THE SPIRIT OF LAWS By Charles de Secondat, Baron de Montesquieu Translated by Thomas Nugent, revised by J. V. Prichard The Translator to the Reader by Thomas Nugent 1752 The following work may with the strictest justice be said to have done honour to human nature as well as to the great abilities of the author. The wisest and most learned man, and those most distinguished by birth and the elevation of their stations, have, in every country in Europe, considered it as a most excellent performance. And may we be permitted to add, that a sovereign prince [1] as justly celebrated for his probity and good sense, as for his political and military skill, has declared that from M. de Montesquieu he has learnt the art of government. But had the illustrious author received no such distinguished honour, the numerous editions of this work in French, and their sudden spreading through all Europe, are a sufficient testimony of the high esteem with which it has been received by the public. But notwithstanding the deserved applause which has been so liberally bestowed on the author, there have been some who have not only endeavoured to blast his laurels, but have treated him with all that scurrility which bigotry and superstition are apt, on every occasion, to throw out against truth, reason and good sense. These M. de Montesquieu has himself answered, in a separate treatise intitled, A Defense of the Spirit of Laws, from whence we have thought proper to extract, for the sake of such as have not seen that treatise, the principal of those objections, and the substance of what has been given in reply: Only first observing, that this defense is divided into three parts, in the first of which he answers the general reproaches that have been thrown out against him; in the second he replies to particular reproaches; and in the third, he gives some reflections on the manner in which his work has been criticized. The author first complains of his being charged both with espousing the doctrines of Spinoza, and with being a Deist, two opinions directly contradictory to each other. To the former of these he answers, by placing in one view the several passages in the Spirit of Laws directly levelled against the doctrines of Spinoza; and then he replies to the objections that have been made to those passages, upon which this injurious charge is founded. The critic asserts that our author stumbles at his first setting out, and is offended at his saying, that Laws in their most extensive signification, are the necessary relations derived from the nature of things. To this he replies, that the critic had heard it said that Spinoza had maintained that the world was governed by a blind and necessary principle; and from hence on seeing the word necessary, he concludes that this must be Spinozism; tho' what is most surprising, this article is directly levelled at the dangerous principles maintained by Spinoza: That he had Hobbes's system in his eye, a system, which, as it makes all the virtues and vices depend on the establishment of human laws, and as it would prove that men were born in a state of war, and that the first law of nature is a war of all against all, overturns, like Spinoza, all religion, and all morality. Hence he laid down this position, that there were laws of justice and equity before the establishment of positive laws: hence also he has proved that all beings had laws; that even before their creation they had possible laws; and that God himself had laws, that is, the laws which he himself had made. He has shewn [2] that nothing can be more false than the assertion that men were born in a state of war; and he has made it appear that wars did not commence till after the establishment of society. His principles are here extremely clear; from whence it follows, that as he has attacked Hobbes's errors, he has consequently those of Spinoza; and he has been so little understood, that they have taken for the opinions of Spinoza, those very objections which were made against Spinozism. Again, the author has said that the creation which appears to be an arbitrary act, supposes laws as invariable as the fatality of the Atheists. From these words the critic concludes that the author admits the fatality of the Atheists. To this he answers, that he had just before destroyed this fatality, by representing it as the greatest absurdity to suppose that a blind fatality was capable of producing intelligent beings. Besides, in the passage here censured, he can only be made to say what he really does say: he does not speak of causes, nor does he compare causes; but he speaks of effects and compares effects. The whole article, what goes before and what follows, make it evident, that there is nothing here intended but the laws of motion, which, according to the author, had been established by God: these laws are invariable; this he as asserted, and all natural philosophy has asserted the same thing; they are invariable because God has been pleased to make them so, and because he has pleased to preserve the world. When the author therefore says that the creation which appears to be an arbitrary act, supposes laws as invariable as the fatality of the Atheists, he cannot be understood to say that the creation was a necessary act like the fatality of the Atheists. Having vindicated himself from the charge of Spinozism, he proceeds to the other accusation, and from a multitude of passages collected together proves that he has not only acknowledged the truth of revealed religion; but that he is in love with Christianity, and endeavours to make it appear amiable in the eyes of others. He then enquires into what his adversaries have said to prove the contrary, observing that the proofs ought to bear some proportion to the accusation; that this accusation is not of a frivolous nature, and that the proofs therefore ought not to be frivolous. The first objection is, that he has praised the Stoics, who admitted a blind fatality, and that this is the foundation of natural religion. To this he replies, "I will for a moment suppose that this false manner of reasoning has some weight: has the author praised the philosophy and metaphysics of the Stoics? He has praised their morals, and has said that the people reaped great benefit from them: he has said this, and he has said no more: I am mistaken, he has said more, he has at the beginning of his book attacked this fatality, he does not then praise it, when he praises the Stoics." The second objection is, that he has praised Bayle, in calling him a great man. To this he answers, "It is true that the author has called Bayle a great man, but he has censured his opinions: if he has censured them, he has not espoused them: and since he has censured his opinions, he does not call him a great man because of his opinions. Every body knows that Bayle had a great genius which he abused; but this genius which he abused, he had: the author has attacked his sophisms, and pities him on account of his errors. I don't love the men who subvert the laws of their country; but I should find great difficulty in believing that Caesar and Cromwell had little minds: I am not in love with conquerors, but it would be very difficult to persuade me to believe that Alexander and Jenghiz-Khan were men of only a common genius. Besides, I have remarked, that the declamations of angry men make but little impression on any except those who are angry: the greatest part of the readers are men of moderation, and seldom take up a book but when they are in cool blood; for rational and sensible men love reason. Had the author loaded Bayle with a thousand injurious reproaches, it would not have followed from thence, that Bayle had reasoned well or ill; all that his readers would have been able to conclude from it would have been, that the author knew how to be abusive." The third objection is, that he has not in his first chapter spoken of original sin. To which he replies: "I ask every sensible man if this chapter is a treatise of divinity? if the author had spoken of original sin, they might have imputed it to him as a crime that he had not spoken of redemption." The next objection takes notice, that "The author has said that in England self-murder is the effect of a distemper, and that it cannot be punished without punishing the effects of madness; the consequence the critic draws from thence is, that a follower of natural religion can never forget that England is the cradle of his sect, and that he rubs a sponge over all the crimes he found there." He replies, "The author does not know that England is the cradle of natural religion; but he knows that England was not his cradle. He is not of the same religious sentiments as an Englishman, any more than an Englishman who speaks of the physical effects he found in France, is not of the same religion as the French. He is not a follower of natural religion; but he wishes that his critic was a follower of natural logic." These are the principle objections levelled against our author, on this head, from which our readers will sufficiently see on what trifling, what puerile arguments this charge of Deism is founded. He concludes however this article, with a defense of the religion of nature, and such a defense as every rational Christian must undoubtedly approve. "Before I conclude this first part, I am tempted to make one objection against him who has made so many; but he has so stunned my ears with the words follower of natural religion, that I scarcely dare pronounce them. I shall endeavour however to take courage. Do not the critic's two pieces stand in greater need of an explication, than that which I defend? Does he do well, while speaking of natural religion and revelation, to fall perpetually upon one side of the subject, and to lose all traces of the other? Does he do well never to distinguish those who acknowledge only the religion of nature, from those who acknowledge both natural and revealed religion? Does he do well to turn frantic whenever the author considers man in the state of natural religion, and whenever he explains any thing on the principles of natural religion? Does he do well to confound natural religion with Atheism? Have I not heard that we have all natural religion? Have I not heard that Christianity is the perfection of natural religion? Have I not heard that natural religion is employed to prove the truth of revelation against the Deists? and that the same natural religion is employed to prove the existence of a God against the Atheists? He has said that the Stoics were the followers of natural religion; and I say, that they were Atheists, since they believed that a blind fatality governed the universe; and it is by the religion of nature that we ought to attack that of the Stoics. He says that the scheme of natural religion is connected with that of Spinoza; and I say, that they are contradictory to each other, and it is by natural religion that we ought to destroy Spinoza's scheme. I say, that to confound natural religion with Atheism, is to confound the proof with the thing to be proved, and the objections against error with error itself, and that this is to take away the most powerful arms we have against this error." The author now proceeds to the second part of his defence, in which he has the following remarks. "What has the critic done to give an ample scope to his declamations, and to open the widest door to invectives? he has considered the author, as if he had intended to follow the example of M. Abbadye, and had been writing a treatise on the Christian religion: he has attacked him, as if his two books on religion were two treatises on divinity; he has cavilled against him, as if while he had been talking of any religion whatsoever which was not Christian, he should have examined it according to the principles, and doctrines of Christianity; he has judged him as if in his two books relating to religion he ought to have preached to Mahometans and Idolators the doctrines of Christianity. Whenever he has spoken of religion in general, whenever he has made use of the word religion, the critic says, 'that is the Christian religion'; whenever he has compared the religious rites of different nations and has said that they are more conformable to the political government of these countries, than some other rites, the critic again says, 'you approve them then and abandon the Christian faith': when he has spoken of a people who have never embraced Christianity, or who have lived before Christ, again says the critic, 'you don't then acknowledge the morals of Christianity'; when he has canvassed any custom whatsoever, which he has found in a political writer, the critic asks him, 'Is this a doctrine of Christianity?' He might as well add, 'You say you are a civilian, and I will make you a divine in spite of yourself: you have given us elsewhere some very excellent things on the Christian religion, but this was only to conceal your real sentiments, for I know your heart, and penetrate into your thoughts. It is true I do not understand your book, nor it is material that I should discover the good or bad design with which it has been written; but I know the bottom of all your thoughts: I don't know a word of what you have said, but I understand perfectly well, what you have not said.'" But to proceed. The author has maintained the polygamy is necessarily and in its own nature bad; he has wrote a chapter expressly against it, and afterwards has examined in a philosophical manner, in what countries, in what climates, or in what circumstances it is least pernicious; he has compared climates with climates, and countries with countries, and has found, that there are countries, where its effects are less pernicious than in others; because, according to the accounts that have been given of them, the number of men and women not being every where equal, it is evident, that if there are places where there are more women than men, polygamy, bad as it is in itself, is there less pernicious than in others. But as the title of this chapter [3] contains these words, That the law of polygamy is an affair of calculation, they have seized this title as an excellent subject for declamation. Having repeated the chapter itself, against which no objection is made, he proceeds to justify the title and adds: "Polygamy is an affair of calculation when we would know, if it is more or less pernicious in certain climates, in certain countries, in certain circumstances than in others; it is not an affair of calculation when we would decide whether it be good or bad in itself. It is not an affair of calculation when we reason on its nature; it may be an affair of calculation when we combine its effects; in short, it is never an affair of calculation when we enquire into the end of marriage, and it is even less so, when we enquire into marriage as a law established and confirmed by Jesus Christ." Again, the author having said, that [4] polygamy is more conformable to nature in some countries than in others, the critic has seized the words more conformable to nature, to make his say, that he approves polygamy. To which he answers, "If I say, that I should like better to have a fever than the scurvy, does this signify that I should like to have a fever? or only that the scurvy is more disagreeable to me than a fever?" Having finished his reply to what had been objected to on the subject of polygamy, he vindicates that excellent part of his work which treats of the climates; when speaking of the influence these have upon religion, he says, "I am very sensible that religion is in its own nature independent of all physical causes whatsoever, that the religion which is good in one country is good in another, and that it cannot be pernicious in one country without being so in all; but yet, I say, that as it is practiced by men, and has a relation to those who do not practice it, any religion whatsoever will find a greater facility in being practiced, either in the whole or in part, in certain circumstances than in others, and that whoever says the contrary must renounce all pretensions to sense and understanding." But the critic has been greatly offended by our author's saying, [5] that when a state is at liberty to receive or to reject a new religion, it ought to be rejected; when it is received, it ought to be tolerated. From hence he objects, that the author has advised idolatrous princes, not to admit the Christian religion into their dominions. To this he answers first by referring to a passage in which he says, [6] that the best civil and political laws are, next to Christianity, the greatest blessings that men can give or receive; and adds, "If then Christianity is the first and greatest blessing, and the political and civil laws the second, there are no political or civil laws in any state that can or ought to hinder the entrance of the Christian religion." His second answer is, "That the religion of heaven is not established by the same methods as the religions of the earth; read the history of the church, and you will see the wonders performed by the Christian religion: was she to enter a country, she knew how to open its gates; every instrument was able to effect it; at one time God makes use of a few fisherman, at another he sets an emperor on the throne, and makes him bow down his head under the yolk of the gospel. Does Christianity hide herself in subterranean caverns? stay a moment, and you see an advocate speaking from the imperial throne on her behalf. She traverses, whenever she pleases, seas, rivers, and mountains; no obstacles here below can stop her progress: implant aversion in the mind, she will conquer this aversion: establish customs, form habits, publish edicts, enact laws, she will triumph over the climate, over the laws which result from it, and over the legislators who have made them. God acting according to decrees which are unknown to us, extends or contracts the limits of his religion." ______ 1. The present Kind of Sardinia. 2. Book i. Chap. 1. 3. Book xvi. Chap. 4. 4. Book xvi. Chap. 4. 5. Book xxv. Ch. 10. 6. Ibid. Ch. 1. ------------------------------------------------------------------------ The Spirit of Laws by Charles de Montesquieu CONTENTS Preface Advertisement Book I. Of Laws in General 1. Of the Relation of Laws to Different Beings 2. Of the Laws of Nature 3. Of Positive Laws Book II. Of Laws Directly Derived from the Nature of Government 1. Of the Nature of the Three Different Governments 2. Of the Republican Government, and the Laws in Relation to Democracy 3. Of the Laws in Relation to the Nature of Aristocracy 4. Of the Relation of Laws to the Nature of Monarchical Government 5. Of the Laws in Relation to the Nature of a Despotic Government Book III. Of the Principles of the Three Kinds of Government 1. Difference Between the Nature and Principle of Government 2. Of the Principle of Different Governments 3. Of the Principle of Democracy 4. Of the Principle of Aristocracy 5. That Virtue Is Not the Principle of a Monarchical Government 6. In What Manner Virtue Is Supplied in a Monarchical Government 7. Of the Principle of Monarchy 8. That Honour Is Not the Principle of Despotic Government 9. Of the Principle of Despotic Government 10. Difference of Obedience in Moderate and Despotic Governments 11. Reflections on the Preceding Chapters Book IV. That the Laws of Education Ought to Be in Relation to the Principles of Government 1. Of the Laws of Education 2. Of Education in Monarchies 3. Of Education in a Despotic Government 4. Difference between the Effects of Ancient and Modern Education 5. Of Education in a Republican Government 6. Of some Institutions among the Greeks 7. In What Cases These Singular Institutions May Be of Service 8. Explanation of a Paradox of the Ancients in Respect to Manners Book V. That the Laws Given by the Legislator Ought to Be in Relation to the Principle of Government 1. Idea of This Book 2. What Is Meant by Virtue in a Political State 3. What Is Meant by a Love of the Republic in a Democracy 4. In What Manner the Love of Equality and Frugality Is Inspired 5. In What Manner the Laws Establish Equality in a Democracy 6. In What Manner the Laws Ought to Maintain Frugality in a Democracy 7. Other Methods of Favouring the Principle of Democracy 8. In What Manner the Laws Should Relate to the Principle of Government in an Aristocracy 9. In What Manner the Laws Are in Relation to Their Principle in Monarchies 10. Of the Expedition Peculiar to the Executive Power in Monarchies 11. Of the Excellence of a Monarchical Government 12. The Same Subject Continued 13. An Idea of Despotic Power 14. In What Manner the Laws Are in Relation to the Principles of Despotic Government 15. The Same Subject Continued 16. Of the Communication of Power 17. Of Presents 18. Of Rewards Conferred by the Sovereign 19. New Consequences of the Principles of the Three Governments Book VI. Consequences of the Principles of Different Governments with Respect to the Simplicity of Civil and Criminal Laws, the Form of Judgments, and the Inflicting of Punishments 1. Of the Simplicity of Civil Laws in Different Governments 2. Of the Simplicity of Criminal Laws in Different Governments 3. In What Governments and in What Cases the Judges Ought to Determine According to the Express Letter of the Law 4. Of the Manner of Passing Judgment 5. In What Governments the Sovereign May Be Judge 6. That in Monarchies Ministers Ought Not to Sit as Judges 7. Of a Single Magistrate 8. Of Accusation in Different Governments 9. Of the Severity of Punishments in Different Governments 10. Of the Ancient French Laws 11. That When People Are Virtuous, Few Punishments Are Necessary 12. Of the Power of Punishments 13. Insufficiency of the Laws of Japan 14. Of the Spirit of the Roman Senate 15. Of the Roman Laws in Respect to Punishments 16. Of the Just Proportion between Punishments and Crimes 17. Of the Rack 18. Of Pecuniary and Corporal Punishments 19. Of the Law of Retaliation 20. Of the Punishment of Fathers for the Crimes of Their Children 21. Of the Clemency of the Prince Book VII. Consequences of the Different Principles of the Three Governments with Respect to Sumptuary Laws, Luxury, and the Condition of Women 1. Of Luxury 2. Of Sumptuary Laws in a Democracy 3. Of Sumptuary Laws in an Aristocracy 4. Of Sumptuary Laws in a Monarchy 5. In What Cases Sumptuary Laws Are Useful in a Monarchy 6. Of the Luxury of China 7. Fatal Consequences of Luxury in China 8. Of Public Continency 9. Of the Condition or State of Women in Different Governments 10. Of the Domestic Tribunal among the Romans 11. In What Manner the Institutions Changed at Rome, Together with the Government 12. Of the Guardianship of Women among the Romans 13. Of the Punishments Decreed by the Emperors against the Incontinence of Women 14. Sumptuary Laws among the Romans 15. Of Dowries and Nuptial Advantages in Different Constitutions 16. An Excellent Custom of the Samnites 17. Of Female Administration Book VIII. Of the Corruption of the Principles of the Three Governments 1. General Idea of This Book 2. Of the Corruption of the Principles of Democracy 3. Of the Spirit of Extreme Equality 4. Particular Cause of the Corruption of the People 5. Of the Corruption of the Principle of Aristocracy 6. Of the Corruption of the Principle of Monarchy 7. The Same Subject Continued 8. Danger of the Corruption of the Principle of Monarchical Government 9. How Ready the Nobility Are to Defend the Throne 10. Of the Corruption of the Principle of Despotic Government 11. Natural Effects of the Goodness and Corruption of the Principles of Government 12. The Same Subject Continued 13. The Effect of an Oath among Virtuous People 14. How the Smallest Change of the Constitution Is Attended with the Ruin of its Principles 15. Sure Methods of Preserving the Three Principles 16. Distinctive Properties of a Republic 17. Distinctive Properties of a Monarchy 18. Particular Case of the Spanish Monarchy 19. Distinctive Properties of a Despotic Government 20. Consequence of the Preceding Chapters 21. Of the Empire of China Book IX. Of Laws in the Relation They Bear to a Defensive Force 1. In What Manner Republics Provide for Their Safety 2. That a Confederate Government Ought to Be Composed of States of the Same Nature, Especially of the Republican Kind 3. Other Requisites in a Confederate Republic 4. In What Manner Despotic Governments Provide for their Security 5. In What Manner a Monarchical Government Provides for Its Security 6. Of the Defensive Force of States in General 7. A Reflection 8. A Particular Case in Which the Defensive Force of a State Is Inferior to the Offensive 9. Of the Relative Force of States 10. Of the Weakness of Neighbouring States Book X. Of Laws in the Relation They Bear to Offensive Force 1. Of Offensive Force 2. Of War 3. Of the Right of Conquest 4. Some Advantages of a Conquered People 5. Gelon, King of Syracuse 6. Of Conquest Made by a Republic 7. The Same Subject Continued 8. The Same Subject Continued 9. Of Conquests Made by a Monarchy 10. Of One Monarchy That Subdues Another 11. Of the Manners of a Conquered People 12. Of a Law of Cyrus 13. Charles XII 14. Alexander 15. New Methods of Preserving a Conquest 16. Of Conquests Made by a Despotic Prince 17. The Same Subject Continued Book XI. Of the Laws Which Establish Political Liberty, with Regard to the Constitution 1. A General Idea 2. Different Significations of the Word Liberty 3. In What Liberty Consists 4. The Same Subject Continued 5. Of the End or View of Different Governments 6. Of the Constitution of England 7. Of the Monarchies We Are Acquainted With 8. Why the Ancients Had Not a Clear Idea of Monarchy 9. Aristotle's Manner of Thinking 10. What Other Politicians Thought 11. Of the Kings of the Heroic Times of Greece 12. Of the Government of the Kings of Rome, and in What Manner the Three Powers Were There Distributed 13. General Reflections on the State of Rome after the Expulsion of its Kings 14. In What Manner the Distribution of the Three Powers Began to Change after the Expulsion of the Kings 15. In What Manner Rome, in the Flourishing State of That Republic, Suddenly Lost its Liberty 16. Of the Legislative Power in the Roman Republic 17. Of the Executive Power in the Same Republic 18. Of the Judiciary Power in the Roman Government 19. Of the Government of the Roman Provinces 20. The End of This Book Book XII. Of the Laws That Form Political Liberty, in Relation to the Subject 1. Idea of This Book 2. Of the Liberty of the Subject 3. The Same Subject Continued 4. That Liberty is Favoured by the Nature and Proportion of Punishments 5. Of Certain Accusations That Require Particular Moderation and Prudence 6. Of the Crime against Nature 7. Of the Crime of High Treason 8. Of the Misapplication of the Terms Sacrilege and High Treason 9. The Same Subject Continued 10. The Same Subject Continued 11. Of Thoughts 12. Of Indiscreet Speeches 13. Of Writings 14. Breach of Modesty in Punishing Crimes 15. Of the Enfranchisement of Slaves in Order to Accuse Their Master 16. Of Calumny with Regard to the Crime of High Treason 17. Of the Revealing of Conspiracies 18. How Dangerous It Is in Republics to Be Too Severe in Punishing the Crime of High Treason 19. In What Manner the Use of Liberty Is Suspended in a Republic 20. Of Laws Favourable to the Liberty of the Subject in a Republic 21. Of the Cruelty of Laws in Respect to Debtors in a Republic 22. Of Things That Strike at Liberty in Monarchies 23. Of Spies in Monarchies 24. Of Anonymous Letters 25. Of the Manner of Governing in Monarchies 26. That in a Monarchy the Prince Ought to Be of Easy Access 27. Of the Manners of a Monarch 28. Of the Regard Which Monarchs Owe to Their Subjects 29. Of the Civil Laws Proper for Mixing Some Portion of Liberty in a Despotic Government 30. The Same Subject Continued Book XIII. Of the Relation Which the Levying of Taxes and the Greatness of the Public Revenues Bear to Liberty 1. Of the Public Revenues 2. That It Is Bad Reasoning to Say That the Greatness of Taxes Is Good in its Own Nature 3. Of Taxes in Countries Where Part of the People Are Villains or Bondmen 4. Of a Republic in the Like Case 5. Of a Monarchy in the Like Case 6. Of a Despotic Government in the Like Case 7. Of Taxes in Countries where Villainage is Not Established 8. In What Manner the Deception Is Preserved 9. Of a Bad Kind of Impost 10. That the Greatness of Taxes Depends on the Nature of the Government 11. Of Confiscations 12. Relation between the Weight of Taxes and Liberty 13. In What Government Taxes Are Capable of Increase 14. That the Nature of the Taxes Is in Relation to the Government 15. Abuse of Liberty 16. Of the Conquests of the Mahometans 17. Of the Augmentation of Troops 18. Of an Exemption from Taxes 19. Which Is More Suitable to the Prince and to the People, the Farming the Revenues, or Managing Them by Commission? 20. Of the Farmers of the Revenues Book XIV. Of Laws in Relation to the Nature of the Climate 1. General Idea 2. Of the Difference of Men in Different Climates 3. Contradiction in the Tempers of Some Southern Nations 4. Cause of the Immutability of Religion, Manners, Customs, and Laws, in the Eastern Countries 5. That Those Are Bad Legislators Who Favour the Vices of the Climate, and Good Legislators Who Oppose Those Vices 6. Of Agriculture in Warm Climates 7. Of Monkery 8. An Excellent Custom of China 9. Means of Encouraging Industry 10. Of the Laws in Relation to the Sobriety of the People 11. Of the Laws in Relation to the Distempers of the Climate 12. Of the Laws against Suicides 13. Effects Arising from the Climate of England 14. Other Effects of the Climate 15. Of the Different Confidence Which the Laws Have in the People, According to the Difference of Climates Book XV. In What Manner the Laws of Civil Slavery Relate to the Nature of the Climate 1. Of Civil Slavery 2. Origin of the Right of Slavery among the Roman Civilians 3. Another Origin of the Right of Slavery 4. Another Origin of the Right of Slavery 5. Of the Slavery of the Negroes 6. The True Origin of the Right of Slavery 7. Another Origin of the Right of Slavery 8. Inutility of Slavery among Us 9. Several Kinds of Slavery 10. Regulations Necessary in Respect to Slavery 11. Abuses of Slavery 12. Danger from the Multitude of Slaves 13. Of Armed Slaves 14. The Same Subject Continued 15. Precautions to Be Used in Moderate Governments 16. Regulations between Masters and Slaves 17. Of Enfranchisements 18. Of Freedmen and Eunuchs Book XVI. How the Laws of Domestic Slavery Bear a Relation to the Nature of the Climate 1. Of Domestic Servitude 2. That in the Countries of the South There Is a Natural Inequality between the Two Sexes 3. That a Plurality of Wives Greatly Depends on the Means of Supporting Them 4. That the Law of Polygamy Is an Affair That Depends on Calculation 5. The Reason of a Law of Malabar 6. Of Polygamy Considered in Itself 7. Of an Equality of Treatment in Case of Many Wives 8. Of the Separation of Women from Men 9. Of the Connection between Domestic and Political Government 10. The Principle on Which the Morals of the East Are Founded 11. Of Domestic Slavery Independently of Polygamy 12. Of Natural Modesty 13. Of Jealousy 14. Of the Eastern Manner of Domestic Government 15. Of Divorce and Repudiation 16. Of Repudiation and Divorce among the Romans Book XVII. How the Laws of Political Servitude Bear a Relation to the Nature of the Climate 1. Of Political Servitude 2. The Difference between Nations in Point of Courage 3. Of the Climate of Asia 4. The Consequences Resulting from This 5. That When the People in the North of Asia and Those of the North of Europe Made Conquests, the Effects of the Conquests Were Not the Same 6. A new Physical Cause of the Slavery of Asia, and of the Liberty of Europe 7. Of Africa and America 8. Of the Capital of the Empire Book XVIII. Of Laws in the Relation They Bear to the Nature of the Soil 1. How the Nature of the Soil Has an Influence on the Laws 2. The Same Subject Continued 3. What Countries Are Best Cultivated 4. New Effects of the Fertility and Barrenness of Countries 5. Of the Inhabitants of Islands 6. Of Countries Raised by the Industry of Man 7. Of Human Industry 8. The General Relation of Laws 9. Of the Soil of America 10. Of Population in the Relation It Bears to the Manners of Procuring Subsistence 11. Of Savage and Barbarous Nations 12. Of the Law of Nations among People Who Do Not Cultivate the Earth 13. Of the Civil Laws of Those Nations Who Do Not Cultivate the Earth 14. Of the Political State of the People Who Do Not Cultivate the Land 15. Of People Who Know the Use of Money 16. Of Civil Laws among People Who Know Not the Use of Money 17. Of Political Laws among Nations Who Have Not the Use of Money 18. Of the Power of Superstition 19. Of the Liberty of the Arabs and the Servitude of the Tartars 20. Of the Law of Nations as Practised by the Tartars 21. The Civil Law of the Tartars 22. Of a Civil Law of the German Nations 23. Of the Regal Ornaments among the Franks 24. Of the Marriages of the Kings of the Franks 25. Childeric 26. Of the Time When the Kings of the Franks Became of Age 27. The Same Subject Continued 28. Of Adoption among the Germans 29. Of the Sanguinary Temper of the Kings of the Franks 30. Of the National Assemblies of the Franks 31. Of the Authority of the Clergy under the First Race Book XIX. Of Laws in Relation to the Principles Which Form the General Spirit, Morals, and Customs of a Nation 1. Of the Subject of This Book 2. That It Is Necessary People's Minds Should Be Prepared for the Reception of the Best Laws 3. Of Tyranny 4. Of the General Spirit of Mankind 5. How Far We Should Be Attentive Lest the General Spirit of a Nation Be Changed 6. That Everything Ought Not to Be Corrected 7. Of the Athenians and Laced?monians 8. Effects of a Sociable Temper 9. Of the Vanity and Pride of Nations 10. Of the Character of the Spaniards and Chinese 11. A Reflection 12. Of Customs and Manners in a Despotic State 13. Of the Behaviour of the Chinese 14. What Are the Natural Means of Changing the Manners and Customs of a Nation 15. The Influence of Domestic Government on the Political 16. How some Legislators Have Confounded the Principles Which Govern Mankind 17. Of the Peculiar Quality of the Chinese Government 18. A Consequence Drawn from the Preceding Chapter 19. How This Union of Religion, Laws, Manners, and Customs among the Chinese Was Effected 20. Explanation of a Paradox Relating to the Chinese 21. How the Laws Ought to Have a Relation to Manners and Customs 22. The Same Subject Continued 23. How the Laws Are Founded on the Manners of a People 24. The Same Subject Continued 25. The Same Subject Continued 26. The Same Subject Continued 27. How the Laws Contribute to Form the Manners, Customs, and Character of a Nation Book XX. Of Laws in Relation to Commerce, Considered in its Nature and Distinctions 1. Of Commerce 2. Of the Spirit of Commerce 3. Of the Poverty of the People 4. Of Commerce in Different Governments 5. Of Nations That Have Entered into an Economical Commerce 6. Some Effects of an Extensive Navigation 7. The Spirit of England with Respect to Commerce 8. In What Manner Economical Commerce Has Been Sometimes Restrained 9. Of the Prohibition of Commerce 10. An Institution Adapted to Economical Commerce 11. The Same Subject Continued 12. Of the Freedom of Commerce 13. What It Is That Destroys This Liberty 14. The Laws of Commerce Concerning the Confiscation of Merchandise 15. Of Seizing the Persons of Merchants 16. An Excellent Law 17. A Law of Rhodes 18. Of the Judges of Commerce 19. That a Prince Ought Not to Engage Himself in Commerce 20. The Same Subject Continued 21. Of the Commerce of the Nobility in a Monarchy 22. A Singular Reflection 23. To What Nations Commerce Is Prejudicial Book XXI. Of Laws in Relation to Commerce, Considered in the Revolutions It Has Met With in the World 1. Some General Considerations 2. Of the People of Africa 3. That the Wants of the People in the South Are Different from those of the North 4. The Principal Difference between the Commerce of the Ancients and the Moderns 5. Other Differences 6. Of the Commerce of the Ancients 7. Of the Commerce of the Greeks 8. Of Alexander: His Conquests 9. Of the Commerce of the Grecian Kings after the Death of Alexander 10. Of the Circuit of Africa 11. Of Carthage and Marseilles 12. The Isle of Delos. Mithridates 13. Of the Genius of the Romans as to Maritime Affairs 14. Of the Genius of the Romans with Respect to Commerce 15. Of the Commerce of the Romans with the Barbarians 16. Of the Commerce of the Romans with Arabia, and the Indies 17. Of Commerce after the Destruction of the Western Empire 18. A Particular Regulation 19. Of Commerce after the Decay of the Roman Power in the East 20. How Commerce Broke Through the Barbarism of Europe 21. The Discovery of Two New Worlds, and in What Manner Europe Is Affected by It 22. Of the Riches Which Spain Drew from America 23. A Problem Book XXII. Of Laws in Relation to the Use of Money 1. The Reason of the Use of Money 2. Of the Nature of Money 3. Of Ideal Money 4. Of the Quantity of Gold and Silver 5. The Same Subject Continued 6. Why Interest Was Lowered One Half after the Conquest of the Indies 7. How the Price of Things Is Fixed in the Variation of the Sign of Riches 8. The Same Subject Continued 9. Of the Relative Scarcity of Gold and Silver 10. Of Exchange 11. Of the Proceedings of the Romans with Respect to Money 12. The Circumstances in Which the Romans Changed the Value of Their Specie 13. Proceedings with Respect to Money in the Time of the Emperors 14. How Exchange Is a Constraint on Despotic Power 15. The Practice of Some Countries in Italy 16. The Assistance a State May Derive from Bankers 17. Of Public Debts 18. Of the Payment of Public Debts 19. Of Lending upon Interest 20. Of Maritime Usury 21. Of Lending by Contract, and the State of Usury among the Romans 22. The Same Subject Continued Book XXIII. Of Laws in the Relation They Bear to the Number of Inhabitants 1. Of Men and Animals with Respect to the Multiplication of Their Species 2. Of Marriage 3. Of the Condition of Children 4. Of Families 5. Of the Several Orders of Lawful Wives 6. Of Bastards in Different Governments 7. Of the Father's Consent to Marriage 8. The Same Subject Continued 9. Of Young Women 10. What It Is That Determines Marriage 11. Of the Severity of Government 12. Of the Number of Males and Females in Different Countries 13. Of Seaport Towns 14. Of the Productions of the Earth Which Require a Greater or Less Number of Men 15. Of the Number of Inhabitants with Relation to the Arts 16. The Concern of the Legislator in the Propagation of the Species 17. Of Greece, and the Number of its Inhabitants 18. Of the State and Number of People before the Romans 19. Of the Depopulation of the Globe 20. That the Romans Were under the Necessity of Making Laws to Encourage the Propagation of the Species 21. Of the Laws of the Romans Relating to the Propagation of the Species 22. Of the Exposing of Children 23. Of the State of the World after the Destruction of the Romans 24. The Changes Which Happened in Europe, with Regard to the Number of the Inhabitants 25. The Same Subject Continued 26. Consequences 27. Of the Law Made in France to Encourage the Propagation of the Species 28. By What Means We May Remedy a Depopulation 29. Of Hospitals Book XXIV. Of Laws in Relation to Religion, Considered in Itself, and in Its Doctrine 1. Of Religion in General 2. A Paradox of M. Bayle's 3. That a Moderate Government Is Most Agreeable to the Christian Religion, and a Despotic Government to the Mahometan 4. Consequences from the Character of the Christian Religion and That of the Mahometan 5. That the Catholic Religion Is Most Agreeable to a Monarchy, and the Protestant to a Republic 6. Another of M. Bayle's Paradoxes 7. Of the Laws of Perfection in Religion 8. Of the Connection between the Moral Laws and Those of Religion 9. Of the Essenes 10. Of the Sect of Stoics 11. Of Contemplation 12. Of Penances 13. Of Inexpiable Crimes 14. In What Manner Religion Has an Influence on Civil Laws 15. How False Religions Are Sometimes Corrected by the Civil Laws 16. How the Laws of Religion Correct the Inconveniences of a Political Constitution 17. The Same Subject Continued 18. How the Laws of Religion Have the Effect of Civil Laws 19. That It Is Not So Much the Truth or Falsity of a Doctrine Which Renders It Useful or Pernicious to Men in Civil Government, as the Use or Abuse of It 20. The Same Subject Continued 21. Of Metempsychosis 22. That It Is Dangerous for Religion to Inspire an Aversion for Things in Themselves Indifferent 23. Of Festivals 24. Of the Local Laws of Religion 25. The Inconvenience of Transplanting a Religion from One Country to Another 26. The Same Subject Continued Book XXV. Of Laws in Relation to the Establishment of Religion and its External Polity 1. Of Religious Sentiments 2. Of the Motives of Attachment to Different Religions 3. Of Temples 4. Of the Ministers of Religion 5. Of the Bounds Which the Laws Ought to Prescribe to the Riches of the Clergy 6. Of Monasteries 7. Of the Luxury of Superstition 8. Of the Pontificate 9. Of Toleration in Point of Religion 10. The Same Subject Continued 11. Of Changing a Religion 12. Of Penal Laws 13. A Most Humble Remonstrance to the Inquisitors of Spain and Portugal 14. Why the Christian Religion Is So Odious in Japan 15. Of the Propagation of Religion Book XXVI. Of Laws in Relation to the Order of Things Which They Determine 1. Idea of This Book 2. Of Laws Divine and Human 3. Of Civil Laws Contrary to the Law of Nature 4. The Same Subject Continued 5. Cases in Which We May Judge by the Principles of the Civil Law, in Limiting the Principles of the Law of Nature 6. That the Order of Succession or Inheritance Depends on the Principles of Political or Civil Law, and Not on Those of the Law of Nature 7. That We Ought Not to Decide by the Precepts of Religion What Belongs Only to the Law of Nature 8. That We Ought Not to Regulate by the Principles of the Canon Law Things Which Should Be Regulated by Those of the Civil Law 9. That Things Which Ought to Be Regulated by the Principles of Civil Law Can Seldom Be Regulated by Those of Religion. 10. In What Case We Ought to Follow the Civil Law Which Permits, and Not the Law of Religion Which Forbids 11. That Human Courts of Justice Should Not Be Regulated by the Maxims of Those Tribunals Which Relate to the Other Life 12. The Same Subject Continued 13. In What Cases, with Regard to Marriage, We Ought to Follow the Laws of Religion; and in What Cases We Should Follow the Civil Laws 14. In What Instances Marriages between Relatives Should Be Regulated by the Laws of Nature; and in What Instances by the Civil Laws 15. That We Should Not Regulate by the Principles of Political Law Those Things Which Depend on the Principles of Civil Law 16. That We Ought Not to Decide by the Rules of the Civil Law, When It Is Proper to Decide by Those of the Political Law 17. The Same Subject Continued 18. That It Is Necessary to Inquire Whether the Laws Which Seem Contradictory Are of the Same Class 19. That We Should Not Decide Those Things by the Civil Law Which Ought to Be Decided by Domestic Laws 20. That We Ought Not to Decide by the Principles of the Civil Laws Those Things Which Belong to the Law of Nations 21. That We Should Not Decide by Political Laws Things Which Belong to the Law of Nations 22. The Unhappy State of the Inca Athualpa 23. That When, by Some Circumstance, the Political Law Becomes Destructive to the State, We Ought to Decide by Such a Political Law, as Will Preserve It, Which Sometimes Becomes a Law of Nations 24. That the Regulations of the Police Are of a Different Class from Other Civil Laws 25. That We Should Not Follow the General Disposition of the Civil Law in Things Which Ought to Be Subject to Particular Rules Drawn from Their Own Nature Book XXVII. 1. Of the Origin and Revolutions of the Roman Laws on Successions Book XXVIII. Of the Origin and Revolutions of the Civil Laws among the French 1. Different Character of the Laws of the Several People of Germany 2. That the Laws of the Barbarians Were All Personal 3. Capital Difference between the Salic Laws, and Those of the Visigoths and Burgundians 4. In What Manner the Roman Law Came to Be Lost in the Country Subject to the Franks, and Preserved in That Subject to the Goths and Burgundians 5. The Same Subject Continued 6. How the Roman Law Kept its Ground in the Demesne of the Lombards 7. How the Roman Law Came to Be Lost in Spain 8. A False Capitulary 9. In What Manner the Codes of Barbarian Laws, and the Capitularies Came to Be Lost 10. The Same Subject Continued 11. Other Causes of the Disuse of the Codes of Barbarian Laws, as well as of the Roman Law, and of the Capitularies 12. Of Local Customs. Revolution of the Laws of Barbarous Nations, as well as of the Roman Law 13. Difference between the Salic Law, or That of the Salian Franks, and That of the Ripuarian Franks, and other Barbarous Nations 14. Another Difference 15. A Reflection 16. Of the Ordeal or Trial by Boiling Water, Established by the Salic Law 17. Particular Notions of Our Ancestors 18. In What Manner the Custom of Judicial Combats Gained Ground 19. A New Reason of the Disuse of the Salic and Roman Laws, as Also of the Capitularies 20. Origin of the Point of Honour 21. A new Reflection on the Point of Honour among the Germans 22. Of the Manners in Relation to Judicial Combats 23. Of the Code of Laws on Judicial Combats 24. Rules Established in the Judicial Combat 25. Of the Bounds Prescribed to the Custom of Judicial Combats 26. On the Judiciary Combat between One of the Parties and One of the Witnesses 27. Of the Judicial Combat between One of the Parties and One of the Lords' Peers. Appeal of False Judgment 28. Of the Appeal of Default of Justice 29. Epoch of the Reign of St. Louis 30. Observation on Appeals 31. The Same Subject Continued 32. The Same Subject Continued 33. The Same Subject Continued 34. In What Manner the Proceedings at Law Became Secret 35. Of the Costs 36. Of the Public Prosecutor 37 In What Manner the Institutions of St. Louis Fell into Oblivion 38. The Same Subject Continued 39. The Same Subject Continued 40. In What Manner the Judiciary Forms Were Borrowed from the Decretals 41. Flux and Reflux of the Ecclesiastic and Temporal Jurisdiction 42. The Revival of the Roman Law, and the Result Thereof. Change of Tribunals 43. The Same Subject Continued 44 Of the Proof by Witnesses 45. Of the Customs of France Book XXIX. Of the Manner of Composing Laws 1. Of the Spirit of a Legislator 2. The Same Subject Continued 3. That the Laws Which Seem to Deviate from the Views of the Legislator Are Frequently Agreeable to Them 4. Of the Laws Contrary to the Views of the Legislator 5. The Same Subject Continued 6. The Laws Which Appear the Same Have Not Always the Same Effect 7. The Same Subject Continued. Necessity of Composing Laws in a Proper Manner 8. That Laws Which Appear the Same Were Not Always Made through the Same Motive 9. That the Greek and Roman Laws Punished Suicide, but Not through the Same Motive 10. That Laws Which Seem Contrary Proceed Sometimes from the Same Spirit 11. How to Compare Two Different Systems of Laws 12. That Laws Which Appear the Same Are Sometimes Really Different 13. That We Must Not Separate Laws from the End for Which They Were Made: of the Roman Laws on Theft 14. That We Must Not Separate the Laws from the Circumstances in Which They Were Made 15. That Sometimes It Is Proper the Law Should Amend Itself 16. Things to Be Observed in the Composing of Laws 17. A bad Method of Giving Laws 18. Of the Ideas of Uniformity 19. Of Legislators Book XXX. Theory of the Feudal Laws among the Franks in the Relation They Bear to the Establishment of the Monarchy 1. Of Feudal Laws 2. Of the Source of Feudal Laws 3. The Origin of Vassalage 4. The Same Subject Continued 5. Of the Conquests of the Franks 6. Of the Goths, Burgundians, and Franks 7. Different Ways of Dividing the Land 8. The Same Subject Continued 9. A Just Application of the Law of the Burgundians, and of That of the Visigoths, in Relation to the Division of Lands 10. Of Servitudes 11. The Same Subject Continued 12. That the Lands Belonging to the Division of the Barbarians Paid No Taxes 13. Of Taxes Paid by the Romans and Gauls, in the Monarchy of the Franks 14. Of What They Called Census 15. That What They Called Census Was Raised Only on the Bondmen and Not on the Freemen 16. Of the Feudal Lords or Vassals 17. Of the Military Service of Freemen 18. Of the Double Service 19. Of Compositions among the Barbarous Nations 20. Of What Was Afterwards Called the Jurisdiction of the Lords 21. Of the Territorial Jurisdiction of the Churches 22. That the Jurisdictions Were Established before the End of the Second Race 23. General Idea of the Abbé Du Bos' Book on the Establishment of the French Monarchy in Gaul 24. The Same Subject Continued. Reflection on the Main Part of the System 25. Of the French Nobility Book XXXI. Theory of the Feudal Laws among the Franks, in the Relation They Bear to the Revolutions of their Monarchy 1. Changes in the Offices and in the Fiefs. Of the Mayors of the Palace 2. How the Civil Government Was Reformed 3. Authority of the Mayors of the Palace 4. Of the Genius of the Nation in Regard to the Mayors 5. In What Manner the Mayors Obtained the Command of the Armies 6. Second Epoch of the Humiliation of Our Kings of the First Race 7. Of the Great Offices and Fiefs under the Mayors of the Palace 8. In What Manner the Allodial Estates Were Changed into Fiefs 9. How the Church Lands Were Converted into Fiefs 10. Riches of the Clergy 11. State of Europe at the Time of Charles Martel 12. Establishment of the Tithes 13. Of the Election of Bishops and Abbots 14. Of the Fiefs of Charles Martel 15. The Same Subject Continued 16. Confusion of the Royalty and Mayoralty. The Second Race 17. A Particular Circumstance in the Election of the Kings of the Second Race 18. Charlemagne 19. The Same Subject Continued 20. Louis the Debonnaire 21. The Same Subject Continued 22. The Same Subject Continued 23. The Same Subject Continued 24. That the Freemen Were Rendered Capable of Holding Fiefs 25. The Principal Cause of the Humiliation of the Second Race. Changes in the Allodia 26. Changes in the Fiefs 27. Another change Which Happened in the Fiefs 28. Changes Which Happened in the Great Offices and in the Fiefs 29. Of the Nature of the Fiefs after the Reign of Charles the Bald 30. The Same Subject Continued 31. In What Manner the Empire Was Transferred from the Family of Charlemagne 32. In What Manner the Crown of France Was Transferred to the House of Hugh Capet 33. Some Consequences of the Perpetuity of Fiefs 34. The Same Subject Continued ------------------------------------------------------------------------ PREFACE IF amidst the infinite number of subjects contained in this book there is anything which, contrary to my expectation, may possibly offend, I can at least assure the public that it was not inserted with an ill intention: for I am not naturally of a captious temper. Plato thanked the gods that he was born in the same age with Socrates: and for my part I give thanks to the Supreme that I was born a subject of that government under which I live; and that it is His pleasure I should obey those whom He has made me love. I beg one favour of my readers, which I fear will not be granted me; this is, that they will not judge by a few hours' reading of the labour of twenty years; that they will approve or condemn the book entire, and not a few particular phrases. If they would search into the design of the author, they can do it in no other way so completely as by searching into the design of the work. I have first of all considered mankind; and the result of my thoughts has been, that amidst such an infinite diversity of laws and manners, they were not solely conducted by the caprice of fancy. I have laid down the first principles, and have found that the particular cases follow naturally from them; that the histories of all nations are only consequences of them; and that every particular law is connected with another law, or depends on some other of a more general extent. When I have been obliged to look back into antiquity, I have endeavoured to assume the spirit of the ancients, lest I should consider those things as alike which are really different; and lest I should miss the difference of those which appear to be alike. I have not drawn my principles from my prejudices, but from the nature of things. Here a great many truths will not appear till we have seen the chain which connects them with others. The more we enter into particulars, the more we shall perceive the certainty of the principles on which they are founded. I have not even given all these particulars, for who could mention them all without a most insupportable fatigue? The reader will not here meet with any of those bold flights which seem to characterise the works of the present age. When things are examined with never so small a degree of extent, the sallies of imagination must vanish; these generally arise from the mind's collecting all its powers to view only one side of the subject, while it leaves the other unobserved. I write not to censure anything established in any country whatsoever. Every nation will here find the reasons on which its maxims are founded; and this will be the natural inference, that to propose alterations belongs only to those who are so happy as to be born with a genius capable of penetrating the entire constitution of a state. It is not a matter of indifference that the minds of the people be enlightened. The prejudices of magistrates have arisen from national prejudice. In a time of ignorance they have committed even the greatest evils without the least scruple; but in an enlightened age they even tremble while conferring the greatest blessings. They perceive the ancient abuses; they see how they must be reformed; but they are sensible also of the abuses of a reformation. They let the evil continue, if they fear a worse; they are content with a lesser good, if they doubt a greater. They examine into the parts, to judge of them in connection; and they examine all the causes, to discover their different effects. Could I but succeed so as to afford new reasons to every man to love his prince, his country, his laws; new reasons to render him more sensible in every nation and government of the blessings he enjoys, I should think myself the most happy of mortals. Could I but succeed so as to persuade those who command, to increase their knowledge in what they ought to prescribe; and those who obey, to find a new pleasure resulting from obedience -- I should think myself the most happy of mortals. The most happy of mortals should I think myself could I contribute to make mankind recover from their prejudices. By prejudices I here mean, not that which renders men ignorant of some particular things, but whatever renders them ignorant of themselves. It is in endeavouring to instruct mankind that we are best able to practise that general virtue which comprehends the love of all. Man, that flexible being, conforming in society to the thoughts and impressions of others, is equally capable of knowing his own nature, whenever it is laid open to his view; and of losing the very sense of it, when this idea is banished from his mind. Often have I begun, and as often have I laid aside, this undertaking. I have a thousand times given the leaves I had written to the winds: I, every day, felt my paternal hands fall. I have followed my object without any fixed plan: I have known neither rules nor exceptions; I have found the truth, only to lose it again. But when I once discovered my first principles, everything I sought for appeared; and in the course of twenty years, I have seen my work begun, growing up, advancing to maturity, and finished. If this work meets with success, I shall owe it chiefly to the grandeur and majesty of the subject. However, I do not think that I have been totally deficient in point of genius. When I have seen what so many great men both in France, England, and Germany have said before me, I have been lost in admiration; but I have not lost my courage: I have said with Correggio, "And I also am a painter." ADVERTISEMENT 1. For the better understanding of the first four books of this work, it is to be observed that what I distinguish by the name of virtue, in a republic, is the love of one's country, that is, the love of equality. It is not a moral, nor a Christian, but a political virtue; and it is the spring which sets the republican government in motion, as honour is the spring which gives motion to monarchy. Hence it is that I have distinguished the love of one's country, and of equality, by the appellation of political virtue. My ideas are new, and therefore I have been obliged to find new words, or to give new acceptations to old terms, in order to convey my meaning. They, who are unacquainted with this particular, have made me say most strange absurdities, such as would be shocking in any part of the world, because in all countries and governments morality is requisite. 2. The reader is also to notice that there is a vast difference between saying that a certain quality, modification of the mind, or virtue, is not the spring by which government is actuated, and affirming that it is not to be found in that government. Were I to say such a wheel or such a pinion is not the spring which sets the watch going, can you infer thence that they are not to be found in the watch? So far is it from being true that the moral and Christian virtues are excluded from monarchy, that even political virtue is not excluded. In a word, honour is found in a republic, though its spring be political virtue; and political virtue is found in a monarchical government, though it be actuated by honour. To conclude, the honest man of whom we treat in the third book, chapter 5, is not the Christian, but the political honest man, who is possessed of the political virtue there mentioned. He is the man who loves the laws of his country, and who is actuated by the love of those laws. I have set these matters in a clearer light in the present edition, by giving a more precise meaning to my expression: and in most places where I have made use of the word virtue I have taken care to add the term political. ------------------------------------------------------------------------ Book I. Of Laws in General 1. Of the Relation of Laws to different Beings. Laws, in their most general signification, are the necessary relations arising from the nature of things. In this sense all beings have their laws: the Deity[1] His laws, the material world its laws, the intelligences superior to man their laws, the beasts their laws, man his laws. They who assert that a blind fatality produced the various effects we behold in this world talk very absurdly; for can anything be more unreasonable than to pretend that a blind fatality could be productive of intelligent beings? There is, then, a prime reason; and laws are the relations subsisting between it and different beings, and the relations of these to one another. God is related to the universe, as Creator and Preserver; the laws by which He created all things are those by which He preserves them. He acts according to these rules, because He knows them; He knows them, because He made them; and He made them, because they are in relation to His wisdom and power. Since we observe that the world, though formed by the motion of matter, and void of understanding, subsists through so long a succession of ages, its motions must certainly be directed by invariable laws; and could we imagine another world, it must also have constant rules, or it would inevitably perish. Thus the creation, which seems an arbitrary act, supposes laws as invariable as those of the fatality of the Atheists. It would be absurd to say that the Creator might govern the world without those rules, since without them it could not subsist. These rules are a fixed and invariable relation. In bodies moved, the motion is received, increased, diminished, or lost, according to the relations of the quantity of matter and velocity; each diversity is uniformity, each change is constancy. Particular intelligent beings may have laws of their own making, but they have some likewise which they never made. Before there were intelligent beings, they were possible; they had therefore possible relations, and consequently possible laws. Before laws were made, there were relations of possible justice. To say that there is nothing just or unjust but what is commanded or forbidden by positive laws, is the same as saying that before the describing of a circle all the radii were not equal. We must therefore acknowledge relations of justice antecedent to the positive law by which they are established: as, for instance, if human societies existed, it would be right to conform to their laws; if there were intelligent beings that had received a benefit of another being, they ought to show their gratitude; if one intelligent being had created another intelligent being, the latter ought to continue in its original state of dependence; if one intelligent being injures another, it deserves a retaliation; and so on. But the intelligent world is far from being so well governed as the physical. For though the former has also its laws, which of their own nature are invariable, it does not conform to them so exactly as the physical world. This is because, on the one hand, particular intelligent beings are of a finite nature, and consequently liable to error; and on the other, their nature requires them to be free agents. Hence they do not steadily conform to their primitive laws; and even those of their own instituting they frequently infringe. Whether brutes be governed by the general laws of motion, or by a particular movement, we cannot determine. Be that as it may, they have not a more intimate relation to God than the rest of the material world; and sensation is of no other use to them than in the relation they have either to other particular beings or to themselves. By the allurement of pleasure they preserve the individual, and by the same allurement they preserve their species. They have natural laws, because they are united by sensation; positive laws they have none, because they are not connected by knowledge. And yet they do not invariably conform to their natural laws; these are better observed by vegetables, that have neither understanding nor sense. Brutes are deprived of the high advantages which we have; but they have some which we have not. They have not our hopes, but they are without our fears; they are subject like us to death, but without knowing it; even most of them are more attentive than we to self-preservation, and do not make so bad a use of their passions. Man, as a physical being, is like other bodies governed by invariable laws. As an intelligent being, he incessantly transgresses the laws established by God, and changes those of his own instituting. He is left to his private direction, though a limited being, and subject, like all finite intelligences, to ignorance and error: even his imperfect knowledge he loses; and as a sensible creature, he is hurried away by a thousand impetuous passions. Such a being might every instant forget his Creator; God has therefore reminded him of his duty by the laws of religion. Such a being is liable every moment to forget himself; philosophy has provided against this by the laws of morality. Formed to live in society, he might forget his fellow-creatures; legislators have therefore by political and civil laws confined him to his duty. 2. Of the Laws of Nature. Antecedent to the above-mentioned laws are those of nature, so called, because they derive their force entirely from our frame and existence. In order to have a perfect knowledge of these laws, we must consider man before the establishment of society: the laws received in such a state would be those of nature. The law which, impressing on our minds the idea of a Creator, inclines us towards Him, is the first in importance, though not in order, of natural laws. Man in a state of nature would have the faculty of knowing, before he had acquired any knowledge. Plain it is that his first ideas would not be of a speculative nature; he would think of the preservation of his being, before he would investigate its origin. Such a man would feel nothing in himself at first but impotency and weakness; his fears and apprehensions would be excessive; as appears from instances (were there any necessity of proving it) of savages found in forests,[2] trembling at the motion of a leaf, and flying from every shadow. In this state every man, instead of being sensible of his equality, would fancy himself inferior. There would therefore be no danger of their attacking one another; peace would be the first law of nature. The natural impulse or desire which Hobbes attributes to mankind of subduing one another is far from being well founded. The idea of empire and dominion is so complex, and depends on so many other notions, that it could never be the first which occurred to the human understanding. Hobbes[3] inquires, "For what reason go men armed, and have locks and keys to fasten their doors, if they be not naturally in a state of war?" But is it not obvious that he attributes to mankind before the establishment of society what can happen but in consequence of this establishment, which furnishes them with motives for hostile attacks and self-defence? Next to a sense of his weakness man would soon find that of his wants. Hence another law of nature would prompt him to seek for nourishment. Fear, I have observed, would induce men to shun one another; but the marks of this fear being reciprocal, would soon engage them to associate. Besides, this association would quickly follow from. the very pleasure one animal feels at the approach of another of the same species. Again, the attraction arising from the difference of sexes would enhance this pleasure, and the natural inclination they have for each other would form a third law. Beside the sense or instinct which man possesses in common with brutes, he has the advantage of acquired knowledge; and thence arises a second tie, which brutes have not. Mankind have therefore a new motive of uniting; and a fourth law of nature results from the desire of living in society. 3. Of Positive Laws. As soon as man enters into a state of society he loses the sense of his weakness; equality ceases, and then commences the state of war. Each particular society begins to feel its strength, whence arises a state of war between different nations. The individuals likewise of each society become sensible of their force; hence the principal advantages of this society they endeavour to convert to their own emolument, which constitutes a state of war between individuals. These two different kinds of states give rise to human laws. Considered as inhabitants of so great a planet, which necessarily contains a variety of nations, they have laws relating to their mutual intercourse, which is what we call the law of nations. As members of a society that must be properly supported, they have laws relating to the governors and the governed, and this we distinguish by the name of politic law. They have also another sort of law, as they stand in relation to each other; by which is understood the civil law. The law of nations is naturally founded on this principle, that different nations ought in time of peace to do one another all the good they can, and in time of war as little injury as possible, without prejudicing their real interests. The object of war is victory; that of victory is conquest; and that of conquest preservation. From this and the preceding principle all those rules are derived which constitute the law of nations. All countries have a law of nations, not excepting the Iroquois themselves, though they devour their prisoners: for they send and receive ambassadors, and understand the rights of war and peace. The mischief is that their law of nations is not founded on true principles. Besides the law of nations relating to all societies, there is a polity or civil constitution for each particularly considered. No society can subsist without a form of government. "The united strength of individuals," as Gravina[4] well observes, "constitutes what we call the body politic." The general strength may be in the hands of a single person, or of many. Some think that nature having established paternal authority, the most natural government was that of a single person. But the example of paternal authority proves nothing. For if the power of a father relates to a single government, that of brothers after the death of a father, and that of cousins-german after the decease of brothers, refer to a government of many. The political power necessarily comprehends the union of several families. Better is it to say, that the government most conformable to nature is that which best agrees with the humour and disposition of the people in whose favour it is established. The strength of individuals cannot be united without a conjunction of all their wills. "The conjunction of those wills," as Gravina again very justly observes, "is what we call the civil state." Law in general is human reason, inasmuch as it governs all the inhabitants of the earth: the political and civil laws of each nation ought to be only the particular cases in which human reason is applied. They should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another. They should be in relation to the nature and principle of each government; whether they form it, as may be said of politic laws; or whether they support it, as in the case of civil institutions. They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen, or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs. In fine, they have relations to each other, as also to their origin, to the intent of the legislator, and to the order of things on which they are established; in all of which different lights they ought to be considered. This is what I have undertaken to perform in the following work. These relations I shall examine, since all these together constitute what I call the Spirit of Laws. I have not separated the political from the civil institutions, as I do not pretend to treat of laws, but of their spirit; and as this spirit consists in the various relations which the laws may bear to different objects, it is not so much my business to follow the natural order of laws as that of these relations and objects. I shall first examine the relations which laws bear to the nature and principle of each government; and as this principle has a strong influence on laws, I shall make it my study to understand it thoroughly: and if I can but once establish it, the laws will soon appear to flow thence as from their source. I shall proceed afterwards to other and more particular relations. ______ 1. "Law," says Plutarch, "is the king of mortal and immortal beings." See his treatise, A Discourse to an Unlearned Prince. 2. Witness the savage found in the forests of Hanover, who was carried over to England during the reign of George I. 3. In pref., De cive. 4. Italian poet and jurist, 1664-1718. ------------------------------------------------------------------------ Book II. Of Laws Directly Derived from the Nature of Government 1. Of the Nature of the three different Governments. There are three species of government: republican, monarchical, and despotic. In order to discover their nature, it is sufficient to recollect the common notion, which supposes three definitions, or rather three facts: that a republican government is that in which the body, or only a part of the people, is possessed of the supreme power; monarchy, that in which a single person governs by fixed and established laws; a despotic government, that in which a single person directs everything by his own will and caprice. This is what I call the nature of each government; we must now inquire into those laws which directly conform to this nature, and consequently are the fundamental institutions. 2. Of the Republican Government, and the Laws in relation to Democracy.[1] When the body of the people is possessed of the supreme power, it is called a democracy. When the supreme power is lodged in the hands of a part of the people, it is then an aristocracy. In a democracy the people are in some respects the sovereign, and in others the subject. There can be no exercise of sovereignty but by their suffrages, which are their own will; now the sovereign's will is the sovereign himself. The laws therefore which establish the right of suffrage are fundamental to this government. And indeed it is as important to regulate in a republic, in what manner, by whom, to whom, and concerning what, suffrages are to be given, as it is in a monarchy to know who is the prince, and after what manner he ought to govern. Libanius[2] says that at Athens a stranger who intermeddled in the assemblies of the people was punished with death. This is because such a man usurped the rights of sovereignty. It is an essential point to fix the number of citizens who are to form the public assemblies; otherwise it would be uncertain whether the whole, or only a part of the people, had given their votes. At Sparta the number was fixed at ten thousand. But Rome, designed by Providence to rise from the weakest beginnings to the highest pitch of grandeur; Rome, doomed to experience all the vicissitudes of fortune; Rome, who had sometimes all her inhabitants without her walls, and sometimes all Italy and a considerable part of the world within them; Rome, I say, never fixed the number[3] and this was one of the principal causes of her ruin. The people, in whom the supreme power resides, ought to have the management of everything within their reach: that which exceeds their abilities must be conducted by their ministers. But they cannot properly be said to have their ministers, without the power of nominating them: it is, therefore, a fundamental maxim in this government, that the people should choose their ministers -- that is, their magistrates. They have occasion, as well as monarchs, and even more so, to be directed by a council or senate. But to have a proper confidence in these, they should have the choosing of the members; whether the election be made by themselves, as at Athens, or by some magistrate deputed for that purpose, as on certain occasions was customary at Rome. The people are extremely well qualified for choosing those whom they are to entrust with part of their authority. They have only to be determined by things to which they cannot be strangers, and by facts that are obvious to sense. They can tell when a person has fought many battles, and been crowned with success; they are, therefore, capable of electing a general. They can tell when a judge is assiduous in his office, gives general satisfaction, and has never been charged with bribery: this is sufficient for choosing a pr?tor. They are struck with the magnificence or riches of a fellow-citizen; no more is requisite for electing an edile. These are facts of which they can have better information in a public forum than a monarch in his palace. But are they capable of conducting an intricate affair, of seizing and improving the opportunity and critical moment of action? No; this surpasses their abilities. Should we doubt the people's natural capacity, in respect to the discernment of merit, we need only cast an eye on the series of surprising elections made by the Athenians and Romans; which no one surely will attribute to hazard. We know that though the people of Rome assumed the right of raising plebeians to public offices, yet they never would exert this power; and though at Athens the magistrates were allowed, by the law of Aristides, to be elected from all the different classes of inhabitants, there never was a case, says Xenophon,[4] when the common people petitioned for employments which could endanger either their security or their glory. As most citizens have sufficient ability to choose, though unqualified to be chosen, so the people, though capable of calling others to an account for their administration, are incapable of conducting the administration themselves. The public business must be carried on with a certain motion, neither too quick nor too slow. But the motion of the people is always either too remiss or too violent. Sometimes with a hundred thousand arms they overturn all before them; and sometimes with a hundred thousand feet they creep like insects. In a popular state the inhabitants are divided into certain classes. It is in the manner of making this division that great legislators have signalised themselves; and it is on this the duration and prosperity of democracy have ever depended. Servius Tullius followed the spirit of aristocracy in the distribution of his classes. We find in Livy[5] and in Dionysius Halicarnassus,[6] in what manner he lodged the right of suffrage in the hands of the principal citizens. He had divided the people of Rome into 193 centuries, which formed six classes; and ranking the rich, who were in smaller numbers, in the first centuries, and those in middling circumstances, who were more numerous, in the next, he flung the indigent multitude into the last; and as each century had but one vote[7] it was property rather than numbers that decided the election. Solon divided the people of Athens into four classes. In this he was directed by the spirit of democracy, his intention not being to fix those who were to choose, but such as were eligible: therefore, leaving to every citizen the right of election, he made[8] the judges eligible from each of those four classes; but the magistrates he ordered to be chosen only out of the first three, consisting of persons of easy fortunes.[9] As the division of those who have a right of suffrage is a fundamental law in republics, so the manner of giving this suffrage is another fundamental. The suffrage by lot is natural to democracy; as that by choice is to aristocracy.[10] The suffrage by lot is a method of electing that offends no one, but animates each citizen with the pleasing hope of serving his country. Yet as this method is in itself defective, it has been the endeavour of the most eminent legislators to regulate and amend it. Solon made a law at Athens that military employments should be conferred by choice; but that senators and judges should be elected by lot. The same legislator ordained that civil magistracies, attended with great expense, should be given by choice; and the others by lot. In order, however, to amend the suffrage by lot, he made a rule that none but those who presented themselves should be elected; that the person elected should be examined by judges[11] and that every one should have a right to accuse him if he were unworthy of the office:[12] this participated at the same time of the suffrage by lot, and of that by choice. When the time of their magistracy had expired, they were obliged to submit to another judgment in regard to their conduct. Persons utterly unqualified must have been extremely backward in giving in their names to be drawn by lot. The law which determines the manner of giving suffrage is likewise fundamental in a democracy. It is a question of some importance whether the suffrages ought to be public or secret. Cicero observes[13] that the laws[14] which rendered them secret towards the close of the republic were the cause of its decline. But as this is differently practised in different republics, I shall offer here my thoughts concerning this subject. The people's suffrages ought doubtless to be public[15] and this should be considered as a fundamental law of democracy. The lower class ought to be directed by those of higher rank, and restrained within bounds by the gravity of eminent personages. Hence, by rendering the suffrages secret in the Roman republic, all was lost; it was no longer possible to direct a populace that sought its own destruction. But when the body of the nobles are to vote in an aristocracy[16] or in a democracy the senate[17] as the business is then only to prevent intrigues, the suffrages cannot be too secret. Intriguing in a senate is dangerous; it is dangerous also in a body of nobles; but not so among the people, whose nature is to act through passion. In countries where they have no share in the government, we often see them as much inflamed on account of an actor as ever they could be for the welfare of the state. The misfortune of a republic is when intrigues are at an end; which happens when the people are gained by bribery and corruption: in this case they grow indifferent to public affairs, and avarice becomes their predominant passion. Unconcerned about the government and everything belonging to it, they quietly wait for their hire. It is likewise a fundamental law in democracies, that the people should have the sole power to enact laws. And yet there are a thousand occasions on which it is necessary the senate should have the power of decreeing; nay, it is frequently proper to make some trial of a law before it is established. The constitutions of Rome and Athens were excellent. The decrees of the senate[18] had the force of laws for the space of a year, but did not become perpetual till they were ratified by the consent of the people. 3. Of the Laws in relation to the Nature of Aristocracy. In an aristocracy the supreme power is lodged in the hands of a certain number of persons. These are invested both with the legislative and executive authority; and the rest of the people are, in respect to them, the same as the subjects of a monarchy in regard to the sovereign. They do not vote here by lot, for this would be productive of inconveniences only. And indeed, in a government where the most mortifying distinctions are already established, though they were to be chosen by lot, still they would not cease to be odious; it is the nobleman they envy, and not the magistrate. When the nobility are numerous, there must be a senate to regulate the affairs which the body of the nobles are incapable of deciding, and to prepare others for their decision. In this case it may be said that the aristocracy is in some measure in the senate, the democracy in the body of the nobles, and the people are a cipher. It would be a very happy thing in an aristocracy if the people, in some measure, could be raised from their state of annihilation. Thus at Genoa, the bank of St. George being administered by the people[19] gives them a certain influence in the government, whence their whole prosperity is derived. The senators ought by no means to have the right of naming their own members; for this would be the only way to perpetuate abuses. At Rome, which in its early years was a kind of aristocracy, the senate did not fill up the vacant places in their own body; the new members were nominated by the censors.[20] In a republic, the sudden rise of a private citizen to exorbitant power produces monarchy, or something more than monarchy. In the latter the laws have provided for, or in some measure adapted themselves to, the constitution; and the principle of government checks the monarch: but in a republic, where a private citizen has obtained an exorbitant power,[21] the abuse of this power is much greater, because the laws foresaw it not, and consequently made no provision against it. There is an exception to this rule, when the constitution is such as to have immediate need of a magistrate invested with extraordinary power. Such was Rome with her dictators, such is Venice with her state inquisitors; these are formidable magistrates, who restore, as it were by violence, the state to its liberty. But how comes it that these magistracies are so very different in these two republics? It is because Rome supported the remains of her aristocracy against the people; whereas Venice employs her state inquisitors to maintain her aristocracy against the nobles. The consequence was that at Rome the dictatorship could be only of short duration, as the people acted through passion and not with design. It was necessary that a magistracy of this kind should be exercised with lustre and pomp, the business being to intimidate, and not to punish, the multitude. It was also proper that the dictator should be created only for some particular affair, and for this only should have an unlimited authority, as he was always created upon some sudden emergency. On the contrary, at Venice they have occasion for a permanent magistracy; for here it is that schemes may be set on foot, continued, suspended, and resumed; that the ambition of a single person becomes that of a family, and the ambition of one family that of many. They have occasion for a secret magistracy, the crimes they punish being hatched in secrecy and silence. This magistracy must have a general inquisition, for their business is not to remedy known disorders, but to prevent the unknown. In a word, the latter is designed to punish suspected crimes; whereas the former used rather menaces than punishment even for crimes that were openly avowed. In all magistracies, the greatness of the power must be compensated by the brevity of the duration. This most legislators have fixed to a year; a longer space would be dangerous, and a shorter would be contrary to the nature of government. For who is it that in the management even of his domestic affairs would be thus confined? At Ragusa[22] the chief magistrate of the republic is changed every month, the other officers every week, and the governor of the castle every day. But this can take place only in a small republic environed[23] by formidable powers, who might easily corrupt such petty and insignificant magistrates. The best aristocracy is that in which those who have no share in the legislature are so few and inconsiderable that the governing party have no interest in oppressing them. Thus when[24] Antipater made a law at Athens that whosoever was not worth two thousand drachms should have no power to vote, he formed by this method the best aristocracy possible; because this was so small a sum as to exclude very few, and not one of any rank or consideration in the city. Aristocratic families ought therefore, as much as possible, to level themselves in appearance with the people. The more an aristocracy borders on democracy, the nearer it approaches perfection: and, in proportion as it draws towards monarchy, the more is it imperfect. But the most imperfect of all is that in which the part of the people that obeys is in a state of civil servitude to those who command, as the aristocracy of Poland, where the peasants are slaves to the nobility. 4. Of the Relation of Laws to the Nature of Monarchical Government. The intermediate, subordinate, and dependent powers constitute the nature of monarchical government; I mean of that in which a single person governs by fundamental laws. I said the intermediate, subordinate, and dependent powers. And indeed, in monarchies the prince is the source of all power, political and civil. These fundamental laws necessarily suppose the intermediate channels through which the power flows: for if there be only the momentary and capricious will of a single person to govern the state, nothing can be fixed, and of course there is no fundamental law. The most natural, intermediate, and subordinate power is that of the nobility. This in some measure seems to be essential to a monarchy, whose fundamental maxim is: no monarch, no nobility; no nobility, no monarch; but there may be a despotic prince. There are men who have endeavoured in some countries in Europe to suppress the jurisdiction of the nobility, not perceiving that they were driving at the very thing that was done by the parliament of England. Abolish the privileges of the lords, the clergy and cities in a monarchy, and you will soon have a popular state, or else a despotic government. The courts of a considerable kingdom in Europe have, for many ages, been striking at the patrimonial jurisdiction of the lords and clergy. We do not pretend to censure these sage magistrates; but we leave it to the public to judge how far this may alter the constitution. Far am I from being prejudiced in favour of the privileges of the clergy; however, I should be glad if their jurisdiction were once fixed. The question is not whether their jurisdiction was justly established; but whether it be really established; whether it constitutes a part of the laws of the country, and is in every respect in relation to those laws: whether between two powers acknowledged independent, the conditions ought not to be reciprocal; and whether it be not equally the duty of a good subject to defend the prerogative of the prince, and to maintain the limits which from time immemorial have been prescribed to his authority. Though the ecclesiastic power be so dangerous in a republic, yet it is extremely proper in a monarchy, especially of the absolute kind. What would become of Spain and Portugal, since the subversion of their laws, were it not for this only barrier against the incursions of arbitrary power? A barrier ever useful when there is no other: for since a despotic government is productive of the most dreadful calamities to human nature, the very evil that restrains it is beneficial to the subject. In the same manner as the ocean, threatening to overflow the whole earth, is stopped by weeds and pebbles that lie scattered along the shore, so monarchs, whose power seems unbounded, are restrained by the smallest obstacles, and suffer their natural pride to be subdued by supplication and prayer. The English, to favour their liberty, have abolished all the intermediate powers of which their monarchy was composed. They have a great deal of reason to be jealous of this liberty; were they ever to be so unhappy as to lose it, they would be one of the most servile nations upon earth. Mr. Law, through ignorance both of a republican and monarchical constitution, was one of the greatest promoters of absolute power ever known in Europe. Besides the violent and extraordinary changes owing to his direction, he would fain suppress all the intermediate ranks, and abolish the political communities. He was dissolving[25] the monarchy by his chimerical reimbursements, and seemed as if he even wanted to redeem the constitution. It is not enough to have intermediate powers in a monarchy; there must be also a depositary of the laws. This depositary can only be the judges of the supreme courts of justice, who promulgate the new laws, and revive the obsolete. The natural ignorance of the nobility, their indolence and contempt of civil government, require that there should be a body invested with the power of reviving and executing the laws, which would be otherwise buried in oblivion. The prince's council are not a proper depositary. They are naturally the depositary of the momentary will of the prince, and not of the fundamental laws. Besides, the prince's council is continually changing; it is neither permanent nor numerous; neither has it a sufficient share of the confidence of the people; consequently it is capable of setting them right in difficult conjunctures, or of reducing them to proper obedience. Despotic governments, where there are no fundamental laws, have no such kind of depositary. Hence it is that religion has generally so much influence in those countries, because it forms a kind of permanent depositary; and if this cannot be said of religion, it may of the customs that are respected instead of laws. 5. Of the Laws in relation to the Nature of a despotic Government. From the nature of despotic power it follows that the single person, invested with this power, commits the execution of it also to a single person. A man whom his senses continually inform that he himself is everything and that his subjects are nothing, is naturally lazy, voluptuous, and ignorant. In consequence of this, he neglects the management of public affairs. But were he to commit the administration to many, there would be continual disputes among them; each would form intrigues to be his first slave; and he would be obliged to take the reins into his own hands. It is, therefore, more natural for him to resign it to a vizir,[26] and to invest him with the same power as himself. The creation of a vizir is a fundamental law of this government. It is related of a pope that he had started an infinite number of difficulties against his election, from a thorough conviction of his incapacity. At length he was prevailed on to accept of the pontificate, and resigned the administration entirely to his nephew. He was soon struck with surprise, and said, "I should never have thought that these things were so easy." The same may be said of the princes of the East, who, being educated in a prison where eunuchs corrupt their hearts and debase their understandings, and where they are frequently kept ignorant even of their high rank, when drawn forth in order to be placed on the throne, are at first confounded: but as soon as they have chosen a vizir, and abandoned themselves in their seraglio to the most brutal passions; pursuing, in the midst of a prostituted court, every capricious extravagance, they would never have dreamed that they could find matters so easy. The more extensive the empire, the larger the seraglio; and consequently the more voluptuous the prince. Hence the more nations such a sovereign has to rule, the less he attends to the cares of government; the more important his affairs, the less he makes them the subject of his deliberations. ______ 1. Compare Aristotle, Politics, vi. 2. 2. Declamations, 17, 18. 3. See the Considerations on the Causes of the Grandeur and Decline of the Romans, 9. 4. Pp. 691, 693, ed. Wechel, 1596. 5. Bk. i. 6. Bk. iv, art. 15 et seq. 7. See in the Considerations on the Causes of the Grandeur and Decline of the Romans, 9, how this spirit of Servius Tullius was preserved in the republic. 8. Dionysius Halicarnassus, Eulogium of Isocrates, ii, p. 97, ed. Wechel. Pollux, viii. 10, art. 130. 9. See Aristotle's Politics, ii. 12. 10. Ibid, iv. 9. 11. See the oration of Demosthenes, De Falsa legat., and the oration against Timarchus. 12. They used even to draw two tickets for each place, one which gave the place, and the other which named the person who was to succeed, in case the first was rejected. 13. De Leg., i, iii. 14. They were called leges tabulares; two tablets were presented to each citizen, the first marked with an A, for Antique, or I forbid it; and the other with an U and an R, for Uti rogas, or Be it as you desire. 15. At Athens the people used to lift up their hands. 16. As at Venice. 17. The thirty tyrants at Athens ordered the suffrages of the Areopagites to be public, in order to manage them as they pleased. -- Lysias, Orat. contra Agorat. 8. 18. See Dionysius Halicarnassus, iv, ix. 19. See Mr. Addison, Travels to Italy, p. 16. 20. They were named at first by the consuls. 21. This is what ruined the republic of Rome. See Considerations on the Causes of the Grandeur and Decline of the Romans, 14, 16. 22. Tournefort, Voyages. 23. At Lucca the magistrates are chosen only for two months. 24. Diodorus, xviii, p. 601, ed. Rhodoman. 25. Ferdinand, king of Aragon, made himself grand master of the orders, and that alone changed the constitution. 26. The Eastern kings are never without vizirs, says Sir John Chardin. ------------------------------------------------------------------------ Book III. Of the Principles of the Three Kinds of Government 1. Difference between the Nature and Principle of Government. Having examined the laws in relation to the nature of each government, we must investigate those which relate to its principle. There is this difference between the nature and principle[1] of government, that the former is that by which it is constituted, the latter that by which it is made to act. One is its particular structure, and the other the human passions which set it in motion. Now, laws ought no less to relate to the principle than to the nature of each government. We must, therefore, inquire into this principle, which shall be the subject of this third book. 2. Of the Principle of different Governments. I have already observed that it is the nature of a republican government that either the collective body of the people, or particular families, should be possessed of the supreme power; of a monarchy, that the prince should have this power, but in the execution of it should be directed by established laws; of a despotic government, that a single person should rule according to his own will and caprice. This enables me to discover their three principles; which are thence naturally derived. I shall begin with a republican government, and in particular with that of democracy. 3. Of the Principle of Democracy. There is no great share of probity necessary to support a monarchical or despotic government. The force of laws in one, and the prince's arm in the other, are sufficient to direct and maintain the whole. But in a popular state, one spring more is necessary, namely, virtue. What I have here advanced is confirmed by the unanimous testimony of historians, and is extremely agreeable to the nature of things. For it is clear that in a monarchy, where he who commands the execution of the laws generally thinks himself above them, there is less need of virtue than in a popular government, where the person entrusted with the execution of the laws is sensible of his being subject to their direction. Clear is it also that a monarch who, through bad advice or indolence, ceases to enforce the execution of the laws, may easily repair the evil; he has only to follow other advice; or to shake off this indolence. But when, in a popular government, there is a suspension of the laws, as this can proceed only from the corruption of the republic, the state is certainly undone. A very droll spectacle it was in the last century to behold the impotent efforts of the English towards the establishment of democracy. As they who had a share in the direction of public affairs were void of virtue; as their ambition was inffamed by the success of the most daring of their members;[2] as the prevailing parties were successively animated by the spirit of faction, the government was continually changing: the people, amazed at so many revolutions, in vain attempted to erect a commonwealth. At length, when the country had undergone the most violent shocks, they were obliged to have recourse to the very government which they had so wantonly proscribed. When Sylla thought of restoring Rome to her liberty, this unhappy city was incapable of receiving that blessing. She had only the feeble remains of virtue, which were continually diminishing. Instead of being roused from her lethargy by C?sar, Tiberius, Caius Claudius, Nero, and Domitian, she riveted every day her chains; if she struck some blows, her aim was at the tyrant, not at the tyranny. The politic Greeks, who lived under a popular government, knew no other support than virtue. The modern inhabitants of that country are entirely taken up with manufacture, commerce, finances, opulence, and luxury. When virtue is banished, ambition invades the minds of those who are disposed to receive it, and avarice possesses the whole community. The objects of their desires are changed; what they were fond of before has become indifferent; they were free while under the restraint of laws, but they would fain now be free to act against law; and as each citizen is like a slave who has run away from his master, that which was a maxim of equity he calls rigour; that which was a rule of action he styles constraint; and to precaution he gives the name of fear. Frugality, and not the thirst of gain, now passes for avarice. Formerly the wealth of individuals constituted the public treasure; but now this has become the patrimony of private persons. The members of the commonwealth riot on the public spoils, and its strength is only the power of a few, and the licence of many. Athens was possessed of the same number of forces when she triumphed so gloriously as when with such infamy she was enslaved. She had twenty thousand citizens[3] when she defended the Greeks against the Persians, when she contended for empire with Sparta, and invaded Sicily. She had twenty thousand when Demetrius Phalereus numbered them[4] as slaves are told by the head in a market-place. When Philip attempted to lord it over Greece, and appeared at the gates of Athens[5] she had even then lost nothing but time. We may see in Demosthenes how difficult it was to awaken her; she dreaded Philip, not as the enemy of her liberty, but of her pleasures.[6] This famous city, which had withstood so many defeats, and having been so often destroyed had as often risen out of her ashes, was overthrown at Ch?ronea, and at one blow deprived of all hopes of resource. What does it avail her that Philip sends back her prisoners, if he does not return her men? It was ever after as easy to triumph over the forces of Athens as it had been difficult to subdue her virtue. How was it possible for Carthage to maintain her ground? When Hannibal, upon his being made pr?tor, endeavoured to hinder the magistrates from plundering the republic, did not they complain of him to the Romans? Wretches, who would fain be citizens without a city, and be beholden for their riches to their very destroyers! Rome soon insisted upon having three hundred of their principal citizens as hostages; she obliged them next to surrender their arms and ships; and then she declared war.[7] From the desperate efforts of this defenceless city, one may judge of what she might have performed in her full vigour, and assisted by virtue. 4. Of the Principle of Aristocracy. As virtue is necessary in a popular government, it is requisite also in an aristocracy. True it is that in the latter it is not so absolutely requisite. The people, who in respect to the nobility are the same as the subjects with regard to a monarch, are restrained by their laws. They have, therefore, less occasion for virtue than the people in a democracy. But how are the nobility to be restrained? They who are to execute the laws against their colleagues will immediately perceive that they are acting against themselves. Virtue is therefore necessary in this body, from the very nature of the constitution. An aristocratic government has an inherent vigour, unknown to democracy. The nobles form a body, who by their prerogative, and for their own particular interest, restrain the people; it is sufficient that there are laws in being to see them executed. But easy as it may be for the body of the nobles to restrain the people, it is difficult to restrain themselves.[8] Such is the nature of this constitution, that it seems to subject the very same persons to the power of the laws, and at the same time to exempt them. Now such a body as this can restrain itself only in two ways; either by a very eminent virtue, which puts the nobility in some measure on a level with the people, and may be the means of forming a great republic; or by an inferior virtue, which puts them at least upon a level with one another, and upon this their preservation depends. Moderation is therefore the very soul of this government; a moderation, I mean, founded on virtue, not that which proceeds from indolence and pusillanimity. 5. That Virtue is not the Principle of a Monarchical Government. In monarchies, policy effects great things with as little virtue as possible. Thus in the nicest machines, art has reduced the number of movements, springs, and wheels. The state subsists independently of the love of our country, of the thirst of true glory, of self-denial, of the sacrifice of our dearest interests, and of all those heroic virtues which we admire in the ancients, and to us are known only by tradition. The laws supply here the place of those virtues; they are by no means wanted, and the state dispenses with them: an action performed here in secret is in some measure of no consequence. Though all crimes be in their own nature public, yet there is a distinction between crimes really public and those that are private, which are so called because they are more injurious to individuals than to the community. Now in republics private crimes are more public, that is, they attack the constitution more than they do individuals; and in monarchies, public crimes are more private, that is, they are more prejudicial to private people than to the constitution. I beg that no one will be offended with what I have been saying; my observations are founded on the unanimous testimony of historians. I am not ignorant that virtuous princes are so very rare; but I venture to affirm that in a monarchy it is extremely difficult for the people to be virtuous.[9] Let us compare what the historians of all ages have asserted concerning the courts of monarchs; let us recollect the conversations and sentiments of people of all countries, in respect to the wretched character of courtiers, and we shall find that these are not airy speculations, but truths confirmed by a sad and melancholy experience. Ambition in idleness; meanness mixed with pride; a desire of riches without industry; aversion to truth; flattery, perfidy, violation of engagements, contempt of civil duties, fear of the prince's virtue, hope from his weakness, but, above all, a perpetual ridicule cast upon virtue, are, I think, the characteristics by which most courtiers in all ages and countries have been constantly distinguished. Now, it is exceedingly difficult for the leading men of the nation to be knaves, and the inferior sort to be honest; for the former to be cheats, and the latter to rest satisfied with being only dupes. But if there should chance to be some unlucky honest man[10] among the people. Cardinal Richelieu, in his political testament, seems to hint that a prince should take care not to employ him.[11] So true is it that virtue is not the spring of this government! It is not indeed excluded, but it is not the spring of government. 6. In what Manner Virtue is supplied in a Monarchical Government. But it is high time for me to have done with this subject, lest I should be suspected of writing a satire against monarchical government. Far be it from me; if monarchy wants one spring, it is provided with another. Honour, that is, the prejudice of every person and rank, supplies the place of the political virtue of which I have been speaking, and is everywhere her representative: here it is capable of inspiring the most glorious actions, and, joined with the force of laws, may lead us to the end of government as well as virtue itself. Hence, in well-regulated monarchies, they are almost all good subjects, and very few good men; for to be a good man[12] a good intention is necessary,[13] and we should love our country, not so much on our own account, as out of regard to the community. 7. Of the Principle of Monarchy. A monarchical government supposes, as we have already observed, pre-eminences and ranks, as likewise a noble descent. Now since it is the nature of honour to aspire to preferments and titles, it is properly placed in this government. Ambition is pernicious in a republic. But in a monarchy it has some good effects; it gives life to the government, and is attended with this advantage, that it is in no way dangerous, because it may be continually checked. It is with this kind of government as with the system of the universe, in which there is a power that constantly repels all bodies from the centre, and a power of gravitation that attracts them to it. Honour sets all the parts of the body politic in motion, and by its very action connects them; thus each individual advances the public good, while he only thinks of promoting his own interest. True it is that, philosophically speaking, it is a false honour which moves all the parts of the government; but even this false honour is as useful to the public as true honour could possibly be to private persons. Is it not very exacting to oblige men to perform the most difficult actions, such as require an extraordinary exertion of fortitude and resolution, without other recompense than that of glory and applause? 8. That Honour is not the Principle of Despotic Government. Honour is far from being the principle of despotic government: mankind being here all upon a level, no one person can prefer himself to another; and as on the other hand they are all slaves, they can give themselves no sort of preference. Besides, as honour has its laws and rules, as it knows not how to submit; as it depends in a great measure on a man's own caprice, and not on that of another person; it can be found only in countries in which the constitution is fixed, and where they are governed by settled laws. How can despotism abide with honour? The one glories in the contempt of life; and the other is founded on the power of taking it away. How can honour, on the other hand, bear with despotism? The former has its fixed rules, and peculiar caprices; but the latter is directed by no rule, and its own caprices are subversive of all others. Honour, therefore, a thing unknown in arbitrary governments, some of which have not even a proper word to express it,[14] is the prevailing principle in monarchies; here it gives life to the whole body politic, to the laws, and even to the virtues themselves. 9. Of the Principle of Despotic Government. As virtue is necessary in a republic, and in a monarchy honour, so fear is necessary in a despotic government: with regard to virtue, there is no occasion for it, and honour would be extremely dangerous. Here the immense power of the prince devolves entirely upon those whom he is pleased to entrust with the administration. Persons capable of setting a value upon themselves would be likely to create disturbances. Fear must therefore depress their spirits, and extinguish even the least sense of ambition. A moderate government may, whenever it pleases, and without the least danger, relax its springs. It supports itself by the laws, and by its own internal strength. But when a despotic prince ceases for one single moment to uplift his arm, when he cannot instantly demolish those whom he has entrusted with the first employments,[15] all is over: for as fear, the spring of this government, no longer subsists, the people are left without a protector. It is probably in this sense the Cadis maintained that the Grand Seignior was not obliged to keep his word or oath, when he limited thereby his authority.[16] It is necessary that the people should be judged by laws, and the great men by the caprice of the prince, that the lives of the lowest subject should be safe, and the pasha's head ever in danger. We cannot mention these monstrous governments without horror. The Sophi of Persia, dethroned in our days by Mahomet, the son of Miriveis, saw the constitution subverted before this resolution, because he had been too sparing of blood.[17] History informs us that the horrid cruelties of Domitian struck such a terror into the governors that the people recovered themselves a little during his reign.[18] Thus a torrent overflows one side of a country, and on the other leaves fields untouched, where the eye is refreshed by the prospect of fine meadows. 10. Difference of Obedience in Moderate and Despotic Governments. In despotic states, the nature of government requires the most passive obedience; and when once the prince's will is made known, it ought infallibly to produce its effect. Here they have no limitations or restrictions, no mediums, terms, equivalents, or remonstrances; no change to propose: man is a creature that blindly submits to the absolute will of the sovereign. In a country like this they are no more allowed to represent their apprehensions of a future danger than to impute their miscarriage to the capriciousness of fortune. Man's portion here, like that of beasts, is instinct, compliance, and punishment. Little does it then avail to plead the sentiments of nature, filial respect, conjugal or parental tenderness, the laws of honour, or want of health; the order is given, and, that is sufficient. In Persia, when the king has condemned a person, it is no longer lawful to mention his name, or to intercede in his favour. Even if the prince were intoxicated, or non compos, the decree must be executed;[19] otherwise he would contradict himself, and the law admits of no contradiction. This has been the way of thinking in that country in all ages; as the order which Ahasuerus gave, to exterminate the Jews, could not be revoked, they were allowed the liberty of defending themselves. One thing, however, may be sometimes opposed to the prince's will,[20] namely, religion. They will abandon, nay they will slay a parent, if the prince so commands; but he cannot oblige them to drink wine. The laws of religion are of a superior nature, because they bind the sovereign as well as the subject. But with respect to the law of nature, it is otherwise; the prince is no longer supposed to be a man. In monarchical and moderate states, the power is limited by its very spring, I mean by honour, which, like a monarch, reigns over the prince and his people. They will not allege to their sovereign the laws of religion; a courtier would be apprehensive of rendering himself ridiculous. But the laws of honour will be appealed to on all occasions. Hence arise the restrictions necessary to obedience; honour is naturally subject to whims, by which the subject's submission will be ever directed. Though the manner of obeying be different in these two kinds of government, the power is the same. On which side soever the monarch turns, he inclines the scale, and is obeyed. The whole difference is that in a monarchy the prince receives instruction, at the same time that his ministers have greater abilities, and are more versed in public affairs, than the ministers of a despotic government. 11. Reflections on the preceding Chapters. Such are the principles of the three sorts of government: which does not imply that in a particular republic they actually are, but that they ought to be, virtuous; nor does it prove that in a particular monarchy they are actuated by honour, or in a particular despotic government by fear; but that they ought to be directed by these principles, otherwise the government is imperfect. ______ 1. This is a very important distinction, whence I shall draw many consequences; for it is the key of an infinite number of laws. 2. Cromwell. 3. Plutarch, Pericles; Plato, in Critias. 4. She had at that time twenty-one thousand citizens, ten thousand strangers, and four hundred thousand slaves. See Athen?us, vi. 5. She had then twenty thousand citizens. See Demosthenes in Aristog. 6. They had passed a law, which rendered it a capital crime for any one to propose applying the money designed for the theatres to military 7. This lasted three years. 8. Public crimes may be punished, because it is here a common concern; but private crimes will go unpunished, because it is the common interest not to punish them. 9. I speak here of political virtue, which is also moral virtue as it is directed to the public good; very little of private moral virtue, and not at all of that virtue which relates to revealed truths. This will appear better in v. 2. 10. This is to be understood in the sense of the preceding note. 11. We must not, says he, employ people of mean extraction; they are too rigid and morose. -- Testament Polit., 4. 12. This word good man is understood here in a political sense only. 13. See Footnote 1. 14. See Perry, p. 447. 15. As it often happens in a military aristocracy. 16. Ricaut on the Ottoman Empire. I, ii. 17. See the history of this revolution by Father du Cerceau. 18. Suetonius, Life of Domitian, viii. His was a military constitution, which is one of the species of despotic government. 19. See Sir John Chardin. 20. Ibid. ------------------------------------------------------------------------ Book IV. That the Laws of Education Ought to Be in Relation to the Principles of Government 1. Of the Laws of Education. The laws of education are the first impressions we receive; and as they prepare us for civil life, every private family ought to be governed by the plan of that great household which comprehends them all. If the people in general have a principle, their constituent parts, that is, the several families, will have one also. The laws of education will be therefore different in each species of government: in monarchies they will have honour for their object; in republics, virtue; in despotic governments, fear. 2. Of Education in Monarchies. In monarchies the principal branch of education is not taught in colleges or academies. It commences, in some measure, at our setting out in the world; for this is the school of what we call honour, that universal preceptor which ought everywhere to be our guide. Here it is that we constantly hear three rules or maxims, viz., that we should have a certain nobleness in our virtues, a kind of frankness in our morals, and a particular politeness in our behaviour. The virtues we are here taught are less what we owe to others than to ourselves; they are not so much what draws us towards society, as what distinguishes us from our fellow-citizens. Here the actions of men are judged, not as virtuous, but as shining; not as just, but as great; not as reasonable, but as extraordinary. When honour here meets with anything noble in our actions, it is either a judge that approves them, or sophist by whom they are excused. It allows of gallantry when united with the idea of sensible affection, or with that of conquest; this is the reason why we never meet with so strict a purity of morals in monarchies as in republican governments. It allows of cunning and craft, when joined with the notion of greatness of soul or importance of affairs; as, for instance, in politics, with finesses of which it is far from being offended. It does not forbid adulation, save when separated from the idea of a large fortune, and connected only with the sense of our mean condition. With regard to morals, I have observed that the education of monarchies ought to admit of a certain frankness and open carriage. Truth, therefore, in conversation is here a necessary point. But is it for the sake of truth? By no means. Truth is requisite only because a person habituated to veracity has an air of boldness and freedom. And indeed a man of this stamp seems to lay a stress only on the things themselves, not on the manner in which they are received. Hence it is that in proportion as this kind of frankness is commended, that of the common people is despised, which has nothing but truth and simplicity for its object. In fine, the education of monarchies requires a certain politeness of behaviour. Man, a sociable animal, is formed to please in society; and a person that would break through the rules of decency, so as to shock those he conversed with, would lose the public esteem, and become incapable of doing any good. But politeness, generally speaking, does not derive its origin from so pure a source. It arises from a desire of distinguishing ourselves. It is pride that renders us polite; we are flattered with being taken notice of for behaviour that shows we are not of a mean condition, and that we have not been bred with those who in all ages are considered the scum of the people. Politeness, in monarchies, is naturalised at court. One man excessively great renders everybody else little. Hence that regard which is paid to our fellow-subjects; hence that politeness, equally pleasing to those by whom, as to those towards whom, it is practised, because it gives people to understand that a person actually belongs, or at least deserves to belong, to the court. A courtly air consists in quitting a real for a borrowed greatness. The latter pleases the courtier more than the former. It inspires him with a certain disdainful modesty, which shows itself externally, but whose pride insensibly diminishes in proportion to its distance from the source of this greatness. At court we find a delicacy of taste in everything -- a delicacy arising from the constant use of the superfluities of life, from the variety, and especially the satiety, of pleasures, from the multiplicity and even confusion of fancies, which, if they are but agreeable, are sure of being well received. These are the things which properly fall within the province of education, in order to form what we call a man of honour, a man possessed of all the qualities and virtues requisite in this kind of government. Here it is that honour interferes with everything, mixing even with people's manner of thinking, and directing their very principles. To this whimsical honour it is owing that the virtues are only just what it pleases; it adds rules of its own invention to everything prescribed to us; it extends or limits our duties according to its own fancy, whether they proceed from religion, politics, or morality. There is nothing so strongly inculcated in monarchies, by the laws, by religion and honour, as submission to the prince's will; but this very honour tells us that the prince never ought to command a dishonourable action, because this would render us incapable of serving him. Crillon refused to assassinate the Duke of Guise, but offered to fight him. After the massacre of St. Bartholomew, Charles IX, having sent orders to the governors in the several provinces for the Huguenots to be murdered, Viscount Dorte, who commanded at Bayonne, wrote thus to the king:[1] "Sire, among the inhabitants of this town, and your majesty's troops, I could not find so much as one executioner; they are honest citizens and brave soldiers. We jointly, therefore, beseech your majesty to command our arms and lives in things that are practicable." This great and generous soul looked upon a base action as a thing impossible. There is nothing that honour more strongly recommends to the nobility than to serve their prince in a military capacity. And, indeed, this is their favourite profession, because its dangers, its success, and even its miscarriages are the road to grandeur. Yet this very law of its own making honour chooses to explain: and in case of any affront, it requires or permits us to retire. It insists also that we should be at liberty either to seek or to reject employments, a liberty which it prefers even to an ample fortune. Honour therefore has its supreme laws, to which education is obliged to conform.[2] The chief of these are that we are permitted to set a value upon our fortune, but are absolutely forbidden to set any upon our lives. The second is that, when we are raised to a post or preferment, we should never do or permit anything which may seem to imply that we look upon ourselves as inferior to the rank we hold. The third is that those things which honour forbids are more rigorously forbidden, when the laws do not concur in the prohibition; and those it commands are more strongly insisted upon, when they happen not to be commanded by law. 3. Of Education in a Despotic Government. As education in monarchies tends to raise and ennoble the mind, in despotic governments its only aim is to debase it. Here it must necessarily be servile; even in power such an education will be an advantage, because every tyrant is at the same time a slave. Excessive obedience supposes ignorance in the person that obeys: the same it supposes in him that commands, for he has no occasion to deliberate, to doubt, to reason; he has only to will. In despotic states, each house is a separate government. As education, therefore, consists chieflv in social converse, it must be here very much limited; all it does is to strike the heart with fear, and to imprint on the understanding a very simple notion of a few principles of religion. Learning here proves dangerous, emulation fatal; and as to virtue, Aristotle[3] cannot think that there is any one virtue belonging to slaves; if so, education in despotic countries is confined within a very narrow compass. Here, therefore, education is in some measure needless: to give something, one must take away everything, and begin with making a bad subject in order to make a good slave. For why should education take pains in forming a good citizen, only to make him share in the public misery? If he loves his country, he will strive to relax the springs of government; if he miscarries he will be undone; if he succeeds, he must expose himself, the prince, and his country to ruin. 4. Difference between the Effects of Ancient and Modern Education. Most of the ancients lived under governments that had virtue for their principle; and when this was in full vigour they performed actions unusual in our times, and at which our narrow minds are astonished. Another advantage their education possessed over ours was that it never could be effaced by contrary impressions. Epaminondas, the last year of his life, said, heard, beheld, and performed the very same things as at the age in which he received the first principles of his education. In our days we receive three different or contrary educations, namely, of our parents, of our masters, and of the world. What we learn in the latter effaces all the ideas of the former. This, in some measure, arises from the contrast we experience between our religious and worldly engagements, a thing unknown to the ancients. 5. Of Education in a Republican Government. It is in a republican government that the whole power of education is required. The fear of despotic governments naturally arises of itself amidst threats and punishments; the honour of monarchies is favoured by the passions, and favours them in its turn; but virtue is a self-renunciation, which is ever arduous and painful. This virtue may be defined as the love of the laws and of our country. As such love requires a constant preference of public to private interest, it is the source of all private virtues; for they are nothing more than this very preference itself. This love is peculiar to democracies. In these alone the government is entrusted to private citizens. Now a government is like everything else: to preserve it we must love it. Has it ever been known that kings were not fond of monarchy, or that despotic princes hated arbitrary power? Everything therefore depends on establishing this love in a republic; and to inspire it ought to be the principal business of education: but the surest way of instilling it into children is for parents to set them an example. People have it generally in their power to communicate their ideas to their children; but they are still better able to transfuse their passions. If it happens otherwise, it is because the impressions made at home are effaced by those they have received abroad. It is not the young people that degenerate; they are not spoiled till those of maturer age are already sunk into corruption. 6. Of some Institutions among the Greeks. The ancient Greeks, convinced of the necessity that people who live under a popular government should be trained up to virtue, made very singular institutions in order to inspire it. Upon seeing in the life of Lycurgus the laws that legislator gave to the Laced?monians, I imagine I am reading the history of the Sevarambes. The laws of Crete were the model of those of Sparta; and those of Plato reformed them. Let us reflect here a little on the extensive genius with which those legislators must have been endowed, to perceive that by striking at received customs, and by confounding all manner of virtues, they should display their wisdom to the universe. Lycurgus, by blending theft with the spirit of justice, the hardest servitude with excess of liberty, the most rigid sentiments with the greatest moderation, gave stability to his city. He seemed to deprive her of all resources, such as arts, commerce, money, and walls; ambition prevailed among the citizens without hopes of improving their fortune; they had natural sentiments without the tie of a son, husband, or father; and chastity was stripped even of modesty and shame. This was the road that led Sparta to grandeur and glory; and so infallible were these institutions, that it signified nothing to gain a victory over that republic without subverting her polity.[4] By these laws Crete and Laconia were governed. Sparta was the last that fell a prey to the Macedonians, and Crete to the Romans.[5] The Samnites had the same institutions, which furnished those very Romans with the subject of four-and-twenty triumphs.[6] A character so extraordinary in the institutions of Greece has shown itself lately in the dregs and corruptions of modern times.[7] A very honest legislator has formed a people to whom probity seems as natural as bravery to the Spartans. Mr. Penn is a real Lycurgus: and though the former made peace his principal aim, as the latter did war, yet they resemble one another in the singular way of living to which they reduced their people, in the ascendant they had over free men, in the prejudices they overcame, and in the passions which they subdued. Another example we have from Paraguay. This has been the subject of an invidious charge against a society that considers the pleasure of commanding as the only happiness in life: but it will be ever a glorious undertaking to render a government subservient to human happiness.[8] It is glorious indeed for this society to have been the first in pointing out to those countries the idea of religion joined with that of humanity. By repairing the devastations of the Spaniards, she has begun to heal one of the most dangerous wounds that the human species ever received. An exquisite sensibility to whatever she distinguishes by the name of honour, joined to her zeal for a religion which is far more humbling in respect to those who receive than to those who preach its doctrines, has set her upon vast undertakings, which she has accomplished with success. She has drawn wild people from their woods, secured them a maintenance, and clothed their nakedness; and had she only by this step improved the industry of mankind, it would have been sufficient to eternise her fame. They who shall attempt hereafter to introduce like institutions must establish the community of goods as prescribed in Plato's republic; that high respect he required for the gods; that separation from strangers, for the preservation of morals; and an extensive commerce carried on by the community, and not by private citizens: they must give our arts without our luxury, and our wants without our desires. They must proscribe money, the effects of which are to swell people's fortunes beyond the bounds prescribed by nature; to learn to preserve for no purpose what has been idly hoarded up; to multiply without end our desires; and to supply the sterility of nature, from whom we have received very scanty means of inflaming our passions, and of corrupting each other. "The Epidamnians,[9] perceiving their morals depraved by conversing with barbarians, chose a magistrate for making all contracts and sales in the name and behalf of the city." Commerce then does not corrupt the constitution, and the constitution does not deprive society of the advantages of commerce. 7. In what Cases these singular Institutions may be of Service. Institutions of this kind may be proper in republics, because they have virtue for their principle; but to excite men to honour in monarchies, or to inspire fear in despotic governments, less trouble is necessary. Besides, they can take place but in a small state,[10] in which there is a possibility of general education, and of training up the body of the people like a single family. The laws of Minos, of Lycurgus, and of Plato suppose a particular attention and care, which the citizens ought to have over one another's conduct. But an attention of this kind cannot be expected in the confusion and multitude of affairs in which a large nation is entangled. In institutions of this kind, money, as we have above observed, must be banished. But in great societies, the multiplicity, variety, embarrassment, and importance of affairs, as well as the facility of purchasing, and the slowness of exchange, require a common measure. In order to support or extend our power, we must be possessed of the means to which, by the unanimous consent of mankind, this power is annexed. 8. Explanation of a Paradox of the Ancients in respect to Manners. That judicious writer, Polybius, informs us that music was necessary to soften the manners of the Arcadians, who lived in a cold, gloomy country; that the inhabitants of Cynete, who slighted music, were the cruellest of all the Greeks, and that no other town was so immersed in luxury and debauchery. Plato[11] is not afraid to affirm that there is no possibility of making a change in music without altering the frame of government. Aristotle, who seems to have written his Politics only in order to contradict Plato, agrees with him, notwithstanding, in regard to the power and influence of music over the manners of the people.[12] This was also the opinion of Theophrastus, of Plutarch[13] and of all the ancients -- an opinion grounded on mature reflection; being one of the principles of their polity.[14] Thus it was they enacted laws, and thus they required that cities should be governed. This I fancy must be explained in the following manner. It is observable that in the cities of Greece, especially those whose .principal object was war, all lucrative arts and professions were considered unworthy of a freeman. "Most arts," says Xenophon,[15] "corrupt and enervate the bodies of those that exercise them; they oblige them to sit in the shade, or near the fire. They can find no leisure, either for their friends or for the republic." It was only by the corruption of some democracies that artisans became freemen. This we learn from Aristotle,[16] who maintains that a well-regulated republic will never give them the right and freedom of the city.[17] Agriculture was likewise a servile profession, and generally practised by the inhabitants of conquered countries, such as the Helotes among the Laced?monians, the Periecians among the Cretans, the Penestes among the Thessalians, and other conquered[18] people in other republics. In fine, every kind of low commerce[19] was infamous among the Greeks; as it obliged a citizen to serve and wait on a slave, on a lodger, or a stranger. This was a notion that clashed with the spirit of Greek liberty; hence Plato[20] in his Laws orders a citizen to be punished if he attempts to concern himself with trade. Thus in the Greek republics the magistrates were extremely embarrassed. They would not have the citizens apply themselves to trade, to agriculture, or to the arts, and yet they would not have them idle.[21] They found, therefore, employment for them in gymnic and military exercises; and none else were allowed by their institution.[22] Hence the Greeks must be considered as a society of wrestlers and boxers. Now, these exercises having a natural tendency to render people hardy and fierce, there was a necessity for tempering them with others that might soften their manners.[23] For this purpose, music, which influences the mind by means of the corporeal organs, was extremely proper. It is a kind of medium between manly exercises, which harden the body, and speculative sciences, which are apt to render us unsociable and sour. It cannot be said that music inspired virtue, for this would be inconceivable: but it prevented the effects of a savage institution, and enabled the soul to have such a share in the education as it could never have had without the assistance of harmony. Let us suppose among ourselves a society of men so passionately fond of hunting as to make it their sole employment; they would doubtless contract thereby a kind of rusticity and fierceness. But if they happen to imbibe a taste for music, we should quickly perceive a sensible difference in their customs and manners. In short, the exercises used by the Greeks could raise but one kind of passions, viz., fierceness, indignation, and cruelty. But music excites all these; and is likewise able to inspire the soul with a sense of pity, lenity, tenderness, and love. Our moral writers, who declaim so vehemently against the stage, sufficiently demonstrate the power of music over the mind. If the society above mentioned were to have no other music than that of drums, and the sound of the trumpet, would it not be more difficult to accomplish this end than by the more melting tones of softer harmony? The ancients were therefore in the right when, under particular circumstances, they preferred one mode to another in regard to manners. But some will ask, why should music be pitched upon as preferable to any other entertainment? It is because of all sensible pleasures there is none that less corrupts the soul. We blush to read in Plutarch[24] that the Thebans, in order to soften the manners of their youth, authorised by law a passion which ought to be proscribed by all nations. ______ 1. See d'Aubigny's History. 2. We mention here what actually is, and not what ought to be; honour is a prejudice, which religion sometimes endeavours to remove, and at other times to regulate. 3. Politics, i. 13. 4. Philopoemen obliged the Laced?monians to change their manner of educating their children, being convinced that if he did not take this measure they would always be noted for their magnanimity. -- Plutarch, Philopoemen. See Livy, xxxviii. 5. She defended her laws and liberty for the space of three years. See the 98th, 99th, and 100th book of Livy, in Florus's epitome. She made a braver resistance than the greatest kings. 6. Florus, i. 16. 7. In fece Romuli. -- Cicero, Letters to Atticus, ii. 1. 8. The Indians of Paraguay do not depend on any particular lord; they pay only a fifth of the taxes, and are allowed the use of firearms to defend themselves. 9. Plutarch in his Questions Concerning the Greek Affairs, xxix. 10. Such as were formerly the cities of Greece. 11. Republic, iv. 12. Politics, viii. 5. 13. Pelopidas. 14. Plato, in his seventh book of Laws, says that the pr?fectures of music and gymnic exercises are the most important employments in the city; and, in his Republic, iii, Damon will tell you, says he, what sounds are capable of corrupting the mind with base sentiments, or of inspiring the contrary virtues. 15. Memorabilia, v. 16. Politics, iii. 4. 17. Diophantes, says Aristotle, Politics, ii. 7, made a law formerly at Athens, that artisans should be slaves to the republic. 18. Plato, likewise, and Aristotle require slaves to till the land, Laws, viii. Politics, vii. 10. True it is that agriculture was not everywhere exercised by slaves: on the contrary, Aristotle observes the best republics were those in which the citizens themselves tilled the land: but this was brought about by the corruption of the ancient governments, which had become democratic: for in earlier times the cities of Greece were subject to an aristocratic government. 19. Cauponatio. 20. Book v. 21. Aristotle, Politics, vii-viii. 22. Ibid., viii. 3. 23. Aristotle observes that the children of the Laced?monians, who began these exercises at a very tender age, contracted thence too great a ferocity and rudeness of behaviour. -- Ibid., viii. 4. 24. Pelopidas. ------------------------------------------------------------------------ Book V. That the Laws Given by the Legislator Ought to Be in Relation to the Principle of Government 1. Idea of this Book. That the laws of education should relate to the principle of each government has been shown in the preceding book. Now the same may be said of those which the legislator gives to the whole society. The relation of laws to this principle strengthens the several springs of government; and this principle derives thence, in its turn, a new degree of vigour. And thus it is in mechanics, that action is always followed by reaction. Our design is, to examine this relation in each government, beginning with the republican state, the principle of which is virtue. 2. What is meant by Virtue in a political State. Virtue in a republic is a most simple thing: it is a love of the republic; it is a sensation, and not a consequence of acquired knowledge: a sensation that may be felt by the meanest as well as by the highest person in the state. When the common people adopt good maxims, they adhere to them more steadily than those whom we call gentlemen. It is very rarely that corruption commences with the former: nay, they frequently derive from their imperfect light a stronger attachment to the established laws and customs. The love of our country is conducive to a purity of morals, and the latter is again conducive to the former. The less we are able to satisfy our private passions, the more we abandon ourselves to those of a general nature. How comes it that monks are so fond of their order? It is owing to the very cause that renders the order insupportable. Their rule debars them from all those things by which the ordinary passions are fed; there remains therefore only this passion for the very rule that torments them. The more austere it is, that is, the more it curbs their inclinations, the more force it givfes to the only passion left them. 3. What is meant by a Love of the Republic in a Democracy. A love of the republic in a democracy is a love of the democracy; as the latter is that of equality. A love of the democracy is likewise that of frugality. Since every individual ought here to enjoy the same happiness and the same advantages, they should consequently taste the same pleasures and form the same hopes, which cannot be expected but from a general frugality. The love of equality in a democracy limits ambition to the sole desire, to the sole happiness, of doing greater services to our country than the rest of our fellow-citizens. They cannot all render her equal services, but they all ought to serve her with equal alacrity. At our coming into the world, we contract an immense debt to our country, which we can never discharge. Hence distinctions here arise from the principle of equality, even when it seems to be removed by signal services or superior abilities. The love of frugality limits the desire of having to the study of procuring necessaries to our family, and superfluities to our country. Riches give a power which a citizen cannot use for himself, for then he would be no longer equal. They likewise procure pleasures which he ought not to enjoy, because these would be also repugnant to the equality. Thus well-regulated democracies, by establishing domestic frugality, made way at the same time for public expenses, as was the case at Rome and Athens, when magnificence and profusion arose from the very fund of frugality. And as religion commands us to have pure and unspotted hands when we make our offerings to the gods, the laws required a frugality of life to enable them to be liberal to our country. The good sense and happiness of individuals depend greatly upon the mediocrity of their abilities and fortunes. Therefore, as a republic, where the laws have placed many in a middling station, is composed of wise men, it will be wisely governed; as it is composed of happy men, it will be extremely happy. 4. In what Manner the Love of Equality and Frugality is inspired. The love of equality and of a frugal economy is greatly excited by equality and frugality themselves, in societies where both these virtues are established by law. In monarchies and despotic governments, nobody aims at equality; this does not so much as enter their thoughts; they all aspire to superiority. People of the very lowest condition desire to emerge from their obscurity, only to lord it over their fellow-subjects. It is the same with respect to frugality. To love it, we must practise and enjoy it. It is not those who are enervated by pleasure that are fond of a frugal life; were this natural and common, Alcibiades would never have been the admiration of the universe. Neither is it those who envy or admire the luxury of the great; people that have present to their view none but rich men, or men miserable like themselves, detest their wretched condition, without loving or knowing the real term or point of misery. A true maxim it is, therefore, that in order to love equality and frugality in a republic, these virtues must have been previously established by law. 5. In what Manner the Laws establish Equality in a Democracy. Some ancient legislators, as Lycurgus and Romulus, made an equal division of lands. A settlement of this kind can never take place except upon the foundation of a new republic; or when the old one is so corrupt, and the minds of the people are so disposed, that the poor think themselves obliged to demand, and the rich obliged to consent to a remedy of this nature. If the legislator, in making a division of this kind, does not enact laws at the same time to support it, he forms only a temporary constitution; inequality will break in where the laws have not precluded it, and the republic will be utterly undone. Hence for the preservation of this equality it is absolutely necessary there should be some regulation in respect to women's dowries, donations, successions, testamentary settlements, and all other forms of contracting. For were we once allowed to dispose of our property to whom and how we pleased, the will of each individual would disturb the order of the fundamental law. Solon, by permitting the Athenians, upon failure of issue[1] to leave their estates to whom they pleased, acted contrary to the ancient laws, by which the estates were ordered to continue in the family of the testator;[2] and even contrary to his own laws, for by abolishing debts he had aimed at equality. The law which prohibited people having two inheritances[3] was extremely well adapted for a democracy. It derived its origin from the equal distribution of lands and portions made to each citizen. The law would not permit a single man to possess more than a single portion. From the same source arose those laws by which the next relative was ordered to marry the heiress. This law was given to the Jews after the like distribution. Plato,[4] who grounds his laws on this division, made the same regulation which had been received as a law by the Athenians. At Athens there was a law whose spirit, in my opinion, has not been hitherto rightly understood. It was lawful to marry a sister only by the father's side, but it was not permitted to espouse a sister by the same venter.[5] This custom was originally owing to republics, whose spirit would not permit that two portions of land, and consequently two inheritances, should devolve on the same person. A man who married his sister only by the father's side could inherit but one estate, namely, that of his father; but by espousing his sister by the same venter, it might happen that this sister's father, having no male issue, might leave her his estate, and consequently the brother who married her might be possessed of two. Little will it avail to object to what Philo says,[6] that although the Athenians were allowed to marry a sister by the father's side, and not by the mother's, yet the contrary practice prevailed among the Laced?monians, who were permitted to espouse a sister by the mother's side, and not by the father's. For I find in Strabo[7] that at Sparta, whenever a woman was married to her brother she had half his portion for her dowry. Plain is it that this second law was made in order to prevent the bad consequences of the former. That the estate belonging to the sister's family might not devolve on the brother's, they gave half the brother's estate to the sister for her dowry. Seneca[8] speaking of Silanus, who had married his sister, says that the permission was limited at Athens, but general at Alexandria. In a monarchical government there was very little concern about any such thing as a division of estates. Excellent was that law which, in order to maintain this division of lands in a democracy, ordained that a father who had several children should pitch upon one of them to inherit his portion,[9] and leave the others to be adopted, to the end that the numbers of citizens might always be kept upon an equality with that of the divisions. Phaleas of Chalcedon[10] contrived a very extraordinary method of rendering all fortunes equal, in a republic where there was the greatest inequality. This was that the rich should give fortunes with their daughters to the poor, but receive none themselves; and that the poor should receive money for their daughters, instead of giving them fortunes. But I do not remember that a regulation of this kind ever took place in any republic. It lays the citizens under such hard and oppressive conditions as would make them detest the very equality which they designed to establish. It is proper sometimes that the laws should not seem to tend so directly to the end they propose. Though real equality be the very soul of a democracy, it is so difficult to establish that an extreme exactness in this respect would not be always convenient. Sufficient is it to establish a census[11] which shall reduce or fix the differences to a certain point: it is afterwards the business of particular laws to level, as it were, the inequalities, by the duties laid upon the rich, and by the ease afforded to the poor. It is moderate riches alone that can give or suffer this sort of compensation; for as to men of overgrown estates, everything which does not contribute to advance their power and honour is considered by them as an injury. All inequality in democracies ought to be derived from the nature of the government, and even from the principle of equality. For example, it may be apprehended that people who are obliged to live by their labour would be too much impoverished by a public employment, or neglect the duties attending it; that artisans would grow insolent, and that too great a number of freemen would overpower the ancient citizens. In this case the equality[12] in a democracy may be suppressed for the good of the state. But this is only an apparent equality; for a man ruined by a public employment would be in a worse condition than his fellow-citizens; and this same man, being obliged to neglect his duty, would reduce the rest to a worse condition than himself, and so on. 6. In what Manner the Laws ought to maintain Frugality in a Democracy. It is not sufficient in a well-regulated democracy that the divisions of land be equal; they ought also to be small, as was customary among the Romans. "God forbid," said Curius to his soldiers,[13] "that a citizen should look upon that as a small piece of land which is sufficient to maintain him." As equality of fortunes supports frugality, so the latter maintains the former. These things, though in themselves different, are of such a nature as to be unable to subsist separately; they reciprocally act upon each other; if one withdraws itself from a democracy, the other surely follows it. True is it that when a democracy is founded on commerce, private people may acquire vast riches without a corruption of morals. This is because the spirit of commerce is naturally attended with that of frugality, economy, moderation, labour, prudence, tranquillity, order, and rule. So long as this spirit subsists, the riches it produces have no bad effect. The mischief is, when excessive wealth destroys the spirit of commerce, then it is that the inconveniences of inequality begin to be felt. In order to support this spirit, commerce should be carried on by the principal citizens; this should be their sole aim and study; this the chief object of the laws: and these very laws, by dividing the estates of individuals in proportion to the increase of commerce, should set every poor citizen so far at his ease as to be able to work like the rest, and every wealthy citizen in such a mediocrity as to be obliged to take some pains either in preserving or acquiring a fortune. It is an excellent law in a trading republic to make an equal division of the paternal estate among the children. The consequence of this is that how great soever a fortune the father has made, his children, being not so rich as he, are induced to avoid luxury, and to work as he has done. I speak here only of trading republics; as to those that have no commerce, the legislator must pursue quite different measures.[14] In Greece there were two sorts of republics: the one military, like Sparta; the other commercial, as Athens. In the former, the citizens were obliged to be idle; in the latter, endeavours were used to inspire them with the love of industry and labour. Solon made idleness a crime, and insisted that each citizen should give an account of his manner of getting a livelihood. And, indeed, in a well-regulated democracy, where people's expenses should extend only to what is necessary, every one ought to have it; for how should their wants be otherwise supplied? 7. Other Methods of favouring the Principle of Democracy. An equal division of lands cannot be established in all democracies. There are some circumstances in which a regulation of this nature would be impracticable, dangerous, and even subversive of the constitution. We are not always obliged to proceed to extremes. If it appears that this division of lands, which was designed to preserve the people's morals, does not suit the democracy, recourse must be had to other methods. If a permanent body be established to serve as a rule and pattern of manners; a senate, to which years, virtue, gravity, and eminent services procure admittance; the senators, by being exposed to public view like the statues of the gods, must naturally inspire every family with sentiments of virtue. Above all, this senate must steadily adhere to the ancient institutions, and mind that the people and the magistrates never swerve from them. The preservation of the ancient customs is a very considerable point in respect to manners. Since a corrupt people seldom perform any memorable actions, seldom establish societies, build cities, or enact laws; on the contrary, since most institutions are derived from people whose manners are plain and simple, to keep up the ancient customs is the way to preserve the original purity of morals. Besides, if by some revolution the state has happened to assume a new form, this seldom can be effected without infinite pains and labour, and hardly ever by idle and debauched persons. Even those who had been the instruments of the revolution were desirous it should be relished, which is difficult to compass without good laws. Hence it is that ancient institutions generally tend to reform the people's manners, and those of modern date to corrupt them. In the course of a long administration, the descent to vice is insensible; but there is no reascending to virtue without making the most generous efforts. It has been questioned whether the members of the senate we are speaking of ought to be for life or only chosen for a time. Doubtless they ought to be for life, as was the custom at Rome,[15] at Sparta,[16] and even at Athens. For we must not confound the senate at Athens, which was a body that changed every three months, with the Areopagus, whose members, as standing patterns, were established for life. Let this be therefore a general maxim; that in a senate designed to be a rule, and the depository, as it were, of manners, the members ought to be chosen for life: in a senate intended for the administration of affairs, the members may be changed. The spirit, says Aristotle, waxes old as well as the body. This reflection holds good only in regard to a single magistrate, but cannot be applied to a senatorial assembly. At Athens, besides the Areopagus, there were guardians of the public morals, as well as of the laws.[17] At Sparta, all the old men were censors. At Rome, the censorship was committed to two particular magistrates. As the senate watched over the people, the censors were to have an eye over the people and the senate. Their office was to reform the corruptions of the republic, to stigmatise indolence, to censure neglects, and to correct mistakes; as to flagrant crimes, these were left to the punishment of the laws. That Roman law which required the accusations in cases of adultery to be public was admirably well calculated for preserving the purity of morals; it intimidated married women, as well as those who were to watch over their conduct. Nothing contributes more to the preservation of morals than an extreme subordination of the young to the old. Thus they are both restrained, the former by their respect for those of advanced age, and the latter by their regard for themselves. Nothing gives a greater force to the law than a perfect subordination between the citizens and the magistrate. "The great difference which Lycurgus established between Sparta and the other cities," says Xenophon,[18] "consists chiefly in the obedience the citizens show to their laws; they run when the magistrate calls them. But at Athens a rich man would be highly displeased to be thought dependent on the magistrate." Paternal authority is likewise of great use towards the preservation of morals. We have already observed that in a republic there is not so coercive a force as in other governments. The laws must therefore endeavour to supply this defect by some means or other; and this is done by paternal authority. Fathers at Rome had the power of life and death over their children.[19] At Sparta, every father had a right to correct another man's child. Paternal authority ended at Rome together with the republic. In monarchies, where such a purity of morals is not required, they are controlled by no other authority than that of the magistrates. The Roman laws, which accustomed young people to dependence, established a long minority. Perhaps we are mistaken in conforming to this custom; there is no necessity for so much constraint in monarchies. This very subordination in a republic might make it necessary for the father to continue in the possession of his children's fortune during life, as was the custom at Rome. But this is not agreeable to the spirit of monarchy. 8. In what Manner the Laws should relate to the Principle of Government in an Aristocracy. If the people are virtuous in an aristocracy, they enjoy very nearly the same happiness as in a popular government, and the state grows powerful. But as a great share of virtue is very rare where men's fortunes are so unequal, the laws must tend as much as possible to infuse a spirit of moderation, and endeavour to re-establish that equality which was necessarily removed by the constitution. The spirit of moderation is what we call virtue in an aristocracy; it supplies the place of the spirit of equality in a popular state. As the pomp and splendour with which kings are surrounded form a part of their power, so modesty and simplicity of manners constitute the strength of an aristocratic nobility.[20] When they affect no distinction, when they mix with the people, dress like them, and with them share all their pleasures, the people are apt to forget their subjection and weakness. Every government has its nature and principle. An aristocracy must not therefore assume the nature and principle of monarchy; which would be the case were the nobles to be invested with personal privileges distinct from those of their body; privileges ought to be for the senate, and simple respect for the senators. In aristocratic governments there are two principal sources of disorder: excessive inequality between the governors and the governed; and the same inequality between the different members of the body that governs. From these two inequalities, hatreds and jealousies arise, which the laws ought ever to prevent or repress. The first inequality is chiefly when the privileges of the nobility are honourable only as they are ignominious to the people. Such was the law at Rome by which the patricians were forbidden to marry plebeians;[21] a law that had no other effect than to render the patricians on the one side more haughty, and on the other more odious. The reader may see what advantages the tribunes derived thence in their harangues. This inequality occurs likewise when the condition of the citizens differs with regard to taxes, which may happen in four different ways: when the nobles assume the privilege of paying none; when they commit frauds to exempt themselves;[22] when they engross the public money, under pretence of rewards or appointments for their respective employments; in fine, when they render the common people tributary, and divide among their own body the profits arising from the several subsidies. This last case is very rare; an aristocracy so instituted would be the most intolerable of all governments. While Rome inclined towards aristocracy, she avoided all these inconveniences. The magistrates never received any emoluments from their office. The chief men of the republic were taxed like the rest, nay, more heavily; and sometimes the taxes fell upon them alone. In fine, far from sharing among themselves the revenues of the state, all they could draw from the public treasure, and all the wealth that fortune flung into their laps, they bestowed freely on the people, to be excused from accepting public honours.[23] It is a fundamental maxim that largesses are pernicious to the people in a democracy, but salutary in an aristocratic government. The former make them forget they are citizens, the latter bring them to a sense of it. If the revenues of the state are not distributed among the people, they must be convinced at least of their being well administered: to feast their eyes with the public treasure is with them the same thing almost as enjoying it. The golden chain displayed at Venice, the riches exhibited at Rome in public triumphs, the treasures preserved in the temple of Saturn, were in reality the wealth of the people. It is a very essential point in an aristocracy that the nobles themselves should not levy the taxes. The first order of the state in Rome never concerned themselves with it; the levying of the taxes was committed to the second, and even this in process of time was attended with great inconveniences. In an aristocracy of this kind, where the nobles levied the taxes, the private people would be all at the discretion of persons in public employments; and there would be no such thing as a superior tribunal to check their power. The members appointed to remove the abuses would rather enjoy them. The nobles would be like the princes of despotic governments, who confiscate whatever estates they please. Soon would the profits hence arising be considered as a patrimony, which avarice would enlarge at pleasure. The farms would be lowered, and the public revenues reduced to nothing. This is the reason that some governments, without having ever received any remarkable shock, have dwindled away to such a degree as not only their neighbours, but even their own subjects, have been surprised at it. The laws should likewise forbid the nobles all kinds of commerce: merchants of such unbounded credit would monopolise all to themselves. Commerce is a profession of people who are upon an equality; hence among despotic states the most miserable are those in which the prince applies himself to trade. The laws of Venice debar[24] the nobles from commerce, by which they might even innocently acquire exorbitant wealth. The laws ought to employ the most effectual means for making the nobles do justice to the people. If they have not established a tribune, they ought to be a tribune themselves. Every sort of asylum in opposition to the execution of the laws destroys aristocracy, and is soon succeeded by tyranny. They ought always to mortify the lust of dominion. There should be either a temporary or perpetual magistrate to keep the nobles in awe, as the Ephori at Sparta and the State Inquisitors at Venice -- magistrates subject to no formalities. This sort of government stands in need of the strongest springs: thus a mouth of stone[25] is open to every informer at Venice -- a mouth to which one would be apt to give the appellation of tyranny. These arbitrary magistrates in an aristocracy bear some analogy to the censorship in democracies, which of its own nature is equally independent. And, indeed, the censors ought to be subject to no inquiry in relation to their conduct during their office; they should meet with a thorough confidence, and never be discouraged. In this respect the practice of the Romans deserved admiration; magistrates of all denominations were accountable for their administration,[26] except the censors.[27] There are two very pernicious things in an aristocracy -- excess either of poverty, or of wealth in the nobility. To prevent their poverty, it is necessary, above all things, to oblige them to pay their debts in time. To moderate the excess of wealth, prudent and gradual regulations should be made; but no confiscations, no agrarian laws, no expunging of debts; these are productive of infinite mischief. The laws ought to abolish the right of primogeniture among the nobles[28] to the end that by a continual division of the inheritances their fortunes may be always upon a level. There should be no substitutions, no powers of redemption, no rights of Majorasgo, or adoption. The contrivances for perpetuating the grandeur of families in monarchical governments ought never to be employed in aristocracies.[29] When the laws have compassed the equality of families, the next thing is to preserve a proper harmony and union among them. The quarrels of the nobility ought to be quickly decided; otherwise the contests of individuals become those of families. Arbiters may terminate, or even prevent, the rise ot disputes. In fine, the laws must not favour the distinctions raised by vanity among families, under pretence that they are more noble or ancient than others. Pretences of this nature ought to be ranked among the weaknesses of private persons. We have only to cast an eye upon Sparta; there we may see how the Ephori contrived to check the foibles of the kings, as well as those of the nobility and common people. 9. In what Manner the Laws are in relation to their Principle in Monarchies. As honour is the principle of a monarchical government, the laws ought to be in relation to this principle. They should endeavour to support the nobility, in respect to whom honour may be, in some measure, deemed both child and parent. They should render the nobility hereditary, not as a boundary between the power of the prince and the weakness of the people, but as the link which connects them both. In this government, substitutions which preserve the estates of families undivided are extremely useful, though in others not so proper. Here the power of redemption is of service, as it restores to noble families the lands that had been alienated by the prodigality of a parent. The land of the nobility ought to have privileges as well as their persons. The monarch's dignity is inseparable from that of his kingdom; and-the dignity of the nobleman from that of his fief. All these privileges must be peculiar to the nobility, and incommunicable to the people, unless we intend to act contrary to the principle of government, and to diminish the power of the nobles together with that of the people. Substitutions are a restraint to commerce, the power of redemption produces an infinite number of processes; every estate in land that is sold throughout the kingdom is in some measure without an owner for the space of a year. Privileges annexed to fiefs give a power very burdensome to those governments which tolerate them. These are the inconveniences of nobility -- inconveniences, however, that vanish when confronted with its general utility: but when these privileges are communicated to the people, every principle of government is wantonly violated. In monarchies a person may leave the bulk of his estate to one of his children -- a permission improper in any other government. The laws ought to favour all kinds of commerce[30] consistent with the constitution, to the end that the subjects may, without ruining themselves, be able to satisfy the continual cravings of the prince and his court. They should establish some regulation that the manner of collecting the taxes may not be more burdensome than the taxes themselves. The weight of duties produces labour, labour weariness, and weariness the spirit of indolence. 10. Of the Expedition peculiar to the Executive Power in Monarchies. Great is the advantage which a monarchical government has over a republic: as the state is conducted by a single person, the executive power is thereby enabled to act with greater expedition. But as this expedition may degenerate into rapidity, the laws should use some contrivance to slacken it. They ought not only to favour the nature of each constitution, but likewise to remedy the abuses that might result from this very nature. Cardinal Richelieu[31] advises monarchs to permit no such things as societies or communities that raise difficulties upon every trifle. If this man's heart had not been bewitched with the love of despotic power, still these arbitrary notions would have filled his head. The bodies entrusted with the deposition of the laws are never more obedient than when they proceed slowly, and use that reflection in the prince's affairs which can scarcely be expected from the ignorance of a court, or from the precipitation of its councils.[32] What would have become of the finest monarchy in the world if the magistrates, by their delays, their complaints, and entreaties, had not checked the rapidity even of their princes' virtues, when these monarchs, consulting only the generous impulse of their minds, would fain have given a boundless reward to services performed with an unlimited courage and fidelity? 11. Of the Excellence of a Monarchical Government. Monarchy has a great advantage over a despotic government. As it naturally requires there should be several orders or ranks of subjects, the state is more permanent, the constitution more steady, and the person of him who governs more secure. Cicero is of opinion that the establishing of the tribunes preserved the republic. "And indeed," says he, "the violence of a headless people is more terrible. A chief or head is sensible that the affair depends upon himself, and therefore he thinks; but the people in their impetuosity are ignorant of the danger into which they hurry themselves." This reflection may be applied to a despotic government, which is a people without tribunes; and to a monarchy, where the people have some sort of tribunes. Accordingly it is observable that in the commotions of a despotic government, the people, hurried away by their passions, are apt to push things as far as they can go. The disorders they commit are all extreme; whereas in monarchies matters are seldom carried to excess. The chiefs are apprehensive on their own account; they are afraid of being abandoned, and the intermediate dependent powers do not choose that the populace should have too much the upper hand. It rarely happens that the states of the kingdom are entirely corrupted: the prince adheres to these; and the seditious, who have neither will nor hopes to subvert the government, have neither power nor will to dethrone the prince. In these circumstances men of prudence and authority interfere; moderate measures are first proposed, then complied with, and things at length are redressed; the laws resume their vigour, and command submission. Thus all our histories are full of civil wars without revolutions, while the histories of despotic governments abound with revolutions without civil wars. The writers of the history of the civil wars of some countries, even those who fomented them, sufficiently demonstrate the little foundation princes have to suspect the authority with which they invest particular bodies of men; since, even under the unhappy circumstance of their errors, they sighed only after the laws and their duty; and restrained, more than they were capable of inflaming, the impetuosity of the revolted.[33] Cardinal Richelieu, reflecting perhaps that he had too much reduced the states of the kingdom, has recourse to the virtues of the prince and of his ministers for the support[34] of government: but he requires so many things, that indeed there is none but an angel capable of such attention, such resolution and knowledge; and scarcely can we flatter ourselves that we shall ever see such a prince and ministers while monarchy subsists. As people who live under a good government are happier than those who without rule or leaders wander about the forests, so monarchs who live under the fundamental laws of their country are far happier than despotic princes who have nothing to regulate, neither their own passions nor those of their subjects. 12. The same Subject continued. Let us not look for magnanimity in despotic governments; the prince cannot impart a greatness which he has not himself; with him there is no such thing as glory. It is in monarchies that we behold the subjects encircling the throne, and cheered by the irradiancy of the sovereign; there it is that each person filling, as it were, a larger space, is capable of exercising those virtues which adorn the soul, not with independence, but with true dignity and greatness. 13. An Idea of Despotic Power. When the savages of Louisiana are desirous of fruit, they cut the tree to the root, and gather the fruit.[35] This is an emblem of despotic government. 14. In what Manner the Laws are in relation to the Principles of Despotic Government. The principle of despotic government is fear; but a timid, ignorant, and faint-spirited people have no occasion for a great number of laws. Everything ought to depend here on two or three ideas; hence there is no necessity that any new notions should be added. When we want to break a horse, we take care not to let him change his master, his lesson, or his pace. Thus an impression is made on his brain by two or three motions, and no more. If a prince is shut up in a seraglio, he cannot leave his voluptuous abode without alarming those who keep him confined. Thev will not bear that his person and power should pass into other hands. He seldom therefore wages war in person, and hardly ventures to entrust the command to his generals. A prince of this stamp, unaccustomed to resistance in his palace, is enraged to see his will opposed by armed force; hence he is generally governed by wrath or vengeance. Besides, he can have no notion of true glory. War therefore is carried on under such a government in its full natural fury, and less extent is given to the law of nations than in other states. Such a prince has so many imperfections that they are afraid to expose his natural stupidity to public view. He is concealed in his palace, and the people are ignorant of his situation. It is lucky for him that the inhabitants of those countries need only the name of a prince to govern them. When Charles XII was at Bender, he met with some opposition from the senate of Sweden; upon which he wrote word home that he would send one of his boots to command them. This boot would have governed like a despotic prince. If the prince is a prisoner, he is supposed to be dead, and another mounts the throne. The treaties made by the prisoner are void, his successor will not ratify them; and indeed, as he is the law, the state, and the prince: when he is no longer a prince, he is nothing: were he not therefore deemed to be deceased, the state would be subverted. One thing which chiefly determined the Turks to conclude a separate peace with Peter I was the Muscovites telling the Vizir that in Sweden another prince had been placed upon the throne.[36] The preservation of the state is only the preservation of the prince, or rather of the palace where he is confined. Whatever does not directly menace this palace or the capital makes no impression on ignorant, proud, and prejudiced minds; and as for the concatenation of events, they are unable to trace, to foresee, or even to conceive it. Politics, with its several springs and laws, must here be very much limited; the political government is as simple as the civil.[37] The whole is reduced to reconciling the political and civil administration to the domestic government, the officers of state to those of the seraglio. Such a state is happiest when it can look upon itself as the only one in the world, when it is environed with deserts, and separated from those people whom they call Barbarians. Since it cannot depend on the militia, it is proper it should destroy a part of itself. As fear is the principle of despotic government, its end is tranquillity; but this tranquillity cannot be called a peace: no, it is only the silence of those towns which the enemy is ready to invade. Since strength does not lie in the state, but in the army that founded it, in order to defend the state the army must be preserved, how formidable soever to the prince. How, then, can we reconcile the security of the government to that of the prince's person? Observe how industriously the Russian government endeavours to temper its arbitrary power, which it finds more burdensome than the people themselves. They have broken their numerous guards, mitigated criminal punishments, erected tribunals, entered into a knowledge of the laws, and instructed the people. But there are particular causes that will probably once more involve them in the very misery which they now endeavour to avoid. In those states religion has more influence than anywhere else; it is fear added to fear. In Mahomedan countries, it is partly from their religion that the people derive the surprising veneration they have for their prince. It is religion that amends in some measure the Turkish constitution. The subjects, who have no attachment of honour to the glory and grandeur of the state, are connected with it by the force and principle of religion. Of all despotic governments there is none that labours more under its own weight than that wherein the prince declares himself proprietor of all the lands, and heir to all his subjects. Hence the neglect of agriculture arises; and if the prince intermeddles likewise in trade, all manner of industry is ruined. Under this sort of government, nothing is repaired or improved.[38] Houses are built only for the necessity of habitation; there is no digging of ditches or planting of trees; everything is drawn from, but nothing restored to, the earth; the ground lies untilled, and the whole country becomes a desert. Is it to be imagined that the laws which abolish the property of land and the succession of estates will diminish the avarice and cupidity of the great? By no means. They will rather stimulate this cupidity and avarice. The great men will be prompted to use a thousand oppressive methods, imagining they have no other property than the gold and silver which they are able to seize upon by violence, or to conceal. To prevent, therefore, the utter ruin of the state, the avidity of the prince ought to be moderated by some established custom. Thus, in Turkey, the sovereign is satisfied with the right of three per cent on the value of inheritances.[39] But as he gives the greatest part of the lands to his soldiery, and disposes of them as he pleases; as he seizes on all the inheritances of the officers of the empire at their decease; as he has the property of the possessions of those who die without issue, and the daughters have only the usufruct; it thence follows that the greatest part of the estates of the country are held in a precarious manner. By the laws of Bantam,[40] the king seizes on the whole inheritance, even wife, children, and habitation. In order to elude the cruelest part of this law, they are obliged to marry their children at eight, nine, or ten years of age, and sometimes younger, to the end that they may not be a wretched part of the father's succession. In countries where there are no fundamental laws, the succession to the empire cannot be fixed. The crown is then elective, and the right of electing is in the prince, who names a successor either of his own or of some other family. In vain would it be to establish here the succession of the eldest son; the prince might always choose another. The successor is declared by the prince himself, or by a civil war. Hence a despotic state is, upon another account, more liable than a monarchical government to dissolution. As every prince of the royal family is held equally capable of being chosen, hence it follows that the prince who ascends the throne immediately strangles his brothers, as in Turkey; or puts out their eyes, as in Persia; or bereaves them of their understanding, as in the Mogul's country; or if these precautions are not used, as in Morocco, the vacancy of the throne is always attended with the horrors of a civil war. By the constitution of Russia[41] the Czar may choose whom he has a mind for his successor, whether of his own or of a strange family. Such a settlement produces a thousand revolutions, and renders the throne as tottering as the succession is arbitrary. The right of succession being one of those things which are of most importance to the people to know, the best is that which most sensibly strikes them. Such as a certain order of birth. A settlement of this kind puts a stop to intrigues, and stifles ambition; the mind of a weak prince is no longer enslaved, nor is he made to speak his will as he is just expiring. When the succession is established by a fundamental law, only one prince is the successor, and his brothers have neither a real nor apparent right to dispute the crown with him. They can neither pretend to nor take any advantage of the will of a father. There is then no more occasion to confine or kill the king's brother than any other subject. But in despotic governments, where the prince's brothers are equally his slaves and his rivals, prudence requires that their persons be secured; especially in Mahomedan countries, where religion considers victory or success as a divine decision in their favour; so that they have no such thing as a monarch de jure, but only de facto. There is a far greater incentive to ambition in countries where the princes of the blood are sensible that if they do not ascend the throne they must be either imprisoned or put to death, than among us, where they are placed in such a station as may satisfy, if not their ambition, at least their moderate desires. The princes of despotic governments have ever perverted the use of marriage. They generally take a great many wives, especially in that part of the world where absolute power is in some measure naturalised, namely, Asia. Hence they come to have such a multitude of children that they can hardly have any great affection for them, nor the children for one another. The reigning family resembles the state; it is too weak itself, and its head too powerful; it seems very numerous and extensive, and yet is suddenly extinct. Artaxerxes[42] put all his children to death for conspiring against him. It is not at all probable that fifty children would conspire against their father, and much less that this conspiracy would be owing to his having refused to resign his concubine to his eldest son. It is more natural to believe that the whole was an intrigue of those oriental seraglios, where fraud, treachery, and deceit reign in silence and darkness; and where an old prince, grown every day more infirm, is the first prisoner of the palace. After what has been said, one would imagine that human nature should perpetually rise up against despotism. But notwithstanding the love of liberty, so natural to mankind, notwithstanding their innate detestation of force and violence, most nations are subject to this very government. This is easily accounted for. To form a moderate government, it is necessary to combine the several powers; to regulate, temper, and set them in motion; to give, as it were, ballast to one, in order to enable it to counterpoise the other. This is a masterpiece of legislation; rarely produced by hazard, and seldom attained by prudence. On the contrary, a despotic government offers itself, as it were, at first sight; it is uniform throughout; and as passions only are requisite to establish it, this is what every capacity may reach. 15. The same Subject continued. In warm climates, where despotic power generally prevails, the passions disclose themselves earlier, and are sooner extinguished;[43] the understanding is sooner ripened; they are less in danger of squandering their fortunes; there is less facility of distinguishing themselves in the world; less communication between young people, who are confined at home; they marry much earlier, and consequently may be sooner of age than in our European climates. In Turkey they are of age at fifteen.[44] They have no such thing as a cession of goods; in a government where there is no fixed property, people depend rather on the person than on his estate. The cession of goods is naturally admitted in moderate governments,[45] but especially in republics, because of the greater confidence usually placed in the probity of the citizens, and the lenity and moderation arising from a form of government which every subject seems to nave preferred to all others. Had the legislators of the Roman republic established the cession of goods,[46] they never would have been exposed to so many seditions and civil discords; neither would they have experienced the danger of the evils, nor the inconvenience of the remedies. Poverty and the precariousness of property in a despotic state render usury natural, each person raising the value of his money in proportion to the danger he sees in lending it. Misery therefore pours from all parts into those unhappy countries; they are bereft of everything, even of the resource of borrowing. Hence it is that a merchant under this government is unable to carry on an extensive commerce; he lives from hand to mouth; and were he to encumber himself with a large quantity of merchandise, he would lose more by the exorbitant interest he must give for money than he could possibly get by the goods. Hence they have no laws here relating to commerce; they are all reduced to what is called the bare police. 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, confiscations 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. Confiscations would render property uncertain, would strip innocent children, would destroy a whole family, instead of punishing 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 subsistence.[47] There is a Roman law[48] 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 countries 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.[49] 16. Of the Communication of Power. In a despotic government the power is communicated entire to the person entrusted with it. The vizir himself is the despotic prince; and each particular officer is the vizir. In monarchies the power is less immediately applied, being tempered by the monarch as he gives it.[50] 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 dependent 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, expedients 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? In this kind of government, authority must ever be wavering; 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 fine, as the law is the momentary will of the prince, it is necessary that those who will for him should follow his sudden manner of willing. 17. Of Presents. It is a received custom in despotic countries never to address any superior whomsoever, not excepting their kings, without making them a present. The Mogul[51] never receives the petitions of his subjects if they come with empty hands. These princes spoil even their own favours. 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 themselves 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 presenting 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, honour is a much stronger incentive than presents. But in a despotic government, where there is neither honour 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[52] ordered those who received presents for doing their duty to be punished 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[53] which gave the magistrates leave to accept small presents[[54] 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. 18. Of Rewards conferred by the Sovereign. In despotic governments, where, as we have already observed, the principal motive of action is the hope of the conveniences of life, the prince who confers rewards has nothing to bestow but money. In monarchies, where honour alone predominates, the prince's rewards would consist only of marks of distinction, if the distinctions established by honour were not attended with luxury, which necessarily brings on its wants: the prince therefore is obliged to confer such honours 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 republics are a sign of their decline; because they are a proof of their principles being corrupted, and that the idea of honour 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 Caracalla. The best, as Augustus, Vespasian, Antoninus Pius, Marcus Aurelius, and Pertinax, were economists. Under good emperors the state resumed its principles; all other treasures were supplied by that of honour. 19. New Consequences of the Principles of the three Governments. I cannot conclude this book without making some applications 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 government. In the former, public employments are attestations of virtue, depositions with which a citizen is entrusted by his country, for whose sake alone he ought to live, to act, and to think, consequently lie cannot refuse them.[55] In the latter, public offices are testimonials of honour; now such is the capriciousness of honour that it chooses to accept none of these testimonies but when and in what manner it pleases. The late King of Sardinia[56] inflicted punishments on his subjects 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. 2nd 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 the Romans it was usual to see a captain serve the next year under his lieutenant.[57] This is because virtue in republics requires a continual sacrifice of our persons and of our repugnances for the good of the state. But in monarchies, honour, true or false, will never bear with what it calls degrading itself. In despotic governments, where honour, posts, and ranks are equally abused, they indiscriminately make a prince a scullion, and a scullion a prince. 3rd 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 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 person. In republics a person takes up arms only with a view to defend 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 honour 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.[58] 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 constantly 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[59] succeeding emperors[60] were obliged 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 pro-consular dignity[61] 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 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 employments 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 employment 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[62] cannot bear with this prostitution: "This is exactly," 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 regular 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 honours through riches inspires and cherishes industry,[63] a thing extremely wanting in this kind of government. 5th Question.] The fifth question is in what kind of government censors are necessary. My answer is, that they are necessary 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 violate but elude the laws, does not subvert but weaken them, ought to fall under the inquiry and correction of the censors. We are surprised at the punishment of the Areopagite for killing 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 concerning manners in a republic founded on manners. In monarchies there should be no censors; the former are founded on honour, and the nature of honour 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 honour. Here the censors would be spoiled by the very people whom they ought to correct: they could not prevail against the corruption 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 derogate from this rule; but we shall see, in the course of this work, the particular reasons of that institution. ______ 1. Plutarch, Solon. 2. Ibid. 3. Philolaus of Corinth made a law at Athens that the number of the portions of land and that of inheritances should be always the same. -- Aristotle, Politics, ii. 7, 12. 4. Laws, xi. 5. Cornelius Nepos, preface. This custom began in the earliest times. Thus Abraham says of Sarah, "She is my sister, my father's daughter, but not my mother's." The same reasons occasioned the establishing the same law among different nations. 6. De specialibus legibus qu? pertinent ad pr?ceptar Decalogi. 7. Book x. 8. Athenis dimidium licet, Alexandri? totum. -- Seneca, De Morte Claudii. 9. Plato has a law of this kind. Laws, v. 10. Aristotle. ii. 7. 11. Solon made four classes: the first, of those who had an income of 500 minas either in corn or liquid fruits; the second, of those who had 300, and were able to keep a horse; the third, of such as had only 200; the fourth, of all those who lived by their manual labour. -- Plutarch, Solon. 12. Solon excludes from public employments all those of the fourth class. 13. They insisted upon a larger division of the conquered lands. -- Plutarch, Lives of the ancient Kings and Commanders. 14. In these, the portions or fortunes of women ought to be very much limited. 15. The magistrates there were annual, and the senators for life. 16. Lycurgus, says Xenophon, De Repub. Laced?m., 10. § 1, 2, ordained that the senators should be chosen from amongst the old men, to the end that they might not be neglected in the decline of life; thus by making them judges of the courage of young people, he rendered the old age of the former more honourable than the strength and vigour of the latter. 17. Even the Areopagus itself was subject to their censure. 18. De Repub. Laced?m., 8. 19. We may see in the Roman History how useful this power was to the republic. I shall give an instance even in the time of its greatest corruption. Aulus Fulvius was set out on his journey in order to join Catiline; his father called him back, and put him to death. -- Sallust, De Bello Catil., xxxiv. 20. In our days the Venetians, who in many respects may be said to have a very wise government, decided a dispute between a noble Venetian and a gentleman of Terra Firma in respect to precedency in a church, by declaring that out of Venice a noble Venetian had no pre-eminence over any other citizen. 21. It was inserted by the decemvirs in the two last tables. See Dionysius Helicarnassus, x. 22. As in some aristocracies in our time; nothing is more prejudicial to the government. 23. See in Strabo, xiv., in what manner the Rhodians behaved in this respect. 24. Amelot de la Houssaye, Of the Government of Venice, part III. The Claudian law forbade the senators to have any ship at sea that held above forty bushels. -- Livy, xxi. 63. 25. The informers throw their scrolls into it. 26. See Livy, xlix. A censor could not be troubled even by a censor; each made his remark without taking the opinion of his colleague; and when it otherwise happened, the censorship was in a manner abolished. 27. At Athens the Logist?, who made all the magistrates accountable for their conduct, gave no account themselves. 28. It is so practised at Venice. -- Amelot de la Houssaye, pp. 30, 31. 29. The main design of some aristocracies seems to be less the support of the state than of their nobility. 30. It is tolerated only in the common people. See Leg. 3, Cod. de comm. et mercatoribus, which is full of good sense. 31. Testament polit. 32. Barbaris cunctatio servilis, statim exequi regium videtur. -- Tacitus, Annals., v. 32. 33. Memoirs of Cardinal de Retz, and other histories. 34. Testament polit. 35. Edifying Letters, coll. ii, p. 315. 36. Continuation of Pufendorf, Introduction to the History of Europe, in the article on Sweden, 10. 37. According to Sir John Chardin, there is no council of state in Persia. 38. See Ricaut, State of the Ottoman Empire, p. 196. 39. See concerning the inheritances of the Turks, Ancient and Modern Sparta. See also Ricaut on the Ottoman empire. 40. Collection of Voyages that Contributed to the Establishment of the East India Company, i. The law of Pegu is less cruel; if there happen to be children, the king succeeds only to two-thirds. Ibid., iii, p. 1. 41. See the different constitutions, especially that of 1722. 42. See Justin. 43. See the book of laws as relative to the nature of the climate. Book xiv, below. 44. Laquilletiere, Ancient and Modern Sparta, p. 463. 45. The same may be said of compositions in regard to fair bankrupts. 46. There was no such establishment made till the Julian law, De Cessione bonorum; which preserved them from prison and from an ignominious division of their goods. -- Cod., ii. tit. 12. 47 They seem to have been too fond of confiscations in the republic of Athens. 48. Authentica bona damnatorum. -- Cod. de bon. proscript. seu damn. 49. De la Republique, v. 3. 50. Ut esse Phoebi dulcius lumen solet Jamjam cadentis -- Seneca, Troas, V. i. 1. 51. Collection of Voyages that Contributed to the Establishment of the East India Company, i, p. 80. 52. Laws, xii. 53. Leg. 6, § 2; Dig. ad leg. Jul. repet. 54. Munuscula. 55. Plato, in his Republic, viii, ranks these refusals among the marks of the corruption of a republic. In his Laws, vi, he orders them to be punished by a fine; at Venice they are punished with banishment. 56. Victor Amadeus. 57. Some centurions having appealed to the people for the employments which they had before enjoyed, "It is just, my comrades," said a centurion, "that you should look upon every post as honourable in which you have an opportunity of defending the republic." -- Livy, dec. 5, xlii, 34. 58. Ne imperium ad optimos nobilium transferretur, Senatum militia vetuit Gallienus, etiam adire exercitum. -- Aurelius Victor, De C?saribus. 59. Augustus deprived the senators, proconsuls, and governors of the privilege of wearing arms. -- Dio, xxxiii. 60. Constantine. See Zozimus, ii. 61. Ammianus Marcellinus, xxvi, Et Civilia, more veterum, et bella recturo. 62. Republic, viii. 63. We see the laziness of Spain, where all public employments are given away. ------------------------------------------------------------------------ Book VI. Consequences of the Principles of Different Governments with Respect to the Simplicity of Civil and Criminal Laws, the Form of Judgments, and the Inflicting of Punishments 1. 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 certain 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 likewise to honour, demands very scrupulous inquiries. The delicacy of the judge increases in proportion to the increase of his trust, and of the importance of the interests on which he determines. 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 distinctions 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 conveyance; allodial, or held by soccage; ground rents; or annuities. 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 instance, there are countries where fiefs could not be divided among the brothers; in others, the younger brothers may be allowed a more generous subsistence. The monarch who knows each of his provinces may establish 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 inflexible will, which throughout his whole dominions produces the same effect; in short, everything bends under his feet. In 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 times ill, 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 contradiction or uncertainty of the law. In governments where there are necessary distinctions of persons, there must likewise be privileges. This also diminishes the simplicity, and creates a thousand exceptions. One of the privileges least burdensome to society, and especially 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 under despotic governments. In those countries I can see nothing that the legislator is able to decree, or the magistrate to judge. As the lands belong to the prince, it follows that there are scarcely any civil laws in regard to landed property. From the right the sovereign 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 commercial laws quite useless. The marriages which they usually contract 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 honour is a thing hardly known in those countries, the several difficulties relating to this article, though of such importance with us, are with them quite out of the question. Despotic power is self-sufficient; round it there is an absolute vacuum. Hence it is that when travellers favour us with the description of countries where arbitrary sway prevails, they seldom make mention of civil laws.[1] 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 administered 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 behoves mankind to know? If we examine the set forms of justice with respect to the trouble the subject undergoes in recovering his property, or in obtaining satisfaction for an injury or affront, we 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 honour, life, or estate of the subject, all causes are speedily decided. The method of determining them is a matter of indifference, provided they be determined. The pasha, after a quick hearing, orders which party he pleases to be bastinadoed, and then sends them about their business. Here it would be dangerous to be of a litigious disposition; this supposes a strong desire of obtaining justice, a settled aversion, 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 disturbances are frequently attended with sudden and unforeseen revolutions. Here every man ought to know that the magistrate 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 honour 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,[2] he immediately thinks of reducing the number of laws. In a government 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 increase in proportion to the value which is set on the honour, 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. 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 himself is his own rule. There are laws in monarchies; and where these are explicit, the judge conforms to them; where they are otherwise, he endeavours 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 honour, property, 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 cognisance be proved or not; if it be proved, the judge pronounces the punishment inflicted by the law, and for this he needs only to open his eyes. 4. Of the Manner of passing Judgment. Hence arise the different 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 consultation; each gave his opinion in one of these three ways: "I absolve," "I condemn," "It does not appear clear to me";[3] this was 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,[4] after the example 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 pr?tors devised other forms of actions, which were called ex bona fide, in which the method of pronouncing 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[5] all actions are ex bona fide. 5. In what Governments the Sovereign may be Judge. Machiavel[6] 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 purpose 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 inconvenience 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[7] before sentence was pronounced;[8] and they ordained that the goods of those who were condemned should be sacred, to prevent their being confiscated to the people. We shall see in Book XI 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 ordained that the Court of Areopagus should re-examine the affair; that if they believed the party accused was unjustly acquitted[9] they should impeach him again before the people; that if they believed him unjustly condemned[10] they should prevent 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 judgment 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, honour, 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 granting pardon,[11] for it would be quite ridiculous of him to make and unmake his decisions; surely he would not choose to contradict 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,[12] sent for some members of the parliament and of the privy council, to debate the matter; upon their being ordered by the king to give their opinion concerning the warrant for his arrest, the president, De Believre, said "that he found it very strange that a prince should pass sentence 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 sentence 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, condemning a gentleman to death."[13] Again, sentences passed by the prince would be an inexhaustible 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 themselves; the consequence was that no reigns ever so surprised the world with oppression and injustice. "Claudius," says Tacitus,[14] "having appropriated to himself the determination of lawsuits, and the function of magistrates, gave occasion to all manner of rapine." But Nero, upon coming to the empire after Claudius, endeavoured to conciliate 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 iniquitous influence of a few freedmen."[15] "Under the reign of Arcadius," says Zozimus,[16] "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;[17] and, in consequence of this, his property was given away by a rescript. For as the prince was surprisingly stupid, and the empress excessively enterprising, she was a slave to the insatiable avarice of her domestics and confidants; insomuch that to an honest man nothing could be more desirable than death." "Formerly," says Procopius[18] "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 clamours 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 labour 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 instances 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 suffice for my purpose. There is in the very nature of things a kind of contrast between 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 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 in requisite, 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?[19] 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 judgment was passed. Upon which he declared that his law had been enacted only in favour of the father, and that as Virginius was absent, no application could be made of it to the present case.[20] 8. Of Accusation in different Governments. At Rome[21] 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 agreeable to the prince; this was the road to honour and preferment,[22] 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 sorts of crimes in his name; hence the profession of informers is a thing unknown to us, for if this public avenger were suspected to abuse his office, he would soon be obliged to mention his author. By Plato's Laws[23] 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 governments, whose principle is terror, than for a monarchy or a republic, whose spring is honour and virtue. In moderate governments, the love of one's country, shame, and the fear of blame are restraining motives, capable of preventing 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 punishing than preventing crimes; he is more attentive to inspire good morals than to inflict penalties. It is a constant remark of the Chinese authors[24] 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 corrupted. It would be an easy matter to prove that in all, or almost all, the governments of Europe, penalties have increased or diminished in proportion as those governments favoured or discouraged liberty. In despotic governments, people are so unhappy as to have a greater dread of death than regret for the loss of life; consequently their punishments ought to be more severe. In moderate states they are more afraid of losing their lives than apprehensive of the pain of dying; those punishments, therefore, which deprive them simply of life are sufficient. 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 inspires 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 favours, 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 extraordinary 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 company 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 monarchy. In cases relating to pecuniary mulcts, the common people are less severely punished than the nobility.[25] But in criminal[26] cases it is quite the reverse; the nobleman loses his honour and his voice in court, while the peasant, who has no honour to lose, undergoes a corporal punishment. 11. That when People are virtuous few Punishments are necessary. The people of Rome had some share of probity. Such was the force of this 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. 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[27] or of the Porcian law.[28] It was never observed that this step did any manner of prejudice 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.[29] 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 punishments. If an inconvenience or abuse arises in the state, a violent government endeavours 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 imagination 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 delinquents with death; and yet their number did not diminish. The reason is very natural; a soldier, accustomed to venture his life, despises, or affects 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[30] which branded him with infamy for life; the penalty was pretended to be increased, 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 punishments. 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 consequence 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 redressed, you see only the severity 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. Lysander[31] 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 off 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,[32] "having put fifteen hundred of their citizens to death, the Athenians ordered sacrifices of 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 government; of this we have an instance in Japan. Here almost all crimes are punished with death,[33] because disobedience to so great an emperor as that of Japan is reckoned 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 owing especially to this, that as the emperor is universal proprietor, almost all crimes are directly against his interests. They punish with death lies spoken before the magistrate;[34] 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 imputation 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 reign in their political and civil government from that which should prevail in their domestic concerns? A wise legislator would have endeavoured to reclaim people by a just temperature of punishments and rewards; by maxims of philosophy, morality, and religion, adapted to those characters; by a proper application of the rules of honour, 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 restrained by those of a milder nature, he would have conducted himself[35] 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 extirpation of Christianity; but such unaccountable efforts are a proof of their insufficiency. They wanted to establish a good policy, 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.[36] The number of those who were suffocated or murdered in that city by ruffians is incredible; 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 committed 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, &c. I shall here give one instance more from the same nation. The Emperor having abandoned himself to infamous pleasures, lived unmarried, and was consequently in danger of dying without 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 armourer's daughter having pleased his fancy,[37] 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 impunity to it. 14. Of the Spirit of the Roman Senate. Under the consulate of Acilius Glabrio and Piso, the Asilian law[38] was made to prevent the intriguing for places. Dio says[39] 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 always 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 connected with the nature of governments when I behold this great people changing in this respect their civil laws, in proportion 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 Twelve Tables; but men who aimed at tyranny were far from conforming to a republican spirit. Livy says,[40] 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 remembrance of humanity seemed to have been lost. He is mistaken; the Twelve Tables are full of very cruel laws.[41] The design of the decemvirs appears more conspicuous in the capital punishment pronounced against libellers and poets. This is not agreeable to the genius of a republic, where the people 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.[42] After the expulsion of the decemvirs, almost all the penal laws were abolished. It is true they were not expressly repealed; 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[43] 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. Sulla, 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, wheresoever the citizens set their feet. Almost all Sulla's laws contained only the interdiction of fire and water. To this C?sar added the confiscation of goods[44] because the rich, by preserving their estates in exile, became bolder in the perpetration of crimes. The emperors, having established a military government, soon found that it was as terrible to the prince as to the subject; they endeavoured therefore to temper it, and with this view had recourse to dignities, and to the respect with which those dignities were attended. The government thus drew nearer a little to monarchy, and punishments were divided into three classes:[45] those which related to the principal persons in the state,[46] which were very mild: those which were inflicted on persons of an inferior rank,[47] and were more severe; and, in fine, such as concerned only persons of the lowest condition,[48] which were the most rigorous. Maximinus, that fierce and stupid prince, increased the rigour of the military government which he ought to have softened. The senate were informed, says Capitolinus,[49] 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 military 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[50] we find in what manner Constantine changed the military despotism into a military and civil government, and drew nearer to monarchy. There we may trace the different revolutions of this state, and see how they fell from rigour 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 proportion 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,[51] who called himself Constantine Ducas, raised a great insurrection at Constantinople. He was taken and condemned to be whipped; but upon informing against several persons of distinction, he was sentenced to be burned as a calumniator." It is very extraordinary that they should thus proportion the punishments between the crime of high treason and that of calumny. This puts me in mind of a saying of Charles II, King of Great Britain. He saw a man one day standing in the pillory; upon which he asked what crime the man had committed. He was answered, "Please your Majesty, he has written a libel against your ministers." "The fool!" said the King, "why did he not write against me? They would have done nothing to him." "Seventy persons having conspired against the Emperor Basil, he ordered them to be whipped, and the hair of their heads and beards to be burned. A stag, one day, having taken hold of him by the girdle with his horn, one of his retinue drew his sword, cut the girdle, and saved him; upon which he ordered that person's head to be cut off, for having," said he, "drawn his sword against his sovereign."[52] Who could imagine that the same prince could ever have passed two such different judgments? It is a great abuse amongst us to condemn to the same punishment a person that only robs on the highway and another who robs and murders. Surely, for the public security, some difference should be made in the punishment. In China, those who add murder to robbery are cut in pieces:[53] but not so the others; to this difference it is owing that though they rob in that country they never murder. In Russia, where the punishment of robbery and murder is the same, they always murder.[54] The dead, say they, tell no tales. Where there is no difference in the penalty, there should be some in the expectation of pardon. In England they never murder on the highway, because robbers have some hopes of transportation, which is not the case in respect to those that commit murder. Letters of grace are of excellent use in moderate governments. This power which the prince has of pardoning, exercised with prudence, is capable of producing admirable effects. The principle of despotic government, which neither grants nor receives any pardon, deprives it of these advantages. 17. Of the Rack. The wickedness of mankind makes it necessary for the law to suppose them better than they really are. Hence the deposition of two witnesses is sufficient in the punishment of all crimes. The law believes them, as if they spoke by the mouth of truth. Thus we judge that every child conceived in wedlock is legitimate; the law having a confidence in the mother, as if she were chastity itself. But the use of the rack against criminals cannot be defended on a like plea of necessity. We have before us the example of a nation blessed with an excellent civil government,[55] where without any inconvenience the practice of racking criminals is rejected. It is not, therefore, in its own nature necessary.[56] So many men of learning and genius have written against the custom of torturing criminals, that after them I dare not presume to meddle with the subject. I was going to say that it might suit despotic states, where whatever inspires fear is the fittest spring of government. I was going to say that the slaves among the Greeks and Romans -- but nature cries out aloud, and asserts her rights. 18. Of pecuniary and corporal Punishments. Our ancestors, the Germans, admitted of none but pecuniary punishments. Those free and warlike people were of opinion that their blood ought not to be spilled but with sword in hand. On the contrary, these punishments are rejected by the Japanese,[57] under pretence that the rich might elude them. But are not the rich afraid of being stripped of their property? And might not pecuniary penalties be proportioned to people's fortunes? And, in fine, might not infamy be added to those punishments? A good legislator takes a just medium; he ordains neither always pecuniary, nor always corporal punishments. 19. Of the Law of Retaliation. The use of the law of retaliation[58] is very frequent in despotic countries, where they are fond of simple laws. Moderate governments admit of it sometimes; but with this difference, that the former exercise it in full rigour, whereas among the latter it ever receives some kind of limitation. The law of the Twelve Tables admitted two: first, it never condemned to retaliation, but when the plaintiff could not be satisfied in any other manner.[59] Secondly, after condemnation they might pay damages and interest,[60] and then the corporal was changed into a pecuniary punishment.[61] 20. Of the Punishment of Fathers for the Crimes of their Children. In China, fathers are punished for the crimes of their children. This was likewise the custom of Peru[62] -- a custom derived from the notion of despotic power. Little does it signify to say that in China the father is punished for not having exerted that paternal authority which nature has established, and the laws themselves have improved. This still supposes that there is no honour among the Chinese. Amongst us, parents whose children are condemned by the laws of their country, and children[63] whose parents have undergone the like fate, are as severely punished by shame, as they would be in China by the loss of their lives. 21. Of the Clemency of the Prince. Clemency is the characteristic of monarchs. In republics, whose principle is virtue, it is not so necessary. In despotic governments, where fear predominates, it is less customary, because the great men are to be restrained by examples of severity. It is more necessary in monarchies, where they are governed by honour, which frequently requires what the very law forbids. Disgrace is here equivalent to chastisement; and even the forms of justice are punishments. This is because particular kinds of penalty are formed by shame, which on every side invades the delinquent. The great men in monarchies are so heavily punished by disgrace, by the loss (though often imaginary) of their fortune, credit, acquaintances, and pleasures, that rigour in respect to them is needless. It can tend only to divest the subject of the affection he has for the person of his prince, and of the respect he ought to have for public posts and employments. As the instability of the great is natural to a despotic government, so their security is interwoven with the nature of monarchy. So many are the advantages which monarchs gain by clemency, so greatly does it raise their fame, and endear them to their subjects, that it is generally happy for them to have an opportunity of displaying it; which in this part of the world is seldom wanting. Some branch, perhaps, of their authority, but never hardly the whole, will be disputed; and if they sometimes fight for their crown, they do not fight for their life. But some may ask when it is proper to punish, and when to pardon. This is a point more easily felt that prescribed. When there is danger in the exercise of clemency, it is visible; nothing so easy as to distinguish it from that imbecility which exposes princes to contempt and to the very incapacity of punishing. The Emperor Maurice made a resolution never to spill the blood of his subjects. Anastasius[64] punished no crimes at all. Isaac Angelus took an oath that no one should be put to death during his reign. Those Greek emperors forgot that it was not for nothing they were entrusted with the sword. ______ 1. In Mazulipatam it could never be found out that there was such a thing as a written law. See the Collection of Voyages that Contributed to the Establishment of the East India Company, iv., part I, p. 391. The Indians are regulated in their decisions by certain customs. The Vedan and such books do not contain civil laws, but religious precepts. See Edifying Letters, coll. xiv. 2. C?sar, Cromwell, and many others. 3. Non liquet. 4. Quas actiones ne populus prout vellet institueret, certas solemnesque esse voluerunt -- Dig. de Orig. Jur., ii, § 6. 5. In France a person, though sued for more than he owes, loses his costs if he has not offered to pay the exact debt. 6. Discourse on the first decade of Livy, i. 7. 7. This is well explained in Cicero's oration Pro C?cina, towards the end, 100. 8. This was the law at Athens, as appears by Demosthenes. Socrates refused to make use of it. 9. Demosthenes, Pro Corona, p. 494, Frankfort, 1604. 10. See Philostratus, Lives of the Sophists, i. Life of ?schines. 11. Plato does not think it right that kings, who, as he says, are priests, should preside at trials where people are condemned to death, to exile, or to imprisonment. 12. See the account of the trial of the Duke de la Valette. It is printed in the Memoirs of Montresor, ii, p. 62. 13. It was afterwards revoked. See the same account, ii. p. 236. It was ordinarily a right of the peerage that a peer criminally accused should be judged by the king, as Francis II in the trial of the Prince of Condé, and Charles VII in the case of the Duc d'Alen?on. To-day, the presence of the king at the trial of a peer, in order to condemn him would seem an act of tyranny. -- Voltaire. 14. Annals, xi. 5. 15. Ibid., xiii. 4. 16. Histories, v. 17. The same disorder happened under Theodosius the younger. 18. Secret History. 19. See Leg. 2, § 24, Dig. ff. de orig. jur. 20. Quod pater puellce abesset, locum injuria esse ratus. -- Livy, dec. I, iii. 44. 21. And in a great many other cities. 22. See in Tacitus the rewards given to those informers. -- Annals, i. 30. 23. Book ix. 24. I shall show hereafter that China is, in this respect, in the same case as a republic or a monarchy. 25. Suppose, for instance, to prevent the execution of a decree, the common people paid a fine of forty sous, and the nobility of sixty livres. -- Somme Rurale, ii, p. 198, ed. Goth. 1512; and Beaumanoir, 61, p. 309. 26. See the Council of Peter Defontaines, 13, especially art. 22. 27. It was made by Valerius Publicola soon after the expulsion of the kings, and was twice renewed, both times by magistrates of the same family. As Livy observes, x, 9, the question was not to give it a greater force, but to render its injunctions more perfect. "Diligentius sanctum," says Livy, ibid. 28. Lex Porcia pro tergo civium lata. It was made in the 454th year of the foundation of Rome. 29. Nihil ultra quam improbe factum adjecet -- Livy, loc. cit. 30. They slit his nose or cut off his ears. 31. Xenophon, Hist., iii. 8, §§ 20-22. 32. Of Those Who Are Intrusted with the Direction of the State Affairs, 14. 33. See Kempfer. 34. Collection of Voyages that Contributed to the Establishment of the East India Company, iii, part I, p. 428. 35. Let this be observed as a maxim in practice, with regard to cases where the minds of people have been depraved by too great a severity of punishments. 36. Collection of Voyages that Contributed to the Establishment of the East India Company, v, p. 2. 37. Ibid. 38. The guilty were condemned to a fine; they could not be admitted into the rank of senators, nor nominated to any public office. -- Dio, xxxvi. 21. 39. Ibid. 40. Book i. 28. 41. We find there the punishment of fire, and generally capital punishments, theft punished with death, &c. 42. Sulla, animated with the same spirit as the decemvirs, followed their example in augmenting the penal laws against satirical writers. 43. Book i, 28. 44. Poenas facinorum auxit, cum locupletes eo facilius scelere se obligarent, quod integris patrimoniis exularent. -- Suetonius in Life of Julius C?sar, 162. 45. See the Leg. 3, § legis, ad leg. Cornel, de sicariis, and a vast number of others in the Digest and in the Codex. 46. Sublimiores. 47. Medios. 48. Infirnos. Leg. 3, § legis, ad leg. Cornel, de sicariis. 49. Jul. Cap., Maximini duo, 8. 50. Chapter 17. 51. Hist. of Nicephorus, patriarch of Constantinople. 52. In Nicephorus' History. 53. Father Du Halde, i, p. 6. 54. Present State of Russia, Perry. 55. The English. 56. The citizens of Athens could not be put to the rack (Lysias, Orat. contra Agorat.) unless it was for high treason. The torture was used within thirty days after condemnation. (Curius Fortunatus. Rhetor, scol., ii.) There was no preparatory torture. In regard to the Romans, the Leg. 3, 4, ad leg. Jul. majest., show that birth, dignity, and the military profession exempted people from the rack, except in cases of high treason. See the prudent restrictions of this practice made by the laws of the Visigoths. 57. See Kempfer. 58. It is established in the Koran. See the chapter, Of the Cow. 59. Si membrum rupit, ni cum eo pacit, talio esto. Aulus Gellius, xx. i. 60. Ibid. 61. See also the Law of the Visigoths, vi, tit. 4, §§ 3, 5. 62. See Garcilasso, History of the Civil Wars of the Spaniards in the West Indies. 63. "Instead of punishing them," says Plato, "they ought to be commended for not having followed their fathers' example." -- Laws, ix. 64. Fragment of Suidas, in Constantine Porphyrogenitus. ------------------------------------------------------------------------ Book VII. Consequences of the Different Principles of the Three Governments with Respect to Sumptuary Laws, Luxury, and the Condition of Women 1. Of Luxury. Luxury is ever in proportion to the inequality of fortunes. If the riches of a state are equally divided there will be no luxury; for it is founded merely on the conveniences acquired by the labour of others. In order to have this equal distribution of riches, the law ought to give to each man only what is necessary for nature. If they exceed these bounds, some will spend, and others will acquire, by which means an inequality will be established. Supposing what is necessary for the support of nature to be equal to a given sum, the luxury of those who have only what is barely necessary will be equal to a cipher: if a person happens to have double that sum, his luxury will be equal to one; he that has double the latter's substance will have a luxury equal to three; if this be still doubled, there will be a luxury equal to seven; so that the property of the subsequent individual being always supposed double to that of the preceding, the luxury will increase double, and a unit be always added, in this progression, 0, 1, 3, 7, 15, 31, 63, 127 In Plato's republic,[1] luxury might have been exactly calculated. There were four sorts of censuses or rates of estates. The first was exactly the term beyond poverty, the second was double, the third triple, the fourth quadruple to the first. In the first census, luxury was equal to a cipher; in the second to one, in the third to two, in the fourth to three: and thus it followed in an arithmetical proportion. Considering the luxury of different nations with respect to one another, it is in each state a compound proportion to the inequality of fortunes among the subjects, and to the inequality of wealth in different states. In Poland, for example, there is an extreme inequality of fortunes, but the poverty of the whole binders them from having so much luxury as in a more opulent government. Luxury is also in proportion to the populousness of the towns, and especially of the capital; so that it is in a compound proportion to the riches of the state, to the inequality of private fortunes, and to the number of people settled in particular places. In proportion to the populousness of towns, the inhabitants are filled with notions of vanity, and actuated by an ambition of distinguishing themselves by trifles.[2] If they are very numerous, and most of them strangers to one another, their vanity redoubles, because there are greater hopes of success. As luxury inspires these hopes, each man assumes the marks of a superior condition. But by endeavouring thus at distinction, every one becomes equal, and distinction ceases; as all are desirous of respect, nobody is regarded. Hence arises a general inconvenience. Those who excel in a profession set what value they please on their labour; this example is followed by people of inferior abilities, and then there is an end of all proportion between our wants and the means of satisfying them. When I am forced to go to law, I must be able to fee counsel; when I am sick, I must have it in my power to fee a physician. It is the opinion of several that the assemblage of so great a multitude of people in capital cities is an obstruction to commerce, because the inhabitants are no longer at a proper distance from each other. But I cannot think so; for men have more desires, more wants, more fancies, when they live together. 2. Of sumptuary Laws in a Democracy. We have observed that in a republic, where riches are equally divided, there can be no such thing as luxury; and as we have shown in the 5th Book[3] that this equal distribution constitutes the excellence of a republican government; hence it follows, that the less luxury there is in a republic, the more it is perfect. There was none among the old Romans, none among the Laced?monians; and in republics where this equality is not quite lost, the spirit of commerce, industry, and virtue renders every man able and willing to live on his own property, and consequently prevents the growth of luxury. The laws concerning the new division of lands, insisted upon so eagerly in some republics, were of the most salutary nature. They are dangerous, only as they are sudden. By reducing instantly the wealth of some, and increasing that of others, they form a revolution in each family, and must produce a general one in the state. In proportion as luxury gains ground in a republic, the minds of the people are turned towards their particular interests. Those who are allowed only what is necessary have nothing but their own reputation and their country's glory in view. But a soul depraved by luxury has many other desires, and soon becomes an enemy to the laws that confine it. The luxury in which the garrison of Rhegium began to live was the cause of their massacring the inhabitants. No sooner were the Romans corrupted than their desires became boundless and immense. Of this we may judge by the price they set on things. A pitcher of Falernian wine[4] was sold for a hundred Roman denarii; a barrel of salt meat from the kingdom of Pontus cost four hundred; a good cook four talents; and for boys, no price was reckoned too great. When the whole world, impelled by the force of corruption, is immersed in voluptuousness[5] what must then become of virtue? 3. Of sumptuary Laws in an Aristocracy. There is this inconvenience in an ill-constituted aristocracy, that the wealth centres in the nobility, and yet they are not allowed to spend; for as luxury is contrary to the spirit of moderation, it must be banished thence. This government comprehends, therefore, only people who are extremely poor and cannot acquire, and people who are vastly rich and cannot spend. In Venice, they are compelled by the laws to moderation. They are so habituated to parsimony that none but courtesans can make them part with their money. Such is the method made use of for the support of industry; the most contemptible of women may be profuse without danger, whilst those who contribute to their extravagance consume their days in the greatest obscurity. Admirable in this respect were the institutions of the principal republics of Greece. The rich employed their money in festivals, musical choruses, chariots, horse-races, and chargeable offices. Wealth was, therefore, as burdensome there as poverty. 4. Of sumptuary Laws in a Monarchy. Tacitus says[6] that the Suiones, a German nation, has a particular respect for riches; for which reason they live under the government of one person. This shows that luxury is extremely proper for monarchies, and that under this government there must be no sumptuary laws. As riches, by the very constitution of monarchies, are unequally divided, there is an absolute necessity for luxury. Were the rich not to be lavish, the poor would starve. It is even necessary here that the expenses of the opulent should be in proportion to the inequality of fortunes, and that luxury, as we have already observed, should increase in this proportion. The augmentation of private wealth is owing to its having deprived one part of the citizens of their necessary support; this must therefore be restored to them. Hence it is that for the preservation of a monarchical state, luxury ought continually to increase, and to grow more extensive, as it rises from the labourer to the artificer, to the merchant, to the magistrate, to the nobility, to the great officers of state, up to the very prince; otherwise the nation will be undone. In the reign of Augustus, a proposal was made in the Roman senate, which was composed of grave magistrates, learned civilians, and of men whose heads were filled with the notion of the primitive times, to reform the manners and luxury of women. It is curious to see in Dio,[7] with what art this prince eluded the importunate solicitations of those senators. This was because he was founding a monarchy, and dissolving a republic. Under Tiberius, the ?diles proposed in the senate the re-establishment of the ancient sumptuary laws.[8] This prince, who did not want sense, opposed it. "The state," said he, "could not possibly subsist in the present situation of things. How could Rome, how could the provinces, live? We were frugal, while we were only masters of one city; now we consume the riches of the whole globe, and employ both the masters and their slaves in our service." He plainly saw that sumptuary laws would not suit the present form of government. When a proposal was made under the same emperor to the senate, to prohibit the governors from carrying their wives with them into the provinces, because of the dissoluteness and irregularity which followed those ladies, the proposal was rejected. It was said that the examples of ancient austerity had been changed into a more agreeable method of living.[9] They found there was a necessity for different manners. Luxury is therefore absolutely necessary in monarchies; as it is also in despotic states. In the former, it is the use of liberty; in the latter, it is the abuse of servitude. A slave appointed by his master to tyrannise over other wretches of the same condition, uncertain of enjoying tomorrow the blessings of to-day, has no other felicity than that of glutting the pride, the passions, and voluptuousness of the present moment. Hence arises a very natural reflection. Republics end with luxury; monarchies with poverty.[10] 5. In what Cases sumptuary Laws are useful in a Monarchy. Whether it was from a republican spirit, or from. some other particular circumstance, sumptuary laws were made in Aragon, in the middle of the thirteenth century. James the First ordained that neither the king nor any of his subjects should have above two sorts of dishes at a meal, and that each dish should be dressed only one way, except it were game of their own killing.[11] In our days, sumptuary laws have been also enacted in Sweden; but with a different view from those of Aragon. A government may make sumptuary laws with a view to absolute frugality; this is the spirit of sumptuary laws in republics; and the very nature of the thing shows that such was the design of those of Aragon. Sumptuary laws may likewise be established with a design to promote a relative frugality: when a government, perceiving that foreign merchandise, being at too high a price, will require such an exportation of home manufactures as to deprive them of more advantages by the loss of the latter than they can receive from the possession of the former, they will forbid their being introduced. And this is the spirit of the laws which in our days have been passed in Sweden.[12] Such are the sumptuary laws proper for monarchies. In general, the poorer a state, the more it is ruined by its relative luxury; and consequently the more occasion it has for relative sumptuary laws. The richer a state, the more it thrives by its relative luxury; for which reason it must take particular care not to make any relative sumptuary laws. This we shall better explain in the book on commerce;[13] here we treat only of absolute luxury. 6. Of the Luxury of China. Sumptuary laws may, in some governments, be necessary for particular reasons. The people, by the influence of the climate, may grow so numerous, and the means of subsisting may be so uncertain, as to render a universal application to agriculture extremely necessary. As luxury in those countries is dangerous, their sumptuary laws should be very severe. In order, therefore, to be able to judge whether luxury ought to be encouraged or proscribed, we should examine first what relation there is between the number of people and the facility they have of procuring subsistence. In England the soil produces more grain than is necessary for the maintenance of such as cultivate the land, and of those who are employed in the woollen manufactures. This country may be therefore allowed to have some trifling arts, and consequently luxury. In France, likewise, there is corn enough for the support of the husbandman and of the manufacturer. Besides, a foreign trade may bring in so many necessaries in return for toys that there is no danger to be apprehended from luxury. On the contrary, in China, the women are so prolific, and the huma.n species multiplies so fast, that the lands, though never so much cultivated, are scarcely sufficient to support the inhabitants. Here, therefore, luxury is pernicious, and the spirit of industry and economy is as requisite as in any republic.[14] They are obliged to pursue the necessary arts, and to shun those ot luxury and pleasure. This is the spirit of the excellent decrees of the Chinese emperors. "Our ancestors," says an emperor of the family of the Tangs[15] "held it as a maxim that if there was a man who did not work, or a woman that was idle, somebody must suffer cold or hunger in the empire." And on this principle he ordered a vast number of the monasteries of Bonzes to be destroyed. The third emperor of the one-and-twentieth dynasty,[16] to whom some precious stones were brought that had been found in a mine, ordered it to be shut up, not choosing to fatigue his people with working for a thing that could neither feed nor clothe them. "So great is our luxury," says Kiayventi,[17] "that people adorn with embroidery the shoes of boys and girls, whom they are obliged to sell." Is employing so many people in making clothes for one person the way to prevent a great many from wanting clothes? There are ten men who eat the fruits of the earth to one employed in agriculture; and is this the means of preserving numbers from wanting nourishment? 7. Fatal Consequence of Luxury in China. In the history of China we find it has had twenty-two successive dynasties, that is, it has experienced twenty-two general, without mentioning a prodigious number of particular, revolutions. The first three dynasties lasted a long time, because they were wisely administered, and the empire had not so great an extent as it afterwards obtained. But we may observe in general that all those dynasties began very well. Virtue, attention, and vigilance are necessary in China; these prevailed in the commencement of the dynasties, and failed in the end. It was natural that emperors trained up in military toil, who had compassed the dethroning of a family immersed in pleasure, should adhere to virtue, which they had found so advantageous, and be afraid of voluptuousness, which they knew had proved so fatal to the family dethroned. But after the three or four first princes, corruption, luxury, indolence, and pleasure possessed their successors; they shut themselves up in a palace; their understanding was impaired; their life was shortened; the family declined; the grandees rose up; the eunuchs gained credit; none but children were set on the throne; the palace was at variance with the empire; a lazy set of people that dwelt there ruined the industrious part of the nation; the emperor was killed or destroyed by a usurper, who founded a family, the third or fourth successor of which went and shut himself up in the very same palace. 8. Of public Continency. So many are the imperfections that attend the loss of virtue in women, and so greatly are their minds depraved when this principal guard is removed, that in a popular state public incontinency may be considered as the last of miseries, and as a certain forerunner of a change in the constitution. Hence it is that the sage legislators of republican states have ever required of women a particular gravity of manners. They have proscribed not only vice, but the very appearance of it. They have banished even all commerce of gallantry -- a commerce that produces idleness, that renders the women corrupters, even before they are corrupted, that gives a value to trifles, and debases things of importance: a commerce, in fine, that makes people act entirely by the maxims of ridicule, in which the women are so perfectly skilled. 9. Of the Condition or State of Women in different Governments. In monarchies women are subject to very little restraint, because as the distinction of ranks calls them to court, there they assume a spirit of liberty, which is almost the only one tolerated in that place. Each courtier avails himself of their charms and passions, in order to advance his fortune: and as their weakness admits not of pride, but of vanity, luxury constantly attends them. In despotic governments women do not introduce, but are themselves an object of, luxury. They must be in a state of the most rigorous servitude. Every one follows the spirit of the government, and adopts in his own family the customs he sees elsewhere established. As the laws are very severe and executed on the spot, they are afraid lest the liberty of women should expose them to danger. Their quarrels, indiscretions, repugnancies, jealousies, piques, and that art, in fine, which little souls have of interesting great ones, would be attended there with fatal consequences. Besides, as princes in those countries make a sport of human nature, they allow themselves a multitude of women; and a thousand considerations oblige them to keep those women in close confinement. In republics women are free by the laws and restrained by manners; luxury is banished thence, and with it corruption and vice. In the cities of Greece, where they were not under the restraint of a religion which declares that even amongst men regularity of manners is a part of virtue; where a blind passion triumphed with a boundless insolence, and love appeared only in a shape which we dare not mention, while marriage was considered as nothing more than simple friendship;[18] such was the virtue, simplicity, and chastity of women in those cities, that in this respect hardly any people were ever known to have had a better and wiser polity.[19] 10. Of the domestic Tribunal among the Romans. The Romans had no particular magistrates, like the Greeks, to inspect the conduct of women. The censors had not an eye over them, as over the rest of the republic. The institution of the domestic tribunal[20] supplied the magistracy established among the Greeks.[21] The husband summoned the wife's relatives, and tried her in their presence.[22] This tribunal preserved the manners of the republic; and at the same time those very manners maintained this tribunal. For it decided not only in respect to the violation of the laws, but also of manners: now, in order to judge of the violation of the latter, manners are requisite. The penalties inflicted by this tribunal ought to be, and actually were, arbitrary: for all that relates to manners, and to the rules of modesty, can hardly be comprised under one code of laws. It is easy indeed to regulate by laws what we owe to others; but it is very difficult of comprise all we owe to ourselves. The domestic tribunal inspected the general conduct of women: but there was one crime which, beside the animadversion of this tribunal, was likewise subject to a public accusation. This was adultery; whether that in a republic so great a depravation of manners interested the government; or whether the wife's immorality might render the husband suspected; or whether, in fine, they were afraid lest even honest people might choose that this crime should rather be concealed than punished. 11. In what Manner the Institutions changed at Rome, together with the Government. As manners were supported by the domestic tribunal, they were also supported by the public accusation; and hence it is that these two things fell together with the public manners, and ended with the republic.[23] The establishing of perpetual questions, that is, the division of jurisdiction among the pr?tors, and the custom gradually introduced of the pr?tors determining all causes themselves,[24] weakened the use of the domestic tribunal. This appears by the surprise of historians, who look upon the decisions which Tiberius caused to be given by this tribunal as singular facts, and as a renewal of the ancient course of pleading. The establishment of monarchy and the change of manners put likewise an end to public accusations. It might be apprehended lest a dishonest man, affronted at the slight shown him by a woman, vexed at her refusal, and irritated even by her virtue, should form a design to destroy her. The Julian law ordained that a woman should not be accused of adultery till after her husband had been charged with favouring her irregularities; which limited greatly, and annihilated, as it were, this sort of accusation.[25] Sextus Quintus seemed to have been desirous of reviving the public accusations.[26] But there needs very little reflection to see that this law would be more improper in such a monarchy as his than in any other. 12. Of the Guardianship of Women among the Romans. The Roman laws subjected women to a perpetual guardianship, except they were under cover and subject to the authority of a husband.[27] This guardianship was given to the nearest of the male relatives; and by a vulgar expression[28] it appears they were very much confined. This was proper for a republic, but not at all necessary in a monarchy.[29] That the women among the ancient Germans were likewise under a perpetual tutelage appears from the different codes of the Laws of the Barbarians.[30] This custom was communicated to the monarchies founded by those people; but was not of long duration. 13. Of the Punishments decreed by the Emperors against the Incontinence of Women. The Julian law ordained a punishment against adultery. But so far was this law, any more than those afterwards made on the same account, from being a mark of regularity of manners, that on the contrary it was a proof of their depravity. The whole political system in respect to women received a change in the monarchical state. The question was no longer to oblige them to a regularity of manners, but to punish their crimes. That new laws were made to punish their crimes was owing to their leaving those transgressions unpunished which were not of so criminal a nature. The frightful dissolution of manners obliged indeed the emperors to enact laws in order to put some stop to lewdness; but it was not their intention to establish a general reformation. Of this the positive facts related by historians are a much stronger proof than all these laws can be of the contrary. We may see in Dio the conduct of Augustus on this occasion, and in what manner he eluded, both in his pr?torian and censorian office, the repeated instances that were made him[31] for that purpose. It is true that we find in historians very rigid sentences, passed in the reigns of Augustus and Tiberius, against the lewdness of some Roman ladies: but by showing us the spirit of those reigns, at the same time they demonstrate the spirit of those decisions. The principal design of Augustus and Tiberius was to punish the dissoluteness of their relatives. It was not their immorality they punished, but a particular crime of impiety or high treason[32] of their own invention, which served to promote a respect for majesty, and answered their private revenge. Hence it is that the Roman historians inveigh so bitterly against this tyranny. The penalty of the Julian law was small.[33] The emperors insisted that in passing sentence the judges should increase the penalty of the law. This was the subject of the invectives of historians. They did not examine whether the women were deserving of punishment, but whether they had violated the law, in order to punish them. One of the most tyrannical proceedings of Tiberius[34] was the abuse he made of the ancient laws. When he wanted to extend the punishment of a Roman lady beyond that inflicted by the Julian law, he revived the domestic tribunal.[35] These regulations in respect to women concerned only senatorial families, not the common people. Pretences were wanted to accuse the great, which were constantly furnished by the dissolute behaviour of the ladies. In fine, what I have above observed, namely, that regularity of manners is not the principle of monarchy, was never better verified than under those first emperors; and whoever doubts it need only read Tacitus, Suetonius, Juvenal, or Martial. 14. Sumptuary Laws among the Romans. We have spoken of public incontinence because it is the inseparable companion of luxury. If we leave the motions of the heart at liberty, how shall we be able to restrain the weaknesses of the mind? At Rome, besides the general institutions, the censors prevailed on the magistrates to enact several particular laws for maintaining the frugality of women. This was the design of the Fannian, Licinian, and Oppian laws. We may see in Livy[36] the great ferment the senate was in when the women insisted upon the revocation of the Oppian law. The abrogation of this law is fixed upon by Valerius Maximus as the period whence we may date the luxury of the Romans. 15. Of Dowries and Nuptial Advantages in different Constitutions. Dowries ought to be considerable in monarchies, in order to enable husbands to support their rank and the established luxury. In republics, where luxury should never reign,[37] they ought to be moderate; but there should be hardly any at all in despotic governments, where women are in some measure slaves. The community of goods introduced by the French laws between man and wife is extremely well adapted to a monarchical government; because the women are thereby interested in domestic affairs, and compelled, as it were, to take care of their family. It is less so in a republic, where women are possessed of more virtue. But it would be quite absurd in despotic governments, where the women themselves generally constitute a part of the master's property. As women are in a state that furnishes sufficient inducements to marriage, the advantages which the law gives them over the husband's property are of no service to society. But in a republic they would be extremely prejudicial, because riches are productive of luxury. In despotic governments the profits accruing from marriage ought to be mere subsistence, and no more. 16. An excellent Custom of the Samnites. The Samnites had a custom which in so small a republic, and especially in their situation, must have been productive of admirable effects. The young people were all convened in one place, and their conduct was examined. He that was declared the best of the whole assembly had leave given him to take which girl he pleased for his wife; the second best chose after him; and so on.[38] Admirable institution! The only recommendation that young men could have on this occasion was their virtue and the services done their country. He who had the greatest share of these endowments chose which girl he liked out of the whole nation. Love, beauty, chastity, virtue, birth, and even wealth itself, were all, in some measure, the dowry of virtue. A nobler and grander recompense, less chargeable to a petty state, and more capable of influencing both sexes, could scarcely be imagined. The Samnites were descended from the Laced?monians; and Plato, whose institutes are only an improvement of those of Lycurgus, enacted nearly the same law.[39] 17. Of Female Administration. It is contrary to reason and nature that women should reign in families, as was customary among the Egyptians; but not that they should govern an empire. In the former case the state of their natural weakness does not permit them to have the pre-eminence; in the latter their very weakness generally gives them more lenity and moderation, qualifications fitter for a good administration than roughness and severity. In the Indies they are very easy under a female government; and it is settled that if the male issue be not of a mother of the same blood, the females born of a mother of the blood-royal must succeed.[40] And then they have a certain number of persons who assist them to bear the weight of the government. According to Mr. Smith,[41] they are very easy in Africa under female administration. If to this we add the example of England and Russia, we shall find that they succeed alike both in moderate and despotic governments. ______ 1. The first census was the hereditary share in land, and Plato would not allow them to have, in other effects, above a triple of the hereditary share. See his Laws, v. 2. "In large and populous cities," says the author of the Fable of the Bees, i, p. 133, "they wear clothes above their rank, and, consequently, have the pleasure of being esteemed by a vast majority, not as what they are, but what they appear to be. They have the satisfaction of imagining that they appear what they would be: which, to weak minds, is a pleasure almost as substantial as they could reap from the very accomplishment of their wishes." 3. Chapters 3, 4. 4. Fragment of the 36th book of Diodorus, quoted by Constantine Porphyrogenitus, in his Extract of Virtues and Vices. 5. Cum maximus omnium impetus ad luxuriant esset. -- Ibid. 6. De Moribus Germanorum, 44. 7. Dio Cassius, liv. 16. 8. Tacitus, Annals, iii. 34. 9. Malta duritiei veterum melius et latius mutata -- Tacitus,Annals, iii. 34. 10. Opulentia paritura mox egestatem. -- Florus, iii. 12. 11. Constitution of James I in the year 1234, art. 6, in Marca Hispanica, p. 1429. 12. They have prohibited rich wines and other costly merchandise. 13. Lettres persanes, 106. See below, xx. 20. 14. Luxury has been here always prohibited. 15. In an ordinance quoted by Father Du Halde, ii, p. 497. 16. History of China, 21st Dynasty, in Father Du Halde's work, i. 17. In a discourse cited by Father Du Halde, iii, p. 418. 18. "In respect to true love," says Plutarch, "the women have nothing to say to it." In his Treatise of Love, p. 600. He spoke in the style of his time. See Xenophon in the dialogue intitled Hiero. 19. At Athens there was a particular magistrate who inspected the conduct of women. 20. Romulus instituted this tribunal, as appears from Dionysius Halicarnassus, ii, p. 96. 21. See in Livy, xxxix, the use that was made of this tribunal at the time of the conspiracy of the Bacchanalians (they gave the name of conspiracy against the republic to assemblies in which the morals of women and young people were debauched.) 22. It appears from Dionysius Halicarnassus, ii, that Romulus's institution was that in ordinary cases the husband should sit as judge in the presence of the wife's relatives, but that in heinous crimes he should determine in conjunction with five of them. Hence Ulpian, tit. 6, 9, 12, 13, distinguishes in respect to the different judgments of manners between those which he calls important, and those which are less so: mores graviores, mores leviores. 23. Judicio de moribus (quod antea quidem in antiquis legibus positum erat, non autem frequentabatur) penitus abolito. Leg. 11. Cod. de repud. 24. Judicia extraordinaria. 25. It was entirely abolished by Constantine: "It is a shame," said he, "that settled marriages should be disturbed by the presumption of strangers." 26. Sextus Quintus ordained, that if a husband did not come and make his complaint to him of his wife's infidelity, he should be put to death. See Leti, Life of Sextus V. 27. Nisi convenissent in manum viri. 28. Ne sis mihi patruus oro. 29. The Papian law ordained, under Augustus, that women who had borne three children should be exempt from this tutelage. 30. This tutelage was by the Germans called Mundeburdium. 31. Upon their bringing before him a young man who had married a woman with whom he had before carried on an illicit commerce, he hesitated a long while, not daring to approve or to punish these things. At length recollecting himself, "Seditions," says he, "have been the cause of very great evils; let us forget them." Dio, liv. 16. The senate having desired him to give them some regulations in respect to women's morals, he evaded their petition by telling them that they should chastise their wives in the same manner as he did his; upon which they desired him to tell them how he behaved to his wife. (I think a very indiscreet question.) 32. Tacitus, Annals, iii. 24. 33. This law is given in the Digest, but without mentioning the penalty. It is supposed it was only relegatio, because that of incest was only deportatio. Leg., si quis viduam, ff. de qu?st. 34. Tacitus, Annals, iv. 19. 35. Ibid., ii. 50. 36. Dec. 4, iv. 37. Marseilles was the wisest of all the republics in its time; here it was ordained that dowries should not exceed one hundred crowns in money, and five in clothes, as Strabo observes, iv. 38. Fragment of Nicolaus Damascenus, taken from Stob?us in the collection of Constantine Porphyrogenitus. 39. He even permits them to have a more frequent interview with one another. 40. Edifying Letters, coll. xiv. 41. Voyage to Guinea, part the second, p. 165, of the kingdom of Angola, on the Golden Coast. ------------------------------------------------------------------------ Book VIII. Of the Corruption of the Principles of the Three Governments 1. General Idea of this Book. The corruption of this government generally begins with that of the principles. 2. Of the Corruption of the Principles of Democracy. The principle of democracy is corrupted not only when the spirit of equality is extinct, but likewise when they fall into a spirit of extreme equality, and when each citizen would fain be upon a level with those whom he has chosen to command him. Then the people, incapable of bearing the very power they have delegated, want to manage everything themselves, to debate for the senate, to execute for the magistrate, and to decide for the judges. When this is the case, virtue can no longer subsist in the republic. The people are desirous of exercising the functions of the magistrates, who cease to be revered. The deliberations of the senate are slighted; all respect is then laid aside for the senators, and consequently for old age. If there is no more respect for old age, there will be none presently for parents; deference to husbands will be likewise thrown off, and submission to masters. This licence will soon become general, and the trouble of command be as fatiguing as that of obedience. Wives, children, slaves will shake off all subjection. No longer will there be any such thing as manners, order, or virtue. We find in Xenophon's Banquet a very lively description of a republic in which the people abused their equality. Each guest gives in his turn the reason why he is satisfied. "Content I am," says Chamides, "because of my poverty. When I was rich, I was obliged to pay my court to informers, knowing I was more liable to be hurt by them than capable of doing them harm. The republic constantly demanded some new tax of me; and I could not decline paying. Since I have grown poor, I have acquired authority; nobody threatens me; I rather threaten others. I can go or stay where I please. The rich already rise from their seats and give me the way. I am a king, I was before a slave: I paid taxes to the republic, now it maintains me: I am no longer afraid of losing: but I hope to acquire." The people fall into this misfortune when those in whom they confide, desirous of concealing their own corruption, endeavour to corrupt them. To disguise their own ambition, they speak to them only of the grandeur of the state; to conceal their own avarice, they incessantly flatter theirs. The corruption will increase among the corruptors, and likewise among those who are already corrupted. The people will divide the public money among themselves, and, having added the administration of affairs to their indolence, will be for blending their poverty with the amusements of luxury. But with their indolence and luxury, nothing but the public treasure will be able to satisfy their demands. We must not be surprised to see their suffrages given for money. It is impossible to make great largesses to the people without great extortion: and to compass this, the state must be subverted. The greater the advantages they seem to derive from their liberty, the nearer they approach towards the critical moment of losing it. Petty tyrants arise who have all the vices of a single tyrant. The small remains of liberty soon become insupportable; a single tyrant starts up, and the people are stripped of everything, even of the profits of their corruption. Democracy has, therefore, two excesses to avoid -- the spirit of inequality, which leads to aristocracy or monarchy, and the spirit of extreme equality, which leads to despotic power, as the latter is completed by conquest. True it is that those who corrupted the Greek republics did not always become tyrants. This was because they had a greater passion for eloquence than for the military art. Besides there reigned an implacable hatred in the breasts of the Greeks against those who subverted a republican government; and for this reason anarchy degenerated into annihilation, instead of being changed into tyranny. But Syracuse being situated in the midst of a great number of petty states, whose government had been changed from oligarchy to tyranny,[1] and being governed by a senate[2] scarcely ever mentioned in history, underwent such miseries as are the consequence of a more than ordinary corruption. This city, ever a prey to licentiousness[3] or oppression, equally labouring under the sudden and alternate succession of liberty and servitude, and notwithstanding her external strength, constantly determined to a revolution by the least foreign power -- this city, I say, had in her bosom an immense multitude of people, whose fate it was to have always this cruel alternative, either of choosing a tyrant to govern them, or of acting the tyrant themselves. 3. Of the Spirit of extreme Equality. As distant as heaven is from earth, so is the true spirit of equality from that of extreme equality. The former does not imply that everybody should command, or that no one should be commanded, but that we obey or command our equals. It endeavours not to shake off the authority of a master, but that its masters should be none but its equals. In the state of nature, indeed, all men are born equal, but they cannot continue in this equality. Society makes them lose it, and they recover it only by the protection of the laws. Such is the difference between a well-regulated democracy and one that is not so, that in the former men are equal only as citizens, but in the latter they are equal also as magistrates, as senators, as judges, as fathers, as husbands, or as masters. The natural place of virtue is near to liberty; but it is not nearer to excessive liberty than to servitude. 4. Particular Cause of the Corruption of the People. Great success, especially when chiefly owing to the people, intoxicates them to such a degree that it is impossible to contain them within bounds. Jealous of their magistrates, they soon became jealous likewise of the magistracy; enemies to those who govern, they soon prove enemies also to the constitution. Thus it was that the victory over the Persians in the straits of Salamis corrupted the republic of Athens;[4] and thus the defeat of the Athenians ruined the republic of Syracuse.[5] Marseilles never experienced those great transitions from lowness to grandeur; this was owing to the prudent conduct of that republic, which always preserved her principles. 5. Of the Corruption of the Principle of Aristocracy. Aristocracy is corrupted if the power of the nobles becomes arbitrary: when this is the case, there can no longer be any virtue either in the governors or the governed. If the reigning families observe the laws, it is a monarchy with several monarchs, and in its own nature one of the most excellent; for almost all these monarchs are tied down by the laws. But when they do not observe them, it is a despotic state swayed by a great many despotic princes. In the latter case, the republic consists only in the nobles. The body governing is the republic; and the body governed is the despotic state; which forms two of the most heterogeneous bodies in the world. The extremity of corruption is when the power of the nobles becomes hereditary;[6] for then they can hardly have any moderation. If they are only a few, their power is greater, but their security less: if they are a larger number, their power is less, and their security greater, insomuch that power goes on increasing, and security diminishing, up to the very despotic prince who is encircled with excess of power and danger. The great number, therefore, of nobles in an hereditary aristocracy renders the government less violent: but as there is less virtue, they fall into a spirit of supineness and negligence, by which the state loses all its strength and activity.[7] An aristocracy may maintain the full vigour of its constitution if the laws be such as are apt to render the nobles more sensible of the perils and fatigues than of the pleasure of command: and if the government be in such a situation as to have something to dread, while security shelters under its protection, and uncertainty threatens from abroad. As a certain kind of confidence forms the glory and stability of monarchies, republics, on the contrary, must have something to apprehend.[8] A fear of the Persians supported the laws of Greece. Carthage and Rome were alarmed, and strengthened by each other. Strange, that the greater security those states enjoyed, the more, like stagnated waters, they were subject to corruption! 6. Of the Corruption of the Principle of Monarchy. As democracies are subverted when the people despoil the senate, the magistrates, the judges of their functions, so monarchies are corrupted when the prince insensibly deprives societies or cities of their privileges. In the former case the multitude usurp the power, in the latter it is usurped by a single person. "The destruction of the dynasties of Tsin and Soui," says a Chinese author, "was owing to this: the princes, instead of confining themselves, like their ancestors, to a general inspection, the only one worthy of a sovereign, wanted to govern everything immediately by themselves."[9] The Chinese author gives us in this instance the cause of the corruption of almost all monarchies. Monarchy is destroyed when a prince thinks he shows a greater exertion of power in changing than in conforming to the order of things; when he deprives some of his subjects of their hereditary employments to bestow them arbitrarily upon others; and when he is fonder of being guided by fancy than judgment. Again, it is destroyed when the prince, directing everything entirely to himself, calls the state to his capital, the capital to his court, and the court to his own person. It is destroyed, in fine, when the prince mistakes his authority, his situation and the love of his people, and when he is not fully persuaded that a monarch ought to think himself secure, as a despotic prince ought to think himself in danger. 7. The same Subject continued. The principle of monarchy is corrupted when the first dignities are marks of the first servitude, when the great men are deprived of public respect, and rendered the low tools of arbitrary power. It is still more corrupted when honour is set up in contradiction to honours, and when men are capable of being loaded at the very same time with infamy[10] and with dignities. It is corrupted when the prince changes his justice into severity; when he puts, like the Roman emperors, a Medusa's head on his breast;[11] and when he assumes that menacing and terrible air which Commodus ordered to be given to his statues.[12] Again, it is corrupted when mean and abject souls grow vain of the pomp attending their servitude, and imagine that the motive which induces them to be entirely devoted to their prince exempts them from all duty to their country. But if it be true (and indeed the experience of all ages has shown it) that in proportion as the power of the monarch becomes boundless and immense, his security diminishes, is the corrupting of this power, and the altering of its very nature, a less crime than that of high treason against the prince? 8. Danger of the Corruption of the Principle of monarchical Government. The danger is not when the state passes from one moderate to another moderate government, as from a republic to a monarchy, or from a monarchy to a republic; but when it is precipitated from a moderate to a despotic government. Most of the European nations are still governed by the principles of morality. But if from a long abuse of power or the fury of conquest, despotic sway should prevail to a certain degree, neither morals nor climate would be able to withstand its baleful influence: and then human nature would be exposed, for some time at least, even in this beautiful part of the world, to the insults with which she has been abused in the other three. 9. How ready the Nobility are to defend the Throne. The English nobility buried themselves with Charles the First under the ruins of the throne; and before that time, when Philip the Second endeavoured to tempt the French with the allurement of liberty, the crown was constantly supported by a nobility who think it an honour to obey a king, but consider it as the lowest disgrace to share the power with the people. The house of Austria has ever used her endeavours to oppress the Hungarian nobility; little thinking how serviceable that very nobility would be one day to her. She would fain have drained their country of money, of which they had no plenty; but took no notice of the men, with whom it abounded. When princes combined to dismember her dominions, the several parts of that monarchy fell motionless, as it were one upon another. No life was then to be seen but in those very nobles, who, resenting the affronts offered to the sovereign, and forgetting the injuries done to themselves, took up arms to avenge her cause, and considered it the highest glory bravely to die and to forgive. 10. Of the Corruption of the Principle of despotic Government. The principle of despotic government is subject to a continual corruption, because it is even in its nature corrupt. Other governments are destroyed by particular accidents, which do violence to the principles of each constitution; this is ruined by its own intrinsic imperfections, when some accidental causes do not prevent the corrupting of its principles. It maintains itself therefore only when circumstances, drawn from the climate, religion, situation, or genius of the people, oblige it to conform to order, and to admit of some rule. By these things its nature is forced without being changed; its ferocity remains; and it is made tame and tractable only for a time. 11. Natural Effects of the Goodness and Corruption of the Principles of Government. When once the principles of government are corrupted, the very best laws become bad, and turn against the state: but when the principles are sound, even bad laws have the same effect as good; the force of the principle draws everything to it. The inhabitants of Crete used a very singular method to keep the principal magistrates dependent on the laws, which was that of Insurrection. Part of the citizens rose up in arms,[13] put the magistrates to flight, and obliged them to return to a private life. This was supposed to be done in consequence of the law. One would have imagined that an institution of this nature, which established sedition to hinder the abuse of power, would have subverted any republic whatsoever; and yet it did not subvert that of Crete. The reason is this.[14] When the ancients would cite a people that had the strongest affection for their country, they were sure to mention the inhabitants of Crete: "Our Country," said Plato,[15] "a name so dear to the Cretans." They called it by a name which signifies the love of a mother for her children.[16] Now the love of our country sets everything right. The laws of Poland have likewise their Insurrection: but the inconveniences thence arising plainly show that the people of Crete alone were capable of using such a remedy with success. The gymnic exercises established among the Greeks had the same dependence on the goodness of the principle of government. "It was the Laced?monians and Cretans," said Plato,[17] "that opened those celebrated academies which gave them so eminent a rank in the world. Modesty at first was alarmed; but it yielded to the public utility." In Plato's time these institutions were admirable:[18] as they bore a relation to a very important object, which was the military art. But when virtue fled from Greece, the military art was destroyed by these institutions; people appeared then on the arena, not for improvement, but for debauch.[19] Plutarch informs us[20] that the Romans in his time were of opinion that those games had been the principal cause of the slavery into which the Greeks had fallen. On the contrary, it was the slavery of the Greeks that corrupted those exercises. In Plutarch's time,[21] their fighting naked in the parks, and their wrestling, infected the young people with a spirit of cowardice, inclined them to infamous passions, and made them mere dancers. But under Epaminondas the exercise of wrestling made the Thebans win the famous battle of Leuctra.[22] There are very few laws which are not good, while the state retains its principles: here I may apply what Epicurus said of riches. "It is not the liquor, but the vessel that is corrupted." 12. The same Subject continued. In Rome the judges were chosen at first from the order of senators. This privilege the Gracchi transferred to the knights; Drusus gave it to the senators and knights; Sulla to the senators only: Cotta to the senators, knights, and public treasurers; C?sar excluded the latter; Antony made decuries of senators, knights, and centurions. When once a republic is corrupted, there is no possibility of remedying any of the growing evils, but by removing the corruption and restoring its lost principles; every other correction is either useless or a new evil. While Rome preserved her principles entire, the judicial power might without any abuse be lodged in the hands of senators; but as soon as this city became corrupt, to whatsoever body that power was transferred, whether to the senate, to the knights, to the treasurers, to two of those bodies, to all three together, or to any other, matters still went wrong. The knights had no more virtue than the senate, the treasurers no more than the knights, and these as little as the centurions. After the people of Rome had obtained the privilege of sharing the magistracy with the patricians, it was natural to think that their flatterers would immediately become arbiters of the government. But no such thing ever happened. -- It was observable that the very people who had rendered the plebeians capable of public offices ever fixed their choice upon the patricians. Because they were virtuous, they were magnanimous; and because they were free, they had a contempt of power. But when their morals were corrupted, the more power they were possessed of, the less prudent was their conduct, till at length, upon becoming their own tyrants and slaves, they lost the strength of liberty to fall into the weakness and impotency of licentiousness. 13. The Effect of an Oath among virtuous People. There is no nation, says Livy,[23] that has been longer uncorrupted than the Romans; no nation where moderation and poverty have been longer respected. Such was the influence of an oath among those people that nothing bound them more strongly to the laws. They often did more for the observance of an oath than they would ever have performed for the thirst of glory or for the love of their country. When Quintus Cincinnatus, the consul, wanted to raise an army in the city against the ?qui and the Volsci, the tribunes opposed him. "Well," said he, "let all those who have taken an oath to the consul of the preceding year march under my banner."[24] In vain did the tribunes cry out that this oath was no longer binding, and that when they took it Quintus was but a private person: the people were more religious than those who pretended to direct them; they would not listen to the distinctions or equivocations of the tribunes. When the same people thought of retiring to the Sacred Mount, they felt some remorse from the oath they had taken to the consuls, that they would follow them into the field.[25] They entered then into a design of killing the consuls; but dropped it when they were given to understand that their oath would still be binding. Now it is easy to judge of the notion they entertained of the violation of an oath from the crime they intended to commit. After the battle of Cann?, the people were seized with such a panic that they would fain have retired to Sicily. But Scipio having prevailed upon them to swear they would not stir from Rome, the fear of violating this oath surpassed all other apprehensions. Rome was a ship held by two anchors, religion and morality, in the midst of a furious tempest. 14. How the smallest Change of the Constitution is attended with the Ruin of its Principles. Aristotle mentions the city of Carthage as a well-regulated republic. Polybius tells us[26] that there was this inconvenience at Carthage in the second Punic war, that the senate had lost almost all its authority. We are informed by Livy that when Hannibal returned to Carthage he found that the magistrates and the principal citizens had abused their power, and converted the public revenues to their private emolument. The virtue, therefore, of the magistrates, and the authority of the senate, both fell at the same time; and all was owing to the same cause. Every one knows the wonderful effects of the censorship among the Romans. There was a time when it grew burdensome; but still it was supported because there was more luxury than corruption. Claudius[27] weakened its authority, by which means the corruption became greater than the luxury, and the censorship dwindled away of itself.[28] After various interruptions and resumptions, it was entirely laid aside, till it became altogether useless, that is, till the reigns of Augustus and Claudius. 15. Sure Methods of preserving the three Principles. I shall not be able to make myself rightly understood till the reader has perused the four following chapters. 16. Distinctive Properties of a Republic. It is natural for a republic to have only a small territory; otherwise it cannot long subsist. In an extensive republic there are men of large fortunes, and consequently of less moderation; there are trusts too considerable to be placed in any single subject; he has interests of his own; he soon begins to think that he may be happy and glorious, by oppressing his fellow-citizens; and that he may raise himself to grandeur on the ruins of his country. In an extensive republic the public good is sacrificed to a thousand private views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is more obvious, better understood, and more within the reach of every citizen; abuses have less extent, and of course are less protected. The long duration of the republic of Sparta was owing to her having continued in the same extent of territory after all her wars. The sole aim of Sparta was liberty; and the sole advantage of her liberty, glory. It was the spirit of the Greek republics to be as contented with their territories as with their laws. Athens was first fired with ambition and gave it to Laced?mon; but it was an ambition rather of commanding a free people than of governing slaves; rather of directing than of breaking the union. All was lost upon the starting up of monarchy -- a government whose spirit is more turned to increase of dominion. Excepting particular circumstances,[29] it is difficult for any other than a republican government to subsist longer in a single town. A prince of so petty a state would naturally endeavour to oppress his subjects, because his power would be great, while the means of enjoying it or of causing it to be respected would be inconsiderable. The consequence is, he would trample upon his people. On the other hand, such a prince might be easily crushed by a foreign or even a domestic force; the people might any instant unite and rise up against him. Now as soon as the sovereign of a single town is expelled, the quarrel is over; but if he has many towns, it only begins. 17. Distinctive Properties of a Monarchy. A monarchical state ought to be of moderate extent. Were it small, it would form itself into a republic; were it very large, the nobility, possessed of great estates, far from the eye of the prince, with a private court of their own, and secure, moreover, from sudden executions by the laws and manners of the country -- such a nobility, I say, might throw off their allegiance, having nothing to fear from too slow and too distant a punishment. Thus Charlemagne had scarcely founded his empire when he was obliged to divide it; whether the governors of the provinces refused to obey; or whether, in order to keep them more under subjection, there was a necessity of parcelling the empire into several kingdoms. After the decease of Alexander his empire was divided. How was it possible for those Greek and Macedonian chiefs, who were each of them free and independent, or commanders at least of the victorious bands dispersed throughout that vast extent of conquered land -- how was it possible, I say, for them to obey? Attila's empire was dissolved soon after his death; such a number of kings, who were no longer under restraint, could not resume their fetters. The sudden establishment of unlimited power is a remedy, which in those cases may prevent a dissolution: but how dreadful the remedy, which after the enlargement of dominion opens a new scene of misery! The rivers hasten to mingle their waters with the sea; and monarchies lose themselves in despotic power. 18. Particular Case of the Spanish Monarchy. Let not the example of Spain be produced against me, it rather proves what I affirm. To preserve America she did what even despotic power itself does not attempt: she destroyed the inhabitants. To preserve her colony, she was obliged to keep it dependent even for its subsistence. In the Netherlands, she essayed to render herself arbitrary; and as soon as she abandoned the attempt, her perplexity increased. On the one hand the Walloons would not be governed by Spaniards; and on the other, the Spanish soldiers refused to submit to Walloon officers.[30] In Italy she maintained her ground, merely by exhausting herself and by enriching that country. For those who would have been pleased to have got rid of the king of Spain were not in a humour to refuse his gold. 19. Distinctive Properties of a despotic Government. A large empire supposes a despotic authority in the person who governs. It is necessary that the quickness of the prince's resolutions should supply the distance of the places they are sent to; that fear should prevent the remissness of the distant governor or magistrate; that the law should be derived from a single person, and should shift continually, according to the accidents which necessarily multiply in a state in proportion to its extent. 20. Consequence of the preceding Chapters. If it be, therefore, the natural property of small states to be governed as a republic, of middling ones to be subject to a monarch, and of large empires to be swayed by a despotic prince; the consequence is, that in order to preserve the principles of the established government, the state must be supported in the extent it has acquired, and that the spirit of this state will alter in proportion as it contracts or extends its limits. 21. Of the Empire of China. Before I conclude this book, I shall answer an objection that may be made to the foregoing doctrine. Our missionaries inform us that the government of the vast empire of China is admirable, and that it has a proper mixture of fear, honour, and virtue. Consequently I must have given an idle distinction in establishing the principles of the three governments. But I cannot conceive what this honour can be among a people who act only through fear of being bastinadoed.[31] Again, our merchants are far from giving us any such accounts of the virtue so much talked of by the missionaries; we need only consult them in relation to the robberies and extortions of the mandarins.[32] I likewise appeal to another unexceptional witness, the great Lord Anson. Besides, Father Perennin's letters concerning the emperor's proceedings against some of the princes of the blood[33] who had incurred his displeasure by their conversion, plainly show us a settled plan of tyranny, and barbarities committed by rule, that is, in cold blood. We have likewise Monsieur de Mairan's, and the same Father Perennin's, letters on the government of China. I find therefore that after a few proper questions and answers the whole mystery is unfolded. Might not our missionaries have been deceived by an appearance of order? Might not they have been struck with that constant exercise of a single person's will -- an exercise by which they themselves are governed, and which they are so pleased to find in the courts of the Indian princes; because as they go thither only in order to introduce great changes, it is much easier to persuade those princes that there are no bounds to their power, than to convince the people that there are none to their submission.[34] In fine, there is frequently some kind of truth even in errors themselves. It may be owing to particular and, perhaps, very extraordinary circumstances that the Chinese government is not so corrupt as one might naturally expect. The climate and some other physical causes may, in that country, have had so strong an influence on their morals as in some measure to produce wonders. The climate of China is surprisingly favourable to the propagation of the human species.[35] The women are the most prolific in the whole world. The most barbarous tyranny can put no stop to the progress of propagation. The prince cannot say there like Pharaoh, "Let us deal wisely with them, lest they multiply." He would be rather reduced to Nero's wish, that mankind had all but one head. In spite of tyranny, China by the force of its climate will be ever populous, and triumph over the tyrannical oppressor. China, like all other countries that live chiefly upon rice, is subject to frequent famines. When the people are ready to starve, they disperse in order to seek for nourishment; in consequence of which, gangs of robbers are formed on every side. Most of them are extirpated in their very infancy; others swell, and are likewise suppressed. And yet in so great a number of such distant provinces, some band or other may happen to meet with success. In that case they maintain their ground, strengthen their party, form themselves into a military body, march up to the capital, and place their leader on the throne. From the very nature of things, a bad administration is here immediately punished. The want of subsistence in so populous a country produces sudden disorders. The reason why the redress of abuses in other countries is attended with such difficulty is because their effects are not immediately felt; the prince is not informed in so sudden and sensible a manner as in China. The Emperor of China is not taught like our princes that if he governs ill he will be less happy in the other life, less powerful and less opulent in this. He knows that if his government be not just he will be stripped both of empire and life. As China grows every day more populous, notwithstanding the exposing of children,[36] the inhabitants are incessantly employed in tilling the lands for their subsistence. This requires a very extraordinary attention in the government. It is their perpetual concern that every man should have it in his power to work, without the apprehension of being deprived of the fruits of his labour. Consequently this is not so much a civil as a domestic government. Such has been the origin of those regulations which have been so greatly extolled. They wanted to make the laws reign in conjunction with despotic power; but whatever is joined to the latter loses all its force. In vain did this arbitrary sway, labouring under its own inconveniences, desire to be fettered; it armed itself with its chains, and has become still more terrible. China is therefore a despotic state, whose principle is fear. Perhaps in the earliest dynasties, when the empire had not so large an extent, the government might have deviated a little from this spirit; but the case is otherwise at present. ______ 1. See Plutarch in Timoleon and Dion. 2. It was that of the Six Hundred, of whom mention is made by Diodorus, xix. 5. 3. Upon the expulsions of the tyrants, they made citizens of strangers and mercenary troops, which gave rise to civil wars. -- Aristotle, Politics, v. 3. The people having been the cause of the victory over the Athenians, the republic was changed. -- Ibid., 4. The passion of two young magistrates, one of whom carried off the other's boy, and in revenge the other debauched his wife, was attended with a change in the form of this republic. -- Ibid. 4. Ibid. 5. Ibid. 6. The aristocracy is changed into an oligarchy. 7. Venice is one of those republics that has enacted the best laws for correcting the inconveniences of an hereditary aristocracy. 8. Justin attributes the extinction of Athenian virtue to the death of Epaminondas. Having no further emulation, they spent their revenues in feasts, frequentius coenam, quam castra visentes. Then it was that the Macedonians emerged from obscurity, 9, 1. 6. 9. Compilation of works made under the Mings, related by Father Du Halde, Description of China, ii, p. 648. 10. During the reign of Tiberius statues were erected to, and triumphal ornaments conferred on, informers; which debased these honours to such a degree that those who had really merited them disdained to accept them. Frag. of Dio, lviii. 14, taken from the Extract of Virtues and Vices, by Constantine Porphyrogenitus. See in Tacitus in what manner Nero, on the discovery and punishment of a pretended conspiracy, bestowed triumphal ornaments on Petronius Turpilianus, Nerva, and Tigellinus. -- Annals, xiv. 72. See likewise how the generals refused to serve, because they condemned the military honours: pervulgatis triumphi insignibus -- Ibid., xiii. 53. 11. In this state the prince knew extremely well the principle of his government. 12. Herodian. 13. Aristotle, Politics, ii. 10. 14. They always united immediately against foreign enemies, which was called Syncretism. -- Plutarch Moralia, p. 88. 15. Republic, ix. 16. Plutarch, Whether a Man Advanced in Years Ought to Meddle with Public Affairs. 17. Republic, v. 18. The Gymnic art was divided into two parts, dancing and wrestling. In Crete they had the armed dances of the Curetes; at Sparta they had those of Castor and Pollux; at Athens the armed dances of Pallas, which were extremely proper for those that were not yet of age for military service. Wrestling is the image of war, said Plato Laws, vii. He commends antiquity for having established only two dances, the pacific and the Pyrrhic. See how the latter dance was applied to the military art, Plato, ibid. 19. Aut libidinosce. Lad?as Lacedamonis pal?stras. -- Mutual, iv, 55. 20. Plutarch, in the treatise entitled Questions Concerning the Affairs of the Romans, question 40. 21. Ibid. 22. Plutarch, Table Propositions, book ii, question 5. 23. Book i, pref. 24. Livy, iii. 20. 25. Ibid., 32. 26. About a hundred years after. 27. See xi, 12. 28. See Dio, xxxviii, Cicero in Plutarch, Cicero to Atticus, iv. 10, 15. Asconius on Cicero, De Divinatione. 29. As when a petty sovereign supports himself between two great powers by means of their mutual jealousy; but then he has only a precarious existence. 30. See M. Le Clerc, the History of the United Provinces. 31. "It is the cudgel that governs China," says Father Du Halde, Disc. de la Chine, ii, p. 134. 32. Among others, De Lange's account. 33. Of the Family of Sourniama, Edifying Letters, coll. xviii. 34. See in Father Du Halde how the missionaries availed themselves of the authority of Canhi to silence the mandarins, who constantly declared that by the laws of the country no foreign worship could be established in the empire. 35. See Lettres persanes, 210. 36. See the order of Tsongtou for tilling the land, in the Edifying Letters, coll. xxi. ------------------------------------------------------------------------ Book IX. Of Laws in the Relation They Bear to a Defensive Force 1. In what Manner Republics provide for their Safety. If a republic be small, it is destroyed by a foreign force; if it be large, it is ruined by an internal imperfection. To this twofold inconvenience democracies and aristocracies are equally liable, whether they be good or bad. The evil is in the very thing itself, and no form can redress it. It is, therefore, very probable that mankind would have been, at length, obliged to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical, government. I mean a confederate republic. This form of government is a convention by which several petty states agree to become members of a larger one, which they intend to establish. It is a kind of assemblage of societies, that constitute a new one, capable of increasing by means of further associations, till they arrive at such a degree of power as to be able to provide for the security of the whole body. It was these associations that so long contributed to the prosperity of Greece. By these the Romans attacked the whole globe, and by these alone the whole globe withstood them; for when Rome had arrived at her highest pitch of grandeur, it was the associations beyond the Danube and the Rhine -- associations formed by the terror of her arms -- that enabled the barbarians to resist her. Hence it proceeds that Holland,[1] Germany, and the Swiss cantons are considered in Europe as perpetual republics. The associations of cities were formerly more necessary than in our times. A weak, defenceless town was exposed to greater danger. By conquest it was deprived not only of the executive and legislative power, as at present, but moreover of all human property.[2] A republic of this kind, able to withstand an external force, may support itself without any internal corruption; the form of this society prevents all manner of inconveniences. If a single member should attempt to usurp the supreme power, he could not be supposed to have an equal authority and credit in all the confederate states. Were he to have too great an influence over one, this would alarm the rest; were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped, and overpower him before he could be settled in his usurpation. Should a popular insurrection happen in one of the confederate states, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty. As this government is composed of petty republics, it enjoys the internal happiness of each; and with regard to its external situation, by means of the association, it possesses all the advantages of large monarchies. 2. That a confederate Government ought to be composed of States of the same Nature, especially of the republican Kind. The Canaanites were destroyed by reason that they were petty monarchies, that had no union or confederacy for their common defence; and, indeed, a confederacy is not agreeable to the nature of petty monarchies. As the confederate republic of Germany consists of free cities, and of petty states subject to different princes, experience shows us that it is much more imperfect than that of Holland and Switzerland. The spirit of monarchy is war and enlargement of dominion: peace and moderation are the spirit of a republic. These two kinds of government cannot naturally subsist in a confederate republic. Thus we observe, in the Roman history, that when the Veientes had chosen a king, they were immediately abandoned by all the other petty republics of Tuscany. Greece was undone as soon as the kings of Macedon obtained a seat among the Amphyktyons. The confederate republic of Germany, composed of princes and free towns, subsists by means of a chief, who is, in some respects, the magistrate of the union, in others, the monarch. 3. Other Requisites in a confederate Republic. In the republic of Holland one province cannot conclude an alliance without the consent of the others. This law, which is an excellent one, and even necessary in a confederate republic, is wanting in the Germanic constitution, where it would prevent the misfortunes that may happen to the whole confederacy, through the imprudence, ambition, or avarice of a single member. A republic united by a political confederacy has given itself entirely up, and has nothing more to resign. It is difficult for the united states to be all of equal power and extent. The Lycian[3] republic was an association of twenty-three towns; the large ones had three votes in the common council, the middling ones two, and the small towns one. The Dutch republic consists of seven provinces of different extent of territory, which have each one voice. The cities of Lycia[4] contributed to the expenses of the state, according to the proportion of suffrages. The provinces of the United Netherlands cannot follow this proportion; they must be directed by that of their power. In Lycia[5] the judges and town magistrates were elected by the common council, and according to the proportion already mentioned. In the republic of Holland they are not chosen by the common council, but each town names its magistrates. Were I to give a model of an excellent confederate republic, I should pitch upon that of Lycia. 4. In what Manner despotic Governments provide for their Security. As republics provide for their security by uniting, despotic governments do it by separating, and by keeping themselves, as it were, single. They sacrifice a part of the country; and by ravaging and desolating the frontiers they render the heart of the empire inaccessible. It is a received axiom in geometry that the greater the extent of bodies, the more their circumference is relatively small. This practice, therefore, of laying the frontiers waste is more tolerable in large than in middling states. A despotic government does all the mischief to itself that could be committed by a cruel enemy, whose arms it were unable to resist. It preserves itself likewise by another kind of separation, which is by putting the most distant provinces into the hands of a great vassal. The Mogul, the king of Persia, and the emperors of China have their feudatories; and the Turks have found their account in putting the Tartars, the Moldavians, the Wallachians, and formerly the Transylvanians, between themselves and their enemies. 5. In what Manner a Monarchical Government provides for its Security. A monarchy never destroys itself like a despotic government. But a kingdom of a moderate extent is liable to sudden invasions: it must therefore have fortresses to defend its frontiers; and troops to garrison those fortresses. The least spot of ground is disputed with military skill and resolution. Despotic states make incursions against one another; it is monarchies only that wage war. Fortresses are proper for monarchies; despotic governments are afraid of them. They dare not entrust their officers with such a command, as none of them have any affection for the prince or his government. 6. Of the defensive Force of States in general. To preserve a state in its due force, it must have such an extent as to admit of a proportion between the celerity with which it may be invaded, and that with which it may defeat the invasion. As an invader may appear on every side, it is requisite that the state should be able to make on every side its defence; consequently it should be of a moderate extent, proportioned to the degree of velocity that nature has given to man, to enable him to move from one place to another. France and Spain are exactly of a proper extent. They have so easy a communication for their forces as to be able to convey them immediately to what part they have a mind; the armies unite and pass with rapidity from one frontier to another, without any apprehension of such difficulties as require time to remove. It is extremely happy for France that the capital stands near to the different frontiers in proportion to their weakness; and the prince has a better view of each part of his country according as it is more exposed. But when a vast empire, like Persia, is attacked, it is several months before the troops are assembled in a body; and then they are not able to make such forced marches, for that space of time, as they could for fifteen days. Should the army on the frontiers be defeated, it is soon dispersed, because there is no neighbouring place of retreat. The victor, meeting with no resistance, advances with all expedition, sits down before the capital, and lays siege to it, when there is scarcely time sufficient to summon the governors of the provinces to its relief. Those who foresee an approaching revolution hasten it by their disobedience. For men whose fidelity is entirely owing to the danger of punishment are easily corrupted as soon as it becomes distant; their aim is their own private interest. The empire is subverted, the capital taken, and the conqueror disputes the several provinces with the governors. The real power of a prince does not consist so much in the facility he meets with in making conquests as in the difficulty an enemy finds in attacking him, and, if I may so speak, in the immutability of his condition. But the increase of territory obliges a government to lay itself more open to an enemy. As monarchs therefore ought to be endued with wisdom in order to increase their power, they ought likewise to have an equal share of prudence to confine it within bounds. Upon removing the inconveniences of too small a territory, they should have their eye constantly on the inconveniences which attend its extent. 7. A Reflection. The enemies of a great prince, whose reign was protracted to an unusual length, have very often accused him, rather, I believe, from their own fears than upon any solid foundation, of having formed and carried on a project of universal monarchy. Had he attained his aim, nothing would have been more fatal to his subjects, to himself, to his family, and to all Europe. Heaven, that knows our true interests, favoured him more by preventing the success of his arms than it could have done by crowning him with victories. Instead of raising him to be the only sovereign in Europe, it made him happier by rendering him the most powerful. The subjects of this prince, who in travelling abroad are never affected but with what they have left at home; who on quitting their own habitations look upon glory as their chief object, and in distant countries as an obstacle to their return; who disgust you even by their good qualities, because they are tainted with so much vanity; who are capable of supporting wounds, perils, and fatigues, but not of foregoing their pleasures; who are supremely fond of gaiety, and comfort themselves for the loss of a battle by a song upon the general: those subjects, I say, would never have the solidity requisite for an enterprise of this kind, which if defeated in one country would be unsuccessful everywhere else; and if once unsuccessful, would be so for ever. 8. A particular Case in which the defensive Force of a State is inferior to the offensive. It was a saying of the Lord of Coucy to King Charles V that the English are never weaker, nor more easily overcome, than in their own country. The same was observed of the Romans; the same of the Carthaginians; and the same will happen to every power that sends armies to distant countries, in order to reunite by discipline and military force those who are divided among themselves by political or civil interests. The state finds itself weakened by the disorder that still continues, and more so by the remedy. The Lord of Coucy's maxim is an exception to the general rule, which disapproves of wars against distant countries. And this exception confirms likewise the rule because it takes place only with regard to those by whom such wars are undertaken. 9. Of the relative Force of States. All grandeur, force, and power are relative. Care therefore must be taken that in endeavouring to increase the real grandeur, the relative be not diminished. During the reign of Louis XIV France was at its highest pitch of relative grandeur. Germany had not yet produced such powerful princes as have since appeared in that country. Italy was in the same case. England and Scotland were not yet formed into one united kingdom. Aragon was not joined to Castile: the distant branches of the Spanish monarchy were weakened by it, and weakened it in their turn; and Muscovy was as little known in Europe as Crim Tartary. 10. Of the Weakness of neighbouring States. Whensoever a state lies contiguous to another that happens to be in its decline, the former ought to take particular care not to precipitate the ruin of the latter, because this is the happiest situation imaginable; nothing being so convenient as for one prince to be near another, who receives for him all the rebuffs and insults of fortune. And it seldom happens that by subduing such a state the real power of the conqueror is as much increased as the relative is diminished. ______ 1. It is composed of about fifty different republics, all different from one another. -- M. Janisson, State of the United Provinces. 2. Civil liberty, goods, wives, children, temples, and even burying-places. 3. Strabo, xiv. 4. Ibid. 5. Ibid. ------------------------------------------------------------------------ Book X. Of Laws in the Relation They Bear to Offensive Force 1. Of offensive Force. Offensive force is regulated by the law of nations, which is the political law of each country considered in its relation to every other. 2. Of War. The life of governments is like that of man. The latter has a right to kill in case of natural defence: the former have a right to wage war for their own preservation. In the case of natural defence I have a right to kill, because my life is in respect to me what the life of my antagonist is to him: in the same manner a state wages war because its preservation is like that of any other being. With individuals the right of natural defence does not imply a necessity of attacking. Instead of attacking they need only have recourse to proper tribunals. They cannot therefore exercise this right of defence but in sudden cases, when immediate death would be the consequence of waiting for the assistance of the law. But with states the right of natural defence carries along with it sometimes the necessity of attacking; as for instance, when one nation sees that a continuance of peace will enable another to destroy her, and that to attack that nation instantly is the only way to prevent her own destruction. Thence it follows that petty states have oftener a right to declare war than great ones, because they are oftener in the case of being afraid of destruction. The right of war, therefore, is derived from necessity and strict justice. If those who direct the conscience or councils of princes do not abide by this maxim, the consequence is dreadful: when they proceed on arbitrary principles of glory, convenience, and utility, torrents of blood must overspread the earth. But, above all, let them not plead such an idle pretext as the glory of the prince: his glory is nothing but pride; it is a passion, and not a legitimate right. It is true the fame of his power might increase the strength of his government; but it might be equally increased by the reputation of his justice. 3. Of the Right of Conquest. From the right of war comes that of conquest; which is the consequence of that right, and ought therefore to follow its spirit. The right the conqueror has over a conquered people is directed by four sorts of laws: the law of nature, which makes everything tend to the preservation of the species; the law of natural reason, which teaches us to do to others what we would have done to ourselves; the law that forms political societies, whose duration nature has not limited; and, in fine, the law derived from the nature of the thing itself. Conquest is an acquisition, and carries with it the spirit of preservation and use, not of destruction. The inhabitants of a conquered country are treated by the conqueror in one of the four following ways: Either he continues to rule them according to their own laws, and assumes to himself only the exercise of the political and civil government; or he gives them new political and civil government; or he destroys and disperses the society; or, in fine, he exterminates the people. The first way is conformable to the law of nations now followed; the fourth is more agreeable to the law of nations followed by the Romans: in respect to which I leave the reader to judge how far we have improved upon the ancients. We must give due commendations to our modern refinements in reason, religion, philosophy, and manners. The authors of our public law, guided by ancient histories, without confining themselves to cases of strict necessity, have fallen into very great errors. They have adopted tyrannical and arbitrary principles, by supposing the conquerors to be invested with I know not what right to kill: thence they have drawn consequences as terrible as the very principle, and established maxims which the conquerors themselves, when possessed of the least grain of sense, never presumed to follow. It is a plain case that when the conquest is completed, the conqueror has no longer a right to kill, because he has no longer the plea of natural defence and self-preservation. What has led them into this mistake is, that they imagined a conqueror had a right to destroy the state; whence they inferred that he had a right to destroy the men that compose it: a wrong consequence from a false principle. For from the destruction of the state it does not at all follow that the people who compose it ought to be also destroyed. The state is the association of men, and not the men themselves; the citizen may perish, and the man remain. From the right of killing in the case of conquest, politicians have drawn that of reducing to slavery -- a consequence as ill-grounded as the principle. There is no such thing as a right of reducing people to slavery, save when it becomes necessary for the preservation of the conquest. Preservation, and not servitude, is the end of conquest; though servitude may happen sometimes to be a necessary means of preservation. Even in that case it is contrary to the nature of things that the slavery should be perpetual. The people enslaved ought to be rendered capable of becoming subjects. Slavery in conquests is an accidental thing. When after the expiration of a certain space of time all the parts of the conquering state are connected with the conquered nation, by custom, marriages, laws, associations, and by a certain conformity of disposition, there ought to be an end of the slavery. For the rights of the conqueror are founded entirely on the opposition between the two nations in those very articles, whence prejudices arise, and the want of mutual confidence. A conqueror, therefore, who reduces the conquered people to slavery, ought always to reserve to himself the means (for means there are without number) of restoring them to their liberty. These are far from being vague and uncertain notions. Thus our ancestors acted, those ancestors who conquered the Roman empire. The laws they made in the heat and transport of passion and in the insolence of victory were gradually softened; those laws were at first severe, but were afterwards rendered impartial. The Burgundians, Goths, and Lombards would have the Romans continue a conquered people; but the laws of Euric, Gundebald, and Rotharis made the Romans and barbarians fellow-citizens.[1] Charlemagne, to tame the Saxons, deprived them of their liberty and property. Louis the Debonnaire made them a free people,[2] and this was one of the most prudent regulations during his whole reign. Time and servitude had softened their manners, and they ever after adhered to him with the greatest fidelity. 4. Some Advantages of a conquered People. Instead of inferring such destructive consequences from the right of conquest, much better would it have been for politicians to mention the advantages which this very right may sometimes give to a conquered people -- advantages which would be more sensibly and more universally experienced were our law of nations exactly followed, and established in every part of the globe. Conquered countries are, generally speaking, degenerated from their original institution. Corruption has crept in, the execution of the laws has been neglected, and the government has grown oppressive. Who can question but such a state would be a gainer, and derive some advantages from the very conquest itself, if it did not prove destructive? When a government has arrived at that degree of corruption as to be incapable of reforming itself, it would not lose much by being newly moulded. A conqueror who enters triumphant into a country where the moneyed men have, by a variety of artifices, insensibly arrived at innumerable ways of encroaching on the public, where the miserable people, who see abuses grown into laws, are ready to sink under the weight of impression, yet think they have no right to apply for redress -- a conqueror, I say, may make a total change, and then the tyranny of those wretches will be the first thing exposed to his resentment. We have beheld, for instance, countries oppressed by the farmers of the revenues, and eased afterwards by the conqueror, who had neither the engagements nor wants of the legitimate prince. Even the abuses have been often redressed without any interposition of the conqueror. Sometimes the frugality of a conquering nation has enabled them to allow the conquered those necessaries of which they had been deprived under a lawful prince. A conquest may destroy pernicious prejudices, and lay, if I may presume to use the expression, the nation under a better genius. What good might not the Spaniards have done to the Mexicans? They had a mild religion to impart to them; but they filled their heads with a frantic superstition. They might have set slaves at liberty; they made freemen slaves. They might have undeceived them with regard to the abuse of human sacrifices; instead of that they destroyed them. Never should I have finished, were I to recount all the good they might have done, and all the mischief they committed. It is a conqueror's business to repair a part of the mischief he has occasioned. The right, therefore, of conquest I define thus: a necessary, lawful, but unhappy power, which leaves the conqueror under a heavy obligation of repairing the injuries done to humanity. 5. Gelon, King of Syracuse. The noblest treaty of peace ever mentioned in history is, in my opinion, that which Gelon made with the Carthaginians. He insisted upon their abolishing the custom of sacrificing their children.[3] Glorious indeed! After having defeated three hundred thousand Carthaginians, he required a condition that was advantageous only to themselves, or rather he stipulated in favour of human nature. The Bactrians exposed their aged fathers to be devoured by large mastiffs -- a custom suppressed by Alexander, whereby he obtained a signal triumph over superstition. 6. Of Conquest made by a Republic. It is contrary to the nature of things that in a confederate government one state should make any conquest over another, as in our days we have seen in Switzerland.[4] In mixed confederate republics, where the association is between petty republics and monarchies, of a small extent, this is not so absurd. Contrary is it also to the nature of things that a democratic republic should conquer towns which cannot enter into the sphere of its democracy. It is necessary that the conquered people should be capable of enjoying the privileges of sovereignty, as was settled in the very beginning among the Romans. The conquest ought to be limited to the number of citizens fixed for the democracy. If a democratic republic subdues a nation in order to govern them as subjects, it exposes its own liberty; because it entrusts too great a power to those who are appointed to the command of the conquered provinces. How dangerous would have been the situation of the republic of Carthage had Hannibal made himself master of Rome? What would he not have done in his own country, had he been victorious, he who caused so many revolutions in it after his defeat?[5] Hanno could never have dissuaded the senate from sending succour to Hannibal, had he used no other argument than his own jealousy. The Carthaginian senate, whose wisdom is so highly extolled by Aristotle (and which has been evidently proved by the prosperity of that republic), could never have been determined by other than solid reasons. They must have been stupid not to see that an army at the distance of three hundred leagues would necessarily be exposed to losses which required reparation. Hanno's party insisted that Hannibal should be delivered up to the Romans.[6] They could not at that time be afraid of the Romans; they were therefore apprehensive of Hannibal. It was impossible, some will say, for them to imagine that Hannibal had been so successful. But how was it possible for them to doubt it? Could the Carthaginians, a people spread over all the earth, be ignorant of what was transacting in Italy? No: they were sufficiently acquainted with it, and for that reason they did not care to send supplies to Hannibal. Hanno became more resolute after the battle of Trebia, after the battle of Thrasimenus, after that of Cann?; it was not his incredulity that increased, but his fear. 7. The same Subject continued. There is still another inconvenience in conquests made by democracies: their government is ever odious to the conquered states. It is apparently monarchical: but in reality it is much more oppressive than monarchy, as the experience of all ages and countries evinces. The conquered people are in a melancholy situation; they neither enjoy the advantages of a republic, nor those of a monarchy. What has been here said of a popular state is applicable to aristocracy. 8. The same Subject continued. When a republic, therefore, keeps another nation in subjection, it should endeavour to repair the inconveniences arising from the nature of its situation by giving it good laws both for the political and civil government of the people. We have an instance of an island in the Mediterranean, subject to an Italian republic, whose political and civil laws with regard to the inhabitants of that island were extremely defective. The act of indemnity,[7] by which it ordained that no one should be condemned to bodily punishment in consequence of the private knowledge of the governor, ex informata conscientia, is still recent in everybody's memory. There have been frequent instances of the people's petitioning for privileges; here the sovereign grants only the common right of all nations. 9. Of Conquests made by a Monarchy. If a monarchy can long subsist before it is weakened by its increase, it will become formidable; and its strength will remain entire, while pent up by the neighbouring monarchies. It ought not, therefore, to aim at conquests beyond the natural limits of its government. So soon as it has passed these limits, it is prudence to stop. In this kind of conquest things must be left as they were found -- the same courts of judicature, the same laws, the same customs, the same privileges: there ought to be no other alteration than that of the army and of the name of the sovereign. When a monarchy has extended its limits by the conquest of neighbouring provinces, it should treat those provinces with great lenity. If a monarchy has been long endeavouring at conquest, the provinces of its ancient demesne are generally ill-used. They are obliged to submit both to the new and to the ancient abuses; and to be depopulated by a vast metropolis, that swallows up the whole. Now if, after having made conquests round this demesne, the conquered people were treated like the ancient subjects, the state would be undone; the taxes sent by the conquered provinces to the capital would never return; the inhabitants of the frontiers would be ruined, and consequently the frontiers would be weaker; the people would be disaffected; and the subsistence of the armies designed to act and remain there would become more precarious. Such is the necessary state of a conquering monarchy: a shocking luxury in the capital; misery in the provinces somewhat distant; and plenty in the most remote. It is the same with such a monarchy as with our planet; fire at the centre, verdure on the surface, and between both a dry, cold, and barren earth. 10. Of one Monarchy that subdues another. Sometimes one monarchy subdues another. The smaller the latter, the better it is overawed by fortresses; and the larger it is, the better will it be preserved by colonies. 11. Of the Manners of a conquered People. It is not sufficient in those conquests to let the conquered nation enjoy their own laws; it is, perhaps, more necessary to leave them also their manners, because people in general have a stronger attachment to these than to their laws. The French have been driven nine times out of Italy, because, as historians say,[8] of their insolent familiarities with the fair sex. It is too much for a nation to be obliged to bear not only with the pride of conquerors, but with their incontinence and indiscretion; these are, without doubt, most grievous and intolerable, as they are the source of infinite outrages. 12. Of a Law of Cyrus. Far am I from thinking that a good law which Cyrus made to oblige the Lydians to practise none but mean or infamous professions. It is true he directed his attention to an object of the greatest importance: he thought of guarding against revolts, and not invasions; but invasions will soon come, when the Persians and Lydians unite and corrupt each other. I would therefore much rather support by laws the simplicity and rudeness of the conquering nation than the effeminacy of the conquered. Aristodemus, tyrant of Cum?,[9] used all his endeavours to banish courage, and to enervate the minds of youth. He ordered that boys should let their hair grow in the same manner as girls, that they should deck it with flowers, and wear long robes of different colours down to their heels; that when they went to their masters of music and dancing, they should have women with them to carry their umbrellas, perfumes, and fans, and to present them with combs and looking-glasses whenever they bathed. This education lasted till the age of twenty -- an education that could be agreeable to none but to a petty tyrant, who exposes his sovereignty to defend his life. 13. Charles XII. This prince, who depended entirely on his own strength, hastened his ruin by forming designs that could never be executed but by a long war -- a thing which his kingdom was unable to support. It was not a declining state he undertook to subvert, but a rising empire. The Russians made use of the war he waged against them as of a military school. Every defeat brought them nearer to victory; and, losing abroad, they learned to defend themselves at home. Charles, in the deserts of Poland, imagined himself sovereign of the whole world: here he wandered, and with him in some measure wandered Sweden; while his capital enemy acquired new strength against him, locked him up, made settlements along the Baltic, destroyed or subdued Livonia. Sweden was like a river whose waters are cut off at the fountain head in order to change its course. It was not the affair of Pultowa that ruined Charles. Had he not been destroyed at that place, he would have been in another. The casualties of fortune are easily repaired; but who can be guarded against events that incessantly arise from the nature of things? But neither nature nor fortune were ever so much against him as he himself. He was not directed by the present situation of things, but by a kind of plan of his forming; and even this he followed very ill. He was not an Alexander; but he would have made an excellent soldier under that monarch. Alexander's project succeeded because it was prudently concerted. The bad success of the Persians in their several invasions of Greece, the conquests of Agesilaus, and the retreat of the ten thousand had shown to demonstration the superiority of the Greeks in their manner of fighting and in their arms; and it was well known that the Persians were too proud to be corrected. It was no longer possible for them to weaken Greece by divisions: Greece was then united under one head, which could not pitch upon a better method of rendering her insensible to her servitude than by flattering her vanity with the destruction of her hereditary enemy, and with the hopes of the conquest of Asia. An empire cultivated by the most industrious nation in the world, that followed agriculture from a principle of religion -- an empire abounding with every convenience of life, furnished the enemy with all necessary means of subsisting. It was easy to judge by the pride of those kings, who in vain were mortified by their numerous defeats, that they would precipitate their ruin by their forwardness in venturing battles; and that the flattery of their courtiers would never permit them to doubt of their grandeur. The project was not only wise, but wisely executed. Alexander, in the rapidity of his conquests, even in the impetuosity of his passion, had, if I may so express myself, a flash of reason by which he was directed, and which those who would fain have made a romance of his history, and whose minds were more corrupt than his, could not conceal from our view. Let us descend more minutely into his history. 14. Alexander. He did not set out upon his expedition till he had secured Macedonia against the neighbouring barbarians, and completed the reduction of Greece; he availed himself of this conquest for no other end than for the execution of his grand enterprise; he rendered the jealousy of the Laced?monians of no effect; he attacked the maritime provinces; he caused his land forces to keep close to the sea-coast, that they might not be separated from his fleet; he made an admirable use of discipline against numbers; he never wanted provisions; and if it be true that victory gave him everything, he, in his turn, did everything to obtain it. In the beginning of his enterprise -- a time when the least check might have proved his destruction -- he trusted very little to fortune; but when his reputation was established by a series of prosperous events, he sometimes had recourse to temerity. When before his departure for Asia he marched against the Triballians and Illyrians, you find he waged war[10] against those people in the very same manner as C?sar afterwards conducted that against the Gauls. Upon his return to Greece,[11] it was in some measure against his will that he took and destroyed Thebes. When he invested that city, he wanted the inhabitants to come into terms of peace; but they hastened their own ruin. When it was debated whether he should attack the Persian fleet,[12] it is Parmenio who shows his presumption, Alexander his wisdom. His aim was to draw the Persians from the sea-coast, and to lay them under a necessity of abandoning their marine, in which they had a manifest superiority. Tyre being from principle attached to the Persians, who could not subsist without the commerce and navigation of that city, Alexander destroyed it. He subdued Egypt, which Darius had left bare of troops while he was assembling immense armies in another world. To the passage of the Granicus, Alexander owed the conquest of the Greek colonies; to the battle of Issus, the reduction of Tyre and Egypt; to the battle of Arbela, the empire of the world. After the battle of Issus, he suffered Darius to escape, and employed his time in securing and regulating his conquests: after the battle of Arbela, he pursued him so close[13] as to leave him no place of refuge in his empire. Darius enters his towns, his provinces, to quit them the next moment; and Alexander marches with such rapidity that the empire of the world seems to be rather the prize of an Olympian race than the fruit of a great victory. In this manner he carried on his conquests: let us now see how he preserved them. He opposed those who would have had him treat the Greeks as masters[14] and the Persians as slaves. He thought only of uniting the two nations, and of abolishing the distinctions of a conquering and a conquered people. After he had completed his victories, he relinquished all those prejudices that had helped him to obtain them. He assumed the manners of the Persians, that he might not chagrin them too much by obliging them to conform to those of the Greeks. It was this humanity which made him show so great a respect for the wife and mother of Darius; and this that made him so continent. What a conqueror! He is lamented by all the nations he has subdued! What a usurper! At his death the very family he has cast from the throne is all in tears. These were the most glorious passages in his life, and such as history cannot produce an instance of in any other conqueror. Nothing consolidates a conquest more than the union formed between the two nations by marriages.[15] Alexander chose his wives from the nation he had subdued; he insisted on his courtiers doing the same; and the rest of the Macedonians followed the example. The Franks and Burgundians permitted those marriages;[16] the Visigoths forbade them in Spain, and afterwards allowed them.[17] By the Lombards they were not only allowed but encouraged.[18] When the Romans wanted to weaken Macedonia, they ordered that there should be no intermarriages between the people of different provinces. Alexander, whose aim was to unite the two nations, thought fit to establish in Persia a great number of Greek colonies. He built, therefore, a multitude of towns; and so strongly were all the parts of this new empire cemented, that after his decease, amidst the disturbances and confusion of the most frightful civil wars, when the Greeks had reduced themselves, as it were, to a state of annihilation, not a single province of Persia revolted. To prevent Greece and Macedon from being too much exhausted, he sent a colony of Jews[19] to Alexandria; the manners of those people signified nothing to him, provided he could be sure of their fidelity. He not only suffered the conquered nations to retain their own customs and manners, but likewise their civil laws; and frequently the very kings and governors to whom they had been subject: the Macedonians[20] he placed at the head of the troops, and the natives of the country at the head of the government, rather choosing to run the hazard of a particular disloyalty (which sometimes happened) than of a general revolt. He paid great respect to the ancient traditions, and to all the public monuments of the glory or vanity of nations. The Persian monarchs having destroyed the temples of the Greeks, Babylonians, and Egyptians, Alexander rebuilt them:[21] few nations submitted to his yoke to whose religion he did not conform; and his conquests seem to have been intended only to make him the particular monarch of each nation, and the first inhabitant of each city. The aim of the Romans in conquest was to destroy, his to preserve; and wherever he directed his victorious arms, his chief view was to achieve something whence that country might derive an increase of prosperity and power. To attain this end, he was enabled first of all by the greatness of his genius; secondly, by his frugality and private economy;[22] thirdly, by his profusion in matters of importance. He was close and reserved in his private expenses, but generous to the highest degree in those of a public nature. In regulating his household, he was the private Macedonian; but in paying the troops, in sharing his conquests with the Greeks, and in his largesses to every soldier in his army, he was Alexander. He committed two very bad actions in setting Persepolis on fire and slaying Clitus; but he rendered them famous by his repentance. Hence it is that his crimes are forgotten, while his regard for virtue was recorded: they were considered rather as unlucky accidents than as his own deliberate acts. Posterity, struck with the beauty of his mind, even in the midst of his irregular passion, can view him only with pity, but never with an eye of hatred. Let us draw a comparison between him and C?sar. The Roman general, by attempting to imitate the Asiatic monarch, flung his fellow-citizens into a state of despair for a matter of mere ostentation; the Macedonian prince, by the same imitation, did a thing which was quite agreeable to his original scheme of conquest. 15. New Methods of preserving a Conquest. When a monarch has subdued a large country, he may make use of an admirable method, equally proper for moderating despotic power, and for preserving the conquest; it is a method practised by the conquerors of China. In order to prevent the vanquished nation from falling into despair, the victors from growing insolent and proud, the government from becoming military, and to contain the two nations within their duty, the Tartar family now on the throne of China has ordained that every military corps in the provinces should be composed half of Chinese and half Tartars, to the end that the jealousy between the two nations may keep them within bounds. The courts of judicature are likewise half Chinese and half Tartars. This is productive of several good effects, 1. The two nations are a check to one another. 2. They both preserve the civil and military power, and one is not destroyed by the other, 3. The conquering nation may spread itself without being weakened and lost. It is likewise enabled to withstand civil and foreign wars. The want of so wise an institution as this has been the ruin of almost all the conquerors that ever existed. 16. Of Conquests made by a despotic Prince. When a conquest happens to be vastly large, it supposes a despotic power; and then the army dispersed in the provinces is not sufficient. There should be always a body of faithful troops near the prince, ready to fall instantly upon any part of the empire that may chance to waver. This military corps ought to awe the rest, and to strike terror into those who through necessity have been entrusted with any authority in the empire. The emperor of China has always a large body of Tartars near his person, ready upon all occasions. In India, in Turkey, in Japan, the prince has always a body-guard independent of the other regular forces. This particular corps keeps the dispersed troops in awe. 17. The same Subject continued. We have observed that the countries subdued by a despotic monarch ought to be held by a vassal. Historians are very lavish of their praises of the generosity of those conquerors who restored the princes to the throne whom they had vanquished. Extremely generous then were the Romans, who made such a number of kings, in order to have instruments of slavery.[23] A proceeding of that kind is absolutely necessary. If the conqueror intends to preserve the country which he has subdued, neither the governors he sends will be able to contain the subjects within duty, nor he himself the governors. He will be obliged to strip his ancient patrimony of troops, in order to secure his new dominions. The miseries of each nation will be common to both; civil broils will spread themselves from one to the other. On the contrary, if the conqueror restores the legitimate prince to the throne, he will of course have an ally; by the junction of whose forces his own power will be augmented. We have a recent instance of this in Shah Nadir, who conquered the Mogul, seized his treasures, and left him in possession of Hindostan. ______ 1. See the Code of Barbarian Laws, and Book xxviii below. 2. See the anonymous author of the Life of Louis le Debonnaire, in Duchesne's collection, ii, p. 296. 3. See M. Barbeyrac's collection, art. 112. 4. With regard to Tockenburg. 5. He was at the head of a faction. 6. Hanno wanted to deliver Hannibal up to the Romans, as Cato would fain have delivered up C?sar to the Gauls. 7. Of the 18th of October, 1738, printed at Genoa by Franchelli. See also the Amsterdam Gazette, Dec. 23, 1738. 8. See Pufendorff's Universal History. 9. Dionysius Halicarnassus, vii. 10. See Arrian, De Expedit. Alex., i. 11. Ibid. 12. Ibid. 13. Ibid., iii. 14. This was Aristotle's advice. Plutarch, Of the Fortune and Virtue of Alexander. 15. Arrian, De Expedit. Alex., vii. 16. See the Law of the Burgundians, tit. 12, art. 5. 17. See the Law of the Visigoths, iii, tit. 1, § 1, which abrogates the ancient law that had more regard, it says, to the difference of nations than to that of people's conditions. 18. See the Law of the Lombards, ii, tit. 7, §§ 1, 2. 19. The kings of Syria, abandoning the plan laid down by the founder of the empire, resolved to oblige the Jews to conform to the manners of the Greeks -- a resolution that gave the most terrible shock to their government. 20. See Arrian, De Expedit. Alex., iii, and others. 21. Ibid. 22. Ibid., vii. 23. Tacitus, Life of Agricola, 14. ------------------------------------------------------------------------ Book XI. Of the Laws Which Establish Political Liberty, with Regard to the Constitution 1. A general Idea. I make a distinction between the laws that establish political liberty, as it relates to the constitution, and those by which it is established, as it relates to the citizen. The former shall be the subject of this book; the latter I shall examine in the next. 2. Different Significations of the word Liberty. There is no word that admits of more various significations, and has made more varied impressions on the human mind, than that of liberty. Some have taken it as a means of deposing a person on whom they had conferred a tyrannical authority; others for the power of choosing a superior whom they are obliged to obey; others for the right of bearing arms, and of being thereby enabled to use violence; others, in fine, for the privilege of being governed by a native of their own country, or by their own laws.[1] A certain nation for a long time thought liberty consisted in the privilege of wearing a long beard.[2] Some have annexed this name to one form of government exclusive of others: those who had a republican taste applied it to this species of polity; those who liked a monarchical state gave it to monarchy.[3] Thus they have all applied the name of liberty to the government most suitable to their own customs and inclinations: and as in republics the people have not so constant and so present a view of the causes of their misery, and as the magistrates seem to act only in conformity to the laws, hence liberty is generally said to reside in republics, and to be banished from monarchies. In fine, as in democracies the people seem to act almost as they please, this sort of government has been deemed the most free, and the power of the people has been confounded with their liberty. 3. In what Liberty consists. It is true that in democracies the people seem to act as they please; but political liberty does not consist in an unlimited freedom. In governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will. We must have continually present to our minds the difference between independence and liberty. Liberty is a right of doing whatever the laws permit, and if a citizen could do what they forbid he would be no longer possessed of liberty, because all his fellow-citizens would have the same power. 4. The same Subject continued. Democratic and aristocratic states are not in their own nature free. Political liberty is to be found only in moderate governments; and even in these it is not always found. It is there only when there is no abuse of power. But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. Is it not strange, though true, to say that virtue itself has need of limits? To prevent this abuse, it is necessary from the very nature of things that power should be a check to power. A government may be so constituted, as no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits. 5. Of the End or View of different Governments. Though all governments have the same general end, which is that of preservation, yet each has another particular object. Increase of dominion was the object of Rome; war, that of Sparta; religion, that of the Jewish laws; commerce, that of Marseilles; public tranquillity, that of the laws of China:[4] navigation, that of the laws of Rhodes; natural liberty, that of the policy of the Savages; in general, the pleasures of the prince, that of despotic states; that of monarchies, the prince's and the kingdom's glory; the independence of individuals is the end aimed at by the laws of Poland, thence results the oppression of the whole.[5] One nation there is also in the world that has for the direct end of its constitution political liberty. We shall presently examine the principles on which this liberty is founded; if they are sound, liberty will appear in its highest perfection. To discover political liberty in a constitution, no great labour is requisite. If we are capable of seeing it where it exists, it is soon found, and we need not go far in search of it. 6. Of the Constitution of England. In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state. The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another. When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals. Most kingdoms in Europe enjoy a moderate government because the prince who is invested with the two first powers leaves the third to his subjects. In Turkey, where these three powers are united in the Sultan's person, the subjects groan under the most dreadful oppression. In the republics of Italy, where these three powers are united, there is less liberty than in our monarchies. Hence their government is obliged to have recourse to as violent methods for its support as even that of the Turks; witness the state inquisitors,[6] and the lion's mouth into which every informer may at all hours throw his written accusations. In what a situation must the poor subject be in those republics! The same body of magistrates are possessed, as executors of the laws, of the whole power they have given themselves in quality of legislators. They may plunder the state by their general determinations; and as they have likewise the judiciary power in their hands, every private citizen may be ruined by their particular decisions. The whole power is here united in one body; and though there is no external pomp that indicates a despotic sway, yet the people feel the effects of it every moment. Hence it is that many of the princes of Europe, whose aim has been levelled at arbitrary power, have constantly set out with uniting in their own persons all the branches of magistracy, and all the great offices of state. I allow indeed that the mere hereditary aristocracy of the Italian republics does not exactly answer to the despotic power of the Eastern princes. The number of magistrates sometimes moderates the power of the magistracy; the whole body of the nobles do not always concur in the same design; and different tribunals are erected, that temper each other. Thus at Venice tlie legislative power is in the council, the executive in the pregadi, and the judiciary in the quarantia. But the mischief is, that these different tribunals are composed of magistrates all belonging to the same body; which constitutes almost one and the same power. The judiciary power ought not to be given to a standing senate; it should be exercised by persons taken from the body of the people[7] at certain times of the year, and consistently with a form and manner prescribed by law, in order to erect a tribunal that should last only so long as necessity requires. By this method the judicial power, so terrible to mankind, not being annexed to any particular state or profession, becomes, as it were, invisible. People have not then the judges continually present to their view; they fear the office, but not the magistrate. In accusations of a deep and criminal nature, it is proper the person accused should have the privilege of choosing, in some measure, his judges, in concurrence with the law; or at least he should have a right to except against so great a number that the remaining part may be deemed his own choice. The other two powers may be given rather to magistrates or permanent bodies, because they are not exercised on any private subject; one being no more than the general will of the state, and the other the execution of that general will. But though the tribunals ought not to be fixed, the judgments ought; and to such a degree as to be ever conformable to the letter of the law. Were they to be the private opinion of the judge, people would then live in society, without exactly knowing the nature of their obligations. The judges ought likewise to be of the same rank as the accused, or, in other words, his peers; to the end that he may not imagine he is fallen into the hands of persons inclined to treat him with rigour. If the legislature leaves the executive power in possession of a right to imprison those subjects who can give security for their good behaviour, there is an end of liberty; unless they are taken up, in order to answer without delay to a capital crime, in which case they are really free, being subject only to the power of the law. But should the legislature think itself in danger by some secret conspiracy against the state, or by a correspondence with a foreign enemy, it might authorise the executive power, for a short and limited time, to imprison suspected persons, who in that case would lose their liberty only for a while, to preserve it for ever. And this is the only reasonable method that can be substituted to the tyrannical magistracy of the Ephori, and to the state inquisitors of Venice, who are also despotic. As in a country of liberty, every man who is supposed a free agent ought to be his own governor; the legislative power should reside in the whole body of the people. But since this is impossible in large states, and in small ones is subject to many inconveniences, it is fit the people should transact by their representatives what they cannot transact by themselves. The inhabitants of a particular town are much better acquainted with its wants and interests than with those of other places; and are better judges of the capacity of their neighbours than of that of the rest of their countrymen. The members, therefore, of the legislature should not be chosen from the general body of the nation; but it is proper that in every considerable place a representative should be elected by the inhabitants.[8] The great advantage of representatives is, their capacity of discussing public affairs. For this the people collectively are extremely unfit, which is one of the chief inconveniences of a democracy. It is not at all necessary that the representatives who have received a general instruction from their constituents should wait to be directed on each particular affair, as is practised in the diets of Germany. True it is that by this way of proceeding the speeches of the deputies might with greater propriety be called the voice of the nation; but, on the other hand, this would occasion infinite delays; would give each deputy a power of controlling the assembly; and, on the most urgent and pressing occasions, the wheels of government might be stopped by the caprice of a single person. When the deputies, as Mr. Sidney well observes, represent a body of people, as in Holland, they ought to be accountable to their constituents; but it is a different thing in England, where they are deputed by boroughs. All the inhabitants of the several districts ought to have a right of voting at the election of a representative, except such as are in so mean a situation as to be deemed to have no will of their own. One great fault there was in most of the ancient republics, that the people had a right to active resolutions, such as require some execution, a thing of which they are absolutely incapable. They ought to have no share in the government but for the choosing of representatives, which is within their reach. For though few can tell the exact degree of men's capacities, yet there are none but are capable of knowing in general whether the person they choose is better qualified than most of his neighbours. Neither ought the representative body to be chosen for the executive part of government, for which it is not so fit; but for the enacting of laws, or to see whether the laws in being are duly executed, a thing suited to their abilities, and which none indeed but themselves can properly perform. In such a state there are always persons distinguished by their birth, riches, or honours: but were they to be confounded with the common people, and to have only the weight of a single vote like the rest, the common liberty would be their slavery, and they would have no interest in supporting it, as most of the popular resolutions would be against them. The share they have, therefore, in the legislature ought to be proportioned to their other advantages in the state; which happens only when they form a body that has a right to check the licentiousness of the people, as the people have a right to oppose any encroachment of theirs. The legislative power is therefore committed to the body of the nobles, and to that which represents the people, each having their assemblies and deliberations apart, each their separate views and interests. Of the three powers above mentioned, the judiciary is in some measure next to nothing: there remain, therefore, only two; and as these have need of a regulating power to moderate them, the part of the legislative body composed of the nobility is extremely proper for this purpose. The body of the nobility ought to be hereditary. In the first place it is so in its own nature; and in the next there must be a considerable interest to preserve its privileges -- privileges that in themselves are obnoxious to popular envy, and of course in a free state are always in danger. But as a hereditary power might be tempted to pursue its own particular interests, and forget those of the people, it is proper that where a singular advantage may be gained by corrupting the nobility, as in the laws relating to the supplies, they should have no other share in the legislation than the power of rejecting, and not that of resolving. By the power of resolving I mean the right of ordaining by their own authority, or of amending what has been ordained by others. By the power of rejecting I would be understood to mean the right of annulling a resolution taken by another; which was the power of the tribunes at Rome. And though the person possessed of the privilege of rejecting may likewise have the right of approving, yet this approbation passes for no more than a declaration that he intends to make no use of his privilege of rejecting, and is derived from that very privilege. The executive power ought to be in the hands of a monarch, because this branch of government, having need of despatch, is better administered by one than by many: on the other hand, whatever depends on the legislative power is oftentimes better regulated by many than by a single person. But if there were no monarch, and the executive power should be committed to a certain number of persons selected from the legislative body, there would be an end then of liberty; by reason the two powers would be united, as the same persons would sometimes possess, and would be always able to possess, a share in both. Were the legislative body to be a considerable time without meeting, this would likewise put an end to liberty. For of two things one would naturally follow: either that there would be no longer any legislative resolutions, and then the state would fall into anarchy; or that these resolutions would be taken by the executive power, which would render it absolute. It would be needless for the legislative body to continue always assembled. This would be troublesome to the representatives, and, moreover, would cut out too much work for the executive power, so as to take off its attention to its office, and oblige it to think only of defending its own prerogatives, and the right it has to execute. Again, were the legislative body to be always assembled, it might happen to be kept up only by filling the places of the deceased members with new representatives; and in that case, if the legislative body were once corrupted, the evil would be past all remedy. When different legislative bodies succeed one another, the people who have a bad opinion of that which is actually sitting may reasonably entertain some hopes of the next: but were it to be always the same body, the people upon seeing it once corrupted would no longer expect any good from its laws; and of course they would either become desperate or fall into a state of indolence. The legislative body should not meet of itself. For a body is supposed to have no will but when it is met; and besides, were it not to meet unanimously, it would be impossible to determine which was really the legislative body; the part assembled, or the other. And if it had a right to prorogue itself, it might happen never to be prorogued; which would be extremely dangerous, in case it should ever attempt to encroach on the executive power. Besides, there are seasons, some more proper than others, for assembling the legislative body: it is fit, therefore, that the executive power should regulate the time of meeting, as well as the duration of those assemblies, according to the circumstances and exigencies of a state known to itself. Were the executive power not to have a right of restraining the encroachments of the legislative body, the latter would become despotic; for as it might arrogate to itself what authority it pleased, it would soon destroy all the other powers. But it is not proper, on the other hand, that the legislative power should have a right to stay the executive. For as the execution has its natural limits, it is useless to confine it; besides, the executive power is generally employed in momentary operations. The power, therefore, of the Roman tribunes was faulty, as it put a stop not only to the legislation, but likewise to the executive part of government; which was attended with infinite mischief. But if the legislative power in a free state has no right to stay the executive, it has a right and ought to have the means of examining in what manner its laws have been executed; an advantage which this government has over that of Crete and Sparta, where the Cosmi[9] and the Ephori[10] gave no account of their administration. But whatever may be the issue of that examination, the legislative body ought not to have a power of arraigning the person, nor, of course, the conduct, of him who is entrusted with the executive power. His person should be sacred, because as it is necessary for the good of the state to prevent the legislative body from rendering themselves arbitrary, the moment he is accused or tried there is an end of liberty. In this case the state would be no longer a monarchy, but a kind of republic, though not a free government. But as the person entrusted with the executive power cannot abuse it without bad counsellors, and such as have the laws as ministers, though the laws protect them as subjects, these men may be examined and punished -- an advantage which this government has over that of Gnidus, where the law allowed of no such thing as calling the Amymones[11] to an account, even after their administration;[12] and therefore the people could never obtain any satisfaction for the injuries done them. Though, in general, the judiciary power ought not to be united with any part of the legislative, yet this is liable to three exceptions, founded on the particular interest of the party accused. The great are always obnoxious to popular envy; and were they to be judged by the people, they might be in danger from their judges, and would, moreover, be deprived of the privilege which the meanest subject is possessed of in a free state, of being tried by his peers. The nobility, for this reason, ought not to be cited before the ordinary courts of judicature, but before that part of the legislature which is composed of their own body. It is possible that the law, which is clearsighted in one sense, and blind in another, might, in some cases, be too severe. But as we have already observed, the national judges are no more than the mouth that pronounces the words of the law, mere passive beings, incapable of moderating either its force or rigour. That part, therefore, of the legislative body, which we have just now observed to be a necessary tribunal on another occasion, is also a necessary tribunal in this; it belongs to its supreme authority to moderate the law in favour of the law itself, by mitigating the sentence. It might also happen that a subject entrusted with the administration of public affairs may infringe the rights of the people, and be guilty of crimes which the ordinary magistrates either could not or would not punish. But, in general, the legislative power cannot try causes: and much less can it try this particular case, where it represents the party aggrieved, which is the people. It can only, therefore, impeach. But before what court shall it bring its impeachment? Must it go and demean itself before the ordinary tribunals, which are its inferiors, and, being composed, moreover, of men who are chosen from the people as well as itself, will naturally be swayed by the authority of so powerful an accuser? No: in order to preserve the dignity of the people, and the security of the subject, the legislative part which represents the people must bring in its charge before the legislative part which represents the nobility, who have neither the same interests nor the same passions. Here is an advantage which this government has over most of the ancient republics, where this abuse prevailed, that the people were at the same time both judge and accuser. The executive power, pursuant of what has been already said, ought to have a share in the legislature by the power of rejecting, otherwise it would soon be stripped of its prerogative. But should the legislative power usurp a share of the executive, the latter would be equally undone. If the prince were to have a part in the legislature by the power of resolving, liberty would be lost. But as it is necessary he should have a share in the legislature for the support of his own prerogative, this share must consist in the power of rejecting. The change of government at Rome was owing to this, that neither the senate, who had one part of the executive power, nor the magistrates, who were entrusted with the other, had the right of rejecting, which was entirely lodged in the people. Here then is the fundamental constitution of the government we are treating of. The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting. They are both restrained by the executive power, as the executive is by the legislative. These three powers should naturally form a state of repose or inaction. But as there is a necessity for movement in the course of human affairs, they are forced to move, but still in concert. As the executive power has no other part in the legislative than the privilege of rejecting, it can have no share in the public debates. It is not even necessary that it should propose, because as it may always disapprove of the resolutions that shall be taken, it may likewise reject the decisions on those proposals which were made against its will. In some ancient commonwealths, where public debates were carried on by the people in a body, it was natural for the executive power to propose and debate in conjunction with the people, otherwise their resolutions must have been attended with a strange confusion. Were the executive power to determine the raising of public money, otherwise than by giving its consent, liberty would be at an end; because it would become legislative in the most important point of legislation. If the legislative power was to settle the subsidies, not from year to year, but for ever, it would run the risk of losing its liberty, because the executive power would be no longer dependent; and when once it was possessed of such a perpetual right, it would be a matter of indifference whether it held it of itself or of another. The same may be said if it should come to a resolution of entrusting, not an annual, but a perpetual command of the fleets and armies to the executive power. To prevent the executive power from being able to oppress, it is requisite that the armies with which it is entrusted should consist of the people, and have the same spirit as the people, as was the case at Rome till the time of Marius. To obtain this end, there are only two ways, either that the persons employed in the army should have sufficient property to answer for their conduct to their fellow-subjects, and be enlisted only for a year, as was customary at Rome: or if there should be a standing army, composed chiefly of the most despicable part of the nation, the legislative power should have a right to disband them as soon as it pleased; the soldiers should live in common with the rest of the people; and no separate camp, barracks, or fortress should be suffered. When once an army is established, it ought not to depend immediately on the legislative, but on the executive, power; and this from the very nature of the thing, its business consisting more in action than in deliberation. It is natural for mankind to set a higher value upon courage than timidity, on activity than prudence, on strength than counsel. Hence the army will ever despise a senate, and respect their own officers. They will naturally slight the orders sent them by a body of men whom they look upon as cowards, and therefore unworthy to command them. So that as soon as the troops depend entirely on the legislative body, it becomes a military government; and if the contrary has ever happened, it has been owing to some extraordinary circumstances. It is because the army was always kept divided; it is because it was composed of several bodies that depended each on a particular province; it is because the capital towns were strong places, defended by their natural situation, and not garrisoned with regular troops. Holland, for instance, is still safer than Venice; she might drown or starve the revolted troops; for as they are not quartered in towns capable of furnishing them with necessary subsistence, this subsistence is of course precarious. In perusing the admirable treatise of Tacitus On the Manners of the Germans,[13] we find it is from that nation the English have borrowed the idea of their political government. This beautiful system was invented first in the woods. As all human things have an end, the state we are speaking of will lose its liberty, will perish. Have not Rome, Sparta, and Carthage perished? It will perish when the legislative power shall be more corrupt than the executive. It is not my business to examine whether the English actually enjoy this liberty or not. Sufficient it is for my purpose to observe that it is established by their laws; and I inquire no further. Neither do I pretend by this to undervalue other governments, nor to say that this extreme political liberty ought to give uneasiness to those who have only a moderate share of it. How should I have any such design, I who think that even the highest refinement of reason is not always desirable, and that mankind generally find their account better in mediums than in extremes? Harrington, in his Oceana, has also inquired into the utmost degree of liberty to which the constitution of a state may be carried. But of him indeed it may be said that for want of knowing the nature of real liberty he busied himself in pursuit of an imaginary one; and that he built a Chalcedon, though he had a Byzantium before his eyes. 7. Of the Monarchies we are acquainted with. The monarchies we are acquainted with have not, like that we have been speaking of, liberty for their direct view: the only aim is the glory of the subject, of the state, and of the sovereign. But hence there results a spirit of liberty, which in those states is capable of achieving as great things, and of contributing as much perhaps to happiness as liberty itself. Here the three powers are not distributed and founded on the model of the constitution above-mentioned; they have each a particular distribution, according to which they border more or less on political liberty; and if they did not border upon it, monarchy would degenerate into despotic government. 8. Why the Ancients had not a clear Idea of Monarchy. The ancients had no notion of a government founded on a body of nobles, and much less on a legislative body composed of the representatives of the people. The republics of Greece and Italy were cities that had each their own form of government, and convened their subjects within their walls. Before Rome had swallowed up all the other republics, there was scarcely anywhere a king to be found, no, not in Italy, Gaul, Spain, or Germany; they were all petty states or republics. Even Africa itself was subject to a great commonwealth: and Asia Minor was occupied by Greek colonies. There was, therefore, no instance of deputies of towns or assemblies of the states; one must have gone as far as Persia to find a monarchy. I am not ignorant that there were confederate republics; in which several towns sent deputies to an assembly. But I affirm there was no monarchy on that model. The first plan, therefore, of the monarchies we are acquainted with was thus formed. The German nations that conquered the Roman empire were certainly a free people. Of this we may be convinced only by reading Tacitus On the Manners of the Germans. The conquerors spread themselves over all the country; living mostly in the fields, and very little in towns. When they were in Germany, the whole nation was able to assemble. This they could no longer do when dispersed through the conquered provinces. And yet as it was necessary that the nation should deliberate on public affairs, pursuant to their usual method before the conquest, they had recourse to representatives. Such is the origin of the Gothic government amongst us. At first it was mixed with aristocracy and monarchy -- a mixture attended with this inconvenience, that the common people were bondmen. The custom afterwards succeeded of granting letters of enfranchisement, and was soon followed by so perfect a harmony between the civil liberty of the people, the privileges of the nobility and clergy, and the prince's prerogative, that I really think there never was in the world a government so well tempered as that of each part of Europe, so long as it lasted. Surprising that the corruption of the government of a conquering nation should have given birth to the best species of constitution that could possibly be imagined by man! 9. Aristotle's Manner of Thinking. Aristotle is greatly puzzled in treating of monarchy.[14] He makes five species; and he does not distinguish them by the form of constitution, but by things merely accidental, as the virtues and vices of the prince; or by things extrinsic, such as tyranny usurped or inherited. Among the number of monarchies he ranks the Persian empire and the kingdom of Sparta. But is it not evident that the one was a despotic state and the other a republic? The ancients, who were strangers to the distribution of the three powers in the government of a single person, could never form a just idea of monarchy. 10. What other Politicians thought. To temper monarchy, Arybas, king of Epirus,[15] found no other remedy than a republic. The Molossi, not knowing how to limit the same power, made two kings,[16] by which means the state was weakened more than the prerogative; they wanted rivals, and they created enemies. Two kings were tolerable nowhere but at Sparta; here they did not form, but were only a part of the constitution. 11. Of the Kings of the heroic Times of Greece. In the heroic times of Greece, a kind of monarchy arose that was not of long duration.[17] Those who had been inventors of arts, who had fought in their country's cause, who had established societies, or distributed lands among the people, obtained the regal power, and transmitted it to their children. They were kings, priests, and judges. This was one of the five species of monarchy mentioned by Aristotle;[18] and the only one that can give us any idea of the monarchical constitution. But the plan of this constitution is opposite to that of our modern monarchies. The three powers were there distributed in such a manner that the people were the legislature,[19] and the king had the executive together with the judiciary power; whereas in modern monarchies the prince is invested with the executive and legislative powers, or at least with part of the legislative, but does not act in a judiciary capacity. In the government of the kings of the heroic times, the three powers were ill-distributed. Hence those monarchies could not long subsist. For as soon as the people got the legislative power into their hands, they might, as they everywhere did, upon the very least caprice, subvert the regal authority. Among a free people possessed of the legislative power, and enclosed within walls, where everything tending towards oppression appears still more odious, it is the masterpiece of legislation to know where to place properly the judiciary power. But it could not be in worse hands than in those of the person to whom the executive power had been already committed. From that very instant the monarch became terrible. But at the same time as he had no share in the legislature, he could make no defence against it, thus his power was in one sense too great, in another too little. They had not as yet discovered that the true function of a prince was to appoint judges, and not to sit as judge himself. The opposite policy rendered the government of a single person insupportable. Hence all these kings were banished. The Greeks had no notion of the proper distribution of the three powers in the government of one person; they could see it only in that of many; and this kind of constitution they distinguished by the name of Polity.[20] 12. Of the Government of the Kings of Rome, and in what Manner the three Powers were there distributed. The government of the kings of Rome had some relation to that of the kings of the heroic times of Greece. Its subversion, like the latter's, was owing to its general defect, though in its own particular nature it was exceedingly good. In order to give an adequate idea of this government, I shall distinguish that of the first five kings, that of Servius Tullius, and that of Tarquin. The crown was elective, and under the first five kings the senate had the greatest share in the election. Upon the king's decease the senate examined whether they should continue the established form of government. If they thought proper to continue it, they named a magistrate[21] taken from their own body, who chose a king; the senate were to approve of the election, the people to confirm it, and the augurs to declare the approbation of the gods. If any of these three conditions was wanting, they were obliged to proceed to another election. The constitution was a mixture of monarchy, aristocracy, and democracy; and such was the harmony of power that there was no instance of jealousy or dispute in the first reigns. The king commanded the armies, and had the direction of the sacrifices: he had the power of determining[22] civil and criminal[23] causes; he called the senate together, convened the people, laid some affairs before the latter, and regulated the rest with the senate.[24] The authority of the senate was very great. The kings oftentimes pitched upon senators with whom they sat in judgment; and they never laid any affair before the people till it had been previously debated[25] in that august assembly. The people had the right of choosing[26] magistrates, of consenting to the new laws, and, with the king's permission, of making war and peace; but they had not the judicial power. When Tullius Hostilius referred the trial of Horatius to the people, he had his particular reasons, which may be seen in Dionysius Halicarnassus.[27] The constitution altered under[28] Servius Tullius. The senate had no share in his election; he caused himself to be proclaimed by the people; he resigned the power of hearing civil causes,[29] reserving none to himself but those of a criminal nature; he laid all affairs directly before the people, eased them of the taxes, and imposed the whole burden on the patricians. Hence in proportion as he weakened the regal together with the senatorial power, he augmented that of the plebeians.[30] Tarquin would neither be chosen by the senate nor by the people; he considered Servius Tullius as a usurper, and seized the crown as his hereditary right. He destroyed most of the senators; those who remained he never consulted; nor did he even so much as summon them to assist at his decisions.[31] Thus his power increased: but the odium of that power received a new addition, by usurping also the authority of the people, against whose consent he enacted several laws. The three powers were by these means re-united in his person; but the people at a critical minute recollected that they were legislators, and there was an end of Tarquin. 13. General Reflections on the State of Rome after the Expulsion of its Kings. It is impossible to be tired of so agreeable a subject as ancient Rome: thus strangers at present leave the modern palaces of that celebrated capital to visit the ruins; and thus the eye, after recreating itself with the view of flowery meads, is pleased with the wild prospect of rocks and mountains. The patrician families were at all times possessed of great privileges. These distinctions, which were considerable under the kings, became much more important after their expulsion. Hence arose the jealousy of the plebeians, who wanted to reduce them. The contest struck at the constitution, without weakening the government; for it was very indifferent as to what family were the magistrates, provided the magistracy preserved its authority. An elective monarchy, like that of Rome, necessarily supposes a powerful aristocratic body to support it, without which it changes immediately into tyranny or into a popular state. But a popular state has no need of this distinction of families to maintain itself. To this it was owing that the patricians, who were a necessary part of the constitution under the regal government, became a superfluous branch under the consuls; the people could suppress them without hurting themselves, and change the constitution without corrupting it. After Servius Tullius had reduced the patricians, it was natural that Rome should fall from the regal hands into those of the people. But the people had no occasion to be afraid of relapsing under a regal power by reducing the patricians. A state may alter in two different ways, either by the amendment or by the corruption of the constitution. If it has preserved its principles and the constitution changes, this is owing to its amendment; if upon changing the constitution its principles are lost, this is because it has been corrupted. The government of Rome, after the expulsion of the kings, should naturally have been a democracy. The people had already the legislative power in their hands; it was their unanimous consent that had expelled the Tarquins; and if they had not continued steady to those principles, the Tarquins might easily have been restored. To pretend that their design in expelling them was to render themselves slaves to a few families is quite absurd. The situation therefore of things required that Rome should have formed a democracy, and yet this did not happen. There was a necessity that the power of the principal families should be tempered, and that the laws should have a bias to democracy. The prosperity of states is frequently greater in the insensible transition from one constitution to another than in either of those constitutions. Then it is that all the springs of government are upon the stretch, that the citizens assert their claims, that friendships or enmities are formed amongst the jarring parties, and that there is a noble emulation between those who defend the ancient and those who are strenuous in promoting the new constitution. 14. In what Manner the Distribution of the three Powers began to change after the Expulsion of the Kings. There were four things that greatly prejudiced the liberty of Rome. The patricians had engrossed to themselves all public employments whatever; an exorbitant power was annexed to the consulate; the people were often insulted; and, in fine, they had scarcely any influence at all left in the public suffrages. These four abuses were redressed by the people. 1st. It was regulated that the plebeians might aspire to some magistracies; and by degrees they were rendered capable of them all, except that of Inter-rex. 2nd. The consulate was dissolved into several other magistracies;[32] pr?tors were created, on whom the power was conferred of trying private causes; qu?stors[33] were nominated for determining those of a criminal nature; ?diles were established for the civil administration; treasurers[34] were made for the management of the public money; and, in fine, by the creation of censors the consuls were divested of that part of the legislative power which regulates the morals of the citizens and the transient polity of the different bodies of the state. The chief privileges left them were to preside in the great meetings[35] of the people, to assemble the senate, and to command the armies. 3rd. The sacred laws appointed tribunes, who had a power of checking the encroachments of the patricians, and prevented not only private but likewise public injuries. In fine, the plebeians increased their influence in the general assemblies. The people of Rome were divided in three different manners -- by centuries, by curi?, and by tribes; and whenever they gave their votes, they were convened in one of those three ways. In the first the patricians, the leading men, the rich and the senate, which was very nearly the same thing, had almost the whole authority; in the second they had less; and less still in the third. The division into centuries was a division rather of estates and fortunes than of persons The whole people were distributed into a hundred and ninety-three centuries,[36] which had each a single vote. The patricians and leading men composed the first ninety-eight centuries; and the other ninety-five consisted of the remainder of the citizens. In this division therefore the patricians were masters of the suffrages. In the division into curi?,[37] the patricians had not the same advantages; some, however, they had, for it was necessary to consult the augurs, who were under the direction of the patricians; and no proposal could be made there to the people unless it had been previously laid before the senate, and approved of by a senatus-consultum. But, in the division into tribes they had nothing to do either with the augurs or with the decrees of the senate; and the patricians were excluded. Now the people endeavoured constantly to have those meetings by curi? which had been customary by centuries, and by tribes, those they used to have before by curi?; by which means the direction of public affairs soon devolved from the patricians to the plebeians. Thus when the plebeians obtained the power of trying the patricians -- a power which commenced in the affair of Coriolanus,[38] they insisted upon assembling by tribes,[39] and not by centuries; and when the new magistracies[40] of tribunes and ?diles were established in favour of the people, the latter obtained that they should meet by curi? in order to nominate them; and after their power was quite settled, they gained[41] so far their point as to assemble by tribes to proceed to this nomination. 15. In what Manner Rome, in the flourishing State of that Republic, suddenly lost its Liberty. In the heat of the contests between the patricians and the plebeians, the latter insisted upon having fixed laws, to the end that the public judgments should no longer be the effect of capricious will or arbitrary power. The senate, after a great deal of resistance, acquiesced; and decemvirs were nominated to compose those laws. It was thought proper to grant them an extraordinary power, because they were to give laws to parties whose views and interest it was almost impossible to unite. The nomination of all magistrates was suspended; and the decemvirs were chosen in the comitia sole administrators of the republic. Thus they found themselves invested with the consular and the tribunition power. By one they had the privilege of assembling the senate, by the other that of convening the people; but they assembled neither senate nor people. Ten men only of the republic had the whole legislative, the whole executive, and the whole judiciary power. Rome saw herself enslaved by as cruel a tyranny as that of Tarquin. When Tarquin trampled on the liberty of that city, she was seized with indignation at the power he had usurped; when the decemvirs exercised every act of oppression, she was astonished at the extraordinary power she had granted. What a strange system of tyranny -- a tyranny carried on by men who had obtained the political and military power, merely from their knowledge in civil affairs, and who at that very juncture stood in need of the courage of those citizens to protect them abroad who so tamely submitted to domestic oppression! The spectacle of Virginia's death, whom her father immolated to chastity and liberty, put an end to the power of the decemvirs. Every man became free, because every man had been injured; each showed himself a citizen because each had a tie of the parent. The senate and the people resumed a liberty which had been committed to ridiculous tyrants. No people were so easily moved by public spectacles as the Romans. That of the empurpled body of Lucretia put an end to the regal government. The debtor who appeared in the forum covered with wounds caused an alteration in the republic. The decemvirs owed their expulsion to the tragedy of Virginia. To condemn Manlius, it was necessary to keep the people from seeing the Capitol. C?sar's bloody garment flung Rome again into slavery. 16. Of the legislative Power in the Roman Republic. There were no rights to contest under the decemvirs: but upon the restoration of liberty, jealousies revived; and so long as the patricians had any privileges left, they were sure to be stripped of them by the plebeians. The mischief would not have been so great had the plebeians been satisfied with this success; but they also injured the patricians as citizens. When the people assembled by curi? or centuries, they were composed of senators, patricians, and plebeians; in their disputes the plebeians gained this point,[42] that they alone without patricians or senate should enact the laws called Plebiscita; and the assemblies in which they were made had the name of comitia by tribes. Thus there were cases in which the patricians[43] had no share in the legislative power, but[44] were subject to the legislation of another body of the state. This was the extravagance of liberty. The people, to establish a democracy, acted against the very principles of that government. One would have imagined that so exorbitant a power must have destroyed the authority of the senate. But Rome had admirable institutions. Two of these were especially remarkable: one by which the legislative power of the people was established, and the other by which it was limited. The censors, and before them the consuls, modelled[45] and created, as it were, every five years the body of the people; they exercised the legislation on the very part that was possessed of the legislative power. "Tiberius Gracchus," says Cicero, "caused the freedmen to be admitted into the tribes, not by the force of his eloquence, but by a word, by a gesture; which had he not effected, the republic, whose drooping head we are at present scarcely able to uphold, would not even exist." On the other hand, the senate had the power of rescuing, as it were, the republic out of the hands of the people, by creating a dictator, before whom the sovereign bowed his head, and the most popular laws were silent.[46] 17. Of the executive Power in the same Republic. Jealous as the people were of their legislative power, they had no great uneasiness about the executive. This they left almost entirely to the senate and to the consuls, reserving scarcely anything more to themselves than the right of choosing the magistrates, and of confirming the acts of the senate and of the generals. Rome, whose passion was to command, whose ambition was to conquer, whose commencement and progress were one continued usurpation, had constantly affairs of the greatest weight upon her hands; her enemies were ever conspiring against her, or she against her enemies. As she was obliged to behave on the one hand with heroic courage, and on the other with consummate prudence, it was requisite, of course, that the management of affairs should be committed to the senate. Thus the people disputed every branch of the legislative power with the senate, because they were jealous of their liberty; but they had no disputes about the executive, because they were animated with the love of glory. So great was the share the senate took in the executive power, that, as Polybius[47] informs us, foreign nations imagined that Rome was an aristocracy. The senate disposed of the public money, and farmed out the revenue; they were arbiters of the affairs of their allies; they determined war or peace, and directed in this respect the consuls; they fixed the number of the Roman and of the allied troops, disposed of the provinces and armies to the consuls or pr?tors, and upon the expiration of the year of command had the power of appointing successors; they decreed triumphs, received and sent embassies: they nominated, rewarded, punished, and were judges of kings, declared them allies of the Roman people, or stripped them of that title. The consuls levied the troops which they were to carry into the field; had the command of the forces by sea and by land; disposed of the forces of the allies; were invested with the whole power of the republic in the provinces; gave peace to the vanquished nations, imposed conditions on them, or referred them to the senate. In the earliest times, when the people had some share in the affairs relating to war or peace, they exercised rather their legislative than their executive power. They scarcely did anything else but confirm the acts of the kings, and after their expulsion those of the consuls or senate. So far were they from being the arbiters of war that we have instances of its having been often declared, notwithstanding the opposition of the tribunes. But growing wanton in their prosperity, they increased their executive power. Thus[48] they created the military tribunes, the nomination of whom till then had belonged to the generals; and some time before the first Punic war, they decreed that only their own body should have the right of declaring war.[49] 18. Of the judiciary Power in the Roman Government. The judiciary power was given to the people, to the senate, to the magistrates, and to particular judges. We must see in what manner it was distributed; beginning with their civil affairs. The consuls had the judiciary power[50] after the expulsion of the kings, as the pr?tors were judges after the consuls. Servius Tullius had divested himself of the power of determining civil causes, which was not resumed by the consuls, except in some[51] very rare cases, for that reason called extraordinary.[52] They were satisfied with naming the judges, and establishing the several tribunals. By a discourse of Appius Claudius, in Dionysius Halicarnassus,[53] it appears that as early as the 259th year of Rome this was looked upon as a settled custom among the Romans; and it is not tracing it very high to refer it to Servius Tullius. Every year the pr?tor made a list[54] of such as he chose for the office of judges during his magistracy. A sufficient number was pitched upon for each cause; a custom very nearly the same as that now practised in England. And what was extremely favourable to liberty[55] was the pr?tor's fixing the judges with the consent[56] of the parties. The great number of exceptions that can be made in England amounts pretty nearly to this very custom. The judges decided only the questions relating to matter of fact;[57] for example, whether a sum of money had been paid or not, whether an act had been committed or not. But as to questions of law,[58] as these required a certain capacity, they were always carried before the tribunal of the centumvirs.[59] The kings reserved to themselves the judgment of criminal affairs, and in this were succeeded by the consuls. It was in consequence of this authority that Brutus put his children and all those who were concerned in the Tarquinian conspiracy to death. This was an exorbitant power. The consuls already invested with the military command extended the exercise of it even to civil affairs; and their procedures, being stripped of all forms of justice, were rather exertions of violence than legal judgments. This gave rise to the Valerian law, by which it was made lawful to appeal to the people from every decision of the consuls that endangered the life of a citizen. The consuls had no longer the power of pronouncing sentence in capital cases against a Roman citizen, without the consent of the people.[60] We see in the first conspiracy for the restoration of the Tarquins that the criminals were tried by Brutus the consul; in the second the senate and comitia were assembled to try them.[61] The laws distinguished by the name of sacred allowed the plebeians the privilege of choosing tribunes; whence was formed a body whose pretensions at first were immense. It is hard to determine which was greater, the insolence of the plebeians in demanding, or the condescension of the senate in granting. The Valerian law allowed appeals to the people, that is, to the people composed of senators, patricians, and plebeians. The plebeians made a law that appeals should be brought before their own body. A question was soon after started, whether the plebeians had a right to try a patrician; this was the subject of a dispute to which the impeachment of Coriolanus gave rise, and which ended with that affair. When Coriolanus was accused by the tribunes before the people, he insisted, contrary to the spirit of the Valerian law, that as he was a patrician, none but the consuls had the power to try him; on the other hand, the plebeians, also contrary to the spirit of that same law, pretended that none but their body were empowered to be his judges, and accordingly they pronounced sentence upon him. This was moderated by the law of the Twelve Tables; whereby it was ordained that none but the great assemblies of the people[62] should try a citizen in capital cases. Hence the body of the plebeians, or, which amounts to the very same, the comitia by tribes, had no longer any power of hearing criminal causes, except such as were punished with fines. To inflict a capital punishment a law was requisite; but to condemn to a pecuniary mulct, there was occasion only for a plebiscitum. This regulation of the law of the Twelve Tables was extremely prudent. It produced an admirable balance between the body of the plebeians and the senate. For as the full judiciary power of both depended on the greatness of the punishment and the nature of the crime, it was necessary they should both agree. The Valerian law abolished all the remains of the Roman government in any way relating to that of the kings of the heroic times of Greece. The consuls were divested of the power to punish crimes. Though all crimes are public, yet we must distinguish between those which more nearly concern the mutual intercourse of the citizens and those which more immediately interest the state in the relation it bears to its subjects. The first are called private, the second public. The latter were tried by the people; and in regard to the former, they named by particular commission a qu?stor for the prosecution of each crime. The person chosen by the people was frequently one of the magistrates, sometimes a private man. He was called the qu?stor of parricide, and is mentioned in the law of the Twelve Tables.[63] The qu?stor nominated the judge of the question, who drew lots for the judges, and regulated the tribunal in which he presided.[64] Here it is proper to observe what share the senate had in the nomination of the qu?stor, that we may see how far the two powers were balanced. Sometimes the senate caused a dictator to be chosen, in order to exercise the office of qu?stor;[65] at other times they ordained that the people should be convened by a tribune, with the view of proceeding to the nomination of a qu?stor;[66] and, in fine, the people frequently appointed a magistrate to make his report to the senate concerning a particular crime, and to desire them to name a qu?stor, as may be seen in the judgment upon Lucius Scipio[67] in Livy.[68] In the year of Rome 604, some of these commissions were rendered permanent.[69] All criminal causes were gradually divided into different parts; to which they gave the name of perpetual questions. Different pr?tors were created, to each of whom some of those questions were assigned. They had a power conferred upon them for the term of a year, of trying such criminal causes as bore any relation to those questions, and then they were sent to govern their province. At Carthage the senate of the hundred was composed of judges who enjoyed that dignity for life.[70] But at Rome the pr?tors were annual; and the judges were not even for so long a term, but were nominated for each cause. We have already shown in the sixth chapter of this book how favourable this regulation was to liberty in particular governments. The judges were chosen from the order of senators, till the time of the Gracchi. Tiberius Gracchus caused a law to pass that they should be taken from the equestrian order; a change so very considerable that the tribune boasted of having cut, by one rogation only, the sinews of the senatorial dignity. It is necessary to observe that the three powers may be very well distributed in regard to the liberty of the constitution, though not so well in respect to the liberty of the subject. At Rome the people had the greatest share of the legislative, a part of the executive, and part of the judiciary power; by which means they had so great a weight in the government as required some other power to balance it. The senate indeed had part of the executive power, and some share of the legislative;[71] but this was not sufficient to counterbalance the weight of the people. It was necessary that they should partake of the judiciary power: and accordingly they had a share when the judges were chosen from among the senators. But when the Gracchi deprived the senators of the judicial power,[72] the senate were no longer able to withstand the people. To favour, therefore, the liberty of the subject, they struck at that of the constitution; but the former perished with the latter. Infinite were the mischiefs that thence arose. The constitution was changed at a time when the fire of civil discord had scarcely left any such thing as a constitution. The knights ceased to be that middle order which united the people to the senate; and the chain of the constitution was broken. There were even particular reasons against transferring the judiciary power to the equestrian order. The constitution of Rome was founded on this principle, that none should be enlisted as soldiers but such as were men of sufficient property to answer for their conduct to the republic. The knights, as persons of the greatest property, formed the cavalry of the legions. But when their dignity increased, they refused to serve any longer in that capacity, and another kind of cavalry was obliged to be raised: thus Marius enlisted all sorts of people into his army, and soon after the republic was lost.[73] Besides, the knights were the farmers of the revenue; men whose great rapaciousness increased the public calamities. Instead of giving to such as those the judicial power, they ought to have been constantly under the eye of the judges. This we must say in commendation of the ancient French laws, that they have acted towards the officers of the revenue with as great a diffidence as would be observed between enemies. When the judiciary power at Rome was transferred to the publicans, there was then an end of all virtue, polity, laws, and government. Of this we find a very ingenious description in some fragments of Diodorus Siculus and Dio. "Mutius Sc?vola," says Diodorus,[74] "wanted to revive the ancient manners, and the laudable custom of sober and frugal living. For his predecessors having entered into a contract with the farmers of the revenue, who at that time were possessed of the judiciary power at Rome, had infected the province with all manner of corruption. But Sc?vola made an example of the publicans, and imprisoned those by whom others had been confined." Dio informs us[75] that Publius Rutilius, his lieutenant, was equally obnoxious to the equestrian order, and that upon his return they accused him of having received some presents, and condemned him to a fine; upon which he instantly made a cession of his goods. His innocence appeared in this, that he was found to be worth a great deal less than what he was charged with having extorted, and he showed a just title to what he possessed: but he would not live any longer in the same city with such profligate wretches. The Italians, says Diodorus again,[76] bought up whole droves of slaves in Sicily, to till their lands and to take care of their cattle; but refused them a necessary subsistence. These wretches were then forced to go and rob on the highways, armed with lances and clubs, covered with beasts' skins, and followed by large mastiffs. Thus the whole province was laid waste, and the inhabitants could not call anything their own but what was secured by fortresses. There was neither proconsul nor pr?tor that could or would oppose this disorder, or that presumed to punish these slaves, because they belonged to the knights, who at Rome were possessed of the judiciary power.[77] And yet this was one of the causes of the war of the slaves. But I shall add only one word more. A profession deaf and inexorable, that can have no other view than lucre, that was always asking and never granting, that impoverished the rich and increased even the misery of the poor -- such a profession, I say, should never have been entrusted with the judiciary power at Rome. 19. Of the Government of the Roman Provinces. Such was the distribution of the three powers in Rome. But they were far from being thus distributed in the provinces. Liberty prevailed in the centre and tyranny in the extreme parts. While Rome extended her dominions no farther than Italy, the people were governed as confederates, and the laws of each republic were preserved. But when she enlarged her conquests, and the senate had no longer an immediate inspection over the provinces, nor the magistrates residing at Rome were any longer capable of governing the empire, they were obliged to send pr?tors and proconsuls. Then it was that the harmony of the three powers was lost. The persons appointed to that office were entrusted with a power which comprehended that of all the Roman magistracies; nay, even that of the people.[78] They were despotic magistrates, extremely well adapted to the distance of the places to which they were destined. They exercised the three powers; and were, if I may presume to use the expression, the bashaws of the republic. We have elsewhere observed[79] that in a commonwealth the same magistrate ought to be possessed of the executive power, as well civil as military. Hence a conquering republic can hardly communicate her government, and rule the conquered state according to her own constitution. And indeed as the magistrate she sends to govern is invested with the executive power, both civil and military, he must also have the legislative: for who is it that could make laws without him? It is necessary, therefore, that the governor she sends be entrusted with the three powers, as was practised in the Roman provinces. It is more easy for a monarchy to communicate its government, because the officers it sends have, some the civil executive, and others the military executive power, which does not necessarily imply a despotic authority. It was a privilege of the utmost consequence to a Roman citizen to have none but the people for his judge. Were it not for this, he would have been subject in the provinces to the arbitrary power of a proconsul or of a propr?tor. The city never felt the tyranny which was exercised only on conquered nations. Thus, in the Roman world, as at Sparta, the freemen enjoyed the highest degree of liberty, while those who were slaves laboured under the extremity of servitude. While the citizens paid taxes, they were raised with great justice and equality. The regulation of Servius Tullius was observed, who had distributed the people into six classes, according to their difference of property, and fixed the several shares of the public imposts in proportion to that which each person had in the government. Hence they bore with the greatness of the tax because of their proportionable greatness of credit, and consoled themselves for the smallness of their credit because of the smallness of the tax. There was also another thing worthy of ad miration, which is, that as Servius Tullius's division into classes was in some measure the fundamental principle of the constitution, it thence followed that an equal levying of the taxes was so connected with this fundamental principle that the one could not be abolished without the other. But while the city paid the taxes as she pleased, or paid none at all,[80] the provinces were plundered by the knights, who were the farmers of the public revenue. We have already made mention of their oppressive extortions, with which all history abounds. "All Asia," says Mithridates,[81] "expects me as her deliverer; so great is the hatred which the rapaciousness of the proconsuls,[82] the confiscations made by the officers of the revenue, and the quirks and cavils of judicial proceedings,[83] have excited against the Romans." Hence it was that the strength of the provinces did not increase, but rather weakened, the strength of the republic. Hence it was that the provinces looked upon the loss of the liberty of Rome as the epoch of their own freedom. 20. The End of this Book. I should be glad to inquire into the distribution of the three powers, in all the moderate governments we are acquainted with, in order to calculate the degrees of liberty which each may enjoy. But we must not always exhaust a subject, so as to leave no work at all for the reader. My business is not to make people read, but to make them think. ______ 1. "I have copied," says Cicero, "Sc?vola's edict, which permits the Greeks to terminate their difference among themselves according to their own laws; this makes them consider themselves a free people." 2. The Russians could not bear that Czar Peter should make them cut it off. 3. The Cappadocians refused the condition of a republican state, which was offered them by the Romans. 4. The natural end of a state that has no foreign enemies, or that thinks itself secured against them by barriers. 5. Inconvenience of the Liberum veto. 6. At Venice. 7. As at Athens. 8. See Aristotle, Politics, iv. 4. 9. See Aristotle, Politics, ii, 10. 10. Ibid., 9. 11. These were magistrates chosen annually by the people. See Stephen of Byzantium. 12. It was lawful to accuse the Roman magistrates after the expiration of their several offices. See in Dionysius Halicarnassus, ix, the affair of Genutius the tribune. 13. De minoribus rebus principes consultant, de majoribus omnes; ita tamen lit ea quoque quorum penes plebem arbitrium est, apud principes pertractentur. -- ix. 14. Politics, iii. 14. 15. See Justin, xvii. 3. 16. Aristotle, Politics, v. 11. 17. Ibid., iii. 14. 18. Ibid. 19. See what Plutarch says in the Theseus. See likewise Thucydides, i. 20. Aristotle, Politics, iv. 8. 21. Dionysius Halicarnassus, ii, p. 120, and iv, pp. 242, 243. 22. See Tanaquil's Discourse on Livy, i dec. l, and the regulations of Servius Tullius in Dionysius Halicarnassus, iv. p. 229. 23. See Dionysius Halicarnassus, ii, p. 118, and iii, p. 171. 24. It was by virtue of a senatus-consultum that Tullius Hostilius ordered Alba to be destroyed. -- Ibid., iii, pp. 167 and 172. 25. Ibid., iv, p. 276. 26. Ibid., ii. And yet they could not have the nomination of all offices, since Valerius Publicola made that famous law by which every citizen was forbidden to exercise any employment, unless he had obtained it by the suffrage of the people. 27. Ibid., iii, p. 159. 28. Ibid., iv. 29. He divested himself of half the regal power, says Dionysius Halicarnassus, iv, p. 229. 30. It was thought that if he had not been prevented by Tarquin he would have established a popular government. -- Ibid., iv, p. 243. 31. Ibid., iv. 32. Livy, dec. 1, vi. 33. Qu?stores parricidii. -- Pomponius, Leg. 2,§ 23, ff. de orig. jur. 34. Plutarch, Poplicola. 35. Comitiis centuriatis. 36. See Livy, i, 43; Dionysius Halicarnassus, iv, vii. 37. Dionysius Halicarnassus, ix, p. 598. 38. Ibid., vii. 39. Contrary to the ancient custom, as may be seen: ibid., v, p. 320. 40. Ibid., pp. 410, 411. 41. Ibid., ix, p. 605. 42. Ibid., xi, p. 725. 43. By the sacred laws, the plebeians had the power of making the plebiscita by themselves, without admitting the patricians into their assembly -- Ibid., vi, p. 410; vii, p. 430. 44. By the law enacted after the expulsion of the decemvirs, the patricians were made subject to the plebiscita, though they had not a right of voting there. Livy, iii. 55, and Dionysius Halicarnassus, xi, p. 725. This law was confirmed by that of Publius Philo the dictator, in the year of Rome 416. Livy, viii. 12. 45. In the year 312 of Rome the consuls performed still the business of surveying the people and their estates, as appears by Dionysius Halicarnassus, ix. 46. Such as those by which it was allowed to appeal from the decisions of all the magistrates to the people. 47. Book vi. 48. In the year of Rome 444, Livy, dec. 1, ix. 30. As the war against Perseus appeared somewhat dangerous, it was ordained by a senatus-consultum that this law should be suspended, and the people agreed to it. Livy, dec. 5, ii. 49. They extorted it from the senate, says Freinshemius, dec. 2, vi. 50. There is no manner of doubt but the consuls had the power of trying civil causes before the creation of the pr?tors. See Livy, dec. l, ii. 1; Dionysius Halicarnassus, x, pp. 627, 645. 51. The tribunes frequently tried causes by themselves only, but nothing rendered them more odious. -- Dionysius Halicarnassus, xi, p. 709. 52. Judicia extraordinaria. See the Institutes, iv. 53. Book vi, p. 360. 54. Album Judicium. 55. "Our ancestors," says Cicero, Pro Cluentio, "would not suffer any man whom the parties had not agreed to, to be judge of the least pecuniary affair, much less of a citizen's reputation." 56. See in the fragments of the Servilian, Cornelian, and other laws, in what manner these laws appointed judges for the crimes they proposed to punish. They were often pitched upon by choice, sometimes by lot, or, in fine, by lot mixed together with choice. 57. Seneca, De Benefic. iii. 7, in fine. 58. See Quintilian, iv, p. 54, in fol. ed., Paris, 1541. 59. Leg. 2 ff. de orig. jur. Magistrates who were called decemvirs presided in court, the whole under a pr?tor's direction. 60. Quoniam de capite civis Romani, injussu populi Romani, non erat permissum consulibus jus dicere. -- See Pomponius,Leg. 2, §6, ff. de orig. jur. 61. Dionysius Halicarnassus, v, p. 322. 62. The comitia by centuries. Thus Manlius Capitolinus was tried in these comitia. -- Livy, Dec. 1, vi. 20. 63. Pomponius, in Leg. 2, Dig., de orig. jur. 64. See a fragment of Ulpian, who gives another of the Cornelian Law: it is to be met with in the Collation of the Mosaic and Roman Laws, tit. i, De Sicariis et homicidiis. 65. This took place, especially in regard to crimes committed in Italy, which were subject chiefly to the inspection of the senate. See Livy, Dec. 1, ix, 26, concerning the conspiracies at Capua. 66. This was the case in the prosecution for the murder of Posthumius, in the year 340 of Rome. See Livy, iv. 50. 67. This judgment was passed in the year of Rome 567. 68. Book viii. 69. Cicero, in Brutus. 70. This is proved from Livy, book xliii. 46, who says that Hannibal rendered their magistracy annual. 71. The senatus-consultums were in force for the space of a year, though not confirmed by the people. -- Dionysius Halicarnassus ix, p. 595; xi, p. 735. 72. In the year 630. 73. Capite censos plerosque. -- Sallust, De Bello Jugurth, 84. 74. Fragment of this author, xxxvi, in the collection of Constantine Porphyrogenitus, Of Virtues and Vices [Historica]. 75. Fragment of his history, taken from the extract Of Virtues and Vices [Historica]. 76. Fragment of the book xxxiv in the extract Of Virtues and Vices [Historica]. 77. Penes quos Rom? tum judicia erant, atque ex equestri ordine solerent sortito judices eligi in causa Pr?torum et Proconsulum, quibus post administratam provinciam dies dicta erat. 78. They made their edicts upon entering the provinces. 79. Book v. 19. See also ii, iii, iv, and v. 80. After the conquest of Macedonia the Romans paid no taxes. 81. Speech taken from Trogus Pompeius, and related by Justin, xxxviii. 4. 82. See the orations against Verres. 83. It is well known what sort of a tribunal was that of Varus, which provoked the Germans to revolt. ------------------------------------------------------------------------ Book XII. Of the Laws That Form Political Liberty, in Relation to the Subject 1. Idea of this Book. It is not sufficient to have treated of political liberty in relation to the constitution; we must examine it likewise in the relation it bears to the subject. We have observed that in the former case it arises from a certain distribution of the three powers; but in the latter, we must consider it in another light. It consists in security, or in the opinion people have of their security. The constitution may happen to be free, and the subject not. The subject may be free, and not the constitution. In those cases, the constitution will be free by right, and not in fact; the subject will be free in fact, and not by right. It is the disposition only of the laws, and even of the fundamental laws, that constitutes liberty in relation to the constitution. But as it regards the subject: manners, customs, or received examples may give rise to it, and particular civil laws may encourage it, as we shall presently observe. Further, as in most states liberty is more checked or depressed than their constitution requires, it is proper to treat of the particular laws that in each constitution are apt to assist or check the principle of liberty which each state is capable of receiving. 2. Of the Liberty of the Subject. Philosophic liberty consists in the free exercise of the will; or at least, if we must speak agreeably to all systems, in an opinion that we have the free exercise of our will. Political liberty consists in security, or, at least, in the opinion that we enjoy security. This security is never more dangerously attacked than in public or private accusations. It is, therefore, on the goodness of criminal laws that the liberty of the subject principally depends. Criminal laws did not receive their full perfection all at once. Even in places where liberty has been most sought after, it has not been always found. Aristotle[1] informs us that at Cum? the parents of the accuser might be witnesses. So imperfect was the law under the kings of Rome that Servius Tullius pronounced sentence against the children of Ancus Martius, who were charged with having assassinated the king, his father-in-law.[2] Under the first kings of France, Clotarius made a law[3] that nobody should be condemned without being heard; which shows that a contrary custom had prevailed in some particular case or among some barbarous people. It was Charondas that first established penalties against false witnesses.[4] When the subject has no fence to secure his innocence, he has none for his liberty. The knowledge already acquired in some countries, or that may be hereafter attained in others, concerning the surest rules to be observed in criminal judgments, is more interesting to mankind than any other thing in the world. Liberty can be founded on the practice of this knowledge only; and supposing a state to have the best laws imaginable in this respect, a person tried under that state, and condemned to be hanged the next day, would have much more liberty than a pasha enjoys in Turkey. 3. The same Subject continued. Those laws which condemn a man to death on the deposition of a single witness are fatal to liberty. In reason there should be two, because a witness who affirms, and the accused who denies, make an equal balance, and a third must incline the scale. The Greeks[5] and Romans[6] required one voice more to condemn: but our French laws insist upon two. The Greeks pretend that their custom was established by the gods;[7] but this more justly may be said of ours. 4. That Liberty is favoured by the Nature and Proportion of Punishments. Liberty is in perfection when criminal laws derive each punishment from the particular nature of the crime. There are then no arbitrary decisions; the punishment does not flow from the capriciousness of the legislator, but from the very nature of the thing; and man uses no violence to man. There are four sorts of crimes. Those of the first species are prejudicial to religion, the second to morals, the third to the public tranquillity, and the fourth to the security of the subject. The punishments inflicted for these crimes ought to proceed from the nature of each of these species. In the class of crimes that concern religion, I rank only those which attack it directly, such as all simple sacrileges. For as to crimes that disturb the exercise of it, they are of the nature of those which prejudice the tranquillity or security of the subject, and ought to be referred to those classes. In order to derive the punishment of simple sacrileges from the nature of the thing,[8] it should consist in depriving people of the advantages conferred by religion in expelling them out of the temples, in a temporary or perpetual exclusion from the society of the faithful, in shunning their presence, in execrations, comminations, and conjurations. In things that prejudice the tranquillity or security of the state, secret actions are subject to human jurisdiction. But in those which offend the Deity, where there is no public act, there can be no criminal matter, the whole passes between man and God, who knows the measure and time of His vengeance. Now if magistrates, confounding things, should inquire also into hidden sacrileges, this inquisition would be directed to a kind of action that does not at all require it: the liberty of the subject would be subverted by arming the zeal of timorous as well as of presumptuous consciences against him. The mischief arises from a notion which some people have entertained of revenging the cause of the Deity. But we must honour the Deity and leave him to avenge his own cause. And, indeed, were we to be directed by such a notion, where would be the end of punishments? If human laws are to avenge the cause of an infinite Being, they will be directed by his infinity, and not by the weakness, ignorance, and caprice of man. An historian[9] of Provence relates a fact which furnishes us with an excellent description of the consequences that may arise in weak capacities from the notion of avenging the Deity's cause. A Jew was accused of having blasphemed against the Virgin Mary; and upon conviction was condemned to be flayed alive. A strange spectacle was then exhibited: gentlemen masked, with knives in their hands, mounted the scaffold, and drove away the executioner, in order to be the avengers themselves of the honour of the blessed Virgin. I do not here choose to anticipate the reflections of the reader. The second class consists of those crimes which are prejudicial to morals. Such is the violation of public or private continence, that is, of the police directing the manner in which the pleasure annexed to the conjunction of the sexes is to be enjoyed. The punishment of those crimes ought to be also derived from the nature of the thing; the privation of such advantages as society has attached to the purity of morals, fines, shame, necessity of concealment, public infamy, expulsion from home and society, and, in fine, all such punishments as belong to a corrective jurisdiction, are sufficient to repress the temerity of the two sexes. In effect these things are less founded on malice than on carelessness and self-neglect. We speak here of none but crimes which relate merely to morals, for as to those that are also prejudicial to the public security, such as rapes, they belong to the fourth species. The crimes of the third class are those which disturb the public tranquillity. The punishments ought therefore to be derived from the nature of the thing, and to be in relation to this tranquillity; such as imprisonment, exile, and other like chastisements proper for reclaiming turbulent spirits, and obliging them to conform to the established order. I confine those crimes that injure the public tranquillity to things which imply a bare offence against the police; for as to those which by disturbing the public peace attack at the same time the security of the subject, they ought to be ranked in the fourth class. The punishments inflicted upon the latter crimes are such as are properly distinguished by that name. They are a kind of retaliation, by which the society refuses security to a member who has actually or intentionally deprived another of his security. These punishments are derived from the nature of the thing, founded on reason, and drawn from the very source of good and evil. A man deserves death when he has violated the security of the subject so far as to deprive, or attempt to deprive, another man of his life. This punishment of death is the remedy, as it were, of a sick society. When there is a breach of security with regard to property, there may be some reasons for inflicting a capital punishment: but it would be much better, and perhaps more natural, that crimes committed against the security of property should be punished with the loss of property; and this ought, indeed, to be the case if men's fortunes were common or equal. But as those who have no property of their own are generally the readiest to attack that of others, it has been found necessary, instead of a pecuniary, to substitute a corporal, punishment. All that I have here advanced is founded in nature, and extremely favourable to the liberty of the subject. 5. Of certain Accusations that require particular Moderation and Prudence. It is an important maxim, that we ought to be very circumspect in the prosecution of witchcraft and heresy. The accusation of these two crimes may be vastly injurious to liberty, and productive of infinite oppression, if the legislator knows not how to set bounds to it. For as it does not directly point at a person's actions, but at his character, it grows dangerous in proportion to the ignorance of the people; and then a man is sure to be always in danger, because the most exceptional conduct, the purest morals, and the constant practice of every duty in life are not a sufficient security against the suspicion of his being guilty of the like crimes. Under Manuel Comnenus, the Protestator[10] was accused of having conspired against the emperor, and of having employed for that purpose some secrets that render men invisible. It is mentioned in the life of this emperor[11] that Aaron was detected, as he was poring over a book of Solomon's, the reading of which was sufficient to conjure up whole legions of devils. Now by supposing a power in witchcraft to rouse the infernal spirits to arms, people look upon a man whom they call a sorcerer as the person in the world most likely to disturb and subvert society; and of course they are disposed to punish him with the utmost severity. But their indignation increases when witchcraft is supposed to have the power of subverting religion. The history of Constantinople[12] informs us that in consequence of a revelation made to a bishop of a miracle having ceased because of the magic practices of a certain person, both that person and his son were put to death. On how many surprising things did not this single crime depend? That revelations should not be uncommon, that the bishop should be favoured with one, that it was real, that there had been a miracle in the case, that this miracle had ceased, that there was a magic art, that magic could subvert religion, that this particular person was a magician, and, in fine, that he had committed that magic act. The Emperor Theodorus Lascaris attributed his illness to witchcraft. Those who were accused of this crime had no other resource left than to handle a red-hot iron without being hurt. Thus among the Greeks a person ought to have been a sorcerer to be able to clear himself of the imputation of witchcraft. Such was the excess of their stupidity that to the most dubious crime in the world they joined the most dubious proofs of innocence. Under the reign of Philip the Long, the Jews were expelled from France, being accused of having poisoned the springs with their lepers. So absurd an accusation ought to make us doubt all those that are founded on public hatred. I have not here asserted that heresy ought not to be punished; I said only that we ought to be extremely circumspect in punishing it. 6. Of the Crime against Nature. God forbid that I should have the least inclination to diminish the public horror against a crime which religion, morality, and civil government equally condemn. It ought to be proscribed, were it only for its communicating to one sex the weaknesses of the other, and for leading people by a scandalous prostitution of their youth to an ignominious old age. What I shall say concerning it will in no way diminish its infamy, being levelled only against the tyranny that may abuse the very horror we ought to have against the vice. As a natural circumstance of this crime is secrecy, there are frequent instances of its having been punished by legislators upon the deposition of a child. This was opening a very wide door to calumny. "Justinian," says Procopius,[13] "published a law against this crime; he ordered an inquiry to be made not only against those who were guilty of it, after the enacting of that law, but even before. The deposition of a single witness, sometimes of a child, sometimes of a slave, was sufficient, especially against such as were rich, and against those of the green faction." It is very odd that these three crimes, witchcraft, heresy, and that against nature, of which the first might easily be proved not to exist; the second to be susceptible of an infinite number of distinctions, interpretations, and limitations; the third to be often obscure and uncertain -- it is very odd, I say, that these three crimes should amongst us be punished with fire. I may venture to affirm that the crime against nature will never make any great progress in society, unless people are prompted to it by some particular custom, as among the Greeks, where the youths of that country performed all their exercises naked; as amongst us, where domestic education is disused; as amongst the Asiatics, where particular persons have a great number of women whom they despise, while others can have none at all. Let there be no customs preparatory to this crime; let it, like every other violation of morals, be severely proscribed by the civil magistrate; and nature will soon defend or resume her rights. Nature, that fond, that indulgent parent, has strewn her pleasures with a bounteous hand, and while she fills us with delights, she prepares us, by means of our issue, in whom we see ourselves, as it were, reproduced -- she prepares us, I say, for future satisfactions of a more exquisite kind than those very delights. 7. Of the Crime of High Treason. It is determined by the laws of China that whosoever shows any disrespect to the emperor is to be punished with death. As they do not mention in what this disrespect consists, everything may furnish a pretext to take away a man's life, and to exterminate any family whatsoever. Two persons of that country who were employed to write the court gazette, having inserted some circumstances relating to a certain fact that was not true, it was pretended that to tell a lie in the court gazette was a disrespect shown to the court, in consequence of which they were put to death.[14] A prince of the blood having inadvertently made some mark on a memorial signed with the red pencil by the emperor, it was determined that he had behaved disrespectfully to the sovereign; which occasioned one of the most terrible persecutions against that family that ever was recorded in history.[15] If the crime of high treason be indeterminate, this alone is sufficient to make the government degenerate into arbitrary power. I shall descant more largely on this subject when I come to treat[16] of the composition of laws. 8. Of the Misapplication of the Terms Sacrilege and High Treason. It is likewise a shocking abuse to give the appellation of high treason to an action that does not deserve it. By an imperial law[17] it was decreed that those who called in question the prince's judgment, or doubted the merit of such as he had chosen for a public office, should be prosecuted as guilty of sacrilege.[18] Surely it was the cabinet council and the prince's favourites who invented that crime. By another law, it was determined that whosoever made any attempt to injure the ministers and officers belonging to the sovereign should be deemed guilty of high treason, as if he had attempted to injure the sovereign himself.[19] This law is owing to two princes[20] remarkable for their weakness -- princes who were led by their ministers as flocks by shepherds; princes who were slaves in the palace, children in the council, strangers to the army; princes, in fine, who preserved their authority only by giving it away every day. Some of those favourites conspired against their sovereigns. Nay, they did more, they conspired against the empire -- they called in barbarous nations; and when the emperors wanted to stop their progress the state was so enfeebled as to be under a necessity of infringing the law, and of exposing itself to the crime of high treason in order to punish those favourites. And yet this is the very law which the judge of Monsieur de Cinq-Mars built upon[21] when endeavouring to prove that the latter was guilty of the crime of high treason for attempting to remove Cardinal Richelieu from the ministry. He says: "Crimes that aim at the persons of ministers are deemed by the imperial constitutions of equal consequence with those which are levelled against the emperor's own person. A minister discharges his duty to his prince and to his country: to attempt, therefore, to remove him, is endeavouring to deprive the former one of his arms,[22] and the latter of part of its power." It is impossible for the meanest tools of power to express themselves in more servile language. By another law of Valentinian, Theodosius, and Arcadius,[23] false coiners are declared guilty of high treason. But is not this confounding the ideas of things? Is not the very horror of high treason diminished by giving that name to another crime? 9. The same Subject continued. Paulinus having written to the Emperor Alexander that "he was preparing to prosecute for high treason a judge who had decided contrary to his edict," the emperor answered, "that under his reign there was no such thing as indirect high treason."[24] Faustinian wrote to the same emperor that as he had sworn by the prince's life never to pardon his slave, he found himself thereby obliged to perpetuate his wrath, lest he should incur the guilt of l?sa majestas. Upon which the emperor made answer, "Your fears are groundless,[25] and you are a stranger to my principles." It was determined by a senatus-consultum[26] that whosoever melted down any of the emperor's statues which happened to be rejected should not be deemed guilty of high treason. The Emperors Severus and Antoninus wrote to Pontius[27] that those who sold unconsecrated statues of the emperor should not be charged with high treason. The same princes wrote to Julius Cassianus that if a person in flinging a stone should by chance strike one of the emperor's statues he should not be liable to a prosecution for high treason.[28] The Julian law requires this sort of limitations; for in virtue of this law the crime of high treason was charged not only upon those who melted down the emperor's statues, but likewise on those who committed any such like action,[29] which made it an arbitrary crime. When a number of crimes of l?sa majestas had been established, they were obliged to distinguish the several sorts. Hence Ulpian, the civilian, after saying that the accusation of l?sa majestas did not die with the criminal, adds that this does not relate to all the treasonable acts established by the Julian law,[30] but only to that which implies an attempt against the empire, or against the emperor's life. 10. The same Subject continued. There was a law passed in England under Henry VIII, by which whoever predicted the king's death was declared guilty of high treason. This law was extremely vague; the terror of despotic power is so great that it recoils upon those who exercise it. In this king's last illness, the physicians would not venture to say he was in danger; and surely they acted very right.[31] 11. Of Thoughts. Marsyas dreamed that he had cut Dionysius's throat.[32] Dionysius put him to death, pretending that he would never have dreamed of such a thing by night if he had not thought of it by day. This was a most tyrannical action: for though it had been the subject of his thoughts, yet he had made no attempt[33] towards it. The laws do not take upon them to punish any other than overt acts. 12. Of indiscreet Speeches. Nothing renders the crime of high treason more arbitrary than declaring people guilty of it for indiscreet speeches. Speech is so subject to interpretation; there is so great a difference between indiscretion and malice; and frequently so little is there of the latter in the freedom of expression, that the law can hardly subject people to a capital punishment for words unless it expressly declares what words they are.[34] Words do not constitute an overt act; they remain only in idea. When considered by themselves, they have generally no determinate signification; for this depends on the tone in which they are uttered. It often happens that in repeating the same words they have not the same meaning; this depends on their connection with other things, and sometimes more is signified by silence than by any expression whatever. Since there can be nothing so equivocal and ambiguous as all this, how is it possible to convert it into a crime of high treason? Wherever this law is established, there is an end not only of liberty, but even of its very shadow. In the manifesto of the late Czarina against the family of the D'Olgoruckys,[35] one of these princes is condemned to death for having uttered some indecent words concerning her person: another, for having maliciously interpreted her imperial laws, and for having offended her sacred person by disrespectful expressions. Not that I pretend to diminish the just indignation of the public against those who presume to stain the glory of their sovereign; what I mean is that, if despotic princes are willing to moderate their power, a milder chastisement would be more proper on those occasions than the charge of high treason -- a thing always terrible even to innocence itself.[36] Overt acts do not happen every day; they are exposed to the eye of the public; and a false charge with regard to matters of fact may be easily detected. Words carried into action assume the nature of that action. Thus a man who goes into a public market-place to incite the subject to revolt incurs the guilt of high treason, because the words are joined to the action, and partake of its nature. It is not the words that are punished, but an action in which words are employed. They do not become criminal, but when they are annexed to a criminal action: everything is confounded if words are construed into a capital crime, instead of considering them only as a mark of that crime. The Emperors Theodosius, Arcadius, and Honorius wrote thus to Rufinus, who was pr?fectus pr?torio: "Though a man should happen to speak amiss of our person or government, we do not intend to punish him:[37] if he has spoken through levity, we must despise him; if through folly, we must pity him; and if he wrongs us, we must forgive him. Therefore, leaving things as they are, you are to inform us accordingly, that we may be able to judge of words by persons, and that we may duly consider whether we ought to punish or overlook them." 13. Of Writings. In writings there is something more permanent than in words, but when they are in no way preparative to high treason they cannot amount to that charge. And yet Augustus and Tiberius subjected satirical writers to the same punishment as for having violated the law of maiestas. Augustus,[38] because of some libels that had been written against persons of the first quality; Tiberius, because of those which he suspected to have been written against himself. Nothing was more fatal to Roman liberty. Cremutius Cordus was accused of having called Cassius in his annals the last of the Romans.[39] Satirical writings are hardly known in despotic governments, where dejection of mind on the one hand, and ignorance on the other, afford neither abilities nor will to write. In democracies they are not hindered, for the very same reason which causes them to be prohibited in monarchies; being generally levelled against men of power and authority, they flatter the malignancy of the people, who are the governing party. In monarchies they are forbidden, but rather as a subject of civil animadversion than as a capital crime. They may amuse the general malevolence, please the malcontents, diminish the envy against public employments, give the people patience to suffer, and make them laugh at their sufferings. But no government is so averse to satirical writings as the aristocratic. There the magistrates are petty sovereigns, but not great enough to despise affronts. If in a monarchy a satirical stroke is designed against the prince, he is placed on such an eminence that it does not reach him; but an aristocratic lord is pierced to the very heart. Hence the decemvirs, who formed an aristocracy, punished satirical writings with death.[40] 14. Breach of Modesty in punishing Crimes. There are rules of modesty observed by almost every nation in the world; now it would be very absurd to infringe these rules in the punishment of crimes, the principal view of which ought always to be the establishment of order. Was it the intent of those Oriental nations who exposed women to elephants trained up for an abominable kind of punishment -- was it, I say, their intent to establish one law by the breach of another? By an ancient custom of the Romans it was not permitted to put girls to death till they were ripe for marriage. Tiberius found an expedient of having them debauched by the executioner before they were brought to the place of punishment:[41] that bloody and subtle tyrant destroyed the morals of the people to preserve their customs. When the magistrates of Japan caused women to be exposed naked in the market-places, and obliged them to go upon all fours like beasts, modesty was shocked:[42] but when they wanted to compel a mother -- when they wanted to force a son -- I cannot proceed; even Nature herself is struck with horror.[43] 15. Of the Enfranchisement of Slaves in order to accuse their Master. Augustus made a law that the slaves of those who conspired against his person should be sold to the public, that they might depose against their master.[44] Nothing ought to be neglected which may contribute to the discovery of a heinous crime; it is natural, therefore, that in a government where there are slaves they should be allowed to inform; but they ought not to be admitted as witnesses. Vindex discovered the conspiracy that had been formed in favour of Tarquin; but he was not admitted a witness against the children of Brutus. It was right to give liberty to a person who had rendered so great a service to his country; but it was not given him with a view of enabling him to render this service. Hence the Emperor Tacitus ordained that slaves should not be admitted as witnesses against their masters, even in the case of high treason:[45] a law which was not inserted in Justinian's compilation. 16. Of Calumny with regard to the Crime of High Treason. To do justice to the C?sars, they were not the first devisers of the horrid laws which they enacted. It was Sulla[46] that taught them that calumniators ought not to be punished; but the abuse was soon carried to such excess as to reward them.[47] 17. Of the revealing of Conspiracies. "If thy brother, the son of thy mother, or thy son, or thy daughter, or the wife of thy bosom, or thy friend, which is as thine own soul, entice thee secretly, saying, 'Let us go and serve other gods,' thou shalt surely kill him, thou shalt stone him."[48] This law of Deuteronomy cannot be a civil law among most of the nations known to us, because it would pave the way for all manner of wickedness. No less severe is the law of several countries which commands the subjects, on pain of death, to disclose conspiracies in which they are not even so much as concerned. When such a law is established in a monarchical government, it is very proper it should be under some restrictions. It ought not to be applied in its full severity save to the strongest cases of high treason. In those countries it is of the utmost importance not to confound the different degrees of this crime. In Japan, where the laws subvert every idea of human reason, the crime of concealment is applied even to the most ordinary cases. A certain relation[49] makes mention of two young ladies who were shut up for life in a box thick set with pointed nails, one for having had a love intrigue, and the other for not disclosing it. 18. How dangerous it is in Republics to be too severe in punishing the Crime of High Treason. As soon as a republic has compassed the destruction of those who wanted to subvert it, there should be an end of terrors, punishments, and even of rewards. Great punishments, and consequently great changes, cannot take place without investing some citizens with an exorbitant power. It is, therefore, more advisable in this case to exceed in lenity than in severity; to banish but few, rather than many; and to leave them their estates, instead of making a vast number of confiscations. Under pretence of avenging the republic's cause, the avengers would establish tyranny. The business is not to destroy the rebel, but the rebellion. 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,[50] nay, sometimes five of their nearest relatives;[51] 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,[52] "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 Sulla, are very much to blame." We find in the wars of Marius and Sulla 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 made use of to cover their inhumanity. Appian has given us[53] the formula of the proscriptions. One would imagine they had no other aim than the good of the republic, 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 apprehensive do they seem of endangering the lives of the citizens; 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 rejoicings in that city, upon pain of proscription. 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.[54] These are in relation to those Athenian laws by which a private person was condemned,[55] 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 privileges.[56] 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.[57] I must own, notwithstanding, that the practice of the freest nation 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 favourable 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 establish proper laws, in order to protect the innocence of the subject. 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. ?schines, who accused Ctesiphon, was condemned to pay this fine.[58] At Rome, a false accuser was branded with infamy[59] 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.[60]