The Spirit of the Laws

Book I. Of Laws in general

CHAP. I. Of the relation of Laws to different Beings

LAWS in their most general signification, are the necessary relations resulting from the nature of things. In this sense all beings have their laws, the Deity has[1] his laws, the material world its laws, the intelligences superior to man have their laws, the beasts their laws, man his laws.

[1] Law, says Plutarch, is the queen of the Gods and men. See his treatise entitled, The necessity of a Prince being a man of learning.

Those who assert that a blind fatality produced the various effects we behold in this world, are guilty of a very great absurdity, for can any thing be more absurd than to pretend that a blind fatality could be productive of intelligent Beings?

​ There is then a primitive reason, and laws are relations which subsist between it and different beings, and the relations of these beings among themselves.

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 relative to his wisdom and power.

As we see 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 must inevitably perish.

Thus the creation, which seems an arbitrary act, suppose the 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 fixt and invariable relation. In bodies moved the motion is received, increased, diminished, 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, that 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 be grateful; if one intelligent being had created another intelligent being, the latter ought to continue in its original state of dependance; if one intelligent being injures another, it deserves a retaliation of the injury, 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, yet 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, is what 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 being of the individual, and by the same allurement they preserve their species. They have natural laws, because they are united by sensations, positive laws they have none, because they are not connected by knowledge. And yet they do not conform invariably to their natural laws; these are better observed by vegetables, that have neither intellectual nor sensitive faculties.

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 which he himself has established. He is left to his own direction, though he is a limited being, subject like all finite intelligences, to ignorance and error; even the imperfect knowledge he has, he loses as a sensible creature, and 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.

CHAP. II. Of the Laws of Nature

ANtecedent to all these laws are those of nature, so called because they derive their force entirely from our frame and being. 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 by imprinting on our minds the idea of a Creator inclines us to 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 any acquired 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 original. 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.

[2] Witness the savage found in the forests of Hanover, who was carried over to England under the reign of George I.

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 that would occur to human understandings.

Hobbes enquires, For what reason do men go 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 man 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 incline men to shun one another; but the marks of this fear being reciprocal, would soon induce 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 has in common with brutes, he has the advantage of attaining to acquired knowledge; and thereby has a second tye wich brutes have not. Mankind have therefore a new motive of uniting; and a fourth law of nature arises from the desire of living in society.

CHAP. III. Of positive Laws

AS soon as mankind enter into a state of society, they lose the sense of their weakness, the equality ceases, and then commences the state of war.

Each particular society begins to feel its strength, whence arises a state of war betwixt different nations. The individuals likewise of each society become sensible of their strength; hence the principal advantages of this society they endeavour to convert to their own emolument, which constitutes between them a state of war.

These two different kinds of military states give rise to human laws. Considered as inhabitants of so great a planet which necessarily implies a variety of nations, they have laws relative to their mutual intercourse, which is what we call the law of nations. Considered as members of a society that must be properly supported, they have laws relative to the governors and the governed; and this we call politic law. They have also another sort of laws relating to the mutual communication of citizens; 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 harm as possible, without prejudicing their real interests.

The object of war is victory; victory aims at conquest; conquest at 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 politic law for each particularly considered. No society can subsist without a form of government. The conjunction of the particular forces of individuals, as Gravina well observes, constitutes what we call a political state.

The general force may be in the hands of a single person, or of many. Some think that nature having established paternal authority, the government of a single person was most conformable to nature. But the example of paternal authority proves nothing. For if the power of a father is relative to a single government, that of brothers after the death of a father, or that of cousin germans after the decease of brothers, are relative 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 whose particular disposition best agrees with the humour and disposition of the people in whole favour it is established.

The particular force 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 this applied.

They should be adapted in such a manner to the people for whom they are made, as to render it very unlikely for those of one nation to be proper for another.

They should be relative to the nature and principle of the actual, or intended government, whether they form it, as in the case of political laws, or whether they support it, as may be said of civil institutions.

They should be relative to the climate of each country, to the quality of the soil, to its situation and extent, to the manner of living of the natives, whether husbandmen, huntsmen, or shepherds: they should have a relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, number, commerce, manners, and customs. In sine, they have relations amongst themselves, as also to their origin, to the intent of the legislator, and to the order of things on which they are established, in all 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 form what I call the Spirit of laws.

I have not separated the political from the civil laws, for 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 have to different things, it is not so much my business to follow the natural order of laws, as that of these relations and things.

​ I shall first examine the relation which laws have to the nature and principle of each government; and as this principle has a strong influence on laws, I shall make it my business to understand it thoroughly: and if I can but once establish it, the laws will soon appear to flow from thence as from their source. I shall proceed afterwards to other more particular relations.

Book II. Of Laws directly derived from the Nature of Government

CHAP. I. 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 fixt and established laws: a despotic government, that in which a single person directs every thing by his own will and caprice.

This is what I call the nature of each government; we must examine now which are those laws that follow this nature directly, and consequently are the first fundamental laws.

CHAP. II. Of the republican Government, and the Laws relative to Democracy

WHEN the body of the people in a republic are possessed of the supreme power, this 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. In fact, 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 [1] 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.

[1] Declam, 17 & 28.

It is an essential point to fix the number of citizens who are to form the public assemblies, otherwise it might be uncertain whether they had the votes of the whole, or of only a part of the people. At Sparta the number was fixt to ten thousand. But at Rome, a city designed by providence to rise from the weakest beginnings to the highest pitch of grandeur; at Rome, a city doomed to experience all the vicissitudes of fortune; at Rome, who had sometimes all her inhabitants without her walls, and sometimes all Italy and a considerable part of the world within them: at Rome, I say, this number was never fixed,[2] and this was one of the principal causes of her ruin.

[2] See the considerations on the causes of the grandeur and decline of the Romans.

The people in whom the supreme power resides, ought to do of themselves whatever conveniently then can; and what they themselves cannot rightly perform, they must do by their ministers.

​ The ministers are not properly their’s unless they have the nomination of them: it is therefore a fundamental maxim in this government, that the people should chuse 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 chusing of the members, and this 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 chusing those, whom they are to intrust with part of their authority. They have only to be determined by things which they cannot be strangers to, and by facts that are obvious to sense. They can tell when a person has been in several engagements, and has had particular success; they are therefore very capable of electing a general. They can tell when a judge is assiduous in his office, when he gives general satisfaction, and has never been charged with bribery: this is sufficient for chusing a praetor. They are struck with the magnificence or riches of a fellow citizen; this is as much as is requisite for electing an edile. These are all facts of which they can have better information in a public forum, than a monarch in his palace. But are they to manage an intricate affair, to find out and make a proper use of places, occasions, moments? No, this is beyond their capacity.

Should we doubt of the people’s natural ability in respect to the discernment of merit, we need ​ only cast an eye on the continual 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 to themselves the right of raising plebeians to public offices, yet they could not resolve to chuse them; and though at Athens the magistrates were allowed by the law of Aristides, to be elected from all the different classes of inhabitants, yet there never was case, says Xenophon[3], that the common people petitioned for employments that could endanger their security or glory.

[3] Page 691, and 692, Edit. Wechel. Ann. 1576.

As most citizens have a capacity of chusing, though they are not sufficiently qualified to be chosen, so the people, though capable of calling others to an account for their administration, are incapable of 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 signalized themselves, and it is on this the duration and prosperity of democracy have always depended.

Servius Tullius followed the spirit of aristocracy in the distribution of his classes. We find in Livy[4]and in Dionysius Halicarnasseus[5], in what manner he lodged the right of suffrage in the hands of the principal citizens. He had divided ​ the people of Rome into a hundred and ninety-three 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 following centuries; he slung the indigent multitude into the last; and as each century had but one vote,[6] it was property rather than numbers that decided the elections.

[4] lib 1.

[5] lib. 4, Art. 13, & seq.

[6] See in the Considerations on the causes of the grandeur and decline of the Romans, chap.9. how this spirit of Servius Tallius was preserved in the republic.

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 chuse, but those who were capable of being chosen, wherefore leaving to each citizen the right of election, he made[7] the judges eligible from each of those four classes; but the magistrates he ordered to be chosen only out of the three first, which consisted of citizens of easy fortunes.

[7] Dionysius Halicarn. elogium of Isocrates. p.97, tom. 2. Edit. Wechel. Pollux lib. 8. cap. 10. Art 130.

As the division of those who have a right of suffrage, is a fundamental law in a republic; so the manner also of giving this suffrage is another fundamental law.

The suffrage by lot is natural to democracy, as that by choice is to aristocracy.

The suffrage by lot is a method of electing that offends no one; it lets each citizen entertain reasonable hopes of serving his country.

But as this method is in itself defective, it has been the glorious 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 expence, should be given by choice; and the others by lot.

But in order 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[8], and that every one should have a right to accuse him if he were unworthy of the office[9]: this participated at the same time of suffrage by lot, and of that by choice. When the time of their magistracy was expired, they were obliged to submit to another judgment upon the manner they had behaved. Persons utterly unqualified, must have been extremely backward in giving in their names to be drawn by lot.

[8] See the oration of Demosthens desalsa legat. and the oration against Timarchus.

[9] 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.

The law which determines the manner of giving the suffrages, is likewise fundamental in a democracy. It is a question of some importance, whether the suffrages ought to be public or secret. Cicero observes[10], that the laws [11] which rendered them secret towards the 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.

[10] lib. 1. & 3. de Leg.

[11] They were called Lega 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 Rogat, or Be it as you desire.

​ The people’s suffrages ought doubtless to be public[12]; and this should be considered as a fundamental law of democracy. The lower sort of people ought to be directed by those of higher rank, and restrained within bounds by the gravity of certain 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[13]; or in a democracy, the senate[14]; as the business is then only to prevent intrigues, the suffrages cannot be too secret.

[12] At Athens the people used to lift up their hands.

[13] As at Venice.

[14] 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. cap. 8

Intriguing in a senate is dangerous; dangerous it is also in a body of nobles, but not so in the people whose nature it is to act through passion. In countries where they have no share in the government, we often see them as much inflamed on the account of an actor, as ever they could be for any concern of the state. The misfortune of a republic is, when there are no more intrigues; and this happens when the people are corrupted by dint of money: in which case they grow indifferent to public concerns, and passionately desirous of lucre. Careless of the government, and of every thing belonging to it, they quietly wait for their salary.

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 a 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[15] had the force of laws for the space of a year, and did not become perpetual till they were ratified by the consent of the people.

[15] See Dionys. Halicarn. lib.4,&9.

CHAP. III. Of the Laws relative 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 monarch.

They do not vote here by lot, for this would be attended only with inconveniencies. In fact, in a government where the most oppressive distinctions are already established, though they were to vote 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 nobles are incapable of deciding, and to prepare those they decide. 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 nothing at all.

It would be a very happy thing in an aristocracy, if by some indirect method the people could be emancipated from their state of annihilation. Thus at Genoa the bank of St. George ​ being administered by the people, gives them a certain influence in the government, from whence their whole prosperity arises.

The senators ought by no means to have a 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 senators were nominated by the[16] censors.

[16] They were named at first by the consuls.

An exorbitant authority suddenly conferred upon a citizen in a republic, produces a monarch or something more than a 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[17], the abuse of this power is much greater, because the laws foresaw it not, and consequently made no provision against it.

[17] This is what ruined the republic of Rome: ce Considerations on the causes of the grandeur and decline of the Roman.

There is an exception to this rule when the constitution is such as to have immediate need of a magistrate inverted with an exorbitant 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 a short duration, because the people act through passion and violence, and not with design. It was necessary that a magistracy of this kind should be exercised with lustre and pomp, because the business was to intimidate and not to punish the people. It was also necessary that the dictator should be created only for some particular affair, and for this only should have an unlimited authority, because 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 designs may be commenced, continued, suspended, 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, because the crimes they punish, are hatched in secrecy and silence. This magistracy must have a general inquisition, by reason their business is not to put a slop to known evils, but to prevent the unknown. In sine the latter magistracy is appointed in order to punish suspected crimes; and the former used rather menaces than punishment even for crimes that were openly avowed by their authors.

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 the thing. For who is it that in the management even of his domestic affairs would be thus confined? At Ragufa[18] 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[19] by formidable powers, who might easily corrupt such petty and insignificant magistrates.

[18] Tournefort’s voyages.

[19] At Lucca the magistrates are chosen only...

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 Antipater[20] made a law at Athens, that whosoever was not worth two thousand drachms, should have no power to vote, he formed by this means the best aristocracy possible; because this was so small a sum as excluded very few, and not one of any rank or consideration in the city. Aristocratical 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 to perfection; and the more it is imperfect, in proportion as it draws towards monarchy.

[20] Diodorus lib. 18. p.601. Rhodoman’s Edition.

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.

CHAP. IV. Of the Relation of Laws to the Nature of monarchical Government

THE intermediate, subordinate and denpendent 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. In fact, 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 can be 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 abolish all 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, of the clergy, and of the 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 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 relative to those laws; whether between two powers acknowledged independent, the conditions ought not to be reciprocal; and whether it is not equally the duty of a good subject to defend the prerogative of the prince, as to maintain the limits which from time immemorial he has prescribed to his authority.

Though the ecclesiastic power is 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 that is always useful when there is no other: for as a despotic government is productive of the most frightful calamities to human nature, the very evil that restrains it, is beneficial to the subject.

As the ocean which seems to threaten to overflow the whole earth, is stopped by weeds and by little 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 that ever was known in Europe. Besides the violent and extraordinary changes owing to his direction: he wanted to suppress all the intermediate ranks, and to abolish the political communities. He was dissolving[21] the monarchy by his chimerical reimbursements, and seemed as if he wanted to redeem even the very constitution.

[21] Ferdinand king of Arragon made himself grand master of the orders, and that alone changed die constitution.

It is not enough to have intermediate powers in a monarchy, there must be also a depositary of the laws. This depositary can be only 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 there should be a body invested with a 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 incapable to set them right in difficult conjunctures, or to reduce 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.

CHAP. V. Of the Laws relative 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 every thing, and his subjects nothing, is naturally lazy, voluptuous, an 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[22], and to invest him with the same power as himself. The creation of a vizir is a fundamental law of this government.

[22] The Eastern kings are never without vizirs, says Sir John Chardin.

It is related of a pope, that he had raised 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 intirely to his nephew. He was soon struck with surprize, 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 bred in that prison where their eunuchs enervate both their hearts and understandings, and where they are frequently kept ignorant even of their high rank, when drawn forth in order to be placed on the throne, they are at first amazed: but as soon as they have chosen a vizir, they abandon themselves in their seraglio to the most brutal passions, pursuing in the midst of a prostituted court, the most capricious extravagancies; they then could neven have dreamt to find matters so easy.

The greater the extent of an empire, the greater is the seraglio; and consequently so much the more is the prince intoxicated with pleasure. Hence the more nations such a prince has to govern, the less he attends to the government, the greater his affairs, the less he makes them the subject of his deliberations.

Book III. Of the Principles of the three Kinds of Government

CHAP. I. Difference between the Nature and Principle of Government

AFTER having examined the laws relative to the nature of each government, we must investigate those that relate to its principle.

There is this difference[1] between the nature and principle of government; its nature is that by which it is constituted, and its principle that by which it is made to act. One is its particular structure, and the other the human passions which set it in motion.

[1] This is a very important distinction, from whence I shall draw a great many consequences; for it is the key of an infinite number of laws.

Now laws ought to be no less relative 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,

CHAP. II. Of the Principle of different Governments

IHAVE 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 sovereign power: of a monarchy, that the prince should have this sovereign 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. No more do I want to enable me to discover their three principles; these are from thence most naturally derived. I shall begin with a republican government, and in particular with that of democracy.

CHAP. III. 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 intrusted with the execution of the laws, is sensible of his being subject himself to their direction.

Clear it is 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 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 the English made for the establishment of democracy. As those who had a share in the direction of public affairs were void of all virtue, as their ambition was inflamed by the success of the most daring of their members[2], as the spirit of a faction was suppressed only by that of a succeeding faction, the government was continually changing: the people amazed at so many revolutions, fought every where for a democracy, without being able to find it. At length after a series of tumultuary motions and violent shocks, they were obliged to have recourse to the very government which they had so odiously proscribed.

[2] Cromwell.

When Sylla wanted to restore Rome to her liberty, this unhappy city was incapable of receiving it. She had only some feeble remains of virtue, and as this was every day diminishing, instead of being roused out of her lethargy, by Caesar, Tiberius, Caius, Claudius, Nero, Domitian, the riveted every day her chains; the blows the struck were levelled against the tyrants, but not at the tyranny.

The politic Greeks who lived under a popular government, knew no other support but virtue. The modern inhabitants of that country are intirely taken up with manufactures, commerce, finances, riches and luxury.

​ When virtue is banished, ambition invades the hearts of those who are disposed to receive it, and avarice possesses the whole community. The desires now change their objects; what they were fond of before, becomes indifferent; they were free, while under the restraint of laws, they will now be free to act against law; and as every citizen is like a slave escaped from his master’s house, what was a maxim of equity, they call rigour; what was a rule of action, they call constraint; and to precaution they give 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 the public treasure is become the patrimony of private persons. The members of the commonwealth riot on the public spoils, and its strength is only the power of some citizens, and the licentiousness of the whole community.

Athens was possessed of the same number of forces, when she triumphed with so much glory, and when with so much infamy she was inslaved. 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. When Philip attempted to reign in 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 awake her: the ​ dreaded Philip not as the enemy of her liberty, but of her pleasures[6]. This famous city, which had withstood so many defeats, and after having been so often destroyed, had as often risen out of her ashes, was overthrown at Chaeronea, 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 Athenian forces, as it would have been difficult to triumph over her virtue.

[3] Plutarch in Pericle, Plato in Critia.

[4] She had at that time twenty one thousand citizens, ten thousand strangers, and four hundred thousand slaves. See Athenaeus, Book 6.

[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 the military service.

How was it possible for Carthage to maintain her ground? When Hannibal, upon his being made praetor, endeavoured to hinder the magistrates from plundering the republic, did not they complain of him to the Romans? Wretches, who wanted to be citizens without a city, and to be beholden for their riches, to their very destroyers! Rome soon insisted upon having three hundred of their principal citizens as hostages; the obliged them next to surrender their arms and ships; and then she declared war against them[7]. By the efforts made by this defenceless city, when reduced to despair, one may judge of what she might have done in her full strength, and assisted by virtue.

[7] This war lasted three years.

CHAP. IV. Of the Principle of Aristocray

AS virtue is necessary in a popular government, so it is necessary also under 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 the 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? Those who are to execute the laws against their collegues, will immediately perceive they are acting against themselves. Virtue is therefore necessary in this body by the very nature of the constitution.

An aristocratical government has within itself a certain strength which a democracy has not. The nobles form a body, who by their prerogative and through particular interest, restrain the people; it is sufficient here that there are laws in being to fee them executed.

But as easy as it is for the body of the nobles to contain the people within bounds, so difficult is it to contain 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.

[8] Public crimes may be punished, because it is here a common concern; but private crimes will go unpunished, because it is a common interest not to punish them.

Now such a body as this can restrain itself only 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 on 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.

CHAP. V. That Virtue is not the Principle of a monarchical Government

IN monarchies, policy makes people do great things with as little virtue as she can. Thus in the finest machines, art has contrived as few movements, springs, and wheels as possible.

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 which to us are known only by story.

The laws supply here the place of thole 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 that are really public, and those that are private, which are so called, because they are more injurious to individuals than to the whole society.

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 take this amiss; my observations are founded on the unanimous testimony of historians. I am not ignorant that virtuous princes are no such very rare fight; but I venture to affirm that in a monarchy it is extremely difficult for the people to be virtuous[9].

[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, Book V. chap 2.

Let us compare what the hifsorians of all ages have said 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 mere airy speculations, but things confirmed by a sad and melancholy experience.

Ambition joined to idleness, and baseness to pride, a desire of obtaining riches without labour, and an aversion to truth, flattery, treason, 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 exceeding difficult for the leading men of the nation to be knaves, and for the inferior sort of people to be honest; for the former to be cheats, and for the latter to rest satisfied to be only dupes.

But if there should chance to be some unlucky honest man[10] among the people, cardinal Richelieu ​ in his political testament[11] seems to hint that a prince should take care not to employ him[12]. So true is it that virtue is not the spring of this government!

[10] This is to be understood in the sense of the preceding note.

[11] This book was written under the inspection, and from the memoirs of cardinal Richelieu by Messieurs de Bourseis, and d–, who were strongly his adherents.

[12] We must not, says he, employ people of man extraction; they are too austere and difficult.

CHAP. VI. 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. Honor, that is, the prejudice of every person and rank, supplieth the place of virtue, and is every where 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, a good intention is necessary[13].

[13] See the note p. 34.

CHAP. VII. Of the Principle of Monarchy

AMonarchical government supposeth, as we have already observed, pre-eminences, and ​ ranks, and likewise a noble descent. Now as it is the nature of honor to aspire to preferments and distinguishing titles, it is therefore 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 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 center, and a power of gravitation that attracts them to it. Honor sets all the parts of the body politic in motion; by its very action it connects them; and thus each individual advances the public good, while he only thinks of promoting his own particular interest.

True it is, that, philosophically speaking, it is a false honor which moves all the parts of the government, but even this false honor is as useful to the public, as true honor could possibly prove to private people.

Is it not a very great point, to oblige men to perform the most difficult actions, such as require a great degree of fortitude and spirit, without any other recompence, than the fame and reputation arising from the actions themselves?

CHAP. VIII. That Honor is not the Principle of despotic Government

HONOR is far from being the principle of despotic government: men being here all ​ upon a level, no one can prefer himself to another; men being here all slaves, they can give themselves no preference at all.

Besides, as honor 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 a despotic prince bear with any such thing as honor? Honor glories in contempt of life, and here the prince s whole strength consists in the power of taking it away. How can honor ever bear with a despotic prince? It has its fixed rules, and constant caprices, but a despotic prince is directed by no rule, and his own caprices destroy all others.

Honor therefore, a thing unknown in despotic governments, where very often they have not so much as a fit 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.

[14] See Perry, p. 447.

CHAP. IX. Of the Principle of despotic Government

AS virtue is necessary in a republic, and in a monarchy honor, so fear is necessary in a despotic government: with regard to virtue, there is no occasion for it, and honor would be extremely dangerous.

Here the immense power of the prince is devolved intirely upon those to whom he is pleased to intrust ​ Persons capable of setting a value upon themselves would be likely to create revolutions. Fear must therefore depress their spirits, and extinguish even the least sense of ambition.

A moderate government may, whenever it pleases, and without any danger relax its springs. It supports itself by its laws, and by its own force. But when a despotic prince ceases one single moment to lift up his arm, when he cannot instantly demolish those whom he has entrusted with the first posts and employments[15], all is over: for as fear, the spring of this government, no longer subsists, the people are left without a protector.

[15] As it often happens in a military aristocracy.

It is probably in this sense the Cadis maintained that the grand Seignor was not obliged to keep his word or oath, when he limited thereby his authority[16].

[16] Ricault on the Ottoman empire.

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 subjects should be safe, and the bashaw’s head always 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 revolution, because he had been too sparing of blood[17].

[17] See the history of this revolution by father Dacerceau.

History informs us that the horrid cruelties of Domitian struck such a terror into the governors, that the people recovered themselves a little under his reign[18]. Thus a torrent lays one side or a whole country waste, and on the other leaves fields ​ untouched, where the eye is refreshed with the fight of some distant meadows.

[18] His was a military government, which is one of the species of despotic government.

CHAP. X. Difference of Obedience in moderate and despotic Governments

IN despotic states the nature of the 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, parleys, or remonstrances, nothing equal or better to propose: man is a creature that submits to the absolute will of a creature like himself.

In a country like this they are no more allowed to represent their fears in respect to a future event, than to excuse their bad success by the capriciousness of fortune. Man’s portion here, like that of beads, is instinct, compliance and punishment.

Little does it then avail to plead the sentiments of nature, respect for a father, tenderness for a wife and children, the laws of honor, or an ill state of health; the orders are 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 favor. Though he were drunk and beside himself, yet 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 this country in all ages, as the order which Ahasuerus gave to exterminate the Jews, ​ could not be revoked, they contrived to allow them thc liberty f defending themselves.

[19] See Sir John Chardin.

There is one thing however that may be opposed to the prince’s will[20]; namely, religion. They will abandon a parent, nay, they will kill him, 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 prince as well as the subject. Bur, with respect to the law of nature it is otherwise; the prince is no longer supposed to be a man.

[20] Ibid.

In monarchical and moderate dates, the power is limited by its very spring, I mean by honor, which like a monarch reigns over prince and people. They will not here alledge to their prince the laws of religion; a courtier would think this would render him ridiculous. But the laws of honor will be alledged on all occasions. Hence arise the restrictions necessary to obedience; honor is naturally subject to whims, by which the subject’s obedience will be always directed.

Though the manner of obeying be different in these two kinds of government, yet 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 has the assistance of instruction, and his ministers have a far greater capacity and are better versed in affairs than the ministers of a despotic government.

CHAP. XI. Reflections on the foregoing

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 honor, or in a particular despotic government by fear; but that they ought to be directed by these principles, otherwise the government is imperfect.

Book VIII. Of the Corruption of the Principles of the three Governments

CHAP. I. General Idea of this Book

THE corruption of each government generally begins with that of the principles.

CHAP. II. Of the Corruption of the Principle 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 every citizen wants to be upon a level with those he has chosen to command him. Then the people, incapable of bearing the very power they have intruded, want to do every thing of themselves, to debate for the senate, to execute for the magistrate, and to strip the judges.

When this is the case, virtue can no longer subsist in the republic. The people want to exercise the functions of the magistrates; who cease to be revered. The deliberations of the senate are flighted; 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 soon for parents; deference to husbands will be likewise thrown off, and submission to masters. This licentiousness will soon taint the mind; and the restraint 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 with myself, 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 sum of me; and I could not decline paying. Since I am grown poor, I have acquired authority; no body 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; 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. To prevent them from seeing their own ambition, they speak to them only of their grandeur; to conceal their own avarice, they incessantly flatter theirs.

The corruption will increase among the corrupters, and likewise among those who are already ​ corrupted. The people will distribute the public money among themselves, and having added the administration of affairs to their indolence, they will be for adding to their poverty 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 give a great deal to the people without squeezing much more out of them: and to compass this, the state must be subverted. The greater the advantages they seem to derive from their liberty, the nearer they draw to 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 unsupportable; a single tyrant starts up, and the people lose all, even the advantages of their corruption.

Democracy hath 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 compleated by conquest.

True it is that those who corrupted the Greek republics, did not 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 hearts 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, which was situated in the midst of a great number of petty states whose government ​ had been changed from oligarchy to tyranny[1]; Syracuse which had a senate[2] scarce ever mentioned in history, was exposed to such miseries as are the consequences of a more than ordinary corruption. This city continually in a state of licentiousness[3] or oppression, equally labouring under its liberty and servitude, receiving always the one and the other like a tempest, and notwithstanding its external strength constantly determined to a revolution by the least foreign power: This city, I say, had in its bosom an immense multitude of people, whose fate it was to have always this cruel alternative, of either giving themselvcs a tyrant, or of being the tyrant themselves.

[1] See Plutarch in the lives of Timoleon and Dio.

[2] It was that of the six hundred, of whom mention is made by Diodorns.

[3] Upon the expulsion of the tyrants they made citizens of strangers and mercery troops, which produced civil wars, Aristot. Polit. lit. 5. cap. 3. the people having been the cause of the victory over the Athenians, the republic was changed, ibid. cap. 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. lib. 7. cap. 4.

CHAP. III. 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 consist in managing so that every body should command, or that no one should be commanded; but in obeying and commanding our equals. It endeavours not to be without 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 means 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 extreme liberty than to servitude.

CHAP. IV. Particular Cause of the Corruption of the People

GREAT success, especially when chiefly owing to the people, swells them so high with pride, that it is impossible to manage them. Jealous of their magistrates they soon become jealous likewise of the magistracy; enemies to those that govern, they soon prove enemies also to the constitution. Thus it was the victory over the Persians obtained in the streights of Salamis that corrupted the republic of Athens[4]; and thus the defeat of the Athenians ruined the republic of Syracuse[5].

[4] Aristot. Polit. lib. 5. cap. 5.

[5] Ibid.

Marseilles never experienced those great transitions from lowness to grandeur: this was owing to the prudent conduct of this republic, which always preserved her principles.

CHAP. V. 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 governours, 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 mod excellent; for almost all these monarchs are tied down by the laws. But when they do not observe them, it is a despotic state governed by a great many despotic princes.

In this last 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 and divided 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 few in number, 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 whose head is encircled with excels of power and danger.

[6] The aristocracy is changed into an oligarchy.

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 means the state loses all its strength and activity[7].

[7] Venice is one of those republics that has best corrected by its laws the inconveniencies of hereditary aristocracy.

An aristocracy may maintain the full vigor 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 is 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!

[8] Justin attributes the extinction of Athenian virtue to the death of Epamiriondas. Having no further emulation, they spent their revenues in feasts, frequentitu caenam, quam castra visentes. Then it was that the Macedonians emerged out of obscurity, 1. 6.

CHAP. VI. Of the Corruption of the Principle of Monarchy

AS democracies are destroyed when the people despoil the senate, the magistrates, and judges of their functions; so monarchies are corrupted when the prince insensibly deprives societies or cities of their privileges. In the first case the multitude usurp a despotic power; in the second it is usurped by a single person.

“ The deduction of the Dynasties of Tsin and Soiii,” 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 every thing immediately by themselves [9].” The Chinese author gives us here the cause of the corruption of almost all monarchies.

[9] Compilement of works made under the Mings. related by father DuHarde.

​ Monarchy is destroyed, when a prince thinks he shews 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.

Monarchy is destroyed, when the prince, directing every thing entirely to himself, calls the state to his capital, the capital to his court, and the court to his own person.

Monarchy 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.

CHAP. VII. 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 stripped of popular respect, and rendered the low tools of arbitrary power.

It is still more corrupted, when honor is set up in contradiction to honors, and when men are capable of being loaded at the very same time with infamy[10] and with dignities.

[10] Under the reign of Tiberius statues were erected to, and triumphal ornaments conferred on. informers; which debased these honors to such a degree, that those who had really merited them disdained to accept of them. Fragm of Dio, book 58. taken from the extract of virtues and vices, by Constantine Porphyrog. 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 Annal book 14. See likewise how the generals refused to serve, because they contemned the military honors, pervnlgatis triumphi insignibus, Tacit. Annal. book 13.

​ 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].

[11] In this state the prince knew extremely well the principle f his government.

[12] Herodian.

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 shewn it) that in proportion as the power of the monarch becomes boundless and immense, his security diminishes; is the corrupting this power, and the altering its very nature, a less crime than that of high treason against the prince?

CHAP. VIII. 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 precipitates from a moderate to a despotic government.

Most of the European nations are still governed by principles of morality. But if by 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.

CHAP. IX. 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 nine, 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 honor to obey a king, but consider it as the lowest infamy to share the power with the people.

The house of Austria has used her constant endeavours to oppress the Hungarian nobility; little thinking how serviceable that very nobility would be one day to her. She wanted money from their country which it had not; but took no notice of the men with which it abounded. When a multitude of princes fell to a dismembering of her dominions, the several pieces of her monarchy fell motionless, as it were, one upon the other. No life was then to be seen but in that very nobility, who resenting the injuries done to their sovereign, and forgetting those done to themselves, took up arms to avenge her cause, and considered it as the highest glory bravely to die and to forgive.

CHAP. X. 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 imperfection, when no accidental causes impede or corrupt the principles on which it is founded. It maintains itself therefore only when circumstances drawn from the climate, religion, situation, or genius of the people, oblige it to follow some 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.

CHAP. XI. 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 slate: but when the principles are sound, even bad laws have the same effect as good; the force of the principle draws every thing 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 in order 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].

[13] Aristot. Polit. book 2. Chap. 10.

[14] They always united immediately against foreign enemies, which was called Syncretism. Plut. Mor. p. 88.

When the ancients wanted to express a people that had the strongest love for their country, they always mentioned 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 every thing right.

[15] Repub. lib. 9.

[16] Plutarch’s morals, treatise whether man advanced in years ought to meddle with public affairs.

The laws of Poland have likewise their Insurrection: But the inconveniencies thence arising plainly shew that the people of Crete alone were capable of employing such a remedy with success.

The gymnic exercises established amonest the Greeks, had the same dependance on the goodness of the principle of government. “ It was the Lacedaemonians 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 had 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.

[17] Repub. lib. 5.

[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, of laws book 7. 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.

Plutarch informs us[19] that the Romans in his time were of opinion that those games had been the principal cause of the slavery into which the Greeks were fallen. On the contrary, it was the slavery of the Greeks that had corrupted these exercises. In Plutarch’s time[20], their fighting naked in the parks, and their wrestling, infected the young people with the spirit of cowardice, inclined them to infamous passions, and made them mere dancers. But in Epaminondas’s time the exercise of wrestling made the Thebans win the famous battle of Leuctra[21].

[19] Plutarch’s morals, in the treatise entitled Questions concerning the affairs of the Romans.

[20] Ibid

[21] Plutarch’s morals, Table propositions, book 2.

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.

CHAP. XII. 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; Sylla to the senators only; Cotta to the senators, knights, and public treasurers; Caesar 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 rising evils, but by removing the corruption and restoring its lost principles: every other correction is either useless or a new evil. While Rome preserved its principles intire, the power of judging might without any abuse be lodged in the hands of senators: but as soon as this city was corrupted, let the judicial authority be transferred to whatsoever body, whether to the senate, to the knights, to the treasurers, to two of these bodies, to all three together, or to any other; matters still went always wrong. The knights had no more virtue than the senate, the treasurers no more than the knights, and these as little as the centurions.

When 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, constantly 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.

CHAP. XIII. The Effect of an Oath among a virtuous People

THERE is no nation, says Livy[22], that has been longer uncorrupted than the Romans; no nation where moderation and poverty have been longer respected.

[22] Book 1.

Such was the influence of an Oath among these people, that nothing bound them stronger to the laws. They often did more for the observance of an oath, than they would ever have done for the thirst of glory or for the love of their country.

When Quintius Cincinnatus the Consul wanted to raise an army in the city against the Æqui 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 banners [23].” In vain did the tribunes cry out that this oath was no longer binding; and that when they made it, Quintius 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.

[23] Livy Book 3.

When the same people thought of retiring to the Sacred Mount, they felt an inward check from the oath they had taken to the Consuls, that they would follow them into the field[24]. 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, by the crime they intended to commit.

[24] Ibid Book 3.

​ After the battle of Cannæ, the people were seized with such a panic, that they wanted to retire 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 a furious tempest.

CHAP. XIV. How the smallest Charge in the Constitution is attended with the Ruin of its Principles

ARISTOTLE mentions the city of Carthage as a well regulated republic. Polybius tells us[25], that there was this inconveniency at Carthage in the second Punic war, that the senate had lost almost all their 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 own 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.

[25] About a hundred years after.

Every one knows the wonderful effects of the censorship among the Romans. There was a time when it grew burthensome; but still it was supported, because there was more luxury than corruption. Claudius[26] weakened its authority, and by this means the corruption became greater than the luxury, and the censorship dwindled away of itself[27].

[26] See Book 11th Ch. 12th.

[27] The tribunes hindered them from making the census, and opposed their election. See Cicero to Atticus, Book 4th, Letter 10 and 15.

CHAP. XV. Sure Method of preferring the three Principles

I Shall not be able to make myself rightly understood, till the reader has perused the four following chapters.

CHAP. XVI. Distinctive Properties of a Republic

IT is natural to a republic to have only a small territory; otherwise it cannot long subsist. In a large republic there are men of large fortunes, and consequently of less moderation; there are trusts too great to be placed in any single subject; he has interests of his own; he soon begins to think that he may be happy, great, and glorious, by oppressing his fellow citizens; and that he may raise himself to grandeur on the ruins of his country.

In a large republic the public good is sacrificed to a thousand views; it is subordinate to exceptions; and depends on accidents. In a small one, the interest of the public is easier perceived, better understood, and more within the reach of every citizen; abuses have a less extent, and of course are less protected.

The long duration of the republic of Sparta was owing to its having always continued in the same extent of territory after all its wars. The sole aim of Sparta was liberty; and the sole advantage of its 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 Lacedæemon; 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 and advancement.

Excepting particular circumstance[28], it is difficult for any other than a republican government to subsist long 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 very 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 by a domestic force; the people might every instant unite and rise up against him. Now as soon as a prince of a single town is expelled, the quarrel is over; but if he has many towns, it only begins.

[28] As when a petty sovereign supports himself betwixt two great powers by means of their mutual jealousy; but then he has only a precarious exigence.

CHAP. XVII. Distinctive Properties of a Monarchy

AMONARCHICAL state ought to be of a 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 inspection 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 Charlemain had scarce 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, that after the inlargement 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.

CHAP. XVIII. 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[29].

[29] See the history of the United Provinces, by Mons. Le Clere.

In Italy she maintained her ground, merely by exhausting herself and by enriching that country. For those who would have been glad to have got rid of the king of Spain, were not in a humour to refuse his gold.

CHAP. XIX. Distinctive Properties of a despotic Government

A Large empire supposes a despotic authority in the person that 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 carelessness of the remote governor or magistrate; that the law should be derived from a single person, and should change continually according to the accidents which incessantly multiply in a state in proportion to its extent.

CHAP. XX. 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 change in proportion as it contracts or extends its limits.

CHAP. XXI. Of the Empire of China

BEFORE I finish this book, I shall answer an objection that may be made to what has been here advanced.

Our missionaries tell us that the vast empire of China has an admirable government, in which there is a proper mixture of fear, honor, and virtue. Consequently I must have given an idle distinction, in establishing the principles of the three governments.

But I cannot conceive what this honor can be among people that will not do the least thing without blows[30].

[30] It is the cudgel that governs China, says Father du Halde.

Again, our mercantile people are far from giving us any idea of that virtue so much talked of by the missionaries; we need only consult them in relation to the robberies and extortions of the Mandarines[31].

[31] Among others, *De lange’*s relation.

Besides, Father Parennin’ s letters concerning the emperor’s proceedings against some new converted princes of the blood[32] who had incurred his displeasure, plainly shew us a continued plan of tyranny, and inhuman injuries committed by rule, that is in cool blood.

[32] Of the family of Sourniama, Edifying Letters, 18th collection.

We have likewise Monsieur de Mairan ‘s, and the same Father Parennin’ s letters on the Government of China. I find therefore that after some pertinent questions and answers, the whole wonder vanishes.

​ Might not our missionaries have been deceived by an appearance of order? Might not they have been struck with that continual 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 convince those princes that there are no bounds to their power, than to persuade the people that there are none to their submission[33]?

[33] See in Father Du Halde how the missionaries availed themselves of the authority of Canhi to silence the Mandarines, who constantly declared, that by the laws of the country, no foreign worship could be established in the empire.

In fine, there is frequently some kind of truth even in errors themselves. It may be owing to particular, and perhaps very singular 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 the morals, as in some measure to produce wonders.

The climate of China is surprizingly favourable to the propagation of the human species. 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 always populous, and will 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 with hunger, they disperse in order to seek for nourishment; in consequence of which, small gangs of robbers are formed on all sides. 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 gang 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 strait up to the capital, and their leader ascends 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 is in other countries 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 potent and less rich in this. He knows that if his government is not good, he will be stript both of empire and life.

As China grows every day more populous notwithstanding the exposing of children, 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 body should be able to work without any 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 nave been so greatly extolled. They wanted to make the laws reign in conjunction with despotic power; but whatever is joined with the latter loses all its force. In vain did this arbitrary sway, labouring under its own misfortunes, desire to be fettered; it armed itself with its chains, and is 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 at present is otherwise.

Book XI. Of the Laws that form Political Liberty, with regard to the Constitution

CHAP. I. A general Idea

I Make a distinction between the laws that form political liberty with regard to the constitution, and those by which it is formed in respect to the citizen. The former shall be the subject of this book; the latter I shall examine in the next.

CHAP. II. Different Significations given to the word Liberty

THERE is no word that has admitted of more various significations, and has made more different impressions on human minds, than that of Liberty. Some have taken it for a facility of deposing a person on whom they had conferred a tyrannical authority; others for the power of chusing a person 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, in exclusion of others: Those who had a republican taste, applied it to this government; those who liked a monarchical state, gave it to monarchies[3]. Thus they all have applied the name of liberty to the government most conformable to their own customs and inclinations: and as in a republic people have not so constant and so present a view of the instruments of the evils they complain of, and likewise as the laws seem there to speak more, and the executors of the laws less, it is generally attributed to republics, and denied to monarchies. In fine as in democracies the people seem to do very near whatever they please, liberty has been placed in this sort of government, and the power of the people has been confounded with their liberty.

[1] I have copied, says Cicero, Scevola’s edict, which permits the Greeks to terminate their differences among themselves according to their own laws; this makes diem consider themselves as a free people.

[2] The Russians could not bear that the 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.

CHAP. III. In what Liberty consists

IT is true that in democracies the people seem to do what they please; but political liberty does not consist in an unrestrained 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 no longer be possest of liberty, because all his fellow citizens would have the same power.

CHAP. IV. The same Subject continued

DEmocratic and aristocratic states are not necessarily free. Political liberty is to be met with only in moderate governments: yet even in these it is not always met with. It is there only when there is no abuse of power: but constant experience shews us, that every man invested with power is apt to abuse it; he pushes on till he comes to the utmost limit. Is it not strange, though true, to say, that virtue itself has need of limits?

To prevent the abuse of power, it is necessary that by the very disposition of things 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.

CHAP. V. 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 view. Increase of dominion was the view of Rome; war, of Sparta; religion, of the Jewish laws; commerce, that of Marseilles; ​ public tranquillity, that of the laws of China[4]; navigation, 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, and from thence results the oppression of the whole[5].

[4] The natural end of a state that has no foreign enemies, or that thinks itself secured against them by barriers.

[5] Inconveniency of the Liberum veto.

One nation there is also in the world, that has for the direct end of its constitution political liberty. We shall examine presently the principles on which this liberty is founded: if they are sound, liberty will appear as in a mirror.

To discover political liberty in a constitution, no great labour is requisite. If we are capable of seeing it where it exists, why should we go any further in search of it?

CHAP. VI. 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 things 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 power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.

There would be an end of every thing, 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 that of judging the crimes or differences of individuals.

Most kingdoms of Europe enjoy a moderate government, because the prince who is invested with the two first powers, leaves the third to his subjects. In Turky, where these three powers are united in ​ the Sultan’s person, the subjects groan under the weight of a most frightful 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.

[6] At Venice.

What a situation must the poor subject be in, under 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 answer exactly to the despotic power of the Eastern princes. The number of magistrates sometimes softens the power of the magistracy; the whole body of the nobles do not always concur in the same designs; and different tribunals are erected, that temper each ​ other. Thus at Venice the 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 pursuant to a form and manner prescribed by law, in Order to erect a tribunal that should last only as long as necessity requires.

[7] As at Athens.

By this means the power of judging, a 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 or criminal nature, it is proper the person accused should have the privilege of chusing 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 fixt, yet the judgments ought, and to such a degree as to be always conformable to the exact letter of the law. Were they to be the private opinion of the judge, ​ people would then live in society without knowing exactly the obligations it lays them under.

The judges ought likewise to be in the same station 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 this 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 authorize 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 despotical.

As in a free state, every man who is supposed a free agent, ought to be his own governor; so 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 inconveniencies; it is fit the people should act by their representatives, what they cannot act 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.

The great advantage of representatives is their being capable of discussing affairs. For this the people collectively are extremely unfit, which is one of the greatest inconveniencies of a democracy.

It is not at all necessary that the representatives who have received a general instruction from their electors, should wait to be particularly instructed on every 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 throw them into infinite delays, would give each deputy a power of controlling the assembly; and on the most urgent and pressing occasions the springs of the nation might be stopped by a single caprice.

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 arc absolutely incapable. They ought to have no hand in the government but for the chusing of representatives, which is within their reach. For though few can tell the exact degree of mens capacities, yet there are none but are capable of knowing in general whether the person they chuse is better qualified than most of his neighbours.

Neither ought the representative body to be chosen for active resolutions, for which it is not so fit; but for the enacting of laws, or to see whether the laws already enacted be duly executed, a thing they are very capable of, and which none indeed but themselves can properly perform.

In a state there are always persons distinguished by their birth, riches, or honors: 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 the other advantages they have in the state; which happens only when they form a body that has a right to put a stop to the enterprizes 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 the body chosen to represent the people, which have each their assemblies and deliberations apart, each their separate view and interests.

Of the three powers above-mentioned the judiciary is in some measure next to nothing. ​ There remains therefore only two; and as these have need of a regulating power to temper them, the part of the legislative body composed of the nobility, is extremely proper for this very 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 an hereditary power might be tempted to pursue its own particular interests, and forget those of the people; it is proper that where they may reap a singular advantage from being corrupted, 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, which has always need of expedition, is better administered by one than by many: whereas, whatever depends on the legislative power, is ​ oftentimes better regulated by many than by a single person.

But if there was no monarch, and the executive power was 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 actually sometimes have, and would moreover be always able to have, 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 from executing, 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 was 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 fitting, 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 assemble of itself. For a body is supposed to have no will but when it is assembled; and besides were it not to assemble 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 incroach on the executive power. Besides there are seasons, some of which are more proper than others, for assembling the legislative body: it is fit therefore that the executive power should regulate the time of convening as well as the duration of those assemblies, according to the circumstances and exigencies of state known to itself.

Were the executive power not to have a right of putting a stop to 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 stop 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 execution itself; which was attended with infinite mischiefs.

​ But if the legislative power in a free government 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 and the Ephuri 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 judging the person, nor of course the conduct of him who is intrusted 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 republican, though not a free, government. But as the person intrusted with the executive power cannot abuse it without bad counsellors, and such as hate the laws as ministers, though the laws favour 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 [8] to an account, even after their administration[9]; and therefore the people could never obtain any satisfaction for the injuries done them.

[8] These were magistrates chosen annually by the people. See Stephen of Byzantium.

[9] It was lawful to accuse the Roman magistrates after the expiration of their several offices. See in Dionys. Halicarn. 1. 9. the affair of Genatius the tribune.

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 their 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 clear-sighted 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 rigor. 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 intrusted 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 judge, and much less can it be a judge in this particular case, where it represents the party concerned, 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 there was this abuse, that the people were at the same time both judge and accuser.

The executive power, pursuant to what has been already said, ought to have a share in the legislature by the power of rejecting, otherwise it would soon be stripp’d 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 share 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 intirely 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, one checks the other, by the mutual privilege of rejecting. They ​ are both checked 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 to move 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 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 no longer be 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 intrusting, not an annual, but a perpetual command of the sea and land forces to the executive power.

​ To prevent the executive power from being able to oppress, it is requisite that the armies, with which it is intrusted, 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 entitled 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 loon 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.

From a manner of thinking that prevails amongst mankind, they set a higher value upon courage than timorousness, on activity than prudence, on strength than counsel. Hence the army will ever despise a senate, and respect their own officers. They will naturally flight 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 army depends on the legislative body, the government becomes a military one; 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 their 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.

Whoever shall read the admirable treatise of Tacitus on the manners of the Germans[10], will find that it is from them the English have borrowed the idea of their political government. This beautiful system was invented first in the woods.

[10] De minoribus rebus principes consultant, de majoribus emnes; ita famen ut ca. quoque quorum penes plebem arbitrium est, apud principes pertractentur.

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 busines to examine whether the English actually enjoy this liberty, or nor: 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 excess of reason is not always desirable, and that mankind generally find their account better in mediums than in extremes?

Harrington in his Occana has also inquired into ​ the highest point 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.

CHAP. VII. 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: their only aim is the subject’s, the state’s, and the prince’s glory. But from this glory there results a spirit of liberty, which in thole states may perform as great things, and may contribute 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.

CHAP. VIII. 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 own walls. Before Rome had swallowed up all the other republics, there was scarce any where a king to be found, no, not in Italy, Gaul, Spain, or Germany; these were all petty states, or little republics. Even Africa itself was subject to a great republic: and Asia minor was occupied by Greek colonies. There was therefore no example of deputies of towns, or assemblies of the states; one must have gone as far as Persia to find a country under the government of a single person.

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 the present model.

The first plan therefore of the monarchies we are acquainted with, was thus formed. The German nations that conquered the Roman empire, were, as is known to every one, a free people. Of this we may be convinced only by reading Tacitus on the manners of the Germans. The conquerors spread themselves all over 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 they were 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 therefore recourse to representatives. Such is the origin of the Gothic government amongst us. At first it was mixt with aristocracy and monarchy; a mixture attended with this inconveniency, that the common people were bond men. The custom afterwards succeeded of granting letters of infranchisement, 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. Surprizing, 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[11]!

[11] It was a good government that bad in itself a capacity of growing better.

CHAP. IX. Aristotle's manner of thinking

ARISTOTLE is greatly puzzled in treating of monarchy[12]. He makes five species; and he does not distinguish them by the form or constitution, but by things merely accidental, as the virtues or vices of the prince; or by things extrinsecal, such as the usurpation of, or succession to, tyranny.

[12] Polit. Book 3. Chap. 14.

He ranks among the number of monarchies, the Persian empire and the kingdom of Sparta. But is it not evident, that 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.

CHAP. X. What other Politicians thought

TO temper monarchy, Arybas king[13] of Epirus, found no other remedy than a republic. The Molossi nor knowing how to limit the same power made two kings[14]: by this means the state was weakened more than the prerogative of the prince; they wanted rivals, and they created enemies.

[13] See Justin. Book 17.

[14] Arist. Polit. Book 5. Chap. 8.

Two kings were tolerable no where but at Sparta; here they did not form, but were only a part of, the constitution.

CHAP. XI. Of the Kings of the heroic Times cf Greece

IN the heroic times of Greece, a kind of monarchy arose that was not of long duration[15]. 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 is one of the five species of monarchy mentioned by Aristotle[16]; 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.

[15] Aristot. Polit. Book 3. Chpa. 14.

[16] Ioid.

The three powers were there distributed in such a manner as the people had the legislative[17] and the king the executive together with the power of judging; 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 assume the power of judging.

[17] See what Plutarch says in the Life of Theseus. See likewise Thucydides. Book 1.

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 every where did, upon the very least caprice, subvert the regal authority.

Among a free people possessed of the legislative power, a people enclosed within walls, where every thing of an odious nature becomes still more odious, it is the highest master-piece of legislation to know how 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 those 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 [18].

[18] Aristot. Polit. Book 4. Chap. 8.

CHAP. XII. 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 itself, and in its own particular nature, it was exceeding good.

In order to give an adequate idea of this government, I shall distinguish that of the five first kings, that of Servius Tullius, and that of Tarquin.

The crown was elective, and under the five first kings the senate had the greatest share in the election.

Upon the kind’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[19] 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 one of these three conditions was wanting, they were obliged to proceed to another election.

[19] Diomys. Halicarn. book 2. p. 120. & book 4. p. 242. & 243.

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[20] civil and criminal[21] causes; he called the ​ senate together, convened the people, laid some affairs before the latter, and regulated the rest with the senate[22].

[20] See *Tanaquil’*s discourse on Livy. book 1. dec. 1. and the regulation of Servius Tullius in Dionys. Halicarn book 4. p. 229.

[21] See Dionys. Halicarn. book 2. p. 119 and book 3. p. 171.

[22] It was by virtue of a senatus consultum that Tullus Hostilius ordered Alba to be destroyed. Dionys. Halicarn, book 3. p. 167, & 172.

The authority of the senate was very great. The kings oftentimes pitched upon senators with whom they judged in conjunction; and they never laid any affair before the people, till it had been previously debated[23] in the senate.

[23] Ibid, book 4, p 276.

The people had the right of chufing[24] magistrates, of consenting to the new laws, and, with the king’s permission, of making war and peace: But they had not the power of judging. When Tullus Hostilius referred the trial of Horatius to the people, he had his particular reasons, which may be seen in Dionysius Halicarnasseus[25].

[24] Ibid. book 2. And yet they could not have the nomination of all offices, since Valerius Publicola made that famous law by which every citizen was forbid to exercise any employment unless he had obtained it by the suffrage of the people.

[25] Book 3, p. 159.

The constitution altered under[26] Servius Tullius. The senate had no share in his election; he caused himself to be proclaimed by the people; he resigned the power of judging civil causes[27], reserving none to himself but the criminal; he laid all affairs directly before the people; he eased them of taxes, and imposed the whole burden on the Patricians. Hence in proportion as he weakened the regal together with the senatorian power, he augmented that of the people[28].

[26] Dionys. Halicarn. book 4.

[27] He diversted himself of half the regal power, says Dionys. Halicarn. book 4, p. 229.

[28] It was thought that if he had not been prevented by Tarquin he would have established a popular government. Dionys. Halicarn. book 4, p. 243.

​ Tarquin would neither be chosen by the senate nor by the people; he considered Servius Tullius as an usurper, and took the crown as an 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[29]. Thus his power increased: but the odium of that power received a new addition, by usurping also the authority of the people, without whom, and even against whom, he enacted several laws. The three powers were by this means reunited in his person, but the people at a critical minute recollected that they were legislators, and there was an end of Tarquin.

[29] Dionys. Halicarn book 4.

CHAP. XIII. General reflexions on the state of Rome after the expulsion of its Kings

IT is impossible ever to be tired with so agreeable a subjeft as ancient Rome; even at present strangers leave the modern palaces of that celebrated capital to go in search of ruins: thus the eye after resting itself on the enamelled meadows, is pleased with the fight 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 ac the constitution without weakening the government: for it was very indifferent of what family were the magistrates, provided the magistracy preserved its authority.

​An elective monarchy like that of Rome, necessarily supposeth 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 or 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 two different ways, either by the amendment or by the corruption of the constitution. If it has preserved its principles and the constitution changes, it is owing to its amendment; if upon changing the constitution its principles are lost, it is because it has been corrupted.

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 kings; and if they had not continued steady in 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 unreasonable. The situation therefore of things required that Rome should be a democracy; and yet it was not. There was a ​ necessity of tempering the power of the principal families, and of giving the laws a biass 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 sirings of government are stretched, that every citizen forms pretensions, that the inhabitants attack or caress one another, and that there is a noble emulation between those who defend the declining, and those who are strenuous in promoting the new, constitution.

CHAP. XIV. In what manner the distribution of the three Powers began to change after the Expulsion of the Kings

THERE were four things that greatly oppressed the liberty of Rome. The Patricians had engrossed to themselves all sacred, political, civil and military employments; an exorbitant power was annexed to the consulate; the people were often insulted; and in fine they had scarce any influence at all lest in the public suffrages. These four abuses were redressed by the people.

1st. It was regulated that there should be some magistracies to which the plebeians might aspire; and by degrees they obtained their being made capable of them all, except that of Inter-rex.

2d. The consulate was dissolved into several other magistracies[30]; prætors were created, on whom the power was conferred of judging private affairs; quæstors[31] were nominated for determining ​ criminal causes;Ædiles were established for the civil administration; treasurers[32] were made who had 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 momentary policy of the different bodies of the slate. The chief privileges left them were to preside in the great meetings[33] of the people, to assemble the senate, and to command the armies.

[30] Livy, 1 Decad, book 6.

[31] Quæstores parricidii, Pomponius, leg. 2. ff. de orig. Jur.

[32] Plutarch Life of Publicola.

[33] Comitiis centuriatis.

3d. By the sacred laws tribunes were established, who had a power on all occasions of checking the encroachments of the patricians, and prevented not only particular, but likewise general injuries.

In fine, the plebeians increased their influence in public decisions. The people of Rome were divided in three different manners, by centuries, by curiæ, and by tribes; and whenever they gave their votes, they were assembled and formed one of thole three ways.

In the first the patricians, the leading men, the rich, the senate, which was very near 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 divided into a hundred and ninety-three centuries[34], 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.

[34] See Liby book 1. and Dionys. Halicarn book 4, & 7.

In the division into curiæ[35], the patricians had not the same advantages: some however they had, ​ for it Was necessary that the augurs should be consulted 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.

[35] Dionys. Halicarn. book 9. p. 598.

Now the people endeavoured constantly to have those meetings by curia’s which had been customary by centuries; and by tribes, those they used to have before by curia’s; by which means the direction of public affairs loon devolved from the patricians to the plebeians.

Thus, when the plebeians obtained the power of judging the patricians, a power which commenced in the affair of Coriolanus[36], the plebeians insisted upon judging them by assemblies in tribes[37], and not in centuries: and when the new magistracies[38] of tribunes and Ædiles were established in favour of the people, the latter obtained that they should meet by curia’s in order to nominate them; and after their power was quire settled, they gained[39] so far their point as to assemble by tribes to proceed to this nomination.

[36] Ibid book 7.

[37] Contrary to the ancient custom, as may be seen in Dionys. Halicarn. book 5. 320.

[38] Dionys. Halicarn. book 6. p. 410, & 411.

[39] See Dionys. Halicarn. book 9, p. 605.

CHAP. XV. In what manner Rome, while in the flourishing state of the republic, suddenly lost its liberty

IN the heat of the contests between the patricians and the plebeians, the latter insisted upon ​ having fixt laws, to the end that the public judgments should no longer be the effect of a capricious will or of an 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 interests it was almost impossible to unite. The nomination of all magistrates was suspended, and they were chosen in the comitia sole administrators of the republic. Thus they found themselves invested with the consular and the tribunitian power. By one they had the privilege of assembling the senate, by the other that of assembling the people. But they assembled neither senate nor people. Ten men only in 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 exercised his oppressions. Rome was seized with indignation at the power he had usurped; when the decemvirs exercised theirs, she was astonished at the power me had given.

What a strange system of tyranny! a tyranny carried on by men who had obtained the political and military power merely because of their knowledge in civil affairs; and who in the circumstances of that very time stood in need of the cowardice of the citizens to let themselves be insulted at home, and or their courage to protect them abroad?

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 shewed ​ himself a citizen, because each had the tye of a parent. The senate and people resumed a liberty which had been committed to ridiculous tyrants.

No people were so easily moved with spectacles as the Romans. The impurpled body of Lucretia put an end to the regal government. The debtor who appeared in the public market place covered with wounds, caused an alteration in the form of the republic. The decemvirs owed their expulsion to the fight of Virginia. To condemn Manlius, it was necessary to keep the people from seeing the capitol. Caesar’s bloody garment flung Rome again into slavery.

CHAP. XVI. 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 as long as the patricians had any privileges left, they were sure to be dripped of them by the plebeians.

The mischief would not have been so great, had the plebeians been satisfied with depriving the patricians of their prerogatives; but they also injured them as citizens. When the people assembled by curia’s or centuries, they were composed of senators, patricians, and plebeians. In their disputes the plebeians gained this point[40], that they alone without patricians or senate should enact laws called plebiscita; and the comitia in which they were made, had the name given them of comitia by tribes. Thus there were cases in ​ which the patricians[41] had no share in the legislative power, and[42] in which they were subject to the legislation of another body of the state. This was the highest extravagance of liberty. The people to establish a democracy, acted against the very principles of this 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 regulated, and the other by which it was limited.

[40] Dionys. Halicarn. Book 11. p. 725.

[41] By the sacred laws the plebeians had a power of making the plebiscita by themselves, without admitting the patricians into their assembly. Dionys. Halicarn. Book 6. p. 410. & book 7. p. 430.

[42] By the law made after the expulsion of the decemvirs, the patricians were made subjeft to the plebiscita, though they had not a right of voting there. Livy Book 3. and Dionys. Halicarn. Book 11. p. 725. This law was confirmed by that of Publius Philo the dictator, in the year of Rome 416. Livy Book 8.

The censors, and before them the consuls[43], formed and created, as it were, every five years the body of the people; they exercised the legislation on the very body that was possessed of the legislative power. “ Tiberius Gracchus, says Cicero, caused the freedmen to be admitted into the tribes of the city not by t be force of his eloquence, but by a wordy by a gesture; which had he not effected, the republic, whose drooping head we are at present scarce able to uphold, would not even exist. “

[43] In the year 312. of Rome, the consuls performed still the business of surveying the people and their estates. as appears by Dionys. Halicarn. Book 11.

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[44].

[44] Such as by those by which it was allowed to appeal from the decisions of all the magistrates to the people.

CHAP. XVII. Of the executive Power in the same Republic

JEALOUS as the people were of their legislative power, yet they had no great jealousy of the executive. This they left almost intirely to the senate and to the consuls, reserving scarce any thing more to themselves, than the right of chusing 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 always 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; the situation of things required 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 jealous of their glory.

So great was the share the senate took in the executive power, that, as Polybius[45] 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 praetors, 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; gave them, or declared they had forfeited, the title of allies of the Roman people.

[45] Book 6.

The consuls levied the troops which they were to carry into the field; they had the command of the forces by sea and land; disposed 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 and peace, they exercised rather their legislative than their executive power. They scarce did any thing else but confirm the acts of the kings, and after their expulsion, 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 their tribunes. But growing wanton in their prosperity, they increased their executive power. Thus they[46] 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 themselves only should have the right[47] of declaring war.

[46] In the year of Rome 444. Livy 1. Decad. Book 9. 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. Book 2.

[47] They extorted it from the senate, says Freinshemius, Dec. 2. Book 6.

CHAP. XVIII. 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[48] the power of judging after the expulsion of the kings, as the præstors were judges after the consuls. Servius Tullius had divested himself of the judgment of civil affairs, which was not resumed by the consuls, except in[49] some very rare cases, for that reason called extraordinary [50]. They were satisfied with naming the judges, and with forming the several tribunals. By a discourse of Apppius Claiudius, in Dionysius[51] Halicarnasseus, it appears, that as early as the 259th year of Rome, this was looked upon as an established custom among the Romans, and it is not tracing it very high to refer it to Servius Tullius.

[48] There is no manner of doubt but the consuls had the power of judging civil affairs before the creation of the praetors. See Livy Dec. 1. Book 2. p. 10. Dionys. Halicarn. Book 10. p. 627. and the same book p. 645.

[49] The tribunes frequently judged by themselves only, but nothing rendered them more odious, Dionys. Haiicarn. Book 11. p. 709.

[50] Judicia extraardinaria. See the Institutes Book 4.

[51] Book 6. p. 360.

​ Every year the prætor made a list[52] of such as he chose to discharge the office of judges during his magistracy. A sufficient number was pitched upon for each cause; a custom very near the same as that which is now practised in England. And what was extremely favourable to liberty[53], was the prætor’s fixing the judges with the[54] content of the parties. The great number of exceptions that can be made now in England, amounts pretty near to this very custom.

[52] Album Judicium.

[53] “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.”

[54] 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 by choice, sometimes by lot, or in fine by lot mixt together with choice.

The judges decided only the questions[55] relating to facts; 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[56] right, as they required some sort of capacity, they were always carried before the tribunal of the centumvirs[57].

[55] Seneca de Benesic. lib. 3. cap. 7. in fine.

[56] See Quintilian lib. 4. in soL edit of Paris, 1541.

[57] Leg. 2. ff. de Orig. Jur. Magistrates who were called decemvirs pressed in court, the whole under a prætor’s direction.

The kings reserved to themselves the judgment of criminal affairs, and in this they were succeeded by the consuls. It was in consequence of this authority that Brutus the consul 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 ordinance of the consuls that endangered the life of a citizen. The consuls after this had no longer a power of pronouncing sentence in capital cases against a Roman citizen without the content of the people[58].

[58] Quoniam de capita civis Romani, injussu populi Romani, non erat permissum consulibus jus dicere. See Pomfcnius Leg. 2. ff. de orig. jur.

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[59].

[59] Dionys. Halicarn. book 5. p 322.

The laws distinguished by the name of Sacred, allowed the plebeians the privilege of chusing tribunes; by this means a body was formed, 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 of 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 themselves. A question was soon after started, whether the plebeians had a right to judge a patrician; this was the subject of a dispute which the affair of Coriolanus gave rise to, 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 a power ​ to judge him; on the other hand, the plebeians also, contrary to the spirit of that very same law, pretended that none but themselves had a power to judge him, and they judged him accordingly.

This was moderated by the law of the twelve tables; whereby it was ordained that none but the great assemblies of the people[60] should pronounce sentence against 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 judging crimes, except such as were punished with a pecuniary mulct. To inflict a capital punishment a law was requisite; but to condemn to a pecuniary fine, there was occasion only for a Plebiscitum.

[60] The Comitia by centuries. Thus Manlius Capitolinus was judged in these Comitia. Liyy Dec. 1. Book 6. p. 60.

This regulation of the law of the twelve tables was very prudent. It produced an admirable reconciliation 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, which were any way relative 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 communication of citizens, and those which more nearly interest the state in the relation it has to its subjects. The first are called private, the second public. The latter were judged ​ by the People; and in regard to the former, they named by particular commission a quæstor for the prosecution of each crime. The person chosen by the people was frequently one of the magistrates, and sometimes a private man. He was called the quæstor of Parricide, and is mentioned in the law of the twelve tables[61].

[61] Pomponius, in the second Law in the Digest de Orig. Jur.

The quæstor nominated the judge of the question, drew lots for the judges, formed the tribunal, under which he presided[62].

[62] 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 & homicidiis.

Here it is proper to observe what mare the senate had in the nomination of the quæstor, that we may see how far the two powers were balanced in this respect. Sometimes the senate caused a dictator to be chosen in order to exercise the office of quæstor[63]; sometimes they ordained that the people should be convened by a tribune in order to proceed to the nomination of a quæstor[64], and in fine the people sometimes appointed a magistrate to make his report to the senate concerning a particular crime, and to desire them to name a quæstor, as may be seen in the judgment of Lucius Scipio [65] in Livy[66].

[63] This took place especially in regard to crimes committed in Italy, which were subject chiefly to the inspection of the senate. Sec Livy 1 Dec. book 9, concerning the conspiracies of Capua.

[64] This was the case in the prosecution for the murder of Posthumius, in the year 340 of Rome. See Livy.

[65] This judgment was given in the year of Rome 567.

[66] Book 8.

In the year of Rome 604 some of these commissions were rendered permanent[67]. All criminal causes were gradually divided into different parts; to which they gave the name of perpetual ​ questions. Different praetors 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 judging such crimes as were any way relative to those questions, and then they were sent to govern their province.

[67] Cicero in Bruto.

At Carthage the senate of the hundred was composed of judges who enjoyed that dignity for life[68]. But at Rome the prætors were annual, and the judges were not even for so long a term, but were nominated for each cause. We have already shewn in the sixth chapter of this book how favourable this regulation was to liberty in particular governments.

[68] This is proved from Livy, book 43, who says that Hannibal rendered their magistracy annual.

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 senatorian 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[69]; but ​ this was not sufficient to counter-balance the weight of the People. It was necessary that they should have a share in 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 power of judging[70], the senate were no longer able to withstand the people. To favour therefore the liberty of the subject they struck at the liberty of the constitution: but the former perished with the latter.

[69] The senatus-consultums were of force for the space of a year, though not confirmed by the people, Dionys. Halicarn. book 9, p. 595, and book n, p. 735.

[70] In the year 630.

Infinite were the mischiefs that from thence arose. The constitution was changed at a time when the fire of civil discords had scarce left any such thing as a constitution. The knights were no longer that middle order which united the people to the senate; the chain of the constitution was broke.

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 or cavalry was obliged to be raised: thus Marius enlisted all forts of people into his army, and soon after the republic was lost[71].

[71] Capite censors plerosque Sallust. de bello Jugurth.

Besides, the knights were the farmers of the public revenues; a set of rapacious men; who sowed new miseries amongst a miserable people, and made a sport of the public calamity. Instead of giving to such men as those the power of judging, they ought to have been constantly under the eye of the ​ judges. This we must say in commendation of the ancient French laws; they have stipulated with the officers of the revenues, with as great a diffidence as would be observed between enemies. When the judiciary power at Rome was transferred to the farmers of the revenues, there was then an end of virtue, policy, laws, magistracy, and magistrates.

Of this we find a very ingenuous description in some fragments of Diodorus Siculus and Dio. “ Mutius Scevola, says Diodorus[72], wanted to receive the ancient morals, 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, they had filled the province with all manner of crimes. But Scevola made an example of the publicans, and imprisoned those who had sent others to prison. “

[72] Fragment of this author book 36. in the collection of Constantine Porphyrogenitus of virtues and vices.

Dio informs us[73], 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 that he shewed a just title to what he possessed: but he would not live any longer in the same city with such profligate wretches.

[73] Fragment of his history, taken form the Extract of virtues and vices.

[74]The Italians, says Diodorus again, 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 high ways, armed with lances an d clubs, covered with beasts skins, and followed by large mastiff dogs. Thus the whole province was laid waste, and the inhabitants could not call any thing their own, but what was secured within the walls of towns. There was neither proconsul nor prætor, 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[75]. And yet this was one of the causes of the war of the slaves. But I shall add only one word more. A profession that neither has nor can have any other view than lucre, a profession that was always forming fresh demands without ever granting any, a deaf and inexorable profession 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.

[74] Fragment of the 34th book in the Extract of virtues and vices.

[75] Penes quos Romæ turn judicia erant, atque ex equestri ordine solerent sortito judices eligi in causa Prætorum & Proconsulum quibus post administratam provinciam dies dicta erat.

CHAP. XIX. 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 was at the center, 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 as soon as the 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 prætors and proconsuls. Then it was that the harmony of the three powers was lost. Those who were sent on that errand, were intrusted with a power which comprehended that of all the Roman magistracies; nay, even that of the people[76]. They were despotic magistrates, extremely proper for the distance of the places to which they were sent. They exercised the three powers; being, if I may presume to use the expression, the bashaws of the republic.

[76] They made their edicts upon coming into the provinces.

We have elsewhere observed that in a commonwealth the same magistrate ought to be possessed of the executive power, as well civil as military. To this it is owing that a conquering republic can hardly communicate her government, and rule the conquered state according to the form of her own constitution. In fact 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? He must likewise have the judiciary power: for who could pretend to judge independently of him? It is necessary therefore that the governor she sends be intrusted 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 judges. Were it not for this, he would have been subject in the provinces to the arbitrary power of a proconsul or of a proprietor. The city never felt the tyranny, which was exercised only on conquered nations.

Thus in the Roman world, as at Sparta, those who were free were extremely so, while those who were slaves laboured under the extremity of slavery.

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 taxes 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 admiration, 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[77], the provinces were plundered by the knights who were the farmers of the public revenues. We have already made mention of ​ their oppressive extortions, with which all history abounds.

[77] After the conquest of Macedonia the Romans paid no taxes.

“ All Asia, says Mithridates[78], expects me as its deliverer; so great is the hatred which the rapaciousness of the proconsuls [79], the confiscations made by the officers of the revenue, and the quirks and cavils of judicial proceedings [80], have excited against the Romans. “

[78] Speech taken from Trogus Pompeius, and related by Justin, book 38.

[79] See the orations against Veires.

[80] It is well known what sort of a tribunal was that of Varus, which provoked the Germans to revolt.

Hence it was that the strength of the provinces made no addition to, 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 epocha of their own freedom.

CHAP. XX. 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, and to calculate thereby the degrees of liberty which each may enjoy. But we must not always exhaust a subject so far, as to leave no work at all for the reader. My business is not to make people read, but to make them think.

Book XII. Of the Laws that form Political Liberty, as relative to the Subject

CHAP. I. Idea of this Book

IT is not sufficient to have treated of political liberty as relative to the constitution; we must examine it likewise in the relation it bears to the subject.

We have observed that in the first case it is formed by a certain distribution of the three powers: but in the second we must consider it under another idea. 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 its relation to the constitution. But as it relates to the subject; morals, customs, or received examples may give rise to it, and particular civil laws may favour it, as we shall presently see in this book.

Farther, as in most states, liberty is more checked or depressed than their constitution demands, 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.

CHAP. II. Of the Liberty of the Subject

PHilosophical 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 th 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 fought after, it has not been always found. Aristotle[1] informs us that at Cumæ, 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 no body should be condemned without being heard; which shews 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.

[1] Politics book 2.

[2] Tarquinius Priseus. See Dionysius Halicarn. book 4.

[3] As early as the year 560.

[4] Aristot. Polit. book 2. chap. 12. He gave his laws at Thurium in the 84th Olympiad.

​ The knowledge already acquired in some countries, or that may be hereafter attained in others, in regard to the surest rules that can be observed in criminal judgments, is more interesting to mankind than any other thing in the universe.

Liberty can only be founded on the practice of this knowledge: 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 bashaw enjoys in Turky.

CHAP. III. The same Subject continued

THOSE laws which condemn a man to death on the deposition of a single witness, are fatal to liberty. In right 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.

[5] See Aristid. Orat. in Mineryam.

[6] Dionys. Halicarn. on the judgment of Coriolanu, book 7.

[7] Minervæ calculus.

CHAP. IV. That Liberty is favoured by the nature and proportion of Punishments

LIBERTY is in its highest 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, detestations, and conjurations.

[8] St. Lewis made such severe laws against those who swore, that the pope thought himself obliged to admonish him for it. This prince moderated his zeal, and softened his laws(s***???).

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 action, there can be no criminal matter; the whole passes betwixt 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 conferences against him.

The mischief arises from a notion which some people have entertained of revenging the cause of the Deity. But we must honor the Deity, and leave him to avenge his own cause. In effect, 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 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 this notion of avenging the Deity’s cause. A Jew was accused of having blasphemed against the blessed Virgin; and upon conviction, was condemned to be slead alive. A strange spectacle was then seen: gentlemen masked, with knives in their hands, ascended the scaffold, and drove away the executioner, in order to be the avengers themselves of the honor of the blessed Virgin.—I do not here chuse to anticipitate the reflections of the reader.

[9] Farther Bougerel.

The second class consists of thole crimes which are prejudicial to morals. Such is the violation of public or private continency, that is, of the policy directing the manner in which the pleasure annexed to the union of bodies 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 oblivion and self contempt.

We speak here of none but crimes that relate merely to morals, for as to those that are also prejudicial to the public security, such as rapes and ravishments, they belong to the fourth species.

The crimes of the third class are those that disturb the public tranquillity. The punishments ought therefore to be derived from the nature of the thing, and to be relative to this tranquillity; such as imprisonment, exile, corrections, and other-like chastisements, proper for reclaiming turbulent spirits, and reducing them to the established order.

I confine those crimes that injure the public tranquillity to things that imply a simple transgression against the civil administration: for as to those which by disturbing the public tranquillity 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 secunty so far as to deprive, or to attempt to deprive another man of his like. This punishment of death is the remedy, as it ​ were, of a sick society. When there is a breach of security in respect 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 mens fortunes were common or equal. But as those who have no property are generally the readiest to attack the property 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.

CHAP. V. 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 magic and heresy. The accusation of these two crimes may be vastly injurious to liberty, and productive of an infinite number of oppressions, if the legislator knows not how to set bounds to it. For as it does not aim directly 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 always in danger, because the most unexceptionable 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 crimes like these.

​ 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 or 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 magic to arm all hell, people look upon a man whom they call a magician as the fittest person in the world to trouble and subvert society, and of course they are disposed to punish him with the utmost severity.

[10] Micetas, life of Manuel Comnenus, Book 4.

[11] Ibid.

But their indignation increases when magic is supposed to have a power of subverting religion. The history of Constantinople[12] informs us, that in consequence of a revelation made to a bishop of a miracle’s having ceased because of the magic practices of a certain person, both that person and his son were put to death. On how many surprizing 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 an art magic, that magic could subvert religion, that this particular person was a magician, and in fine, that he had committed that action of magic.

[12] History of the emperor Maurice by Theophylactus, Chap. 11.

The emperor Theodorus Lascaris attributed his illness to magic. Those who were accused of this crime, had no other resource left than to handle a hot iron without being hurt. Thus among the Greeks a person ought to have been a magician to be able to clear himself of the imputation of magic. ​ 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 very well to make us doubt of 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.

CHAP. VI. Of the Crime against Nature

GOD forbid that I should have the least inclination to diminish the horror people have for 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 no ways diminish its infamy, being levelled only against the tyranny that may abuse the very horror we ought to have for the vice.

As the nature 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; be ordained an enquiry 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 that were of the green faction. “

[13] Secret History.

It is very odd that these three crimes, magic, heresy, and that against nature, of which the first might easily be proved not to exist at all; 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 find themselves induced to it in other respects by some particular custom; as among the Greeks where the young people performed all their exercises naked; as amongst us where domestic education is disused; as among 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 be seen to defend or resume her rights. Nature, that tender, amiable, and loving parent, has strewed her pleasures with a bounteous hand, and while she fills us with delights, she prepares us for future satisfactions of a more exquisite kind than those delights themselves.

CHAP. VII. Of the Crime of high Treason

IT is determined by the laws of China, that whosoever shews any disrespect to the emperor, is to be punished with death. As they do not mention in what this disrespect consists, every thing 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 the court gazette, having inserted some circumstances relating to a certain fact, that were not true; it was pretended that to tell a lye in the court gazette, was a disrespect shewn 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 that prince; which was the cause of one of the most terrible persecutions against that family that ever was recorded in history[15].

[14] Father Du Halde, Tom 1. p. 43.

[15] Father Parennin in the edifying letters.

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.

[16] Book 29.

CHAP. VIII. Of the bad Application of the Name of 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. It was decreed by an imperial law[17], that those who called in question the prince’s judgment, or doubted of the merit of such as he had chosen tor a public office, should be prosecuted as guilty of sacrilege[18], Surely it was the cabinet council and the favourites of the court who invented that crime. By another law it was determined, that whosoever made any attempt against the ministers and officers of the prince should be deemed guilty of high treason, as if he had attempted against the prince himself[19]. This law is owing to two princes[20], celebrated in history 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 emperors. 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 their law, and of exposing itself to the crime of high treason in order to punish those favourites.

[17] Gratian, Valentinian, and Theodosius. This is the second in the Code de Crimin. Sacril.

[18] Sacrilegii instar est dubitare an is dignus sit quem elegerit Imperator. ibid. This law served as a model to that of Roger in the constitutions of Naples, Tit. 4.

[19] THe 5th law ad leg. Jul. Maj.

[20] Arcadius & Honorius.

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 of one of his arm [22], and the latter of part of its power. “ If even slavery herself was to defend upon the earth, she could not speak in any other language.

[21] Memoirs of Montrefor Tom. 1.

[22] Nam ipsi pars corporis nostri sunt The same law of the Code ad Maj. leg. Jul.

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?

[23] It is the 9th of the Code Theodos de falsa monta.

CHAP. IX. The same Subject continued

PAULINUS having wrote 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].”

[24] Etiam ex aliis causis majestatis crimina cessant meo sæculo. Leg. 1. eod. ad leg. Jul. Maj.

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 high treason. Upon which the emperor made answer, “ Your fears are groundless [25], and you are a stranger to my principles. “

[25] Alienam sectæ meæsfollicitudinem concepisti. Leg. 2. eod. ad leg. Jul. Maj.

​ It was determined by a senatus-consultum[26], that whosoever melted down any of the emperor’s statues which should happen 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 any person when slinging a stone should by chance strike one of the emperor’s statues, he should not be liable to a prosecution of 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 high treason had been established, they were obliged to distinguish the several sorts. Hence Ulpian the civilian, after saying that the accusation of high treason did not die with the criminal, he adds, that this does not relate to[30] all the treasonable acts established by the Julian law, but only to that which implies an attempt against the empire or against the emperor’s life.

[26] See the 4th law in ff. ad leg.. Jul. Maj.

[27] See the 5th law, ibid.

[28] Ibid.

[29] Aliudve quid simile admiserint. ad leg. Jul. Maj.

[30] In the last law in ff. ad leg. Jul. de Adulteriis.

CHAP. X. The same Subject continued

THERE was a law passed in England under Henry VIII. by which whosoever predicted the king’s death, was declared guilty of high treason. This law was very indeterminate; the terror of despotic power is so great, that it even turns against 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].

[31] See Burnet’s History of the Reformation.

CHAP. XI. Of Thoughts

M ARSYAS dreamt that he had cut Dionysius’s throat[32]. Dionysius put him to death, pretending that he would never have dreamt 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.

[32] * Plutarch *, life of Dionysius.

[33] The thought must be joined with some sort of action.

CHAP. XII. 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 expressions used, that the law can hardly subject people to a capital punishment for words, unless it expressly declares what words they are which render a man guilty[34].

[34] Si non tale sit delictum in quod vel sciptura legis descendit vel ad exemplum legis vindicandum est, says Modestinus in the seventh law, in ff, ad leg. Jul. Maj.

​ Words do not constitute an overt act; they remain only in idea. They generally, when considered by themselves, have 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 meaning depends on their connection with other things; and sometimes more is expressed by silence than by any discourse whatsoever. As there can be nothing so equivocal and ambiguous as all this; how is it possible to convert it into a crime of high treason? Where-ever 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’Olgorucky’s[35], one of these princes is condemned to death for having uttered some indecent words concerning her person; another for having maliciously interpreted her sage regulations for the welfare of the empire, and for having offended her sacred person by disrespectful words.

[35] In 1740.

Not that I pretend to diminish the indignation people ought to have against those who presume to stain the glory of their prince; what I mean is, that if despotic princes are willing to moderate their power, a simple correction would be more proper on those occasions, than an accusation of high treason, a thing always terrible even to innocence itself[36].

[36] Nec lubricum linguæ ad pænam sacile trabendum est. Modestin. in the 7th law in ff. ad leg. Jul. Maj.

Overt acts are not things that happen every days; they are liable to the observation of a great many people; and a false charge in respect to facts may ​ be easily detected. Words joined to an action assume the nature of this action. Thus a man who goes into a public market place to incite the subjects 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 prepare for, accompany, or follow a criminal action: every thing is confounded, if words are construed as a capital crime instead of considering them only as a mark of a capital crime.

The emperors Theodosius, Arcadius, and Honorius wrote thus to Rufinus who was præfectus prætorio. “ If a man speaks amiss of our person, or government, we do not for all that intend to punish him [37]; if he has spoke through levity, we must despise him; if through folly, we must pity him; and if he wrongs us, we mujst forgive him. Wherefore leaving things as they are, you must inform us accordingly, that we way be able to judge of words by persons, and that we may well consider whether we ought to punish or overlook them. “

[37] Si id ex legitate pracesserit, contemnendum est; si ex insania, miseratione dignissimum; isi ab injuria, renittendum, Leg. unica Cod. St quis Imperat, maled.

CHAP. XIII. Of Writings

IN writings there is something more permanent than in words; but when they are no way preparative to high treason, they are not a subject of that crime.

​ And yet Augustus and Tiberius subjected satyrical writers to the same punishment as for having violated the law of majesty. Augustus[38], because of those which he suspected to have been written against himself. Nothing was more fatal to Roman liberty. Cremutius Cordus was accused for having called Cassius in his annals the last of the Romans[39].

[38] Tacitus’*s Annals, Book 1. This continued under the following Reigns. See the first law in the Code *de famosis libellis.

[39] Tacit. Annal. Book 4.

Satyncal 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 malignity 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 malignity, please the malecontents, 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 fatyrical writings as the aristocratical. There the magistrates are petty sovereigns, but not great enough to despise affronts. If in a monarchy a fatyrical stroke is designed against the prince, he is placed in such an eminence that it does not reach him; but an aristocratical lord is pierced to the very heart. Hence the decemvirs who formed an aristocracy, punished fatyrical writings with death[40].

[40] The law of the twelve tables.

CHAP. XIV. 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 or 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 out an expedient of having them debauched by the executioner before they were brought to the place of punishment[41]: thus this bloody and subtle tyrant destroyed the morals or the people to preserve their customs.

[41] Suetenius in Tiberis.

When the magistrates of Japan caused women to be exposed naked in the market-places, and obliged them to go upon all four 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 was struck with horror.

[42] Collection of voyages that contributed to the establishment of the East India company. Tom 5. Part 2.

CHAP. XV. Of the Infranchisement 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[43]. Nothing ought to be neglected that may contribute to the discovery of an 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.

[43] Dio in Xiphilinus.

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 in order to enable 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[44]: a law which was not inserted in Justinian’s complement.

[44] Flavius Vopiscus in his life.

CHAP. XVI. Of Calumny in respect to the Crime of high Treason

TO do justice to the Cæsars, they were not the first devisers of the dismal laws which they enacted. It is Sylla[45] that taught them that calumniators ought not to be punished; but the thing was soon carried so far as to reward them[46].

[45] Sylla made a law of Majesty, which is mentioned in Cicero’s orations, pro Cluentio, Art. 3. in Pisonem, Art. 21. 2d. against Verres, Art. 5. familiar epistles, Book 3. Letter 11. Cæsar and Augustus inserted them in the Julian laws; others made additions to them.

[46] Et quò quis distinctior accusator eò magis honores assequebatur, ac veluti sacrosanctus erat. Tacit.

CHAP. XVII. Of the revealing of Conspiracies

I F 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, entire thee secretly, saying, Let us go and serve other gods, thou shalt surely kill him, thou shalt stone him [47]. 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.

[47] Deuteron. chap. xiii. 6.

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, but 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[48] 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.

[48] Collection of voyages that contributed to the establishment of the East India company Book 5. Part 2. p. 423.

CHAP. XVIII. How dangerous it is in Republics to be too severs 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 examples, punishments, and even of rewards.

Great punishments,and consequently great changes, cannon take place without investing some citizens with too great a power. It is therefore more adviseable in this case to exceed in lenity, than in severity; to banish but few, rather than many; and to leave them their estates, rather than to make a great 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 quick as possible into the usual track of government, in which every one is protected by the laws, and no one injured.

We find in Appian[49], the edict and formula of the proscriptions. One would imagine that they had no other aim than the good or the republic, so cooly they speak, so many advantages they point out, so preferable are the means they take to others, such security they promise to the rich, such tranquillity to the poor, so afraid they seem to be of endangering the lives of the subjects, so desirous of appealing the soldiers: a dreadful example, which shews how near severe punishments border upon tyranny.

[49] Of the civil wars, Book 4.

​ The Greeks set no bounds to the vengeance they took of tyrants or of those they suspected of tyranny; they put their children to death[50], nay sometimes five of their nearest relations[51]; and they proscribed an infinite number of families. By this mans their republics suffered the most violent shooks; exiles or the return of the exiled were always epochas that indicated a change of the constitution.

[50] Dionys. Halicarn. Roman Antiquitiers, book 8.

[51] Tyranno occiso quinque ejus proximes cognatione magistratus necato, Cic. de Invent. lib. 2.

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 tare: but they were preserved. “ They, says Dionysius Halicarnasseus[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 Sylla, are very much to blame. “

[52] Book 8, p. 547.

CHAP. XIX. 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 [53]. These are relative to those Athenian ​ laws by which a private person was condemned[54], provided they were made by the unanimous suffrage of six thousand citizens. They are relative also to those laws which were made at Rome against private citizens, and were called privileges [55]. These were never passed but in the great meetings of the people. But in what manner soever they are enacted, Cicero is for having them abolished, because the force of law consists in its being made for the whole community[56]. 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 veil the statues of the Gods.

[53] The anther of the Continuation of Rapin Thoyras defines A Bill of Attainder, a sentence which upon being approved by the two houses and signed by the king passes into an act. whereby the party accused is declared guilty of high treason without any other formality, without appeaal, Tom. 2. p. 266.

[54] Legem de singuhri aliquo ne rogato nisi sex millibus ita visum. Ex Andocide de Mysteriis. This is what they called Ostracism.

[55] De privis hominibus latæ, Cieero de Leg. lib 3.

[56] Scitum est jussum in omnes, Cicero ibid.

CHAP. XX. 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. Æschines who accused Ctesiphon, was condemned to pay this fine[57]. At Rome a false accuser was branded with infamy[58], 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[59].

[57] See Philostratus book 1. Lives of the Sophists, life of Æschines. See likewise Plutarch and Phocius.

[58] By the Remmian Law.

[59] Plutarch in a treatise entitled. How a person may reap advantage from his enemies.

I have already taken notice of that Athenian and Roman law, by which the party accused was allowed to withdraw before judgment was pronounced.

CHAP. XXI. Of the Cruelty of Laws in respect to debtors in a Republic

GREAT is the superiority which one fellow-subject has already over another, by lending him money, which the latter borrows in order to spend, and of course has no longer in his possession. What must be the consequence if the laws of a republic make a farther addition to this servitude and subjection?

At Athens and Rome[60] it was at first permitted to sell such debtors as were insolvent. Solon redressed this abuse at Athens[61]; by ordaining that no man’s body should answer for his civil debts. But the decemvirs[62] did not reform the same custom at Rome; and though they had Solon’s regulation before their eyes, yet they did not chuse to follow it. This is not the only passage of the law of the twelve tables, in which the decemvirs shew their design of checking the spirit of democracy.

[60] A great many sold their children to pay their debts. * Plutarch *, life of Solon.

[61] * Plutarch *, life of Solon.

[62] It appears from history that this custom was established among the Romans before the law of the twelve tables. Livy I. dec. book 2.

Often did those cruel laws against debtors throw the Roman republic into danger. A man all covered ​ with wounds, made his escape from his creditor’s house, and appeared in the forum[63]. The people were moved with this spectacle, and other citizens whom their creditors durst no longer confine, emerged from their dungeons. They had promises made them, which were all broke. The people upon this having withdrawn to the Sacred Mount, obtained, not an abrogation of those laws, but a magistrate to defend them. Thus they quitted a slate of anarchy, but were soon in danger of falling into tyranny. Manlius to render himself popular, was going to set those citizens at liberty, who had been reduced to slavery by their inhuman creditors[64]. Manlius’s designs were prevented, but without remedying the evil. Particular laws facilitated to debtors the means of paying[65], and in the year of Rome 428 the consuls proposed a law[66] which deprived creditors of the power of confining their debtors in their own houses[67]. An usurer, by name Papirius attempted to corrupt the chastity of a young man named Publius, whom he kept in irons. Sextus’ s crime gave to Rome its political liberty; that of Papirius gave it also the civil.

[63] ‘Dionys. Halicarn. Rom. Antiq. book VI.

[64] * Plutarch *, life of Furius Camillus.

[65] See what follows in the 24th chapter of the book of laws as relative to the use of money.

[66] One hundred and twenty years after the law of the twelve tables, eo anno plebi Romanæ, velut aliud initium libertatis factum est quod necti desierunt. Livy lib. 8.

[67] Bona debitoris, non corpus obnoxium esset. Ibid.

Such was the fate of this city, that new crimes confirmed the liberty, which those of a more ancient date had procured it. Appius’ s attempt upon Virginia, flung the people again into that horror against tyrants with which the misfortune of Lucretia had first inspired them. Thirty seven years after[68] the crime of the infamous Papirius, an action of the ​ like criminal nature[69] was the cause of the people’s retiring to the Janiculum [70], and of giving new vigor to the law made for the safety of debtors.

[68] The year of Rome 465.

[69] That of Plautius who made an attempt upon the body of Veturius; Valerius Maximus book 6 art 9. These two events ought not to be confunded; they are neither same persons, nor the same times.

[70] See a fragment of Dionys. Halicarn. in the extract of virtues and vices, Livy’s epitome, book 2. & Freinshemius, book 2.

Since that time creditors were oftener prosecuted by debtors for having violated the laws against usury, than the latter were sued for refilling to pay them.

CHAP. XXII. Of things that strike at Liberty in Monarchies

LIBERTY has been often weakened in monarchies by a thing of the least use in the world to the prince: this is the naming of commissioners to try a private person.

The prince himself derives so very little advantage from those commissioners, that it is not worth while to change tor their sake the common course of things. He is morally sure that he has more of the spirit of probity and justice than his commissioners, who always think themselves sufficiently justified by his orders, by a dubious interest of state, by the choice that has been made of them, and even by their very apprehensions.

Upon the arraigning of a peer under Henry VIII. it was customary to try him by a committee of the house of lords: by this means he put to death as many peers as he pleased.

CHAP. XXIII. Of Spies in Monarchies

SHOULD I be asked whether there is any necessity for spies in monarchies; my answer would be, that the usual practice of good princes is not to employ them. When a man obeys the laws, he has discharged his duty to his prince. He ought at least to have his own house for an asylum, and the rest of his conduct should be exempt from inquiry. The spying-trade might perhaps be tolerable, were it practised by honest men; but the necessary infamy of the person is sufficient to make us judge of the infamy of the thing. A prince ought to act towards his subjects with candor, frankness, and confidence. He that has so much disquiet, suspicion and fear, is an actor embarrassed in playing his part. When he finds that the laws are generally observed and reflected, he may judge himself safe. The general behaviour of the public answers for that of every individual. Let him not be afraid: he cannot imagine how natural it is for his people to love him. And how should they do otherwise than love him? since he is the source of almost all the favours that are shewn; punishments being generally charged to the account of the laws. He never shews himself to his people but with a serene countenance; they have even a share of his glory, and they are protected by his power. A proof of his being beloved is that his subjects have a confidence in him; what the minister refuses, they imagine the prince would have granted: even under public calamities they do not accuse his ​ person; they are apt to complain of his being misinformed, or beset by corrupt men: Did the prince but know, say the people; these words are a kind of invocation and a proof of the confidence they have in his person.

CHAP. XXIV. Of Anonymous Letters

THE Tartars are obliged to put their names to their arrows, that the arm may be known that shoots them. When Philip of Macedon was wounded at the siege of a certain town, these words were found on the javelin, After has given this mortal wound to Philip [71]. If they who accuse a person did it merely to serve the public, they would not carry their complaint to the prince, who may be easily prejudiced, but to the magistrates who have rules that are formidable only to calumniators. But if they are unwilling to leave the laws open between them and the accused, it is a presumption they have reason to be afraid of them; and the least punishment they ought to suffer, is not to be credited. No notice therefore should ever be taken of those letters but in cases that cannot admit of the delays of the ordinary course ot justice, and where the prince’s welfare is concerned. Then it may be imagined that the accuser has made an effort which has untied his tongue and made him speak. But in other cases one ought to say with the emperor Constantius: “ We cannot suspect a person who has wanted an accuser, whilst he did not want an enemy [72].”

[71] Plutarch’s Morals, Comparison of some Roman and Greek Histories, tom. 2. p. 487.

[72] Leg. VI. Cod. Theod. de Fam. Libellis.

CHAP. XXV. Of the manner of governing in Monarchies

THE royal authority is a great spring that ought to move easily and without noise. The Chinese boast of one of their emperors, who governed, they say, like the heavens, that is, by his example.

There are some cases in which a sovereign ought to exert the full extent of his power; and others in which he ought to reduce it within its proper limits. The sublimity of administration consists in knowing perfectly the proper degree of power, that should be exerted on different occasions.

The whole felicity of our monarchies consists in the opinion people have of the lenity of the government. A wrong-headed minister always wants to remind us of our slavery. But granting even that we are slaves, he ought to endeavour to conceal our miserable condition from us. All he can say or write, is that the prince is uneasy, that he is surprised, and that he will set things to rights. There is a certain ease in commanding; the prince ought only to encourage, and leave the menacing part to the laws[73].

[73] Nerva, says Tacitus, encreased the ease of the empire.

CHAP. XXVI. That in a Monarchy the Prince ought to be of easy Access

THE utility of this maxim will appear better from the inconveniency attending the ​ contrary practice. “ The Czar Peter I. says the Sieur Perry[74], has to published a new edict, by which he forbids any of his subjefts to offer him a petition till after having presented it to two of his officers. In case of a refusal of justice they may present him a third, but upon pain of death if they are in the wrong. After this no one ever presumed to offer a petition to the Czar. “

[74] State of Russia. p. 173. Paris edition, 1717.

CHAP. XXVII. Of the Manners of a Monarch

THE manners of a prince contribute as much as the laws themselves to liberty; like these he may transform men into beasts, and beasts into men. It he likes free and noble souls, he will have subjects; if he likes base and dastardly spirits, he will have slaves. Does he want to know the great art of ruling? Let him call honor and virtue around his person, let him invite personal merit. He may even sometimes cast an eye on talents and abilities. Let him not be afraid of those rivals who are called men of merit; he is their equal as soon as he loves them. Let him gain the hearts of his people without bringing their spirits into subjection. Let him render himself popular; he ought to be pleased with the affection of the lowest of his subjects, for they too are men. The common people require so very little deference, that it is fit they should be humoured; the infinite distance between the sovereign and them will surely prevent them from giving him any uneasiness. Let him be exorable to supplication, and resolute against demands; let him be ​ sensible, in fine, that his people have his refusals, while his courtiers enjoy his favours.

CHAP. XXVIII. Of the Regard which Monarchs owe to their Subjects

PRINCES ought to be extremely circumspect in point of raillery. It pleases with moderation, because it opens the way to familiarity; but a biting raillery is less excusable in them than in the meanest of their subjects, for it is they alone that give a mortal wound.

Much less ought they to offer a notorious insult to any of their subjects; kings were instituted to pardon, and to punish, but never to insult.

When they insult their subjects, their treatment is more cruel than that of the Turk or the Muscovite. The insults of the latter are a humiliation, not a disgrace, but both must follow from the insults of the former.

Such is the prejudice of the eastern nations, that they look upon an affront coming from the prince, as the effect of paternal goodness; and such on the contrary is our way of thinking, that to the cruel vexation of being affronted, we join the despair of ever being able to wipe off the disgrace.

Princes ought to be overjoyed to have subjects to whom honor is dearer than life, an incitement to fidelity as well as to courage.

They should remember the misfortunes that have happened to princes for insulting their subjects, the revenge of Chærea, of the eunuch Narses, of count Julian, and in fine of the dutchess of Montpensier, who being enraged against Henry III. for having ​ published some of her private failings, plagued him all his life.

CHAP. XXIX. Of the civil Laws proper for mixing a little Liberty in a despotic Government

THOUGH despotic governments are of their own nature every where the same; yet from circumstances, from an opinion of religion, from prejudice, from received examples, from a particular turn of mind, from manners or morals, it is possible they may admit of a considerable difference.

It is useful that some particular notions should be established in those governments, thus in China the prince is considered as the father of his people; and at the commencement of the empire of the Arabs, the prince was their preacher[75].

[75] The Caliphs.

It is proper there should be some sacred book to serve for a rule, as the Koran among the Arabs, the books of Zoroaster among the Persians, the Vedam among the Indians, and the classic Books among the Chinese. The religious code supplies the civil one, and directs the arbitrary power.

It is not at all amiss that in dubious cases the judges should consult the ministers of religion[76]. Thus in Turky the Cadis consult the Mollachs. But if it is a capital crime, it may be proper for the particular judge, if such there be, to take the governor’s advice, to the end that the civil and ecclesiastic power may be tempered also by the political authority.

[76] History of the Tartars, 3d part p. 277. in the remarks.

CHAP. XXX. The same Subject continued

NOTHING but the very excess and fury of despotic power ordained that the father’s disgrace should drag after it that of his wife and children. They are wretched enough already without being criminals: besides, the prince ought to leave suppliants or mediators between himself and the accused, to asswage his wrath, or to inform his justice.

It is an excellent custom of the Maldivians[77], that when a lord is disgraced, he goes every day to pay his court to the king till he is taken again into favour: his presence disarms the prince’s wrath.

[77] See Francis Pirard.

In some despotic governments[78] they have a notion that it is trespassing against the respect due to their prince, to speak to him in favour of a person in disgrace. These princes seem to use all their endeavours to deprive themselves of the virtue of clemency.

[78] As at present in Persia, according to Sir John Chardin; this custom is very ancient. They put Cavades, says Procopius, in the castle of oblivion; there is a law which forbids any one to speak of those who are shut up, or even to mention their name.

Arcadius and Honorius, in a law[79] which we have already descanted upon[80], positively declare that they will shew no favor to those who shall presume to petition them in behalf of the guilty[81]. This was a very bad law indeed, since it is bad even under a despotic government.

[79] The fifth law in the cod. ad leg. Jul. Maj.

[80] In the 8th chapter of this book.

[81] Frederic copied this law in the constitutions of Naples, book 1.

The custom or Persia, which permits every man that pleases, to leave the kingdom, is excellent; ​ and though the contrary practice derives its origin from despotic power, which has always looked upon subjects as slaves[82], and those who quit the country as fugitives, yet the Persian practice is useful even to a despotic government, because the apprehension of the flight, or of the withdrawing of debtors, puts a stop to, or moderates the oppressions of bashaws and extortioners.

[82] In monarchies there is generally a law which forbids those who are invested with public employments to go out of the kingdom without the prince’s leave. This law ought to be established also in republics. Rut in those that have particular institutions the prohibition ought to be general, in order to prevent the introduction of foreign manners.