam improbe factum Livy observes, lib. X., the question was adjecet."— Liv.
not to give it a greater force, but to / They slit his nose or cut off his ears, render its injunctions more perfect. *' Diligentius sanctum," says Livy, ibid.
84 MONTESQUIEU him with infamy for life; the penalty was pretended to be in- creased, while it really diminished.
Mankind must not be governed with too much severity; we ought to make a prudent use of the means which nature has given us to conduct them. If we inquire into the cause of all human corruptions, we shall find that they proceed from the impunity of criminals, and not from the moderation of punish- ments.
Let us follow nature, who has given shame to man for his scourge; and let the heaviest part of the punishment be the infamy attending it.
But if there be some countries where shame is not a conse- quence of punishment, this must be owing to tyranny, which has inflicted the same penalties on villains and honest men.
And if there are others where men are deterred only by cruel punishments, we may be sure that this must, in a great measure, arise from the violence of the government which has used such penalties for slight transgressions.
It often happens that a legislator, desirous of remedying an abuse, thinks of nothing else; his eyes are open only to this object, and shut to its inconveniences. When the abuse is re- dressed, you see only the seventy of the legislator; yet there remains an evil in the state that has sprung from this severity; the minds of the people are corrupted, and become habituated to despotism.
Lysandergr having obtained a victory over the Athenians, the prisoners were ordered to be tried, in consequence of an accusation brought against that nation of having thrown all the captives of two galleys down a precipice, and of having resolved in full assembly to cut ofif the hands of those whom they should chance to make prisoners. The Athenians were therefore all massacred, except Adymantes, who had opposed this decree. Lysander reproached Phylocles, before he was put to death, with having depraved the people's minds, and given lessons of cruelty to all Greece.
" The Argives," says Plutarch,/^ " having put fifteen hundred of their citizens to death, the Athenians ordered sacrifices of gXenoph. "Hist." lib. III. Ii Morals of those who are intrusted with the direction of the state affairs.
THE SPIRIT OF LAWS 85 expiation,* that it might please the gods to turn the hearts of the Athenians from so cruel a thought."
There are two sorts of corruptions — one when the people do not observe the laws; the other when they are corrupted by the laws: an incurable evil, because it is in the very remedy itself.
13. — Insufficiency of the Laws of Japan Excessive punishments may even corrupt a despotic govern- ment; of this we have an instance in Japan.
Here almost all crimes are punished with death,/ because disobedience to so great an emperor as that of Japan is reck- oned an enormous crime. The question is not so much to correct the delinquent as to vindicate the authority of the prince. These notions are derived from servitude, and are ow- ing especially to this, that as the emperor is universal pro- prietor, almost all crimes are directly against his interests.
They punish with death lies spoken before the magistrate; k a proceeding contrary to natural defence.
Even things which have not the appearance of a crime are severely punished; for instance, a man that ventures his money at play is put to death.
True it is that the character of this people, so amazingly obstinate, capricious, and resolute as to defy all dangers and calamities, seems to absolve their legislators from the imputa- tion of cruelty, notwithstanding the severity of their laws. But are men who have a natural contempt for death, and who rip open their bellies for the least fancy — are such men, I say, mended or deterred, or rather are they not hardened, by the continual prospect of punishments?
The relations of travellers inform us, with respect to the education of the Japanese, that children must be treated there with mildness, because they become hardened to punishment; that their slaves must not be too roughly used, because they immediately stand upon their defence. Would not one imagine that they might easily have judged of the spirit which ought to « Montesquieu appears to have fol-; See Kempfer. lowed Amyot, who was mistaken here. k " Collection of Voyages that con- Plutarch says that the Athenians carried tributed to the establishment of the the victims of expiation around the as- East India Company," torn, iii, p. 428. sembly. It was done as an act of puri- fication.—Cr6vier.
86 MONTESQUIEU reign in their political and civil government from that which should prevail in their domestic concerns?
A wise legislator would have endeavored to reclaim people by a just temperature of punishments and rewards; by maxims of philosophy, morality, and religion, adapted to those char- acters; by a proper application of the rules of honor, and by the enjoyment of ease and tranquillity of life. And should he have entertained any apprehension that their minds, being inured to the cruelty of punishments, would no longer be re- strained by those of a milder nature, he would have conducted himself I in another manner, and gained his point by degrees; in particular cases that admitted of any indulgence, he would have mitigated the punishment, till he should have been able to extend this mitigation to all cases.
But these are springs to which despotic power is a stranger; it may abuse itself, and that is all it can do: in Japan it has made its utmost effort, and has surpassed even itself in cruelty.
As the minds of the people grew wild and intractable, they were obliged to have recourse to the most horrid severity.
This is the origin, this the spirit, of the laws of Japan. They had more fury, however, than force. They succeeded the ex- tirpation of Christianity; but such unaccountable efforts are a proof of their insufficiency. They wanted to establish a good polity, and they have shown greater marks of their weakness.
We have only to read the relation of the interview between the Emperor and the Deyro at Meaco.w The number of those who were suffocated or murdered in that city by ruffians is in- credible; young maids and boys were carried off by force, and found afterwards exposed in public places, at unseasonable hours, quite naked, and sewn in linen bags, to prevent their knowing which way they had passed: robberies were com- mitted in all parts; the bellies of horses were ripped open, to bring their riders to the ground; and coaches were overturned, in order to strip the ladies. The Dutch, who were told they could not pass the night on the scaffolds without exposing themselves to the danger of being assassinated, came down, etc.
I shall here give one instance more from the same nation.
/ Let this be observed as a maxim in m " Collection of Voyages that con- practice, with regard to cases where the tributed to the establishment of the minds of people have been depraved by East India Company," torn. v. p. 2. too great a severity of punishments.
THE SPIRIT OF LAWS 87 The Emperor having abandoned himself to infamous pleasures, lived unmarried, and was consequently in danger of dying with- out issue. The Deyro sent him two beautiful damsels; one he married out of respect, but would not meddle with her. His nurse caused the finest women of the empire to be sent for, but all to no purpose. At length, an armorer's daughter having pleased his fancy,w he determined to espouse her, and had a son. The ladies belonging to the court, enraged to see a person of such mean extraction preferred to themselves, stifled the child. The crime was concealed from the Emperor; for he would have deluged the land with blood. The excessive severity of the laws hinders, therefore, their execution: when the punishment surpasses all measure, they are frequently obliged to prefer im- punity to it.
14. — Of the Spirit of the Roman Senate Under the consulate of Acilius Glabrio and Piso, the Asilian law 0 was made to prevent the intriguing for places. Dio says p that the Senate engaged the Consuls to propose it, by reason that C. Cornelius, the Tribune, had resolved to cause more severe punishments to be established against this crime; to which the people seemed greatly inclined. The Senate rightly judged that immoderate punishments would strike, indeed, a terror into people's minds, but must have also this effect, that there would be nobody afterwards to accuse or condemn; whereas, by proposing moderate penalties, there would be al- ways judges and accusers.
15. — Of the Roman Laws in respect to Punishments I am strongly confirmed in my sentiments upon finding the Romans on my side; and I think that punishments are con- nected with the nature of governments when I behold this great people changing in this respect their civil laws, in pro- portion as they altered their form of government.
The regal laws, made for fugitives, slaves, and vagabonds, were very severe. The spirit of a republic would have required that the Decemvirs should not have inserted those laws in their ti " Collection of Voyages that con- fine; they could not be admitted into tributed to the establishment of the the rank of senators, nor nominated to East India Company," tom. v, p. 2. any public office.— Dio, book XXXVI.
o The guilty were condemned to a p Book XXXVI.
SS MONTESQUIEU Twelve Tables; but men who aimed at tyranny were far from conforming to a republican spirit.
Livy says,o in relation to the punishment of Metius Suffetius, dictator of Alba, who was condemned by Tullius Hostilius to be fastened to two chariots drawn by horses, and torn asunder, that this was the first and last punishment in which the remem- brance of humanity seemed to have been lost. He is mistaken; the Twelve Tables are full of very cruel laws.& The design of the Decemvirs appears more conspicuous in the capital punishment pronounced against Hbellers and poets. This is not agreeable to the genius of a republic, where the peo- ple like to see the great men humbled. But persons who aimed at the subversion of liberty were afraid of writings that might revive its spirit.^ After the expulsion of the Decemvirs, almost all the penal laws were abolished. It is true they were not expressly re- pealed; but as the Porcian law had ordained that no citizen of Rome should be put to death, they were of no further use.
This is exactly the time to which we may refer what Livy says d of the Romans, that no people were ever fonder of moderation in punishments.
But if to the lenity of penal laws we add the right which the party accused had of withdrawing before judgment was pronounced, we shall find that the Romans followed the spirit which I have observed to be natural to a republic.
Sylla, who confounded tyranny, anarchy, and liberty, made the Cornelian laws. He seemed to have contrived regulations merely with a view to create new crimes. Thus distinguishing an infinite number of actions by the name of murder, he found murderers in all parts; and by a practice too much followed, he laid snares, sowed thorns, and opened precipices, whereso- ever the citizens set their feet.
Almost all Sylla's laws contained only the interdiction of fire and water. To this Caesar added the confiscation of goods,^ because the rich, by preserving their estates in exile, became bolder in the perpetration of crimes.
a Lib. I. pie in augmenting the penal laws b We find there the punishment of against satirical writers.
fire, and j?enerally capital punishments, d Book I.
theft punished with death, etc. e " Pcenas facinorum auxit, cum locuc Sylla, animated with the same spirit pletes eo facilius scelere se obligarent, as the Decemvirs, followed their exam- quod integris patrimoniis exularent."— Suet, in '^Jul. Caesare."
THE SPIRIT OF LAWS 89 The emperors, having established a military government, soon found that it was as terrible to the prince as to the subject; they endeavored therefore to temper it, and with his view had recourse to dignities, and to the respect with which those digni- ties were attended.
The government thus drew nearer a little to monarchy, and punishments were divided into three classes: f those which related to the principal persons in the state,g which were very mild; those which were inflicted on persons of an inferior rank,/i and were more severe; and, in fine, such as concerned only persons of the lowest condition,* which were the most rigorous.
Maximinus, that fierce and stupid prince, increased the rigor of the military government which he ought to have softened. The Senate were informed, says Capitolinus,/ that some had been crucified, others exposed to wild beasts, or sewn up in the skins of beasts lately killed, without any manner of regard to their dignity. It seemed as if he wanted to exercise the mili- tary discipline, on the model of which he pretended to regulate the civil administration.
In " The Consideration on the Rise and Declension of the Roman Grandeur," k we find in what manner Constantine changed the military despotism into a military and civil govern- ment, and drew nearer to monarchy. There we may trace the different revolutions of this state, and see how they fell from rigor to indolence, and from indolence to impunity.
16. — Of the just Proportion between Punishments and Crimes It is an essential point, that there should be a certain pro- portion in punishments, because it is essential that a great crime should be avoided rather than a smaller, and that which is more pernicious to society rather than that which is less.
" An impostor,^ who called himself Constantine Ducas, raised a great insurrection at Constantinople. He was taken and condemned to be whipped; but upon informing against