The human mind feels such an exquisite pleasure in the ex- ercise of power; even those who are lovers of virtue are so ex- cessively fond of themselves that there is no man so happy as not still to have reason to mistrust his honest intentions; and, in- deed, our actions depend on so many things that it is infinitely easier to do good, than to do it well.
42. — The Revival of the Roman Law, and the Result thereof. Change of Tribunals Upon the discovery of Justinian's digest towards the year 1 137, the Roman law seemed to rise out of its ashes. Schools were then established in Italy, where it was publicly taught; they had already the Justinian code and the NovellcE. I mentioned before, that this code had been so favorably received in that country as to eclipse the law of the Lombards.
The Italian doctors brought the law of Justinian into France, where they had only the Theodosian code; « because Justinian's laws were not made till after the settlement of the barbarians in Gaul.o This law met with some opposition: but it stood its ground notwithstanding the excommunications of the popes, / In the words " testamentary ex- of Troyes makes mention of this code, ecutors." not because it was known in France, m The 19th of March, 1409. _ _ but because he knew it himself, and his n In Italy they followed Justinian's constitution was general.
code; hence Pope John VIII in his 0 This Emperor's code was published constitution published after the Synod towards the year 530.
I50 MONTESQUIEU who supported their own canons./' St. Louis endeavored to bring it into repute by the translations of Justinian's works, made according to his orders, which are still in manuscript in our libraries; and I have already observed, that they made great use of them in compiling the Institutions. Philip the Fair ordered the laws of Justinian to be taught only as written reason in those provinces of France that were governed by customs; and they were adopted as a law in those provinces where the Roman law had been received.9 I have already noticed that the manner of proceeding by ju- dicial combat required very little knowledge in the judges; dis- putes were decided according to the usage of each place, and to a few simple customs received by tradition. In Beaumanoir's time there were two different ways of administering justice; r in some places they tried by peers,'^ in others by bailiffs: in follow- ing the former way, the peers gave judgment according to the practice of their court; in the latter, it was the priid'hommes, or old men, who pointed out this same practice to the bailiffs.^ This whole proceeding required neither learning, capacity, nor study. But when the dark code of the Institutions made its appearance; when the Roman law was translated and taught in public schools; when a certain art of procedure and jurisprudence began to be formed; when practitioners and civilians were seen to rise, the peers and the prud'hommes were no longer capable of judging: the peers began to withdraw from the lords' tribunals; and the lords were very little inclined to assemble them; especially as the new form of trial, instead of being a solemn proceeding, agreeable to the nobility and interesting to a warlike people, had become a course of pleading which they neither understood, nor cared to learn. The custom of trying by peers began to be less used; « that of trying by bailiffs to be more so; the bailiffs did not give judgment themselves,^ they summed up the evidence p Decretals, book V. tit. " de privi- from the formula quoted by Boutillier, legiis," capite " super specula." " Somme Rurale," book IV. tit. xxi.
g By a charter in the year 1312, in « The change was insensible; we meet favor of the university of Orleans, with trials by peers, even in Boutilquoted by Du Tillet. lier's time, who lived in the year 1402, r " Customs of Beauvoisis," chap, i., which is the date of his will. He gives of the office of bailiflfs. this formula, book I. tit. 21, " Sire i Among the common people the Juge, en ma justice haute, moyenne burghers were tried by burghers, as the et basse, qui j'ai en tel lieu, cour, feudatory tenants were tried by one an- plaids, baillis, hommes, feodaux et other. See La Thaumassiere, chap. xix. sergens." Yet nothing but feodal matt Thus all requests began with these ters were tried any longer by the peers, words: " My lord judge, it is custom- Ibid, book I. tit. 1. p. 16.
ary that in your court, etc., as appears v As appears by the formula of the THE SPIRIT OF LAWS 151 and pronounced the judgment of the prud'hommes; but the latter being no longer capable of judging, the bailiffs themselves gave judgment.
This was effected so much the easier, as they had before their eyes the practice of the ecclesiastic courts; the canon and new civil law both concurred aUke to aboHsh the peers.
Thus fell the usage hitherto constantly observed in the French monarchy, that judgment should not be pronounced by a single person, as may be seen in the Salic laws, the Capitularies, and in the first law-writers under the third race.w The contrary abuse which obtains only in local jurisdictions has been moderated, and in some measure redressed, by introducing in many places a judge's deputy, whom he consults, and who represents the an- cient prud'hommes by the obligation the judge is under of taking two graduates in cases that deserve a corporal punishment; and, in fine, it has become of no effect by the extreme facility of ap- peals.
43. — The same Subject continued Thus there was no law to prohibit the lords from holding their courts themselves; none to abolish the functions of their peers; none to ordain the creation of bailiffs; none to give them the power of judging. All this was effected insensibly, and by the very necessity of the thing. The knowledge of the Roman law, the decrees of the courts, the new digest of the customs, required a study of which the nobility and illiterate people were incapable.
The only ordinance we have upon this subject is that which obliged the lords to choose their bailiffs from among the laity.^ It is a mistake to look upon this as a law of their creation; for it says no such thing. Besides, the intention of the legislator is de- termined by the reasons assigned in the ordinance: " to the end that the bailiffs may be punished for their prevarications it is letters which their lord used to give to the reasons alleged; and if they say, them, quoted by Boutillier, " Somme yes, my lord; the bailiff ought to oblige Rurale," book I. tit. xiv., which is the peers to give judgment." See also proved likewise^ by Beaumanoir, " Cus- the Institutions " of St. Louis, book torn of Beauvoisis," chapter i., of the I. chap, cv., and book II. chap. xv.
bailiffs; thev only directed the pro- " Li Juge si ne doit pas faire le jugeceedings. "The bailiff is obliged in ment."
the presence of the peers to take down w Beaumanoir, chap. Ixvii. p. 336, the words of those who plead, and to and chap. Ixi. pp. si;; and 316. The ask the parties whether they are will- " Institutions," book tl. chap. xv.
ing to have judgment given according x It was published in the year 1287.
152 MONTESQUIEU necessary they be taken from the order of the laity." y The im- munities of the clergy in those days are very well known.
We must" not imagine that the privileges which the nobility formerly enjoyed, and of which they are now divested, were taken from them as usurpations; no, many of those privileges were lost through neglect, and others were given up, because as vari- ous changes had been introduced in the course of so many ages, they were inconsistent with those changes.
44. — Of the Proof by Witnesses The judges, who had no other rule to go by than the usages, inquired very often by witnesses into every cause that was brought before them.
The usage of judicial combats beginning to decline, they made their inquests in writing. But a verbal proof committed to writ- ing is never more than a verbal proof; so that this only in- creased the expenses of law proceedings. Regulations were then made which rendered most of those inquests useless; -^ public registers were established which ascertained most facts, as no- bility, age, legitimacy, and marriage. Writing is a witness very hard to corrupt; the customs were therefore reduced to writing. All this is very reasonable; it is much easier to go and see in the baptismal register, whether Peter is the son of Paul than to prove this fact by a tedious inquest. When there are a number of usages in a country it is much easier to write them all down in a code, than to oblige individuals to prove every usage. At length the famous ordinance was made, which prohibited the admitting of the proof by witnesses for a debt exceeding an hun- dred livres, except there was the beginning of a proof in writing.
45. — Of the Customs of France France, as we have already observed, was governed by written customs, and the particular usages of each lordship constituted the civil law. Every lordship had its civil law, according to Beaumanoir,a and so particular a law, that this author, who is y " Ut si ibi delinquant, superiores age were proved. — " Institutions," book sui possint animadvertere in eosdem." I. chaps. Ixxi. and Ixxii. s See in what manner age and parent- a Prologue to the " Custom of Beauvoisis."
THE SPIRIT OF LAWS 153 looked upon as a luminary, and a very great luminary of those times, says he does not believe that throughout the whole king- dom there were two lordships entirely governed by the same law.
This prodigious diversity had a twofold origin. With regard to the first, the reader may recollect what has been already said concerning it in the chapter of local customs: b and as to the second we meet with it in the different events of legal duels, it being natural that a continual series of fortuitous cases must have been productive of new usages.
These customs were preserved in the memory of old men, but insensibly laws or written customs were formed.
1. At the commencement of the third race, the kings gave not only particular charters, but likewise general ones, in the manner above explained; such are the Institutions of Philip Augustus and those made by St. Louis. In like manner the great vassals, in concurrence with the lords who held under them, granted cer- tain charters or estabhshments, according to particular circum- stances at the assizes of their duchies or counties; such were the assize of Godfrey, Count of Brittany, on the division of the no- bles; the customs of Normandy, granted by Duke Ralph; the customs of Champagne, given by King Theobald; the laws of Simon, Count of Montfort, and others. This produced some written laws, and even more general ones than those they had be- fore.
2. At the beginning of the third race, almost all the common people were bondmen; but there were several reasons which afterwards determined the kings and lords to enfranchise them.
The lords by enfranchising their bondmen gave them proper- ty; it was necessary therefore to give them civil laws, in order to regulate the disposal of that property. But by enfranchising their bondmen, they likewise deprived themselves of their prop- erty; there was a necessity, therefore, of regulating the rights which they reserved to themselves, as an equivalent for that property. Both these things were regulated by the charters of enfranchisement; those charters formed a part of our customs, and this part was reduced to writing.^ 3. Under the reign of St. Louis, and of the succeeding princes, some able practitioners, such as Defontaines, Beaumanoir, and .. b Chap. xii. c See the " Collection of Ordinances," by Lauriere.
154 MONTESQUIEU others, committed the customs of their bailiwicks to writing. Their design was rather to give the course of judicial proceed- ings, than the usages of their time in respect to the disposal of property. But the whole is there, and though these particular authors have no authority but what they derive from the truth and notoriety of the things they speak of, yet there is no manner of doubt but that they contributed greatly to the restoration of our ancient French jurisprudence. Such was in those days our common law.
We have come now to the grand epoch. Charles VII and his successors caused the different local customs throughout the kingdom to be reduced to writing, and prescribed set forms to be observed to their digesting. Now, as this digesting was made through all the provinces, and as people came from each lord- ship to declare in the general assembly of the province the written or unwritten usages of each place, endeavors were made to render the customs more general, as much as possible, with- out injuring the interests of individuals, which were carefully pre,- served.d Thus our customs were characterized in a threefold manner; they were committed to writing, they were made more general, and they received the stamp of the royal authority.
Many of these customs having been digested anew, several changes were made either in suppressing whatever was incom- patible with the actual practice of the law, or in adding several .things drawn from this practice.
Though the common law is considered among us as in some measure opposite to the Roman, insomuch that these two laws divide the different territories, it is, notwithstanding, true that several regulations of the Roman law entered into our customs, especially when they made the new digests, at a time not very distant from ours, when this law was the principal study of those who were designed for civil employments, at a time when it was not usual for people to boast of not knowing what it was their duty to know, and of knowing what they ought not to know, at a time when a quickness of understanding was made more subservient to learning than pretending to a profession, and when a continual pursuit of amusements was not even the characteristic of women.
dThis was observed at the digesting of the customs of Berry and of Paris. See La Thaumassiere, chap. iii.
THE SPIRIT OF LAWS 155 I should have been more diffuse at the end of this book, and, entering into the several details, should have traced all the in- sensible changes, which from the opening of appeals have formed the great corpus of our French jurisprudence. But this would have been ingrafting one large work upon another. I am Hke that antiquarian e who set out from his own country, arrived in Egypt, cast an eye on the Pyramids and returned home.
e In the " Spectator."
BOOK XXIX OF THE MANNER OF COMPOSING LAWS I. — Of the Spirit of a Legislator I SAY it, and methinks I have undertaken this work with no other view than to prove it, the spirit of a legislator ought to be that of moderation; political, like moral good, lying always between two extremes.a Let us produce an example.
The set forms of justice are necessary to liberty, but the number of them might be so great as to be contrary to the end of the very laws that established them; processes would have no end; property would be uncertain; the goods of one of the parties would be adjudged to the other without examin- ing, or they would both be ruined by examining too much.
The citizens would lose their liberty and security, the ac- cusers would no longer have any means to convict, nor the accused to justify themselves.
2. — The same Subject continued Cecilius, in Aulus Gellius,& speaking of the law of the Twelve Tables which permitted the creditor to cut the insolv- ent debtor into pieces, justifies it even by its cruelty, which hindered people from borrowing beyond their ability of pay- ing.c Shall then the cruellest laws be the best? Shall good- ness consist in excess, and all the relations of things be de- stroyed?
3. — That the Laws which seem to deviate from the Views of the Legislator are frequently agreeable to them The law of Solon which declared those persons infamous who espoused no side in an insurrection seemed very extraa Arist. " Polit." I. ever established: the opinion of some h Book XXII. chap. i. civilians, that the law of the Twelve c Cecilius says, that he never saw nor Tables meant only the division of the read of an instance, in which this pun- money arising from the sale of the ishment had been inflicted; but it is debtor, seems very probable.
likely that no such punishment was THE SPIRIT OF LAWS 157 ordinary; but we ought to consider the circumstances in which Greece was at that time. It was divided into very small states; and there was reason to apprehend lest in a republic torn by intestine divisions the soberest part should keep retired, in consequence of which things might be carried to extremity.
In the seditions raised in those petty states the bulk of the citizens either made or engaged in the quarrel. In our large monarchies parties are formed by a few, and the people choose to live quietly. In the latter case it is natural to call back the seditious to the bulk of the citizens, and not these to the sedi- tious; in the other it is necessary to oblige the small number of prudent people to enter among the seditious; it is thus the fermentation of one liquor may be stopped by a single drop of another.
4. — Of the Laws contrary to the Views of the Legislator There are laws so little understood by the legislator as to be contrary to the very end he proposed. Those who made this regulation among the French, that when one of the two competitors died the benefice should devolve to the survivor, had in view without doubt the extinction of quarrels; but the very reverse falls out, we see the clergy at variance every day, and like English mastiffs worrying one another to death.
5. — The same Subject continued The law I am going to speak of is to be found in this oath preserved by ^schines:d "I swear that I will never destroy a town of the Amphictyones, and that I will not divert the course of its running waters; if any nation shall presume to do such a thing, I will declare war against them and will destroy their towns." The last article of this law, which seems to confirm the first, is really contrary to it. Amphictyon is willing that the Greek towns should never be destroyed, and yet his law paves the way for their destruction. In order to establish a proper law of nations among the Greeks, they ought to have been accustomed early to think it a barbarous thing to destroy a Greek town; consequently they ought not even to ruin the destroyers. Amphictyon's law was just, but it was not pru- dent; this appears even from the abuse made of it. Did not d " De falsa Legationc."
158 MONTESQUIEU Philip assume the power of demohshing towns, under the pre- tence of their having infringed the laws of the Greeks? Am- phictyon might have inflicted other punishments; he might have ordained, for example, that a certain number of the mag- istrates of the destroying town, or of the chiefs of the infring- ing army, should be punished with death; that the destroying nation should cease for a while to enjoy the privileges of the Greeks; that they should pay a fine till the town was rebuilt. The law ought, above all things, to aim at the reparation of damages.
6. — The Laws zvhich appear the same have not always the same Effect Caesar made a law to prohibit people from keeping above sixty sesterces in their houses.^ This law was considered at Rome as extremely proper for reconciling the debtors to their creditors, because, by obliging the rich to lend to the poor, they enabled the latter to pay their debts. A law of the same nature made in France at the time of the System proved ex- tremely fatal, because it was enacted under a most frightful situation. After depriving people of all possible means of lay- ing out their money, they stripped them even of the last re- source of keeping it at home, which was the same as taking it from them by open violence. Caesar's law was intended to make the money circulate; the French Minister's design was to draw all the money into one hand. The former gave either lands or mortgages on private people for the money; the latter proposed in lieu of money nothing but effects which were of no value, and could have none by their very nature, because the law compelled people to accept of them.
7. — The same Subject continued. Necessity of composing Laws in a proper Manner The law of ostracism was established at Athens, at Argos,/^ and at Syracuse. At Syracuse it was productive of a thousand mischiefs, because it was imprudently enacted. The principal citizens banished one another by holding the leaf of a fig-tree in their hands,? so that those who had any kind of merit withe Dio. lib. XLI. g Plutarch and Diodorus of Sicily say f Arist. " Repub." lib. V. chap. iii. it was an olive leaf. See Diod. XI.— THE SPIRIT OF LAWS 159 drew from public affairs.^ At Athens, where the legislator was sensible of the proper extent and limits of his law, ostra- cism proved an admirable regulation. They never condemned more than one person at a time; and such a number of suf- frages were requisite for passing this sentence, that it was ex- tremely difficult for them to banish a person whose absence was not necessary to the state.* The power of banishing was exercised only every fifth year: and, indeed, as the ostracism was designed against none but great personages who threatened the state with danger, it ought not to have been the transaction of every day.
8. — That Laws which appear the same were not always made through the same Motive In France they have received most of the Roman laws on substitutions, but through quite a different motive from the Romans. Among the latter the inheritance was accompanied with certain sacrifices / which were to be performed by the in- heritor and were regulated by the pontifical law; hence it was that they reckoned it a dishonor to die without heirs, that they made slaves their heirs, and that they devised substitutions. Of this we have a very strong proof in the vulgar substitution, which was the first invented, and took place only when the heir appointed did not accept of the inheritance. Its view was not to perpetuate the estate in a family of the same name, but to find somebody that would accept of it.
9. — That the Greek and Roman Laws punished Suicide, but not through the same Motive A man, says Plato, who has killed one nearly related to him, that is, himself, not by an order of the magistrate, not to avoid ignominy, but through pusillanimity, shall be punished.^ The Roman law punished this action when it was not committed through pusillanimity, through weariness of life, through im- patience in pain, but from a criminal despair. The Roman law acquitted where the Greek condemned, and condemned where the other acquitted.
h Plutarch, " "Life of Dionysius." law by certain sales, whence come the t Vide book XXVI. chap. 17. words " sine sacris haereditas."
;■ When the inheritance was too much k Book IX. " of Laws." encumbered they eluded the pontifical l6o MONTESQUIEU Plato's law was formed upon the Lacedsemonian institutions, where the orders of the magistrate were absolute, where shame was the greatest of miseries, and pusillanimity the greatest of crimes. The Romans had no longer those refined ideas; theirs was only a fiscal law.
During the time of the republic, there was no law at Rome against suicides; this action is always considered by their historians in a favorable light, and we never meet with any punishment inflicted upon those who committed it.
Under the first emperors, the great families of Rome were continually destroyed by criminal prosecutions. The custom was then introduced of preventing judgment by a voluntary death. In this they found a great advantage: they had an honorable interment, and their wills were executed, because there was no law against suicides.^ But when the emperors became as avaricious as cruel, they deprived those who de- stroyed themselves of the means of preserving their estates by rendering it criminal for a person to make away with himself through a criminal remorse.
What I have been saying of the motive of the emperors is so true, that they consented that the estates of suicides should not be confiscated when the crime for which they killed themselves was not punished with confiscation.^ lo. — That Laws which seem contrary proceed sometimes from the same Spirit In our time we give summons to people in their own houses; but this was not permitted among the Romans.^ A summons was a violent action,o and a kind of warrant lor seizing the body; P hence it was no more allowed to summon a person in his own house than it is now allowed to arrest a person in his own house for debt.
Both the Roman and our laws admit of this principle alike, that every man ought to have his own house for an asylum, where he should sufifer no violence.g I " Eorum qui de se statuebant huma- n Leg. 18 ff. " de in jus vocando."
bantur corpora, manebant testamenta, o See the law of the Twelve Tables, pretium festinandi."— Tacit. p " Rapit in jus," Horace, Satire 9.
tn Rescript of the Emperor Pius in Hence they could not summon those the 3d law, sees, i and 2 ff. " de bonis to whom a particular respect was due. eorum qui ante sententiam mortem sibi g See the law 18 fl. " de in jus voconsciverunt." cando."
THE SPIRIT OF LAWS i6i II. — How to compare two different Systems of Laws In France the punishment for false witnesses is capital; in England it is not. Now, to be able to judge which of these two laws is the best, we must add, that in France the rack is used for criminals, but not in England; that in France the accused is not allowed to produce his witnesses, and that they very seldom admit of what are called justifying circumstances in favor of the prisoner; in England they allow of witnesses on both sides. These three French laws form a close and well- connected system; and so do the three English laws. The law of England, which does not allow of the racking of crim- inals, has but very little hope of drawing from the accused a confession of his crime; for this reason it invites witnesses from all parts, and does not venture to discourage them by the fear of a capital punishment. The French law, which has one resource more, is not afraid of intimidating the witnesses; on the contrary, reason requires they should be intimidated; it listens only to the witnesses on one side, which are those pro- duced by the attorney-general, and the fate of the accused depends entirely on their testimony.»' But in England they ad- mit of witnesses on both sides, and the affair is discussed in some measure between them; consequently false witness is there less dangerous, the accused having a remedy against the false witness which he has not in France. — Wherefore, to determine which of those systems is most agreeable to reason, we must take them each as a whole and compare them in their entirety.