The Spirit of the Laws  

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“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."--The Spirit of the Laws, cited in --A History of Political Theory (1937) by George Holland Sabine

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The Spirit of Laws (French: L'esprit des lois) is a treatise on political theory first published anonymously by Charles de Secondat, Baron de Montesquieu in 1748 with the help of Claudine Guérin de Tencin. Originally published anonymously partly because Montesquieu's works were subject to censorship, its influence outside of France was aided by its rapid translation into other languages. In 1750 Thomas Nugent published the first English translation. In 1751 the Catholic Church added L'esprit des loix to its Index Librorum Prohibitorum ("List of Prohibited Books"). Yet Montesquieu's political treatise had an enormous influence on the work of many others, most notably: Catherine the Great, who produced Nakaz (Instruction); the Founding Fathers of the United States Constitution; and Alexis de Tocqueville, who applied Montesquieu's methods to a study of American society, in Democracy in America.

Montesquieu spent nearly twenty years researching and writing L'esprit des lois (The Spirit of the Laws), covering a wide range of topics in politics, the law, sociology, and anthropology and providing more than 3,000 citations. In this political treatise Montesquieu advocates constitutionalism and the separation of powers, the abolition of slavery, the preservation of civil liberties and the rule of law, and the idea that political and legal institutions ought to reflect the social and geographical character of each particular community.

Climate, culture, and society

The third major contribution of De l'esprit des lois was to the field of political sociology, which Montesquieu is often credited with more or less inventing. The bulk of the treatise, in fact, concerns how geography and climate interact with particular cultures to produce the "spirit" of a people. This spirit, in turn, inclines that people toward certain sorts of political and social institutions, and away from others. Later writers often caricatured Montesquieu's theory by suggesting that he claimed to explain legal variation simply by the distance of a community from the equator.

While the analysis in De l'esprit des lois is much more subtle than these later writers perceive, many of his specific claims appear foolish to modern readers. Nevertheless, his approach to politics from a naturalistic or scientific point of view proved very influential, directly or indirectly inspiring modern fields of political science, sociology, and anthropology.

See also

Full text[1]

SPECIAL INTRODUCTION

MONTESQUIEU, Charles Louis Secondat de la Brede, was born at the Chateau de la Brede, near Bordeaux, in the month of January, 1689. He lived sixty-six years, and died on the tenth day of Februar}^_j755. If we should omit his literary performances from the record of his life, and consider his existence apart from his books, the record would end here, and it might be said of him, as has been justly said of some royal personages, that he was born, he lived and he died. Not only was that life uneventful, but it was studi- ously shut off from the public eye. He shrank from those who would peer into his privacy, and reserved that part of himself for his family and his friends. He loved fame, that is, the hon- orable repute that grew out of the intellectual productions with which he enriched the world. Apart from these, as Horace, whom he resembled in many ways, has said of himself : " He sought the secret way and unfrequented path of life that steals away unknown."

That he was thoroughly a gentleman in the best sense of the word — courteous, gentle, kindly and unassuming — all who knew him testify: withal a genuine Gascon in the sparkle of his speech, in the southern brogue that he patriotically exag- gerated, in his wit and effervescence, in all the qualities that he derived from the sunny atmosphere of his native Gascony and the ruddy wines that flowed so freely from the land that he dearly loved to the end.

Writers with an ingenious turn for the discovery of analo- gies have compared him to Voltaire, who was born but a few years after Montesquieu, and survived him many years. Vol- taire was undoubtedly a man of rare genius and unequalled skill when it came to the work of destruction. To demolish ancient things was the task in which he excelled and which he de- lighted to perform. His bitterness against the social system of


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which the Church was an integral part displayed itself with all the venom of personal enmity : it was flavored with the passion of revenge rather than a desire to promote right and to pre- vent wrong. Throughout all his aggressive life, this feature was apparent; it existed in fact and showed itself by unmis- takable symptoms. Nor was it without reason. In his early youth, he had been subjected to personal indignities at the hands of blue-blooded men who considered it the privilege of their caste to disregard the claims of those whose pedigree was not as long as their own ; they laughed to scorn the demands for satisfaction of such, however grievously and wantonly they had been injured. When Voltaire sought to obtain redress for deliberate affronts, they were repeated in most brutal and offensive form; the only compensation that he received was free quarters at the Bastille and abundant opportunity, in the silence of solitary meditation, to nurse his hatred and to lick his wounds. The friend of Frederick II never forgot the humilia- tion of his early life : and the sharpness of his pen and tongue may both be traced in a measure to these days of wrong un- avenged and unpunished. The Church was the ally and prop

of the social scheme which permitted these wrongs, hence the Church must pay the penalty. His rage increased with his years, until he boasted, in the heat of his madness, that one man might destroy the religion which twelve men had founded. But Montesquieu had no personal reasons for disliking either Church or State. No insult had embittered his early life, his unwounded pride never festered at the recollection of per- sonal maltreatment. He was always decorous, conservative and prudent. In the rich soil of his generous nature, no seed had been sown from which hatred could grow. He was a lover of the human race, an^ sought to promote its happiness. If, in the effervescence of his early youth, he allowed his brilliant pen to enter upon dangerous fields of controversy, he never intended other than good results. He meant to cure, not to kill : he hoped to make, not to mar : he sought to repair and to improve, not to tear down and to destroy. His warm Gascon nature exulted in the mere fact of existence, the sunshine of the merry Gascon country was in itself a delight. He would have had the whole world as happy as himself. He loved the companionship of friends, he delighted in the society of books.


SPECIAL INTRODUCTION v

He had never known one single sorrow in his Hfe to resist the soothing influence of these silent and eloquent companions. They were part of his life ; indeed, the best part, the only part by or through which we know him, the only part through which he survives.

Montesquieu became famous in a day. His " Persian Let- ters," written when he was thirty years of age, charmed, de- lighted and irritated his countrymen, and especially his coun- trywomen, who were quite as ready and able as the male part of the population to make a writer's fame. The Persian visi- tors whom he invented and whose comments upon the society and the religion of France he gives to the public, were very free in their criticisms of what they saw, and it is not to be wondered at that the guardians of public morals looked with suspicion and alarm upon the trenchant wit of the Gascon sage, who dared to criticise abuses and to laugh at practices which Time had rendered venerable. There was, indeed, much that might create grave concern in the minds of those who studied the Letters of the Persian travellers. We must not forget that the roots and branches of State and Church were closely inter- woven and intertwined. The blow aimed at the one was in effect a blow at the other. Time showed — and Voltaire lived to see the day — when the destruction of the existing State must needs bring with it a shock and disturbance to the Church. The result of the Letters was that the contagion spread which the conservatism of Montesquieu would fain have arrested and cured. He did not delay the current nor stem the rising tide. Perhaps by calling attention to abuses, he aided in producing the calamity that he would have deprecated. He gave aid and comfort to the enemies of the social system that he would have willingly saved: finally, by making these attacks plausible, half a century after he was at rest, everything gave way that he would have preserved, and the foundations of the world were shaken.

Even when the Letters were at the full tide of success many readers who were attached to the existing system of society looked with disfavor on their cold disregard of respectable barnacles. D'Argenson said : " These are reflections which a brilliant man can easily make, but which a prudent man ought never to print." Marivaux expressed the class sentiment with


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accuracy when he said that a man should be sparing of his wit on such subjects. Montesquieu himself realized that he had become an object of suspicion to the " official classes " who sought every occasion to slight him, while they admired his abil- ity — of which they thought he had too much. Indeed, it was darkly suggested that he was an infidel and possibly might be a traitor ! These comments had their effect, so far as to induce him to disclaim the paternity of a work which it might not be quite safe to recognize as his offspring.

The sale of the " Persian Letters " was all that their author could wish. His Jesuit secretary, Pere Desmolets, had confi- dently predicted the result : " The Letters will sell like bread," he had prophesied. And so they did. They expressed, in delightful speech, the thoughts of many who were neither able nor daring enough in fitting phrase to attack the powers of the day. As for himself, his reputation was, from that moment, established as a wit. He was an homme d'esprit. Perhaps he was surprised at the success that he had achieved, possibly a little alarmed at the construction that had been put upon the criticism of his Persians. He had never desired to be looked upon as an iconoclast. As he afterwards says, *' I am not a theologian, 1 am a historian." If he used the knife, it was rather as a kindly surgeon than as a wilful shedder of blood. He took no delight in angry controversy. " Men for- get," he said, " that when I represent a Turk, I must make him talk and act and write like a Turk." The trouble is that his Turks talk too much like Parisians and not enough like genuine Turks. Their real nationality is but ill disguised by their flow- ing robes, and the laughing face of the Bordeaux wine grower is seen through their foreign mask.

The " Causes of the Greatness and Decline of the Romans," next issued from Montesquieu's pen, would have assured his fame had the " Spirit of Laws " not belittled it by its own supe- riority. His Treatise on the Romans is marked by the same per- severance and research as his book on the Laws. He delves at the roots of History to learn how from general causes events have grown. He is no believer in chance : there is a Philoso- phy of History with its rules and principles and they must be studied and found before we can know the nature and reason of Things. " it is not chance that rules the world," he says ;


SPECIAL INTRODUCTION vii

" witness the Romans, who had a constant succession of tri- umphs while they managed their Government on a certain plan, and an uninterrupted series of reverses when it was conducted on another. There are general causes, either moral or physical, at work in every monarchy, exalting, maintaining or overcom- ing it." Upon this theory, he has examined symptoms to as- certain causes, and has, with a beauty of style that well became the dignity of his subject, first taught men that the records of the past might be found to contain sermons as well as tradi- tions, lessons as well as facts, and materials for prophecy mingled with the dust of ages.

When the " Spirit of Laws " appeared, the work upon which his title to the admiration of posterity must depend, he was well known to the literary world as the author of the " Persian Letters," but it is not clear that he was much helped by the celebrity thus acquired. If there is one reproach in the arsenal of Gallic denunciation from which a man seldom recovers who aspires to instruct his people, it is the suggestion that he is not a serious man (un homme serieux), and many thought, no doubt, that the putative father of these disrespectful Persians was too witty to be serious. How could he write a grave and instructive book and at the same time masquerade in Persian silks to the tune of Parisian music ! The Professor's gravity did not sufficiently appear to entitle the aspiring pedagogue to a diploma.

Although the success of the " Spirit of Laws " was not im- mediate in France, it was not long in doubt. In England, intel- ligent opinion immediately seized upon the work, and re- ceived it with enthusiasm. This was due in a great measure to the fact that the author had been a close student and ad- mirer of the British Constitution, and had adopted the shortest road to the British heart by his intelligent tribute to the superi- ority of that vague, shadowy and unwritten Charter of British liberty.

The practical genius of the English mind was happily shown on this occasion. The trans-Channel admirers of Montesquieu must needs know something about this meridional wise man, who had studied, assimilated and understood and expounded the Constitution of England as intelligently and satisfactorily as though he had opened his eyes to the light at London or


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Liverpool. Inquiry into his residence and occupation naturally developed the fact that the expounder was not only a book- writer but a wine-grower, whereupon British logic suggested that the man who wrote so excellent a book must also grow ex- cellent wine. The orders for the wine grown at La Brede flowed in as rapidly as the orders for copies of the " Spirit of Laws," so that Montesquieu's frugal mind rejoiced at this double success, which delighted his pride and filled his purse.

    • The success of my book in that country," he said, ** con-

tributed to the success of my wine : but I think that the success of my wine has done still more for the success of my book." Whether this estimate was based on an overestimate of the bouquet of the wine or an underestimate of the greatness of the book, we have no means of ascertaining. The fame of the La Brede brand rests wholly on tradition.

It may not be without interest here to note that Montesquieu, though frugal and modest in his personal expenditures, was at heart generous and kind. He was a ready giver, but he concealed his charities as though they were grievous sins. Os- tentation was abhorrent to his nature. His simplicity of life was such as to suggest avarice when it was only indifference to display. He was quite conscious that he did not live and dress and shine like the gaudy members of his own circle and felt that love of money for its own sake would be charged against him. But he repudiated the reproach. " I have never made any display in the way of expense," he said, " but I have never been avaricious. I know of no task, however easy of performance, that I would have performed to earn money. I have, I think, increased my store, but it was rather because I flattered myself that I thereby showed a certain kind of ability than from any desire to become rich." He could not remember to have spent four louis for show, but many a gold piece quietly left his purse to relieve a needy applicant.

One instance may be cited: An English watchmaker once wrote him : " I think of hanging myself : but I believe that I would not do it if I had one hundred crowns." To which Montesquieu immediately replied : " I send you one hundred crowns : do not hang yourself, my dear Sully, but come to see me." How many English clockmakers he thus saved from voluntary strangulation we do not know : he was the last man


SPECIAL INTRODUCTION ix

to record the number of those or of others whom he rescued from despair.

That Montesquieu did think highly of his masterpiece, we know from his own expressions. He exulted with a school- boy's delight at the completion of his task, and as his weary pen traced the last words of his immortal work, his memory re- called the tempest-tossed companions of Aeneas as they touched the shores of the promised land. '* Italiam, Italiam/' he exclaimed. The joy of triumph and the hope of repose com- bined to make this the happiest moment of his life. The long labor of twenty years was ended and the prize of endless fame secured. Like the Augustan Poet, he felt sure that he would not wholly die, for he had erected a monument more enduring than brass. But the labor and anxiety were almost more than he could bear. As he revised his last proofs, he said : ** This work has well-nigh killed me : I am going to rest : I shall labor no more." He lived eight years longer, but made no effort to add to his fame or to his claims upon the world.

It is curious to note how Montesquieu was at first alone of his immediate circle to realize and adequately measure the value of the " Spirit of Laws." Whether the long and faithful labor of years had satisfied him that he could not have thus striven in vain or the equipoise of his trained mind allowed him to judge as correctly as though he were passing on the performance of a stranger, he knew from the outset that the book would win him renown. He called his intimates and asked for their opin- ion. The critic who showed the most favor kindly declared that there was enough in the work to make it valuable as a note- book, from which material might be drawn for another Trea- tise: the sternest and possibly the most candid of the critics bluntly declared that the best plan would be to throw the manu- script into the fire as the safest method of guarding the au- thor's reputation from the injury which it would receive from publication. But he trusted to his own judgment rather than to theirs. Undismayed and undisturbed by his comforters, he quietly sent his work to the printer, and awaited the result with- out anxiety.

If the " Spirit of Laws " escaped the blazing logs of the chateau, thanks to the self-confidence of the author, another work of his was less fortunate. He had written a " History of


X MONTESQUIEU

Louis XI," one of the most extraordinary and complex char- acters in the records of the French Monarchy. Mr. Watson, in his '* Story of France," says of Louis XI that he was " a great King, a thoroughly bad man, and utterly unscrupulous in method, yet his life work was upon the whole a benefit to man- kind. He was crafty, deceitful, cruel and calculating." Per- haps a man may be a great King even if his character is made up of such ingredients. But as he did exhibit them in his life, it is not to be wondered at if historians, with one accord — still according to Mr. Watson — " decry him as a beast unclean." The estimate of a French historian of modern times probably comes nearer the truth. He says that Louis XI was not a great King nor a good King, but still a King ! Our curiosity to know what so competent a judge as Montesquieu would have held upon this point will never be gratified. The carelessness of the secretary, who threw into the flames the complete and price- less manuscript, has inflicted a permanent injury upon man- kind. Our regret is only heightened by the few samples that we have of the work that the world has lost. Who but Mon- tesquieu could have described Richelieu in fewer words and have given a more accurate photograph of this towering figure of French History ! " Richelieu made his King play the second part in the Monarchy and the first in Europe : he degraded the Sovereign but he ennobled the Throne."

The necessary limits of this paper will not permit even a brief attempt at analyzing the " Spirit of Laws." D'Alembert has made the effort, and has written many and dreary pages to show what Montesquieu intended to accomplish. But no au- thor is more difficult to condense than Montesquieu. He is a dealer in epigrams and possessed the talent to a rare degree of squeezing the sap out of an idea and of crystallizing it into apt and pungent words. So marked is this faculty in him that one of his contemporaries, Buffon, who did not err in the same direction, accounted for this conciseness by saying that it was due to the author's defective vision. His eyes had failed many years before his death, and he was obliged to dictate to his daughter, who performed for him the same pious office that Milton's children performed for their father. As his memory was bad, says Buffon, he was obliged to formulate in his own mind brief sentences that he was able to carry while the dictation


SPECIAL INTRODUCTION xi

was made, and in this way he became accustomed to the form of expression which is predominant in his work. Buffon may be right, though this compensation to short-sighted men is not usually given. If it were, the *' Spirit of Laws " would not stand out as a shining example of a style that has never, in epigrammatic excellence at least, been surpassed.

The foundation of the work was the attempt to find those common principles and emotions which, operating upon men of every climate and degree of civilization, produce certain re- sults. He was satisfied that those principles existed, and if found, would afford a scientific explanation of what without their 'aid would seem to be chaotic and inexplicable. Or, to come nearer to his own language, he rejoiced to find in " the nature of things " the explanation of so many different laws and customs. He was often discouraged and dismayed at what he termed " the majesty of his subject." Time and again, he flung away the unfinished page, and turned his back in despair upon his herculean task. But his courage and the philosophy of his ^temperament never yielded long to debil- itating influences. He resumed his labors and continued them until he was able to say, like Correggio : " I, too, am a painter " 1

Montesquieu has been spoken of, and was no doubt con- sidered in his day by many, a reformer. And yet the reform- ing spirit in him was so mild as to be almost innocuous. He did condemn the Inquisition — but who did not even then shrink in horror from that awful and mysterious tribunal ? He advo- cated the abolition of torture — who would restore it to-day? He was supposed to be a champion of religious toleration, but went no further in his anxiety to give the benefits of generous forbearance to dissenters than the restoration of the Edict of Nantes. Yet that Edict gave no equality, only faint-hearted toleration, to the men who believed in the same religious doc- trines once held by the King who formulated the Edict (assum- ing that Henry IV ever entertained any fixed belief on reli- gion). Montesquieu was not an advocate of what to-day we consider the elementary rights of conscience. He was willing that the Huguenots should be permitted, with definite restric- tions, to practise their own religious rites, but he was not in favor of admitting new beliefs to disturb the State and compli- cate the machinery of political society. In other words, if he


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was in advance of his day in these matters, his conservatism so dominated his theories of reform that before the eighteenth century had ended, he had long been outstripped in the race for toleration by the majority of his people.

The peculiarities of his style have been criticised, and affecta- tion imputed with scant justice. His methods were certainly unusual : his brusque transitions, the sudden breaks in the continuity of an argument, the dramatic outburst taking the place of a formal conclusion, astonish the modern reader by their unaccustomed and unexpected appearance. But they fulfilled their object, for they captivated the attention as they stimulated the curiosity of the reader. He sought to be read not only by the scholars and purists of the day, but by the many brilliant, if frivolous, people who dabbled in letters and only dreaded one thing in a book, to wit, being bored. The deadly sin of a writer was to fail in making the attention of the reader a prisoner, willing or unwilling. The solid gold of learning and wisdom was not enough : the artist's skill must call atten- tion to the value of the metal so that the taste might be charmed while the mind was satisfied. There must be for the reader of the day frequent halting places where he might stop and get his breath. He was not always able to keep his mind stretched on the rack of continuous attention: he must be allowed at times to turn a corner abruptly and catch a new view of men or things.

A few, among the countless instances of Montesquieu's skill in cheating the sluggard and decoying the unwary, will illus- trate the novelty, the charm and the effect produced by this accomplished artist. Who would not prefer an aphorism to a sermon, if the former conveyed all the instruction of the latter ? As he himself has said : " It is not enough to make one read, he must be made to think." His chapter on the " Idea of Despotism " contains exactly three lines : Here it is :


CHAPTER XIII. (Book V.)

Idea of Despotism.

When the savages of Louisiana want fruit, they cut the tree at the root and pluck the fruit. This is despotic government.


SPECIAL INTRODUCTION xiii

His chapter on Torture, of which he was a constant and earnest adversary, closes thus : " So many illustrious writers have denounced this practice that I dare not speak after them. I was going to say that it might be adapted to despotic govern- ments, where everything that produces fear enters into the government policy : I was going to say that the slaves in Greece and Rome. . . . But I hear the voice of nature crying out against me ! "

His definition of Taxation has become classical, perhaps com- monplace : Each citizen contributes to the revenues of the State a portion of his property in order that his tenure of the rest may be secure."

His objection to severe punishment for trivial offences : If we examine the cause of all defiance of the law, we shall see that it is to be found in the failure to punish crime, not in the moderation of the penalty."

He explains the unpopularity of the English by saying that their arrogance is such that even in peace " they seem to negoti- ate with none but enemies." But of course, this was much more than one century ago.

The proper limit of Conquest : " There is a natural limit to conquest, namely, the pozver of assimilation/'

Of Liberty, he says : " Liberty consists in the ability to do what one ought to desire and in not being forced to do what one ought not to desire."

Of Poverty : " A man is not poor because he has nothing, but because he does not work."

To multiply extracts would swell a modest preface into a volume: the temptation to pursue so easy a task must be re- sisted.

The close of his life was marked by the same kindly and gentle philosophy that he had exhibited from the beginning. He appears to have been a devout and consistent Christian, al- though making but few professions and preferring to lock up in his own heart the sentiments that he entertained on the most important problems that can occupy the mind of man. He was not only a believer in, but a great admirer of, the moral- ity of the Gospel. He declared that he could not share the humility of the atheists, but preferred to believe that his soul was immortal and that he himself was not perishable like the


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beasts of the field. When Death was imminent, he looked it in the face without bravado and without fear. He performed the religious duties required by his Church with decorous solem- nity. His spiritual adviser said, as the end was approaching: " No man, better than you. Sir, can realize the greatness of God." " No one," he replied, " knows better the littleness of man."

Much and lavish praise waited upon the " Spirit of Laws," but the tribute paid by Voltaire during Montesquieu's own life- time is the one which best expresses in fewest words the opin- ion of his admirers. It is all the more precious because Vol- taire never loved him and he himself was never reckoned among Voltaire's friends. " The human family had lost its title deeds — Montesquieu found them and restored them to their owner."


)^A


THE ANALYSIS OF "THE SPIRIT OF LAWS"

BY JEAN LE ROND D'ALEMBERT

THE generality of literary men who have mentioned " The Spirit of Laws," having rather endeavored to criticise it than to give a just idea of it, we shall endeavor to supply what they ought to have done, and to explain its plan, its nature, and its objects. Those who may think this Analysis too long will, perhaps, be of opinion, after having read it, that there was no other way of making the author's method properly understood. It ought also to be remembered that the history of celebrated writers is little more than that of their thoughts and their works, and that this part of their history is the most essential and most useful.

Book I. — Men in the state of nature, abstracted from all religion, in those disputes which they may have, know no other law than that of all animals, the right of the strongest; the establishment of society ought to be regarded as a kind of treaty against this unjust title — a treaty destined to establish a sort of balance between the different divisions of the human race.

But it happens in the moral, as in the physical equilibriurn, that it is seldom perfect and stable, and the treaties of the human race are like treaties among our princes — perpetual sources of dispute. Interest, necessity, and pleasure made men associate together. The same motives urge them continually to desire the advantages of society without the burdens of it; and it is in this sense that we may say with our author that men, from the time they enter society, are in a state of war. For war sup- poses in those who make it, if not an equality of strength, at least an assumption of this equality: whence arise the mutual desire and hope of conquest. Now, in a state of society, if the balance among men be never perfect, neither is it, on the other hand, very unequal. But, in a state of nature, on the contrary, they would either have nothing to dispute about, or, if neceS'


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sity obliged them to it, nothing would be seen but weakness flying before force, oppressors meeting with no resistance, and those who were oppressed tamely submitting.

Behold, then, men, united and hostile at the same time, on one side, if we may be allowed the expression, embracing each other, and on the other endeavoring mutually to wound each other. Laws are the chains, more or less efficacious, which are destined to suspend or to restrain their blows. But the prodig- ious extent of the globe which we inhabit, the different nature of the regions of the earth, and of the people who are spread over it, not permitting that all mankind should live under one and the same government, the human race was obliged to divide itself into a certain number of states, distinguished by the difference of those laws to which they are subjected. Under one single government the human race would have been no more than one enfeebled and languishing body, extended without vigor over the surface of the earth. The different governments are so many robust and active bodies; by mutually assisting each other they form one whole, whose reciprocal action maintains and keeps up motion and life everywhere.

Book II. — We may distinguish three sorts of governments: the republican, the monarchical, the despotic. In the republi- can, the people in a body possess the sovereign power. In the monarchical, one single person governs by fundamental laws. In the despotic, no other law is known than the will of a mas- ter, or rather of a tyrant. Not that there are in the universe only these three kinds of government, or that there are states which belong only and strictly to some one of these forms. For the greatest number of them the three forms are mixed or blended the one with the other. Here monarchy inclines to despotism ; there the monarchical government is combined with the republican; elsewhere it is not the whole people, it is only a part of them, which make the laws. But the preceding division is not on that account the less just and exact. The three kinds of government which it includes are so distinguished that they have properly nothing In common ; and yet all the governments which we know participate the one In the other. It was, there- fore, necessary to form particular classes of these three kinds, and afterwards to determine the laws which are proper for each; it would be easy afterwards to adapt those laws to any par-


ANALYSIS xvii

ticular government, according as it might belong more or less to one of those different forms.

In different states the laws ought to have relation to their nature, that is to say, to that which constitutes them ; and to their principle, or, to that which supports them and puts them in motion: an important distinction, the key of an infinite number of laws, and from which the author draws many conse- quences.

The principal laws in relation to the nature of democracy are, that the people be in some respects the monarch, and in others the subject; that it elect and judge of its magistrates, and that the magistrates on certain occasions pronounce decisions. The nature of monarchy requires that there be between the monarch and the people some body to whom the laws are intrusted, and which ought to be a mediator between the subject and the prince. The nature of despotism requires that the tyrant exer- cise his authority, either by himself alone or by one who repre- sents him.

Book III. — As to the principle of the three governments, that of democracy is the love of the commonwealth, that is, of equality. In monarchies, where the single person is the dis- penser of distinctions and rewards, and where they are ac- customed to confound the state with this single man, the prin- ciple is honor, that is, ambition and the love of esteem. Lastly, under despotism, it is fear. The more vigorous these principles are, the more fixed the government is; the more these are altered and corrupted, the more it tends to its destruction. When the author speaks of equality in democracy, he does not mean an extreme, absolute, and consequently chimerical equality. He means that happy equilibrium which renders all the citizens equally subject to the laws and equally interested in observing them.

Book IV. — In every government the laws of education ought to be in relation to the principle of that government. We understand here by education that which is received in en- tering upon the world, and not that of parents and of school- masters, which is often contrary to it, especially in some states. In monarchies, education ought to have for its object polite- ness and reciprocal civilities; in despotic states, terror and the debasing of the spirits of men. In republics they have occasion


xviii MONTESQUIEU

for all the power of education; it ought to inspire a sentiment which is noble but hard to be attained, namely, that disregard of one's own interest whence arises the love of one's country.

Book V. — The laws which the legislator makes ought to be conformed to the principle of each government — in a repub- lic, to maintain equality and frugality; in monarchy, to support the nobility without ruining the people; in a despotic govern- ment, to silence and to keep equally under subjection those of every condition. M. de Montesquieu ought not to be accused of having pointed out to sovereigns the principles of arbitrary power, the very name of which is so odious to a just prince, and still more so to a wise and virtuous citizen. To point out what is necessary to maintain it is to labor to destroy it; the perfec- tion of this government is its ruin, and an exact system of the laws of tyranny, such as our author describes to us, is at the same time a vSatire upon, and the most formidable scourge of, tyrants. With respect to other governments, they have each their advantages: the republican is more appropriate to small, the monarchical to great, states; the republican is more sub- jected to excesses, the monarchical to abuses; the republican executes the laws after more mature deliberation, the monarchi- cal with more promptitude.

Books VI and VII. — The difference of the principles of the three governments must produce many differences in the number and object of laws, in the form of judgments, and the nature of punishments. The constitution of monarchies, being invariable and fundamental, requires more civil laws and tri- bunals that justice may be administered in the most uniform and least arbitrary manner. In moderated governments, be they monarchical or republican, there cannot be too many for- malities in criminal law. Punishments ought not only to be in proportion to the crime, but also as gentle as possible, espe- cially in a democracy: the opinion attached to punishments will often have more effect than their severity. In republics, judgment must be given according to law, because no individ- ual has the power to alter it. In monarchies, the clemency of the sovereign can sometimes soften the law; but crimes ought never to be judged there except by magistrates expressly in- trusted with that office. Lastly, it is principally in democracies that the laws ought to be severe against luxury, looseness of


ANALYSIS xix

morals, and debauching of women. Their very softness and weakness render them fit enough to govern in monarchies; and history proves that they have often worn a crown with glory.

Books VIII and IX. — M. de Montesquieu, having thus run over each government in particular, afterwards examines them in the relation which they may bear to each other, but only from the most general point of view, that is to say, from that which has reference only to their nature and their prin- ciple. Viewed in this light, states can have no relations but that of defending themselves or of attacking. Republics by their nature, supposing their state to be small, cannot defend themselves without alliances ; but it is with republics that they ought to ally themselves. The defensive force of a monarchy consists principally in having frontiers secured from insults.

Book X. — States, like men, have a right to attack for their own preservation; from the right of war that of conquest is derived — a right necessary, lawful, calamitous, which always lays an immense debt upon us, if we would discharge what on that account becomes due from us to human nature, and the general law of which is to do as little harm as possible to the conquered. Republics can conquer less than monarchies; im- mense conquests suppose despotism already in a state, or render its approach certain. One of the great principles of the spirit of conquest ought to be to render the condition of the conquered as much better as possible; this is to fulfil, at once, the law of nature and a maxim of state. Nothing is more noble than that treaty of peace which Gelo made with the Carthaginians, by which he forbade them for the future to sacrifice their own children. The Spaniards, when they conquered Peru, ought in the same way to have obliged the inhabitants no more to have sacrificed men to their gods ; but they thought it more advan- tageous to sacrifice these people themselves. There remained nothing to them as a conquest but a vast desert; they were obliged to depopulate their own country, and forever weakened it by their own conquest of it. It may sometimes be necessary to change the laws of the conquered people; it can never be so, to deprive them of their observances, or even of their customs, which are often all they have for observances. But the surest way of retaining a conquest is to put, if it is possible, the con- quered on a level with the conquerors, to grant them the same


XX MONTESQUIEU

rights and the same privileges; this the Romans often did, and thus especially Caesar acted with respect to the Gauls,

Hitherto, when considering each sort of government, as well in itself as in its relation to others, we have neither taken notice of what ought to be common to all nor of those circumstances particular to each which arise either from the nature of the country or from the genius of the people. It is this which we must now explain.

Book XL — That political liberty which every citizen ought to enjoy is the common law of all governments, at least moderate governments, and consequently just ones. This liberty is not an absurd license of doing everything we wish to do, but the power of doing everything that the laws permit. It may be considered either in its relation to the constitution or in its re- lation to the citizen. There are in the constitution of every state two sorts of power — the legislative and the executive ; and this last has two objects, its internal condition and its external re- lations. It is from the legitimate distribution and proper sub- division of these different powers that the greatest perfection of poHtical liberty with relation to the constitution depends. M. de Montesquieu brings as a proof of this the constitution of the Roman republic and that of England. He finds the principle of the last in that fundamental law of the government of the ancient Germans, that afifairs of small importance were deter- mined by the chiefs, and that great affairs were brought before the tribunal of the nation, after they had been first debated by them. M. de Montesquieu does not examine whether the Eng- lish enjoy actually or not that high political liberty which their constitution gives them; it is enough for him that it is estab- lished by their laws. He is still further from writing a satire upon other states; he believes, on the contrary, that an excess even of good is not always desirable; that extreme liberty, like extreme slavery, has its inconveniences, and that in general human nature is most adapted to a middling state of freedom.

Book XII. — Political liberty, considered with relation to a citizen, consists in that security in which he lives under shel- ter of the laws, or at least in an opinion of this security which makes no one citizen entertain any fear of another. It is prin- cipally by the nature and proportion of punishments that this liberty is established or destroyed. Crimes against religion


ANALYSIS xxi

ought to be punished by deprivation of those advantages which reHgion procures; crimes against morahty, by disgrace; crimes against the pubHc tranquilHty, by imprisonment or banishment; crimes against its security, by extreme penalties. Writings ought to be less punished than actions; simple thoughts ought never to be so. Accusations which are not according to the forms of law, spies, anonymous letters, all those resources of tyranny which are equally disgraceful to those who are the instruments and to those who make use of them, ought to be proscribed in every good monarchical government. Nobody ought to be permitted to accuse but in face of the law, which always punishes either the accused person or the calumniator. In every other case those who govern ought to say, with the Emperor Constantius: "We cannot suspect a man against whom no accuser appeared, whilst at the same time he was not without an enemy." It is a very fine institution by which a public officer is charged, in the name of the state, with the prose- cution of crimes; for this answers all the good purposes served by informers without being exposed to those sordid interests, inconveniences, and that infamy which attend them.

Book XIII. — The amount of taxation ought to be in a di- rect proportion to public liberty. Thus, in democracies taxes may be greater than elsewhere, without being burdensome, be- cause every citizen looks upon them as a tribute which he pays to himself, and which secures the tranquillity and fortune of every member of it. Besides, in a democratic state, an unjust application of the pubHc revenue is more difficult, because it is easier to find it out and to punish it ; he who is intrusted with it being obliged to give an account of it, as it were, to the first citizen who requires it of him.

In every government, of whatever sort, the least burdensome kind of tax is that which is laid upon merchandise, because the citizen pays without perceiving it. An excessive number of troops in time of peace is only an occasion for loading the peo- ple with taxes, a means of enervating the state, and an instru- ment of slavery.

That administration of the revenues which makes the whole produce of it enter into the public treasury is beyond compari- son least expensive to the people, and consequently more ad- vantageous, when it can be adopted, than the farming out of


xxii MONTESQUIEU

these taxes, which always leaves in the hands of private persons part of the revenue of the state. But, above all, everything is ruined (these are the author's own words) when the profession of a farmer of the revenues becomes honorable, and it becomes so when luxury is at a great height. To permit some men to acquire vast fortunes out of what belongs to the public, to plun- der them in their turn, as was formerly practised in certain states, is to repair one injustice by another, and to commit two ills instead of one.

Book XIV. — Let us now come, with M. de Montesquieu, to those particular circumstances which are independent of the nature of government, and to which laws ought to be adapted. The circumstances which arise from the nature of the country are of two sorts: the one has relation to the climate, the other to the soil. Nobody doubts but that the climate has an influ- ence upon the habitual disposition of the bodies, and conse- quently upon the characters, of men; on which account laws ought to be framed to accord with the nature of the climate in indifferent things, and to resist, on the other hand, its bad effects. Thus, in countries where the use of wine is hurtful, the law which forbids it is a very good one; in countries where the heat of the climate inclines people to laziness, that law which encourages labor is a very proper one. The government then can correct the effects of the cHmate, and this is enough to ob- viate that reproach which has been thrown upon *' The Spirit of Laws," that it attributes everything to cold and heat; for, besides the fact that heat and cold are not the only circum- stances by which climates are distinguished, it would be as absurd to deny certain effects of climate as to attribute every- thing to it.

Book XV. — The practice of having slaves, established in the warm countries of Asia and America, and rejected in the temperate climates of Europe, affords our author an opportunity of treating of slavery in a state. Men having no more right over the liberty than over the lives of each other, it follows that ■slavery, generally speaking, is against the law of nature. In effect, the right of slavery cannot arise from war, because it could not then be founded on anything but the redemption of an individual life, and nobody has a right over the life of those who no longer attack him ; nor from that sale which a man may


ANALYSIS xxiii

make of himself to another, since every citizen, being account- able for his life to the state, is still more so for his liberty, and consequently has no title to sell it. Besides, what could be a proper price for such a sale? It cannot be the money given to the seller, because the moment he sells himself everything that belongs to him becomes the property of his master. Now a sale without a price is as chimerical as a contract without a con- dition. There could never be but one just law in favor of slavery ; this was that Roman law which made a debtor become the slave of a creditor; and even this law, to be equitable, ought to limit the slavery, both with respect to its degree and time of duration. Slavery can only be tolerated in despotic states, where freemen, too weak against the government, endeavor to become, for their own advantage, the slaves of those who tyrannize over the state, or in those climates where heat so enervates the body and weak- ens the courage that men cannot be incited to a laborious task save by the fear of punishment.

Book XVI. — Near to civil slavery may be placed domestic slavery, or that in which women are kept in certain countries. This can only take place in those countries of Asia where they are in a condition to live with men before they can make use of their reason; marriageable by the law of the climate, chil- dren by that of nature. This subjection becomes still more necessary in those countries where polygamy is established, a custom which M. de Montesquieu does not pretend to justify, in so far as it is contrary to religion; but which, in places where it is received, and, only speaking politically, may have a foun- dation to a certain degree, either from the nature of the climate or the relation which the number of women bears to that of men. M. de Montesquieu speaks upon this occasion of repudia- tion and divorce, and he shows, from good reasons, that re- pudiation, once admitted, ought to be permitted to women as well as to men.

Book XVII. — If the climate has so much influence on do- mestic and civil slavery, it has no less on political slavery; that is, upon what subjects one nation to another. The people in the North are stronger and more courageous than those of the South; the latter must then in general be conquered, the former conquerors; the one slaves, the other free. And history con- firms this; Asia has been eleven times conquered by the people of the North ; Europe has suffered fewer revolutions.


xxiv MONTESQUIEU

Book XVIII. — With respect to laws in relation to the nat- ure of the soil, it is plain that democracy is better adapted than monarchy to barren countries, where the earth has occasion for all the industry of men. Besides, hberty, in this case, is a sort of recompense for the difficulty of labor. More laws are neces- sary for a people which follows agriculture than for one which tends flocks; and for the latter than for a hunting people; for a people which makes use of money, than for one that does not; in a word, the particular genius of a nation ought to be attended to.

Book XIX. — Vanity, which magnifies objects, is a good spring for government; pride, which undervalues them, is a dangerous one. The legislator ought to respect, to a certain degree, prejudices, passions, abuses. He ought to imitate Solon, who gave the Athenians, not those laws which were best in themselves, but the best which they were capable of re- ceiving; the gay character of this people required gentle, the austere character of the Lacedaemonians severe, laws. Laws are a bad method of changing the manners and customs ; it is by rewards and example that we ought to endeavor to bring that about. It is, however, true, at the same time, that the laws of a people, when they do not grossly and directly tend to shock its manners, must insensibly have an influence upon them, either to confirm or change them.

Book XX. — After having in this manner deeply considered the Nature and Spirit of Laws with relation to different kinds of climates and peoples, our author returns again to consider states in that relation which they bear to each other. At first, when comparing them in a general manner, he could only view them with respect to the harm which they can do each other; here he considers them with respect to that mutual succor which they can give. Now this succor is principally founded on com- merce. If the spirit of commerce naturally produces a spirit of interest, which is opposed to the sublimity of moral virtues, it also renders the people naturally just and averse to idleness and living on plunder. Free people who live under moderate gov- ernments must be more given to it than enslaved nations. No nation ought ever to exclude from its commerce another nation without great reasons. Besides, liberty in this way is not an absolute privilege granted to merchants to do what they will —


ANALYSIS XXV

a power which would be often prejudicial to them; it consists in laying no restraint on merchants except for the advantage of commerce. In a monarchy, the nobility ought not to have re- course to it, and still less the prince. In short, there are some nations to which commerce is disadvantageous, but they are not such as stand in need of nothing, but such as stand in need of everything; a paradox which our author renders intelligible by the example of Poland, which wants everything except corn, and which, by that commerce which it carries on in corn, de- prives the common people of the necessaries of life to gratify the luxury of the nobility.

^ Book XXL — M. de Montesquieu takes occasion, when treat- ing of those laws which commerce requires, to give us a his- tory of its different revolutions; and this part of his book is neither the least interesting nor the least curious. He com- pares the impoverishment of Spain by the discovery of America to the fate of that weak prince in the fable, ready to perish for hunger, because he had requested of the gods that everything he touched should be turned into gold.

Book XXII. — The use of money being one considerable part of the object of commerce, and its principal instrument, he was of opinion that he ought, in consequence of this, to treat of the different operations with respect to money, of exchange, of the payment of public debts, of lending out money for interest, the rules and limits of which he fixes, and which he distinguishes accurately from that excess so justly condemned as usury.

Book XXIII. — Population and the number of inhabitants have an immediate connection with commerce; and marriages having population as their object, under this article M. de Mon- tesquieu goes to the root of this important subject. That which favors propagation most is general chastity; experience proves that illicit amours contribute very little, and even sometimes are prejudicial to it. The consent of fathers has with justice been required in marriages ; nevertheless some restrictions ought to be added,. for the law ought in general to favor marriage. That law which forbids the marriage of mothers with their sons is, independently of the precepts of religion, a very good civil law; for, without mentioning several other reasons, the parties being of very different ages, this sort of marriages can rarely have

propagation as their object. That law which forbids the mar-

Irs


xxvi MONTESQUIEU

riage of a father with a daughter is founded upon the same motives, although (speaking only in a political sense) it is not so indispensably necessary to the object of population as the other, because the power of propagating continues much longer in men; and the contrary custom has, besides, been established among certain nations which the light of Christianity had not illuminated. As nature of herself prompts to marriage, that must be a bad government which is obHged to encourage it. Liberty, security, moderate taxes, absence of luxury, are the true principles and supports of populousness. However, laws may, with success, be made to encourage marriage when, in spite of corruption, there is still something remaining in the people which attaches them to the love of their country. Noth- ing is finer than the laws of Augustus to promote the propaga- tion of the species. Unfortunately he made those laws in the decline, or rather after the downfall, of the republic; and the dispirited citizens must have foreseen that they would no longer propagate anything but slaves; and, indeed, the execution of those laws was very faint during all the time of the Pagan em- perors. At last Constantine aboHshed them when he became a Christian: as if Christianity had had in view to unpeople the world when it recommended the perfection of celibacy to a small number.

The establishment of charitable institutions, according to the different spirit of these foundations, may be hurtful or favorable to population. There may, and indeed there ought to be, suQh institutions in a state where the greater part of the citizens ^rL- maintained by tliefr industry, because this industry may some- times be unsuccessful ; but that relief which those institutions give ought to be only temporary, not to encourage beggary and idleness. The people are first to be made rich, and then alms- houses to be built for unforeseen and pressing occasions. Un- happy are those countries where the multitude of charities and of monasteries, which are only a kind of perpetual chariti^, makes all the world live at ease but those who work!

Books XXIV and XXV. — M. de Montesquieu has hither- to only spoken of human laws; he now proceeds to those of religion, which in almost all states compose so essential an ob- ject of government. Everywhere he breaks forth into praises of Christianity; he points out its advantages and its grandeur;


i


ANALYSIS xxvii

he endeavors to make it beloved; he maintains that it is not impossible, as Bayle had pretended, that a society of perfect Christians should actually form a durable state. But he also thought that he might be permitted to examine what different religions, humanly speaking, might have been suitable or un- suitable to the genius and situation of those people who profess them. It is from this point of view that we must read all that he has written upon this article, and which has been the subject of so many unjust declamations. It is especially surprising that, in an age which presumes to call so many others barbarous, what he has said of toleration should be objected to as a crime — as if approving and tolerating a religion were the same ; as if the gospel itself did not forbid every other way of propagating it but that of meekness and persuasion. Those in whose heart superstition has not extinguished every sentiment of compassion and justice will not be able to read, without being moved, the Remonstrance to the Inquisitors, that odious tribunal, which outrageously affronts religion when it appears to avenge it.

In fine, after having treated in particular of the different kinds of laws which men can have, there remains nothing more than to compare them all together, and to examine them in their re- lation to those things concerning which they prescribe rules.

Book XXVI. — Men are governed by different kinds of laws : by natural law, common to each individual; by the divine law, which is that of religion; by the ecclesiastical law, which is that of the policy of religion; by the civil law, which is that of the members of the same socety; by the political law, which is that of the government of that society; by the law of nations, which is that of societies with respect to each other. These laws have each their distinct objects, which are carefully to be dis- criminated. That which belongs to the one ought never to be regulated by the other, lest disorder and injustice should be introduced into the principles which govern men.

Books XXVI and XXIX. — In short, those principles which prescribe the nature of the laws, and which determine their objects, ought to prevail also in the manner of enacting them. A spirit of moderation ought, as much as possible, to dic- tate all their different dispositions. Laws that are properly made will conform to the intention of the legislator, even when


xxviii MONTESQUIEU

they appear to be in opposition to it. Such was the famous law of Solon, by which all who should not take some part in the public insurrections were declared infamous. It prevented seditions, or rendered them useful by forcing all the members of the republic to attend to its true interests. Even the ostracism was a good law; for, on the one hand, it was honorable to the citizen who was the object of it, and on the other it obviated the eflfects of ambition ; moreover, a great number of suffrages were necessary, and they could only banish every fifth year. Laws which appear the same have often neither the same motive nor the same effect nor the same equity. The form of govern- ment, different conjunctures, and the genius of the people quite change them.

In fine, the style of laws ought to be simple and grave. They may dispense with giving reasons, because the reason is supposed to exist in the mind of the legislator; but when they do give reasons, they ought to be founded upon obvious principles; they ought not to resemble that law which, prohibiting blind people from pleading, gives this as a reason, that they cannot see the ornaments of magistracy.

Books XXVII and XXVIII. — M. de Montesquieu, to point out by examples the application of his principles, has chosen two different people, the most celebrated in the world, and those whose history most interests us — the Romans and the French. He only dwells upon one point of the jurisprudence of the former — that which regards succession. With regard to the French, he enters into a greater detail concerning the origin and revolutions of their civil laws, and the different usages abol- ished or still subsisting which have been the consequences of them.

Books XXX and XXXI. — He principally enlarges upon the feudal laws, that kind of government unknown to all an- tiquity, which will perhaps forever be so to future ages, and which has done so much good and so much ill. He especially considers these laws in their relation to the establishment and revolutions of the French monarchy. He proves, against the Abbe du Bos, that the Franks actually entered as conquerors among the Gauls; and that it is not true, as this author pretends, that they had been called by the people to succeed to the rights


ANALYSIS xxix

of the Roman emperors who oppressed them ; an investigation profound, exact, and curious, but in which it is impossible for us to follow him.

Such is the general analysis, though a very imperfect one, of M. de Montesquieu's work on " The Spirit of Laws."


i


MONTESQUIEU'S PREFACE


IF amidst the infinite number of subjects contained in this book there is anything which, contrary to my expectation, may possibly offend, I can at least assure the pubUc that it was not inserted with an ill intention — for I am not naturally of a captious temper. Plato thanked the gods that he was born in the same age with Socrates; and for my part I give thanks to the Supreme that I was born a subject of that government under which I live, and that it is His pleasure I should obey those whom He has made me love.

I beg one favor of my readers, which I fear will not be granted me ; this is, that they will not judge by a few hours' reading of the labor of twenty years; that they will approve or condemn the book entire, and not a few particular phrases. If they would search into the design of the author, they can do it in no other way so completely as by searching into the design of the work.

I have first of all considered mankind, and the result of my thoughts has been, that amidst such an infinite diversity of laws and manners, they were not solely conducted by the caprice of fancy.

I have laid down the first principles, and have found that the particular cases follow naturally from them; that the histories of all nations are only consequences of them; and that every particular law is connected with another law, or depends on some other of a more general extent.

When I have been obliged to look back into antiquity I have endeavored to assume the spirit of the ancients, lest I should consider those things as alike which are really different, and lest I should miss the difference of those which appear to be alike.

I have not drawn my principles from my prejudices, but from the nature of things.


xxxii MONTESQUIEU

Here a great many truths will not appear till we have seen the chain which connects them with others. The more we enter into particulars, the more we shall perceive the certainty of the principles on which they are founded. I have not even given all these particulars, for who could mention them all without a most insupportable fatigue?

The reader will not here meet with any of those bold flights which seem to characterize the works of the present age. When things are examined with never so small a degree of extent, the sallies of imagination must vanish; these generally arise from the mind's collecting all its powers to view only one side of the subject, while it leaves the other unobserved.

I write not to censure anything established in any country whatsoever. Every nation will here find the reasons on which its maxims are founded; and this will be the natural inference, that to propose alterations belongs only to those who are so happy as to be born with a genius capable of penetrating the entire constitution of a state.

It is not a matter of indifference that the minds of the people be enlightened. The prejudices of magistrates have arisen from national prejudice. In a time of ignorance they have commit- ted even the greatest evils without the least scruple ; but in an enlightened age they even tremble while conferring the greatest blessings. They perceive the ancient abuses ; they see how they must be reformed ; but they are sensible also of the abuses of a reformation. They let the evil continue, if they fear a worse; they are content with a lesser good, if they doubt a greater. They examine into the parts, to judge of them in connection; and they examine all the causes, to discover their different effects.

Could I but succeed so as to afford new reasons to every man to love his prince, his country, his laws; new reasons to render him more sensible in every nation and government of the bless- ings he enjoys, I^should think myself the most happy of mortals.

Could I but succeed so as to persuade those who command to increase their knowledge in what they ought to prescribe, and those who obey to find a new pleasure resulting from obedience — I should think myself the most happy of mortals.

The most happy of mortals should I think myself could I contribute to make mankind recover from their prejudices. By prejudices I here mean, not that which renders men ignorant


PREFACE xxxiii

of some particular things, but whatever renders them ignorant of themselves.

It is in endeavoring to instruct mankind that we are best able to practice that general virtue which comprehends the love of all. Man, that flexible being, conforming in society to the thoughts and impressions of others, is equally capable of know- ing his own nature whenever it is laid open to his view, and of losing the very sense of it when this idea is banished from his mind.

Often have I begun, and as often have I laid aside, this un- dertaking. I have a thousand times given the leaves I had written to the winds : a I, every day, felt my paternal hands fall> I have followed my object without any fixed plan — I have known neither rules nor exceptions; I have found the truth, only to lose it again. But when I once discovered my first prin- ciples, everything I sought for appeared; and in the course of twenty years I have seen my work begun, growing up, advanc- ing to maturity, and finished.

If this work meets with success I shall owe it chiefly to the grandeur and majesty of the subject. However, I do not think that I have been totally deficient in point of genius. When I have seen what so many great men, in France, in England, and in Germany, have said before me, I have been lost in admira- tion; but I have not lost my courage: I have said with Cor- reggio, " And I also am a painter.^

a Ludibria ventis. h Bis patriae cecidere manus.

c Ed io anche son pittore.


AUTHOR'S EXPLANATORY NOTES


1. For the better understanding of the first four books of this work, it is to be observed that what I distinguish by the name of virtue, in a republic, is the love of one's country, that is, the love of equality. It is not a moral, nor a Christian, but a politi- cal virtue; and it is the spring which sets the republican gov- ernment in motion, as honor is the spring which gives motion to monarchy. Hence it is that I have distinguished the love of one's country, and of equaHty, by the appellation of political virtue. My ideas are new, and therefore I have been obliged to find new words, or to give new acceptations to old terms, in order to convey my meaning. They, who are unacquainted with this particular, have made me say most strange absurdities, such as would be shocking in any part of the world, because in all countries and governments morality is requisite.

2. The reader is also to notice that there is a vast difference between saying that a certain quality, modification of the mind, or virtue, is not the spring by which government is actuated, and affirming that it is not to be found in that government. Were I to say such a wheel or such a pinion is not the spring which sets the watch going, can you infer thence that it is not to be found in the watch? So far is it from being true that the moral and Christian virtues are excluded from monarchy, that even political virtue is not excluded. In a word, honor is found in a republic, though its spring be political virtue; and political virtue is found in a monarchical government, though it be actuated by honor.

To conclude, the honest man of whom we treat in the third book, chapter 5, is not the Christian, but the political honest man, who is possessed of the political virtue there mentioned. He is the man who loves the laws of his country, and who is


xxxvi MONTESQUIEU

actuated by the love of those laws. I have set these matters in a clearer light in the present edition by giving a more precise meaning to my expression: and in most places where I have made use of the word virtue I have taken care to add the term political.


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CHOICE EXAMPLES OF BOOK ILLUMINATION.

Fac-similes from Illuminated Manuscripts and Illustrated Books of Early Date.


DAVID SLAYING GOIJATH,

From the Mount Olivet Psalter^ written about i4<)o^ probably at Sienna.

This is an exquisite page from a Psalter written for a patron or superior of the Monks of St. Ohvet. In the Renaissance border, on three of the sides, are set little oval pictures, including a Savior, and a saint in steel armor. In the lower border aa oblong space contains a picture of the death of Goliath, with a charming landscape in the background. The beauty of the decorative design, the harmony of colors, and the effectiveness of the little paintings in the border, all combine to make this; fac-siniile a deliglitful example of Itahan art at the cJose of the fifteenth century.


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ILLUSTRATIONS


FACING PAGE


Baron de Montesquieu (Portrait) .

Photogravure from a wood engraving


Frontispiece


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David Slaying Goliath

P'ac-simile Illumination of the Fifteenth Century

A Page from the Monte Santo di Dio

Fac- simile example of Printing in the Fifteenth Century

Augustus 206

Photo-engraving from a marble statue

A Page from the Psalmorum Codex

Fac-simile example of Printing in the Fifteenth Century


330


THE SPIRIT OF LAWS

BOOK I

OF LAWS IN GENERAL

I. — Of the Relation of Laws to different Beings

LAWS, in their most general signification, are the neces- sary relations arising from the nature of things. In this sense all beings have their laws: the Deity« His laws, the material world its laws, the intelligences superior to man their laws, the beasts their laws, man his laws.

They who assert that a blind fatality produced the various effects we behold in this world talk very absurdly ; for can any thing be more unreasonable than to pretend that a blind fatality could be productive of intelligent beings ?

There is, then, a prime reason; and laws are the relations subsisting between it and different beings, and the relations of these to one another.

God is related to the universe, as Creator and Preserver ; the laws by which He created all things are those by w^hich He preserves them. He acts according to these rules, because He knows them ; He knows them, because He made them ; and He made them, because they are in relation of His Wisdom and power.

Since we observe that the world, though formed by the mo- tion of matter, and void of understanding, subsists through so long a succession of ages, its motions must certainly be directed by invariable laws; and could we imagine another world, it must also have constant rules, or it would inevitably perish.

Thus the creation, which seems an arbitrary act, supposes laws as invariable as those of the fatality of the Atheists. It

a " Law," says Plutarch, " is the king his treatise entitled " A Discourse to atJ of mortal and immortal beings," See unlearned Prince."

Vol. I.— I I


2 MONTESQUIEU

would be absurd to say that the Creator might govern the world without those rules, since without thern it could not sub- sist.

These rules are a fixed and invariable relation. In bodies moved, the motion is received, increased, diminished, or lost, according to the relations of the quantity of matter and veloc- ity ; 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 ante- cedent to the positive law by which they are established: as, for instance, if human societies existed, it would be right to conform to their laws; if there were intelligent beings that had received a benefit of another being, they ought to show their gratitude; if one intelligent being had created another intelligent being, the latter ought to continue in its original state of dependence ; if one intelligent being injures another, it deserves a retaliation ; and so on.

But the intelligent world is far from being so well governed as the physical. For though the former has also its laws, which of their own nature are invariable, it does not conform to them so exactly as the physical world. This is because, on the one hand, particular intelligent beings are of a finite nature, and consequently liable to error ; and on the other, their nature re- quires them to be free agents. Hence they do not steadily con- form to their primitive laws ; and even those of their own in- stituting they frequently infringe.

Whether brutes be governed by the general laws of motion, or by a particular movement, we cannot determine. Be that as it may, they have not a more intimate relation to God than the rest of the material world ; and sensation is of no other use to them than in the relation they have either to other particular beings or to themselves.


THE SPIRIT OF LAWS 3

By the allurement of pleasure they preserve the individual, and by the same allurement they preserve their species. They have natural laws, because they are united by sensation ; posi- tive laws they have none, because they are not connected by knowledge. And yet they do not invariably conform to their natural laws; these are better observed by vegetables, that have neither understanding nor sense.

Brutes are deprived of the high advantages which we have ; but they have some which we have not. They have not our hopes, but they are without our fears ; they are subject like us to death, but without knowing it ; even most of them are more attentive than we to self-preservation, and do not make so bad a use of their passions.

Man, as a physical being, is like other bodies governed by invariable laws. As an intelligent being, he incessantly trans- gresses the laws established by God, and changes those of his own instituting. He is left to his private direction, though a limited being, and subject, like all finite intelligences, to ig- norance and error: even his imperfect knowledge he loses; and as a sensible creature, he is hurried away by a thousand impetuous passions. Such a being might every instant forget his Creator ; God has therefore reminded him of his duty by the laws of religion. Such a being is liable every moment to for- get himself ; philosophy has provided against this by the laws of morality. Formed to live in society, he might forget his fellow-creatures; legislators have, therefore, by political and civil laws, confined him to his duty.

2. — Of the Lazvs of Nature

Antecedent to the above-mentioned laws are those of nature, so called, because they derive their force entirely from our frame and existence. In order to have a perfect knowledge of these laws, we must consider man before the establishment of society: the laws received in such a state would be those of nature.

The law which, impressing on our minds the idea of a Crea- tor, inclines us towards Him, is the first in importance, though not in order, of natural laws. Man in a state of nature would have the faculty of knowing, before he had acquired any knowl-


4 MONTESQUIEU

edge. Plain it is that his first ideas would not be of a speculative nature ; he would think of the preservation of his being, be- fore he would investigate its origin. Such a man would feel nothing in himself at first but impotency and weakness; his fears and apprehensions would be excessive ; as appears from instances (were there any necessity of proving it) of savages found in forests,^ trembling at the motion of a leaf, and flying from every shadow.

In this state every man, instead of being sensible of his equal- ity, would fancy himself inferior. There would, therefore, be no danger of their attacking one another ; peace would be the first law of nature.

The natural impulse or desire which Hobbes attributes to mankind of subduing one another is far from being well founded. The idea of empire and dominion is so complex, and depends on so many other notions, that it could never be the first which occurred to the human understanding.

Hobbesc inquires, " For what reason go men armed, and have locks and keys to fasten their doors, if they be not naturally (^' \f in a state of war ? " But is it not obvious that he attributes to V" ^ mankind before the establishment of society what can happen but in consequence of this establishment, which furnishes them with motives for hostile attacks and self-defence ?

Next to a sense of his weakness man would soon find that of his wants. Hence another law of nature would prompt him to seek for nourishment.

Fear, I have observed, would induce men to shun one an- other ; but the marks of this fear being reciprocal, would soon engage them to associate. Besides, this association would quickly follow from the very pleasure one animal feels at the approach of another of the same species. Again, the attrac- tion arising from the difference of sexes would enhance this pleasure, and the natural inclination they have for each other would form a third law.

Besides the sense or instinct which man possesses in com- mon with brutes, he has the advantage of acquired knowledge ; and thence arises a second tie, which brutes have not. Man-

b Witness the savage found in the for- over to England during the reign of ests of Hanover, who was carried George I.

c In pra^fat. lib. " de Give."


V


THE SPIRIT OF LAWS 5

kind have, therefore, a new motive of uniting; and a fourth law of nature resuhs from the desire of Hving in society.

3. — Of positive Laws

As soon as man enters into a state of society he loses the sense of his weakness ; equality ceases, and then commences the state of war.c?

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

These two different kinds of states give rise to human laws. Considered as inhabitants of so great a planet, which neces- sarily contains a variety of nations, they have laws relating to their mutual intercourse, which is what we call the law of nations. As members of a society that must be properly sup- ported, they have laws relating to the governors and the gov- erned, and this we distinguish by the name of politic law. They have also another sort of laws, as they stand in relation to each other ; by which is understood the civil law.

The law of nations is naturally founded on this principle, that different nations ought in time of peace to do one another all the good they can, and in time of war as little injury as pos- sible, without prejudicing their real interests.

The object of war is victory ; that of victory is conquest ; and that of conquest preservation. From this and the preced- ing principle all those rules are derived which constitute the law of nations.

All countries have a law of nations, not excepting the Iro- quois 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.

d Interpreter and admirer of the social Rousseau to celebrate the independence instinct as he was, Montesquieu has not of savage life, gives birth to the whole- hesitated to avow that war takes simul- some necessity of laws which are an taneous rise with society. But the true armistice between states, and a treaty


Philosophy of this unhappy truth, which of_ perpetual peace for the citizens lobbes took advantage of in order to vaunt the serenity ol despotism, and


[obbes took advantage of in order to (Eloge de Montesquieu).


6 MONTESQUIEU

Besides the law of nations relating to all societies, there is a polity or civil constitution for each particularly considered. No society can subsist without a form of government. *' The united strength of individuals," as Gravina^ well observes, " constitutes what we call the body politic."

The general strength may be in the hands of a single person, or of many. Some think that nature having established pater- nal authority, the most natural government was that of a single person. But the example of paternal authority proves nothing. For if the power of a father relates to a single government, that of brothers after the death of a father, and that of cousins-ger- man after the decease of brothers, refer to a government of many. The poHtical power necessarily comprehends the union of several families.

Better is it to say that the government most conformable to nature is that which best agrees with the humor and disposi- tion of the people in whose favor it is established.

The strength of individuals cannot be united without a con- junction of all their wills. " The conjunction of those wills," as Gravina again very justly observes, " is what we call the civil state."

Law in general is human reason, inasmuch as it governs all the inhabitants of the earth : the political and civil laws of each nation ought to be only the particular cases in which human reason is applied.

They should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another.

They should be in relation to the nature and principle of each government: whether they form it, as may be said of politic laws ; or whether they support it, as in the case of civil institu- tions.

They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the prin- cipal occupation of the natives, whether husbandmen, hunts- men, or shepherds : they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs. In fine, they have relations to each

e An Italian poet and jurist, 1664 — 1718.


THE SPIRIT OP LAWS 7

other, as also to their origin, to the intent of the legislator, and to the order of things on which they are established ; in all of which different lights they ought to be considered.

This is what I have undertaken to perform in the following work. These relations I shall examine, since all these together constitute what I call the Spirit of Laws.

I have not separated the political from the civil institutions, as I do not pretend to treat of laws, but of their spirit ; and as this spirit consists in the various relations which the laws may bear to different objects, it is not so much my business to fol- low the natural order of laws as that of these relations and ob- jects.

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


BOOK II

OF LAWS DIRECTLY DERIVED FROM THE NATURE OF GOVERNMENT

I. — Of the Nature of three different Governments

THERE are three species of government: republican, monarchical, and despotic. In order to discover their nature, it is sufficient to recollect the common notion, which supposes three definitions, or rather three facts : that a republican government is that in which the body, or only a part of the people, is possessed of the supreme power ; monarchy, that in which a single person governs by fixed and established laws ; a despotic government, that in which a single person directs everything by his own will and caprice.

This is what I call the nature of each government ; we must now inquire into those laws which directly conform to this nature, and consequently are the fundamental institutions.

2. — Of the Republican Government, and the Laws in relation to Democracy a

When the body of the people is possessed of the supreme power, it is called a democracy. When the supreme power is lodged in the hands of a part of the people, it is then an aristoc- racy.

In a democracy the people are in some respects the sover- eign, and in others the subject.

There can be no exercise of sovereignty but by their suf- frages, which are their own will; now, the sovereign's will is the sovereign himself. The laws, therefore, which establish the right of suffrage are fundamental to this government. And

a Compare Aristotle's " Polit." lib. fundamental laws of democratic consti- VI. cap. ii., wherein are exposed the tutions. — Ed.

8


THE SPIRIT OF LAWS 9

indeed it is as important to regulate in a republic, in what man- ner, 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& says that at Athens a stranger who intermeddled in the assembHes of the people was punished with death." This is because such a man usurped the rights of sovereignty.^^

It is an essential point to fix the number of citizens who are to form the public assembHes ; otherwise it would be uncertain whether the whole or only a part of the people had given their votes. At Sparta the number was fixed at ten thousand. But Rome, designed by Providence to rise from the weakest be- ginnings to the highest pitch of grandeur ; Rome, doomed to experience all the vicissitudes of fortune ; Rome, who had sometimes all her inhabitants without her walls, and sometimes all Italy and a considerable part of the world within them ; Rome, I say, never fixed the number ;rf and this was one of the principal causes of her ruin.

The people, in whom the supreme power resides, ought to have the management of everything within their reach: that which exceeds their abilities must be conducted by their min- isters.

But they cannot properly be said to have their ministers, without the power of nominating them : it is, therefore, a fundamental maxim in this government, that the people should choose their ministers — that is, their magistrates.

They have occasion, as well as monarchs, and even more so, to be directed by a council or senate. But to have a proper confidence in these, they should have the choosing of the mem- bers ; whether the election be made by themselves, as at Athens, or by some magistrate deputed for that purpose, as on certain occasions was customary at Rome.^

The people are extremely well qualified for choosing those whom they are to intrust with part of their authority. They have only to be determined by things to ,which they cannot be strangers, and by facts that are obvious to sense. They can

b Declam. 17 and 18. d See the " Considerations on the

c Libanius himself gives the reason Causes of the Grandeur and Decline of for this law. " It was," he avers, " in the Romans," chap. ix. order to prevent the secrets of the re- e The Roman senators were invariably

public from being divulged."— Ed. chosen by magistrates in whom the peo-

ple had vested the power.— Crevier.


lo MONTESQUIEU

tell when a person has fought many battles, and been crowned with success ; they are, therefore, capable of electing a gen- eral. They can tell when a judge is assiduous in his office, gives general satisfaction, and has never been charged with bribery : this is sufficient for choosing a praetor. They are struck with the magnificence or riches of a fellow-citizen; no more is requisite for electing an edile. These are facts of which they can have better information in a public forum than a monarch in his palace. But are they capable of conducting an intricate afifair, of seizing and improving the opportunity and critical moment of action ? No ; this surpasses their abilities.

Should we doubt the people's natural capacity, in respect to the discernment of merit, we need only cast an eye on the series of surprising elections made by the Athenians and Romans ; which no one surely will attribute to hazard.

We know that though the people of Rome assumed the right of raising plebeians to public offices, yet they never would ex- ert this power ; and though at Athens the magistrates were al- lowed, by the law of Aristides, to be elected from all the different classes of inhabitants, there never was a case, says Xenophon,^ when the common people petitioned for em- ployments which could endanger either their security or their glory.

As most citizens have sufficient ability to choose, though unqualified to be chosen, so the people, though capable of call- ing others to an account for their administration, are incapa- ble of conducting the administration themselves.

The public business must be carried on with a certain mo- tion, 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 ever depended.

Servius Tullius followed the spirit of aristocracy in the dis- tribution of his classes. We find in Livy^ and in Dionysius

e Pages 691 and 692. Edit. Wechel. Ann. 1596. f Lib. I.


THE SPIRIT OF LAWS ii

Halicarnassuss' in what manner he lodged the right of suffrage in the hands of the principal citizens. He had divided the peo- ple of Rome into 193 centuries, which formed six classes ; and ranking the rich, who were in smaller numbers, in the first centuries, and those in middling circumstances, who were more numerous, in the next, he flung the indigent multitude into the last; and as each century had but one vote,/^ it was property rather than numbers that decided the election.

Solon divided the people of Athens into four classes. In this he was directed by the spirit of democracy, his intention not being to fix those who were to choose, but such as were eligible : therefore, leaving to every citizen the right of elec- tion, he made* the judges eligible from each of those four classes ; but the magistrates he ordered to be chosen only out of the first three, consisting of persons of easy fortunes./

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

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

The suffrage by lot is a method of electing that offends no one, but animates each citizen with the pleasing hope of serving his country.^

Yet as this method is in itself defective, it has been the en- deavor of the most eminent legislators to regulate and amend it.

Solon made a law at Athens that military employments should be conferred by choice; but that senators and judges should be elected by lot.

The same legislator ordained that civil magistracies, attended with great expense, should be given by choice, and the others by lot.

In order, however, to amend the suffrage by lot, he made a rule that none but those who presented themselves should be

g Lib. IV. art. 15 et seq. k Ibid. lib. IV. cap. ix.

h See in the " Considerations on the / The mere suffrage might occasion

Causes of the Grandeur and Decline of mortification to those who were ex-

the Romans," chap, ix., how this spirit eluded, and undue pride to the favored

of Servius Tullius was preserved in the ones. It was in order to avoid this

republic. contingency that they had recourse to

I Dionysius Halicarn., " Eulogium of lot, and thus chance precluded this dan-

Isocrates," p. 97, torn. ii. Edit. Wechel. ger, for it does not deal in humiliation

" Pollux," VIII. cap. X. art, 130. or inflation.— Servan.


I'ouux, ' Vili. cap. X. art, 130.

/ See Aristotle's " Polit." lib. II. cap.


12 MONTESQUIEU

elected; that the person elected should be examined by judges,w and that every one should have a right to accuse him if he were unworthy of the office ;w this participated at the same time of the suffrage by lot and of that by choice. When the time of their magistracy had expired, they were obliged to submit to another judgment in regard to their conduct. Persons ut- terly unqualified must have been extremely backward in giv- ing in their names to be drawn by lot.

The law which determines the manner of giving suffrage is likewise fundamental in a democracy. It is a question of some importance whether the suffrages ought to be public or secret. Cicero observes^ that the laws/' which rendered them secret towards the close of the republic were the cause of its decline. But as this is differently practised in different republics, I shall offer here my thoughts concerning this subject.

The people's suffrages ought doubtless to be public ;o and this should be considered as a fundamental law of democracy. The lower class ought to be directed by those of higher rank, and restrained within bounds by the gravity of eminent per- sonages. Hence, by rendering the suffrages secret in the Roman republic, all was lost ; it was no longer possible to di- rect a populace that sought its own destruction. But when the body of the nobles are to vote in an aristocracy ,& or in a de- mocracy the senate,^ as the business is then only to prevent intrigues, the suffrages cannot be too secret.

Intriguing in a senate is dangerous ; it is dangerous also in a body of nobles ; but not so among the people, whose nature is to act through passion. In countries where they have no share in the government, we often see them as much inflamed on account of an actor as ever they could be for the welfare of the state. The misfortune of a republic is when intrigues are at an end ; which happens when the people are gained by

m See the oration of Demosthenes de a At Athens the people used to lift up

falsa legat. and the oration against their hands.

Timarchus. b As at Venice.

n They used even to draw two tickets c The thirty tyrants at Athens ordered

for each place, one which gave the the suffrages of the Areopagites to be

place, and the other which named the public, in order to manage them as they

Eerson who was to succeed, in case the pleased. — Lysias, " Orat. contra Ago-

rst was rejected.* rat.," cap. viii.

Lib. I. and III. " de Leg."

pThey were called Leges Tabulares; * These two tickets sufficed when the

two tablets were presented to each citi- people were called upon to deliberate in

zen, the first marked with an A, for a question of law; but in the election of

" Antiquo," or "I forbid it"; and the magistrates, each citizen received as

other with a U and an R, for " Uti many tickets as there were candidates. —

Rogas," or " Be it as you desire." Crevier.


THE SPIRIT OF LAWS 13

bribery and corruption: in this case they grow indifferent to pubHc affairs, and avarice becomes their predominant passion. Unconcerned about the government and everything belonging to it, they quietly wait for their hire.

It is likewise a fundamental law in democracies, that the people should have the sole power to enact laws. And yet there are a thousand occasions on which it is necessary the senate should have the power of decreeing ; nay, it is frequently proper to make some trial of a law before it is established. The constitutions of Rome and Athens were excellent — the de- crees of the senates? had the force of laws for the space of a year, but did not become perpetual till they were ratified by the consent of the people.

3. — Of the Laws in relation to the Nature of Aristocracy

In an aristocracy the supreme power is lodged in the hands of a certain number of persons. These are invested both with the legislative and executive authority; and the rest of the people are, in respect to them, the same as the subjects of a monarchy in regard to the sovereign.

They do not vote here by lot, for this would be productive of inconveniences only. And indeed, in a government where the most mortifying distinctions are already established, though they were to be chosen by lot, still they would not cease to be odious ; it is the nobleman they envy, and not the magistrate.

When the nobility are numerous, there must be a senate to regulate the affairs which the body of the nobles are incapable of deciding, and to prepare others for their decision. In this case it may be said that the aristocracy is in some measure in the senate, the democracy in the body of the nobles, and the people are a cipher.

It would be a very happy thing in an aristocracy if the peo- ple, in some measure, could be raised from their state of anni- hilation. Thus at Genoa, the bank of St. George being ad- ministered by the people^ gives them a certain influence in the government, whence their whole prosperity is derived.

The senators ought by no means to have the right of naming their own members ; for this would be the only way to per-

d See Dionys. Halicarn. lib. IV and a See Mr. Addison's " Travels to

IX. Italy," p. 16.


14 MONTESQUIEU

petuate abuses. At Rome, which in its early years was a kind of aristocracy, the senate did not fill up the vacant places in their own body ; the new members were nominated by the censors.^

In a republic, the sudden rise of a private citizen to exor- bitant power produces monarchy, or something more than monarchy. In the latter the laws have provided for, or in some measure adapted themselves to, the constitution ; and the prin- ciple of government checks the monarch: but in a republic, where a private citizen has obtained an exorbitant power,c the abuse of this power is much greater, because the laws foresaw it not, and consequently made no provision against it.

There is an exception to this rule, when the constitution is such as to have immediate need of a magistrate invested with extraordinary power. Such was Rome with her dictators, such is Venice with her state inquisitors ; these are formidable magis- trates, 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 re- mains of her aristocracy against the people ; whereas Venice employs her state inquisitors to maintain her aristocracy against the nobles. The consequence was, that at Rome the dictatorship could be only of short duration, as the people acted through passion and not with design. It was necessary that a magistracy of this kind should be exercised with lustre and pomp, the business being to intimidate, and not to punish, the multitude. It was also proper that the dictator should be created only for some particular affair, and for this only should have an unlimited authority, as he was always created upon some sudden emergency. On the contrary, at Venice they have occasion for a permanent magistracy; for here it is that schemes may be set on foot, continued, suspended, and re- sumed ; that the ambition of a single person becomes that of a family, and the ambition of one family that of many. They have occasion for a secret magistracy, the crimes they punish being hatched in secrecy and silence. This magistracy must have a general inquisition, for their business is not to remedy known disorders, but to prevent the unknown. In a word, the

b They were named at first by the con- Rome. See " Considerations on the suls. Causes of the Grandeur and Decline of

f This is what ruined the republic of the Romans."


THE SPIRIT OF LAWS 15

latter is designed to punish suspected crimes ; whereas the former used rather menaces than punishment even for crimes that were openly avowed.

In all magistracies, the greatness of the power must be com- pensated by the brevity of the duration. This most legislators have fixed to a year ; a longer space would be dangerous, and a shorter would be contrary to the nature of government. For who is it that in the management even of his domestic affairs would be thus confined? At Ragusa^^ 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^ by formidable powers, who might easily corrupt such petty and insignificant magistrates.

The best aristocracy is that in which those who have no share in the legislature are so few and inconsiderable that the governing party have no interest in oppressing them. Thus whenf Antipater made a law at Athens, that whosoever was not worth two thousand drachms should have no power to vote, he formed by this method the best aristocracy possible ; because this was so small a sum as to exclude very few, and not one of any rank or consideration in the city.

Aristocratic families ought, therefore, as much as possible, to level themselves in appearance with the people. The more an aristocracy borders on democracy, the nearer it approaches perfection : and, in proportion as it draws towards monarchy, the more is it imperfect.

But the most imperfect of all is that in which the part of the people that obeys is in a state of civil servitude to those who command, as the aristocracy of Poland, where the peas- ants are slaves to the nobility.

4. — Of the Relation of Laws to the Nature of Monarchical Government

The intermediate, subordinate, and dependent powers con- stitute the nature of monarchical government ; I mean of that in which a single person governs by fundamental laws. I said the intermediate, subordinate, and dependent powers. And,

d Tournefort's " Voyages." f Diodorus, lib. XVIII, p 6oi, Rhod-

e At Lucca the magistrates are chosen Oman's edition, only for two months.


i6 MONTESQUIEU

indeed, in monarchies the prince is the source of all power, political and civil. These fundamental laws necessarily sup- pose the intermediate channels through which the power flows : for if there be only the momentary and capricious will of a sin- gle person to govern the state, nothing can be fixed, and, of course, there is no fundamental law.

The most natural, intermediate, and subordinate power is that of the nobihty. This in some measure seems to be essen- tial to a monarchy, whose fundamental maxim is, no monarch, no nobility ; no nobility, no monarch ; but there may be a despotic princes'

There are men who have endeavored in some countries in Europe to suppress the jurisdiction of the nobility, not per- ceiving that they were driving at the very thing that was done by the Parliament of England. Abolish the privileges of the lords, the clergy and cities in a monarchy, and you will soon have a popular state, or else a despotic government.

The courts of a considerable kingdom in Europe have, for many ages, been striking at the patrimonial jurisdiction of the lords and clergy. We do not pretend to censure these sage magistrates ; but we leave it to the public to judge how far this may alter the constitution.

Far am I from being prejudiced in favor of the privileges of the clergy ; however, I should be glad if their jurisdiction were once fixed. The question is not, whether their jurisdic- tion was justly established ; but whether it be really estab- lished ; whether it constitutes a part of the laws of the country, and is in every respect in relation to those laws : whether be- tween two powers acknowledged independent, the conditions ought not to be reciprocal ; and whether it be not equally the duty of a good subject to defend the prerogative of the prince, and to maintain the limits which from time immemorial have been prescribed to his authority.

Though the ecclesiastic power be so dangerous in a republic, yet it is extremely proper in a monarchy, especially of the absolute kind. What would become of Spain and Portugal, since the subversion of their laws, were it not for this only bar- rier against the incursions of arbitrary power? a barrier ever useful when there is no other : for since a despotic government

gTh\s maxim brings to mind the un- IV of France declared to the Seize, fortunate Charles I, who said, "No " No nobility, no monarch ! "—Voltaire, bishop, no monarchy"; while Henry


THE SPIRIT OF LAWS 17

is productive of the most dreadful calamities to human nature, the very evil that restrains it is beneficial to the subject.

In the same manner as the ocean, threatening to overflow the whole earth, is stopped by weeds and pebbles that lie scat- tered along the shore,^ so monarchs, whose power seems un- bounded, are restrained by the smallest obstacles, and suffer their natural pride to be subdued by supplication and prayer.

The English, to favor 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 mon- archical constitution, was one of the greatest promoters of ab- solute power ever known in Europe. Besides the violent and extraordinary changes owing to his direction, he would fain suppress all the intermediate ranks, and abolish the political communities. He was dissolving; the monarchy by his chi- merical reimbursements, and seemed as if he even wanted to redeem the constitution.

It is not enough to have intermediate powers in a monarchy ; there must be also a depositary of the laws. This depositary can only be the judges of the supreme courts of justice, who promulgate the new laws, and revive the obsolete. The natural ignorance of the nobility, their indolence and contempt of civil government, require that there should be a body invested with the power of reviving and executing the laws, which would be otherwise buried in oblivion. The prince's council are not a proper depositary. They are naturally the depositary of the momentary will of the prince, and not of the fundamental laws. Besides, the prince's council is continually changing; it is neither perrrianent nor numerous ; neither has it a sufficient share of the confidence of the people ; consequently it is incapa- ble of setting them right in difficult conjunctures, or of reduc- ing 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

h Voltaire is inclined to doubt the jus- augmented that of the Commons. —

tice of this comparison. — Ed. Voltaire.

i On the contrary, the English have ; Ferdinand, King of Aragon, made

rendered the power of their spiritual and himself grand-master of the orders, and

temporal lords more legal, and have that alone changed the constitution.

Vol. I.— 2


i8 MONTESQUIEU

forms a kind of permanent depositary ; and if this cannot be said of religion, it may of the customs that are respected instead of laws.

5. — Of the Lazus in relation to the Nature of a despotic

Government

From the nature of despotic power it follows that the single person, invested with this power, commits the execution of it also to a single person. A man whom his senses continually inform that he himself is everything and that his subjects are nothing, is naturally lazy, voluptuous, and ignorant. In conse- quence 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 vizier,^ and to invest him with the same power as himself. The creation of a vizier is a fundamental law of this government.

It is related of a pope, that he had started an infinite num- ber of difficulties against his election, from a thorough con- viction of his incapacity. At length he was prevailed on to ac- cept of the pontificate, and resigned the administration entirely to his nephew. He was soon struck with surprise, and said, " I should never have thought that these things were so easy." The same may be said of the princes of the East, who, being educated in a prison where eunuchs corrupt their hearts and debase their understandings, and where they are frequently kept ignorant even of their high rank, when drawn forth in order to be placed on the throne, are at first confounded: but as soon as they have chosen a vizier, and abandoned them- selves in their seraglio to the most brutal passions, pursuing, in the midst of a prostituted court, every capricious extrava- gance, they would never have dreamed that they could find matters so easy.

The more extensive the empire, the larger the seraglio ; and consequently the more voluptuous the prince. Hence the more nations such a sovereign has to rule, the less he attends to the cares of government ; the more important his affairs, the less he makes them the subject of his deliberations.

k The Eastern kings are never without viziers, says Sir John Chardin.


BOOK III

OF THE PRINCIPLES OF THE THREE KINDS OF GOVERNMENT

I. — Difference between the Nature and Principle of Government

HAVING examined the laws in relation to the nature of each government, we must investigate those which re- late to its principle. There is this difference between the nature and principle^ of government, that the former is that by which it is consti- tuted, the latter that by which it is made to act. One is its par- ticular structure, and the other the human passions which set it in motion.

Now, laws ought no less to relate to the principle than to the nature of each government. We must, therefore, inquire into this principle, which shall be the subject of this third book.

2. — Of the Principle of different Governments

I have already observed that it is the nature of a republican government, that either the collective body of the people, or particular families, should be possessed of the supreme power ; of a monarchy that the prince should have this power, but in the execution of it should be directed by established laws ; of a despotic government, that a single person should rule accord- ing to his own will and caprice. This enables me to discover their three principles ; which are thence naturally derived. I shall begin with a republican government, and in particular with that of democracy.

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

19


20 MONTESQUIEU

3. — Of the Principle of Democracy

There is no great share of probity necessary to support a monarchical or despotic government. The force of laws in one, and the prince's arm in the other, are sufficient to direct and maintain the whole. But in a popular state, one spring more is necessary, namely, virtue.

What I have here advanced is confirmed by the unanimous testimony of historians, and is extremely agreeable to the nature of things.^ For it is clear that in a monarchy, where he who commands the execution of the laws generally thinks himself above them, there is less need of virtue than in a pop- ular government, where the person intrusted with the execu- tion of the laws is sensible of his being subject to their direc- tion.

Clear is it also that a monarch who, through bad advice or indolence, ceases to enforce the execution of the laws, may easily repair the evil; he has only to follow other advice, or to shake off this indolence. But when, in a popular govern- ment, there is a suspension of the laws, as this can proceed only from the corruption of the republic, the state is certainly un- done.

A very droll spectacle it was in the last century to behold the impotent efforts of the English towards the establishment of democracy. As they who had a share in the direction of public affairs were void of virtue; as their ambition was in- flamed by the success of the most daring of their members ;c as the prevailing parties were successively animated by the spirit of faction, the government was continually changing: the people, amazed at so many revolutions, in vain attempted to erect a commonwealth. At length, when the country had undergone the most violent shocks, they were obliged to have recourse to the very government which they had so wantonly proscribed.

When Sylla thought of restoring Rome to her liberty, this unhappy city was incapable of receiving that blessing. She had only the feeble remains of virtue, which were continually

h It has always been argued against whereas he has said nothing of the sort,

Montesquieu that he has said that there and to allege it even is to suppose him

can only be virtue in republics, and capable of a great absurdity. — La Harpe.

honor in monarchies, or vice versa: c Cromwell.


THE SPIRIT OF LAWS 21

diminishing. Instead of being roused from her lethargy by Caesar, Tiberius, Caius Claudius, Nero, and Domitian, she riveted every day her chains ; if she struck some blows, her aim was at the tyrant, not at the tyranny.

The politic Greeks, who lived under a popular government, knew no other support than virtue. The modern inhabitants of that country are entirely taken up with manufacture, com- merce, finances, opulence, and luxury.

When virtue is banished, ambition invades the minds of those who are disposed to receive it, and avarice possesses the whole community. The objects of their desires are changed; what they were fond of before has become indifferent; they were free while under the restraint of laws, but they would fain now be free to act against law; and as each citizen is like a slave who has run away from his master, that which was a maxim of equity he calls rigor ; that which was a rule of action he styles constraint ; and to precaution he gives the name of fear. Frugality, and not the thirst of gain, now passes for avarice. Formerly the wealth of individuals constituted the public treasure; but now this has become the patrimony of private persons. The members of the commonwealth riot on the pub- lic spoils, and its strength is only the power of a few, and the license of many.

Athens was possessed of the same number of forces when she triumphed so gloriously as when with such infamy she was enslaved. She had twenty thousand citizens,^ when she de- fended the Greeks against the Persians, when she contended for empire with Sparta, and invaded Sicily. She had twenty thousand when Demetrius Phalereus numbered them,^ as slaves are told by the head in a market-place. When Philip attempted to lord it over Greece, and appeared at the gates of Athens/ she had even then lost nothing but time. We may see in Demosthenes how difficult it was to awaken her; she dreaded Philip, not as the enemy of her liberty, but of her pleas- ures.g This famous city, which had withstood so many de- feats, and having been so often destroyed had as often risen out

d Plutarch, "Life of Pericles"; Plato, f She had then twenty thousand citi-

in " Critia." zens. See Demosthenes in " Aristog."

e She had at that time twenty-one g They had passed a law, which ren-

thousand citizens, ten thousand stran- dered it a capital crime for any one to

fers, and four hundred thousand slaves. propose applying the money designed

ee Athenaeus, book VI. for the theatres to military service.


22 MONTESQUIEU

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 forces of Athens as it had been difficult to subdue her virtue.

How was it possible for Carthage to maintain her ground? When Hannibal, upon his being made prsetor, endeavored to hinder the magistrates from plundering the republic, did not they complain of him to the Romans? Wretches, who would fain be citizens without a city, and be beholden for their riches to their very destroyers ! Rome soon insisted upon having three hundred of their principal citizens as hostages; she obliged them next to surrender their arms and ships ; and then she declared war.^^ From the desperate efforts of this defence- less city, one may judge of what she might have performed in her full vigor, and assisted by virtue

4. — Of the Principle of Aristocracy

As virtue is necessary in a popular government, it is requisite also in an aristocracy. True it is that in the latter it is not so absolutely requisite.

The people, who in respect to the nobility are the same as the subjects with regard to a monarch, are restrained by their laws. They have, therefore, less occasion for virtue than the people in a democracy. But how are the nobility to be restrained? They who are to execute the laws against their colleagues will immediately perceive that they are acting against themselves. Virtue is therefore necessary in this body, from the very nature of the constitution.

An aristocratic government has an inherent vigor, unknown to democracy. The nobles form a body, who by their preroga- tive, and for their own particular interest, restrain the people ; it is sufficient that there are laws in being to see them executed.

But easy as it may be for the body of the nobles to restrain the people, it is difficult to restrain themselves.* 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.

h This lasted three years. private crimes will go unpunished, be-

i Public crimes may be punished, be- cause it is the common interest not to cause it is here a common concern; but punish them.


THE SPIRIT OF LAWS


n


Now such a body as this can restrain itself only in two ways ; either by a very eminent virtue, which puts the nobility in some measure on a level with the people, and may be the means of forming a great republic; or by an inferior virtue, which puts them at least upon a level with one another, and upon this their preservation depends.

Moderation is therefore the very soul of this government; a moderation, I mean, founded on virtue, not that which pro- ceeds from indolence and pusillanimity.

5. — That Virtue is not the Principle of a Monarchical Goverrmient

In monarchies policy effects great things with as little virtue as possible. Thus in the nicest machines, art has reduced the number of movements, springs, and wheels.

The state subsists independently of the love of our country, of the thirst of true glory, of self-denial, of the sacrifice of our dearest interests, and of all those heroic virtues which we ad- mire in the ancients, and to us are known only by tradition.

The laws supply here the place of those virtues ; they are by no means wanted, and the state dispenses with them : an ac- tion performed here in secret is in some measure of no conse- quence.

Though all crimes be in their own nature public, yet there is a distinction between crimes really pubHc and those that are private, which are so called because they are more injurious to individuals than to the community.

Now in republics private crimes are more public, that is, they attack the constitution more than they do individuals; and in monarchies, public crimes are more private, that is, they are more prejudicial to private people than to the constitution.

I beg that no one will be offended with what I have been say- ing; my observations are founded on the unanimous testi- mony of historians. I am not ignorant that virtuous princes are so very rare ; but I venture to affirm, that in a monarchy it is extremely difficult for the people to be virtuous.;

Let us compare what the historians of all ages have asserted

I speak here of political virtue, that virtue which relates to revealed

which is also moral virtue as it is di- truths. This will appear better, book

rected to the public good; very little of V., chap. 2. private moral virtue, and not at all of


24 MONTESQUIEU

concerning the courts of monarchs; let us recollect the con- versations and sentiments of people of all countries, in respect to the wretched character of courtiers, and we shall find that these are not airy speculations, but truths confirmed by a sad and melancholy experience.

Ambition in idleness ; meanness mixed with pride ; a desire of riches without industry ; aversion to truth ; flattery, perfidy, violation of engagements, contempt of civil duties, fear of the prince's virtue, hope from his weakness, but, above all, a per- petual ridicule cast upon virtue, are, I think, the characteris- tics by which most courtiers in all ages and countries have been constantly distinguished. Now, it is exceedingly difficult for the leading men of the nation to be knaves, and the inferior sort to be honest ; for the former to be cheats, and the latter to rest satisfied with being only dupes.

But if there should chance to be some unlucky honest man^ among the people. Cardinal Richelieu, in his political testa- ment, seems to hint that a prince should take care not to employ him./ So true is it that virtue is not the spring of this govern- ment! It is not indeed excluded, but it is not the spring of government.

6. — In zvhat 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 mon- archical 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, supplies the place of the political virtue of which I have been speaking, 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,w a good intention is necessary,w and we should love our coun-

k This is to be understood in the sense m This word " good man " is under-

of the preceding note. stood here in a political sense only.

/ We must not, says he, employ peo- n See note ;, page 23.

pie of mean extraction; they are too rigid and morose.


THE SPIRIT OF LAWS


25


try, not so much on our own account, as out of regard to the community.

7. — Of the Principle of Monarchy

A monarchical government supposes, as we have already ob- served, pre-eminences and ranks, as likewise a noble descent. Now, since it is the nature of honor to aspire to preferments and titles,^ it is properly placed in this government.

Ambition is pernicious in a republic. But in a monarchy it has some good effects ; it gives life to the government, and is attended with this advantage, that it is in no way dangerous, because it may be continually checked.

It is with this kind of government as with the system of the universe, in which there is a power that constantly repels all bodies from the centre, and a power of gravitation that attracts them to it. Honor sets all the parts of the body politic in mo- tion, and by its very action connects them ; thus each indi- vidual advances the public good, while he only thinks of pro- moting his own 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 pos- sibly be to private persons.

Is it not very exacting to oblige men to perform the most difficult actions, such as require an extraordinary exertion of fortitude and resolution, without other recompense than that of glory and applause?

8. — That Honor is not the Principle of Despotic Government

Honor is far from being the principle of despotic govern- ment: mankind being here all upon a level, no one person can prefer himself to another ; and as on the other hand they are all slaves, they can give themselves no sort of preference.

Besides, as 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

a These preferments, distinctions, and dom of to-day. Prefectures, consulates,

honors, in the days of the Roman re- axes, fasces, and triumphs were valued

public, were worth quite as much as the at the price of so many colored ribbons,

debris which goes to constitute a king- —Voltaire.


26 MONTESQUIEU

in countries in which the constitution is fixed, and where they are governed by settled laws.

How can despotism abide with honor? The one glories in the contempt of life ; and the other is founded on the power of taking it away. How can honor, on the other hand, bear with despotism ? The former has its fixed rules, and peculiar caprices ; but the latter is directed by no rule, and its own caprices are subversive of all others.

Honor, therefore, a thing unknown in arbitrary govern- ments, some of which have not even a proper word to express it,^ is the prevailing principle in monarchies ; here it gives life to the whole body politic, to the laws, and even to the virtues themselves.

9. — Of the Principle of Despotic Government

As virtue is necessary in a republic, and in a monarchy honor, so fear is necessary in a despotic government : with regard to virtue, there is no occasion for it, and honor would be ex- tremely dangerous.^

Here the immense power of the prince devolves entirely upon those whom he is pleased to intrust with the administra- tion. Persons capable of setting a value upon themselves would be likely to create disturbances. Fear must therefore depress their spirits, and extinguish even the least sense of ambition.

A moderate government may, whenever it pleases, and with- out the least danger, relax its springs. It supports itself by the laws, and by its own internal strength. But when a despotic prince ceases for one single moment to uplift his arm, when he cannot instantly demolish those whom he has intrusted with the first employments,c? all is over: for as fear, the spring of this government, no longer subsists, the people are left with- out a protector.

It is probably in this sense the Cadis maintained that the Grand Seignior was not obliged to keep his word or oath, when he limited thereby his authority.^

h See Perry, p. 447. construct a series of his ideas, and that

c It has been thought that Montes- his motives should be conceived.

quieu anticipated innumerable difificul- d As it often happens in a military

ties, if he entered upon his plan, and in aristocracy. — Ed.

his own style began to refute objections. e Ricaut on the Ottoman Empire.

It is evident that his only desire was to


THE SPIRIT OF LAWS 27

It is necessary that the people should be judged by laws, and the great men by the caprice of the prince, that the lives of the lowest subject should be safe, and the pasha's head ever in danger. We cannot mention these monstrous governments without horror. The Sophi of Persia, dethroned in our days by Mahomet, the son of Miriveis, saw the constitution sub- verted before this resolution, because he had been too sparing of blood.^

History informs us that the horrid cruelties of Domitian struck such a terror into the governors, that the people re- covered themselves a little during his reign.g Thus a torrent overflows one side of a country, and on the other leaves fields untouched, where the eye is refreshed by the prospect of fine meadows.

10. — Difference of Obedience in Moderate and Despotic Governments

In despotic states, the nature of government requires the most passive obedience; and when once the prince's will is made known, it ought infallibly to produce its effect.

Here they have no Hmitations or restrictions, no mediums, terms, equivalents, or remonstrances ; no change to propose : man is a creature that blindly submits to the absolute will of the sovereign.

In a country like this they are no more allowed to represent their apprehensions of a future danger than to impute their miscarriage to the capriciousness of fortune. Man's portion here, like that of beasts, is instinct, compliance, and punish- ment.

Little does it then avail to plead the sentiments of nature, filial respect, conjugal or parental tenderness, the laws of honor, or want of health ; the order is given, and that is sufficient.

In Persia, when the king has condemned a person, it is no longer lawful to mention his name, or to intercede in his favor. Even if the prince were intoxicated, or nan compos, the decree must be executed ;/i otherwise he would contradict himself, and the law admits of no contradiction. This has been the way of thinking in that country in all ages ; as the order which

f See the history of this revolution by which is one of the species of despotic Father Ducerceau. government.

g His was a military constitution, h See Sir John Chardin.


28 MONTESQUIEU

Ahasuerus gave, to exterminate the Jews, could not be re- voked,^ they were allowed the liberty of defending themselves.;"

One thing, however, may be sometimes opposed to the prince's will,^ namely, reHgion. They will abandon, nay they will slay a parent, if the prince so commands ; but he cannot oblige them to drink wine. The laws of religion are of a superior nature, because they bind the sovereign as well as the subject. But with respect to the law of nature, it is otherwise; the prince is no longer supposed to be a man.

In monarchical and moderate states, the power is limited by its very spring, I mean by honor, which, Hke a monarch, reigns over the prince and his people. They will not allege to their sovereign the laws of religion ; a courtier would be apprehen- sive of rendering himself ridiculous. But the laws of honor will be appealed to on all occasions. Hence arise the restric- tions necessary to obedience; honor is naturally subject to whims, by which the subject's submission will be ever directed.

Though the manner of obeying be different in these two kinds of government, the power is the same. On which side soever the monarch turns, he inclines the scale, and is obeyed. The whole difference is, that in a monarchy the prince receives instruction, at the same time that his ministers have greater abilities, and are more versed in pubHc affairs, than the minis- ters of a despotic government.

II. — Reflections on the preceding Chapters

Such are the principles of the three sorts of government: which does not imply that in a particular republic they actually are, but that they ought to be, virtuous ; nor does it prove that in a particular monarchy they are actuated by honor, or in a particular despotic government by fear; but that they ought to be directed by these principles, otherwise the government is imperfect.

tThis order was revoked by a new minate them. So terrible was the suc-

edict. See Esther, xvi., 7.— Ed. cess of the Jews that it was in memory

■ The Jews were not allowed to defend of the event that the feast of Purim was

themselves, as the author avers, but to instituted. — De Dupin.

exterminate their enemies, as it had k See Sir John Chardin. been permitted their enemies to exter-


BOOK IV

THAT THE LAWS OF EDUCATION OUGHT TO BE IN RELATION TO THE PRINCIPLES OF GOV- ERNMENT

I. — Of the Laws of Education

THE laws of education are the first impressions we re- ceive ; and as they prepare us for civil life, every private family ought to be governed by the plan of that great household which comprehends them all.

If the people in general have a principle, their constituent parts, that is, the several families, will have one also. The laws of education will be therefore dififerent in each species of gov- ernment : in monarchies they will have honor for their object ; in republics, virtue ; in despotic governments, fear.

2. — Of Education in Monarchies

In monarchies the principal branch of education is not taught in colleges or academies. It commences, in some meas- ure, at our setting out in the world ; for this is the school of what we call honor, that universal preceptor which ought everywhere to be our guide.

Here it is that we constantly hear three rules or maxims, viz., that we should have a certain nobleness in our virtues, a kind of frankness in our morals, and a particular politeness in our behavior.

The virtues we are here taught are less what we owe to others than to ourselves ; they are not so much what draws us towards society, as what distinguishes us from our fellow-citizens.

Here the actions of men are judged, not as virtuous, but as shining; not as just, but as great; not as reasonable, but as extraordinary.

29


30 MONTESQUIEU

When honor here meets with anything noble in our actions, it is either a judge that approves them, or a sophist by whom they are excused.

It allows of gallantry when united with the idea of sensible affection, or with that of conquest ; this is the reason why we never meet with so strict a purity of morals in monarchies as in republican governments.

It allows of cunning and craft, when joined with the notion of greatness of soul or importance of affairs ; as, for instance, in politics, with finesses of which it is far from being offended.

It does not forbid adulation, save when separated from the idea of a large fortune, and connected only with the sense of our mean condition.

With regard to morals, I have observed that the education of monarchies ought to admit of a certain frankness and open carriage. Truth, therefore, in conversation is here a necessary point. But is it for the sake of truth ? By no means. Truth is requisite only because a person habituated to veracity has an air of boldness and freedom. And indeed a man of this stamp seems to lay a stress only on the things themselves, not on the manner in which they are received.

Hence it is that in proportion as this kind of frankness is commended, that of the common people is despised, which has nothing but truth and simplicity for its object.

In fine, the education of monarchies requires a certain polite- ness of behavior. Man, a sociable animal, is formed to please in society; and a person that would break through the rules of decency, so as to shock those he conversed with, would lose the public esteem, and become incapable of doing any good.

But politeness, generally speaking, does not derive its origin from so pure a source. It arises from a desire of distinguish- ing ourselves. It is pride that renders us polite ; we are flat- tered with being taken notice of for behavior that shows we are not of a mean condition, and that we have not been bred with those who in all ages are considered the scum of the people.

Politeness, in monarchies, is naturalized at court. One man excessively great renders everybody else little. Hence that regard which is paid to our fellow-subjects ; hence that polite- ness, equally pleasing to those by whom, as to those towards whom, it is practised, because it gives people to understand


THE SPIRIT OF LAWS 31

that a person actually belongs, or at least deserves to belong, to the court.

A courtly air consists in quitting a real for a borrowed great- ness. The latter pleases the courtier more than the former. It inspires him with a certain disdainful modesty, which shows itself externally, but whose pride insensibly diminishes in pro- portion to its distance from the source of this greatness.

At court we find a delicacy of taste in everything — a delicacy arising from the constant use of the superfluities of life, from the variety, and' especially the satiety, of pleasures, from the mul- tiplicity and even confusion of fancies, which, if they are but agreeable, are sure of being well received.

These are the things which properly fall within the province of education, in order to form what we call a man of honor, a man possessed of all the qualities and virtues requisite in this kind of government.

Here it is that honor interferes with everything, mixing even with people's manner of thinking, and directing their very prin- ciples.

To this whimsical honor it is owing that the virtues are only just what it pleases ; it adds rules of its own invention to every- thing prescribed to us ; it extends or limits our duties according to its own fancy, whether they proceed from religion, politics, or morality.

There is nothing so strongly inculcated in monarchies, by the laws, by religion and honor, as submission to the prince's will ; but this very honor tells us that the prince never ought to command a dishonorable action, because this would render us incapable of serving him.

Crillon refused to assassinate the Duke of Guise, but offered to fight him. After the massacre of St. Bartholomew, Charles IX, having sent orders to the governors in the several provinces for the Huguenots to be murdered, Viscount Dorte, who com- manded at Bayonne, wrote thus to the king :a " Sire, among the inhabitants of this town, and your majesty's troops, I could not find so much as one executioner ; they are honest citizens and brave soldiers. We jointly, therefore, beseech your majesty to command our arms and lives in things that are practicable." This great and generous soul looked upon a base action as a thing impossible.

a See D'Aubigny's *' History."


32 MONTESQUIEU

There is nothing that honor more strongly recommends to the nobility than to serve their prince in a military capacity. And, indeed, this is their favorite profession, because its dangers, its success, and even its miscarriages are the road to grandeur. Yet this very law of its own making honor chooses to explain : and in case of any affront, it requires or permits us to retire.

It insists also that we should be at liberty either to seek or to reject employments, a liberty which it prefers even to an ample fortune.

Honor, therefore, has its supreme laws, to which education is obliged to conform.^ The chief of these are, that we are per- mitted to set a value upon our fortune, but are absolutely for- bidden to set any upon our lives.

The second is, that when we are raised to a post or prefer- ment, we should never do or permit anything which may seem to imply that we look upon ourselves as inferior to the rank we hold.

The third is, that those things which honor forbids are more rigorously forbidden, when the laws do not concur in the pro- hibition ; and those it commands are more strongly insisted upon, when they happen not to be commanded by law.

3. — Of Education in a Despotic Government

As education in monarchies tends to raise and ennoble the mind, in despotic governments its only aim is to debase it. Here it must necessarily be servile ; even in power such an edu- cation will be an advantage, because every tyrant is at the same time a slave.

Excessive obedience supposes ignorance in the person that obeys :c the same it supposes in him that commands, for he has no occasion to deliberate, to doubt, to reason ; he has only to will.

In despotic states, each house is a separate government. As education, therefore, consists chiefly in social converse, it must be here very much limited ; all it does is to strike the heart with

h We mention here what actually is, c By excessive obedience, Montes-

and not what ought to be; honor is a quieu intends blind obedience.— De Du- prejudice, which religion sometimes en- pin. r

deavors to remove, and at other times to regulate.


THE SPIRIT OF LAWS 33

fear, and to imprint on the understanding a very simple notion of a few principles of religion. Learning here proves danger- ous, emulation fatal ; and as to virtue, Aristotle^ cannot think that there is any one virtue belonging to slaves ;^ if so, educa- tion in despotic countries is confined within a very narrow com- pass.

Here, therefore, education is in some measure needless: to give something, one must take away every thing, and begin with making a bad subject in order to make a good slave.

For why should education take pains in forming a good citi- zen, only to make him share in the public misery ? If he loves his country, he will strive to relax the springs of government ; if he miscarries he will be undone ; if he succeeds, he must ex- pose himself, the prince, and his country to ruin.

4. — Difference between the Effects of Ancient and Modern Education

Most of the ancients lived under governments that had vir- tue for their principle; and when this was in full vigor they performed actions unusual in our times, and at which our nar- row minds are astonished.

Another advantage their education possessed over ours was that it never could be effaced by contrary impressions. Epam- inondas, the last year of his life, said, heard, beheld, and per- formed the very same things as at the age in which he received the first principles of his education.

In our days we receive three different or contrary educa- tions, namely, of our parents, of our masters, and of the world. What we learn in the latter effaces all the ideas of the former. This, in some measure, arises from the contrast we experience between our religious and worldly engagements,/^ a thing un- known to the ancients.

d " Polit." lib. I. not made of Europe a world of pol-

e How can this be, asks one, when troons. It is well known that officers

slaves have no will? — Ed. most attached to the laws of this religion

f The Christian religion forbids ven- are commonly the most exact in fulfill-

geance and prescribes humility; this is ing the duties of their state, and the

perhaps the point of contrast which the most intrepid in danger. — D.

author notes. But these precepts have


Vol. I.-3


34 MONTESQUIEU

5. — Of Education in a Republican Government

It is in a republican government that the whole power of education is required. The fear of despotic governments naturally arises of itself amidst threats and punishments ; the honor of monarchies is favored by the passions, and favors them in its turn; but virtue is a self-renunciation,g which is ever arduous and painful.

This virtue may be defined as the love of the laws and of our country. As such love requires a constant preference of public to private interest, it is the source of all private virtues; for they are nothing more than this very preference itself.

This love is peculiar to democracies. In these alone the government is intrusted to private citizens. Now, a govern- ment is like every thing else: to preserve it we must love it.

Has it ever been known that kings were not fond of mon- archy, or that despotic princes hated arbitrary power?

Every thing, therefore, depends on estabHshing this love in a republic ; and to inspire it ought to be the principal business of education : but the surest way of instilling it into children is for parents to set them an example.

People have it generally in their power to communicate their ideas to their children ; but they are still better able to trans- fuse their passions.

If it happens otherwise, it is because the impressions made at home are efiFaced by those they have received abroad.

It is not the young people that degenerate; they are not spoiled till those of maturer age are already sunk into corrup- tion.

6. — Of some Institutions among the Greeks

The ancient Greeks, convinced of the necessity that people who live under a popular government should be trained up to virtue, made yjery singular institutions in order to inspire it. Upon seeing in the life ol~Lycurgus the laws that legislator gave to the Lacedaemonians, I imagine I am reading the his-

g This virtue, which Montesquieu de- citizen often finds his own peace of mind

fines as " love of country," is not self- and independence, the peaceable pos-

rcnunciation; far from urging man to session and enjoyment of his property,

abnegation of his interests, it permits the hope of increasing it by liberty of

him to see the state flourishing and commerce, and of being raised to posts

tranquil. In this public prosperity the of dignity.— D.


THE SPIRIT OF LAWS


35


tory of the Sevarambes> The laws of Crete were the model of those of Sparta ; and those of Plato reformed them.

Let us reflect here a little on the extensive genius with which those legislators must have been endowed, to perceive that by striking at received customs, and by confounding all manner of virtues,* they should display their wisdom to the universe. Lycurgus, by blending theft with the spirit of justice, the hard- est servitude with excess of liberty, the most rigid sentiments with the greatest moderation, gave stability to his city. He seemed to deprive her of all resources, such as arts, commerce, money, and walls ; ambition prevailed among the citizens with- out hopes of improving their fortune ; they had natural senti- ments without the tie of a son, husband, or father ; and chastity was stripped even of modesty and shame. This was the road that led Sparta to grandeur and glory ; and so infallible were these institutions, that it signified nothing to gain a victory over that republic without subverting her polity.;

By these laws Crete and Laconia were governed. Sparta was the last that fell a prey to the Macedonians, and Crete to the Romans.^ The Samnites had the same institutions, which furnished those very Romans with the subject of four-and- twenty triumphs.^

A character so extraordinary m the institutions of Greece has shown itself lately in the dregs and corruptions of modern times.wt A very honest legislator has formed a people to whom probity seems as natural as bravery to the Spartans. Mr. Penn is a real Lycurgus: and though the former made peace his principal aim, as the latter did war, yet they resemble one an- other in the singular way of living to which they reduced their people, in the ascendant they had over free men, in the preju- dices they overcame, and in the passions which they subdued.

Another example we have from Paraguay. This has been the subject of an invidious charge against a society that con- siders the pleasure of commanding as the only happiness in life :

h See Vairasse d'Allais in his " Voy- nanimity. — Plutarch, " Life of the Philo-

ages Imaginaires," vol. v. — Ed. pcemen." See Livy, book XXXVIII.

t The author intends that the Lacedae- k She defended her laws and liberty

monians confounded their virtues and for the space of three years. See the

vices.— D. qSth, 99th, and looth books of Livy, in

j Philopoemen obliged the Lacedae- Florus's epitome. She made a braver

monians to change their manner of edu- resistance than the greatest kings,

eating their children, being convinced / Florus, lib. I., cap. xvi.

that if he did not take this measure they m In " fsece Romuli." — CicerO. would always be noted for their mag-


36 MONTESQUIEU

but it will be ever a glorious undertaking to render a govern- ment subservient to human happiness.^

It is glorious indeed for this society to have been the first in pointing out to those countries the idea of religion joined with that of humanity. By repairing the devastations of the Span- iards, she has begun to heal one of the most dangerous wounds that the human species ever received.

An exquisite sensibility to whatever she distinguishes by the name of honor, joined to her zeal for a religion which is far more humbling in respect to those who receive than to those who preach its doctrines, has set her upon vast undertakings, which she has accomplished with success. She has drawn wild people from their woods, secured them a maintenance, and clothed their nakedness; and had she only by this step im- proved the industry of mankind, it would have been sufficient to eternize her fame.

They who shall attempt hereafter to introduce like institu- tions must establish the community of goods as prescribed in Plato's republic ; that high respect he required for the gods ; that separation from strangers, for the preservation of morals ; and an extensive commerce carried on by the community, and not by private citizens: they must give our arts without our luxury, and our wants without our desires.

They must proscribe money, the effects of which are to swell people's fortunes beyond the bounds prescribed by nature ; to learn to preserve for no purpose what has been idly hoarded up; to multiply without end our desires; and to supply the sterility of nature, from whom we have received very scanty means of inflaming our passions, and of corrupting each other.

" The Epidamnians,o perceiving their morals depraved by conversing with barbarians, chose a magistrate for making all contracts and sales in the name and behalf of the city." Com- merce then does not corrupt the constitution, and the constitu- tion does not deprive society of the advantages of commerce./*

n The Indians of Paraguay do not de- ans were the inhabitants of Dyrrachium,

pend on any particular lord; they pay now Durazzo. — Ed.

only a fifth of the taxes, and are allowed p But it does away with competition,

the use of firearms to defend themselves. and thus ruins commerce. — Anon. Ed.

o Plutarch in his " Questions concern- 1764. ing the Greek affairs. The Epidamni-


THE SPIRIT OF LAWS


37


7. — In what Cases these singular Institutions may he of Service

Institutions of this kind may be proper in republics, because they have virtue for their principle ; but to excite men to honor in monarchies, or to inspire fear in despotic governments, less trouble is necessary.

Besides, they can take place but in a small state,? in which there is a possibility of general education, and of training up the body of the people like a single family.

The laws of Minos, of Lycurgus, and of Plato suppose a par- ticular attention and care, which the citizens ought to have over one another's conduct. But an attention of this kind cannot be expected in the confusion and multitude of affairs in which a large nation is entangled.

In institutions of this kind, money, as we have above ob- served, must be banished. But in great societies, the multi- plicity, variety, embarrassment, and importance of affairs, as well as the facility of purchasing, and the slowness of exchange, require a common measure. In order to support or extend our power, we must be possessed of the means to which, by the unanimous consent of mankind, this power is annexed.

8. — Explanation of a Paradox of the Ancients in respect to Manners

That judicious writer, Polybius, informs us^ that music was necessary to soften the manners of the Arcadians, who lived in a cold, gloomy country ; that the inhabitants of Cynete, who slighted music, were the cruellest of all the Greeks, and that no other town was so immersed in luxury and debauchery. Plato-y is not afraid to afBrm that there is no possibility of mak- ing a change in music without altering the frame of govern- ment. Aristotle, who seems to have written his " Politics " only in order to contradict Plato, agrees with him, notwithstanding, in regard to the power and influence of music over the manners of the people.^ This was also the opinion of Theophrastus, of Plutarch," and of all the ancients — an opinion grounded on mature reflection ; being one of the principles of their polity.^

q Such as were formerly the cities of t Lib. VIII. cap. v.

Greece. m " Life of Pelopidas."

  • " .'.* JJ*^*V^" '^' ^° ^"^ ^'^- ^' Plato, in his fourth book of laws,

i De Repub." hb. IV. says that the prefectures of music and


38 MONTESQUIEU

Thus it was they enacted laws, and thus they required that cities should be governed.

This I fancy must be explained in the following manner. It is observable that in the cities of Greece, especially those whose principal object was war, all lucrative arts and professions were considered unworthy of a freeman. " Most arts," says Xeno- phon,w '* corrupt and enervate the bodies of those that exer- cise them ; they oblige them to sit in the shade, or near the fire. They can find no leisure, either for their friends or for the republic." It was only by the corruption of some democra- cies that artisans became freemen. This we learn from Aris- totle,-^ who maintains that a well-regulated republic will never give them the right and freedom of the city.y

Agriculture was likewise a servile profession, and generally practised by the inhabitants of conquered countries, such as the Helotes among the Lacedaemonians, the Periecians among the Cretans, the Penestes among the Thessalians, and other conquered^ people in other republics.

In fine, every kind of low commerce^ was infamous among the Greeks ; as it obliged a citizen to serve and wait on a slave, on a lodger, or a stranger. This was a notion that clashed with the spirit of Greek liberty ; hence Plato& in his laws orders a citizen to be punished if he attempts to concern himself with trade.

Thus in the Greek republics the magistrates were extremely embarrassed. They would not have the citizens apply them- selves to trade, to agriculture, or to the arts, and yet they would not have them idle.c They found, therefore, employment for them in gymnic and military exercises; and none else were allowed by their institution.^^ Hence the Greeks must be con-

gymnic exercises are the most impor- exercised by slaves: on the contrary,

tant einployments in the city; and, in Aristotle observes the best republics

his " Republic," book III., Damon will were those in which the citizens them-

tell you, says he, what sounds are capa- selves tilled the land: but this was

ble of corrupting the mind with base brought about by the corruption of the

sentiments, or of inspiring the contrary ancient governments, which had become

virtues. democratic: for in earlier times the

w Book 5th of " Memorable Sayings." cities of Greece were subject to an aris-

X " Polit." book III. chap. iv. tocratic government.

y Diophantes, says Aristotle, " Polit." a Cauponatio,

chap, vii., made a law formerly at b Book XI.

Athens, that artisans should be slaves c Arist. "Polit." lib. X.

to the republic. d " Ars corporum exercendorum gym-

s Plato, likewise, and Aristotle require nastica, variis certaminibus terendo-

slaves to till the land. (" Laws," book rum poedotribica."— Arist. " Polit." lib.

v., " Polit." book VII., chap, x.) True VIII. cap. iii. it is that agriculture was not everywhere


THE SPIRIT OF LAWS 39

sidered as a society of wrestlers and boxers. Now, these exer- cises having a natural tendency to render people hardy and fierce, there was a necessity for tempering them with others that might soften their manners.^ For this purpose, music, which influences the mind by means of the corporeal organs, was extremely proper. It is a kind of medium between manly exercises, which harden the body, and speculative sciences, which are apt to render us unsociable and sour. It cannot be said that music inspired virtue, for this would be inconceivable : but it prevented the effects of a savage institution, and enabled the soul to have such a share in the education as it could never have had without the assistance of harmony.

Let us suppose among ourselves a society of men so pas- sionately fond of hunting as to make it their sole employment ; they would doubtless contract thereby a kind of rusticity and fierceness. But if they happen to imbibe a taste for music, we should quickly perceive a sensible difference in their customs and manners. In short, the exercises used by the Greeks could raise but one kind of passions, viz., fierceness, indignation, and cruelty. But music excites all these; and is likewise able to inspire the soul with a sense of pity, lenity, tenderness, and love. Our moral writers, who declaim so vehemently against the stage, sufficiently demonstrate the power of music over the mind.

If the society above mentioned were to have no other music than that of drums, and the sound of the trumpet, would it not be more difficult to accomplish this end than by the more melt- ing tones of softer harmony ? The ancients were, therefore, in the right when, under particular circumstances, they preferred one mode to another in regard to manners.

But some will ask, why should music be pitched upon as preferable to any other entertainment ? It is because of all sen- sible pleasures there is none that less corrupts the soul. We blush to read in Plutarch/' that the Thebans, in order to soften the manners of their youth, authorized by law a passion which ought to be proscribed by all nations.

e Aristotle observes that the children rudeness of behavior. — " Polit." lib.

of the Lacedaemonians, who began these VIII. cap. iv.

exercises at a very tender age, con- / " Life of Pelopidas." tracted thence too great a ferocity and


BOOK V

THAT THE LAWS GIVEN BY THE LEGISLATOR OUGHT TO BE IN RELATION TO THE PRIN- CIPLE OF GOVERNMENT

I. — Idea of this Book

THAT the laws of education should relate to the principle of each government has been shown in the preceding book. Now the same may be said of those which the legislator gives to the whole society. The relation of laws to this principle strengthens the several springs of government ; and this principle derives thence, in its turn, a new degree of vigor. And thus it is in mechanics, that action is always fol- lowed by reaction.

Our design is, to examine this relation in each government, beginning with the republican state, the principle of which is virtue.

2. — What is meant by Virtue in a political State

Virtue in a republic is a most simple thing; it is a love of the republic; it is a sensation, and not a consequence of ac- quired knowledge, a sensation that may be felt by the meanest as well as by the highest person in the state. When the com- mon people adopt good maxims, they adhere to them more steadily than those whom we call gentlemen. It is very rarely that corruption commences with the former: nay, they fre- quently derive from their imperfect light a stronger attach- ment to the established laws and customs.

The love of our country is conducive to a purity of morals, and the latter is again conducive to the former. The less we are able to satisfy our private passions, the more we abandon ourselves to those of a general nature. How comes it that monks are so fond of their order? It is owing to the very

40


THE SPIRIT OF LAWS 41

cause that renders the order insupportable. Their rule debars them from all those things by which the ordinary passions are fed ; there remains therefore only this passion for the very rule that torments them. The more austere it is, that is, the more it curbs their inclinations, the more force it gives to the only pas- sion left them.

3. — What is meant by a Love of the Republic in a Democracy

A love of the republic in a democracy is a love of the democ- racy ; as the latter is that of equality.

A love of the democracy is likewise that of frugality. Since every individual ought here to enjoy the same happiness and the same advantages, they should consequently taste the same pleasures and form the same hopes, which cannot be expected but from a general frugality.

The love of equality in a democracy limits ambition to the sole desire, to the sole happiness, of doing greater services to our country than the rest of our fellow-citizens. They cannot all render her equal services, but they all ought to serve her with equal alacrity. At our coming into the world, we con- tract an immense debt to our country, which we can never dis- charge.

Hence distinctions here arise from the principle of equality, even when it seems to be removed by signal services or superior abilities.

The love of frugality limits the desire of having to the study of procuring necessaries to our family, and superfluities to our country. Riches give a power which a citizen cannot use for himself, for then he would be no longer equal. They likewise procure pleasures which he ought not to enjoy, because these would be also repugnant to the equality.

Thus well-regulated democracies, by establishing domestic frugality, made way at the same time for public expenses, as was the case at Rome and Athens, when magnificence and pro- fusion arose from the very fund of frugality. And as religion commands us to have pure and unspotted hands when we make our offerings to the gods, the laws required a frugality of life to enable them to be liberal to our country.

The good sense and happiness of individuals depend greatly upon the mediocrity of their abilities and fortunes. Therefore,


42 MONTESQUIEU

as a republic, where the laws have placed many in a middling station, is composed of wise men, it will be wisely governed ; as it is composed of happy men, it will be extremely happy.

4. — In what Manner the Love of Equality and Frugality is

inspired

The love of equality and of a frugal economy is greatly ex- cited by equality and frugality themselves, in societies where both these virtues are established by law.

In monarchies and despotic governments, nobody aims at equality ; this does not so much as enter their thoughts ; they all aspire to superiority. People of the very lowest condition desire to emerge from their obscurity, only to lord it over their fellow-subjects.

It is the same with respect to frugality. To love it, we must practise and enjoy it. It is not those who are enervated by pleasure that are fond of a frugal life; were this natural and common, Alcibiades would never have been the admiration of the universe.^ Neither is it those who envy or admire the lux- ury of the great ; people that have present to their view none but rich men, or men miserable like themselves, detest their wretched condition, without loving or knowing the real term or point of misery.

A true maxim it is, therefore, that in order to love equality and frugality in a republic, these virtues must have been previ- ou,sly established by law.

5. — In what Manner the Lazvs establish Equality in a Democracy

Some ancient legislators, as Lycurgus and Romulus, made an equal division of lands. A settlement of this kind can never take place except upon the foundation of a new republic; or when the old one is so corrupt, and the minds of the people are so disposed, that the poor think themselves obliged to demand, and the rich obliged to consent to, a remedy of this nature.

If the legislator, in making a division of this kind, does not enact laws at the same time to support it, he forms only a

a Voltaire takes exception to this vail, since his standard of admiration is adulation of Alcibiades, and holds that filled by such men as Cato and Marcus Plutarch and Montesquieu do not pre- Aurelius. — Ed.


THE SPIRIT OF LAWS 43

temporary constitution ; inequality will break in where the laws have not precluded it, and the republic will be utterly undone.

Hence for the preservation of this equality it is absolutely necessary there should be some regulation in respect to wom- en's dowries donations, successions, testamentary settlements, and all other forms of contracting. For were we once allowed to dispose of our property to whom and how we pleased, the will of each individual would disturb the order of the funda- mental law.

Solon, by permitting the Athenians, upon failure of issue,& to leave their estates to whom they pleased, acted contrary to the ancient laws, by which the estates were ordered to continue in the family of the testator ;c and even contrary to his own laws, for by aboHshing debts he had aimed at equality.

The law which prohibited people having two inheritances^ was extremely well adapted for a democracy. It derived its origin from the equal distribution of lands and portions made to each citizen. The law would not permit a single man to possess more than a single portion.

From the same source arose those laws by which the next relative was ordered to marry the heiress. This law was given to the Jews after the like distribution. Plato,^ who grounds his laws on this division, made the same regulation which had been received as a law by the Athenians.

At Athens there was a law whose spirit, in my opinion, has not been hitherto rightly understood. It was lawful to marry a sister only by the father's side, but it was not permitted to espouse a sister by the same venter./^ This custom was orig- inally owing to republics, whose spirit would not permit that two portions of land, and consequently two inheritances, should devolve on the same person. A man who married his sister only by the father's side could inherit but one estate, namely, that of his father ; but by espousing his sister by the same ven- ter, it might happen that this sister's father, having no male

b Plutarch, " Life of Solon." custom began in the earliest times.

c Ibid. Thus Abrahami says of Sarah, "She is my

d Philolaus of Corinth made a law at sister, my father's daughter, but not my

Athens that the number of the portions mother's." The same reasons occasioned

of land and that of inheritances should the establishing the same law among dif-

be always the same. — Arist. " Polit.," ferent nations.

lib. II. cap. xii.*

e " Republic," book VIII. * Philolaus was legislator at Corinth,

f Cornelius Nepos, in pra:fat. This and not at Athens. — Ed.


44 MONTESQUIEU

issue, might leave her his estate, and consequently the brother who married her might be possessed of two.

Little will it avail to object to what Philo says,g that although the Athenians were allowed to marry a sister by the father's side, and not by the mother's, yet the contrary practice pre- vailed among the Lacedaemonians, who were permitted to espouse a sister by the mother's side, and not by the father's. For I find in Strabo^ that at Sparta, whenever a woman was married to her brother she had half his portion for her dowry. Plain is it that this second law was made in order to prevent the bad consequences of the former. That the estate belong- ing to the sister's family might not devolve on the brother's, they gave half the brother's estate to the sister for her dowry.

Seneca,* speaking of Silanus, who had married his sister,; says that the permission was limited at Athens, but general at Alexandria. In a monarchical government there was very little concern about any such thing as a division of estates.

Excellent was that law which, in order to maintain this divi- sion of lands in a democracy, ordained that a father who had several children should pitch upon one of them to inherit his portion,^ and leave the others to be adopted, to the end that the numbers of citizens might always be kept upon an equality with that of the divisions.

Phaleas of Chalcedon/ contrived a very extraordinary method of rendering all fortunes equal, in a republic where there was the greatest inequality. This was, that the rich should give fortunes with their daughters to the poor, but receive none themselves ; and that the poor should receive money for their daughters, instead of giving them fortunes. But I do not re- member that a regulation of this kind ever took place in any republic. It lays the citizens under such hard and oppressive conditions as would make them detest the very equality which they designed to establish. It is proper sometimes that the laws should not seem to tend so directly to the end they propose.

Though real equality be the very soul of a democracy, it is

g De specialibus legibus quae pertinent though not without indiscretion." — Cre-

ad praeceptor Decalogi. vier.

/t Lib. X.t k Plato has a law of this kind, lib. XL

t Athenis dimidium licet, Alexandriae "Leg."

totum. — Seneca, de morte Claudii." / Aristot, lib. II. cap. vii.

y Montesquieu is here accused of an

attempt at satire, since it is Tacitus who t Strabo speaks in this connection of

says, " Silanus lived in great friendship the laws of Crete, and not of those of

with his sister, though not criminally, al- the Lacedaemonians. — Barthelemy.


THE SPIRIT OF LAWS


45


so difficult to establish, that an extreme exactness in this re- spect would not be always convenient. Sufficient is it to es- tablish a census,^ which shall reduce or fix the differences to a certain point : it is afterwards the business of particular laws to level, as it were, the inequalities, by the duties laid upon the rich, and by the ease afforded to the poor. It is moderate riches alone that can give or suffer this sort of compensation ; for as to men of overgrown estates, everything which does not contribute to advance their power and honor is considered by them as an injury.

All inequality in democracies ought to be derived from the nature of the government, and even from the principle of equal- ity. For example, it may be apprehended that people who are obliged to live by their labor would be too much impoverished by a public employment, or neglect the duties attending it; that artisans would grow insolent, and that too great a num- ber of freemen would overpower the ancient citizens. In this case the equality^ in a democracy may be suppressed for the good of the state. But this is only an apparent equality ; for a man ruined by a public employment would be in a worse con- dition than his fellow-citizens; and this same man, being obliged to neglect his duty, would reduce the rest to a worse condition than himself, and so on.


6. — In what Manner the Laws ought to maintain Frugality m a

Democracy

It is not sufficient in a well-regulated democracy that the divisions of land be equal ; they ought also to be small, as was customary among the Romans. " God forbid," said Curius to his soldiers,^ " that a citizen should look upon that as a small piece of land which is sufficient to maintain him."

As equality of fortunes supports frugality, so the latter main- tains the former. These things, though in themselves different, are of such a nature as to be unable to subsist separately ; they


m Solon made four classes: the first, of those who had an income of 500 minas either in corn or liquid fruits; the sec- ond, of those who had 300, and were able to keep a horse; the third, of such as had only 200; the fourth, of all those who lived by their manual labor. — Plut., " Life of Solon."


n Solon excludes from public employ- ments all those of the fourth class.

o They insisted upon a larger division of the conquered lands.— Plutarch's " Moral Works, Lives of the ancient Kings and Commanders."


46 MONTESQUIEU

reciprocally act upon each other ; if one withdraws itself from a democracy, the other surely follows it.

True is it that when a democracy is founded on commerce, private people may acquire vast riches without a corruption of morals. This is because the spirit of commerce is naturally at- tended with that of frugality, economy, moderation, labor, prudence, tranquillity, order, and rule. So long as this spirit subsists, the riches it produces have no bad effect. The mis- chief is, when excessive wealth destroys the spirit of commerce, then it is that the inconveniences of inequality begin to be felt.

In order to support this spirit, commerce should be carried on by the principal citizens ; this should be their sole aim and study ; this the chief object of the laws : and these very laws, by dividing the estates of individuals in proportion to the in- crease of commerce, should set every poor citizen so far at his ease as to be able to work like the rest, and every wealthy citi- zen in such a mediocrity as to be obliged to take some pains either in preserving or acquiring a fortune.

It is an excellent law in a trading republic to make an equal division of the paternal estate among the children. The conse- quence of this is, that how great soever a fortune the father has made, his children, being not so rich as he, are induced to avoid luxury, and to work as he has done. I speak here only of trading republics ; as to those that have no commerce, the legislator must pursue quite different measures./'

In Greece there were two sorts of republics : the one military, like Sparta ; the other commercial, as Athens. In the former, the citizens were obHged to be idle; in the latter, endeavors were used to inspire them with the love of industry and labor. Solon made idleness a crime, and insisted that each citizen should give an account of his manner of getting a liveHhood. And, indeed, in a well-regulated democracy, where people's expenses should extend only to what is necessary, every one ought to have it ; for how should their wants be otherwise sup- plied ?

p In these, the portions or fortunes of women ought to be very much limited.


THE SPIRIT OF LAWS 47

7. — Other Methods of favoring the Principle of Democracy

An equal division of lands cannot be established in all democ- racies. There are some circumstances in which a regulation of this nature would be impracticable, dangerous, and even sub- versive of the constitution. We are not always obliged to pro- ceed to extremes. If it appears that this division of lands, which was designed to preserve the people's morals, does not suit the democracy, recourse must be had to other methods.

If a permanent body be established to serve as a rule and pat- tern of manners ; a senate, to which years, virtue, gravity, and eminent services procure admittance ; the senators, by being exposed to public view like the statues of the gods, must natu- rally inspire every family with sentiments of virtue.

Above all, this senate must steadily adhere to the ancient institutions, and mind that the people and the magistrates never swerve from them.

The preservation of the ancient customs is a very consider- able point in respect to manners. Since a corrupt people sel- dom perform any memorable actions, seldom establish socie- ties, build cities, or enact laws ; on the contrary, since most in- stitutions are derived from people whose manners are plain and simple, to keep up the ancient customs is the way to preserve the original purity of morals.

Besides, if by some revolution the state has happened to as- sume a new form, this seldom can be efifected without infinite pains and labor, and hardly ever by idle and debauched per- sons. Even those who had been the instruments of the revolu- tion were desirous it should be relished, which is difficult to compass without good laws. Hence it is that ancient institu- tions generally tend to reform the people's manners, and those of modern date to corrupt them. In the course of a long ad- ministration, the descent to vice is insensible ; but there is no reascending to virtue without making the most generous efforts.

It has been questioned whether the members of the senate we are speaking of ought to be for life or only chosen for a time. Doubtless they ought to be for life, as was the custom at Rome,? at Sparta,*" and even at Athens. For we must not con-

q The magistrates there were annual, r Lvcurgus, says Xenophon, " de Re-

and the senators for life. ' pub. Lacedaem.," ordained that the sena-


48 MONTESQUIEU

found the senate at Athens, which was a body that changed every three months, with the Areopagus, whose members, as standing patterns, were established for Hfe.

Let this be, therefore, a general maxim ; that in a senate de- signed to be a rule, and the depository, as it were, of manners, the members ought to be chosen for life : in a senate intended for the administration of afifairs, the members may be changed.

The spirit, said Aristotle, waxes old as well as the body. This reflection holds good only in regard to a single magistrate, but cannot be applied to a senatorial assembly.

At Athens, besides the Areopagus, there were guardians of the public morals, as well as of the laws.^ At Sparta, all the old men were censors. At Rome, the censorship was committed to two particular magistrates. As the senate watched over the people, the censors were to have an eye over the people and the senate. Their office was, to reform the corruptions of the republic, to stigmatize indolence, to censure neglects, and to correct mistakes ; as to flagrant crimes, these were left to the punishment of the laws.

That Roman law which required the accusations in cases of adultery to be public was admirably well calculated for pre- serving the purity of morals; it intimidated married women, as well as those who were to watch over their conduct.

Nothing contributes more to the preservation of morals than an extreme subordination of the young to the old. Thus they are both restrained, the former by their respect for those of advanced age, and the latter by their regard for themselves.

Nothing gives a greater force to the laws than a perfect sub- ordination between the citizens and the magistrate. " The great difiference which Lycurgus established between Sparta and the other cities," says Xenophon,^ " consists chiefly in the obedience the citizens show to their laws ; they run when the magistrate calls them. But at Athens a rich man would be highly displeased to be thought dependent on the magistrate."

Paternal authority is likewise of great use towards the preservation of morals. We have already observed, that in a republic there is not so coercive a force as in other govern-

tors should be chosen from amongst the aere of the former more honorable than old men, to the end that they rnight not the strength and vigor of the latter.


be neglected in the decline of Hfe; thus, ^ Even the Areopagus itself was sub-

making them judges of the courage ject to their censure, young people, he rendered the old t " Republic of the Lacedsemonians."


THE SPIRIT OF LAWS 49

ments. The laws must, therefore, endeavor to supply this de- fect by some means or other; and this is done by paternal authority.

Fathers at Rome had the power of life and death over their children w At Sparta, every father had a right to correct an- other man's child.

Paternal authority ended at Rome together with the republic. In monarchies, where such a purity of morals is not required, they are controlled by no other authority than that of the mag- istrates.

The Roman laws, which accustomed young people to de- pendence, established a long minority. Perhaps we are mis- taken in conforming to this custom ; there is no necessity for so much constraint in monarchies.

This very subordination in a republic might make it neces- sary for the father to continue in the possession of his children's fortune during life, as was the custom at Rome. But this is not agreeable to the spirit of monarchy.

8. — In what Manner the Lazvs should relate to the Principle of Government in an Aristocracy

If the people are virtuous in an aristocracy, they enjoy very nearly the same happiness as in a popular government, and the state grows powerful. But as a great share of virtue is very rare where men's fortunes are so unequal, the laws must tend as much as possible to infuse a spirit of moderation, and en- deavor to re-establish that equality which was necessarily re- moved by the constitution.

The spirit of moderation is what we call virtue in an aristoc- racy ; it supplies the place of the spirit of equality in a popular state.

As the pomp and splendor with which kings are surrounded form a part of their power, so modesty and simplicity of man- ners constitute the strength of an aristocratic nobility .'^^ When

u We may see in the Roman History very wise government, decided a dis-

how useful this power was to the re- pute between a noble Venetian and a

public. I shall give an instance, even in gentleman of Terra Firma in respect to

the time of its greatest corruption. Aulus precedency in a church, by declaring

Fulvius was set out on his journey in that out of Venice a noble Venetian

order to join Catiline; his father called had no pre-eminence over any other

him back, and put him to death. — Sal- citizen,

lust. " de bello Catil."*

V In our days the Venetians, who in * The instance is by no means isolated,

many respects may be said to have a See Dion. lib. XXXVII. 36.— Ed.

Vol. I.— 4


5© MONTESQUIEU

they affect no distinction, when they mix with the people, dress like them, and with them share all their pleasures, the people are apt to forget their subjection and weakness.

Every government has its nature and principle. An aris- tocracy must not therefore assume the nature and principle of monarchy ; which would be the case were the nobles to be in- vested with personal privileges distinct from those of their body ; privileges ought to be for the senate, and simple respect for the senators.

In aristocratic governments there are two principal sources of disorder: excessive inequality between the governors and the governed ; and the same inequality between the different members of the body that governs. From these two inequali- ties, hatreds and jealousies arise, which the laws ought ever to prevent or repress.

The first inequality is chiefly when the privileges of the no- bility are honorable only as they are ignominious to the people. Such was the law at Rome by which the patricians were forbid- den to marry plebeians ;w a law that had no other effect than to render the patricians on the one side more haughty, and on the other more odious. The reader may see what advantages the tribunes derived thence in their harangues.

This inequality occurs likewise when the condition of the citizens differs with regard to taxes, which may happen in four different ways : when the nobles assume the privilege of pay- ing none ; when they commit frauds to exempt themselves ;x^ when they engross the public money, under pretence of re- wards or appointments for their respective employments; in fine, when they render the common people tributary, and di- vide among their own body the profits arising from the several subsidies. This last case is very rare ; an aristocracy so insti- tuted would be the most intolerable of all governments.

While Rome inclined towards aristocracy, she avoided all these inconveniences. The magistrates never received any emoluments from their office. The chief men of the republic were taxed like the rest, nay, more heavily; and sometimes the taxes fell upon them alone. In fine, far from sharing among themselves the revenues of the state, all they could

w It was inserted by the decemvirs in x As in some aristocracies in our time;

the two last tables. See Dionys. Hali- nothing is more prejudicial to the gov- carn.y lib. X. ernment.


THE SPIRIT OF LAWS 51

draw from the public treasure, and all the wealth that fortune flung into their laps, they bestowed freely on the people, to be excused from accepting public honors.^

It is a fundamental maxim that largesses are pernicious to the people in a democracy, but salutary in an aristocratic gov- ernment. The former make them forget they are citizens, the latter bring them to a sense of it.

If the revenues of the state are not distributed among the people, they must be convinced at least of their being well ad- ministered : to feast their eyes with the public treasure is with them the same thing almost as enjoying it. The golden chain displayed at Venice, the riches exhibited at Rome in public tri- umphs, the treasures preserved in the temple of Saturn, were in reality the wealth of the people.

It is a very essential point in an aristocracy that the nobles themselves should not levy the taxes. The first order of the state in Rome never concerned themselves with it ; the levying of the taxes was committed to the second, and even this in process of time was attended with great inconveniences. In an aristocracy of this kind, where the nobles levied the taxes, the private people would be all at the discretion of persons in pubhc employments ; and there would be no such thing as a superior tribunal to check their power. The members appointed to re- move the abuses would rather enjoy them. The nobles would be like the princes of despotic governments, who confiscate whatever estates they please.

Soon would the profits hence arising be considered • as a patrimony, which avarice would enlarge at pleasure. The farms would be lowered, and the public revenues reduced to nothing. This is the reason that some governments, without having ever received any remarkable shock, have dwindled away to such a degree as not only their neighbors, but even their own subjects, have been surprised at it.

The laws should likewise forbid the nobles all kinds of com- merce : merchants of such unbounded credit would monopo- lize all to themselves. Commerce is a profession of people who are upon an equality; hence among despotic states the most miserable are those in which the prince applies himself to trade.

y See in Strabo, lib. XIV., in what manner the Rhodians behaved in this respect.


52 MONTESQUIEU

The laws of Venice debars the nobles from commerce, by which they might even innocently acquire exorbitant wealth.

The laws ought to employ the most effectual means for mak- ing the nobles do justice to the people. If they have not es- tablished a tribune, they ought to be a tribune themselves.

Every sort of asylum in opposition to the execution of the laws destroys aristocracy, and is soon succeeded by tyranny.

They ought always to mortify the lust of dominion. There should be either a temporary or perpetual magistrate to keep the nobles in awe, as the Ephori at Sparta and the State Inquisi- tors at Venice — magistrates subject to no formalities. This sort of government stands in need of the strongest springs: thus a mouth of stone& is open to every informer at Venice — a mouth to which one would be apt to give the appellation of tyranny.

These arbitrary magistrates in an aristocracy bear some analogy to the censorship in democracies,^ which of its own nature is equally independent. And, indeed, the censors ought to be subject to no inquiry in relation to their conduct during their office ; they should meet with a thorough confidence, and never be discouraged. In this respect the practice of the Romans deserved admiration; magistrates of all denomina- tions were accountable for their administration,^ except the censors.^

There are two very pernicious things in an artistocracy — ex- cess either of poverty, or of wealth in the nobility. To prevent their poverty, it is necessary, above all things, to oblige them to pay their debts in time. To moderate the excess of wealth, prudent and gradual regulations should be made ; but no con- fiscations, no agrarian laws, no expunging of debts ; these are productive of infinite mischief.

The laws ought to abolish the right of primogeniture among the nobles,/^ to the end that by a continual division of the in- heritances their fortunes may be always upon a level.

a Amelot de la Housaye, " Of the Gov- could not be troubled even by a censor;

ernment of Venice," part III. The each made his remark without taking

Claudian law forbade the senators to the opinion of his colleague; and when

have any ship at sea that held above it otherwise happened, the' censorship

forty bushels. — Liv., lib XXI, cap. Ixiii. was in a manner abolished.

b The informers throw their scrolls e At Athens the Logistae, who made

into it. all the magistrates accountable for their

c Their vote is secret; whereas at conduct, gave no account themselves. Rome it was public. — Ed. f It is so practised at Venice. — Am-

d See Livy, lib, XLIX. A censor elot de la Housaye, pp. 30 and 31.


THE SPIRIT OF LAWS


53


There should be no substitutions, no powers of redemption, no rights of Majorasgo, or adoption. The contrivances for perpetuating the grandeur of famihes in monarchical govern- ments ought never to be employed in aristocracies.^

When the laws have compassed the equality of families, the next thing is to preserve a proper harmony and union amongst them. The quarrels of the nobility ought to be quickly de- cided; otherwise the contests of individuals become those of families. Arbiters may terminate, or even prevent, the rise of disputes.

In fine, the laws must not favor the distinctions raised by vanity among families, under pretence that they are more noble or ancient than others. Pretences of this nature ought to be ranked among the weaknesses of private persons.

We have only to cast an eye upon Sparta; there we may see how the Ephori contrived to check the foibles of the kings,/» as well as those of the nobility and common people.

9. — In what Manner the Laws are in relation to their Principle in Monarchies

As honor is the principle of a monarchical government, the laws ought to be in relation to this principle.

They should endeavor to support the nobility, in respect to whom honor may be, in some measure, deemed both child and parent.

They should render the nobility hereditary, not as a boundary between the power of the prince and the weakness of the peo- ple, but as the link which connects them both.

In this government, substitutions which preserve the estates of families undivided are extremely useful, though in others not so proper.

Here the power of redemption is of service, as it restores to noble families the lands that had been alienated by the prodi- gality of a parent.

The land of the nobility ought to have privileges as well as their persons. The monarch's dignity is inseparable from that

gThe main design of some aristocra- /» These were not kings of Sparta, but

cies seems to be less the support of the pretenders. The true sovereigns were state than of their nobility. the Ephori, since royalty itself was sub-

servient to them.— Ed.


54 MONTESQUIEU

of his kingdom ; and the dignity of the nobleman from that of his fief.

All these privileges must be peculiar to the nobility, and in- communicable to the people, unless we intend to act contrary to the principle of government, and to diminish the power of the nobles together with that of the people.

Substitutions are a restraint to commerce, the power of re- demption produces an infinite number of processes ; every estate in land that is sold throughout the kingdom is in some measure without an owner for the space of a year. Privileges annexed to fiefs give a power very burdensome to those gov- ernments which tolerate them. These are the inconveniences of nobility — inconveniences, however, that vanish when con- fronted with its general utility : but when these privileges are communicated to the people, every principle of government is wantonly violated.

In monarchies a person may leave the bulk of his estate to one of his children — a permission improper in any other gov- ernment.

The laws ought to favor all kinds of commerce^ consistent with the constitution, to the end that the subjects may, without ruining themselves, be able to satisfy the continual cravings of the prince and his court.

They should establish some regulation that the manner of collecting the taxes may not be more burdensome than the taxes themselves.

The weight of duties produces labor, labor weariness, and weariness the spirit of indolence.


10. — Of the Expedition peculiar to the Executive Power in Monarchies

Great is the advantage which a monarchical government has over a republic : as the state is conducted by a single per- son, the executive power is thereby enabled to act with greater expedition. But as this expedition may degenerate into rapid- ity, the laws should use some contrivance to slacken it. They ought not only to favor the nature of each constitution, but

i It is tolerated only in the common Comm. et Mercatoribus," which is full people. See the third law Cod. " de of good sense.


THE SPIRIT OF LAWS 55

likewise to remedy the abuses that might result from this very nature.

Cardinal Richelieu; advises monarchs to permit no such things as societies or communities that raise difficulties upon every trifle. If this man's heart had not been bewitched with the love of despotic power, still these arbitrary notions would have filled his head.

The bodies intrusted with the deposition of the laws are never more obedient than when they proceed slowly, and use that reflection in the prince's afifairs which can scarcely be ex- pected from the ignorance of a court, or from the precipitation of its councils.^

What would have become of the finest monarchy in the world if the magistrates, by their delays, their complaints and en- treaties, had not checked the rapidity even of their princes' virtues, when these monarchs, consulting only the generous impulse of their minds, would fain have given a boundless re- ward to services performed with an unlimited courage and fidelity?

II. — Of the Excellence of a Monarchical Government

Monarchy has a great advantage over a despotic govern- ment. As it naturally requires there should be several orders or ranks of subjects, the state is more permanent, the constitu- tion more steady, and the person of him who governs more secure.

Cicero/ is of opinion that the establishing of the tribunes preserved the republic. " And, indeed," says he, " the violence of a headless people is more terrible. A chief or head is sen- sible that the affair depends upon himself, and, therefore, he thinks ; but the people in their impetuosity are ignorant of the danger into which they hurry themselves." This reflection may be applied to a despotic government, which is a people without tribunes ; and to a monarchy, where the people have some sort of tribunes.

Accordingly it is observable that in the commotions of a despotic government, the people, hurried away by their pas- sions, are apt to push things as far as they can go. The dis-

■ " Testam. polit." equi regium videtur. — Tacit. " Annal."

k Barbaris cunctatio servilis, statim ex- lib. V. cap. xxxii.

/ Lib. III. " de Leg." lo.


56 MONTESQUIEU

orders they commit are all extreme ; whereas in monarchies matters are seldom carried to excess. The chiefs are appre- hensive on their own account ; they are afraid of being aban- doned, and the intermediate dependent powers^ do not choose that the populace should have too much the upper hand. It rarely happens that the states of the kingdom are entirely cor- rupted : the prince adheres to these ; and the seditious, who have neither will nor hopes to subvert the government, have neither power nor will to dethrone the prince.

In these circumstances men of prudence and authority inter- fere; moderate measures are first proposed, then complied with, and things at length are redressed ; the laws resume their vigor, and command submission.

Thus all our histories are full of civil wars without revolu- tions, while the histories of despotic governments abound with revolutions without civil wars.

The writers of the history of the civil wars of some countries, even those who fomented them, sufficiently demonstrate the little foundation princes have to suspect the authority with which they invest particular bodies of men ; since, even under the unhappy circumstance of their errors, they sighed only after the laws and their duty ; and restrained, more than they were capable of inflaming, the impetuosity of the revolted.w

Cardinal Richelieu, reflecting perhaps that he had too much reduced the states of the kingdom, has recourse to the virtues of the prince and of his ministers for the support^ of govern- ment: but he requires so many things, that indeed there is none but an angel capable of such attention, such resolution and knowledge ; and scarcely can we flatter ourselves that we shall ever see such a prince and ministers while monarchy sub- sists.

As people who live under a good government are happier than those who without rule or leaders wander about the for- ests, so monarchs who live under the fundamental laws of their country are far happier than despotic princes who have nothing to regulate, neither their own passions nor those of their sub- jects.

m See the first note of book II. n Memoirs of Cardinal de Retz and

chap. 4. other histories.

o " Testam. polit."


THE SPIRIT OF LAWS 57

12. — The same Subject continued

Let us not look for magnanimity in despotic governments ;/> the prince cannot impart a greatness which he has not himself ; with him there is no such thing as glory.

It is in monarchies that we behold the subjects encircling the throne, and cheered by the irradiancy of the sovereign; there it is that each person filling, as it were, a larger space, is capable of exercising those virtues which adorn the soul, not with independence, but with true dignity and greatness.

13. — An Idea of Despotic Power

When the savages of Louisiana are desirous of fruit, they cut the tree to the root, and gather the fruit.9 This is an em- blem of despotic government.

14. — In what Manner the Laws are in relation to the Principles of Despotic Government

The principle of despotic government is fear; but a timid, ignorant, and faint-spirited people have no occasion for a great number of laws.

Everything ought to depend here on two or three ideas; hence there is no necessity that any new notions should be added. When we want to break a horse, we take care not to let him change his master, his lesson, or his pace. Thus an impression is made on his brain by two or three motions, and no more.

If a prince is shut up in a seraglio, he cannot leave his voluptuous abode without alarming those who keep him con- fined. They will not bear that his person and power should pass into other hands. He seldom, therefore, wages war in person, and hardly ventures to intrust the command to his generals.

A prince of this stamp, unaccustomed to resistance in his palace, is enraged to see his will opposed by armed force; hence he is generally governed by wrath or vengeance. Be- sides, he can have no notion of true glory. War, therefore, is

p Voltaire maintains that the con- and many others of despotic sway con- queror of Candia, the Vizier Ibrahim, tradict this statement.— Ed.

q " Edifying Letters," col. ii. p. 315.


58 MONTESQUIEU

carried on under such a government in its full natural fury, and less extent is given to the law of nations than in other states.

Such a prince has so many imperfections, that they are afraid to expose his natural stupidity to public view. He is concealed in his palace, and the people are ignorant of his situa- tion. It is lucky for him that the inhabitants of those countries need only the name of a prince to govern them.

When Charles XII was at Bender,*" he met with some op- position from the senate of Sweden ; upon which he wrote word home that he would send one of his boots to command them. This boot would have governed like a despotic prince.

If the prince is a prisoner, he is supposed to be dead, and another mounts the throne. The treaties made by the prisoner are void, his successor will not ratify them ; and, indeed, as he is the law, the state, and the prince : when he is no longer a prince, he is nothing : were he not therefore deemed to be deceased, the state would be subverted.

One thing which chiefly determined the Turks to conclude a separate peace with Peter I was the Muscovites telling the Vizier that in Sweden another prince had been placed upon the throne.-y

The preservation of the state is only the preservation of the prince, or rather of the palace where he is confined. Whatever does not directly menace this palace or the capital makes no impression on ignorant, proud, and prejudiced minds ; and as for the concatenation of events, they are unable to trace, to foresee, or even to conceive it. Politics, with its several springs and laws, must here be very much limited ; the political govern- ment is as simple as the civil.'

The whole is reduced to reconciling the political and civil administration to the domestic government, the officers of state to those of the seragHo.

Such a state is happiest when it can look upon itself as the only one in the world, when it is environed with deserts, and separated from those people whom they call Barbarians. Since it cannot depend on the militia, it is proper it should destroy a part of itself.

r The king was not then at Bender, t According to Sir John Chardin, there

but at Demotica.— D. is no council of state in Persia.*

s Continuation of Puffendorf's intro-

duction to the " History of Europe," in * See Chardin, chap. xi. the article of Sweden, chap. x.


THE SPIRIT OF LAWS


59


As fear is the principle of despotic government, its end is tranquillity ; but this tranquillity cannot be called a peace : no, it is only the silence of those towns which the enemy is ready to invade.

Since strength does not lie in the state, but in the army that founded it, in order to defend the state the army must be pre- served, how formidable soever to the prince. How, then, can we reconcile the security of the government to that of the prince's person ?

Observe how industriously the Russian government en- deavors to temper its arbitrary power, which it finds more burdensome than the people themselves. They have broken their numerous guards, mitigated criminal punishments, erected tribunals, entered into a knowledge of the laws, and instructed the people. But there are particular causes that will probably once more involve them in the very misery which they now endeavor to avoid.

In those states religion has more influence than anywhere else; it is fear added to fear. In Mahommedan countries, it is partly from their religion that the people derive the surprising veneration they have for their prince.

It is religion that amends in some measures the Turkish con- stitution. The subjects, who have no attachment of honor to the glory and grandeur of the state, are connected with it by the force and principle of religion.

Of all despotic governments there is none that labors more under its own weight than that wherein the prince declares himself proprietor of all the lands, and heir to all his subjects. Hence the neglect of agriculture arises ; and if the prince inter- meddles likewise in trade, all manner of industry is ruined.

Under this sort of government, nothing is repaired or im- proved.w Houses are built only for the necessity of habitation ; there is no digging of ditches or planting of trees ; everything is drawn from, but nothing restored to, the earth ; the ground lies untilled, and the whole country becomes a desert.

Is it to be imagined that the laws which abolish the property of land and the succession of estates will diminish the avarice and cupidity of the great? By no means. They will rather stimulate this cupidity and avarice. The great men will be

u See Ricaut, " State of the Ottoman Empire," p. 196.


6o MONTESQUIEU

prompted to use a thousand oppressive methods, imagining they have no other property than the gold and silver which they are able to seize upon by violence, or to conceal.

To prevent, therefore, the utter ruin of the state, the avidity of the prince ought to be moderated by some established cus- tom. Thus, in Turkey, the sovereign is satisfied with the right of three per cent, on the value of inheritances.^ But as he gives the greatest part of the lands to his soldiery, and disposes of them as he pleases ; as he seizes on all the inheritances of the officers of the empire at their decease ; as he has the property of the possessions of those who die without issue, and the daughters have only the usufruct: it thence follows that the greatest part of the estates of the country are held in a pre- carious manner.

By the laws of Bantam,w the king seizes on the whole in- heritance, even wife, children, and habitation. In order to elude the cruellest part of this law, they are obliged to marry their children at eight, nine, or ten years of age, and some- times younger, to the end that they may not be a wretched part of the father's succession.

In countries where there are no fundamental laws, the succes- sion to the empire cannot be fixed. The crown is then elective, and the right of electing is in the prince, who names a successor either of his own or of some other family. In vain would it be to establish here the succession of the eldest son ; the prince might always choose another. The successor is declared by the prince himself, or by a civil war. Hence a despotic state is, upon another account, more liable than a monarchical govern- ment to dissolution.

As every prince of the royal family is held equally capable of being chosen, hence it follows that the prince who ascends the throne immediately strangles his brothers, as in Turkey; or puts out their eyes, as in Persia ;^ or bereaves them of their understanding, as in the Mogul's country ; or if these precau- tions are not used, as in Morocco, the vacancy of the throne is always attended with the horrors of a civil war.

V See concerning the inheritances of East India Company," torn. i. The law

the Turks, Ancient and Modern Sparta. of Pegu is less cruel: if there happen to

See also Ricaut on the Ottoman empire. be children, the king succeeds only to

w " Collection of Voyages that con- two-thirds. Ibid. torn. iii. p. i.

tributed to the establishment of the x Chardin, chap. i. and iii.


THE SPIRIT OF LAWS 6i

By the constitution of Russian the Czar may choose whom he has a mind for his successor, whether of his own or of a strange family. Such a settlement produces a thousand revolu- tions, and renders the throne as tottering as the succession is arbitrary. The right of succession being one of those things which are of most importance to the people to know, the best is that which most sensibly strikes them. Such as a certain order of birth. A settlement of this kind puts a stop to in- trigues, and stifles ambition ; the mind of a weak prince is no longer enslaved, nor is he made to speak his will as he is just expiring.

When the succession is established by a fundamental law, only one prince is the successor, and his brothers have neither a real nor apparent right to dispute the crown with him. They can neither pretend to nor take any advantage of the will of a father. There is then no more occasion to confine or kill the king's brother than any other subject.

But in despotic governments, where the prince's brothers are equally his slaves and his rivals, prudence requires that their persons be secured; especially in Mahommedan countries, where religion considers victory or success as a divine decision in their favor ; so that they have no such thing as a monarch de jure, but only de facto.

There is a far greater incentive to ambition in countries where the princes of the blood are sensible that if they do not ascend the throne they must be either imprisoned or put to death, than amongst us, where they are placed in such a sta- tion as may satisfy, if not their ambition, at least their moderate desires.

The princes of despotic governments have ever perverted the use of marriage. They generally take a great many wives, es- pecially in that part of the world where absolute power is in some measure naturalized, namely, Asia. Hence they come to have such a multitude of children that they can hardly have any great afifection for them, nor the children for one another.

The reigning family resembles the state ; it is too weak itself, and its head too powerful ; it seems very numerous and exten- sive, and yet is suddenly extinct. Artaxerxes« put all his chil- dren to death for conspiring against him. It is not at all prob-

y See the different constitutions, especially that of 1722. a See Justin.


62 MONTESQUIEU

able that fifty children would conspire against their father, and much less that this conspiracy would be owing to his having refused to resign his concubine to his eldest son. It is more natural to believe that the whole was an intrigue of those ori- ental seraglios, where fraud, treachery, and deceit reign in si- lence and darkness ; and where an old prince, grown every day more infirm, is the first prisoner of the palace.

After what has been said, one would imagine that human nature should perpetually rise up against despotism. But, not- withstanding the love of liberty, so natural to mankind, not- withstanding their innate detestation of force and violence, most nations are subject to this very government. This is easily accounted for. To form a moderate government, it is necessary to combine the several powers ; to regulate, temper, and set them in motion ; to give, as it were, ballast to one, in order to enable it to counterpoise the other. This is a master- piece of legislation, rarely produced by hazard, and seldom attained by prudence. On the contrary, a despotic government offers itself, as it were, at first sight ; it is uniform throughout ; and as passions only are requisite to establish it, this is what every capacity may reach.

15. — The same Subject continued

In warm climates, where despotic power generally prevails, the passions disclose themselves earlier, and are sooner extin- guished -p the understanding is sooner ripened ; they are less in danger of squandering their fortunes ; there is less facility of distinguishing themselves in the world ; less communica- tion between young people, who are confined at home ; they marry much earlier, and consequently may be sooner of age than in our European climates. In Turkey they are of age at fifteen.^

They have no such thing as a cession of goods ; in a gov- ernment where there is no fixed property, people depend rather on the person than on his estate.

The cession of goods is naturally admitted in moderate gov- ernments,c? but especially in republics, because of the greater

h See the book of laws as relative to c Laquilletiere, " Ancient and Modern

the nature of the climate, Spirit of Laws, Sparta," p. 463.

XIV. d The same may be said of composi-

tions in regard to fair bankrupts.


THE SPIRIT OF LAWS 63

confidence usually placed in the probity of the citizens, and the lenity and moderation arising from a form of government which every subject seems to have preferred to all others.

Had the legislators of the Roman republic established the cession of goods/ they never would have been exposed to so many seditions and civil discords ; neither would they have experienced the danger of the evils, nor the inconvenience of the remedies.

Poverty and the precariousness of property in a despotic state render usury natural, each person raising the value of his money in proportion to the danger he sees in lending it. Mis- ery, therefore, pours from all parts into those unhappy coun- tries ; they are bereft of everything, even of the resource of borrowing.

Hence it is that a merchant under this government is unable to carry on an extensive commerce ; he lives from hand to mouth ; and were he to encumber himself with a large quan- tity of merchandise, he would lose more by the exorbitant in- terest he must give for money than he could possibly get by the goods. Hence they have no laws here relating to commerce ; they are all reduced to what is called the bare police.

A government cannot be unjust without having hands to exercise its injustice. Now, it is impossible but that these hands will be grasping for themselves. The embezzling of the public money is therefore natural in despotic states.

As this is a common crime under such a government, con- fiscations are very useful. By these the people are eased ; the money drawn by this method being a considerable tribute which could hardly be raised on the exhausted subject: neither is there in those countries any one family which the prince would be glad to preserve.

In moderate governments it is quite a different thing. Con- fiscations would render property uncertain, would strip inno- cent children, would destroy a whole family, instead of punish- ing a single criminal. In republics they would be attended with the mischief of subverting equality, which is the very soul of this government, by depriving a citizen of his necessary sub- sistence.

e There was no such establishment prison and from an ignominious division made till the Julian law, De ccssione of their goods, bonorum; which preserved them from


64 MONTESQUIEU

There is a Roman \2Lwf against confiscations, except in the case of crimen majestatis, or high treason of the most heinous nature. It would be a prudent thing to follow the spirit of this law, and to limit confiscations to particular crimes.^ In coun- tries where a local custom has rendered real estates alienable, Bodin very justly observes that confiscations should extend only to such as are purchased or acquired./^

1 6. — Of the Communication of Power

In a despotic government the power is communicated entire to the person intrusted with it. The vizier himself is the des- potic prince ; and each particular officer is the vizier. In mon- archies the power is less immediately applied, being tempered by the monarch as he gives it.« He makes such a distribution of his authority as never to communicate a part of it without reserving a greater share to himself.

Hence in monarchies the governors of towns are not so de- pendent on the governor of the province as not to be still more so on the prince; and the private officers or military bodies are not so far subject to their general as not to owe still a greater subjection to their sovereign.

In most monarchies it has been wisely regulated that those who have an extensive command should not belong to any military corps ; so that as they have no authority but through the prince's pleasure, and as they may be employed or not, they are in some measure in the service, and in some measure out of it.

This is incompatible with a despotic government. For if those who are not actually employed were still invested with privileges and titles, the consequence must be that there would be men in the state who might be said to be great of themselves ; a thing directly opposite to the nature of this government.

Were the governor of a town independent of the pasha, ex- pedients would be daily necessary to make them agree ; which is highly absurd in a despotic state. Besides, if a particular governor should refuse to obey, how could the other answer for his province with his head ?

f Authentica bona damnatorum. — Cod. h Book V. chap. iii.

de bon damn. t " Ut esse Phoebi dulcius lumen solet

g They seem to have been too fond of Jamjam cadentis " .

confiscations in the republic of Athens. — Sen. " Trias," act v. sc. i.


THE SPIRIT OF LAWS 65

In this kind of government, authority must ever be waver- ing ; nor is that of the lowest magistrate more steady than that of the despotic prince. Under moderate governments, the law is prudent in all its parts, and perfectly well known, so that even the pettiest magistrates are capable of following it. But in a despotic state, where the prince's will is the law, though the prince were wise, yet how could the magistrate follow a will he does not know ? He must certainly follow his own.

Again, as the law is only the prince's will, and as the prince can only will what he knows, the consequence is, that there are an infinite number of people who must will for him, and make their wills keep pace with his.

In line, as the law is the momentary will of the prince, it is necessary that those who will for him should follow his sud- den manner of willing.

17. — Of Presents

It is a received custom in despotic countries never to ad- dress any superior whomsoever, not excepting their kings, without making them a present./ The Mogul^ never receives the petitions of his subjects if they come with empty hands. These princes spoil even their own favors.

But thus it must ever be in a government where no man is a citizen ; where they have all a notion that a superior is under no obligation to an inferior ; where men imagine them- selves bound by no other tie than the chastisements inflicted by one party upon another ; where, in fine, there is very little to do, and where the people have seldom an occasion of pre- senting themselves before the great, of offering their petitions, and much less their complaints.

In a republic, presents are odious, because virtue stands in no need of them. In monarchies, honor is a much stronger incentive than presents. But in a despotic government, where there is neither honor nor virtue, people cannot be determined to act but through hope of the conveniences of life.

It is in conformity with republican ideas that Plato/ ordered those who received presents for doing their duty, to be pun-

y Chardin, chap. xi. tributed to the establishment of the

k " Collection of Voyages that con- East India Company," torn. i. p. 8q,

/ Book XII. of Laws.

Vol. I.-5


66 MONTESQUIEU

ished with death. " They must not take presents," says he, " neither for good nor for evil actions."

A very bad law was that among the Romans^* which gave the magistrates leave to accept small presents,^ provided they did not exceed one hundred crowns in the whole year. They who receive nothing expect nothing ; they who receive a little soon covet more, till at length their desires swell to an exorbitant height. Besides, it is much easier to convict a man who knows himself obliged to accept no present at all, and yet will accept something, than a person who takes more when he ought to take less, and who always finds pretexts, excuses, and plausible reasons in justification of his conduct.


1 8. — Of Rewards conferred by the Sovereign

In despotic governments, where, as we have already ob- served, the principal motive of action is the hope of the con- veniences of life, the prince who confers rewards has nothing to bestow but money. In monarchies, where honor alone pre- dominates, the prince's rewards would consist only of marks of distinction, if the distinctions established by honor were not attended with luxury, which necessarily brings on its wants: the prince, therefore, is obliged to confer such honors as lead to wealth. But in a republic where virtue reigns — a motive self-sufficient, and which excludes all others — the recompenses of the state consist only of public attestations of this virtue.

It is a general rule, that great rewards in monarchies and re- publics are a sign of their decline ; because they are a proof of their principles being corrupted, and that the idea of honor has no longer the same force in a monarchy, nor the title of citizen the same weight in a republic.

The very worst Roman emperors were those who were most profuse in their largesses ; for example, Caligula, Claudius, Nero, Otho, Vitellius, Commodus, Heliogabalus, and Cara- calla. The best, as Augustus, Vespasian, Antoninus Pius, Mar- cus Aurelius, and Pertinax, were economists. Under good em- perors the state resumed its principles ; all other treasures were supplied by that of honor.

m Leg. 5, sec. ad leg. Jul. repet. n Mimuscula.


THE SPIRIT OF LAWS 67

19. — New Consequences of the Principles of the three Governments

I cannot conclude this book without making some appHca- tions of my three principles.

1st Question.'] It is a question whether the laws ought to oblige a subject to accept a public employment. My opinion is that they ought in a republic, but not in a monarchical gov- ernment. In the former, public employments are attestations of virtue, depositions with which a citizen is intrusted by his country, for whose sake alone he ought to live, to act, and to think ; consequently he cannot refuse them.o In the latter, pub- lic offices are testimonials of honor ; now such is the capricious- ness of honor that it chooses to accept none of these testimonies but when and in what manner it pleases.

The late King of Sardinia/' inflicted punishments on his sub- jects who refused the dignities and public offices of the state. In this he unknowingly followed republican ideas: but his method of governing in other respects sufficiently proves that this was not his intention.

2d Question.] Secondly, it is questioned whether a subject should be obliged to accept a post in the army inferior to that which he held before. Among tlie Romans it was usual to see a captain serve the next year under his lieutenant.? This is be- cause virtue in republics requires a continual sacrifice of our persons and of our repugnances for the good of the state. But in monarchies, honor, true or false, will never bear with what it calls degrading itself.

In despotic governments, where honor, posts, and ranks are equally abused, they indiscriminately make a prince a scullion, and a scullion a prince.

2,d Question.] Thirdly, it may be inquired, whether civil and military employments should be conferred on the same person. In republics I think they should be joined, but in monarchies separated. In the former it would be extremely dangerous to

Plato, in his " Republic," book q Some centurions having appealed to VIII., ranks these refusals among the the people for the employments which marks of the corruption of a republic. they had before enjoyed, " It is just, my In his " Laws," book VI., he orders comrades," said a centurion, " that you them to be punished by a fine. At should look upon every post as honor- Venice they are punished with banish- able in which you have an opportunity ™ent. of defending the republic." — Livy, dec.

p Victor Amadeus. S, lib. XLII.


68 MONTESQUIEU

make the profession of arms a particular state, distinct from that of civil functions; and in the latter, no less dangerous would it be to confer these two employments on the same per- son.

In republics a person takes up arms only with a view to de- fend his country and its laws ; it is because he is a citizen he makes himself for a while a soldier. Were these two distinct states, the person who under arms thinks himself a citizen would soon be made sensible he is only a soldier.

In monarchies, they whose condition engages them in the profession of arms have nothing but glory, or at least honor or fortune, in view. To men, therefore, like these, the' prince should never give any civil employments; on the contrary, they ought to be checked by the civil magistrate, that the same persons may not have at the same time the confidence of the people and the power to abuse it.^

We have only to cast an eye on a nation that may be justly called a republic, disguised under the form of monarchy, and we shall see how jealous they are of making a separate order of the profession of arms, and how the military state is con- stantly allied with that of the citizen, and even sometimes of the magistrate, to the end that these qualities may be a pledge for their country, which should never be forgotten.

The division of civil and military employments, made by the Romans after the extinction of the republic, was not an arbitrary thing. It was a consequence of the change which happened in the constitution of Rome ; it was natural to a monarchical government ; and what was only commenced under Augustus,-? succeeding emperors^ were obHged to finish, in order to temper the military government.

Procopius, therefore, the competitor of Valens the emperor, was very much to blame when, conferring the proconsular dig- nity" upon Hormisdas, a prince of the blood royal of Persia, he restored to this magistracy the military command of which it had been formerly possessed; unless, indeed, he had very particular reasons for so doing. A person that aspires to the

r " Ne imperium ad optimos nobilium consuls, and governors of the privilege

transferretur, Senatum militia vetuit of vi^earing arms. — Die, lib. LIII.

Gallienus, etiam adire exercitum." — / Constantine. See Zozimus, lib. II.

Aurelius Victor, " de virii illustribus." u Ammianus Marcellinus, lib. XXVI.,

^ Augustus deprived the senators, pro- " More veterum et bella recturo."


THE SPIRIT OF LAWS 69

sovereignty concerns himself less about what is serviceable to the state than what is likely to promote his own interest.

4th Question.] Fourthly, it is a question whether public em- ployments should be sold. They ought not, I think, in despotic governments, where the subjects must be instantaneously placed or displaced by the prince.

But in monarchies this custom is not at all improper, by reason it is an inducement to engage in that as a family employ- ment^ which would not be undertaken through a motive of virtue ; it fixes likewise every one in his duty, and renders the several orders of the kingdom more permanent. Suidas^^ very justly observes, that Anastasius had changed the empire into a kind of aristocracy, by selling all public employments.

Plato^ cannot bear with this prostitution : " This is ex- actly," says he, " as if a person were to be made a mariner or pilot of a ship, for his money. Is it possible that this rule should be bad in every other employment of life, and hold good only in the administration of a republic?" But Plato speaks of a republic founded on virtue, and we of a monarchy. Now, in monarchies (where, though there were no such thing as a reg- ular sale of public offices, still the indigence and avidity of the courtier would equally prompt him to expose them to sale) chance will furnish better subjects than the prince's choice. In short, the method of attaining to honors through riches in- spires and cherishes industry jj a thing extremely wanting in this kind of government.

^th Question.] The fifth question is, in what kind of govern- ment censors are necessary. My answer is, that they are neces- sary in a republic, where the principle of government is virtue. We must not imagine that criminal actions only are destructive of virtue ; it is destroyed also by omissions, by neglects, by a certain coolness in the love of our country, by bad examples, and by the seeds of corruption : whatever does not openly vio- late but elude the laws, does not subvert but weaken them, ought to fall under the inquiry and correction of the censors.

V Voltaire exclaims, " Let us lament w Fragments taken from the embassies

that Montesquieu has defamed his work of Constantine Porphyrogenitus. by such paradoxes. But we can forgive x " Repub." lib. VIII.

him: his uncle purchased the office of y We see the laziness of Spain, where

President in the country, and left it to all public employments are given away, him. After all we find the man. No one of us is without his weak point."— Ed.


70 MONTESQUIEU

We are surprised at the punishment of the Areopagite for kiUing a sparrow which, to escape the pursuit of a hawk, had taken shelter in his bosom. Surprised we are also that an Areopagite should put his son to death for putting out the eyes of a little bird. But let us reflect, that the question here does not relate to a criminal sentence, but to a judgment concern- ing manners in a republic founded on manners.

In monarchies there should be no censors ; the former are founded on honor, and the nature of honor is to have the whole world for its censor. Every man who fails in this article is subject to the reproaches even of those who are void of honor.

Here the censors would be spoiled by the very people whom they ought to correct : they could not prevail against the cor- ruption of a monarchy; the corruption rather would be too strong against them.

Hence it is obvious that there ought to be no censors in despotic governments. The example of China seems to dero- gate from this rule ; but we shall see, in the course of this work, the particular reasons of that institution.


BOOK VI

CONSEQUENCES OF THE PRINCIPLES OF DIF- FERENT GOVERNMENTS WITH RESPECT TO THE SIMPLICITY OF CIVIL AND CRIMINAL LAWS, THE FORM OF JUDGMENTS, AND THE INFLICTING OF PUNISHMENTS

I. — Of the Simplicity of Civil Laws in different Governments

MONARCHIES do not permit of so great a simplicity of laws as despotic governments. For in monarchies there must be courts of judicature; these must give their decisions ; the decisions must be preserved and learned, that we may judge in the same manner to-day as yesterday, and that the lives and property of the citizens may be as cer- tain and fixed as the very constitution of the state.

In monarchies, the administration of justice, which decides not only 'in whatever belongs to life and property, but like- wise to honor, demands very scrupulous inquiries. The deli- cacy of the judge increases in proportion to the increase of his trust, and of the importance of the interests on which he de- termines.

We must not, therefore, be surprised to find so many rules, restrictions, and extensions in the laws of those countries — rules that multiply the particular cases, and seem to make of reason itself an art.

The difference of rank, birth, and condition established in monarchical governments is frequently attended with distinc- tions in the nature of property; and the laws relating to the constitution of this government may augment the number of these distinctions. Hence, among us goods are divided into real estates, purchases, dowries, paraphernalia, paternal and maternal inheritances; movables of different kinds; estates held in fee-simple, or in tail; acquired by descent or convey-

71



72 MONTESQUIEU

ance; allodial, or held by socage; ground rents; or annui- ties. Each sort of goods is subject to particular rules, which must be complied with in the disposal of them. These things must needs diminish the simplicity of the laws.

In our governments the fiefs have become hereditary. It was necessary that the nobility should have a fixed property, that is, the fief should have a certain consistency, to the end that the proprietor might be always in a capacity of serving the prince. This must have been productive of great varieties; for in- stance, there are countries where fiefs could not be divided among the brothers; in others, the younger bro:hers may be allowed a more generous subsistence.

The monarch who knows each of his provinces may estab- lish different laws or tolerate different customs. But as the despotic prince knows nothing, and can attend to nothing, he must take general measures, and govern by a rigid and in- flexible will, which throughout his whole dominions produces the same effect ; in short, everything bends under his feet.

ki proportion as the decisions of the courts of judicature are multiplied in monarchies, the law is loaded with decrees that sometimes contradict one another; either because succeeding judges are of a different way of thinking, or because the same causes are sometimes well, and at other timesvill, defended; or, in fine, by reason of an infinite number of abuses, to which all human regulations are liable. This is a necessary evil, which the legislator redresses from time to time, as contrary even to the spirit of moderate governments. For when people are obliged to have recourse to courts of judicature, this should come from the nature of the constitution, and not from the con- tradiction or uncertainty of the law.

In governments where there are necessary distinctions of persons, there must likewise be privileges. This also dimin- ishes the simplicity, and creates a thousand exceptions.

One of the privileges least burdensome to society, and es- pecially to him who confers it, is that of pleading in one court in preference to another. Here new difficulties arise, when it becomes a question before which court we shall plead.

Far different is the case of the people undei* despotic govern- ments. In those countries I can see nothing that the legislator is able to decree, or the magistrate to judge. As the lands be-


THE SPIRIT OF LAWS 73

long to the prince, it follows that there are scarcely any civil laws in regard to landed property. From the right the sove- reign has to successions, it follows, likewise, that there are none relating to inheritances. The monopolies established by the prince for himself in some countries render all sorts of commer- cial laws quite useless. The marriages which they usually con- tract with female slaves are the cause that there are scarcely any civil laws relating to dowries, or to the particular advantage of married women. From the prodigious multitude of slaves, it follows, likewise, that there are very few who have any such thing as a will of their own, and of course are answerable for their conduct before a judge. Most moral actions, that are only in consequence of a father's, a husband's, or a master's will, are regulated by them, and not by the magistrates.

I forgot to observe that as what we call honor is a thing hardly known in those countries, the several difficulties relat- ing to this article, though of such importance with us, are with them quite out of the question. Despotic power is self-suffi- cient ; round it there is an absolute vacuum. Hence it is that when travellers favor us with the description of countries where arbitrary sway prevails, they seldom make mention of civil laws.ct

All occasions, therefore, of wrangling and law-suits are here removed. And to this in part is it owing that litigious people in those countries are so roughly handled. As the injustice of their demand is neither screened, palliated, nor protected by an infinite number of laws, of course it is immediately discovered.

2. — Of the Simplicity of Criminal Laws in different Governments

We hear it generally said that justice ought to be adminis- tered with us as in Turkey. Is it possible, then, that the most ignorant of all nations should be the most clear-sighted on a point which it most behooves mankind to know ?

If we examine the set forms of justice with respect to the trouble the subject undergoes in recovering his property or

a In MazuHpatam it could never be regulated in their decisions by certain

found out that there was such a thing customs. The Vedas and such books

as a written law. See the " Collection of do not contain civil laws,^ but religious

yoyages that contributed to the estab- precepts. See " Lettres edifiantes," 14,

lishment of the East India Company," collect. torn. iv. part I. p. 391. The Indians are


74 MONTESQUIEU

in obtaining satisfaction for an injury or afifront, wc shall find them doubtless too numerous : but if we consider them in the relation they bear to the liberty and security of every individual, we shall often find them too few; and be convinced that the trouble, expense, delays, and even the very dangers of our judiciary proceedings are the price that each subject pays for his liberty.

In Turkey, where little regard is shown to the honor, life, or estate of the subject, all causes are speedily decided. The method of determining them is a matter of indifference, pro- vided they be determined. The pasha, after a quick hearing, orders which party he pleases to be bastinadoed, and then sends theni about their business.

Here it would be dangerous to be of a litigious disposition ; this supposes a strong desire of obtaining justice, a settled aver- sion, an active mind, and a steadiness in pursuing one's point. All this should be avoided in a government where fear ought to be the only prevailing sentiment, and in which popular dis- turbances are frequently attended with sudden and unforeseen revolutions. Here every man ought to know that the magis- trate must not hear his name mentioned, and that his security depends entirely on his being reduced to a kind of annihilation.

But in moderate governments, where the life of the meanest subject is deemed precious, no man is stripped of his honor or property until after a long inquiry ; and no man is bereft of life till his very country has attacked him — an attack that is never made without leaving him all possible means of making his defence.

Hence it is that when a person renders himself absolute,^ he immediately thinks of reducing the number of laws. In a gov- ernment thus constituted they are more affected with particular inconveniences than with the liberty of the subject, which is very little minded.

In republics, it is plain that as many formalities at least are necessary as in monarchies. In both governments they in- crease in proportion to the value which is set on the honor, fortune, liberty, and life of the subject.

In republican governments, men are all equal; equal they are also in despotic governments : in the former, because they are everything ; in the latter, because they are nothing.

b Caesar, Cromwell, and many others.


THE SPIRIT OF LAWS 75


3. — In what Governments and in what Cases the Judges ought to determine according to the express Letter of the Law

The nearer a government approaches towards a republic, the more the manner of judging becomes settled and fixed; hence it was a fault in the Republic of Sparta for the Ephori to pass such arbitrary judgments without having any laws to direct them. The First Consuls at Rome pronounced sentence in the same manner as the Ephori; but the inconvenience of this proceeding was soon felt, and they were obliged to have recourse to express and determinate laws.

In despotic governments there are no laws ; the judge him- self is his own rule. There are laws in monarchies ; and where these are explicit, the judge conforms to them ; where they are otherwise, he endeavors to investigate their spirit. In republics, the very nature of the constitution requires the judges to follow the letter of the law ; otherwise the law might be explained to the prejudice of every citizen, in cases where their honor, prop- erty, or life is concerned.

At Rome the judges had no more to do than to declare that the persons accused were guilty of a particular crime, and then the punishment was found in the laws, as may be seen in divers laws still extant. In England the jury give their verdict whether the fact brought under their cognizance be proved or not; if it be proved, the judge pronounces the punishment in- flicted by the law, and for this he needs only to open his eyes.

4. — Of the Manner of passing Judgment

Hence arises the dififierent modes of passing judgment. In monarchies the judges choose the method of arbitration ; they deliberate together, they communicate their sentiments for the sake of unanimity; they moderate their opinions, in order to render them conformable to those of others: and the lesser number are obliged to give way to the majority. But this is not agreeable to the nature of a republic. At Rome, and in the cities of Greece, the judges never entered into a consul- tation; each gave his opinion in one of these three ways: I absolve, I condemn. It does not appear clear to me : c this was

cNon liquet.


76 MONTESQUIEU

because the people judged, or were supposed to judge. But the people are far from being civilians; all these restrictions and methods of arbitration are above their reach; they must have only one object and one single fact set before them ; and then they have only to see whether they ought to condemn, to acquit, or to suspend their judgment.

The Romans introduced set forms of actions,flJ after the ex- ample of the Greeks, and established a rule that each cause should be directed by its proper action. This was necessary in their manner of judging; it was necessary to fix the state of the question, that the people might have it always before their eyes. Otherwise, in a long process, this state of the question would continually change, and be no longer distinguished.

Hence it followed that the Roman judges granted only the simple demand, without making any addition, deduction, or limitation. But the prcetors devised other forms of actions, which were called ex bona Me, in which the method of pro- nouncing sentence was left to the disposition of the judge. This was more agreeable to the spirit of monarchy. Hence it is a saying among the French lawyers, " that in France e all actions are ex bona Me."

5. — In what Governments the Sovereign may be Judge

Machiavel f attributes the loss of the liberty of Florence to the people's not judging in a body in cases of high treason against themselves, as was customary at Rome. For this pur- pose they had eight judges : " but the few," says Machiavel, " are corrupted by a few." I should willingly adopt the maxim of this great man. But as in those cases the political interest prevails in some measure over the civil (for it is always an in- convenience that the people should be judges in their own cause), in order to remedy this evil, the laws must provide as much as possible for the security of individuals.

With this view the Roman legislators did two things : they gave the persons accused permission to banish themselves^ be-

d " Quas actiones ne populus prout f " Discourse on the first Decade of

vellet institueret, certas solemnesque Livy," book I. chap, vii. esse voluerunt."— Lib. II. sec. 6, Digest. g This is well explained in Cicero's

de Griff. Jur. oration " pro Csecina," towards the end.

e In France a person, though sued for more than he owes, loses his costs if he has not offered to pay the exact debt.


THE SPIRIT OF LAWS 77

fore sentence was pronounced ; h and they ordained, that the goods of those who were condemned should be sacred, to pre- vent their being confiscated to the people. We shall see in book XL the other limitations that were set to the judicatory power residing in the people.

Solon knew how to prevent the abuse which the people might make of their power in criminal judgments. He or- dained that the Court of Areopagus should re-examine the affair; that if they believed the party accused was unjustly acquitted,^' they should impeach him again before the people ; that if they believed him unjustly condemned,/ they should pre- vent the execution of the sentence, and make them rejudge the proceeding — an admirable law, that subjected the people to the censure of the magistracy which they most revered, and even to their own !

In affairs of this kind it is always proper to throw in some delays, especially when the party accused is under confinement ; to the end that the people may grow calm and give their judg- ment coolly.

In despotic governments the prince himself may be judge. But in monarchies this cannot be; the constitution by such means would be subverted, and the dependent intermediate powers annihilated; all set forms of judgment would cease; fear would take possession of the people's minds, and paleness spread itself over every countenance: the more confidence, honor, affection, and security in the subject, the more extended is the power of the monarch.

We shall give here a few more reflections on this point. In monarchies, the prince is the party that prosecutes the person accused, and causes him to be punished or acquitted. Now, were he himself to sit upon the trial, he would be both judge and party.

In this government the prince has frequently the benefit of confiscation, so that here again, by determining criminal causes, he would be both judge and party.

Further, by this method he would deprive himself of the most glorious attribute of sovereignty, namely, that of grant-

h This was the law at Athens, as ap- t Demosthenes, " pro Corona," p. 494,

pears by Demosthenes. Socrates re- edit. Frankf. an. 1604. fused to make use of it. / See Philostratus's " Lives of the

Sophists," book I., Life of ^schines.


78 MONTESQUIEU

ing pardon,^ for it would be quite ridiculous of him to make and unmake his decisions ; surely he would not choose to contra- dict himself.

Besides, this would be confounding all ideas ; it would be impossible to tell whether a man was acquitted, or received his pardon.

Louis XIII being desirous to sit in judgment upon the trial of the Duke de la Valette,^ sent for some members of the Par- liament and of the Privy Council, to debate the matter ; upon their being ordered by the King to give their opinion concern- ing the warrant for his arrest, the President, De Believre, said

    • that he found it very strange that a prince should pass sen-

tence upon a subject; that kings had reserved to themselves the power of pardoning, and left that of condemning to their officers; that his majesty wanted to see before him at the bar a person who, by his decision, was to be hurried away into the other world ! That the prince's countenance should inspire with hopes, and not confound with fears; that his presence alone removed ecclesiastic censures; and that subjects ought not to go away dissatisfied from the sovereign." When sen- tence was passed, the same magistrate declared, " This is an unprecedented judgment to see, contrary to the example of past ages — a king of France, in the quality of a judge, con- demning a gentleman to death." ni

Again, sentences passed by the prince would be an inex- haustible source of injustice and abuse ; the courtiers by their importunity would always be able to extort his decisions. Some Roman emperors were so mad as to sit as judges them- selves ; the consequence was, that no reigns ever so surprised the world with oppression and injustice.

" Claudius," says Tacitus,^^ " having appropriated to himself the determination of law-suits, and the function of magistrates, gave occasion to all manner of rapine." But Nero, upon coming to the empire after Claudius, endeavored to conciliate

k Plato does not think it right that same relation. It was ordinarily a

kings, who, as he says, are priests, right of the peerage that a peer crim-

should preside at trials where people inally accused should be judged by the

are condemned to death, to exile, or to king, as Francis II in the trial of the

imprisonment. Prince of Conde, and Charles VII in

/ See the relation of the trial of the the case of the Due d'Alengon. To-

Duke de la Valette. It is printed in day, the presence of the king at the trial

the " Memoirs of Montresor, ' torn. ii. of a peer, in order to condemn him,

p. 62. would seem an act of tyranny.— Voltaire.

m It was* afterwards revoked. See the n " Annal." lib. XI.


THE SPIRIT OF LAWS 79

the minds of the people by declaring " that he would take care not to be judge himself in private causes, that the parties might not be exposed within the walls of a palace to the iniqui- tous influence of a few freedmen."

" Under the reign of Arcadius," says Zozimus,/' "' a swarm of calumniators spread themselves on every side and infested the court. Upon a person's decease, it was immediately supposed he had left no children ; q. and, in consequence of this, his property was given away by a rescript. For as the prince was surprisingly stupid, and the empress excessively enter- prising, she was a slave to the insatiable avarice of her domes- tics and confidants ; insomuch that to an honest man nothing could be more desirable than death."

" Formerly," says Procopius,^ " there used to be very few people at court ; but in Justinian's reign, as the judges had no longer the liberty of administering justice, their tribunals were deserted, while the prince's palace resounded with the litigious clamors of the several parties." Everybody knows what a prostitution there was of public judgments, and even of the very laws themselves, at that Emperor's court.

The laws are the eye of the prince; by them he sees what would otherwise escape his observation. Should he attempt the function of a judge, he would not then labor for himself, but for impostors, whose aim is to deceive him.

6. — That in Monarchies Ministers ought not to sit as Judges

It is likewise a very great inconvenience in monarchies for the ministers of the prince to sit as judges. We have still in- stances of states where there are a great number of judges to decide exchequer causes, and where the ministers nevertheless (a thing most incredible !) would fain determine them. Many are the reflections that here arise ; but this single one will suf- fice for my purpose.

There is in the very nature of things a kind of contrast be- tween a prince's council and his courts of judicature. The king's council ought to be composed of a few persons, and the courts of judicature of a great many. The reason is, in the

" Annal." lib. XIII. q The same disorder happened under

p " Hist." lib. V. Theodosius the younger.

r " Secret History."


8o MONTESQUIEU

former, things should be undertaken and conducted with a kind of warmth and passion, which can hardly be expected but from four or five men who make it their sole business. On the contrary, in courts of judicature a certain coolness is req- uisite, and an indifference, in some measure, to all manner of affairs.

7. — Of a single Magistrate

A magistracy of this kind cannot take place but in a despotic government. We have an instance in the Roman history how far a single magistrate may abuse his power. Might it not be very well expected that Appius on his tribunal should contemn all laws, after having violated that of his own enacting ? s Livy has given us the iniquitous distinction of the Decemvir. He had suborned a man to reclaim Virginia in his presence as his slave; Virginia's relatives insisted that by virtue of his own law she should be consigned to them, till the definitive judg- ment was passed. Upon which he declared that his law had been enacted only in favor of the father, and that as Virginius was absent, no application could be made of it to the present case.'

8. — Of Accusation in different Governments

At Rome w it was lawful for one citizen to accuse another. This was agreeable to the spirit of a republic, where each citizen ought to have an unlimited zeal for the public good, and is supposed to hold all the rights of his country in his own hands. Under the emperors, the republican maxims were still pursued ; and instantly appeared a pernicious tribe, a swarm of informers. Crafty, wicked men, who could stoop to any indignity to serve the purposes of their ambition, were sure to busy themselves in the search of criminals whose condemnation might be agree- able to the prince ; this was the road to honor and preferment,^ but luckily we are strangers to it in our country.

We have at present an admirable law, namely, that by which the prince, who is established for the execution of the laws, appoints an officer in each court of judicature to prosecute all

5 See the 2d law, sec. 24 flF. " de u And in a great many other cities.

Grig. Jur." v See in Tacitus the rewards given to

t " Quod pater puellse abesset, locum those informers, injuriae esse ratus." — Livius, dec. I. lib. III.


THE SPIRIT OF LAWS 8i

sorts of crimes in his name ; hence the profession of informers is a thing unknown to us, for if this pubHc avenger were sus- pected to abuse his office, he would soon be obHged to mention his author.

By Plato's laws,w those who neglect to inform or to assist the magistrates are liable to punishment. This would not be so proper in our days. The public prosecutor watches for the safety of the citizens ; he proceeds in his office while they enjoy their quiet and ease.

9. — Of the Severity of Punishments in different Governments

The severity of punishments is fitter for despotic govern- ments, whose principle is terror, than for a monarchy or a re- public, whose spring is honor and virtue.

In moderate governments, the love of one's country, shame, and the fear of blame are restraining motives, capable of pre- venting a multitude of crimes. Here the greatest punishment of a bad action is conviction. The civil laws have therefore a softer way of correcting, and do not require so much force and severity.

In those states a good legislator is less bent upon punish- ing than preventing crimes; he is more attentive to inspire good morals than to inflict penalties.

It is a constant remark of the Chinese authors,^ that the more the penal laws were increased in their empire, the nearer they drew towards a revolution. This is because punishments were augmented in proportion as the public morals were cor- rupted.

It would be an easy matter to prove that in all, or almost all, the governments of Europe, penalties have increased or di- minished in proportion as those governments favored or dis- couraged liberty.

In despotic governments, people are so unhappy as to have a greater dread of death than regret for the loss of life ; con- sequently their punishments ought to be more severe. In mod- erate states they are more afraid of losing their lives than ap- prehensive of the pain of dying ; those punishments, therefore, which deprive them simply of life are sufficient.

w Lib. IX. in this respect, in the same case as a

X I shall show hereafter that China is, republic or a monarchy.

Vol. I.— 6


82 MONTESQUIEU

Men in excess of happiness or misery are equally inclinable to severity; witness conquerors and monks. It is mediocrity alone, and a mixture of prosperous and adverse fortune, that inspire us with lenity and pity.

What we see practised by individuals is equally observable in regard to nations. In countries inhabited by savages who lead a Very hard life, and in despotic governments, where there is only one person on whom fortune lavishes her favors, while the miserable subjects lie exposed to her insults, people are equally cruel. Lenity reigns in moderate governments.

When in reading history we observe the cruelty of the sultans in administration of justice, we shudder at the very thought of the miseries of human nature.

In moderate governments, a good legislator may make use of everything by way of punishment. Is it not very extraor- dinary that one of the chief penalties at Sparta was to deprive a person of the power of lending out his wife, or of receiving the wife of another man, and to oblige him to have no com- pany at home but virgins ? In short, whatever the law calls a punishment is such effectively.

10. — Of the ancient French Laws

In the ancient French laws we find the true spirit of mon- archy. In cases relating to pecuniary mulcts, the common people are less severely punished than the nobility.^ But in criminal h cases it is quite the reverse ; the nobleman loses his honor and his voice in court, while the peasant, who has no honor to lose, undergoes a corporal punishment.

II. — That when People are virtuous few Punishments are necessary

The people of Rome had some share of probity. Such was the force of thi« probity that the legislator had frequently no further occasion than to point out the right road, and they were sure to follow it ; one would imagine that instead of precepts it was sufficient to give them counsels.

a Suppose, for instance, to prevent the h See the " Council of Peter Defon-

executior of a decree, the common peo- taines," chap, xiii., especially the 22d pie paid a fine of forty sous, and the art. nobility of sixty livres. — " Somme Ru- rale," book II. p. 198, edit. Got. of the year 1512.


THE SPIRIT OF LAWS 83

The punishments of the regal laws, and those of the Twelve Tables, were almost all abolished in the time of the republic, in consequence either of the Valerian c or of the Porcian law.^ It was never observed that this step did any manner of preju- dice to the civil administration.

This Valerian law, which restrained the magistrates from using violent methods against a citizen that had appealed to the people, inflicted no other punishment on the person who infringed it than that of being reputed a dishonest man.^

12. — Of the Power of Punishments

Experience shows that in countries remarkable for the lenity of their laws the spirit of the inhabitants is as much affected by slight penalties as in other countries by severer punish- ments.

If an inconvenience or abuse arises in the state, a violent government endeavors suddenly to redress it; and instead of putting the old laws in execution, it establishes some cruel punishment, which instantly puts a stop to the evil. But the spring of government hereby loses its elasticity ; the imagina- tion grows accustomed to the severe as well as the milder punishment ; and as the fear of the latter diminishes, they are soon obliged in every case to have recourse to the former. Robberies on the highway became common in some countries ; in order to remedy this evil, they invented the punishment of breaking upon the wheel, the terror of which put a stop for a while to this mischievous practice. But soon after robberies on the highways became as common as ever.

Desertion in our days has grown to a very great height ; in consequence of which it was judged proper to punish those de- linquents with death ; and yet their number did not diminish. The reason is very natural : a soldier accustomed to venture his life, despises, or afifects to despise, the danger of losing it. He is habituated to the fear of shame ; it would have been therefore much better to have continued a punishment f which branded

clt was made by Valerius Publicola <f " Lex Porcia pro tergo civium lata."

soon after the expulsion of the kings, It was made in the 4S4th year of the

and was twice renewed, both times by foundation of Rome,

magistrates of the same familj^. As e " Nihil ultra quam improbe factum

Livy observes, lib. X., the question was adjecet."— Liv.

not to give it a greater force, but to / They slit his nose or cut off his ears, render its injunctions more perfect.

  • ' Diligentius sanctum," says Livy, ibid.


84 MONTESQUIEU

him with infamy for life ; the penalty was pretended to be in- creased, while it really diminished.

Mankind must not be governed with too much severity ; we ought to make a prudent use of the means which nature has given us to conduct them. If we inquire into the cause of all human corruptions, we shall find that they proceed from the impunity of criminals, and not from the moderation of punish- ments.

Let us follow nature, who has given shame to man for his scourge; and let the heaviest part of the punishment be the infamy attending it.

But if there be some countries where shame is not a conse- quence of punishment, this must be owing to tyranny, which has inflicted the same penalties on villains and honest men.

And if there are others where men are deterred only by cruel punishments, we may be sure that this must, in a great measure, arise from the violence of the government which has used such penalties for slight transgressions.

It often happens that a legislator, desirous of remedying an abuse, thinks of nothing else ; his eyes are open only to this object, and shut to its inconveniences. When the abuse is re- dressed, you see only the seventy of the legislator ; yet there remains an evil in the state that has sprung from this severity ; the minds of the people are corrupted, and become habituated to despotism.

Lysandergr having obtained a victory over the Athenians, the prisoners were ordered to be tried, in consequence of an accusation brought against that nation of having thrown all the captives of two galleys down a precipice, and of having resolved in full assembly to cut ofif the hands of those whom they should chance to make prisoners. The Athenians were therefore all massacred, except Adymantes, who had opposed this decree. Lysander reproached Phylocles, before he was put to death, with having depraved the people's minds, and given lessons of cruelty to all Greece.

" The Argives," says Plutarch,/^ " having put fifteen hundred of their citizens to death, the Athenians ordered sacrifices of

gXenoph. "Hist." lib. III. Ii Morals of those who are intrusted

with the direction of the state affairs.


THE SPIRIT OF LAWS 85

expiation,* that it might please the gods to turn the hearts of the Athenians from so cruel a thought."

There are two sorts of corruptions — one when the people do not observe the laws ; the other when they are corrupted by the laws : an incurable evil, because it is in the very remedy itself.

13. — Insufficiency of the Laws of Japan

Excessive punishments may even corrupt a despotic govern- ment ; of this we have an instance in Japan.

Here almost all crimes are punished with death,/ because disobedience to so great an emperor as that of Japan is reck- oned an enormous crime. The question is not so much to correct the delinquent as to vindicate the authority of the prince. These notions are derived from servitude, and are ow- ing especially to this, that as the emperor is universal pro- prietor, almost all crimes are directly against his interests.

They punish with death lies spoken before the magistrate ; k a proceeding contrary to natural defence.

Even things which have not the appearance of a crime are severely punished ; for instance, a man that ventures his money at play is put to death.

True it is that the character of this people, so amazingly obstinate, capricious, and resolute as to defy all dangers and calamities, seems to absolve their legislators from the imputa- tion of cruelty, notwithstanding the severity of their laws. But are men who have a natural contempt for death, and who rip open their bellies for the least fancy — are such men, I say, mended or deterred, or rather are they not hardened, by the continual prospect of punishments ?

The relations of travellers inform us, with respect to the education of the Japanese, that children must be treated there with mildness, because they become hardened to punishment ; that their slaves must not be too roughly used, because they immediately stand upon their defence. Would not one imagine that they might easily have judged of the spirit which ought to

« Montesquieu appears to have fol- ; See Kempfer. lowed Amyot, who was mistaken here. k " Collection of Voyages that con- Plutarch says that the Athenians carried tributed to the establishment of the the victims of expiation around the as- East India Company," torn, iii, p. 428. sembly. It was done as an act of puri- fication.— Cr6vier.


86 MONTESQUIEU

reign in their political and civil government from that which should prevail in their domestic concerns ?

A wise legislator would have endeavored to reclaim people by a just temperature of punishments and rewards ; by maxims of philosophy, morality, and religion, adapted to those char- acters ; by a proper application of the rules of honor, and by the enjoyment of ease and tranquillity of life. And should he have entertained any apprehension that their minds, being inured to the cruelty of punishments, would no longer be re- strained by those of a milder nature, he would have conducted himself I in another manner, and gained his point by degrees ; in particular cases that admitted of any indulgence, he would have mitigated the punishment, till he should have been able to extend this mitigation to all cases.

But these are springs to which despotic power is a stranger ; it may abuse itself, and that is all it can do : in Japan it has made its utmost effort, and has surpassed even itself in cruelty.

As the minds of the people grew wild and intractable, they were obliged to have recourse to the most horrid severity.

This is the origin, this the spirit, of the laws of Japan. They had more fury, however, than force. They succeeded the ex- tirpation of Christianity ; but such unaccountable efforts are a proof of their insufficiency. They wanted to establish a good polity, and they have shown greater marks of their weakness.

We have only to read the relation of the interview between the Emperor and the Deyro at Meaco.w The number of those who were suffocated or murdered in that city by ruffians is in- credible ; young maids and boys were carried off by force, and found afterwards exposed in public places, at unseasonable hours, quite naked, and sewn in linen bags, to prevent their knowing which way they had passed: robberies were com- mitted in all parts ; the bellies of horses were ripped open, to bring their riders to the ground ; and coaches were overturned, in order to strip the ladies. The Dutch, who were told they could not pass the night on the scaffolds without exposing themselves to the danger of being assassinated, came down, etc.

I shall here give one instance more from the same nation.

/ Let this be observed as a maxim in m " Collection of Voyages that con- practice, with regard to cases where the tributed to the establishment of the minds of people have been depraved by East India Company," torn. v. p. 2. too great a severity of punishments.


THE SPIRIT OF LAWS 87

The Emperor having abandoned himself to infamous pleasures, lived unmarried, and was consequently in danger of dying with- out issue. The Deyro sent him two beautiful damsels ; one he married out of respect, but would not meddle with her. His nurse caused the finest women of the empire to be sent for, but all to no purpose. At length, an armorer's daughter having pleased his fancy ,w he determined to espouse her, and had a son. The ladies belonging to the court, enraged to see a person of such mean extraction preferred to themselves, stifled the child. The crime was concealed from the Emperor ; for he would have deluged the land with blood. The excessive severity of the laws hinders, therefore, their execution : when the punishment surpasses all measure, they are frequently obliged to prefer im- punity to it.

14. — Of the Spirit of the Roman Senate

Under the consulate of Acilius Glabrio and Piso, the Asilian law was made to prevent the intriguing for places. Dio says p that the Senate engaged the Consuls to propose it, by reason that C. Cornelius, the Tribune, had resolved to cause more severe punishments to be established against this crime; to which the people seemed greatly inclined. The Senate rightly judged that immoderate punishments would strike, indeed, a terror into people's minds, but must have also this effect, that there would be nobody afterwards to accuse or condemn; whereas, by proposing moderate penalties, there would be al- ways judges and accusers.

15. — Of the Roman Laws in respect to Punishments

I am strongly confirmed in my sentiments upon finding the Romans on my side; and I think that punishments are con- nected with the nature of governments when I behold this great people changing in this respect their civil laws, in pro- portion as they altered their form of government.

The regal laws, made for fugitives, slaves, and vagabonds, were very severe. The spirit of a republic would have required that the Decemvirs should not have inserted those laws in their

ti " Collection of Voyages that con- fine; they could not be admitted into

tributed to the establishment of the the rank of senators, nor nominated to

East India Company," tom. v, p. 2. any public office.— Dio, book XXXVI.

o The guilty were condemned to a p Book XXXVI.


SS MONTESQUIEU

Twelve Tables ; but men who aimed at tyranny were far from conforming to a republican spirit.

Livy says,o in relation to the punishment of Metius Suffetius, dictator of Alba, who was condemned by Tullius Hostilius to be fastened to two chariots drawn by horses, and torn asunder, that this was the first and last punishment in which the remem- brance of humanity seemed to have been lost. He is mistaken ; the Twelve Tables are full of very cruel laws.&

The design of the Decemvirs appears more conspicuous in the capital punishment pronounced against Hbellers and poets. This is not agreeable to the genius of a republic, where the peo- ple like to see the great men humbled. But persons who aimed at the subversion of liberty were afraid of writings that might revive its spirit.^

After the expulsion of the Decemvirs, almost all the penal laws were abolished. It is true they were not expressly re- pealed ; but as the Porcian law had ordained that no citizen of Rome should be put to death, they were of no further use.

This is exactly the time to which we may refer what Livy says d of the Romans, that no people were ever fonder of moderation in punishments.

But if to the lenity of penal laws we add the right which the party accused had of withdrawing before judgment was pronounced, we shall find that the Romans followed the spirit which I have observed to be natural to a republic.

Sylla, who confounded tyranny, anarchy, and liberty, made the Cornelian laws. He seemed to have contrived regulations merely with a view to create new crimes. Thus distinguishing an infinite number of actions by the name of murder, he found murderers in all parts ; and by a practice too much followed, he laid snares, sowed thorns, and opened precipices, whereso- ever the citizens set their feet.

Almost all Sylla's laws contained only the interdiction of fire and water. To this Caesar added the confiscation of goods,^ because the rich, by preserving their estates in exile, became bolder in the perpetration of crimes.

a Lib. I. pie in augmenting the penal laws

b We find there the punishment of against satirical writers.

fire, and j?enerally capital punishments, d Book I.

theft punished with death, etc. e " Pcenas facinorum auxit, cum locu-

c Sylla, animated with the same spirit pletes eo facilius scelere se obligarent,

as the Decemvirs, followed their exam- quod integris patrimoniis exularent."—

Suet, in '^Jul. Caesare."


THE SPIRIT OF LAWS 89

The emperors, having established a military government, soon found that it was as terrible to the prince as to the subject ; they endeavored therefore to temper it, and with his view had recourse to dignities, and to the respect with which those digni- ties were attended.

The government thus drew nearer a little to monarchy, and punishments were divided into three classes : f those which related to the principal persons in the state,g which were very mild; those which were inflicted on persons of an inferior rank,/i and were more severe ; and, in fine, such as concerned only persons of the lowest condition,* which were the most rigorous.

Maximinus, that fierce and stupid prince, increased the rigor of the military government which he ought to have softened. The Senate were informed, says Capitolinus,/ that some had been crucified, others exposed to wild beasts, or sewn up in the skins of beasts lately killed, without any manner of regard to their dignity. It seemed as if he wanted to exercise the mili- tary discipline, on the model of which he pretended to regulate the civil administration.

In " The Consideration on the Rise and Declension of the Roman Grandeur," k we find in what manner Constantine changed the military despotism into a military and civil govern- ment, and drew nearer to monarchy. There we may trace the different revolutions of this state, and see how they fell from rigor to indolence, and from indolence to impunity.

16. — Of the just Proportion between Punishments and Crimes

It is an essential point, that there should be a certain pro- portion in punishments, because it is essential that a great crime should be avoided rather than a smaller, and that which is more pernicious to society rather than that which is less.

" An impostor,^ who called himself Constantine Ducas, raised a great insurrection at Constantinople. He was taken and condemned to be whipped; but upon informing against

f See the 3d law, sec. legis ad leg. i Infimos. Leg. ^, sec. legis ad leg.

Cornel. " de Sicariis," and a vast num- Cornel. " de Sicariis."

ber of others in the Digest and in the / Jul. Cap., Maximini duo.

Codex. k Chap. xvii.

g Sublimiores. / " History of Nicephorus, Patriarch

h Medics. of Constantinople."


90 MONTESQUIEU

several persons of distinction, he was sentenced to be burned as a calumniator." It is very extraordinary that they should thus proportion the punishments between the crime of high treason and that of calumny.

This puts me in mind of a saying of Charles II, King of Great Britain. He saw a man one day standing in the pillory ; upon which he asked what crime the man had committed. He was answered, " Please your majesty, he has written a libel against your ministers." " The fool ! " said the King, " why did he not write against me? They would have done nothing to him."

" Seventy persons having conspired against the Emperor Basil, he ordered them to be whipped, and the hair of their heads and beards to be burned. A stag, one day, having taken hold of him by the girdle with his horn, one of his retinue drew his sword, cut the girdle, and saved him ; upon which he ordered that person's head to be cut off, ' for having,' said he,

  • drawn his sword against his sovereign.' " ni Who could im-

agine that the same prince could ever have passed two such different judgments ?

It is a great abuse amongst us to condemn to the same pun- ishment a person that only robs on the highway and another who robs and murders. Surely, for the public security, some difference should be made in the punishment.

In China, those who add murder to robbery are cut in pieces : n but not so the others ; to this difference it is owing that though they rob in that country they never murder.

In Russia, where the punishment of robbery and murder is the same, they always murder.o The dead, say they, tell no tales.

Where there is no difference in the penalty, there should be some in the expectation of pardon. In England they never murder on the highway, because robbers have some hopes of transportation, which is not the case in respect to those that commit murder.

Letters of grace are of excellent use in moderate govern- ments. This power which the prince has of pardoning, ex- ercised with prudence, is capable of producing admirable ef-

m In Nicephorus's history. o " Present State of Russia," by

n Du Halde, torn. i. p. 6. Perry.


THE SPIRIT OF LAWS 91

fects. The principle of despotic government, which neither grants nor receives any pardon, deprives it of these advantages.

17. — Of the Rack

The wickedness of mankind makes it necessary for the law to suppose them better than they really are. Hence the depo- sition of two witnesses is sufficient in the punishment of all crimes. The law believes them, as if they spoke by the mouth of truth. Thus we judge that every child conceived in wed- lock is legitimate ; the law having a confidence in the mother, as if she were chastity itself. But the use of the rack against criminals cannot be defended on a like plea of necessity.

We have before us the example of a nation blessed with an excellent civil government,/' where without any inconvenience the practice of racking criminals is rejected. It is not, there- fore, in its own nature necessary.^

So many men of learning and genius have written against the custom of torturing criminals, that after them I dare not presume to meddle with the subject. I was going to say that it might suit despotic states, where whatever inspires fear is the fittest spring of government. I was going to say that the slaves among the Greeks and Romans — but nature cries out aloud, and asserts her rights.

18. — Of pecuniary and corporal Punishments

Our ancestors, the Germans, admitted of none but pecu- niary punishments. Those free and warlike people were of opinion that their blood ought not to be spilled but with sword in hand. On the contrary, these punishments are rejected by the Japanese,^ under pretence that the rich might elude them. But are not the rich afraid of being stripped of their property ? And might not pecuniary penalties be proportioned to people's fortunes? And, in fine, might not infamy be added to those punishments ?

P The English. Romans, the 3d and 4th laws, " ad leg.

q The citizens of Athens could not be Juliam Majest.," show that birth, dig- put to the rack (Lysias, " Orat. in Ago- nity, and the military profession ex- rat,") unless it was for high treason. The empted people from the rack, except in torture was used within thirty days af- cases of high treason. See the prudent ter condemnation. (Curius Fortunatus, restrictions of this practice made by the " Rhetor. Schol." lib. II.) There was laws of the Visigoths, no preparatory torture. In regard to the r See Kempfer.


92 MONTESQUIEU

A good legislator takes a just medium ; he ordains neither always pecuniary nor always corporal punishments.

19. — Of the Law of Retaliation

The use of the law of retaliation s is very frequent in despotic countries, where they are fond of simple laws. Moderate gov- ernments admit of it sometimes ; but with this difference, that the former exercise it in full rigor, whereas among the latter it ever receives some kind of limitation.

The law of the Twelve Tables admitted two : first, it never condemned to retaliation, but when the plaintiff could not be satisfied in any other manner.^ Secondly, after condemnation they might pay damages and interest,^ and then the corporal was changed into a pecuniary punishment.^

20. — Of the Punishment of Fathers for the Crimes of their Children

In China, fathers are punished for the crimes of their chil- dren. This was likewise the custom of Peru w — a custom de- rived from the notion of despotic power.

Little does it signify to say that in China the father is punished for not having exerted that paternal authority which nature has established, and the laws themselves have improved. This still supposes that there is no honor among the Chinese. Amongst us, parents whose children are condemned by the laws of their country, and children x whose parents have under- gone the like fate, are as severely punished by shame, as they would be in China by the loss of their lives.

21. — Of the Clemency of the Prince

Clemency is the characteristic of monarchs. In republics, whose principle is virtue, it is not so necessary. In despotic governments, where fear predominates, it is less customary, because the great men are to be restrained by examples of

J It is established in the Koran. See w See Garcilaso, " History of the

the chapter of the Cow. Civil Wars of the Spaniards."

t " Si membrum rupit, ni cum eo x " Instead of punishing them," says

Sacit, talio esto." — Aulus Gellius, lib. Plato, " they ought to be commended

'X. cap. i. for not having followed their fathers' ex-

« Ibid. ample." — Book IX. of Laws. V See also the law of the Visigoths, book VI. tit. iv. sees. 3 and 5.


THE SPIRIT OF LAWS 93

severity. It is more necessary in monarchies, where they are governed by honor, which frequently requires what the very law forbids. Disgrace is here equivalent to chastisement ; and even the forms of justice are punishments. This is because particular kinds of penalty are formed by shame, which on every side invades the delinquent.

The great men in monarchies are so heavily punished by disgrace, by the loss (though often imaginary) of their fortune, credit, acquaintances, and pleasures, that rigor in respect to them is needless. It can tend only to divest the subject of the affection he has for the person of his prince, and of the respect he ought to have for public posts and employments. •

As the instability of the great is natural to a despotic govern- ment, so their security is interwoven with the nature of mon- archy.

So many are the advantages which monarchs gain by clem- ency, so greatly does it raise their fame and endear them to their subjects, that it is generally happy for them to have an opportunity of displaying it ; which in this part of the world is seldom wanting.

Some branch, perhaps, of their authority, but never hardly the whole, will be disputed; and if they sometimes fight for their crown, they do not fight for their life.

But some may ask when it is proper to punish, and when to pardon. This is a point more easily felt than prescribed. When there is danger in the exercise of clemency, it is visible; noth- ing so easy as to distinguish it from that imbecility which ex- poses princes to contempt and to the very incapacity of punish- ing.

The Emperor Maurices made a resolution never to spill the blood of his subjects. Anastasius ^ punished no crimes at all. Isaac Angelus took an oath that no one should be put to death during his reign. Those Greek emperors forgot that it was not for nothing they were intrusted with the sword.

y Evagr. Hist. s Frag, of Suidas, in Constantine

Porphyrogenitus.


BOOK VII

CONSEQUENCES OF THE DIFFERENT PRINCI- PLES OF THE THREE GOVERNMENTS WITH RESPECT TO SUMPTUARY LAWS, LUXURY, AND THE CONDITION OF WOMEN

I . — Of Luxury

LUXURY is ever in proportion to the inequality of for- tunes. If the riches of a state are equally divided there will be no luxury ; for it is founded merely on the con- veniences acquired by the labor of others.

In order to have this equal distribution of riches, the law ought to give to each man only what is necessary for nature. If they exceed these bounds, some will spend, and others will acquire, by which means an inequality will be established.

Supposing what is necessary for the support of nature to be equal to a given sum, the luxury of those who have only what is barely necessary will be equal to a cipher : if a person hap- pens to have double that sum, his luxury will be equal to one ; he that has double the latter's substance will have a luxury equal to three ; if this be still doubled, there will be a luxury equal to seven ; so that the property of the subsequent individ- ual being always supposed double to that of the preceding, the luxury will increase double, and a unit be always added, in this progression, o, i, 3, 7, 15, 31, 63, 127.

In Plato's republic,^ luxury might have been exactly calcu- lated. There were four sorts of censuses or rates of estates. The first was exactly the term beyond poverty, the second was double, the third triple, the fourth quadruple to the first. In the first census, luxury was equal to a cipher ; in the second to

a The first census was the hereditary triple of the hereditary share. See his share in land, and Plato would not allow " Laws," book V. them to have, in other effects, above a

94


THE SPIRIT OF LAWS


95


one, in the third to two, in the fourth to three : and thus it fol- lowed in an arithmetical proportion.

Considering the luxury of different nations with respect to one another, it is in each state a compound proportion to the inequality of fortunes among the subjects, and to the inequality of wealth in different states. In Poland, for example, there is an extreme inequality of fortunes, but the poverty of the whole hinders them from having so much luxury as in a more opulent government.

Luxury is also in proportion to the populousness of the towns, and especially of the capital ; so that it is in a compound proportion to the riches of the state, to the inequality of private fortunes, and to the number of people settled in particular places.

In proportion to the populousness of towns, the inhabitants are filled with notions of vanity and actuated by an ambition of distinguishing themselves by trifles.^ If they are very numer- ous, and most of them strangers to one another, their vanity re- doubles, because there are greater hopes of success. As luxury inspires these hopes, each man assumes the marks of a superior condition. But by endeavoring thus at distinction, every one becomes equal, and distinction ceases ; as all are desirous of re- spect, nobody is regarded.

Hence arises a general inconvenience. Those who excel in a profession set what value they please on their labor ; this ex- ample is followed by people of inferior abilities, and then there is an end of all proportion between our wants and the means of satisfying them. When I am forced to go to law, I must be able to fee counsel ; when I am sick, I must have it in my power to fee a physician.

It is the opinion of several, that the assemblage of so great a multitude of people in capital cities is an obstruction to com- merce, because the inhabitants are no longer at a proper dis- tance from each other. But I cannot think so ; for men have more desires, more wants, more fancies, when they live to- gether.

b " In large and populous cities," says thejr appear to be.— They have the satis-

the author of the " Fable of the Bees," faction of imagining that they appear

torn. i. p. 133, "they wear clothes above what they would be: which, to weak

their rank, and, consequently, have the minds, is a pleasure almost as substan-

pleasure of being esteemed by a vast tial as they could reap from the very

majority, not as what they are, but what accomplishment of their wishes."


g6 MONTESQUIEU

2. — Of sumptuary Laws in a Democracy

We have observed that in a republic, where riches are equally divided, there can be no such thing as luxury ; and as we have shown in Book V.,c that this equal distribution constitutes the excellence of a republican government; hence it follows, that the less luxury there is in a republic, the more it is perfect. There was none among the old Romans, none among the Lace- daemonians ; and in republics where this equality is not quite lost, the spirit of commerce, industry, and virtue renders every man able and wilHng to live on his own property, and conse- quently prevents the growth of luxury.

The laws concerning the new division of lands, insisted upon so eagerly in some republics, were of the most salutary nature. They are dangerous, only as they are sudden. By reducing in- stantly the wealth of some, and increasing that of others, they form a revolution in each family, and must produce a general one in the state.

In proportion as luxury gains ground in a republic, the minds of the people are turned towards their particular interests. Those who are allowed only what is necessary have nothing but their own reputation and their country's glory in view. But a soul depraved by luxury has many other desires, and soon becomes an enemy to the laws that confine it. The luxury in which the garrison of Rhegium d began to live was the cause of their massacring the inhabitants.

No sooner were the Romans corrupted than their desires be- came boundless and immense. Of this we may judge by the price they set on things. A pitcher of Falernian wine ^ was sold for a hundred Roman denarii ; a barrel of salt meat from the kingdom of Pontus cost four hundred ; a good cook four talents ; and for boys, no price was reckoned too great. When the whole world, impelled by the force of corruption, is im- mersed in voluptuousness f what must then become of virtue ?

c Chaps, iv. and v. dorus, quoted by Constantine Porphyr-

d The city at the extremity of Italy, ogenitus, in his " Extract of Virtues

nearest Sicily; pillaged by Decius Jubel- and Vices."

lius with a barbarian legion.— Ed. f " Cum maximus omnium impetus

e Fragment of the 36th book of Dio- ad luxuriam esset."— Ibid.


THE SPIRIT OF LAWS 97

3. — Of sumptuary Laws in an Aristocracy

There is this inconvenience in an ill-constituted aristocracy, that the wealth centres in the nobility, and yet they are not allowed to spend ; for as luxury is contrary to the spirit of mod- eration, it must be banished thence. This government conpre- hends, therefore, only people who are extremely poor and can- not acquire, and people who are vastly rich and cannot spend.

In Venice, they are compelled by the laws to moderation. They are so habituated to parsimony that none but courtesans can make them part with their money. Such is the method made use of for the support of industry ; the most contemptible of women may be profuse without danger, whilst those who contribute to their extravagance consume their days in the greatest obscurity.

Admirable in this respect were the institutions of the princi- pal republics of Greece. The rich employed their money in festivals, musical choruses, chariots, horse-races, and charge- able offices. Wealth was, therefore, as burdensome there as poverty.

4. — Of sumptuary Laws in a Monarchy

Tacitus says,g " That the Suiones,/^ a German nation, has a particular respect for riches ; for which reason they live under the government of one person." This shows that luxury is ex- tremely proper for monarchies, and that under this govern- ment there must be no sumptuary laws.

As riches, by the very constitution of monarchies, are un- equally divided, there is an absolute necessity for luxury. Were the rich not to be lavish, the poor would starve. It is even necessary here, that the expenses of the opulent should be in proportion to the inequality of fortunes, and that luxury, as we have already observed, should increase in this proportion. The augmentation of private wealth is owing to its having de- prived one part of the citizens of their necessary support ; this must therefore be restored to them.

Hence it is that for the preservation of a monarchical state, luxury ought continually to increase, and to grow more exten- sive, as it rises from the laborer to the artificer, to the merchant,

g " De Moribus Germanorum." that part of Europe now known as Swe-

h The Suiones were the inhabitants of den. — Ed.

Vol. I.— 7


98 MONTESQUIEU

to the magistrate, to the nobility, to the great officers of state, up to the very prince ; otherwise the nation will be undone.

In the reign of Augustus, a proposal was made in the Roman Senate, which was composed of grave magistrates, learned civil- ians, and of men whose heads were filled with the notion of the primitive times, to reform the manners and luxury of women. It is curious to see In Dio,i with what art this prince eluded the importunate solicitations of those Senators. This was be- cause he was founding a monarchy, and dissolving a republic.

Under Tiberius, the ^Ediles proposed in the Senate the re- establishment of the ancient sumptuary laws./ This prince, who did not want sense, opposed It. " The state," said he, " could not possibly subsist in the present situation of things. How could Rome, how could the provinces, live? We were frugal, while we were only masters of one city ; now we con- sume the riches of the whole globe, and employ both the mas- ters and their slaves In our service." He plainly saw that sumptuary laws would not suit the present form of government.

When a proposal was made under the same Emperor to the Senate to prohibit the governors from carrying their wives with them Into the provinces, because of the dissoluteness and ir- regularity which followed those ladles, the proposal was re- jected. It was said, " that the examples of ancient austerity had been changed into a more agreeable method of living." k They found there was a necessity for different manners.

Luxury Is therefore absolutely necessary in monarchies ; as it is also in despotic states. In the former, it is the use of lib- erty; in the latter, it is the abuse of servitude. A slave ap- pointed by his master to tyrannize over other wretches of the same condition, uncertain of enjoying to-morrow the blessings of to-day, has no other felicity than that of glutting the pride, the passions, and voluptuousness of the present moment.

Hence arises a very natural reflection. Republics end with luxury ; monarchies with poverty.^

i Dio Cassius, lib. LIV. / " Opulentia paritura mox egesta-

j Tacit. " Annal." lib. III. , tcm."— Florus, lib. III.

k " Multa duritiei veterum melius et

laetius mutata."— Tacit. " Annal." lib.

III.


THE SPIRIT OF LAWS 99


5. — In what Cases sumptuary Laws are useful in a Monarchy

Whether it was from a republican spirit, or from some other particular circumstance, sumptuary laws were made in Aragon, in the middle of the thirteenth century. James I ordained that neither the king nor any of his subjects should have above two sorts of dishes at a meal, and that each dish should be dressed only one way, except it were game of their own killing.wt

In our days, sumptuary laws have been also enacted in Swe- den ; but with a different view from those of Aragon.

A government may make sumptuary laws with a view to absolute frugality; this is the spirit of sumptuary laws in re- pubHcs ; and the very nature of the thing shows that such was the design of those of Aragon.

Sumptuary laws may likewise be established with a design to promote a relative frugality : when a government, perceiv- ing that foreign merchandise, being at too high a price, will re- quire such an exportation of home manufactures as to deprive them of more advantages by the loss of the latter than they can receive from the possession of the former, they will forbid their being introduced. And this is the spirit of the laws which in our days have been passed in Sweden.^ Such are the sumptu- ary laws proper for monarchies.

In general, the poorer a state, the more it is ruined by its relative luxury ; and consequently the more occasion it has for relative sumptuary laws. The richer a state, the more it thrives by its relative luxury ; for which reason it must take particular care not to make any relative sumptuary laws. This we shall better explain in the book on commerce ; here we treat only of absolute luxury.

6. — Of the Luxury of China

Sumptuary laws may, in some governments, be necessary for particular reasons. The people, by the influence of the cHmate, may grow so numerous, and the means of subsisting may be so uncertain, as to render a universal application to agriculture extremely necessary. As luxury in those countries is danger-

w Constitution of Tames I in the year n They have prohibited rich wines and

1234, article 6, in Marca Hispanica," other costly merchandise. p. 1429- See book XX. chap. 20.


loo MONTESQUIEU

ous, their sumptuary laws should be very severe. In order, therefore, to be able to judge whether luxury ought to be en- couraged or proscribed, we should examine first what relation there is between the number of people and the facility they have of procuring subsistence. In England the soil produces more grain than is necessary for the maintenance of such as cultivate the land and of those who are employed in the woollen manufactures. This country may be therefore allowed to have some trifling arts and consequently luxury. In France, likewise, there is corn enough for the support of the husband- man and of the manufacturer. Besides, a foreign trade may bring in so many necessaries in return for toys, that there is no danger to be apprehended from luxury.

On the contrary, in China, the women are so prolific, and the human species multipHes so fast, that the lands, though never so much cultivated, are scarcely sufficient to support the inhabitants. Here, therefore, luxury is pernicious, and the spirit of industry and economy is as requisite as in any repub- lic./' They are obliged to pursue the necessary arts, and to shun those of luxury and pleasure.

This is the spirit of the excellent decrees of the Chinese em- perors. " Our ancestors," says an Emperor of the family of the Tangs,? " held it as a maxim that if there was a man v/ho did not work, or a woman that was idle, somebody must suffer cold or hunger in the empire." And on this principle he ordered a vast number of the monasteries of bonzes to be destroyed.

The third emperor of the one-and-twentieth dynasty,^ to whom some precious stones were brought that had been found in a mine, ordered it to be shut up, not choosing to fatigue his people with working for a thing that could neither feed nor clothe them.

" So great is our luxury," says Kiayventi,-? " that people adorn with embroidery the shoes of boys and girls, whom they are obliged to sell." Is employing so many people in making clothes for one person the way to prevent a great many from wanting clothes ? There are ten men who eat the fruits of the

f Luxury has been here always pro- r History of China, 21st Dynasty, in

hibited. Father Du Halde's work, torn. i.

q In an ordinance quoted by Father 5 In a discourse cited by Father Du

Du Halde, torn. ii. p. 497. Halde, torn. iii. p. 418.


THE SPIRIT OF LAWS loi

earth to one employed in agriculture ; and is this the means of preserving numbers from wanting nourishment ?

7. — Fatal Consequence of Luxury in China

In the history of China we find it has had twenty-two suc- cessive dynasties ; that is, it has experienced twenty-two gen- eral, without mentioning a prodigious number of particular, revolutions. The first three dynasties lasted a long time, be- cause they were wisely administered, and the empire had not so great an extent as it afterwards obtained. But we may observe in general that all those dynasties began very well. Virtue, at- tention, and vigilance are necessary in China ; these prevailed in the commencement of the dynasties, and failed in the end. It was natural that emperors trained up in military toil, who had compassed the dethroning of a family immersed in pleas- ure, should adhere to virtue, which they had found so advan- tageous, and be afraid of voluptuousness, which they knew had proved so fatal to the family dethroned. But after the three or four first princes, corruption, luxury, indolence, and pleasure possessed their successors ; they shut themselves up in a pal- ace ; their understanding was impaired ; their life was short- ened ; the family declined ; the grandees rose up ; the eunuchs gained credit ; none but children were set on the throne ; the palace was at variance with the empire; a lazy set of people that dwelt there ruined the industrious part of the nation ; the emperor was killed or destroyed by a usurper, who founded a family, the third or fourth successor of which went and shut himself up in the very same palace.

8. — Of public Continency

So many are the imperfections that attend the loss of virtue in women, and so greatly are their minds depraved when this principal guard is removed, that in a popular state public in- continency may be considered as the last of miseries, and as a certain forerunner of a change in the constitution.

Hence it is that the sage legislators of republican states have ever required of women a particular gravity of manners. They have proscribed, not only vice, but the very appearance of it. They have banished even all commerce of gallantry — a com-


102 MONTESQUIEU

merce that produces idleness, that renders the women cor- rupters, even before they are corrupted, that gives a value to trifles, and debases things of importance : a commerce, in fine, that makes people act entirely by the maxims of ridicule, in which the women are so perfectly skilled.

9. — Of the Condition or State of Women in different Governments

In monarchies women are subject to very little restraint, because as the distinction of ranks calls them to court, there they assume a spirit of liberty, which is almost the only one tolerated in that place. Each courtier avails himself of their charms and passions, in order to advance his fortune : and as their weakness admits not of pride, but of vanity, luxury con- stantly attends them.

In despotic governments women do not introduce, but are themselves an object of, luxury. They must be in a state of the most rigorous servitude. Every one follows the spirit of the government, and adopts in his own family the customs he sees elsewhere established. As the laws are very severe and executed on the spot, they are afraid lest the liberty of women should expose them to danger. Their quarrels, indiscretions, repugnancies, jealousies, piques, and that art, in fine, which little souls have of interesting great ones, would be attended there with fatal consequences.

Besides, as princes in those countries make a sport of human nature, they allow themselves a multitude of women; and a thousand considerations oblige them to keep those women in close confinement.

In republics women are free by the laws and restrained by manners; luxury is banished thence, and with it corruption and vice.

In the cities of Greece, where they were not under the re- straint of a religion which declares that even amongst men regularity of manners is a part of virtue ; where a blind passion triumphed with a boundless insolence, and love appeared only in a shape which we dare not mention, while marriage was con- sidered as nothing more than simple friendship ; c^ such were the

a " In respect to true love," says p. 600. He spoke in the style of his Plutarch, " the women have nothing to time. See Xenophon in the dialogue say to it." In his " Treatise of Love," entitled " Hiero,"


THE SPIRIT OF LAWS 103

virtue, simplicity, and chastity of women in those cities, that in this respect hardly any people were ever known to have had a better and wiser polity.^


10. — Of the domestic Tribunal among the Romans

The Romans had no particular magistrates, like the Greeks, to inspect the conduct of women. The censors had not an eye over them, as over the rest of the republic.

The institution of the domestic tribunal c supplied the magis- tracy established among the Greeks.^

The husband summoned the wife's relatives, and tried her in their presence.^ This tribunal preserved the manners of the republic ; and at the same time those very manners maintained this tribunal. For it decided not only in respect to the viola- tion of the laws, but also of manners : now, in order to judge of the violation of the latter, manners are requisite.

The penalties inflicted by this tribunal ought to be, and act- ually were, arbitrary : for all that relates to manners, and to the rules of modesty, can hardly be comprised under one code of laws. It is easy indeed to regulate by laws what we owe to others ; but it is very difficult to comprise all we owe to our- selves.

The domestic tribunal inspected the general conduct of women : but there was one crime which, beside the animadver- sion of this tribunal, was likewise subject to a public accusation. This was adultery : whether that in a republic so great a dep- ravation of manners interested the government; or whether the wife's immorality might render the husband suspected ; or whether, in fine, they were afraid lest even honest people might choose that this crime should rather be concealed than pun- ished.


_ e It appears from Dionys. Halicarn. lib. II., that Romulus's institution was.


h At Athens there was a particular magistrate who inspected the conduct of

women. that in ordinary cases the husband

e Romulus instituted this tribunal, as should sit as judge in the presence of

appears from Dionysius Halicarnassus, the wife's relatives, but that in heinous

book II. p. §6. crimes he should determine in conjunc-

d See in Livy, book XXXIX., the use tion with five of them. Hence Ulpian,

that was made of this tribunal at the tit. 6, sees. 9, 12, and 13, distinguishes

time of the conspiracy of the Bac- in respect to the different judgments of

chanalians. (They gave the name of manners between those which he calls

conspiracy against the republic to as- important, and those which are less so:

semblies in which the morals of women mores, graviores, leviores. and young people were debauched.)


I04 MONTESQUIEU

II. — In what Manner the Institutions changed at Rome, together with the Government

As manners were supported by the domestic tribunal, they were also supported by the public accusation ; and hence it is that these two things fell together with the public manners, and ended with the republic.^

The establishing of perpetual questions, that is, the division of jurisdiction among the praetors, and the custom gradually introduced of the praetors determining all causes them- selves,^ weakened the use of the domestic tribunal. This ap- pears by the surprise of historians, who look upon the decisions which Tiberius caused to be given by this tribunal as singular facts, and as a renewal of the ancient course of pleading.

The establishment of monarchy and the change of manners put likewise an end to public accusations. It mi^ht be appre- hended lest a dishonest man, afifronted at the slight shown him by a woman, vexed at her refusal, and irritated even by her virtue, should form a design to destroy her. The Julian law ordained that a woman should not be accused of adultery till after her husband had been charged with favoring her irregu- larities ; which limited greatly, and annihilated, as it were, this sort of accusation./^

Sextus Quintus seemed to have been desirous of reviving the public accusation.* But there needs very little reflection to see that this law would be more improper in such a monarchy as his than in any other.

12. — Of the Guardianship of Women among the Romans

The Roman laws subjected women to a perpetual guardian- ship, except they were under cover and subject to the author- ity of a husband./ This guardianship was given to the nearest of the male relatives ; and by a vulgar expression k it appears they were very much confined. This was proper for a republic, but not at all necessary in a monarchy./

f " Judicio de moribus (quod antea i Sextus Quintus ordained that, if a

quidem in antiquis leqribus positum erat, husband did not come and make his

non autem frequentabatur) penitus abo- complaint to him of his wife's infidelity,

Hto."— Leg. II, " Cod. de repud." he should be put to death. See Leti.

g Judicia extraordinaria. ;' Nisi convenissent in manum viri.

h It was entirely abolished by Con- k Ne sis mihi patruus oro.

stantine: "It is a shame," said he, /The Papian law ordained, under Au-

" that settled marriages should be dis- gustus, that women who had borne three

turbed by the presumption of strangers." children should be exempt from this

tutelage.


THE SPIRIT OF LAWS


105


That the women among the ancient Germans were likewise under a perpetual tutelage appears from the different codes of the Laws of the Barbarians.^ This custom was communicated to the monarchies founded by those people; but was not of long duration.

13. — Of the Punishments decreed by the Emperors against . the Incontinence of Women

The Julian law ordained a punishment against adultery. But so far was this law, any more than those afterwards made on the same account, from being a mark of regularity of manners, that on the contrary it was a proof of their depravity.

The whole political system in respect to women received a change in the monarchical state. The question was no longer to oblige them to a regularity of manners, but to punish their crimes. That new laws were made to punish their crimes was owing to their leaving those transgressions unpunished which were not of so criminal a nature.

The frightful dissolution of manners obliged indeed the em- perors to enact laws in order to put some stop to lewdness ; but it was not their intention to establish a general reformation. Of this the positive facts related by historians are a much stronger proof than all these laws can be of the contrary. We may see in Dio the conduct of Augustus on this occasion, and in what manner he eluded, both in his praetorian and censorian office, the repeated instances that were made him n for that purpose.

It is true that we find in historians very rigid sentences, passed in the reigns of Augustus and Tiberius, against the lewdness of some Roman ladies: but by showing us the spirit of those reigns, at the same time they demonstrate the spirit of those decisions.

The principal design of Augustus and Tiberius was to pun- ish the dissoluteness of their relatives. It was not their im-

fnThis tutelage was by the Germans evils? let us forget them." Dio, book

called Mundeburdium. LIV, The Senate having desired him

n Upon their bringing before him a to give them some regulations in re- young man who had married a woman spect to women's morals, he evaded with whom he had before carried on an their petition by telling them that they illicit commerce, he hesitated a long should chastise their wives in the same while, not daring to approve or to pun- manner as he did his; upon which they ish these things. At length recollect- desired him to tell them how he be- ing himself, " Seditions," says he, haved to his wife^ (I think a very in- " have been the cause of very great discreet question.)


io6 MONTESQUIEU

morality they punished, but a particular crime of impiety or high treason o of their own invention, which served to promote a respect for majesty, and answered their private revenge. Hence it is that the Roman historians inveigh so bitterly against this tyranny.

The penalty of the Julian law was small./' The emperors in- sisted that in passing sentence the judges should increase the penalty of the law. This was the subject of the invectives of historians. They did not examine whether the women were deserving of punishment, but whether they had violated the law, in order to punish them.

One of the most tyrannical proceedings of Tiberius q was the abuse he made of the ancient laws. When he wanted to extend the punishment of a Roman lady beyond that inflicted by the Julian law, he revived the domestic tribunal.^

These regulations in respect to women concerned only sena- torial families, not the common people. Pretences were wanted to accuse the great, which were constantly furnished by the dissolute behavior of the ladies.

In fine, what I have above observed, namely, that regularity of manners is not the principle of monarchy, was never better verified than under those first emperors ; and whoever doubts it need only read Tacitus, Suetonius, Juvenal, or Martial.

14. — Sumptuary Laws among the Romans

We have spoken of pubHc incontinence because it is the in- separable companion of luxury. If we leave the motions of the heart at liberty, how shall we be able to restrain the weaknesses of the mind ?

At Rome, besides the general institutions, the censors pre- vailed on the magistrates to enact several particular laws for maintaining the frugality of women. This was the design of the Fannian, Licinian, and Oppian laws. We may see in Livy ^

" Culpam inter viros et foeminas q " Proprium id Tiberio fuit scelera

vulgatum gravi nomine laesarum re- nuper reperta priscis verbis obtegere."—

ligionum appellando, clementiam ma- Tacit.

jorum^ suasque ipse leges egrediebatur." a " Adulterii graviorem poenam depre-

— Tacit. " Annal." lib. III. catus, ut exemplo majorum propinquis

p This law is given in the Digest, but suis ultra ducentesimum lapidem re-

without mentioning the penalty. It is moveretur, suasit. Adultero Manlio

supposed it was only relegatio, because Italia atque Africa interdictum est."—

that of incest was only deportatio. Leg. Tacit. " Annal." lib. II.

eI quis viduam, fif. de quaest. b Dec. 4, lib. IV.


THE SPIRIT OF LAWS 107

the great ferment the senate was in when the women insisted upon the revocation of the Oppian law. The abrogation of this law is fixed upon by Valerius Maximus as the period whence we may date the luxury of the Romans.


15. — Of Dowries and Nuptial Advantages in different Constitutions

Dowries ought to be considerable in monarchies, in order to enable husbands to support their rank and the estabHshed luxury. In repubHcs, where luxury should never reign,c they ought to be moderate ; but there should be hardly any at all in despotic governments, where women are in some measure slaves.

The community of goods introduced by the French laws be- tween man and wife is extremely well adapted to a monarchical government; because the women are thereby interested in domestic affairs, and compelled, as it were, to take care of their family. It is less so in a republic, where women are possessed of more virtue. But it would be quite absurd in despotic gov- ernments, where the women themselves generally constitute a part of the master's property.

As women are in a state that furnishes sufficient induce- ments to marriage, the advantages which the law gives them over the husband's property are of no service to society. But in a republic they would be extremely prejudicial, because riches are productive of luxury. In despotic governments the profits accruing from marriage ought to be mere subsistence, and no more.

16. — An excellent Custom of the Samnites

The Samnites had a custom which in so small a republic, and especially in their situation, must have been productive of admirable effects. The young people were all convened in one place, and their conduct was examined. He that was de- clared the best of the whole assembly had leave given him to take which girl he pleased for his wife ; the second best chose

r Marseilles was the wisest of all the in clothes, as Strabo observes, lib. IV. republics in its time; here it was or- Strabo further allows a small sum in darned that dowries should not exceed gold ornaments to serve in the decora- one hundred crowns in money, and five tion of a bride.


io8 MONTESQUIEU

after him ; and so on.d Admirable institution ! The only rec- ommendation that young men could have on this occasion was their virtue and the services done their country. He who had the greatest share of these endowments chose which girl he liked out of the whole nation. Love, beauty, chastity, virtue, birth, and even wealth itself, were all, in some measure, the dowry of virtue. A nobler and grander recompense, less chargeable to a petty state, and more capable of influencing both sexes, could scarcely be imagined.

The Samnites were descended from the Lacedaemonians; and Plato, whose institutes are only an improvement of those of Lycurgus, enacted nearly the same law.^

17. — Of Female Administration

It is contrary to reason and nature that women should reign in families, as was customary among the Egyptians ; but not that they should govern an empire. In the former case the state of their natural weakness does not permit them to have the pre-eminence ; in the latter their very weakness generally gives them more lenity and moderation, qualifications fitter for a good administration than roughness and severity.

In the Indies they are very easy under a female govern- ment ; and it is settled that if the male issue be not of a mother of the same blood, the females born of a mother of the blood- royal must succeed./" And then they have a certain number of persons who assist them to bear the weight of the govern- ment. According to Mr. Smith,^ they are very easy in Africa under female administration. If to this we add the example of England and Russia, we shall find that they succeed alike both in moderate and despotic governments.

d Fragment of Nicolaus Damascenus, / " Edifying Letters," 14th collection,

taken from Stobaeus in the collection of g " Voyage to Guinea," part the sec-

Constantine Porphyrogenitus. ond, of the kingdom of Angola, on the

e He even permits them to have a Golden Coast, more frequent interview with one an- other.


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BOOK VIII

OF THE CORRUPTION OF THE PRINCIPLES OF THE THREE GOVERNMENTS


T


I. — General Idea of this Book

HE corruption of every government generally begins with that of its principles.


2. — Of the Corruption of the Principles of Democracy.

The principle of democracy is corrupted not only when the spirit of equality is extinct, but likewise when they fall into a spirit of extreme equality, and when each citizen would fain be upon a level with those whom he has chosen to command him. Then the people, incapable of bearing the very power they have delegated, want to manage everything themselves, to debate for the senate, to execute for the magistrate, and to decide for the judges.

When this is the case, virtue can no longer subsist in the republic. The people are desirous of exercising the functions of the magistrates, who cease to be revered. The deliberations of the senate are slighted ; all respect is then laid aside for the senators, and consequently for old age. If there is no more re- spect for old age, there will be none presently for parents; deference to husbands will be likewise thrown ofif, and submis- sion to masters. This license will soon become general, and the trouble of command be as fatiguing as that of obedience. Wives, children, slaves will shake ofif 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. " Con- tent I am," says Chamides, " because of my poverty. When I

109


no MONTESQUIEU

was rich, I was obliged to pay my court to informers, knowing I was more liable to be hurt by them than capable of doing them harm. The republic constantly demanded some new tax of me ; and I could not decline paying. Since I have grown poor, I have acquired authority; nobody threatens me; I rather threaten others. I can go or stay where I please. The rich already rise from their seats and give me the way. I am a king, I was before a slave : I paid taxes to the republic, now it maintains me : I am no longer afraid of losing : but I hope to acquire."

The people fall into this misfortune, when those in whom they confide, desirous of concealing their own corruption, en- deavor to corrupt them. To disguise their own ambition, they speak to them only of the grandeur of the state ; to conceal their own avarice, they incessantly flatter theirs.

The corruption will increase among the corruptors, and like- wise among those who are already corrupted. The people will divide the pubHc money among themselves, and, having added the administration of affairs to their indolence, will be for blending their poverty with the amusements of luxury. But with their indolence and luxury, nothing but the public treasure will be able to satisfy their demands.

We must not be surprised to see their suffrages given for money. It is impossible to make great largesses to the peo- ple without great extortion : and to compass this, the state must be subverted. The greater the advantages they seem to derive from their liberty, the nearer they approach towards the crit- ical moment of losing it. Petty tyrants arise who have all the vices of a single tyrant. The small remains of liberty soon be- come insupportable ; a single tyrant starts up, and the people are stripped of every thing, even of the profits of their corrup- tion.

Democracy has, therefore, two excesses to avoid — the spirit of inequality, which leads to aristocracy or monarchy, and the spirit of extreme equality, which leads to despotic power, as the latter is completed by conquest.

True it is, that those who corrupted the Greek republics did not always become tyrants. This was because they had a greater passion for eloquence than for the military art. Be-


THE SPIRIT OF LAWS iii

sides there reigned an implacable hatred in the breasts of tRe Greeks against those who subverted a republican government ; and for this reason anarchy degenerated into annihilation, in- stead of being changed into tyranny.

But Syracuse being situated in the midst of a great number of petty states, whose government had been changed from oligarchy to tyranny,^ and being governed by a senate b scarce- ly ever mentioned in history, underwent such miseries as are the consequence of a more than ordinary corruption. This city, ever a prey to licentiousness,^ or oppression, equally laboring under the sudden and alternate succession of liberty and servi- tude, and notwithstanding her external strength, constantly determined to a revolution by the least foreign power — this city, I say, had in her bosom an immense multitude of people, whose fate it was to have always this cruel alternative, either of choosing a tyrant to govern them, or of acting the tyrant themselves.

3. — Of the Spirit of extreme Equality

As distant as heaven is from earth, so is the true spirit of equality from that of extreme equality. The former does not imply that everybody should command, or that no one should be commanded, but that we obey or command our equals. It endeavors not to shake off the authority of a master, but that its masters should be none but its equals.

In the state of nature, indeed, all men are born equal, but they cannot continue in this equality. Society makes them lose it, and they recover it only by the protection of the laws.

Such is the difference between a well-regulated democracy and one that is not so, that in the former men are equal only as citizfens, but in the latter they are equal also as magistrates, as senators, as judges, as fathers, as husbands, or as masters.

The natural place of virtue is near to liberty ; but it is not nearer to excessive liberty than to servitude.

a See Plutarch in the lives of Timoleoh The people having been the cause of the

and Dio. victory over the Athenians, the republic

b It was that of the Six hundred, of was changed. — Ibid. cap. iv. The pas-

whom mention is made by Diodorus. sion of two young magistrates, one of

c Upon the expulsion of the tyrants, whom carried off the other's boy, and in

they made citizens of strangers and mer- revenge the other debauched his wife,

cenary troops, which gave rise to civil was attended with a change in the form

wars.— Aristot. " Polit.^' lib. V. cap. iii. of this republic— Ibid. lib. VII. cap. iv.


112 MONTESQUIEU

4. — Particular Cause of the Corruption of the People Great success, especially when chiefly owing to the people, intoxicates them to such a degree that it is impossible to con- tain them within bounds. Jealous of their magistrates, they soon become jealous likewise of the magistracy; enemies to those who govern, they soon prove enemies also to the consti- tution. Thus it was that the victory over the Persians in the straits of Salamis corrupted the republic of Athens ;d and thus the defeat of the Athenians ruined the republic of Syracuse.^ Marseilles never experienced those great transitions from lowness to grandeur; this was owing to the prudent conduct of that republic, which always preserved her principles.

5. — Of the Corruption of the Principle of Aristocracy

Aristocracy is corrupted if the power of the nobles becomes arbitrary: when this is the case, there can no longer be any virtue either in the governors or the governed.

If the reigning families observe the laws, it is a monarchy with several monarchs, and in its own nature one of the most excellent ; for almost all these monarchs are tied down by the laws. But when they do not observe them, it is a despotic state swayed by a great many despotic princes.

In the latter case, the republic consists only in the nobles. The body governing is the republic; and the body governed is the despotic state ; which forms two of the most heteroge- neous bodies in the world.

The extremity of corruption is when the power of the nobles becomes hereditary •,f for then they can hardly have any mod- eration. If they are only a few, their power is greater, but their security less : if they are a larger number, their power is less, and their security greater, insomuch that power goes on in- creasing, and security diminishing, up to the very despotic prince who is encircled with excess of power and danger.

The great number, therefore, of nobles in an hereditary aris- tocracy renders the government less violent: but as there is less virtue, they fall into a spirit of supineness and negligence, by which the state loses all its strength and activity.^

d Aristot. " Polit." lib. V. cap. iv. g Venice is one of those republics

e Ibid. that has enacted the best laws for cor-

f The aristocracy is changed into an recting the inconveniences of an heredi-

oligarchy. tary aristocracy.


THE SPIRIT OF LAWS 113

An aristocracy may maintain the full vigor of its constitution if the laws be such as are apt to render the nobles more sen- sible of the perils and fatigues than of the pleasure of command : and if the government be in such a situation as to have some- thing 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 some- thing to apprehend./t A fear of the Persians supported the laws of Greece. Carthage and Rome were alarmed, and strength- ened by each other. Strange, that the greater security those states enjoyed, the more, like stagnated waters, they were sub- ject to corruption !

6. — Of the Corruption of the Principle of Monarchy

As democracies are subverted when the people despoil the senate, the magistrates, the judges of their functions, so rnonr archies are corrupt^..wh^.n,jth£ ,princ€~4ns€^ibly deprives so- cieties or cities. oltheir..priYi!e^e_s_. In the former case the mul- titude usurp the power, in the latter it is usurped by a single person.

" The destruction of the dynasties of Tsin and Soui," says a Chinese author, " was owing to this : the princes, instead of confining themselves, like their ancestors, to a general inspec- tion, the only one worthy of a sovereign, wanted to govern every thing immediately by themselves." *

The Chinese author gives us in this instance the cause of the corruption of almost all monarchies.

Monarchy is destroyed when a prince thinks he shows a greater exertion of power in changing than in conforming to the order of things ; when he deprives some of his subjects of their hereditary employments to bestow them arbitrarily upon others ; and when he is fonder of being guided by fancy than judgment.

Again, it is destroyed when the prince, directing everything entirely to himself, calls to the state his capital, the capital to his court, and the court to his own person.

h Justin attributes the extinction of tes. Then it was that the Macedonians

Athenian virtue to the death of Epa- emerged from obscurity, 1. 6.

minondas. Having no further emula- t Compilation of works made under

tion, they spent their revenues in feasts, the Mings, related by Father Du Halde. frequentms coenam, quam castra visen-

VOL. I.— 8


114 MONTESQUIEU

It is destroyed, in fine, when the prince mistakes his au- thority, his situation and the love of his people, and when he is not fully pursuaded that a monarch ought to think himself se- cure, as a despotic prince ought to think himself in danger.

7. — The same Subject continued

The principle of monarchy is corrupted when the first dig- nities are marks of the first servitude, when the great men are deprived of public respect, and rendered the low tools of ar- bitrary power.

It is still more corrupted when honor is set up in contradic- tion to honors, and when men are capable of being loaded at the very same time with infamy / and with dignities.

It is corrupted when the prince changes his justice into se- verity; when he puts, like the Roman emperors, a Medusa's head on his breast ;^ and when he assumes that menacing and terrible air which Commodus ordered to be given to his stat- ues./

Again, it is corrupted when mean and abject souls grow vain of the pomp attending their servitude, and imagine that the motive which induces them to be entirely devoted to their prince exempts them from all duty to their country.

But if it be true (and, indeed, the experience of all ages has shown it) that in proportion as the power of the monarch be- comes boundless and immense, his security diminishes, is the corrupting of this power, and the altering of its very nature, a less crime than that of high treason against the prince ?

8. — Danger of the Corruption of the Principle of monarchical

Government

The danger is not when the state passes from one moderate to another moderate government, as from a republic to a mon-

During the reign of Tiberius statues on Petronius Turpilianus, Nerva, and

were erected to, and triumphal orna- Tigellinus.— " Annal." book XIV. See

ments conferred on, informers; which likewise how the generals refused to

debased these honors to such a degree, serve, because they condemned the

that those who had really merited them military honors: pervulgatis triumpki

disdained to accept them. Frag, of Dio, insignibus. — Tacit. " Annal." book

book LVIIL, taken from the Extract XIII.

of Virtues and Vices, by Constantine k In this state the prince knew ex-

Porphyrogenitus. See in Tacitus in tremely well the principle of his gov-

what manner Nero, on the discovery ernment.

and punishment of a pretended con- / Herodian. spiracy, bestowed triumphal ornaments


THE SPIRIT OF LAWS 115

archy, or from a monarchy to a republic ; but when it is pre- cipitated from a moderate to a despotic government.

Most of the European nations are still governed by the prin- ciples of morality. But if from a long abuse of power or the fury of conquest, despotic sway should prevail to a certain degree, neither morals nor climate would be able to withstand its baleful influence: and then human nature would be ex- posed, for some time at least, even in this beautiful part of the world, to the insults with which she has been abused in the other three.

9. — How ready the Nobility are to defend the Throne

The English nobility buried themselves with Charles the First under the ruins of the throne ; and before that time, when Philip II endeavored 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 disgrace to share the power with the people.

The house of Austria has ever used her endeavors to op- press the Hungarian nobility ; little thinking how serviceable that very nobility would be one day to her. She would fain have drained their country of money, of which they had no plenty ; but took no notice of the men, with whom it abounded. When princes combined to dismember her dominions, the sev- eral parts of that monarchy fell motionless, as it were one upon another. No life was then to be seen but in those very nobles, who, resenting the affronts offered to the sovereign, and for- getting the injuries done to themselves, took up arms to avenge her cause, and considered it the highest glory bravely to die and to forgive.

10,— Of the Corruption of the Principle of despotic Government

The principle of despotic government is subject to a con- tinual corruption, because it is even in its nature corrupt. Other governments are destroyed by particular accidents, which do violence to the principles of each constitution ; this is ruined by its own intrinsic imperfections, when some acci- dental causes do not prevent the corrupting of its principles. It maintains itself, therefore, only when circumstances, drawn


n6 MONTESQUIEU

from the climate, religion, situation, or genius of the people, oblige it to conform to order, and to admit of some rule. By these things its nature is forced without being changed; its ferocity remains ; and it is made tame and tractable only for a time.

II. — Natural Effects of the Goodness and Corruption of the Principles of Government

When once the principles of government are corrupted, the very best laws become bad, and turn against the state: but when the principles are sound, even bad laws have the same efifect as good; the force of the principle draws everything to it.

The inhabitants of Crete used a very singular method to keep the principal magistrates dependent on the laws, which was that of " Insurrection." Part of the citizens rose up in arms,w put the magistrates to flight, and obliged them to return to a private life. This was supposed to be done in consequence of the law. One would have imagined that an institution of this nature, which established sedition to hinder the abuse of power, would have subverted any republic whatsoever ; and yet it did not subvert that of Crete. The reason is this.w

When the ancients would cite a people that had the strong- est affection for their country, they were sure to mention the inhabitants of Crete : " Our Country," said Plato,o " a name so dear to the Cretans." They called it by a name which signifies the love of a mother for her children.^ Now the love of our country sets everything right.

The laws of Poland have Hkewise their Insurrection: but the inconveniences thence arising plainly show that the people of Crete alone were capable of using such a remedy with suc- cess.

The gymnic exercises established among the Greeks had the same dependence on the goodness of the principle of govern- ment. " It was the Lacedaemonians and Cretans," said Plato,^ " that opened those celebrated academies which gave them so eminent a rank in the world. Modesty at first was alarmed;

w Aristot. " PoHt." book II, chap, lo. o " Repub." lib, IX.

n They always united immediately a Plutarch's " Morals," treatise

against foreign enemies, which was " whether a man advanced in years

called " Syncretism."— Plut. " Mor." p, ought to meddle with public affairs."

88. b " Repub," lib, V.


THE SPIRIT OF LAWS 117

but it yielded to the public utility." In Plato's time these insti- tutions were admirable s as they bore a relation to a very im- portant object, which was the military art. But when virtue fled from Greece, the military art was destroyed by these insti- tutions ; people appeared then on the arena, not for improve- ment, but for debauch.d

Plutarch informs us^ that the Romans in his time were of opinion that those games had been the principal cause of the slavery into which the Greeks had fallen. On the contrary, it was the slavery of the Greeks that corrupted those exercises. In Plutarch's time,/" their fighting naked in the parks, and their wrestling, infected the young people with a spirit of cowardice, inclined them to infamous passions, and made them mere dan- cers. But under Epaminondas the exercise of wrestling made the Thebans win the famous battle of Leuctra.g

There are very few laws which are not good, while the state retains its principles : here I may apply what Epicurus said of riches. *' It is not the liquor, but the vessel that is corrupted."

12. — The same Subject continued

In Rome the judges were chosen at first from the order of senators. This privilege the Gracchi transferred to the knights ; Drusus gave it to the senators and knights ; Sylla to the sena- tors only: Gotta to the senators, knights, and public treas- urers; 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 growing evils, but by removing the cor- ruption and restoring its lost principles ; every other correction is either useless or a new evil. While Rome preserved her principles entire, the judicial power might without any abuse be lodged in the hands of senators ; but as soon as this city be- came corrupt, to whatsoever body that power was transferred,

c Thfe Gymnic art was divided into the pacific and the Pyrrhic. See how

two parts, dancing and wrestling. In the latter dance was applied to the mili-

Crete they had the armed dances of the tary art, Plato, ibid.

Curetes; at Sparta they had those of d " Aut libidinosse."

Castor and Pollux; at Athens the armed Ladaeas Lacedaemonis palsestras."

dances of Pallas, which were extremely —Mart. lib. IV. ep. 55.

proper for those that were not yet of e Plutarch's " Morals," in the treatise

age for military service. " Wrestling is entitled " Questions concerning the af-

the image of war," said Plato (" Laws," fairs of the Romans."

book vll.). He commends antiquity f Ibid.

for having established only two dances, g Ibid., Table propositions, book II.


ii8 MONTESQUIEU

whether to the senate, to the knights, to the treasurers, to two of those bodies, to all three together, or to any other, matters still went wrong. The knights had no more virtue than the sewate, the treasurers no more than the knights, and these as little as the centurions.

After the people of Rome had obtained the privilege of shar- ing 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 ob- servable that the very people who had rendered the plebeians capable of public offices ever fixed their choice upon the patri- cians. Because they were virtuous, they were magnanimous ; and because they were free, they had a contempt of power. But when their morals were corrupted, the more power they were possessed of, the less prudent was their conduct, till at length, upon becoming their own tyrants and slaves, they lost the strength of liberty to fall into the weakness and impotency of licentiousness.

13. — The effect of an Oath among virtuous People

There is no nation, says Livy,/^ that has been longer uncor- rupted than the Romans ; no nation where moderation and poverty have been longer respected.

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

When Quintus Cincinnatus the consul wanted to raise an army in the city against the ^qui and the Volsci, the tribunes opposed him. " Well," said he, let all those who have taken an oath to the consul of the preceding year march under my banner." * In vain did the tribunes cry out that this oath was no longer binding, and that when they took it Quintus was but a private person: the people were more religious than those who pretended to direct them ; they would not listen to the distinctions or equivocations of the tribunes.

When the same people thought of retiring to the Sacred Mount, they felt some remorse from the oath they had taken

h Book I. » " Livy," book III. 20.


THE SPIRIT OF LAWS 119

to the consuls, that they would follow them into the field.; 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 no- tion they entertained of the violation of an oath from the crime they intended to commit.

After the battle of Cannae, the people were seized with such a panic that they would fain have retired to Sicily.^ But Scipio having prevailed upon them to swear they would not stir from Rome, the fear of violating this oath surpassed all other appre- hensions. Rome was a ship held by two anchors, religion and morality, in the midst of a furious tempest.

14. — How the smallest Change of the Constitution is attended with the Ruin of its Principles

Aristotle mentions the city of Carthage as a well-regulated republic. Polybius tells us^ that there was this inconvenience at Carthage in the second Punic war, that the senate had lost almost all its authority. We are informed by Livy that when Hannibal returned to Carthage he found that the magistrates and the principal citizens had abused their power, and con- verted the public revenues to their private emolument. The virtue, therefore, of the magistrates, and the authority of the senate, both fell at the same time ; and all was owing to the same cause.

Every one knows the wonderful effects of the censorship among the Romans. There was a time when it grew burden- some ; but still it was supported because there was more luxury than corruption. Claudius^ weakened its authority, by which means the corruption became greater than the luxury, and the censorship dwindled away of itself.w After various interrup- tions and resumptions, it was entirely laid aside, till it became altogether useless — that is, till the reigns of Augustus and Claudius.

j " Livy," book III. m See Book XI. chap. xii.

k " The people here referred to were n See " Dio," book XXXVII.

several young officers, who, in despair, Cicero's life in Plutarch, Cicero to

proposed to retire, but were restrained Atticus, book IV. letters lo and 15.

by Scipio."— Crevier. Asconius on Cicero, de divinatione.

i About a hundred years after.


I20 MONTESQUIEU

15. — Sure Methods of preserving the three Principles

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

16. — Distinctive Properties of a Republic

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

In an extensive repubHc the public good is sacrificed to a thousand private views ; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the pub- lic is more obvious, better understood, and more within the reach of every citizen ; abuses have less extent, and, of course, are less protected.

The long duration of the republic of Sparta was owing to her having continued in the same extent of territory after all her wars. The sole aim of Sparta was liberty; and the sole ad- vantage of her liberty, glory.

It was the spirit of the Greek republics to be as contented with their territories as with their laws. Athens was first fired with ambition and gave it to Lacedaemon ; but it was an ambi- tion rather of commanding a free people than of governing slaves; rather of directing than of breaking the union. All was lost upon the starting up of monarchy — a government whose spirit is more turned to increase of dominion.

Excepting particular circumstances,^ it is difficult for any other than a republican government to subsist longer in a single town. A prince of so petty a state would naturally endeavor to oppress his subjects, because his power would be great, while the means of enjoying it or of causing it to be respected would be inconsiderable. The consequence is, he would tram- ple upon his people. On the other hand, such a prince might

As when a petty sovereign supports means of their mutual jealousy; but himself between two great powers by then he has only a precarious existence.


THE SPIRIT OF LAWS 121

be easily crushed by a foreign or even a domestic force ; the people might any instant unite and rise up against him. Now as soon as the sovereign of a single town is expelled, the quarrel is over ; but if he has many towns, it only begins.

17. — Distinctive Properties of a Monarchy

A monarchical state ought to be of moderate extent. Were it small, it would form itself into a republic; were it very large, the nobility, possessed of great estates, far from the eye of the prince, with a private court of their own, and secure, moreover, from sudden executions by the laws and manners of the country — such a nobility, I say, might throw off their allegiance, having nothing to fear from too slow and too dis- tant a punishment.

Thus Charlemagne had scarcely founded his empire when he was obliged to divide it ; whether the governors of the prov- inces 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 ex- tent 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 dread- ful the remedy, which after the enlargement of dominion opens a new scene of misery ! *

The rivers hasten to mingle their waters with the sea ; and monarchies lose themselves in despotic power.

18. — Particular Case of the Spanish Monarchy

Let not the example of Spain be produced against me ; it rather proves what I affirm. To preserve America she did what even despotic power itself does not attempt: she de-


122 MONTESQUIEU

stroyed the inhabitants. To preserve her colony, she was obUged 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 in- creased. 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./'

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

19. — Distinctive Properties of a despotic Government

A large empire supposes a despotic authority in the person who governs. It is necessary that the quickness of the prince's resolutions should supply the distance of the places they are sent to ; that fear should prevent the remissness of the distant governor or magistrate ; that the law should be derived from a single person, and should shift continually, according to the accidents which incessantly multiply in a state in proportion to its extent.

20. — Consequence of the preceding Chapters

If it be, therefore, the natural property of small states to be governed as a republic, of middling ones to be subject to a monarch, and of large empires to be swayed by a despotic prince ; the consequence is, that in order to preserve the prin- ciples of the established government, the state must be sup- ported in the extent it has acquired, and that the spirit of this state will alter in proportion as it contracts or extends its limits.

21. — Of the Empire of China

Before I conclude this book, I shall answer an objection that may be made to the foregoing doctrine.

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

p See the " History of the United Provinces," by M. Le Clerc.


THE SPIRIT OF LAWs 123

But I cannot conceive what this honor can be among a peo- ple who act only through fear of being bastinadoed.3

Again, our merchants are far from giving us any such ac- counts of the virtue so much talked of by the missionaries ; we need only consult them in relation to the robberies and ex- tortions of the mandarins.^ I likewise appeal to another un- exceptionable witness, the great Lord Anson.

Besides, Father Perennin's letters concerning the emperor's proceedings against some of the princes of the blood-y who had incurred his displeasure by their conversion, plainly show us a settled plan of tyranny, and barbarities committed by rule, that is, in cold blood.

We have likewise Monsieur de Mairan's, and the same Father Perennin's, letters on the government of China. I find, therefore, that after a few proper questions and answers the whole mystery is unfolded.

Might not our missionaries have been deceived by an appear- ance of order ? Might not they have been struck with that con- stant exercise of a single person's will — an exercise by which they themselves are governed, and which they are so pleased to find in the courts of the Indian princes ; because as they go thither only in order to introduce great changes, it is much easier to persuade those princes that there are no bounds to their power, than to convince the people that there are none to their submission.*

In fine, there is frequently some kind of truth even in errors themselves. It may be owing to particular and, perhaps, very extraordinary circumstances that the Chinese government is not so corrupt as one might naturally expect. The climate and some other physical causes may, in that country, have had so strong an influence on their morals as in some measure to pro- duce wonders.

The climate of China is surprisingly favorable to the propa- gation of the human species.w The women are the most pro- lific in the whole world. The most barbarous tyranny can put no stop to the progress of propagation. The prince cannot say

q" It is the cudgel that governs missionaries availed themselves of the

China," says Father Du Halde. ^ authority of Canhi to silence the man-

r Among others, De Lange's relation. darins, who constantly declared that by

s Of the family of Sourmama, " Edi- the laws of the country no foreign wor-

fying Letters," i8th conection. ship could be established in the empire.

t See in Father Du Halde how the u See " Lettres Persanes," cxx.


124 MONTESQUIEU

there like Pharoah, " Let us deal wisely with them, lest they multiply." He would be rather reduced to Nero's wish, that mankind had all but one head. In spite of tyranny, China by the force of its climate will be ever populous, and triumph over the tyrannical oppressor.

China, like all other countries that live chiefly upon rice, is subject to frequent famines. When the people are ready to starve, they disperse in order to seek for nourishment; in consequence of which, gangs of robbers are formed on every side. Most of them are extirpated in their very infancy ; others swell, and are likewise suppressed. And yet in so great a num- ber of such distant provinces, some band or other may happen to meet with success. In that case they maintain their ground, strengthen their party, form themselves into a military body, march up to the capital, and place their leader on the throne.

From the very nature of things, a bad administration is here immediately punished. The want of subsistence in so popu- lous a country produces sudden disorders. The reason why the redress of abuses in other countries is attended with such difficulty is, because their efforts are not immediately felt ; the prince is not informed in so sudden and sensible a manner as in China.

The Emperor of China is not taught like our princes, that if he governs ill he will be less happy in the other life, less powerful and less opulent in this. He knows that if his gov- ernment be not just he will be stripped both of empire and life.

As China grows every day more populous, notwithstanding the exposing of children,^ the inhabitants are incessantly em- ployed in tilling the lands for their subsistence. This requires a very extraordinary attention in the government. It is their perpetual concern that every man should have it in his power to work, without the apprehension of being deprived of the fruits of his labor. Consequently this is not so much a civil as a do- mestic government.

Such has been the origin of those regulations which have been so greatly extolled. They wanted to make the laws reign in conjunction with despotic power ; but whatever is joined to the latter loses all its force. In vain did this arbitrary sway,

V See the order of Tsongtou for tilling the land, in the " Edifying Letters," 2ist collection.


THE SPIRIT OF LAWS 125

laboring under its own inconveniences, desire to be fettered; it armed itself with its chains, and has become still more ter- rible.

China is, therefore, a despotic state, whose principle is fear. Perhaps in the earliest dynasties, when the empire had not so large an extent, the government might have deviated a little from this spirit ; but the case is otherwise at present.


BOOK IX

OF LAWS IN THE RELATION THEY BEAR TO A DEFENSIVE FORCE

I. — In what Manner Republics provide for their Safety

IF a republic be small, it is destroyed by a foreign force; if it be large, it is ruined by an internal imperfection. To this twofold inconvenience democracies and aris- tocracies are equally liable, whether they be good or bad. The evil is in the very thing itself, and no form can redress it.

It is, therefore, very probable that mankind would have been, at length, obliged to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical, government. I mean a confederate republic.

This form of government is a convention by which several petty states agree to become members of a larger one, which they intend to establish. It is a kind of assemblage of socie- ties, that constitute a new one, capable of increasing by means of further associations, till they arrive at such a degree of power as to be able to provide for the security of the whole body.

It was these associations that so long contributed to the prosperity of Greece. By these the Romans attacked the whole globe, and by these alone the whole globe withstood them ; for when Rome had arrived at her highest pitch of grandeur, it was the associations beyond the Danube and the Rhine — associa- tions formed by the terror of her arms — ^that enabled the bar- barians to resist her.

Hence it proceeds that Holland,^ Germany, and the Swiss cantons are considered in Europe as perpetual republics.

a It is composed of about fifty differ- upon this remark that Montesquieu has

ent republics, all different from one an- taken each of the independent cities as

other.—" State of the United Prov- a republic— Ed. inces," by M. Janisson. Voltaire notes

126


THE SPIRIT OF LAWS 127

The associations of cities were formerly more necessary than in our times. A weak, defenceless town was exposed to greater danger. By conquest it was deprived not only of the executive and legislative power, as at present, but, moreover, of all human property.^

A republic of this kind, able to withstand an external force, may support itself without any internal corruption ; the form of this society prevents all manner of inconveniences.

If a single member should attempt to usurp the supreme power, he could not be supposed to have an equal authority and credit in all the confederate states. Were he to have too great an influence over one, this would alarm the rest; were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped, and overpower him before he could be settled in his usurpation.

Should, a popular insurrection happen in one of the confed- erate states, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side, and not on the other ; the confederacy may be dissolved, and the confederates pre- serve their sovereignty.

As this government is composed of petty republics, it enjoys the internal happiness of each ; and with regard to its external situation, by means of the association, it possesses all the ad- vantages of large monarchies.

2. — That a confederate Government ought to be composed of States of the same Nature, especially of the republican Kind

The Canaanites were destroyed by reason that they were petty monarchies that had no union or confederacy for their common defence ; and, indeed, a confederacy is not agreeable to the nature of petty monarchies.

As the confederate republic of Germany consists of free cities, and of petty states subject to different princes, experience shows us that it is much more imperfect than that of Holland and Switzerland.

The spirit of monarchy is war and enlargement of dominion :

6 Civil liberty, goods, wives, children, temples, and even burying-places.


128 MONTESQUIEU

peace and moderation are the spirit of a republic. These two kinds of government cannot naturally subsist in a confederate republic.

Thus we observe, in the Roman history, that when the Veien- tes had chosen a king, they were immediately abandoned by all the other petty republics of Tuscany. Greece was undone as soon as the kings of Macedon obtained a seat among the Amphictyons.

The confederate republic of Germany, composed of princes and free towns, subsists by means of a chief, who is, in some respects, the magistrate of the union, in others the monarch.

2,.— Other Requisites in a confederate Republic

In the republic of Holland one province cannot conclude an alliance without the consent of the others. This law, which is an excellent one, and even necessary in a confederate republic, is wanting in the Germanic constitution, where it would pre- vent the misfortunes that may happen to the whole confederacy, through the imprudence, ambition, or avarice of a single mem- ber. A republic united by a political confederacy has given itself entirely up, and has nothing more to resign.

It is difficult for the united states to be all of equal power and extent. The Lycian c republic was an association of twen- ty-three towns ; the large ones had three votes in the common council, the middling ones two, and the small towns one. The Dutch republic consists of seven provinces of different extent of territory, which have each one voice.

The cities of Lycia d contributed to the expenses of the state, according to the proportion of suffrages. The provinces of the United Netherlands cannot follow this proportion ; they must be directed by that of their power.

In Lycia ^ the judges and town magistrates were elected by the common council, and according to the proportion already mentioned. In the republic of Holland they are not chosen by the common council, but each town names its magistrates. Were I to give a model of an excellent confederate republic, I should pitch upon that of Lycia.

c Strabo, lib. XIV. d Ibid. e Ibid.


THE SPIRIT OF LAWS 129

4. — In what Manner despotic Governments provide for their

Security

As republics provide for their security by uniting, despotic governments do it by separating, and by keeping themselves, as it were, single. They sacrifice a part of the country; and by ravaging and desolating the frontiers they render the heart of the empire inaccessible.

It is a received axiom in geometry that the greater the ex- tent of bodies, the more their circumference is relatively small. This practice, therefore, of laying the frontiers waste is more tolerable in large than in middling states.

A despotic government does all the mischief to itself that could be committed by a cruel enemy, whose arms it were un- able to resist.

It preserves itself likewise by another kind of separation, which is by putting the most distant provinces into the hands of a great vassal. The Mogul, the King of Persia, and the em- perors of China have their feudatories ; and the Turks have found their account in putting the Tartars, the Moldavians, the Wallachians, and formerly the Transylvanians between themselves and their enemies.

5. — In what Manner a Monarchical Government provides for

its Security

A monarchy never destroys itself like a despotic government. But a kingdom of a moderate extent is liable to sudden inva- sions : it must, therefore, have fortresses to defend its frontiers ; and troops to garrison those fortresses. The least spot of ground is disputed with military skill and resolution. Despotic states make incursions against one another; it is monarchies only that wage war.

Fortresses are proper for monarchies ; despotic governments are afraid of them. They dare not intrust their officers with such a command, as none of them have any affection for the prince or his government.

6. — Of the defensive Force of States in general To preserve a state in its due force, it must have such an extent as to admit of a proportion between the celerity with which it may be invaded, and that with which it may defeat the Vol. I.— 9


I30 MONTESQUIEU

invasion. As an invader may appear on every side, it is requi- site that the state should be able to make on every side its de- fence ; consequently it should be of a moderate extent, propor- tioned to the degree of velocity that nature has given to man, to enable him to move from one place to another.

France and Spain are exactly of a proper extent. They have so easy a communication for their forces as to be able to con- vey them immediately to what part they have a mind; the armies unite and pass with rapidity from one frontier to an- I other, without any apprehension of such difficulties as require ^ time to remove.

It is extremely happy for France that the capital stands near to the different frontiers in proportion to their weakness ; and the prince has a better view of each part of his country accord- ing as it is more exposed.

But when a vast empire, like Persia, is attacked, it is several months before the troops are assembled in a body ; and then they are not able to make such forced marches, for that space of time, as they could for fifteen days. Should the army on the frontiers be defeated, it is soon dispersed, because there is no neighboring place of retreat. The victor, meeting with no resistance, advances with all expedition, sits down before the capital and lays siege to it, when there is scarcely time suffi- cient to summon the governors of the provinces to its relief. Those who foresee an approaching revolution hasten it by their disobedience. For men whose fidelity is entirely owing to the danger of punishment are easily corrupted as soon as it becomes distant ; their aim is their own private interest. The empire is subverted, the capital taken, and the conqueror dis- putes the several provinces with the governors.

The real power of a prince does not consist so much in the facility he meets with in making conquests as in the difficulty an enemy finds in attacking him, and, if I may so speak, in the immutability of his condition. But the increase of territory obliges a government to lay itself more open to an enemy.

As monarchs, therefore, ought to be endued with wisdom in order to increase their power, they ought likewise to have an equal share of prudence to confine it within bounds. Upon removing the inconveniences of too small a territory, they should have their eye constantly on the inconveniences which attend its extent.


THE SPIRIT OF LAWS


13^


7. — A Reflection

The enemies of a great prince, whose reign was protracted to an unusual length, have very often accused him, rather, I believe, from their own fears than upon any solid foundation, of having formed and carried on a project of universal mon- archy. Had he attained his aim, nothing would have been more fatal to his subjects, to himself, to his family, and to all Europe. Heaven, that knows our true interests, favored him more by preventing the success of his arms than it could have done by crowning him with victories. Instead of raising him to be the only sovereign in Europe, it made him happier by rendering him the most powerful.

The subjects of this prince, who in travelling abroad are never affected but with what they have left at home ; who on quitting their own habitations look upon glory as their chief object, and in distant countries as an obstacle to their return; who disgust you even by their good qualities, because they are tainted with so much vanity; who are capable of supporting wounds, perils, and fatigues, but not of foregoing their pleas- ures; who are supremely fond of gayety, and comfort them- selves for the loss of a battle by a song upon the general — those subjects, I say, would never have the solidity requisite for an enterprise of this kind, which if defeated in one country would be unsuccessful everywhere else; and if once unsuccessful would be so forever.


8. — A particular Case in zvhich the defensive Force of a State is inferior to the offensive

It was a saying of the Lord of Coucy to King Charles V " that the English are never weaker, nor more easily overcome, than in their own country." The same was observed of the Romans; the same of the Carthaginians; and the same will happen to every power that sends armies to distant countries, in order to re-unite by discipline and military force those who are divided among themselves by political or civil interests. The state finds itself weakened by the disorder that still con- tinues, and more so by the remedy.

The Lord of Coucy's maxim is an exception to the general rule, which disapproves of wars against distant countries. And


132 MONTESQUIEU

this exception confirms likewise the rule because it takes place only with regard to those by whom such wars are undertaken.

9. — Of the relative Force of States

All grandeur, force, and power are relative. Care, therefore, must be taken that in endeavoring to increase the real grandeur, the relative be not diminished.

During the reign of Louis XIV, France was at its highest pitch of relative grandeur. Germany had not yet produced such powerful princes as have since appeared in that country. Italy wsiS in the same case. England and Scotland were not yet formed into one united kingdom. Aragon was not joined to Castile : the distant branches of the Spanish monarchy were weakened by it, and weakened it in their turn ; and Muscovy was as little known in Europe as Crim Tartary.

ID. — Of the Weakness of neighboring States

Whensoever a state lies contiguous to another that happens to be in its decline, the former ought to take particular care not to precipitate the ruin of the latter, because this is the happiest situation imaginable ; nothing being so convenient as for one prince to be near another, who receives for him all the rebuffs and insults of fortune. And it seldom happens that by subdu- ing such a state the real power of the conqueror is as much increased as the relative is diminished.


BOOK X

OF LAWS IN THE RELATION THEY BEAR TO OFFENSIVE FORCE


o


I. — Of offensive Force

FFENSIVE force is regulated by the law of nations, which is the political law of each country considered in its relation to every other.

2.— Of War

The life of governments is like that of man. The latter has a right to kill in case of natural defence: the former have a right to wage war for their own preservation.

In the case of natural defence I have a right to kill, because my life is in respect to me what the life of my antagonist is to him : in the same manner a state wages war because its preser- vation is like that of any other being.

With individuals the right of natural defence does not imply a necessity of attacking. Instead of attacking they need only have recourse to proper tribunals. They cannot, therefore, ex- ercise this right of defence but in sudden cases, when imme- diate death would be the consequence of waiting for the as- sistance of the law. But with states the right of natural defence carries along with it sometimes the necessity of attacking; as, for instance, when one nation sees that a continuance of peace will enable another to destroy her, and that to attack that nation instantly is the only way to prevent her own destruction.

Thence it follows that petty states have oftener a right to de- clare war than great ones, because they are oftener in the case of being afraid of destruction.

The right, therefore, of war is derived from necessity and strict justice. If those who direct the conscience or councils of princes do not abide by this maxim, the consequence is

133


134 MONTESQUIEU

dreadful: when they proceed on arbitrary principles of glory, convenience, and utility, torrents of blood must overspread the earth.

But, above all, let them not plead such an idle pretext as the glory of the prince : his glory is nothing but pride ; it is a passion, and not a legitimate right.

It is true the fame of his power might increase the strength of his government ; but it might be equally increased by the reputation of his justice.

3. — Of the Right of Conquest

From the right of war comes that of conquest ; which is the consequence of that right, and ought therefore to follow its spirit.

The right the conqueror has over a conquered people is di- rected by four sorts of laws : the law of nature, which makes everything tend to the preservation of the species; the law of natural reason, which teaches us to do to others what we would have done to ourselves; the law that forms political societies, whose duration nature has not limited ; and, in fine, the law derived from the nature of the thing itself. Conquest is an acquisition, and carries with it the spirit of preservation and use, not of destruction.

The inhabitants of a conquered country are treated by the conqueror in one of the four following ways : Either he con- tinues to rule them according to their own laws, and assumes to himself only the exercise of the political and civil govern- ment, or he gives them new political and civil government ; or he destroys and disperses the society; or, in fine, he ex- terminates the people.

The first way is conformable to the law of nations now fol- lowed ; the fourth is more agreeable to the law of nations fol- lowed by the Romans : in respect to which I leave the reader to judge how far we have improved upon the ancients. We must give due commendations to our modern refinements in reason, religion, philosophy, and manners.

The authors of our public law, guided by ancient histories, without confining themselves to cases of strict necessity, have fallen into very great errors. They have adopted tyrannical


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i^S


and arbitrary principles, by supposing the conquerors to be in- vested with I know not what right to kill: thence they have drawn consequences as terrible as the very principle, and es- tablished maxims which the conquerors themselves, when pos- sessed of the least grain of sense, never presumed to follow. It is a plain case, that when the conquest is completed, the con- queror has no longer a right to kill, because he has no longer the plea of natural defence and self-preservation.

What has led them into this mistake is, that they imagined a conqueror had a right to destroy the state ; whence they in- ferred that he had a right to destroy the men that compose it : a wrong consequence from a false principle. For from the destruction of the state it does not at all follow that the people who compose it ought to be also destroyed. The state is the association of men, and not the men themselves; the citizen may perish, and the man remain.

From the right of killing in the case of conquest, politicians have drawn that of reducing to slavery — a consequence as ill grounded as the principle.

There is no such thing as a right of reducing people to slavery, save when it becomes necessary for the preservation of the conquest. Preservation, and not servitude, is the end of conquest; though servitude may happen sometimes to be a necessary means of preservation.

Even in that case it is contrary to the nature of things that the slavery should be perpetual. The people enslaved ought to be rendered capable of becoming subjects. Slavery in con- quests is an accidental thing. When after the expiration of a certain space of time all the parts of the conquering state are connected with the conquered nation, by custom, marriages, laws, associations, and by a certain conformity of disposition, there ought to be an end of the slavery. For the rights of the conqueror are founded entirely on the opposition between the two nations in those very articles, whence prejudices arise, and the want of mutual confidence.

A conqueror, therefore, who reduces the conquered people to slavery, ought always to reserve to himself the means (for means there are without number) of restoring them to their liberty.

These are far from being vague and uncertain notions. Thus


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our ancestors acted, those ancestors who conquered the Roman Empire. The laws they made in the heat and transport of pas- sion and in the insolence of victory were gradually softened ; those laws were at first severe, but were afterwards rendered impartial. The Burgundians, Goths, and Lombards would have the Romans continue a conquered people ; but the laws of Euric, Gundebald, and Rotharis made the Romans and bar- barians fellow-citizens.c^

Charlemagne, to tame the Saxons, deprived them of their liberty and property. Louis the Debonnaire made them a free people,^ and this was one of the most prudent regulations dur- ing his whole reign. Time and servitude had softened their manners, and they ever after adhered to him with the greatest fidelity.

4. — Some Advantages of a conquered People

Instead of inferring such destructive consequences from the right of conquest, much better would it have been for politicians to mention the advantages which this very right may sometimes give to a conquered people — advantages which would be more sensibly and more universally experienced were our law of nations exactly followed, and established in every part of the globe.

Conquered countries are, generally speaking, degenerated from their original institution. Corruption has crept in, the execution of the laws has been neglected, and the government has grown oppressive. Who can question but such a state would be a gainer, and derive some advantages, from the very conquest itself, if it did not prove destructive? When a gov- ernment has arrived at that degree of corruption as to be in- capable of reforming itself, it would not lose much by being newly moulded. A conqueror who enters triumphant into a country where the moneyed men have, by a variety of artifices, insensibly arrived at innumerable ways of encroaching on the public, where the miserable people, who see abuses grown into laws, are ready to sink under the weight of oppression, yet think they have no right to apply for redress — a conqueror, I say, may make a total change, and then the tyranny of those wretches will be the first thing exposed to his resentment.

a See the Code of Barbarian laws. " Life of Louis the Debonnaire," in

b See the anonymous author of the Duchesne's collection, torn. ii. p. 296.


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We have beheld, for instance, countries oppressed by the farmers of the revenues, and eased afterwards by the conqueror, who had neither the engagements nor wants of the legitimate prince. Even the abuses have been often redressed without any interposition of the conqueror.

Sometimes the frugality of a conquering nation has enabled them to allow the conquered those necessaries of which they had been deprived under a lawful prince.

A conquest may destroy pernicious prejudices, and lay, if I may presume to use the expression, the nation under a better genius.

What good might not the Spaniards have done to the Mexi- cans ? They had a mild religion to impart to them ; but they filled their heads with a frantic superstition. They might have set slaves at liberty; they made freemen slaves. They might have undeceived them with regard to the abuse of human sac- rifices ; instead of that they destroyed them. Never should I have finished, were I to recount all the good they might have done, and all the mischief they committed.

It is a conqueror's business to repair a part of the mischief he has occasioned. The right, therefore, of conquest I define thus : a necessary, lawful, but unhappy power, which leaves the conqueror under a heavy obligation of repairing the injuries done to humanity.


5. — Gelon, King of Syracuse

The noblest treaty of peace ever mentioned in history is, in my opinion, that which Gelon made with the Carthaginians. He insisted upon their abolishing the custom of sacrificing their children. c Glorious, indeed ! After having defeated three hun- dred thousand Carthaginians, he required a condition that was advantageous only to themselves, or rather he stipulated in favor of human nature.

The Bactrians exposed their aged fathers to be devoured by large mastiffs — a custom suppressed by Alexander,^ whereby he obtained a signal triumph over superstition.


c See M. Barbeyrac's collection, art. 112.


d Strabo, lib. XL


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6. — Of Conquest made by a Republic

It is contrary to the nature of things that in a confederate government one state should make any conquest over another, as in our days we have seen in Switzerland.^ In mixed con- federate republics, where the association is between petty re- publics and monarchies, of a small extent, this is not so ab- surd.

Contrary is it also to the nature of things that a democratic republic should conquer towns which cannot enter into the sphere of its democracy. It is necessary that the conquered people should be capable of enjoying the privileges of sover- eignty as was settled in the very beginning among the Romans. The conquest ought to be limited to the number of citizens fixed for the democracy.

If a democratic republic subdues a nation in order to govern them as subjects, it exposes its own liberty; because it in- trusts too great a power to those who are appointed to the com- mand of the conquered provinces.

How dangerous would have been the situation of the re- public of Carthage had Hannibal made himself master of Rome ? What would he not have done in his own country, had he been victorious, he who caused so many revolutions in it after his defeat ?f

Hanno could never have dissuaded the Senate from sending succor to Hannibal, had he used no other argument than his own jealousy. The Carthaginian Senate, whose wisdom is so highly extolled by Aristotle (and which has been evidently proved by the prosperity of that republic), could never have been determined by other than solid reasons. They must have been stupid not to see that an army at the distance of three hundred leagues would necessarily be exposed to losses which required reparation.

Hanno's party insisted that Hannibal should be delivered up to the Romans.^ They could not at that time be afraid of the Romans ; they were, therefore, apprehensive of Hannibal.

It was impossible, some will say, for them to imagine that Hannibal had been so successful. But how was it possible for

e With regard to Tockenburg. g Hanno wanted to deliver Hannibal

/ He was at the head of a faction. up to the Romans, as Cato would fain

have delivered up Caesar to the Gauls.


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them to doubt it? Could the Carthaginians, a people spread over all the earth, be ignorant of what was transacting in Italy ? No : they were sufficiently acquainted with it, and for that rea- son they did not care to send supplies to Hannibal.

Hanno became more resolute after the battle of Trebia, after the battle of Thrasimenus, after that of Cannae ; it was not his incredulity that increased, but his fear.


7. — The same Subject continued

There is still another inconvenience in conquests made by democracies : their government is ever odious to the conquered states. It is apparently monarchical : but in reality it is much more oppressive than monarchy, as the experience of all ages and countries evinces.

The conquered people are in a melancholy situation ; they neither enjoy the advantages of a republic, nor those of a mon- archy.

What has been here said of a popular state is applicable to aristocracy.

8. — The same Subject continued

When a republic, therefore, keeps another nation in subjec- tion, it should endeavor to repair the inconveniences arising from the nature of its situation by giving it good laws both for the political and civil government of the people.

We have an instance of an island in the Mediterranean, sub- ject to an Italian republic, whose political and civil laws with regard to the inhabitants of that island were extremely de- fective. The act of indemnity,^ by which it ordained that no one should be condemned to bodily punishment in consequence of the private knowledge of the governor, ex informata con- scientia, is still recent in everybody's memory. There have been frequent instances of the people's petitioning for privileges; here the sovereign grants only the common right of all na- tions.


h Of October 18, 1738, printed at Genoa by Franchelli : "Vietiamo al nos- tro general goyernatore in detta Isola di condannare in avvenire solamente ex informata conscientia persona alcuna


nazionale in pena afflittiva; potra bensl arrestare ed incarcerare le persone che gli saranno sospette, salvo di renderne poi a noi conto sollecitamente." — Art. 6.


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9. — Of Conquests made by a Monarchy

If a monarchy can long subsist before it is weakened by its increase, it will become formidable; and its strength will re- main entire, while pent up by the neighboring monarchies.

It ought not, therefore, to aim at conquests beyond the natural limits of its government. So soon as it has passed these limits, it is prudence to stop.

In this kind of conquest things must be left as they were found — the same courts of judicature, the same laws, the same customs, the same privileges: there ought to be no other al- teration than that of the army and of the name of the sovereign.

When a monarchy has extended its limits by the conquest of neighboring provinces, it should treat those provinces with great lenity.

If a monarchy has been long endeavoring at conquest, the provinces of its ancient demesne are generally ill used. They are obliged to submit both to the new and to the ancient abuses ; and to be depopulated by a vast metropolis, that swallows up the whole. Now if, after having made conquests round this demesne, the conquered people were treated like the ancient subjects, the state would be undone; the taxes sent by the conquered provinces to the capital would never return ; the inhabitants of the frontiers would be ruined, and consequently the frontiers would be weaker; the people would be disaf- fected ; and the subsistence of the armies designed to act and remain there would become more precarious.

Such is the necessary state of a conquering monarchy: a shocking luxury in the capital ; misery in the provinces some- what distant; and plenty in the most remote. It is the same with such a monarchy as with our planet: fire at the centre, verdure on the surface, and between both a dry, cold, and bar- ren earth.

10. — Of one Monarchy that subdues another

Sometimes one monarchy subdues another. The smaller the latter, the better it is over-awed by fortresses ; and the larger it is, the better will it be preserved by colonies.


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II. — Of the Manners of a conquered People It is not sufficient in those conquests to let the conquered nation enjoy their own laws ; it is, perhaps, more necessary to leave them also their manners, because people in general have a stronger attachment to these than to their laws.

The French have been driven nine times out of Italy, because, as historians say,* of their insolent familiarities with the fair sex. It is too much for a nation to be obliged to bear not only with the pride of conquerors, but with their incontinence and indiscretion ; these are, without doubt, most grievous and in- tolerable, as they are the source of infinite outrages.

12. — Of a Law of Cyrus

Far am I from thinking that a good law which Cyrus made to oblige the Lydians to practise none but mean or infamous professions. It is true he directed his attention to an object of the greatest importance : he thought of guarding against revolts, and not invasions ; but invasions will soon come, when the Persians and Lydians unite and corrupt each other. I would, therefore, much rather support by laws the simplicity and rudeness of the conquering nation than the effeminacy of the conquered.

Aristodemus, tyrant of Cumae,/ used all his endeavors to banish courage, and to enervate the minds of youth. He or- dered that boys should let their hair grow in the same manner as girls, that they should deck it with flowers, and wear long robes of different colors down to their heels ; that when they went to their masters of music and dancing, they should have women with them to carry their umbrellas, perfumes, and fans, and to present them with combs and looking-glasses whenever they bathed. This education lasted till the age of twenty — an education that could be agreeable to none but to a petty tyrant, who exposes his sovereignty to defend his Hfe.

13. — Charles XII This prince, who depended entirely on his own strength, hastened his ruin by forming designs that could never be exe- cuted but by a long war — a thing which his kingdom was unable to support.

i See Puffendorf's " Universal History." ; Dionys. Halicar. lib. VII.


142 MONTESQUIEU

It was not a declining state he undertook to subvert, but a rising empire. The Russians made use of the war he waged against them as of a miUtary school. Every defeat brought them nearer to victory; and, losing abroad, they learned to defend themselves at home.

Charles, in the deserts of Poland, imagined himself sovereign of the whold world : here he wandered, and with him in some measure wandered Sweden ; while his capital enemy acquired new strength against him, locked him up, made settlements along the Baltic, destroyed or subdued Livonia.

Sweden was like a river whose waters are cut off at the foun- tain-head in order to change its course.

It was not the affair of Pultowa that ruined Charles. Had he not been destroyed at that place, he would have been in an- other. The casualties of fortune are easily repaired ; but who can be guarded against events that incessantly arise from the nature of things ?

But neither nature nor fortune were ever so much against him as he himself.

He was not directed by the present situation of things, but by a kind of plan of his forming; and even this he followed very ill. He was not an Alexander ; but he would have made an excellent soldier under that monarch.

Alexander's project succeeded because it was prudently con- certed.^ The bad success of the Persians in their several in- vasions of Greece, the conquests of Agesilaus, and the retreat of the ten thousand had shown to demonstration the superiority of the Greeks in their manner of fighting and in their arms; and it was well known that the Persians were too proud to be corrected.

It was no longer possible for them to weaken Greece by di- visions : Greece was then united under one head, which could not pitch upon a better method of rendering her insensible to her servitude than by flattering her vanity with the destruction of her hereditary enemy, and with the hopes of the conquest of Asia.

An empire cultivated by the most industrious nation in the world, that followed agriculture from a principle of religion —

k Montesquieu, Voltaire, and Robert- the first historians to render justice to pon (in his History of America") were this extraordinary general. — Servan,


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an empire abounding with every convenience of life — furnished the enemy with all necessary means of subsisting.

It was easy to judge by the pride of those kings, who in vain were mortified by their numerous defeats, that they would pre- cipitate their ruin by their forwardness in venturing battles; and that the flattery of their courtiers would never permit them to doubt of their grandeur.

The project was not only wise, but wisely executed. Alex- ander, in the rapidity of his conquests, even in the impetuosity of his passion, had, if I may so express myself, a flash of reason by which he was directed, and which those who would fain have made a romance of his history, and whose minds were more corrupt than his, could not conceal from our view. Let us descend more minutely into his history.

14. — Alexander

He did not set out upon his expedition till he had secured Macedonia against the neighboring barbarians, and completed the reduction of Greece; he availed himself of this conquest for no other end than for the execution of his grand enterprise ; he rendered the jealousy of the Lacedaemonians of no effect ; he attacked the maritime provinces ; he caused his land forces to keep close to the sea-coast, that they might not be separated from his fleet ; he made an admirable use of discipline against numbers ; he never wanted provisions ; and if it be true that victory gave him everything, he, in his turn, did everything to obtain it.

In the beginning of his enterprise^ — a time when the least check might have proved his destruction — he trusted very lit- tle to fortune ; but when his reputation was established by a series of prosperous events, he sometimes had recourse to temerity. When before his departure for Asia he marched against the Triballians and lUyrians, you find he waged waW against those people in the very same manner as Csesar after- wards conducted that against the Gauls. Upon his return to Greece,w^ it was in some measure against his will that he took and destroyed Thebes. When he invested that city, he wanted the inhabitants to come into terms of peace ; but they hastened their own ruin. When it was debated, whether he should at-

/ See Arrian, " De Expedit. Alexandri," lib. I. m Ibid.


144 MONTESQUIEU

tack the Persian fleet,w it is Parmenio who shows his presump- tion, Alexander his wisdom. His aim was, to draw the Persians from the sea-coast, and to lay them under a necessity of aban- doning their marine, in which they had a manifest superiority. Tyre being from principle attached to the Persians, who could not subsist without the commerce and navigation of that city, Alexander destroyed it. He subdued Egypt, which Darius had left bare of troops while he was assembling immense armies in another world.

To the passage of the Granicus, Alexander owed the con- quest of the Greek colonies ; to the battle of Issus, the reduction of Tyre and Egypt ; to the battle of Arbela, the empire of the world.

After the battle of Issus, he suffered Darius to escape, and employed his time in securing and regulating his conquests: after the battle of Arbela, he pursued him so closer as to leave him no place of refuge in his empire. Darius enters his towns, his provinces, to quit them the next moment ; and Alexander marches with such rapidity that the empire of the world seems to be rather the prize of an Olympian race than the fruit of a great victory.

In this manner he carried on his conquests : let us now see how he preserved them.

He opposed those who would have had him treat the Greeks as masters/' and the Persians as slaves. He thought only of uniting the two nations, and of abolishing the distinctions of a conquering and a conquered people. After he had completed his victories, he relinquished all those prejudices that had helped him to obtain them. He assumed the manners of the Persians, that he might not chagrin them too much by obliging them to conform to those of the Greeks. It was this humanity which made him show so great a respect for the wife and mother of Darius ; and this that made him so continent. What a con- queror! He is lamented by all the nations he has subdued! What a usurper ! At his death the very family he has cast from the throne is all in tears. These were the most glorious pas- sages in his life, and such as history cannot produce an instance of in any other conqueror.

n See Arrian, " De Expedit. Alexan- p This was Aristotle's advice. Plu-

dri," lib. I. larch's " Morals," of the fortune and

o Ibid. lib. III. virtue of Alexander,


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Nothing consolidates a conquest more than the union formed between the two nations by marriages. Alexander chose his wives, from the nation he had subdued ; he insisted on his cour- tiers doing the same ; and the rest of the Macedonians followed the example. The Franks and Burgundians permitted those marriages ;« the Visigoths forbade them in Spain, and after- wards allowed them.*' By the Lombards they were not only al- lowed, but encouraged.^ When the Romans wanted to weaken Macedonia, they ordered that there should be no intermarriages between the people of different provinces.

Alexander, whose aim was to unite the two nations, thought fit to establish in Persia a great number of Greek colonies. He built, therefore, a multitude of towns ; and so strongly were all the parts of this new empire cemented, that after his decease, amidst the disturbances and confusion of the most frightful civil wars, when the Greeks had reduced themselves, as it were, to a state of annihilation, not a single province of Persia revolted.

To prevent Greece and Macedon from being too much ex- hausted, he sent a colony of Jewso to Alexandria; the man- ners of those people signified nothing to him, provided he could be sure of their fidelity.

He not only suffered the conquered nations to retain their own customs and manners, but likewise their civil laws; and frequently the very kings and governors to whom they had been subject: the Macedonians^ he placed at the head of the troops, and the natives of the country at the head of the gov- ernment, rather choosing to run the hazard of a particular dis- loyalty (which sometimes happened) than of a general revolt.

He paid great respect to the ancient traditions, and to all the public monuments of the glory or vanity of nations. The Per- sian monarchs having destroyed the temples of the Greeks, Babylonians, and Egyptians, Alexander rebuilt theniic few nations submitted to his yoke to whose religion he did not con- form ; and his conquests seem to have been intended only to

q See the " Law of the Burgundians," a The kings of Syria, abandoning the

tit. 12, art. 5. plan laid down by the founder of the

r See the " Law of the Visigoths," empire, resolved to oblige the Jews to

book III. tit. I, sec. i, which abrogates conform to the manners of the Greeks

the ancient law, that had more regard, — a resolution that gave the most ter-

it says, to the difference of nations than rible shock to their government,

to that of people's conditions. h See Arrian, " De Expedit. Alexan-

s See the " Law of the Lombards," dri," lib. III., and others,

book II. tit. 7, sees, i and 2. c Ibid.

Vol. I. — 10


146 MONTESQUIEU

make him the particular monarch of each nation, and the first inhabitant of each city. The aim of the Romans in conquest was to destroy, his to preserve ; and wherever he directed his victorious arms, his chief view was to achieve something, whence that country might derive an increase of prosperity and power. To attain this end, he was enabled first of all by the greatness of his genius ; secondly, by his frugality and private economy \d thirdly, by his profusion in matters of importance. He was close and reserved in his private expenses, but gen- erous to the highest degree in those of a public nature. In regulating his household, he was the private Macedonian ; but in paying the troops, in sharing his conquests with the Greeks, and in his largesses to every soldier in his army, he was Alex- ander.

He committed two very bad actions in setting Persepolis on fire and slaying Clitus ; but he rendered them famous by his repentance. Hence it is that his crimes are forgotten, while his regard for virtue was recorded : they were considered rather as unlucky accidents than as his own deliberate acts. Poster- ity, struck with the beauty of his mind, even in the midst of his irregular passion, can view him only with pity, but never with an eye of hatred.

Let us draw a comparison between him and Caesar. The Roman general, by attempting to imitate the Asiatic monarch, flung his fellow-citizens into a state of despair for a matter of mere ostentation ; the Macedonian prince, by the same imita- tion, did a thing which was quite agreeable to his original scheme of conquest.

15. — New Methods of preserving a Conquest

When a monarch has subdued a large country, he may make use of an admirable method equally proper for moderating des- potic power, and for preserving the conquest ; it is a method practised by the conquerors of China.

In order to prevent the vanquished nation from falling into despair, the victors from growing insolent and proud, the gov- ernment from becoming military, and to contain the two na- tions within their duty, the Tartar family now on the throne of China has ordained that every military corps in the provinces

d See Arrian, " Pe Expedit. Alexandri," lib. III., and others.


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should be composed half of Chinese and half Tartars, to the end that the jealousy between the two nations may keep them with- in bounds. The courts of judicature are likewise half Chinese and half Tartars. This is productive of several good effects : I. The two nations are a check to one another. 2. They both preserve the civil and military power, and one is not destroyed by the other. 3. The conquering nation may spread itself with- out being weakened and lost. It is likewise enabled to with- stand civil and foreign wars. The want of so wise an institu- tion as this has been the ruin of almost all the conquerors that ever existed.

16. — Of Conquests made by a despotic Prince

When a conquest happens to be vastly large, it supposes a despotic power ; and then the army dispersed in the provinces is not sufficient. There should be always a body of faithful troops near the prince, ready to fall instantly upon any part of the empire that may chance to waver. This military corps ought to awe the rest, and to strike terror into those who through necessity have been intrusted with any authority in the empire. The emperor of China has always a large body of Tartars near his person, ready upon all occasions. In India, in Turkey, in Japan, the prince has always a body-guard inde- pendent of the other regular forces. This particular corps keeps the dispersed troops in awe.

17. — The same Subject continued

We have observed that the countries subdued by a despotic monarch ought to be held by a vassal. Historians are very lavish of their praises of the generosity of those conquerors who restored the princes to the throne whom they had van- quished. Extremely generous, then, were the Romans, who made such a number of kings, in order to have instruments of slavery.^ A proceeding of that kind is absolutely necessary. If the conqueror intends to preserve the country which he has subdued, neither the governors he sends will be able to contain the subjects within duty, nor he himself the governors. He will be obliged to strip his ancient patrimony of troops, in

e " Ut haberent instrumenta servitutis et reges."— Tacitus, " Life of Agricola," 14.


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order to secure his new dominions. The miseries of each na- tion will be common to both ; civil broils will spread them- selves from one to the other. On the contrary, if the conqueror restores the legitimate prince to the throne, he will of course have an ally ; by the junction of whose forces his own power will be augmented. We have a recent instance of this in Shah Nadir, who conquered the Mogul, seized his treasures, and left him in possession of Hindostan.


BOOK XI

OF THE LAWS WHICH ESTABLISH POLITICAL LIBERTY WITH REGARD TO THE CONSTITUTION.

I. — A general Idea

I MAKE a distinction between the laws that estabUsh poHti- cal liberty as it relates to the constitution, and those by which it is established as it relates to the citizen. The former shall be the subject of this book ; the latter I shall ex- amine in the next.

2. — Different Significations of the word Liberty

There is no word that admits of more various significations, and has made more varied impressions on the human mind, than that of liberty. Some have taken it as a means of depos- ing a person on whom they had conferred a tyrannical author- ity; others for the power of choosing a superior whom they are obliged to obey ; others for the right of bearing arms, and of being thereby enabled to use violence ; others, in fine, for the privilege of being governed by a native of their own coun- try, or by their own laws.« A certain nation for a long time thought liberty consisted in the privilege of wearing a long beard.& Some have annexed this name to one form of govern- ment exclusive of others: those who had a republican taste applied it to this species of polity ; those who liked a monarchi- cal state gave it to monarchy.^ Thus they have all applied the name of liberty to the government most suitable to their own customs and inclinations : and as in republics the people have not so constant and so present a view of the causes of their misery, and as the magistrates seem to act only in conformity

o " I have copied," says Cicero, b The Russians could not bear that

" Scsevola's edict, which permits the Czar Peter should make them cut if ofif.

Greeks to terminate their difference c The Cappadocians refused the con-

among themselves according to their dition of a republican state, which was

own laws; this makes them consider offered them by the Romans, themselves a free people."

149


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to the laws, hence Hberty is generally said to reside in republics, and to be banished from monarchies. In fine, as in democra- cies the people seem to act almost as they please, this sort of government has been deemed the most free, and the power of the people has been confounded with their liberty.

3. — In what Liberty consists

It is true that in democracies the people seem to act as they please; but political liberty does not consist in an un- limited 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 differ- ence between independence and liberty. Liberty is a right of doing whatever the laws permit,^ and if a citizen could do what they forbid he would be no longer possessed of liberty, because all his fellow-citizens would have the same power.

4. — The same Subject continued

Democratic and aristocratic states are not in their own nat- ure free. Political liberty is to be found only in moderate gov- ernments ; and even in these it is not always found. It is there only when there is no abuse of power. But constant experi- ence shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. Is it not strange, though true, to say that virtue itself has need of limits ?

To prevent this abuse, it is necessary from the very nature of things that power should be a check to power. A govern- ment may be so constituted, as no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits.

5. — Of the End or View or different Governments

Though all governments have the same general end, which is that of preservation, yet each has another particular object. Increase of dominion was the object of Rome; war, that of

d " Omnes legum servi sumus ut liberi esse possimus."— Cicero, " pro Clu- entio," S3.


I


THE SPIRIT OF LAWS 151

Sparta ; religion, that of the Jewish laws ; commerce, that of Marseilles; public tranquillity, that of the laws of China :^ navigation, that of the laws of Rhodes ; natural liberty, that of the policy of the Savages; in general, the pleasures of the prince, that of despotic states ; that of monarchies, the prince's and the kingdom's glory; the independence of individuals is the end aimed at by the laws of Poland, thence results the op- pression of the whole/

One nation there is also in the world that has for the direct end of its constitution political liberty. We shall presently ex- amine the principles on which this liberty is founded ; if they are sound, liberty will appear in its highest perfection.

To discover political liberty in a constitution, no great labor is requisite. If we are capable of seeing it where it exists, it is soon found, and we need not go far in search of it.

6. — Of the Constitution of England g

In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations ; and the executive in regard to matters that depend on the civil law.

By virtue of the first, the prince or magistrate enacts tem- porary 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 secur- ity, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between indi- viduals. 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

eThe natural end of a state that has ^ The greater part of the principles

no foreign enemies, or that thinks itself produced in this chapter by Montes-

secured against them by barriers. quieu is derived from Locke's " Treatise

f Inconvenience of the " Liberum upon Civil Government," xii.— Ed. veto."


152 MONTESQUIEU

monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of exe- cuting the public resolutions, and of trying the causes of indi- viduals.

Most kingdoms in Europe enjoy a moderate government because the prince who is invested with the two first powers leaves the third to his subjects. In Turkey, where these three powers are united in the Sultan's person, the subjects groan under the most dreadful oppression.

In the repubHcs 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,/* and the lion's mouth into which every in- former may at all hours throw his written accusations.

In what a situation must the poor subject be in those re- publics ! The same body of magistrates are possessed, as exec- utors of the laws, of the whole power they have given them- selves 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 magis- tracy, and all the great offices of state.

I allow indeed that the mere hereditary aristocracy of the

h At Venice.


>


THE SPIRIT OF LAWS 153

Italian republics does not exactly answer to the despotic power of the Eastern princes. The number of magistrates sometimes moderate the power of the magistracy; the whole body of the nobles do not always concur in the same design ; and dif- ferent 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 mis- chief is, that these different tribunals are composed of magis- trates all belonging to the same body; which constitutes al- most 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 i at certain times of the year, and consistently with a form and manner prescribed by law, in order to erect a tribunal that should last only so long as necessity requires.

By this method the judicial power, so terrible to mankind, not being annexed to any particular state or profession, be- comes, as it were, invisible. People have not then the judges continually present to their view ; they fear the office, but not the magistrate.

In accusations of a deep and criminal nature, it is proper the person accused should have the privilege of choosing, in some measure, his judges, in concurrence with the law; or at least he should have a right to except against so great a num- ber 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 pri- vate subject ; one being no more than the general will of the state, and the other the execution of that general will.

But though the tribunals ought not to be fixed, the judg- ments ought ; and to such a degree as to be ever conformable to the letter of the law. Were they to be the private opinion of the judge, people would then live in society, without exactly knowing the nature of their obligations.

The judges ought likewise to be of the same rank as the accused, or, in other words, his peers ; to the end that he may not imagine he is fallen into the hands of persons inclined to treat him with rigor.

If the legislature leaves the executive power in possession

»As at Athens.


154 MONTESQUIEU

of a right to imprison those subjects who can give security for their good behavior, there is an end of hberty ; unless they are taken up, in order to answer without delay to a capital crime, in which case they are really free, being subject only to the power of the law.

But should the legislature think itself in danger by some secret conspiracy against the state, or by a correspondence with a foreign enemy, it might 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 forever.

And this is the only reasonable method that can be sub- stituted to the tyrannical magistracy of the Ephori, and to the state inquisitors of Venice, who are also despotic.

As in a country of liberty, every man who is supposed a free agent ought to be his own governor; the legislative power should reside in the whole body of the people. But since this is impossible in large states, and in small ones is subject to many inconveniences, it is fit the people should transact by their representatives what they cannot transact by themselves.

The inhabitants of a particular town are much better ac- quainted with its wants and interests than with those of other places ; and are better judges of the capacity of their neighbors 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 con- siderable place a representative should be elected by the in- habitants.;

The great advantage of representatives is, their capacity of discussing public affairs. For this the people collectively are extremely unfit, which is one of the chief inconveniences of a democracy.

It is not at all necessary that the representatives who have received a general instruction from their constituents should wait to be directed on each particular affair, as is practised in the diets of Germany. True it is that by this way of proceeding the speeches of the deputies might with greater propriety be called the voice of the nation; but, on the other hand, this would occasion infinite delays; would give each deputy a

j See Aristotle, " Polit." III. cap. vii.


THE SPIRIT OF LAWS 155

power of controlling the assembly; and, on the most urgent and pressing occasions, the wheels of government might be stopped by the caprice of a single person.

When the deputies, as Mr. Sidney well observes, represent a body of people, as in Holland, they ought to be accountable to their constituents; but it is a different thing in England, where they are deputed by boroughs.

All the inhabitants of the several districts ought to have a right of voting at the election of a representative, except such as are in so mean a situation as to be deemed to have no will of their own.

One great fault there was in most of the ancient republics, that the people had a right to active resolutions, such as re- quire some execution, a thing of which they are absolutely incapable. They ought to have no share in the government but for the choosing of representatives, which is within their reach. For though few can tell the exact degree of men's capacities, yet there are none but are capable of knowing in general whether the person they choose is better qualified than most of his neighbors.

Neither ought the representative body to be chosen for the executive part of government, for which it is not so fit; but for the enacting of laws, or to see whether the laws in being are duly executed, a thing suited to their abilities, and which none indeed but themselves can properly perform.

In such a state there are always persons distinguished by their birth, riches, or honors : but were they to be confounded with the common people, and to have only the weight of a sin- gle 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 pro- portioned to their other advantages in the state; which hap- pens only when they form a body that has a right to check the licentiousness of the people, as the people have a right to oppose any encroachment of theirs.

The legislative power is therefore committed to the body of the nobles, and to that which represents the people, each hav- ing their assemblies and deliberations apart, each their sepa- rate views and interests.


156 MONTESQUIEU

Of the three powers above mentioned, the judiciary is in some measure next to nothing: there remain, therefore, only two; and as these have need of a regulating power to mod- erate them, the part of the legislative body composed of the nobility is extremely proper for this purpose.

The body of the nobility ought to be hereditary. In the first place it is so in its own nature; and in the next there must be a considerable interest to preserve its privileges — privileges that in themselves are obnoxious to popular envy, and of course in a free state are always in danger.

But as a hereditary power might be tempted to pursue its own particular interests, and forget those of the people, it is proper that where a singular advantage may be gained by corrupting the nobility, as in the laws relating to the supplies, they should have no other share in the legislation than the power of rejecting, and not that of resolving.

By the power of resolving I mean the right of ordaining by their own authority, or of amending what has been or- dained by others. By the power of rejecting I would be under- stood to mean the right of annulling a resolution taken by an- other; which was the power of the tribunes at Rome. And though the person possessed of the privilege of rejecting may likewise have the right of approving, yet this approbation passes for no more than a declaration, that he intends to make no use of his privilege of rejecting, and is derived from that very privilege.

The executive power ought to be in the hands of a monarch, because this branch of government, having need of despatch, is better administered by one than by many : on the other hand, whatever depends on the legislative power is oftentimes better regulated by many than by a single person.

But if there were no monarch, and the executive power should be committed to a certain number of persons selected from the legislative body, there would be an end then of lib- erty; by reason the two powers would be united, as the same persons would sometimes possess, and would be always able to possess, a share in both.

Were the legislative body to be a considerable time without meeting, this would likewise put an end to liberty. For of two things one would naturally follow : either that there would be


THE SPIRIT OF LAWS 157

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 repre- sentatives, and, moreover, would cut out too much work for the executive power, so as to take off its attention to its office, and oblige it to think only of defending its own prerogatives, and the right it has to execute.

Again, were the legislative body to be always assembled, it might happen to be kept up only by filling the places of the deceased members with new representatives ; and in that case, if the legislative body were once corrupted, the evil would be past all remedy. When different legislative bodies succeed one another, the people who have a bad opinion of that which is actually sitting may reasonably entertain some hopes of the next : but were it to be always the same body, the people upon seeing it once corrupted would no longer expect any good from its laws; and of course they would either become desperate or fall into a state of indolence.

The legislative body should not meet of itself. For a body is supposed to have no will but when it is met; and besides, were it not to meet unanimously, it would be impossible to de- termine which was really the legislative body ; the part assem- bled, or the other. And if it had a right to prorogue itself, it might happen never to be prorogued; which would be ex- tremely dangerous, in case it should ever attempt to encroach on the executive power. Besides, there are seasons, some more proper than others, for assembling the legislative body: it is fit, therefore, that the executive power should regulate the time of meeting, as well as the duration of those assemblies, ac- cording to the circumstances and exigencies of a state known to itself.

Were the executive power not to have a right of restraining the encroachments of the legislative body, the latter would be- come despotic ; for as it might arrogate to itself what authority it pleased, it would soon destroy all the other powers.

But it is not proper, on the other hand, that the legislative power should have a right to stay the executive. For as the execution has its natural limits, it is useless to confine it; be-


158 MONTESQUIEU

sides, the executive power is generally employed in momentary operations. The power, therefore, of the Roman tribunes was faulty, as it put a stop not only to the legislation, but likewise to the executive part of government ; which was attended with infinite mischief.

But if the legislative power in a free state has no right to stay the executive, it has a right and ought to have the means of examining in what manner its laws have been executed ; an advantage which this government has over that of Crete and Sparta, where the Cosmi k and the Ephori I gave no account of their administration.

But whatever may be the issue of that examination, the legislative body ought not to have a power of arraigning the person, nor, of course, the conduct, of him who is 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 republic, though not a free government. But as the person intrusted with the executive power cannot abuse it with- out bad counsellors, and such as have the laws as ministers, though the laws protect them as subjects, these men may be examined and punished — an advantage which this government has over that of Gnidus, where the law allowed of no such thing as calling the Amymones ^ to an account, even after their administration ;n and therefore the people could never obtain any satisfaction for the injuries done them.

Though, in g^eneral, 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 ac- cused.

The great are always obnoxious to popular envy ; and were they to be judged by the people, they might be in danger from their judges, and would, moreover, be deprived of the privilege which the meanest subject is possessed of in a free state, of being tried by his peers. The nobility, for this reason, ought

k See Aristotle, " Repub." II. cap. x. n It was lawful to accuse the Roman

/ Ibid. cap. ix. magistrates after the expiration of their

m These were magistrates chosen an- several offices. See in Dionys. Hali-

nually by the people. See Stephen of earn. lib. IX. the affair of Genutius the

ByzantituHr tribune.


THE SPIRIT OF LAWS 159

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 bhnd 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 an- other occasion, also is a necessary tribunal in this ; it belongs to its supreme authority to moderate the law in favor of the law itself, by mitigating the sentence.

It might also happen that a subject intrusted with the admin- istration of public affairs may infringe the rights of the people, and be guilty of crimes which the ordinary magistrates either could not or would not punish. But, in general, the legislative power cannot try causes : and much less can it try this partic- ular case, where it represents the party aggrieved, which is the people. It can only, therefore, impeach. But before what court shall it bring its impeachment ? Must it go and demean itself before the ordinary tribunals, which are its inferiors, and, being composed, moreover, of men who are chosen from the people as well as itself, will naturally be swayed by the author- ity of so powerful an accuser ? No : in order to preserve the dignity of the people and the security of the subject, the legis- lative part which represents the people must bring in its charge before the legislative part which represents the nobility, who have neither the same interests nor the same passions.

Here is an advantage which this government has over most of the ancient republics, where this abuse prevailed, that the people were at the same time both judge and accuser.

The executive power, pursuant of what has been already said, ought to have a share in the legislature by the power of rejecting; otherwise it would soon be stripped of its preroga- tive. But should the legislative power usurp a share of the executive, the latter would be equally undone.

If the prince were to have a part in the legislature by the power of resolving, liberty would be lost. But as it is neces- sary he should have a share in the legislature for the support


i6o MONTESQUIEU

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 intrusted with the other, had the right of rejecting, which was entirely lodged in the people.

Here, then, is the fundamental constitution of the govern- ment we are treating of. The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting. They are both restrained by the executive power, as the executive is by the legislative.

These three powers should naturally form a state of repose or inaction. But as there is a necessity for movement in the course of human affairs, they are forced to move, but still in concert.

As the executive power has no other part in the legislative than the privilege of rejecting, it can have no share in the public debates. It is not even necessary that it should propose, because as it may always disapprove of the resolutions that shall be taken, it may Hkewise reject the decisions on those pro- posals 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 execu- tive power to propose and debate in conjunction with the peo- ple, 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 im- portant point of legislation.

If the legislative power was to settle the subsidies, not from year to year, but forever, it would run the risk of losing its liberty, because the executive power would be no longer de- pendent ; and when once it was possessed of such a perpetual right, it would be a matter of indiflference 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 com- mand of the fleets and armies to the executive power.

To prevent the executive power from being able to oppress, it is requisite that the armies with which it is intrusted should


THE SPIRIT OF LAWS 161

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 em- ployed in the army should have sufficient property to answer for their conduct to their fellow-subjects, and be enHsted 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 dis- band them as soon as it pleased; the soldiers should live in common with the rest of the people ; and no separate camp, barracks, or fortress should be suffered.

When once an army is established, it ought not to depend immediately on the legislative, but on the executive power; and this from the very nature of the thing, its business con- sisting more in action than in dehberation.

It is natural for mankind to set a higher value upon courage than timidity, on activity than prudence, on strength than counsel. Hence the army will ever despise a senate, and re- spect their own officers. They will naturally slight the orders sent them by a body of men whom they look upon as cowards, and therefore unworthy to command them. So that as soon as the troops depend entirely on the legislative body, it be- comes a military government; and if the contrary has ever happened, it has been owing to some extraordinary circum- stances. It is because the army was always kept divided ; it is because it was composed of several bodies that depended each on a particular province : it is because the capital towns were strong places, defended by their natural situation, and not gar- risoned with regular troops. Holland, for instance, is still safer than Venice ; she might drown or starve the revolted troops ; for as they are not quartered in towns capable of furnishing them with necessary subsistence, this subsistence is of course precarious.

In perusing the admirabh treatise of Tacitus " On the Man- ners of the Germans," we find it is from that nation the Eng- lish have borrowed the idea of their political government. This beautiful system was invented first in the woods.

As all human things have an end, the state we are speaking

De minoribus rebus principes con- arbitrium est, apud principes pertcac- sultant de majoribus omnes; ita tamen tentur. ut ea quoque quorum penes plebem

Vol. I. — II


i62 MONTESQUIEU

of will lose its liberty, will perish. Have not Rome, Sparta, and Carthage perished ? It will perish when the legislative power shall be more corrupt than the executive.

It is not my business to examine whether the English actu- ally enjoy this liberty or not. Sufficient it is for my purpose to observe that it is established by their laws ; and I inquire no further.

Neither do I pretend by this to undervalue other govern- ments, nor to say that this extreme political liberty ought to give uneasiness to those who have only a moderate share of it. How should I have any such design, I who think that even the highest refinement of reason is not always desirable, and that mankind generally find their account better in mediums than ♦in extremes ?

Harrington, in his " Oceana," has also inquired into the ut- most degree of liberty to which the constitution of a state may be carried. But of him, indeed, it may be said that for want of knowing the nature of real liberty he busied himself in pursuit of an imaginary one ; and that he built a Chalcedon, though he had a Byzantium before his eyes.

7. — Of the Monarchies we are acquainted with

The monarchies we are acquainted with have not, like that we have been speaking of, liberty for their direct view: the only aim is the glory of the subject, of the state, and of the sovereign. But hence there results a spirit of liberty, which in those states is capable of achieving as great things, and of contributing as much, perhaps, to happiness, as liberty itself.

Here the three powers are not distributed and founded on the model of the constitution above mentioned ; they have each a particular distribution, according to which they border more or less on political liberty ; and if they did not border upon it, monarchy would degenerate into despotic government.

8. — Why the Ancients had not a clear Idea of Monarchy

The ancients had no notion of a government founded on a body of nobles, and much less on a legislative body composed of the representatives of the people. The republics of Greece and Italy were cities that had each their own form of govern-


I


THE SPIRIT OF LAWS 163

ment, and convened their subjects within their walls. Before Rome had swallowed up all the other repubhcs, there was scarcely- anywhere a king to be found, no, not in Italy, Gaul, Spain, or Germany;/' they were all petty states or repubhcs. Even Africa itself was subject to a great commonwealth: and Asia Minor was occupied by Greek colonies. There was, there- fore, no instance of deputies of towns or assemblies of the states ; one must have gone as far as Persia to find a monarchy.

I am not ignorant that there were confederate republics ; in which several towns sent deputies to an assembly. But I affirm there was no monarchy on that model.

The first plan, therefore, of the monarchies we are acquainted with was thus formed. The German nations that conquered the Roman Empire were certainly a free people. Of this we may be convinced only by reading Tacitus " On the Manners of the Germans." The conquerors spread themselves over all the country; living mostly in the fields, and very little in towns. When they were in Germany, the whole nation was able to assemble. This they could no longer do, when dis- persed through the conquered provinces. And yet as it was necessary that the nation should deHberate on public affairs, pursuant to their usual method before the conquest, they had recourse to representatives. Such is the origin of the Gothic government amongst us. At first it was mixed with aristoc- racy and monarchy — a mixture attended with this inconven- ience, that the common people were bondmen. The custom afterwards succeeded of granting letters of enfranchisement, and was soon followed by so perfect a harmony between the civil liberty of the people, the privileges of the nobility and clergy, and the prince's prerogative, that I really think there never was in the world a government so well tempered as that of each part of Europe, so long as it lasted. Surprising that the corruption of the government of a conquering nation should have given birth to the best species of constitution that could possibly be imagined by man !

p Nevertheless, during the same epoch there were kings in Macedonia, Syria, Egypt, etc.— Crevier.


1 64 MONTESQUIEU

9. — Aristotle's Manner of Thinking

Aristotle is greatly puzzled in treating of monarchy .0 He makes five species ; and he does not distinguish them by the form of constitution, but by things merely accidental, as the virtues and vices of the prince ; or by things extrinsic, such as tyranny usurped or inherited.

Among the number of monarchies he ranks the Persian Em- pire and the Kingdom of Sparta. But is it not evident that the one was a despotic state and the other a republic ?

The ancients, w^ho were strangers to the distribution of the three powers in the government of a single person, could never form a just idea of monarchy.

10. — What other Politicians thought

To temper monarchy, Arybas,& King of Epirus,c found no other remedy than a republic. The Molossi, not knowing how to limit the same power, made two kings,^ by which means the state was weakened more than the prerogative; they wanted rivals, and they created enemies.

Two kings were tolerable nowhere but at Sparta ; here they did not form, but were only a part of, the constitution.

II. — Of the Kings of the heroic Times of Greece

In the heroic times of Greece, a kind of monarchy arose that was not of long duration.^ Those who had been inventors of arts, who had fought in their country's cause, who had es- tablished societies, or distributed lands among the people, ob- tained the regal power, and transmitted it to their children. They were kings, priests, and judges. This was one of the five species of monarchy mentioned by Aristotle f and the only one that can give us any idea of the monarchical constitution. But the plan of this constitution is opposite to that of our modern monarchies.

The three powers were there distributed in such a manner

a " Polit." book III. chap. xiv. d Arist. " Polit." book V. chap. viii.

h Notwithstanding the fact that Ary- Montesquieu seems to have miscon-

bas sought to render his monarchy strued Aristotle, since the Molossi never

more stable, the kings of Epirus re- had but one kine. — P.

tained their power until overthrown by e Ibid., book III. chap. xiv.

Paulus ^milius.— D. /Ibid.,

c See Justin, book XVII.


THE SPIRIT OF LAWS 165

that the people were the legislature,^ and the king had the executive together with the judiciary power; whereas in mod- ern monarchies the prince is invested with the executive and legislative powers, or at least with part of the legislative, but does not act in a judiciary capacity.

In the government of the kings of the heroic times, the three powers were ill distributed. Hence those monarchies could not long subsist. For as soon as the people got the legislative power into their hands, they might, as they everywhere did, upon the very least caprice, subvert the regal authority.

Among a free people possessed of the legislative power, and enclosed within walls, where everything tending towards op- pression appears still more odious, it is the masterpiece of legis- lation to know where to place properly the judiciary power. But it could not be in worse hands than in those of the person to whom the executive power had been already committed. From that very instant the monarch became terrible. But at the same time as he had no share in the legislature, he could make no defence against it ; thus his power was in one sense too great, in another too little.

They had not as yet discovered that the true function of a prince was to appoint judges, and not to sit as judge himself. The opposite policy rendered the government of a single per- son insupportable. Hence all these kings were banished. The Greeks had no notion of the proper distribution of the three powers in the government of one person ; they could see it only in that of many; and this kind of constitution they distin- guished by the name of Polity.^

12. — Of the Government of the Kings of Rome, and in what

Manner the three Powers were there distributed The government of the kings of Rome had some relation to that of the kings of the heroic times of Greece. Its subver- sion, like the latter's, was owing to its general defect, though in its own particular nature it was exceedingly good.

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

g See what Plutarch says in the " Life h Aristot. " Polit." book IV. chap,

of Theseus." See likewise " Thucy- viii. dides," book I.


i66 MONTESQUIEU

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

Upon the king's decease the Senate examined whether they should continue the established form of government. If they thought proper to continue it, they named a magistrate i taken from their own body, who chose a king ; the senate were to ap- prove of the election, the people to confirm it, and the augurs to declare the approbation of the gods. If any of these three conditions was wanting, they were obliged to proceed to an- other election.

The constitution was a mixture of monarchy, aristocracy, and democracy ; and such was the harmony of power, that there was no instance of jealousy or dispute in the first reigns. The king commanded the armies, and had the direction of the sacri- fices : he had the power of determining j civil and criminal k causes ; he called the Senate together, convened the people, laid some afifairs before the latter, and regulated the rest with the senate./

The authority of the senate was very great. The kings often- times pitched upon senators with whom they sat in judgment ; and they never laid any affair before the people till it had been previously debated ^ in that august assembly.

The people had the right of choosing n magistrates, of con- senting to the new laws, and, with the king's permission, of making war and peace ; but they had not the judicial power. When Tullius Hostilius referred the trial of Horatius to the people, he had his particular reasons, which may be seen in Dionysius Halicarnassus.o

The constitution altered under p Servius Tullius. The Sen- ate had no share in his election ; he caused himself to be pro- claimed by the people ; he resigned the power of hearing civil causes,? reserving none to himself but those of a criminal nat-

i Dionys. Halicarn. book II. p. 120, n Ibid., book II. And yet they could

and book IV. pp. 242 and 243. not have the nomination of all offices,

■ See Tanaquil's " Discourse on since Valerius Publicola made that fa-

Livy," book I. dec. i, and the regula- mous law by which every citizen was

tions of Servius Tullius in Dionys. forbidden to exercise any employment,

Halicarn. book IV. p. 229. unless he had obtained it by the suffrage

k See Dionys. Halicarn. book II. p. of the people,

118, and book III, p. 171. Book III. p. 159.

/It was by virtue of a senatus-con- /> Ibid., book IV.

sultum that Tullius Hostilius ordered q He divested himself of half the regal


Alba to be destroyed.— Dionys, Hali- power, says Dionys. Halicarn, book IV. arn. book III. pp. 167 and tn Ibid, book IV, p. 276.


carn^ book III. pp. 167 and 172. p. 229.


THE SPIRIT OF LAWS


167


ure ; he laid all affairs directly before the people, eased them of the taxes, and imposed the whole burden on the patricians. Hence in proportion as he weakened the regal together with the senatorian power, he augmented that of the plebeians.^

Tarquin would neither be chosen by the Senate nor by the people ; he considered Servius Tullius as a usurper, and seized the crown as his hereditary right. He destroyed most of the senators ; those who remained he never consulted ; nor did he even so much as summon them to assist at his decisions.^ Thus his power increased : but the odium of that power received a new addition, by usurping also the authority of the people, against whose consent he enacted several laws. The three powers were by these means reunited in his person; but the people at a critical minute recollected that they were legislators, and there was an end of Tarquin.


13. — General Reflections on the State of Rome after the Expulsion of its Kings

It is impossible to be tired of so agreeable a subject as an- cient Rome: thus strangers at present leave the modern pal- aces of that celebrated capital to visit the ruins ; and thus the eye, after recreating itself with the view of flowery meads, is pleased with the wild prospect of rocks and mountains.

The patrician families were at all times possessed of great privileges. These distinctions, which were considerable under the kings, became much more important after their expulsion. Hence arose the jealousy of the plebeians, who wanted to re- duce them. The contest struck at the constitution, without weakening the government; for it was very indifferent as to what family were the magistrates, provided the magistracy pre- served its authority.

An elective monarchy, like that of Rome, necessarily sup- poses 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 gov-


r It was thought that if he had not been prevented by Tarquin he would


have established a popular government. — Dionvs. Halicarn. book I V. p. 243. s Ibid., book IV.


1 68 MONTESQUIEU

ernment, 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 nat- ural that Rome should fall from the regal hands into those of the people. But the people had no occasion to be afraid of relapsing under a regal power by reducing the patricians.

A state may alter in two diflferent ways, either by the amend- ment or by the corruption of the constitution. If it has pre- served its principles and the constitution changes, this is owing to its amendment ; if upon changing the constitution its princi- ples are lost, this is because it has been corrrupted.

The government of Rome, after the expulsion of the kings, should naturally have been a democracy. The people had al- ready the legislative power in their hands ; it was their unani- mous consent that had expelled the Tarquins ; and if they had not continued steady to those principles, the Tarquins might easily have been restored. To pretend that their design in ex- pelling them was to render themselves slaves to a few families is quite absurd. The situation therefore of things required that Rome should have formed a democracy, and yet this did not happen. There was a necessity that the power of the principal families should be tempered, and that the laws should have a bias to democracy.

The prosperity of states is frequently greater in the insensi- ble transition from one constitution to another than in either of those constitutions. Then it is that all the springs of gov- ernment are upon the stretch, that the citizens assert their claims, that friendships or enmities are formed amongst the jarring parties, and that there is a noble emulation between those who defend the ancient and those who are strenuous in promoting the new constitution.

14. — In what Manner the Distribution of the three Powers began to change after the Expulsion of the Kings

There were four things that greatly prejudiced the liberty of Rome. The patricians had engrossed to themselves all public employments whatever ; an exorbitant power was annexed to the consulate; the people were often insulted; and, in fine,


THE SPIRIT OF LAWS 169

they had scarcely any influence at all left in the public suffrages. These four abuses were redressed by the people.

1st. It was regulated that the plebeians might aspire to some magistracies ; and by degrees they were rendered capable of them all, except that of Inter-rex.

2d. The consulate was dissolved into several other magis- tracies ; t pretors were created, on whom the power was con- ferred of trying private causes ; questors w were nominated for determining those of a criminal nature ; ediles were established for the civil administration; treasurers o were made for the management of the public money ; and, in fine, by the creation of censors the consuls were divested of that part of the legisla- tive power which regulates the morals of the citizens and the transient polity of the different bodies of the state. The chief privileges left them were, to preside in the great meetings b of the people, to assemble the Senate, and to command the armies.

3d. The sacred laws appointed tribunes, who had a power of checking the encroachments of the patricians, and prevented not only private but Hkewise public injuries.

In fine the plebeians increased their influence in the general assemblies. The people of Rome were divided in three different manners — by centuries, by curice, and by tribes ; and when- ever they gave their votes, they were convened in one of those three ways.

In the first the patricians, the leading men, the rich, and the Senate, which was very nearly the same thing, had almost the whole authority ; in the second they had less ; and less still in the third.

The division into centuries was a division rather of estates and fortunes than of persons. The whole people were dis- tributed into a hundred and ninety-three centuries,^ which had each a single vote. The patricians and leading men composed the first nine-eight centuries; and the other nine-five con- sisted of the remainder of the citizens. In this division there- fore the patricians were masters of the suffrages.

In the division into curi(u,d the patricians had not the same advantages ; some, however, they had, for it was necessary to

t Livy, dec. i, book VI. b Comitiis centuriatis.

u" Qusestores parricidii."— Pomponi- c See Livy, book I.; Dionys. Halicarn.

us, leg. 2 flf. " de Orig. Jur." books IV. and VII. a Plutarch, " Life of Publicola." d Dionys. Halicarn. book IX. p. 598.


I70 MONTESQUIEU

consult the augurs, who were under the direction of the patri- cians ; and no proposal could be made there to the people un- less it had been previously laid before the senate, and approved of by a senatus-consultum. But, in the division into tribes they had nothing to do either with the augurs or with the decrees of the Senate ; and the patricians were excluded.

Now the people endeavored constantly to have those meet- ings by curice which had been customary by centuries, and by tribes those they used to have before by curice; by which means the direction of public affairs soon devolved from the patricians to the plebeians.

Thus when the plebeians obtained the power of trying the patricians — a power which commenced in the affair of Corio- lanus,^ they insisted upon assembling by tribes,/^ and not by centuries ; and when the new magistracies g of tribunes and ediles were established in favor of the people, the latter ob- tained that they should meet by curice in order to nominate them ; and after their power was quite settled, they gained h so far their point as to assemble by tribes to proceed to this nomination.

15. — In what Manner Rome, in the flourishing State of that Republic, suddenly lost its Liberty

In the heat of the contests between the patricians and the plebeians, the latter insisted upon having fixed laws, to the end that the public judgments should no longer be the effect of capricious will or arbitrary power. The Senate, after a great deal of resistance, acquiesced ; and decemvirs were nominated to compose those laws. It was thought proper to grant them an extraordinary power, because they were to give laws to parties whose views and interest it was almost impossible to unite. The nomination of all magistrates was suspended ; and the decemvirs were chosen in the comitia sole administrators of the republic. Thus they found themselves invested with the consular and the tribunitial power. By one they had the privilege of assembling the senate, by the other that of con- vening the people ; but they assembled neither Senate nor peo-

e Dionys. Halicarn. book VII, g Dionys. Halicarn. book V. pp. 410

f Contrary to the ancient custom, as and 411.

may be seen in Dionys. Halicarn. book h Ibid, book IX. p. 650. V. p. 320.


THE SPIRIT OF LAWS 171

pie. Ten men only of the republic had the whole legislative, the whole executive, and the whole judiciary power. Rome saw herself enslaved by as cruel a tyranny as that of Tarquin. When Tarquin trampled on the liberty of that city, she was seized with indignation at the power he had usurped; when the decemvirs exercised every act of oppression, she was as- tonished at the extraordinary power she had granted.

What a strange system of tyranny — a tyranny carried on by men who had obtained the political and military power, merely from their knowledge in civil affairs, and who at that very junc- ture stood in need of the courage of those citizens to protect them abroad who so tamely submitted to domestic oppression !

The spectacle of Virginia's death, whom her father immo- lated to chastity and liberty, put an end to the power of the decemvirs. Every man became free, because every man had been injured ; each showed himself a citizen, because each had a tie of the parent. The senate and the people resumed a liberty which had been committed to ridiculous tyrants.

No people were so easily moved by public spectacles as the Romans. That of the impurpled body of Lucretia put an end to the regal government. The debtor who appeared in the Forum covered with wounds caused an alteration in the repub- lic. The decemvirs owed their expulsion to the tragedy of Vir- ginia. To condemn Manlius, it was necessary to keep the peo- ple from seeing the Capitol. Caesar's bloody garment flung Rome again into slavery.

16. — Of the legislative Power in the Roman Republic

There were no rights to contest under the decemvirs: but upon the restoration of liberty, jealousies revived ; and so long as the patricians had any privileges left, they were sure to be stripped of them by the plebeians.

The mischief would not have been so great had the plebeians been satisfied with this success ; but they also injured the pa- tricians as citizens. When the people assembled by curice or centuries, they were composed of senators, patricians, and ple- beians ; in their disputes the plebeians gained this point,« that they alone without patricians or senate should enact the laws

» Dionys. Halicarn. book XI. p. 725.


172 MONTESQUIEU

called Plebiscita ; and the assemblies in which they were made had the name of comitia by tribes. Thus there were cases in which the patricians; had no share in the legislative power, but k were subject to the legislation of another body of the state. This was the extravagance of liberty. The people, to establish a democracy, acted against the very principles of that government. One would have imagined that so exorbitant a power must have destroyed the authority of the senate. But Rome had admirable institutions. Two of these were espe- cially remarkable: one by which the legislative power of the people was established, and the other by which it was limited.

The censors, and before them the consuls, modelled I and created, as it were, every five years, the body of the people; they exercised the legislation on the very part that was pos- sessed of the legislative power. " Tiberius Gracchus," says Cicero, " caused the freedmen to be admitted into the tribes, not by the force of his eloquence, but by a word, by a gesture ; w^hich had he not effected, the republic, whose drooping head we are at present scarcely able to uphold, would not even exist."

On the other hand, the senate had the power of rescuing, as it were, the republic out of the hands of the people, by creating a dictator, before whom the sovereign bowed his head, and the most popular laws were silent.^


17. — Of the executive Power in the same Republic

Jealous as the people were of their legislative power, they had no great uneasiness about the executive. This they left almost entirely to the senate and to the consuls, reserving scarcely anything more to themselves than the right of choos- ing the magistrates, and of confirming the acts of the senate and of the generals.

Rome, whose passion was to command, whose ambition was

y By the sacred laws, the plebeians Halicarn. book XI. p. 725. This law

had the power of making the plebiscita was confirmed by that of Publius Philo

by themselves, without admitting the the dictator, in the year of Rome 416.

patricians into their assembly. — Dionys. Livy, book VIII.

Halicarn. book VI. p. 410, and book / In the year 312 of Rome the consuls

VII. p. 430. performed still the business of survey-

k By the law enacted after the expul- mg the people and their estates, as ap- sion of the decemvirs, the patricians pears by Dionys. Halicarn. book XI, were made subject to the plebiscita, m Such as those by which it was al- though they had not a right of voting lowed to appeal from the decisions of all there. Livy, book III. and Dionys. the magistrates to the people.


THE SPIRIT OF LAWS


173


to conquer, whose commencement and progress were one con- tinued usurpation, had constantly affairs of the greatest weight upon her hands ; her enemies were ever conspiring against her, or she against her enemies.

As she was obHged to behave on the one hand with heroic courage, and on the other with consummate prudence, it was requisite, of course, that the management of affairs should be committed to the senate. Thus the people disputed every branch of the legislative power with the senate, because they were jealous of their liberty ; but they had no disputes about the executive, because they were animated with the love of glory.

So great was the share the senate took in the executive power, that, as Polybius n informs us, foreign nations imagined that Rome was an aristocracy. The senate disposed of the pubHc 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 pretors, and upon the expiration of the year of command had the power of appointing succes- sors ; they decreed triumphs, received and sent embassies : they nominated, rewarded, punished, and were judges of kings, de- clared them alHes of the Roman people, or stripped them of that title.

The consuls levied the troops which they were to carry into the field ; had the command of the forces by sea and by land ; disposed of the forces of the allies; were invested with the whole power of the republic in the provinces ; gave peace to the vanquished nations, imposed conditions on them, or re- ferred them to the senate.

In the earliest times, when the people had some share in the affairs relating to war or peace, they exercised rather their leg- islative than their executive power. They scarcely did any- thing else but confirm the acts of the kings, and after their ex- pulsion those of the consuls or senate. So far were they from being the arbiters of war, that we have instances of its having been often declared, notwithstanding the opposition of the trib- unes. But growing wanton in their prosperity, they increased

n Book VI.


174 MONTESQUIEU

their executive power. Thus o they created the military trib- unes, the nomination of whom till then had belonged to the generals ; and some time before the first Punic war, they de- creed that only their own body should have the right of declar- ing war./'

i8. — Of the judiciary Power in the Roman Government

The judiciary power was given to the people, to the senate, to the magistrates, and to particular judges. We must see in what manner it was distributed; beginning with their civil affairs.

The consuls had the judiciary power q after the expulsion of the kings, as the pretors were judges after the consuls. Servius Tullius had divested himself of the power of determining civil causes, which was not resumed by the consuls, except in some r very rare cases, for that reason called extraordinary.^ They were satisfied with naming the judges, and establishing the several tribunals. By a discourse of Appius Claudius, in Dionysius Halicarnassus,^ it appears that as early as the 259th year of Rome this was looked upon as a settled custom among the Romans ; and it is not tracing it very high to refer it to Servius Tullius.

Every year the pretor made a list a of such as he chose for the office of judges during his magistracy. A sufficient num- ber was pitched upon for each cause ; a custom very nearly the same as that now practised in England. And what was ex- tremely favorable to liberty & was the pretor's fixing the judges with the consent c of the parties. The great number of excep- tions that can be made in England amounts pretty nearly to this very custom.

o In the year of Rome 444, Livy, dec. dered them more odious. — Dionys. Hali- I, book IX. As the war against Perseus earn, book XI. p. 709. appeared somewhat dangerous, it was s Judicia extraordinaria. See the " In- ordained by a senatus-consultum that stitutes," book IV. this law should be suspended, and the / Book VI. p. 360.

feople agreed to it. Livy, dec. 5, book a Album Judicium.

I. _ h " Our ancestors," says Cicero, pro

p They extorted it from the Senate, Cluentio, " would not suffer any man

says Freinshemius, dec. 2, book VI. whom the parties had not agreed to to

q There is no manner of doubt but be judge of the least pecuniary affair,

the consuls had the power of trying much less of a citizen's reputation."

civil causes before the creation of the c See in the fragments of the Servilian,

pretors. See Livy, dec. i, book IL p. Cornelian, and other laws, in what man-

19; Dionys. Halicarn. book X. p. 627, ner these laws appointed judges for the

and the same book, p. 645. crimes they proposed to punish. They

r The tribunes frequently tried causes were often pitched upon by choice,

by themselves only, but nothing ren- sometimes by lot, or, in fine, by lot

mixed together with choice.


THE SPIRIT OF LAWS 175

The judges decided only the questions relating to matter of fact;,^ for example, whether a sum of money had been paid or not, whether an act had been committed or not. But as to questions of law,^ as these required a certain capacity, they were always carried before the tribunal of the centumvirs/

The kings reserved to themselves the judgment of criminal affairs, and in this were succeeded by the consuls. It was in consequence of this authority that Brutus put his children and all those who were concerned in the Tarquinian conspiracy to death. This was an exorbitant power. The consuls already invested with the military command extended the exercise of it even to civil affairs ; and their procedures, being stripped of all forms of justice, were rather exertions of violence than legal judgments.

This gave rise to the Valerian law, by which it was made lawful to appeal to the people from every decision of the con- suls that endangered the life of a citizen. The consuls had no longer the power of pronouncing sentence in capital cases against a Roman citizen, without the consent of the people.^

We see in the first conspiracy for the restoration of the Tar- quins that the criminals were tried by Brutus the consul; in the second the senate and comitia were assembled to try them./t

The laws distinguished by the name of sacred allowed the plebeians the privilege of choosing tribunes; whence was formed a body whose pretensions at first were immense. It is hard to determine which was greater, the insolence of the ple- beians in demanding, or the condescension of the senate in granting. The Valerian law allowed appeals to the people, that is, to the people composed of senators, patricians, and ple- beians. The plebeians made a law that appeals should be brought before their own body. A question was soon after started, whether the plebeians had a right to try a patrician ; this was the subject of a dispute to which the impeachment of Coriolanus gave rise, and which ended with that affair. When Coriolanus was accused by the tribunes before the people, he

d Seneca, " de Benefic." lib. II. cap. ^ " Quoniam de eapite civis Romani,

vii. in fine. injussu populi Romani, non erat per-

e See Quintilian, lib. IV. p. 54, in fol. missum consulibus jus dicere."— See

edit, of Paris, 1541. Pomponius, Leg. 2 ff. " de Grig. Jur."

f Leg. 2 ff. '^de Grig. Jur." Magis- A Dionys. Halicarn. book V. p. 322. trates who were called decemvirs pre- sided in court, the whole under a pre- tor's direction.


176 MONTESQUIEU

insisted, contrary to the spirit of the Valerian law, that as he was a patrician, none but the consuls had the power to try him; on the other hand, the plebeians, also contrary to the spirit of that same law, pretended that none but their body were empowered to be his judges, and accordingly they pronounced sentence upon him.

This was moderated by the law of the Twelve Tables ; where- by it was ordained that none but the great assemblies of the people i should try a citizen in capital cases. Hence the body of the plebeians, or, which amounts to the very same, the comitia by tribes, had no longer any power of hearing criminal causes, except such as were punished with fines. To inflict a capital punishment a law was requisite ; but to condemn to a pecuniary mulct, there was occasion only for a plebiscitum.

This regulation of the law of the Twelve Tables was ex- tremely prudent. It produced an admirable balance between the body of the plebeians and the senate. For as the full ju- diciary power of both depended on the greatness of the punish- ment and the nature of the crime, it was necessary they should both agree.

The Valerian law abolished all the remains of the Roman government in any way relating to that of the kings of the heroic times of Greece. The consuls were divested of the power to punish crimes. Though all crimes are public, yet we must distinguish between those which more nearly concern the mutual intercourse of the citizens and those which more immediately interest the state in the relation it bears to its subjects. The first are called private, the second public. The latter were tried by the people ; and in regard to the former, they named by particular commission a questor for the prosecu- tion of each crime. The person chosen by the people was fre- quently one of the magistrates, sometimes a private man. He was called the questor of parricide, and is mentioned in the law of the Twelve Tables./

The questor nominated the judge of the question, who drew lots for the judges, and regulated the tribunal in which he presided.^

i The comitia by centuries. Thus k See a fragment of Ulpian, who gives

Manlius Capitolinus was tried in these another of the Cornelian law: it is to be

comitia.— Livy, dec. i, book VI. p. 60. met with in the Collation of the Mosaic

j Pomponius, in the second Law in and Roman Laws, tit. 1, de sicariis et

the Digest " de Grig. Jur." homicidiis.


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177


Here it is proper to observe what share the senate had in the nomination of the questor, that we may see how far the two powers were balanced. Sometimes the senate caused a dicta- tor to be chosen, in order to exercise the office of questor ; I at other times they ordained that the people should be convened by a tribune, with the view of proceeding to the nomination of a questor : nt and, in fine, the people frequently appointed a magistrate to make his report to the senate concerning a par- ticular crime, and to desire them to name a questor, as may be seen in the judgment upon Lucius Scipio n in Livy.o

In the year of Rome 604, some of these commissions were rendered permanent,/' All criminal causes were gradually di- vided into different parts ; to which they gave the name of per- petual questions. Different pretors were created, to each of whom some of those questions were assigned. They had a power conferred upon them for the term of a year, of trying such criminal causes as bore any relation to those questions, and then they were sent to govern their province.

At Carthage the senate of the hundred was composed of judges who enjoyed that dignity for Hfe.5 But at Rome the pretors were annual ; and the judges were not even for so long a term, but were nominated for each cause. We have already shown in the sixth chapter of this book how favorable this regulation was to liberty in particular governments.

The judges were chosen from the order of senators, till the time of the Gracchi. Tiberius Gracchus caused a law to pass that they should be taken from the equestrian order ; a change so very considerable that the tribune boasted of having cut, by one rogation only, the sinews of the 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


/This took place, especially in regard to crimes committed in Italy, which were subject chiefly to the inspection of the Senate. See Livy, dec. i, book IX., concerning the conspiracies at Capua.

»n This was the case in the prosecu- tion for the murder of Posthumius, in the year 340 of Rome. See Livy.

Vol. l.—iz


n This judgment was passed in the year of Rome 567.

Book VIII.

p Cicero, in " Bruto."

oThis is proved from Livy, book XLlIL, who says that Hannibal ren- dered their magistracy annual.


178 MONTESQUIEU

required some other power to balance it. The senate, indeed, had part of the executive power, and some share of the legisla- tive ; r but this was not sufficient to counterbalance the weight of the people. It was necessary that they should partake of the judiciary power: and accordingly they had a share when the judges were chosen from among the senators. But when the Gracchi deprived the senators of the judicial power,^ the senate were no longer able to withstand the people. To favor, there- fore, the liberty of the subject, they struck at that of the con- stitution ; but the former perished with the latter.

Infinite were the mischiefs that thence arose. The constitu- tion was changed at a time when the fire of civil discord had scarcely left any such thing as a constitution. The knights ceased to be that middle order which united the people to the senate ; and the chain of the constitution was broken.

There were even particular reasons against transferring the judiciary power to the equestrian order. The constitu- tion of Rome was founded on this principle, that none should be enHsted as soldiers but such as were men of sufficient prop- erty to answer for their conduct to the republic. The knights, as persons of the greatest property, formed the cavalry of the legions. But when their dignity increased, they refused to serve any longer in that capacity, and another kind of cavalry was obliged to be raised : thus Marius enlisted all sorts of peo- ple into his army, and soon after the republic was lost.*

Besides, the knights were the farmers of the revenue ; men whose great rapaciousness increased the public calamities. In- stead of giving to such as those the judicial power, they ought to have been constantly under the eye of the judges. This we must say in commendation of the ancient French laws, that they have acted towards the officers of the revenue with as great a diffidence as would be observed between enemies. When the judiciary power at Rome was transferred to the pub- licans, there was then an end of all virtue, polity, laws, and government.

Of this we find a very ingenious description in some frag- ments of Diodorus Siculus and Dio. " Mutius Scaevola," says

r The senatus-consultums were in s In the year 630.

force for the space of a year, though not t " Capite censes plerosque." — Sallust,

confirmed by the people.— Dionvs. Hali- " de bello Jugurth." cam. book IX. p. 595, and book XI. p. 735.


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179


Diodorus,w " wanted to revive the ancient manners, and the laudable custom of sober and frugal living. For his prede- cessors having entered into a contract with the farmers of the revenue, who at that time were possessed of the judiciary power at Rome, had infected the province with all manner of corrup- tion. But Scsevola made an example of the publicans, and im- prisoned those by whom others had been confined."

Dio informs us a 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 ces- sion of his goods. His innocence appeared in this, that he was found to be worth a great deal less than what he was charged with having extorted, and he showed a just title to what he possessed : but he would not live any longer in the same city with such profligate wretches.

The Italians, says Diodorus again,& bought up whole droves of slaves in Sicily, to till their lands and to take care of their cattle ; but refused them a necessary subsistence. These wretches were then forced to go and rob on the highways, armed with lances and clubs, covered with beasts' skins, and followed by large mastiffs. Thus the whole province was laid waste, and the inhabitants could not call anything their own but what was secured by fortresses. There was neither pro- consul nor pretor 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.c And yet this was one of the causes of the war of the slaves. But I shall add only one word more. A profession deaf and inexorable, that can have no other view than lucre, that was always asking and never granting, that impoverished the rich and increased even the misery of the poor — such a pro- fession, I say, should never have been intrusted with the ju- diciary power at Rome.

M Fragment of this author, book b Fragment of the 34th book in the

XXXVI., in the collection of Con- " Extract of Virtues and Vices."

stantine Porphyrogenitus, of " Virtues c '* Penes quos Romae turn judicia

and Vices." erant, atque ex equestri ordine solerent

a Fragment of his history, taken from sortito judices eligi in causa PrsRtorum

the " Extract of Virtues and Vices." et Proconsulum, quibus post adminis-

tratam provinciam dies dicta erat."


i8o MONTESQUIEU

19. — Of the Government of the Roman Provinces

Such was the distribution of the three powers in Rome. But they were far from being thus distributed in the provinces. Liberty prevailed in the centre and tyranny in the extreme parts.

While Rome extended her dominions no farther than Italy, the people were governed as confederates, and the laws of each republic were preserved. But when she enlarged her con- quests, 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 pretors and proconsuls. Then it was that the harmony of the three powers was lost. The persons appointed to that office were intrusted with a power which comprehended that of all the Roman magistracies ; nay, even that of the people.^ They were despotic magistrates, extremely well adapted to the distance of the places to which they were destined. They ex- ercised the three powers ; and were, if I may presume to use the expression, the bashaws of the republic.

We have elsewhere observed that in a commonwealth the same magistrate ought to be possessed of the executive power, as well civil as military. Hence a conquering republic can hardly communicate her government, and rule the conquered state according to her own constitution. And, indeed, as the magistrate she sends to govern is invested with the executive power, both civil and military, he must also have the legisla- tive: for who is it that could make laws without 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 govern- ment, because the officers it sends have, some the civil execu- tive, and others the military executive power, which does not necessarily imply a despotic authority.

It was a privilege of the utmost consequence to a Roman citizen to have none but the people for his judge. Were it not for this, he would have been subject in the provinces to the arbitrary power of a proconsul or of a propretor. The city

d They made their edicts upon entering the provinces.


THE SPIRIT OF LAWS i8i

never felt the tyranny which was exercised only on conquered nations.

Thus, in the Roman world, as at Sparta, the freemen en- joyed the highest degree of liberty, while those who were slaves labored under the extremity of servitude.

While the citizens paid taxes, they were raised with great justice and equality. The regulation of Servius Tullius was observed, who had distributed the people into six classes, ac- cording to their difference of property, and fixed the several shares of the public imposts in proportion to that which each person had in the government. Hence they bore with the greatness of the tax because of their proportionable greatness of credit, and consoled themselves for the smallness of their credit because of the smallness of the tax.

There was also another thing worthy of 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 abol- ished without the other.

But while the city paid the taxes as she pleased, or paid none at all,^ the provinces were plundered by the knights, who were the farmers of the public revenue. We have already made mention of their oppressive extortions, with which all history abounds.

" All Asia," says Mithridates,^ " expects me as her deliverer ; so great is the hatred which the rapaciousness of the procon- suls,s^ the confiscations made by the officers of the revenue, and the quirks and cavils of judicial proceedings,/^ have excited against the Romans."

Hence it was that the strength of the provinces did not in- crease, but rather weakened, the strength of the republic. Hence it was that the provinces looked upon the loss of the liberty of Rome as the epoch of their own freedom.

e After the conquest of Macedonia g See the orations against Verres.

the Romans paid no taxes. h It is well known what sort of a tri-

f Speech taken from Trogus Pom- bunal was that of Varus, which pro-

)eius, and related by Justin, book voked the Germans to revolt.


i82 MONTESQUIEU

20. — The End of this Book

I should be glad to inquire into the distribution of the three powers, in all the moderate governments we are acquainted with, in order to calculate the degrees of liberty which each may enjoy. But we must not always exhaust a subject, so as to leave no work at all for the reader. My business is not to make people read, but to make them think.


BOOK XII

OF THE LAWS THAT FORM POLITICAL LIB- ERTY, IN RELATION TO THE SUBJECT

I. — Idea of this Book

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

We have observed that in the former case it arises from a certain distribution of the three powers ; but in the latter, we must consider it in another Hght. 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 funda- mental laws, that constitutes liberty in relation to the consti- tution. But as it regards the subject: manners, customs, or received examples may give rise to it, and particular civil laws may encourage it, as we shall presently observe.

Further, as in most states liberty is more checked or de- pressed than their constitution requires, it is proper to treat of the particular laws that in each constitution are apt to assist or check the principle of liberty which each state is capable of re- ceiving.

2. — Of the Liberty of the Subject

Philosophic liberty consists in the free exercise of the will ; or at least, if we must speak agreeably to all systems, in an opinion that we have the free exercise of our will. Political liberty consists in security, or, at least, in the opinion that we enjoy security.

This security is never more dangerously attacked than in

183


1 84 MONTESQUIEU

public or private accusations. It is, therefore, on the goodness of criminal laws that the liberty of the subject principally de- pends.

Criminal laws did not receive their full perfection all at once. Even in places where liberty has been most sought after, it has not been always found. Aristotle a informs us that at Cumse 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.^ Under the first kings of France, Clotarius made a law,c that nobody should be condemned without being heard ; which shows that a contrary custom had prevailed in some par- ticular case or among some barbarous people. It was Charon- das that first established penalties against false witnesses.^? When the subject has no fence to secure his innocence, he has none for his liberty.

The knowledge already acquired in some countries, or that may be hereafter attained in others, concerning the surest rule^ to be observed in criminal judgments, is more interesting to mankind than any other thing in the world.

Liberty can be founded on the practice of this knowledge only ; and supposing a state to have the best laws imaginable in this respect, a person tried under that state, and condemned to be hanged the next day, would have much more liberty than a pasha enjoys in Turkey.

3. — The same Subject continued

Those laws which condemn a man to death on the deposi- tion of a single witness are fatal to liberty. In reason there should be two, because a witness who affirms, and the accused who denies, make an equal balance, and a third must decline the scale.

The Greeks e and Romans f required one voice more to con- demn : but our French laws insist upon two. The Greeks pre-

a " Polit." book II. He gave his laws at Thurium in the

b Tarquinius Priscus. See Dionys. 84th Olympiad.

Halicarn. book IV. e See Aristid. Orat. '* in Minervam."

c As early as the year 560. / Dionys. Halicarn. on the Judgment

d Aristot. " Polit." book II. chap. xii. of Coriolanus, book VII.


THE SPIRIT OF LAWS 185

tend that their custom was established by the gods ;g but this more justly may be said of ours.h

4. — That Liberty is favored by the Nature and Proportion of

Punishments

Liberty is in perfection when criminal laws derive each pun- ishment 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 sub- ject. The punishments inflicted for these crimes ought to pro- ceed 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,t 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 execra- tions, comminations, and conjurations.

In things that prejudice the tranquillity or security of the state, secret actions are subject to human jurisdiction. But in those which ofifend the Deity, where there is no public act, there can be no criminal matter, the whole passes between man and God, who knows the measure and time of His vengeance. Now if magistrates confounding things should inquire also into hidden sacrileges, this inquisition would be directed to a kind of action that does not at all require it : the liberty of the subject would be subverted by arming the zeal of timorous as well as of presumptuous consciences against him.

g Minervae calculus. i St. Louis made such severe laws

h Voltaire declares that it is England, against those who swore, that the Pope

and not France, that is deserving of thought himself obliged to admonish

this high praise; for it is in the former him for it. This prince moderated his

that the juries must agree in order to zeal, and softened his laws. — See his

condemn a man. — Ed. " Ordinances."


i86 MONTESQUIEU

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. And, indeed, were we to be directed by such a notion, where would be the end of punishments ? If human laws are to avenge the cause of an infinite Being, they will be directed by his infinity, and not by the weakness, ignorance, and caprice of man.

An historian ; of Provence relates a fact which furnishes us with an excellent description of the consequences that may arise in weak capacities from the notion of avenging the Deity's cause. A Jew was accused of having blasphemed against the Virgin Mary ; and upon conviction was condemned to be flayed alive. A strange spectacle was then exhibited: gentlemen masked, with knives in their hands, mounted the scaffold, and drove away the executioner, in order to be the avengers them- selves of the honor of the blessed Virgin. I do not here choose to anticipate the reflections of the reader.

The second class consists of those crimes which are preju- dicial to morals. Such is the violation of public or private con- tinence, that is, of the poHce directing the manner in which the pleasure annexed to the conjunction of the sexes is to be en- joyed. The punishment of those crimes ought to be also de- rived from the nature of the thing ; the privation of such ad- vantages as society has attached to the purity of morals, fines, shame, necessity of concealment, public infamy, expulsion from home and society, and, in fine, all such punishments as belong to a corrective jurisdiction, are sufficient to repress the temerity of the two sexes. In effect these things are less founded on malice than on carelessness and self-neglect.

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

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

I confine those crimes that injure the public tranquillity to

y Father Bougerel.


THE SPIRIT OF LAWS 187

things which imply a bare offence against the poHce ; for as to those which by disturbing the pubHc peace attack at the same time the security of the subject, they ought to be ranked in the fourth class.

The punishments inflicted upon the latter crimes are such as are properly distinguished by that name. They are a kind of retaliation, by which the society refuses security to a mem- ber, who has actually or intentionally deprived another of his security. These punishments are derived from the nature of the thing, founded on reason, and drawn from the very source of good and evil. A man deserves death when he has violated the security of the subject so far as to deprive, or attempt to deprive, another man of his life. This punishment of death is the remedy, as it were, of a sick society. When there is a breach of security with regard to property, there may be some reasons for inflicting a capital punishment : but it would be much bet- ter, and perhaps more natural, that crimes committed against the security of property should be punished with the loss of property; and this ought, indeed, to be the case if men's fortunes were common or equal. But as those who have no property of their own are generally the readiest to attack that of others, it has been found necessary, instead of a pecuniary, to substitute a corporal, punishment.

All that I have here advanced is founded in nature, and ex- tremely favorable to the liberty of the subject.

5. — Of certain Accusations that require particular Moderation and Prudence

It is an important maxim, that we ought to be very circum- spect in the prosecution of witchcraft and heresy. The accu- sation of these two crimes may be vastly injurious to liberty, and productive of infinite oppression, if the legislator knows not how to set bounds to it. For as it does not directly point at a person's actions, but at his character, it grows dangerous in proportion to the ignorance of the people ; and then a man is sure to be always in danger, because the most exceptional conduct, the purest morals, and the constant practice of every duty in life are not a sufficient security against the suspicion of his being guilty of the like crimes.


1 88 MONTESQUIEU

Under Manuel Comnenus, the Protestator k 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 hfe of this emperor I that Aaron was detected, as he was poring over a book of Solomon's, the reading of which was sufficient to conjure up whole legions of devils. Now by supposing a power in witchcraft to rouse the infernal spirits to arms, people look upon a man whom they call a sorcerer as the person in the world most likely to disturb and subvert society ; and, of course, they are disposed to punish him with the utmost severity.

But their indignation increases when witchcraft is supposed to have the power of subverting religion. The history of Con- stantinople m informs us that in consequence of a revelation made to a bishop of a miracle having ceased because of the magic practices of a certain person, both that person and his son were put to death. On how many surprising things did not this. single crime depend? That revelations should not be uncommon, that the bishop should be favored 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 magi- cian, and, in fine, that he had committed that magic act.

The Emperor Theodorus Lascarus attributed his illness to witchcraft. Those who were accused of this crime had no other resource left than to handle a red-hot iron without being hurt. Thus among the Greeks a person ought to have been a sorcerer to be able to clear himself of the imputation of witchcraft. Such was the excess of their stupidity that to the most dubious crime in the world they joined the most dubious proofs of innocence.

Under the reign of Philip the Long, the Jews were expelled from France, being accused of having poisoned the springs with their lepers. So absurd an accusation ought to make us doubt all those that are founded on public hatred.

I have not here asserted that heresy ought not to be pun- ished ; I said only that we ought to be extremely circumspect in punishing it.

k Nicetas, " Life of Manuel Comne- m " Historv of the Emperor Maurice,"

nus." book IV. by Theophylactus, chap. ii.

/Ibid.


THE SPIRIT OF LAWS 189

6. — Of the Crime against Nature

God forbid that I should have the least inclination to dimin- ish the public horror against a crime which religion, morality, and civil government equally condemn. It ought to be pro- scribed, were it only for its communicating to one sex the weak- nesses of the other, and for leading people by a scandalous pros- titution of their youth to an ignominious old age. What I shall say concerning it will in no way diminish its infamy, being levelled only against the tyranny that may abuse the very hor- ror we ought to have against the vice.

As a natural circumstance of this crime is secrecy, there are frequent instances of its having been punished by legislators upon the deposition of a child. This was opening a very wide door to calumny. " Justinian," says Procopius,o " published a law against this crime; he ordered an inquiry to be made not only against those who were guilty of it, after the enacting of that law, but even before. The deposition of a single wit- ness, sometimes of a child, sometimes of a slave, was sufficient, especially against such as were rich, and against those of the green faction."

It is very odd that these three crimes, witchcraft, heresy, and that against nature, of which the first might easily be proved not to exist ; the second to be susceptible of an infinite number of distinctions, interpretations, and limitations ; the third to be often obscure and uncertain — it is very odd, I say, that these three crimes should amongst us be punished with fire.

I may venture to affirm that the crime against nature will never make any great progress in society unless people are prompted to it by some particular custom, as among the Greeks, where the youths of that country performed all their exercises naked ; as amongst us, where domestic education is disused; as amongst the Asiatics, where particular persons have a great number of women whom they despise, while others can have none at all. Let there be no customs preparatory to this crime ; let it, like every other violation of morals, be severely proscribed by the civil magistrate; and nature will soon defend or resume her rights. Nature, that fond, that in- dulgent parent, has strewed her pleasures with a bounteous

a " Secret History."


I90 MONTESQUIEU

hand, and while she fills us with delights she prepares us, by means of our issue, in whom we see ourselves, as it were, re- produced — she prepares us, I say, for future satisfactions of a more exquisite kind than those very delights.

7. — Of the Crime of High Treason

It is determined by the laws of China that whosoever shows any disrespect to the emperor is to be punished with death. As they do not mention in what this disrespect consists, 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 write the Court gazette, having inserted some circumstances relating to a certain fact that was not true, it was pretended that to tell a lie in the Court gazette was a disrespect shown to the Court, in consequence of which they were put to death.^ A prince of the blood having inadvertently made some mark on a memorial signed with the red pencil by the emperor, it was determined that he had behaved disrespectfully to the sovereign; which occasioned one of the most terrible persecutions against that family that ever was recorded in history.^

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 treated of the composition of laws.

8. — Of the Misapplication of the Terms Sacrilege and High

Treason

It is likewise a shocking abuse to give the appellation of high treason to an action that does not deserve it. By an im- perial law^ it was decreed that those who called in question the prince's judgment, or doubted the merit of such as he had chosen for a public office, should be prosecuted as guilty of sacrilege./^ Surely it was the cabinet council and the prince's favorites who invented that crime. By another law, it was de- ft Father Du Halde, torn. i. p. 43. f " Sacrilegii instar est dubitare an is c Father Parennin in the " Edifying dignus sit quern elegerit imperator." Letters." —Code " de Crimin. Sacril." This law d Book XXIX. has served as a model to that of Roger e Gratian, Valentinian, and Theodo- in the " Constitution of Naples," tit. 4. sius. This is the second in the Code ••de Crimin. Sacril."


THE SPIRIT OF LAWS 191

termined that whosoever made any attempt to injure the min- isters and officers belonging to the sovereign should be deemed guilty of high treason, as if he had attempted to injure the sov- ereign himself.^ This law is owing to two princes/^ remark- able for their weakness — princes who were led by their minis- ters 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 favorites conspired against their sovereigns. Nay, they did more, they conspired against the empire — they called in barbarous nations ; and when the em- perors wanted to stop their progress the state was so enfeebled as to be under a necessity of infringing the law, and of exposing itself to the crime of high treason in order to punish those favor- ites.

And yet this is the very law which the judge of Monsieur de Cinq-Mars built upom when endeavoring to prove that the lat- ter was guilty of the crime of high treason for attempting to remove Cardinal RicheHeu 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 minis- ter discharges his duty to his prince and to his country: to attempt, therefore, to remove him, is endeavoring to deprive the former one of his arms,/ and the latter of part of its power." It is impossible for the meanest tools of power to express them- selves in more servile language.

By another law of Valentinian, Theodosius, and Arcadius,^ false coiners are declared guilty of high treason. But is not this confounding the ideas of things? Is not the very horror of high treason diminished by giving that name to another crime ?


9. — The same Subject continued

Paulinus having written to the Emperor Alexander, that " he was preparing to prosecute for high treason a judge who had decided contrary to his edict," the emperor answered, " that

g The 5th law, " ad leg. Jul. Maj." sunt."— The same law of the Code " ad

h Arcadius and Honorius. lesf. Jul. Maj."

» " Memoirs of Montresor," tom. i. ^ It is the 9th of the Code Theod. " de

y " Nam ipsi pars corporis nostri falsa moneta."


192 MONTESQUIEU

under his reign there was no such thing as indirect high trea- son."/

Faustinian wrote to the same emperor, that as he had sworn by the prince's Hfe never to pardon his slave, he found himself thereby obliged to perpetuate his wrath, lest he should incur the guilt of Icesa majestas. Upon which the emperor made answer, " Your fears are groundless,^ and you are a stranger to my principles."

It was determined by a senatus-consultum ^ that whosoever melted down any of the emperor's statues which happened to be rejected should not be deemed guilty of high treason. The Emperors Severus and Antoninus wrote to Pontius,^ that those who sold unconsecrated statues of the emperor should not be charged with high treason. The same princes wrote to Julius Cassianus, that if a person in flinging a stone should by chance strike one of the emperor's statues he should not be liable to a prosecution for high treason./' 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,? which made it an arbitrary crime. When a number of crimes of Icesa majestas had been established, they were obliged to distinguish the several sorts. Hence Ulpian, the civilian, after saying that the accusation of Icesa majestas did not die with the criminal, adds that this does not relate to all the treasonable acts established by the Julian lav/,o but only to that which implies an attempt against the empire, or against the emperor's life.

10. — The same Subject continued

There was a law passed in England under Henry VHI, by which whoever predicted the king's death was declared guilty of high treason. This law was extremely vague; the terror of despotic power is so great that it recoils upon those who

/ " Etiam ex aliis causis maiestatis o See the sth law ibid,

crimina cessant meo_ sseculo." — Leg. i p Ibid.

" eod ad leg. Jul. Maj." q" Aliudve quid simile admiserint." —

m " Alienam sectse meae solicitudinem Leg. 6 flf. " ad leg. Jul. Maj."

concepisti." — Leg. 2 " eod. ad leg. Jul. a In the last law in ff. "ad leg. Jul. de

Maj." Adulteris."

n See the 4th law in ff. " ad leg. Jul. Maj."


THE SPIRIT OF LAWS 193

exercise it. In the king's last illness, the physicians would not venture to say he was in danger ; and surely they acted very right.^

11,— Of Thoughts

Marsyas dreamed that he had cut Dionysius's throat.^ Dionysius put him to death, pretending that he would never have dreamed of such a thing by night if he had not thought of it by day. This was a most tyrannical action : for though it had been the subject of his thoughts, yet he had made no at- temptf^ towards it. The laws do not take upon them to punish any other than overt acts.

12. — Of indiscreet Speeches

Nothing renders the crime of high treason more arbitrary than declaring people guilty of it for indiscreet speeches. Speech is so subject to interpretation ; there is so great a dif- ference between indiscretion and malice ; and frequently so little is there of the latter in the freedom of expression, that the law can hardly subject people to a capital punishment for words unless it expressly declares what words they are.^

Words do not constitute an overt act; they remain only in idea. When considered by themselves, they have generally no determinate signification ; for this depends on the tone in which they are uttered. It often happens that in repeating the same words they have not the same meaning ; this depends on their connection with other things, and sometimes more is signified by silence than by any expression whatever. Since there can be nothing so equivocal and ambiguous as all this, how is it possible to convert it into a crime of high treason? Wherever this law is established, there is an end not only of liberty, but even of its very shadow.

In the manifesto of the late Czarina against the family of the D'Olgoruckys,/^ one of those princes is condemned to death for having uttered some indecent words concerning her person: another, for having maliciously interpreted her imperial laws,

b See Burnet's " History of the Refor- vel scriptura legris descendit vel ad ex-

mation." emplum legis vindicandum est," says

c Plutarch's " Life of Dionysius." Modestinus in the seventh law, in if.

d The thought must be joined with " ad leg. Jul. Maj."

some sort of action. f In 1740.

e " Si non tale sit delictum in quod

Vol. I.— 13


194 MONTESQUIEU

and for having offended her sacred person by disrespectful ex- pressions.

Not that I pretend to diminish the just indignation of the pubHc against those who presume to stain the glory of their sovereign ; what I mean is, that if despotic princes are willing to moderate their power, a milder chastisement would be more proper on those occasions than the charge of high treason — a thing always terrible even to innocence itself.g

Overt acts do not happen every day; they are exposed to the eye of the public ; and a false charge with regard to matters of fact may be easily detected. Words carried into action as- sume the nature of that action. Thus a man who goes into a public market-place to incite the subject to revolt incurs the guilt of high treason, because the words are joined to the action, and partake of its nature. It is not the words that are pun- ished, but an action in which words are employed. They do not become criminal, but when they are annexed to a criminal action : everything is confounded if words are construed into a capital crime, instead of considering them only as a mark of that crime.

The Emperors Theodosius, Arcadius, and Honorius wrote thus to Rufinus, who was prcefectus prcetorio: " Though a man should happen to speak amiss of our person or govern- ment, we do not intend to punish him :h if he has spoken through levity, we must despise him ; if through folly, we must pity him ; and if he wrongs us, we must forgive him. There- fore, leaving things as they are, you are to inform us accord- ingly, that we may be able to judge of words by persons, and that we may duly consider whether we ought to punish or over- look them."

13. — Of Writings

In writings there is something more permanent than in words, but when they are in no way preparative to high treason they cannot amount to that charge.

And yet Augustus and Tiberius subjected satirical writers to the same punishment as for having violated the law of majesty.

g " Nee lubricum linguae ad poenani h " Si id ex levitate processerit, con-

facile trahendum est." — Modestin. in temnendum est; si ex insania, misera- the^ seventh law in ff. "ad leg. Jul. tione dignissimum; si ab injuria, re- Maj." mittendum." — Leg. unica Cod. "Si quis

Imperat. maled,"


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195


Augustus,^ because of some libels that had been written against persons of the first quality ; Tiberius, because of those which he suspected to have been written against himself. Nothing was more fatal to Roman liberty. Cremutius Cordus was ac- cused of having called Cassius in his annals the last of the Romans./

Satirical writings are hardly known in despotic governments, where dejection of mind on the one hand, and ignorance on the other, afford neither abilities nor will to write. In democracies they are not hindered, for the very same reason which causes them to be prohibited in monarchies ; being generally levelled against men of power and authority, they flatter the malig- nancy of the people, who are the governing party. In mon- archies they are forbidden, but rather as a subject of civil animadversion than as a capital crime. They may amuse the general malevolence, please the malcontents, diminish the envy against public employments, give the people patience to suffer, and make them laugh at their sufferings.

But no government is so averse to satirical writings as the aristocratic. There the magistrates are petty sovereigns, but not great enough to despise affronts. If in a monarchy a satirical stroke is designed against the prince, he is placed on such an eminence that it does not reach him ; but an aristocratic lord is pierced to the very heart. Hence the decemvirs, who formed an aristocracy, punished satirical writings with death.^

14. — Breach of Modesty in punishing Crimes

There are rules of modesty observed by almost every nation in the world ; now it would be very absurd to infringe these rules in the punishment of crimes, the principal view of which ought always to be the establishment of order.

Was it the intent of those Oriental nations who exposed women to elephants trained up for an abominable kind of pun- ishment — 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

i Tacit. " Annal." book I. This con- ;' Tacit. " Annal." book IV.

tinued under the following: reigns. See k The law of the Twelve Tables,

the first law in the Code " de famosis libellis."


196 MONTESQUIEU

found an expedient of having them debauched by the exe- cutioner before they were brought to the place of punishment -J that bloody and subtle tyrant destroyed the morals of the peo- ple to preserve their customs.

When the magistrates of Japan caused women to be exposed naked in the market-places, and obliged them to go upon all fours like beasts, modesty was shocked :w but when they wanted to compel a mother — when they wanted to force a son — I can- not proceed ; even Nature herself is struck with horror.

15. — Of the Enfranchisement of Slaves in order to accuse their Master

Augustus made a law that the slaves of those who conspired against his person should be sold to the public, that they might depose against their master." Nothing ought to be neglected which may contribute to the discovery of a heinous crime ; it is natural, therefore, that in a government where there are slaves they should be allowed to inform ; but they ought not to be admitted as witnesses.

Vindex discovered the conspiracy that had been formed in favor of Tarquin ; but he was not admitted a witness against the children of Brutus. It was right to give liberty to a person who had rendered so great a service to his country ; but it was not given him with a view of enabling him to render this ser- vice.

Hence the Emperor Tacitus ordained that slaves should not be admitted as witnesses against their masters, even in the case of high treason '.0 a law which was not inserted in Justinian's compilation.

16. — Of Calumny with regard to the Crime of High Treason To do justice to the Caesars, they were not the first devisers of the horrid laws which they enacted. It was Sylla/' that taught them that calumniators ought not to be punished; but the abuse was soon carried to such excess as to reward them.?

/ Suetonius, in " Tiberio." Cluentio," art. 3, " in Pisonem," art. 21,

m " Collection of Voyages that Con- 2d against " Verres," art. 5. " Familiar

tributed to the Establishment of the Epistles," book III. letter 11. Caesar

East India Company," tom. v. part II. and Augustus inserted them in the

n Dio, in " Xiphilinus." Tacitus at- Julian laws; others made additions to

tributes this law, not to Augustus, but them,

to Tiberius. — P. q " Et quo quis distinctior accusator,

Flavius Vopiscus in his life. eo magis honores assequebatur, ac ve-

p Sylla made a law of majesty, which luti sacrosanctus erat." — Tacit.

is mentioned in Cicero's Orations, " pro


THE SPIRIT OF LAWS 197

17. — Of the revealing of Conspiracies

    • If thy brother, the son of thy mother, or thy son, or thy

daughter, or the wife of thy bosom, or thy friend, which is as thine own soul, entice thee secretly, saying, * Let us go and serve other gods,' thou shalt surely kill him, thou shalt stone him." r This law of Deuteronomy cannot be a civil law among most of the nations known to us, because it would pave the way for all manner of wickedness.

No less severe is the law of several countries which com- mands the subjects, on pain of death, to disclose conspiracies in which they are not even so much as concerned. When such a law is established in a monarchical government, it is very proper it should be under some restrictions.

It ought not to be applied in its full severity save to the strongest cases of high treason. In those countries it is of the utmost importance not to confound the different degrees of this crime. In Japan, where the laws subvert every idea of human reason, the crime of concealment is applied even to the most ordinary cases.

A certain relation^ 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 disclos- ing it.

18. — How dangerous it is in Republics to be too severe in punishing the Crime of High Treason

As soon as a republic has compassed the destruction of those who wanted to subvert it, there should be an end of terrors, punishments, and even of rewards.

Great punishments, and consequently great changes, can- not take place without investing some citizens with an exorbi- tant power. It is, therefore, more advisable in this case to ex- ceed in lenity than in severity ; to banish but few, rather than many; and to leave them their estates, instead of making a vast number of confiscations. Under pretence of avenging the republic's cause, the avengers would establish tyranny. The

r Deut. xiii. 6. East India Company," p. 423, book V.

5 " Collection of Voyages that Con- part II. tributed to the Establishment of the


198 MONTESQUIEU

business is not to destroy the rebel, but the rebeUion. They ought to return as quickly as possible into the usual track of government, in which every one is protected by the laws, and no one injured.

The Greeks set no bounds to the vengeance they took upon tyrants, or of those they suspected of tyranny ; they put their children to death,^ nay, sometimes five of their nearest rela- tives ;o and they proscribed an infinite number of families. By such means their republics suffered the most violent shocks: exiles, or the return of the exiled, were always epochs that indicated a change of the constitution.

The Romans had more sense. When Cassius was put to death for having aimed at tyranny, the question was proposed whether his children should undergo the same fate : but they were preserved. " They," says Dionysius Halicarnassus,^ " 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."

We find in the wars of Marius and Sylla to what excess the Romans had gradually carried their barbarity. Such scenes of cruelty it was hoped would never be revived. But under the triumvirs, they committed greater acts of oppression, though with some appearance of lenity; and it is provoking to see what sophisms they make use of to cover their inhumanity. Appian has given use the formula of the proscriptions. One would imagine they had no other aim than the good of the repubhc, with such calmness do they express themselves ; such advantages do they point out to the state; such expediency do they show in the means they adopt ; such security do they promise to the opulent ; such tranquillity to the poor ; so ap- prehensive do they seem of endangering the lives of the citi- zens ; so desirous of appeasing the soldiers ; such felicity, in fine, do they presage to the commonwealth.^

Rome was drenched in blood when Lepidus triumphed over Spain: yet, by an unparalleled absurdity, he ordered public rejoicing in that city, upon pain of proscription.^

t Dionys, Halic^rn., " Roman An- b Book VIII. p. 547-

tiquities," book VIII. c Of the civil wars, book IV.

a " Tyranno occiso quinque ejus prox- d " Quod felix faustumque sit."

imos cognatione magistratus necato." — e " Sacris et epulis dent hunc diem;

Cic. " de invent." lib. II. qui secus faxit, inter proscriptos esto."


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199


19. — In what Manner the Use of Liberty is suspended in a Republic

In countries where liberty is most esteemed, there are laws by which a single person is deprived of it, in order to preserve it for the whole community. Such are in England what they call Bills of Attainder/ These are in relation to those Athen- ian laws by which a private person was condemned,^' provided they were made by the unanimous suffrage of six thousand citizens. They are in relation also to those laws which were made at Rome against private citizens, and were called privil- eges.^ These were never passed except in the great meetings of the people. But in what manner soever they were enacted, Cicero was for having them abolished, because the force of a law consists in its being made for the whole community.* I must own, notwithstanding, that the practice of the freest na- tion that ever existed induces me to think that there are cases in which a veil should be drawn for a while over liberty, as it was customary to cover the statues of the gods.

20. — Of Laws favorable 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 estab- lish proper laws, in order to protect the innocence of the sub- ject. 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. yEschines, who accused Ctesiphon, was condemned to pay this fine.; At Rome, a false accuser was branded with

_ / It is not sufficient in the courts of the two houses, and have the King's

justice of that kingdom that the evi- consent, otherwise it is not a bill: that

dence be of such a nature as to satisfy is, a sentence of the Legislature. The

the judges; there must be a legal person accused may plead against the

proof^; and the law requires the depo- bill by counsel, and the members of the

sition of two witnesses against the ac- house may speak in defence of the bill, cused. No other proof will do. Now, g " Legem de singulari aliquo ne ro-

if a person who is presumed guilty of gato, nisi sex millibus ita visum." —

high treason should contrive to secrete " Ex Andocide de Mysteriis." This is

the witnesses, so as to render it impos- what they called Ostracism, sible for him to be legally condemned, h " De privis hominibus latae." — Ci-

the government then may bring a bill cero, " de Leg." lib. HL. of attainder against him; that is, they t '* Scitum est jussum in omnes." —

may enact a particular law for that Ibid.

single fact. They proceed then in the ; See Philostratus, book I.: "Lives

same manner as in all other bills of the Sophists," " Life of ^schines,"

brought into parliament; it must pass See likewise Plutarch and Phocius.


200 MONTESQUIEU

infamy k 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.^

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

21. — 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 posses- sion. What must be the consequence if the laws of a republic make a further addition to this servitude and subjection?

At Athens and Rome" it was at first permitted to sell such debtors as were insolvent. Solon redressed this abuse at Athens^ by ordaining that no man's body should answer for his civil debts. But the decemvirs/' did not reform the same custom at Rome; and though they had Solon's regulation before their eyes yet they did not choose to follow it. This is not the only passage of the law of the Twelve Tables in which the decemvirs show their design of checking the spirit of democ- racy.

Often did those cruel laws against debtors throw the Roman republic into danger. A man covered with wounds made his escape from his creditor's house and appeared in the forum. g The people were moved with this spectacle, and other citizens whom their creditors durst no longer confine broke loose from their dungeons. They had promises made them, which were all broken. 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 state of anarchy, but were soon in danger of falling into tyranny. Manlius, to render himself popular, was going to set those citi-

k By the Remmian law. o Plutarch, " Life of Solon."

/ This was the initial of an old Latin p It appears from history that this

word which to-day is written " Calum- custom was established among the

nia."— P. Romans before the law of the Twelve

m Plutarch, in a treatise entitled, Tables,— Livy, dec. i, book II.

" How a person may reap advantage q Dionys. Halicarn., " Roman An-

from his enemies." tiquities,^' book VI.

n " A great many sold their children to pay their debts."— Plutarch, " Life of Solon."


THE SPIRIT OF LAWS 2or

zens at liberty who by their inhuman creditors'* had been re- duced to slavery. Manlius's designs were prevented, but with- out remedying the evil. Particular laws facilitated to debtors the means of paying ;s and in the year of Rome 428 the consuls proposed a law/ which deprived creditors of the power of con- fining their debtors in their own houses.w A 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.

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 Lu- cretia had first inspired them. Thirty-seven years after^^ the crime of the infamous Papirius, an action of the like criminal naturew was the cause of the people's retiring to the Janicu- \um,a and of giving new vigor to the law made for the safety of debtors.

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

22. — Of Things that strike at Liberty in Monarchies Liberty often has been 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 for 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 think themselves sufficiently justified by his nomination and orders, by a vague interest of state, and even by their very apprehensions.

r Plutarch, " Life of Furius Camil- v The year of Rome 465.

lus." a; That of Plautius, who made an at-

s See what follows in the 24th chapter tempt upon the body of Veturius.—

of the book of Laws as relative to the Valerius Maximus, book VI. art. 9.

use of money. These two events ought not to be con-

f One hundred and twenty years after founded; they are neither the same per-

the law of the Twelve Tables: " Eo sons nor the same times.

anno plebi Romanae, velut aliud initium a See a fragment of Dionys. Halicarn.

libertatis factum est, quod necti desie- in the " Extract of Virtues and Vices ";

runt." — Livy, lib. VIII. Livy's epitome, book II.; and Frein-

u " Bona debitoris, non corpus ob- shemius, book II. noxium esset." — Ibid.


202 MONTESQUIEU

Upon the arraigning of a peer under Henry VIII it was cus- tomary to try him by a committee of the House of Lords : by which means he put to death as many peers as he pleased.

23. — 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 trade of a spy 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 embar- rassed in playing his part. When he finds that the laws are generally observed and respected, he may judge himself safe. The behavior 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 bounties and favors ; punishments being generally charged to the ac- count of the laws ? He never shows 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 be- loved is that his subjects have 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 confi- dence they have in his person.

24. — Of Anonymous Letters

The Tartars are obliged to put their names to their arrows, that the arm may be known which shoots them. When Philip of Macedon was wounded at the siege of a certain town, these words were found on the javelin, " Aster has given this mortal


THE SPIRIT OF LAWS 203

wound to Philip."^ 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 magis- trates, 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, except in cases that admit not of the de- lays of the ordinary course of justice, and in which the prince's welfare is concerned. Then it may be imagined that the ac- cuser has made an effort, which has untied his tongue. But in other cases one ought to say, with the Emperor Constan- tius : " We cannot suspect a person who has wanted an ac- cuser, whilst he did not want an enemy."c

25. — Of the Manner of governing in Monarchies

The royal authority is a spring that ought to move with the greatest freedom and ease. 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 should reduce it within narrower limits. The sublimity of adminis- tration consists in knowing the proper degree of power, which should be exerted on different occasions.

The whole felicity of monarchies consists in the opinion which the subjects entertain of the lenity of the government. A weak minister is ever ready to remind us of our slavery. But granting, even, that we are slaves, he should endeavor to conceal our misery from us. All he can say or write is that the prince is uneasy, that he is surprised, and that he will redress all grievances. There is a certain ease in commanding; the prince ought only to encourage, and let the laws menace.^

h Plutarch's "Morals : Comparison of d " Nerva," says Tacitus, " increased

some Roman and Greek Histories," the ease of government." It is worthy

tom. ii. p. 487. of note that the best editions of Tacitus

c Leg. 6, Cod. Theod. " de famosis li- have " felicitatem imperii," and not

bellis." " facilitatem imperii."— Ed.


204 MONTESQUIEU

26. — That in a Monarchy the Prince ought to he of easy

Access

The utility of this maxim will appear from the inconvenience attending the contrary practice. ** The Czar Peter I," says the Sieur Perry/ " has published a new edict, by which he forbids any of his subjects to offer him a petition till after having pre- sented it to two of his officers. In case of 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 ofifer a peti- tion to the Czar."

27. — 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 brutes, and brutes into men. If he prefers free and generous spirits, he will have subjects ; if he likes base, dastardly souls, he will have slaves. Would he know the great art of ruling, let him call honor and virtue to attend his person ; and let him encourage 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 when once he loves them. Let him gain the hearts of his people, without subduing their spirits. Let him render himself popular; he ought to be pleased with the affections of the lowest of his sub- jects, for they too are men. The common people require so very little condescension, that it is fit they should be humored ; the infinite distance between the sovereign and them will surely prevent them from giving him any uneasiness. Let him be ex- orable to supplication, and resolute against demands ; let him be sensible, in fine, that his people have his refusals, while his courtiers enjoy his favors.

28. — Of the Regard which Monarchs owe to their Subjects

Princes ought to be extremely circumspect with regard to raillery. It pleases with moderation, because it is an introduc- tion to familiarity ; but a satirical raillery is less excusable in them than in the meanest of their subjects, for it is they alone that give a mortal wound.

e" State of Russia," p. 173, Paris edition, 1717.


THE SPIRIT OF LAWS 205

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

When they affront their subjects, their treatment is more cruel than that of the Turk or the Muscovite. The insults of these are a humiliation, not a disgrace ; but both must follow from the insolent behavior of monarchs.

Such is the prejudice of the eastern nations, that they look upon an affront from the prince as the effect of paternal good- ness ; and such, on the contrary, is our way of thinking, that besides the cruel vexation of being affronted, we 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 sovereigns for insulting their subjects: the revenge of Chaerea, of the eunuch Narses, of Count Julian, and, in fine, of the Duchess of Montpensier, who, being enraged against Henry III for having published some of her private failings, tormented him during her whole life.

29. — Of the civil Laws proper for mixing some portion of Liberty in a despotic Government

Though despotic governments are of their own nature every- where the same, yet from circumstances — from a religious opinion, from prejudice, from received examples, from a par- ticular 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.^

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 Veda among the Indians, and the clas- sic books among the Chinese. The religious code supplies the civil and fixes the extent of arbitrary sway.

It is not at all amiss that in dubious cases the judges should cdnsult the ministers of religion.^ Thus, in Turkey, the Cadis

/ The Caliphs. g " History of the Tartars," 3d part, p. 277, in the remarks.


2o6 MONTESQUIEU

consult the Mollahs./t But if it is a capital crime, it may be proper for the particular judge, if such there be, to take the gov- ernor's advice, to the end that the civil and ecclesiastical power may be tempered also by the political authority.

30. — The same Subject continued

Nothing but the very excess and rage 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 assuage his wrath or to inform his justice.

It is an excellent custom of the Maldivians,* that when a lord is disgraced he goes every day to pay his court to the king till he is taken again into favor : his presence disarms the prince's indignation.

In some despotic governments/ they have a notion that it is trespassing against the respect due to their prince to speak to him in favor of a person in disgrace. These princes seem to use all their endeavors to deprive themselves of the virtue of clemency.

Arcadius and Honorius, by a law^ on which we have already descanted,^ positively declare that they will show no favor to those who shall presume to petition them in behalf of the guil- ty.w This was a very bad law indeed, since it is bad even under a despotic government.

The custom of 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 ever considered the subjects as slaves,w and those who quit the coun- try as fugitives, yet the Persian practice is useful even to a des- potic government, because the apprehension of people's with- drawing for debt restrains or moderates the oppressions ot pashas and extortioners.

h It is plain here that Montesquieu / In the 8th chapter of this book,

confounds the Mollahs with the Mufti. m Frederick copied this law in the

— P. " Constitutions of Naples," book I.

i See Francis Pirard. n In monarchies there is generally a

y As at present in Persia, according to law which forbids those who are in-

Sir ^John Chardin, this custom is very vested with public employments to go

ancient. " They put Cavades," says out of the kingdom without the prince's

Procopius, " into the castle of oblivion; leave. This law ought to be established

there is a law which forbids any one to also in republics. But in those that

speak of those who are shut up, or even have particular institutions the prohibi-

to mention their name." tion ought to be general, in order to

k The fifth law irj the cod. " ad leg. prevent the introduction of foreign

Jul. Maj," maniiers.


BOOK XIII

OF THE RELATION WHICH THE LEVYING OF TAXES AND THE GREATNESS OF THE PUBLIC REVENUES BEAR TO LIBERTY

I. — Of the Public Revenues

THE public revenues are a portion that each subject gives of his property, in order to secure or enjoy the remainder.

To fix these revenues in a proper manner, regard should be had both to the necessities of the state and to those of the sub- ject. The real wants of the people ought never to give way to the imaginary wants of the state.

Imaginary wants are those which flow from the passions and the weakness of the governors, from the vain conceit of some extraordinary project, from the inordinate desire of glory, and from a certain impotence of mind incapable of withstanding the impulse of fancy. Often have ministers of a restless disposi- tion imagined that the wants of their own mean and ignoble souls were those of the state.

Nothing requires more wisdom and prudence than the regu- lation of that portion of which the subject is deprived, and that which he is suffered to retain.

The public revenues should not be measured by the people's abilities to give, but by what they ought to give ; and if they arc measured by their abilities to give, it should be considered what they are able to give for a constancy.

2. — That it is bad Reasoning to say that the Greatness of Taxes is good in its own Nature

There have been instances in particular monarchies of petty states exempt from taxes that have been as miserable as the circumjacent places which groaned under the weight of exac-

207


2o8 MONTESQUIEU

tions. The chief reason of this is, that the petty state can hardly have any such thing as industry, arts, or manufactures, because of its being subject to a thousand restraints from the great state by which it is environed. The great state is blessed with in- dustry, manufactures, and arts, and establishes laws by which those several advantages are procured. The petty state be- comes, therefore, necessarily poor, let it pay never so few taxes.

And yet some have concluded from the poverty of those petty states that in order to render the people industrious they should be loaded with taxes. But it would be a juster inference, that they ought to pay no taxes at all. None live here but wretches who retire from the neighboring parts to avoid working — wretches who, disheartened by labor, make their whole felicity consist in idleness.

The efifect of wealth in a country is to inspire every heart with ambition: that of poverty is to give birth to despair. The former is excited by labor the latter is soothed by indolence.

Nature is just to all mankind, and repays them for their in- dustry: she renders them industrious by annexing rewards in proportion to their labor. But if an arbitrary prince should attempt to deprive the people of nature's bounty, they would fall into a disrelish of industry ; and then indolence and inac- tion must be their only happiness.

3- — Of Taxes in Countries where Part of the People are Villains or Bondmen

The state of villanage is sometimes established after a con- quest. In that case, the bondman or villain that tills the land ought to have a kind of partnership with his master. Nothing but a communication of loss or profit can reconcile those who are doomed to labor to such as are blessed with a state of afifluence.

4- — Of a Republic in the like Case

When a republic has reduced a nation to the drudgery of cultivating her lands, she ought never to suffer the free sub- ject to have the power of increasing the tribute of the bond- man. This was not permitted at Sparta. Those brave people thought the Helotes a would be more industrious in cultivat-

o Plutarch,


THE SPIRIT OF LAWS


209


ing their lands, and knowing that their servitude was not to increase; they imagined, Hkewise, that the masters would be better citizens, when they desired no more than what they were accustomed to enjoy.

5. — Of a Monarchy in the like Case

When the nobles of a monarchical state cause the lands to be cultivated for their own use by a conquered people, they ought never to have the power of increasing the service or tribute.^ Besides, it is right the prince should be satisfied with his own demesne and the military service. But if he wants to raise taxes on the vassals of his nobility, the lords of the sev- eral districts ought to be answerable for the tax,c and be obliged to pay it for the vassals, by whom they may be afterwards re- imbursed. If this rule be not followed, the lord and the collec- tors of the public taxes will harass the poor vassal by turns till he perishes with misery or flies into the woods.

6. — Of a despotic Government in the like Case

The foregoing rule is still more indispensably necessary in a despotic government. The lord who is every moment liable to be stripped of his lands and his vassals is not so eager to preserve them.

When Peter I thought proper to follow the custom of Ger- many, and to demand his taxes in money, he made a very pru- dent regulation, which is still followed in Russia. The gen- tleman levies the tax on the peasant, and pays it to the Czar. If the number of peasants diminishes, he pays all the same; if it increases, he pays no more ; so that it is his interest not to worry or oppress his vassals.

7. — Of Taxes in Countries where Villanage is not established

When the inhabitants of a state are all free subjects, and each man enjoys his property with as much right as the prince his sovereignty, taxes may then be laid either on persons, on lands, on merchandise, on two of these, or on all three together.

In the taxing of persons, it would be an unjust proportion to

6 This is what induced Charlemagne this head. See the fifth book of the to make his excellent institution upon " Capitularies," art. 303.

c This is the practice in Germany.

Vol. I.— 14


2IO MONTESQUIEU

conform exactly to that of property. At Athens the people were divided into four classes. c^ Those who drew five hundred measures of liquid or dried fruit from their estates paid a talent e to the public; those who drew three hundred measures paid half a talent ; those who had two hundred measures paid ten minse ; those of the fourth class paid nothing at all. The tax was fair, though it was not proportionable : if it did not follow the measure of people's property, it followed that of their wants. It was judged that every man had an equal share of what was necessary for nature, that whatsoever was necessary for nature ought not to be taxed ; that to this succeeded the useful, which ought to be taxed, but less than the superfluous ; and that the largeness of the taxes on what was superfluous prevented super- fluity.

In the taxing of lands it is customary to make lists or regis- ters, in which the different classes of estates are ranged. But it is very difficult to know these differences, and still more so to find people that are not interested in mistaking them. Here, therefore, are two sorts of injustice, that of the man and that of the thing. But if in general the tax be not exorbitant, and the people continue to have plenty of necessaries, these partic- ular acts of injustice will do no harm. On the contrary, if the people are permitted to enjoy only just what is necessary for subsistence, the least disproportion will be of the greatest con- sequence.

If some subjects do not pay enough, the mischief is not so great; their convenience and ease turn always to the public advantage; if some private people pay too much, their ruin redounds to the public detriment. If the government propor- tions its fortune to that of individuals, the ease and conven- ience of the latter will soon make its fortune rise. The whole depends upon a critical moment : shall the state begin with im- poverishing the subjects to enrich itself? Or had it better wait to be enriched by its subjects? Is it more advisable for it to have the former or the latter advantage ? Which shall it choose — to begin or to end with opulence ?

The duties felt least by the people are those on merchandise, because they are not demanded of them in form. They may be so prudently managed that the people themselves shall

d Pollux, book VIII. chap. x. art. 130, ^ Or 60 minae.


THE SPIRIT OF LAWS 211

hardly know they pay them. For this purpose it is of the ut- most consequence that the person who sells the merchandise should pay the duty. He is very sensible that he does not pay it for himself ; and the consumer, who pays it in the main, con- founds it with the price. Some authors have observed that Nero had abolished the duty of the five-and-twentieth part arising from the sale of slaves ',f and yet he had only ordained that it should be paid by the seller instead of the purchaser; this regulation, which left the impost entire, seemed, never- theless, to suppress it.

There are two states in Europe where the imposts are very heavy upon liquors: in one the brewer alone pays the duty, in the other it is levied indiscriminately upon all the consum- ers ; in the first nobody feels the rigor of the impost, in the second it is looked upon as a grievance ; in the former the sub- ject is sensible only of the liberty he has of not paying, in the latter he feels only the necessity that compels him to pay.

Further, the obliging the consumers to pay requires a per- petual rummaging and searching into their houses. Now noth- ing is more contrary than this to liberty ; and those who es- tablish these sorts of duties have not surely been so happy as to hit upon the best method of collecting the revenue.

8. — In what Manner the Deception is preserved

In order to make the purchaser confound the price of the commodity with the impost, there must be some proportion between the impost and the value of the commodity : for which reason there ought not to be an excessive duty upon merchan- dise of little value. There are countries in which the duty ex- ceeds seventeen or eighteen times the value of the commodity. In this case the prince removes the disguise : his subjects plainly see they are dealt with in an unreasonable manner, which ren- ders them most exquisitely sensible of their servile condition.

Besides, the prince, to be able to levy a duty so dispropor- tioned to the value of the commodity, must be himself the ven- dor, and the people must not have it in their power to purchase it elsewhere : a practice subject to a thousand inconveniences.

f " Vectigal quintse et vicesimae vena- dere juberetur, in partem pretii emp- Hum mancipiorum remissum specie toribus accrescebat. — Tacit. " Annal." magis, quam vi, quia cum venditor pen- lib. XIII.


212 MONTESQUIEU

Smuggling being in this case extremely lucrative, the natural and most reasonable penalty, namely, the confiscation of the merchandise, becomes incapable of putting a stop to it; es- pecially as this very merchandise is intrinsically of inconsider- able value. Recourse must, therefore, be had to extravagant punishments, such as those inflicted for capital crimes.

All proportion then of penalties is at an end. Persons that cannot really be considered as vicious are punished like the most infamous criminals ; which of all things in the world is the most contrary to the spirit of a moderate government.

Again, in proportion as people are tempted to cheat the farmer of the revenues, the more the latter is enriched, and the former impoverished. To put a stop to smuggling, the farmer must be invested with extraordinary means of oppressing, and then the country is ruined.

9. — Of a had Kind of Impost

We shall here, by the way, take notice of an impost laid in particular countries on the different articles of civil contracts. As these are things subject to very nice disquisitions, a vast deal of knowledge is necessary to make any tolerable defence against the farmer of the revenues, who interprets, in that case, the regulations of the prince, and exercises an arbitrary power over people's fortunes. Experience has demonstrated that a duty on the paper on which the deeds are drawn would be of far greater service.

10. — That the Greatness of Taxes depends on the Nature of the Government

Taxes ought to be very light in despotic governments: otherwise who would be at the trouble of tilling the land ? Be- sides, how is it possible to pay heavy duties in a government that makes no manner of return to the different contributions of the subject?

The exorbitant power of the prince, and the extreme depres- sion of the people, require that there should not be even a pos- sibility of the least mistake between them. The taxes ought to be so easy to collect, and so clearly settled, as to leave no op- portunity for the collectors to increase or diminish them. A


THE SPIRIT OF LAWS


213


portion of the fruits of the earth, a capitation, a duty of so much per cent, on merchandise, are the only taxes suitable to that government.

Merchants in despotic countries ought to have a personal safeguard, to which all due respect should be paid. Without this they would be too weak to dispute with the custom-house officers.

II. — Of Confiscations

With respect to confiscations, there is one thing very par- ticular, that, contrary to the general custom, they are more severe in Europe than in Asia. In Europe not only the mer- chandise, but even sometimes the ships and carriages, are con- fiscated ; which is never practised in Asia. This is because in Europe the merchant can have recourse to magistrates, who are able to shelter him from oppression ; in Asia the magis- trates themselves would be the greatest oppressors. What remedy could a merchant have against a pasha who was deter- mined to confiscate his goods ?

The prince, therefore, checks his own power, finding him- self under the necessity of acting with some kind of lenity. In Turkey they raise only a single duty for the importation of goods, and afterwards the whole country is open to the mer- chant. Smuggling is not attended with confiscation or increase of duty. In China g they never look into the baggage of those who are not merchants. Defrauding the customs in the ter- ritory of the Mogul is not punished with confiscation, but with doubling the duty. The princes of Tartary, who reside in towns, impose scarcely any duty at all on the goods that pass through their country./* In Japan, it is true, to cheat the cus- toms is a capital crime ; but this is because they have particular reasons for prohibiting all communication with foreigners ; hence the fraud i is rather a contravention of the laws made for the security of the government than of those of commerce.

g Father Du Halde, torn. ii. p. 37. nations for that purpose — the Dutch for

h " History of the Tartars," part III. the commerce of Europe, and the Chi-

p. 290. nese for that of Asia; they confine the

i Being willing to trade with foreign- factors and sailors in a kind of prison,

ers without having any communication and lay such a restraint upon them as

with them, they have pitched upon two tires their patience.


214 MONTESQUIEU

12. — Relation between the Weight of Taxes and Liberty

It is a general rule that taxes may be heavier in proportion to the liberty of the subject, and that there is a necessity for reducing them in proportion to the increase of slavery. This has always been and always will be the case. It is a rule de- rived from nature that never varies. We find it in all parts, — in England, in Holland, and in every state where liberty gradu- ally declines, till we come to Turkey. Switzerland seems to be an exception to this rule, because they pay no taxes ; but the particular reason for that exemption is well known, and even confirms what I have advanced. In those barren mountains provisions are so dear, and the country is so populous, that a Swiss pays four times more to nature than a Turk does to the sultan.

A conquering people, such as were formerly the Athenians and the Romans, may rid themselves of all taxes as they reign over vanquished nations. Then, indeed, they do not pay in proportion to their liberty, because in this respect they are no longer a people, but a monarch.

But the general rule still holds good. In moderate govern- ments there is an indemnity for the weight of the taxes, which is liberty. In despotic countries^ there is an equivalent for liberty, which is the lightness of the taxes.

In some monarchies in Europe there are& particular prov- inces which from the very nature of their civil government are in a more flourishing condition than the rest. It is pretended that these provinces are not sufficiently taxed, because through the goodness of their government they are able to be taxed higher ; hence the ministers seem constantly to aim at depriv- ing them of this very government whence a diffusive blessing is derived, which redounds even to the prince's advantage.

13. — In zvhat Government Taxes are capable of Increase

Taxes may be increased in most republics, because the citi- zen, who thinks he is paying himself, cheerfully submits to

a In Russia the taxes are but small ; b The pays d'etats, where the states

they have been increased since the of the province assemble to deliberate despotic power of the prince is exercised on public affairs, with more moderation. See the " His- tory of the Tartars," part II.


THE SPIRIT OF LAWS 215

them, and moreover is generally able to bear their weight, from the nature of the government.

In a monarchy taxes may be increased, because the modera- tion of the government is capable of procuring opulence : it is a recompense, as it were, granted to the prince for the respect he shows to the laws. In despotic governments they cannot be increased, because there can be no increase of the extremity of slavery.

14. — That the Nature of the Taxes is in Relation to the Government

A capitation is more natural to slavery ; a duty on merchan- dise is more natural to liberty, by reason it has not so direct a relation to the person.

It is natural in a despotic government for the prince not to give money to his soldiers, or to those belonging to his court ; but to distribute lands amongst them, and of course that there should be very few taxes. But if the prince gives money, the most natural tax he can raise is a capitation, which can never be considerable. For as it is impossible to make different classes of the contributors, because of the abuses that might arise thence, considering the injustice and violence of the gov- ernment, they are under an absolute necessity of regulating themselves by the rate of what even the poorest and most wretched are able to contribute.

The natural tax of moderate governments is the duty laid on merchandise. As this is really paid by the consumer, though advanced by the merchant, it is a loan which the latter has al- ready made to the former. Hence the merchant must be con- sidered on the one side as the general debtor of the state, and on the other as the creditor of every individual. He advances to the state the duty which the consumer will some time or other refund : and he has paid for the consumer the duty which he has advanced for the merchandise. It is, therefore, obvious that in proportion to the moderation of the government, to the prevalence of the spirit of liberty, and to the security of private fortunes, a merchant has it in his power to advance money to the state, and to pay considerable duties for individuals. In England a merchant lends really to the government fifty or sixty pounds sterling for every tun of wine he imports. Where


2i6 MONTESQUIEU

is the merchant that would dare do any such thing in a coun- try hke Turkey? And were he so presumptuous, how could he do it with a crazy or shattered fortune ?


15. — Abuse of Liberty

To these great advantages of liberty it is owing that liberty itself has been abused. Because a moderate government has been productive of admirable effects, this moderation has been laid aside ; because great taxes have been raised, they wanted to carry them to excess ; and ungrateful to the hand of liberty, of whom they received this present, they addressed themselves to slavery, who never grants the least favor.

Liberty produces excessive taxes; the effect of excessive taxes is slavery ; and slavery produces a diminution of tribute.

Most of the edicts of the eastern monarchs are to exempt every year some province of their empire from paying tribute.^ The manifestations of their wills are favors. But in Europe the edicts of princes are disagreeable even before they are seen, because they always make mention of their own wants, but not a word of ours.

From an unpardonable indolence in the ministers of those countries, owing to the nature of the government, and fre- quently to the climate, the people derive this advantage, that they are not incessantly plagued with new demands. The pub- lic expense does not increase, because the ministers do not form new projects : and if some by chance are formed, they are such as are soon executed. The governors of the state do not per- petually torment the people, for they do not perpetually tor- ment themselves. But it is impossible there should be any fixed rule in our finances, since we always know that we shall have something or other to execute, without ever knowing what it is.

It is no longer customary with us to give the appellation of a great minister to a wise dispenser of the public revenues, but to a person of dexterity and cunning, who is clever at finding out what we call the ways and means.

c This is the practice of the emperors annual exemptions, and not perpetual, of China. The author speaks here of — Ed.


THE SPIRIT OF LAWS 217

16. — Of the Conquests of the Mahommedans

It was this excess of taxesc? that occasioned the prodigious facility with which the Mahommedans carried on their con- quests. Instead of a continual series of extortions devised by the subtle avarice of the Greek emperors, the people were sub- jected to a simple tribute which was paid and collected with ease. Thus they were far happier in obeying a barbarous na- tion than a corrupt government, in which they suffered every inconvenience of lost liberty, with all the horror of present slavery.

17. — Of the Augmentation of Troops

A new distemper has spread itself over Europe, infecting our princes, and inducing them to keep up an exorbitant num- ber of troops. It has its redoublings, and of necessity becomes contagious. For as soon as one prince augments his forces, the rest, of course, do the same; so that nothing is gained thereby but the public ruin. Each monarch keeps as many armies on foot as if his people were in danger of being exter- minated: and they give the name of peaces to this general effort of all against all. Thus is Europe ruined to such a degree that were private people to be in the same situation as the three most opulent powers of this part of the globe, they would not have necessary subsistence. We are poor with the riches and commerce of the whole world ; and soon, by thus augment- ing our troops, we shall be all soldiers, and be reduced to the very same situation as the Tartars.^

Great princes, not satisfied with hiring or buying troops of petty states, make it their business on all sides to pay subsidies for alliances, that is, generally to throw away their money.

The consequence of such a situation is the perpetual aug- mentation of taxes ; and the mischief which prevents all future remedy is, that they reckon no more upon their revenues, but in waging war against their whole capital. It is no unusual thing to see governments mortgage their funds even in time

d See in history the greatness, the f All that is wanting for this is to

oddity, and even the folly of those taxes. improve the new invention of the militia

Anastasius invented a tax for breathing, established in most parts of Europe, and

" ut quisque pro haustu aeris penderet." carry it to the same excess as they do

e True it is that this state of effort is the regular troops, the chief support of the balance, be- cause it checks the great powers.


2i8 MONTESQUIEU

of peace, and to employ what they call extraordinary means to ruin themselves — means so extraordinary, indeed, that such are hardly thought of by the most extravagant young spend- thrift.

i8. — Of an Exemption from Taxes

The maxim of the great eastern empires, of exempting such provinces as have very much suffered from taxes, ought to be extended to monarchical states. There are some, indeed, where this practice is established ; yet the country is more op- pressed than if no such rule took place ; because as the prince levies still neither more nor less, the state becomes bound for the whole. In order to ease a village that pays badly, they load another that pays better; the former is not relieved, and the latter is ruined. The people grow desperate between the necessity of paying for fear of exactions, and the danger of pay- ing for fear of new burdens.

A well-regulated government ought to set aside, for the first article of its expense, a determinate sum to answer contingent cases. It is with the public as with individuals, who are ruined when they live up exactly to their income.

With regard to an obligation for the whole amongst the in- habitants of the same village, some pretend g that it is but rea- sonable, because there is a possibility of a fraudulent combina- tion on their side : but was it ever heard that, upon mere sup- position, we are to establish a thing in itself unjust and ruinous to the state ?

19. — Which is more suitable to the Prince and to the People, the farming the Revenues, or managing them by Commission

The managing of the revenues by commission is like the con- duct of a good father of a family, who collects his own rents himself with economy and order.

By this management of the revenues the prince is at liberty to press or to retard the levy of the taxes, either according to his own wants or to those of his people. By this he saves to the state the immense profits of the farmers, who impoverish it in a thousand ways. By this he prevents the people from

K See a treatise on the " Roman Finances," chap. ii. Printed at Paris by Briasson, 1740.


THE SPIRIT OF LAWS 219

being mortified with the sight of sudden fortunes. By this the public money passes through few hands, goes directly to the treasury, and consequently makes a quicker return to the people. By this the prince avoids an infinite number of bad laws extorted from him by the importunate avarice of the farmers, who pretend to offer a present advantage for regula- tions pernicious to posterity.

As the moneyed man is always the most powerful, the farmer renders himself arbitrary even over the prince himself; he is not the legislator, but he obliges the legislator to give laws.

I acknowledge that it is sometimes of use to farm out a new duty, for there is an art in preventing frauds, which motives of interest suggest to the farmers, but commissioners never think of. Now the manner of levying it being once established by the farmer, it may afterwards be safely intrusted to a commis- sion. In England the management of the Excise and of the Post-office was borrowed from that of the farmers of the rev- enue.

In republics the revenues of the state are generally managed by commission. The contrary practice was a great defect in the Roman government.^ In despotic governments the peo- ple are infinitely happier where this management is established — witness Persia and China.J The unhappiest of all are those where the prince farms out his sea-ports and trading cities. The history of monarchies abounds with mischiefs done by the farmers of the revenue.

Incensed at the oppressive extortions of the pubHcans, Nero formed a magnanimous but impracticable scheme of aboHsh- ing all kinds of imposts. He did not think of managing the revenues by commissioners, but he made four edicts :; that the laws enacted against publicans, which had hitherto been kept secret, should be promulgated; that they should exact no claims for above a year backward ; that there should be a pretor established to determine their pretensions without any formality ; and that the merchants should pay no duty for their vessels. These were the halcyon days of that emperor.

h Csesar was obliged to remove the governed pursuant to the ancient plan,

publicans from the province of Asia, obtained to be of the number of those

and to establish there another kind of which the emperor governed by hts

regulation, as we learn from Dio; and officers. ^, ,. , «to^ i

Tacitus informs us that Macedonia and i See Sir John Chardin s 1 ravels

Achaia, provinces left by Augustus to through Persia," torn. vi.

the people of Rome, and consequently j Tacitus, ' Annal. XIII.


2 20 MONTESQUIEU

20. — Of the Farmers of the Revenues

When the lucrative profession of a farmer of tke revenue becomes likewise a post of honor, the state is ruined. It may do well enough in despotic governments, where this employ- ment is oftentimes exercised by the governors themselves. But it is by no means proper in a republic, since a custom of the like nature destroyed that of Rome. Nor is it better in monarchies, nothing being more opposite to the spirit of this government. All the other orders of the state are dissatisfied ; honor loses its whole value ; the gradual and natural means of distinction are no longer respected ; and the very principle of the government is subverted.

It is true, indeed, that scandalous fortunes were raised in former times ; but this was one of the calamities of the Fifty Years' War. These riches were then considered as ridiculous ; now we admire them.

Every profession has its particular lot. That of the tax- gatherers is wealth ; and wealth is its own reward. Glory and honor fall to the share of that nobility who are sensible of no other happiness. Respect and esteem are for those ministers and magistrates whose whole life is a continued series of labor, and who watch day and night over the welfare of the empire.


I


BOOK XIV

OF LAWS IN RELATION TO THE NATURE OF THE CLIMATE

I. — General Idea

IF it be true that the temper of the mind and the passions of the heart are extremely different in different cHmates, the laws ought to be in relation both to the variety of those passions and to the variety of those tempers.

2. — Of the Difference of Men in different Climates

Cold air constringes the extremities of the external fibres of the body ;a this increases their elasticity, and favors the re- turn of the blood from the extreme parts to the heart. It con- tracts^ those very fibres; consequently it increases also their force. On the contrary, warm air relaxes and lengthens the extremes of the fibres ; of course it diminishes their force and elasticity.

People are, therefore, more vigorous in cold climates. Here the action of the heart and the reaction of the extremities of the fibres are better performed, the temperature of the humors is greater, the blood moves more freely towards the heart, and reciprocally the heart has more power. This superiority of strength must produce various effects ; for instance, a greater boldness, that is, more courage ; a greater sense of superiority, that is, less desire of revenge ; a greater opinion of security, that is, more frankness, less suspicion, policy, and cunning. In short, this must be productive of very different tempers. Put a man into a close, warm place, and for the reasons above given he will feel a great faintness. If under this circumstance you propose a bold enterprise to him, I believe you will find him

a Tbis appears even in the counte- b We know that it shortens iron.

nan«e: in cold weather people look thin- ner.

221


222 MONTESQUIEU

very little disposed towards it ; his present weakness will throw him into despondency ; he will be afraid of everything, being in a state of total incapacity. The inhabitants of warm coun- tries are, like old men, timorous ; the people in cold countries are, like young men, brave. If we reflect on the late wars,c which are more recent in our memory, and in which we can bet- ter distinguish some particular effects that escape us at a greater distance of time, we shall find that the northern people, trans- planted into southern regi.ons,c^ did not perform such exploits as their countrymen, who, fighting in their own climate, pos- sessed their full vigor and courage.

This strength of the fibres in northern nations is the cause that the coarser juices are extracted from their ailments. Hence two things result: one, that the parts of the chyle or lymph are more proper, by reason of their large surface, to be ap- plied to and to nourish the fibres ; the other, that they are less proper, from their coarseness, to give a certain subtility to the nervous juice. Those people have, therefore, large bodies and but little vivacity.

The nerves that terminate from all parts in the cutis form each a nervous bundle; generally speaking, the whole nerve is not moved, but a very minute part. In warm climates, where the cutis is relaxed, the ends of the nerves are expanded and laid open to the weakest action of the smallest objects. In cold countries the cutis is constringed and the papillae compressed : the miliary glands are in some measure paralytic; and the sensation does not reach the brain, except when it is very strong and proceeds from the whole nerve at once. Now, imagina- tion, taste, sensibility, and vivacity depend on an infinite num- ber of small sensations.

I have observed the outermost part of a sheep's tongue, where, to the naked eye, it seems covered with papillae. On these papillae I have discerned through a microscope small hairs, or a kind of down ; between the papillae were pyramids shaped towards the ends like pincers. Very likely these pyra- mids are the principal organ of taste.

I caused the half of this tongue to be frozen, and observing it with the naked eye I found the papillae considerably dimin-

c Those for the succession to the d For instance, in Spain.

Spanish monarchy.


THE SPIRIT OF LAWS


223


ished : even some rows of them were sunk into their sheath. The outermost part I examined with the microscope, and per- ceived no pyramids. In proportion as the frost went off, the papillae seemed to the naked eye to rise, and with the micro- scope the miliary glands began to appear.

This observation confirms what I have been saying, that in cold countries the nervous glands are less expanded: they sink deeper into their sheaths, or they are sheltered from the action of external objects; consequently they have not such lively sensations.

In cold countries they have very little sensibility for pleas- ure ; in temperate countries, they have more ; in warm coun- tries, their sensibility is exquisite. As climates are distin- guished by degrees of latitude, we might distinguish them also in some measure by those of sensibility. I have been at the opera in England and in Italy, where I have seen the same pieces and the same performers ; and yet the same music pro- duces such different effects on the two nations : one is so cold and phlegmatic, and the other so lively and enraptured, that it seems almost inconceivable.

It is the same with regard to pain, which is excited by the laceration of some fibre of the body. The Author of nature has made it an established rule that this pain should be more acute in proportion as the laceration is greater : now it is evident that the large bodies and coarse fibres of the people of the North are less capable of laceration than the delicate fibres of the in- habitants of warm countries ; consequently the soul is there less sensible of pain. You must flay a Muscovite alive to make him feel.

From this delicacy of organs peculiar to warm climates it follows that the soul is most sensibly moved by whatever re- lates to the union of the two sexes : here everything leads to this object.

In northern climates scarcely has the animal part of love a power of making itself felt. In temperate climates, love, at- tended by a thousand appendages, endeavors to please by things that have at first the appearance, though not the reality, of this passion. In warmer climates it is liked for its own sake, it is the only cause of happiness, it is life itself.

In southern countries a machine of a delicate frame but


224 MONTESQUIEU

strong sensibility resigns itself either to a love which rises and is incessantly laid in a seraglio, or to a passion which leaves women in a greater independence, and is consequently exposed to a thousand inquietudes. In northern regions a machine ro- bust and heavy finds pleasure in whatever is apt to throw the spirits into motion, such as hunting, travelling, war, and wine. If we travel towards the North, we meet with people who have few vices, many virtues, and a great share of frankness and sin- cerity. If we draw near the South, we fancy ourselves entirely removed from the verge of morality ; here the strongest pas- sions are productive of all manner of crimes, each man en- deavoring, let the means be what they will, to indulge his in- ordinate desires. In temperate climates we find the inhabitants inconstant in their manners, as well as in their vices and virtues : the climate has not a quality determinate enough to fix them. The heat of the climate may be so excessive as to deprive the body of all vigor and strength. Then the faintness is com- municated to the mind ; there is no curiosity, no enterprise, no generosity of sentiment; the inclinations are all passive; in- dolence constitutes the utmost happiness; scarcely any pun- ishment is so severe as mental employment; and slavery is more supportable than the force and vigor of mind necessary for human conduct.

3. — Contradiction in the Tempers of some Southern Nations

The Indians^ are naturally a pusillanimous people ; even the children/^ of Europeans born in India lose the courage peculiar to their own climate. But how shall we reconcile this with their customs and penances so full of barbarity? The men volun- tarily undergo the greatest hardships, and the women burn themselves : here we find a very odd compound of fortitude and weakness.

Nature, having framed those people of a texture so weak as to fill them with timidity, has formed them at the same time of an imagination so lively that every object makes the strong- est impression upon them. That delicacy of organs which renders them apprehensive of death contributes likewise to

e " One hundred European soldiers," f Even the Persians who settle in the

says Tavernier, " would without any Indies contract in the third generation great difficulty beat a thousand Indian the indolence and cowardice of the soldiers." Indians. See Bernier on the " Mogul,"

torn. i. p. 182,


THE SPIRIT OF LAWS 225

make them dread a thousand things more than death : the very same sensibiHty induces them to fly and dare all dangers.

As a good education is more necessary to children than to such as have arrived at maturity of understanding, so the in- habitants of those countries have much greater need than the European nations of a wiser legislator. The greater their sen- sibility, the more it behooves them to receive proper impres- sions, to imbibe no prejudices, and to let themselves be directed by reason.

At the time of the Romans the inhabitants of the north of Europe were destitute of arts, education, and almost of laws ; and yet the good sense annexed to the gross fibres of those climates enabled them to make an admirable stand against the power of Rome, till the memorable period in which they quitted their woods to subvert that great empire.

4. — Cause af the Immutability of Religion, Manners, Customs, and Laws in the Eastern Countries

If to that delicacy of organs which renders the eastern na- tions so susceptible of every impression you add likewise a sort of indolence of mind, naturally connected with that of the body, by means of which they grow incapable of any exertion or effort, it is easy to comprehend that when once the soul has received an impression it cannot change it. This is the reason that the laws, manners, and customs,g: even those which seem quite indifferent, such as their mode of dress, are the same to this very day in eastern countries as they were a thousand years ago.

5. — That those are had Legislators who favor the Vices of the Climate, and good Legislators who oppose those Vices

The Indians believe that repose and non-existence are the foundation of all things, and the end in which they terminate. Hence they consider entire inaction as the most perfect of all states, and the object of their desires. To the Supreme Being they give the title of immovable.^ The inhabitants of Siam

g We find by a fragment of Nicolaus a Governor who had given any displeas-

Damascenus, collected by Constantine ure; it was in the time of the Medes.

Porphyrogenitus, that it was an ancient h Panamanack : See Kircher. custom in the East to send to strangle

Vol. I.— 15


2 26 MONTESQUIEU

believe that their utmost happiness* consists in not being obHged to animate a machine or to give motion to a body.

In those countries where the excess of heat enervates and exhausts the body, rest is so dehcious, and motion so painful, that this system of metaphysics seems natural ; and Foe,;' the legislator of the Indies, was directed by his own sensations when he placed mankind in a state extremely passive ; but his doctrine arising from the laziness of the climate favored it also in its turn ; which has been the source of an infinite deal of mis- chief.

The legislators of China were more rational when, consider- ing men not in the peaceful state which they are to enjoy here- after, but in the situation proper for discharging the several duties of life, they made their religion, philosophy, and laws all practical. The more the physical causes incHne mankind to inaction, the more the moral causes should estrange them from it.

6. — Of Agriculture in warm Climates

Agriculture is the principal labor of man. The more the climate inclines him to shun this labor, the more the religion and laws of the country ought to incite him to it. Thus the Indian laws, which give the lands to the prince, and destroy the spirit of property among the subjects, increase the bad effects of the climate, that is, their natural indolence.

7. — Of Monkery

The very same mischiefs result from monkery : it had its rise in the warm countries of the East, where they are less inclined to action than to speculation.

In Asia the number of dervishes or monks seems to increase together with the warmth of the climate. The Indies, where the heat is excessive, are full of them ; and the same difference is found in Europe.

In order to surmount the laziness of the climate, the laws ought to endeavor to remove all means of subsisting without

»■ La Loubiere, " Relation of Siam," etc., but perfection requires that these

p. 446. members should be inactive." This is

■ Foe endeavored to reduce the heart taken from the dialogue of a Chinese

to a mere vacuum : " We have eyes and philosopher, cjuoted by Father Du

ears, but perfection consists in neither Halde, torn. iii. seeing nor hearing; a mouth, hands.


» THE SPIRIT OF LAWS 227

labor: but in the southern parts of Europe they act quite the reverse. To those who want to live in a state of indolence, they afford retreats the most proper for a speculative life, and endow them with immense revenues. These men who live in the midst of plenty which they know not how to enjoy, are in the right to give their superfluities away to the common people. The poor are bereft of property ; and these men indemnify them by supporting them in idleness, so as to make them even grow fond of their misery.

8. — An excellent Custom of China

The historical relations^ of China mention a ceremony^ of opening the ground which the emperor performs every year. The design of this public and solemn act is to excite the peo- ple to tillage.^*

Further, the emperor is every year informed of the hus- bandman who has distinguished himself most in his profession ; and he makes him a mandarin of the eighth order.

Among the ancient Persians^ the kings quitted their gran- deur and pomp on the eighth day of the month, called Chor- rem-ruz, to eat with the husbandmen. These institutions were admirably calculated for the encouragement of agriculture.


9. — Means of encouraging Industry

We shall show, in the nineteenth book, that lazy nations are generally proud. Now the effect might well be turned against the cause, and laziness be destroyed by pride. In the south of Europe, where people have such a high notion of the point of honor, it would be right to give prizes to husbandmen who had excelled in agriculture; or to artists who had made the greatest improvements in their several professions. This prac- tice has succeeded in our days in Ireland, where it has estabr. lished one of the most considerable linen manufactures in, Eu- rope.

k Father Du Halde, " History of m Venty, the third Emperor of the

China," torn. i. p. 72. third dynasty, tilled the lands himself,

/ Several of the kings of India do the and made the Empress and his wives same. " Relation of the Kingdom, oi employ their time in the silkworks ir^ Siam," by La Loubiere, p. 69^ ' his palace. '• History of China."

n jp[.yd^ " R^igi,on oj the Persians."'


2 28 MONTESQUIEU

lo. — Of the Laws in relation to the Sobriety of the People

In warm countries the aqueous part of the blood loses itself greatly by perspiration ;o it must, therefore, be supplied by a like liquid. Water is there of admirable use ; strong liquors would congeal the globules^ of blood that remain after the tran- suding of the aqueous humor.

In cold countries the aqueous part of the blood is very little evacuated by perspiration. They may, therefore, make use of spirituous Hquors, without which the blood would congeal. They are full of humors; consequently strong liquors, which give a motion to the blood, are proper for those countries.

The law of Mahomet, which prohibits the drinking of wine, is, therefore, fitted to the climate of Arabia : and, indeed, before Mahomet's time, water was the common drink of the Arabs. The lawcf which forbade the Carthaginians to drink wine was a law of the climate; and, indeed, the climate of those two countries is pretty nearly the same.

Such a law would be improper for cold countries, where the climate seems to force them to a kind of national intemperance, very different from personal ebriety. Drunkenness predomi- nates throughout the world, in proportion to the coldness and humidity of the climate. Go from the equator to the north pole, and you will find this vice increasing together with the degree of latitude. Go from the equator again to the south pole, and you will find the same vice travelling south,& exactly in the same proportion.

It is very natural that where wine is contrary to the climate, and consequently to health, the excess of it should be more severely punished than in countries where intoxication pro- duces very few bad effects to the person, fewer to the society, and where it does not make people frantic and wild, but only stupid and heavy. Hence those lawsc which inflicted a double

Monsieur Bernier, travelling from a Plato, book II. of "Laws"; Aris-

Lahore to Cashmere, wrote thus: "My totle, of the care of domestic affairs;

body is a sieve; scarcely have I swal- Eusebius's " Evangelical Preparation,"

lowed a pint of water, but I see it tran- book XII. chap. xvii.

sude like dew out of all my limbs, even b This is seen in the Hottentots, and

to my fingers' ends. I drink ten pints the inhabitants of the most southern

a day, and it does me no manner of part of Chili.

harm." — Bernier's " Travels," tom. ii. c As Pittacus did, according to Aris-

p. 261. totle, " Polit." lib. I. cap. iii. He lived

p In the blood there are red globules, in a climate where drunkenness is not

fibrous parts, white globule$, an4 water, a national vice, in which the whole swims.


- THE SPIRIT OF LAWS 229

punishment for crimes committed in drunkenness were ap- plicable only to a personal, and not to a national, ebriety. A German drinks through custom, and a Spaniard by choice.

In warm countries the relaxing of the fibres produces a great evacuation of the liquids, but the soUd parts are less transpired. The fibres, which act but faintly, and have very little elasticity, are not much impaired ; and a small quantity of nutritious juice is sufficient to repair them ; for which reason they eat very lit- tle.

It is the variety of wants in different climates that first occa- sioned a difference in the manner of living, and this gave rise to a variety of laws. Where people are very communicative there must be particular laws, and others where there is but little communication.

II. — Of the Laws in relation to the Distempers of the Climate

Herodotusc? informs us that the Jewish laws concerning the leprosy were borrowed from the practice of the Egyptians. And, indeed, the same distemper required the same remedies. The Greeks and the primitive Romans were strangers to these laws, as well as to the disease. The climate of Egypt and Palestine rendered them necessary ; and the facility with which this disease is spread is sufficient to make us sensible of the wisdom and sagacity of those laws.

Even we ourselves have felt the effects of them. The Cru- sades brought the leprosy amongst us ; but the wise regula- tions made at that time hindered it from infecting the mass of the people.

We find by the law of the Lombards^ that this disease was spread in Italy before the Crusades, and merited the attention of the legislature. Rotharis ordained that a leper should be expelled from his house, banished to a particular place, and rendered incapable of disposing of his property ; because from the very moment he had been turned out of his house he was reckoned dead in the eye of the law. In order to prevent all communication with lepers, they were rendered incapable of civil acts.

I am apt to think that this disease was brought into Italy

d Book II. e Book II. tit. i, sec. 3, and tit. 18, sec. i.


2 30 MONTESQUIEU

by the conquests of the Greek emperors, in whose armies there might be some soldiers from Palestine or Egypt. Be that as it may, the progress of it was stopped till the time of the Cru- sades.

It is related that Pompey's soldiers returning from Syria brought a distemper home with them not unlike the leprosy. We have no account of any regulation made at that time ; but it is highly probable that some such step was taken, since the distemper was checked till the time of the Lombards.

It is now two centuries since a disease unknown to our an- cestors was first transplanted from the new world to ours, and came to attack human nature even in the very source of life and pleasure. Most of the principal families in the south of Europe were seen to perish by a distemper that had grown too common to be ignominious, and was considered in no other light than in that of its being fatal. It was the thirst of gold that propagated this disease ; the Europeans went continually to America, and always brought back a new leaven of it/

Reasons drawn from religion seemed to require that this punishment of guilt should be permitted to continue ; but the infection had reached the bosom of matrimony, and given the vicious taint even to guiltless infants.

As it is the business of legislators to watch over the health of the citizens, it would have been a wise part in them to have stopped this communication by laws made on the plan of those of Moses.

The plague is a disease whose infectious progress is much more rapid. Egypt is its principal seat, whence it spreads over the whole globe. Most countries in Europe have made exceed- ingly good regulations to prevent this infection, and in our times an admirable method has been contrived to stop it ; this is by forming a line of troops round the infected country, which cuts of? all manner of communication.

The Turks,^' who have no such regulations, see the Christians escape this infection in the same town, and none but themselves perish ; they buy the clothes of the infected, wear them, and proceed in their old way, as if nothing had happened. The

f It has been thought that this mal- g Ricaut on the " Ottoman Empire,"

ady has a still more ancient origin, and p. 284. that it is probable the Spaniards carried it to America at the start.— Ed.


THE SPIRIT OF LAWS 231

doctrine of a rigid fate, which directs their whole conduct, ren- ders the magistrate a quiet spectator; he thinks that every- thing comes from the hand of God, and that man has nothing more to do than to submit.


12. — Of the Laws against Suicides

We do not find in history that the Romans ever killed them- selves without a cause; but the English are apt to commit suicide most unaccountably ; they destroy themselves even in the bosom of happiness. This action among the Romans was the effect of education, being connected with their principles and customs ; among the English it is the consequence of a dis- temper,/» being connected with the physical state of the ma- chine, and independent of every other cause.

In all probability it is a defect of the filtration of the nervous juice: the machine, whose motive faculties are often unex- erted, is weary of itself; the soul feels no pain, but a certain uneasiness in existing. Pain is a local sensation, which leads us to the desire of seeing an end of it ; the burden of life, which prompts us to the desire of ceasing to exist, is an evil confined to no particular part.

It is evident that the civil laws of some countries may have reasons for branding suicide with infamy: but in England it cannot be punished without punishing the effects of madness.

13. — Effects arising from the Climate of England

In a nation so distempered by the climate as to have a dis- relish of everything, nay, even of life, it is plain that the gov- ernment most suitable to the inhabitants is that in which they cannot lay their uneasiness to any single person's charge, and in which, being under the direction rather of the laws than of the prince, it is impossible for them to change the government without subverting the laws themselves.

And if this nation has likewise derived from the climate a certain impatience of temper, which renders them incapable of bearing the same train of things for any long continuance,

h It may be complicated with the unsupportable to himself. See Pirard's

scnp'v, whi<"h. in some countries es- " Voyages," part II. chap. xxi. pecially, renders a man whimsical and


232 MONTESQUIEU

it is obvious that the government above mentioned is the fittest for them.

This impatience of temper is not very considerable of itself; but it may become so when joined with courage.

It is quite a different thing from levity, which makes people undertake or drop a project without cause ; it borders more upon obstinacy, because it proceeds from so lively a sense of misery that it is not weakened even by the habit of suffering.

This temper in a free nation is extremely proper for discon- certing the projects of tyranny,* which is always slow and feeble in its commencement, as in the end it is active and lively; which at first only stretches out a hand to assist, and exerts afterwards a multitude of arms to oppress.

Slavery is ever preceded by sleep. But a people who find no rest in any situation, who continually explore every part, and feel nothing but pain, can hardly be lulled to sleep.

Politics are a smooth file, which cuts gradually, and attains its end by a slow progression. Now the people of whom we have been speaking are incapable of bearing the delays, the details, and the coolness of negotiations: in these they are more unlikely to succeed than any other nation ; hence they are apt to lose by treaties what they obtain by their arms.

14. — Other Effects of the Climate

Our ancestors, the ancient Germans, lived in a climate where the passions were extremely calm. Their laws decided only in such cases where the injury was visible to the eye, and went no farther. And as they judged of the outrages done to men from the greatness of the wound, they acted with no other delicacy in respect to the injuries done to women. The law of the Alemans/ on this subject is very extraordinary. If a per- son uncovers a woman's head, he pays a fine of fifty sous ; if he uncovers her leg up to the knee, he pays the same; and double from the knee upwards. One would think that the law measured the insults offered to women as we measure a figure in geometry ; it did not punish the crime of the imagination, but that of the eye. But upon the migration of a German na-

« Here I take this word for the design is the signification in which it was un- of subverting the established power, derstood by the Greeks and Romans, and especially that of democracy; this /Chap. Iviii. sees, i and 2.


THE SPIRIT OF LAWS 233

tion into Spain, the climate soon found a necessity for different laws. The law of the Visigoths inhibited the surgeons to bleed a free woman, except either her father, mother, brother, son, or uncle was present. As the imagination of the people grew warm, so did that of the legislators; the law suspected every- thing when the people had become suspicious.

These laws had, therefore, a particular regard for the two sexes. But in their punishments they seem rather to humor the revengeful temper of private persons than to administer public justice. Thus, in most cases, they reduced both the crim- inals to be slaves to the offended relatives or to the injured husband ; a free-born woman^ who had yielded to the embraces of a married man was delivered up to his wife to dispose of her as she pleased. They obliged the slaves,^ if they found their master's wife in adultery, to bind her and carry her to her hus- band ; they even permitted her children^ to be her accusers, and her slaves to be tortured in order to convict her. Thus their laws were far better adapted to refine, even to excess, a certain point of honor than to form a good civil administration. We must not, therefore, be surprised if Count Julian was of opinion that an affront of that kind ought to be expiated by the ruin of his king and country : we must not be surprised if the Moors, with such a conformity of manners, found it so easy to settle and to maintain themselves in Spain, and to retard the fall of their empire.

15. — Of the different Confidence which the Laws have in the People, according to the Difference of Climates

The people of Japan are of so stubborn and perverse a tem- per that neither their legislators nor magistrates can put any confidence in them: they set nothing before their eyes but judgments, menaces, and chastisements ; every step they take is subject to the inquisition of the civil magistrate. Those laws which out of five heads of families establish one as a magistrate over the other four; those laws which punish a family or a whole ward for a single crime ; those laws, In fine, which find nobody innocent where one may happen to be guilty, are made with a design to implant in the people a mutual distrust, and

k " Law of the Visigoths," book III. / Ibid, book III. tit. 4, sec. 6.

tit. 4, sec. 9. m Ibid, book III. tit. 4, sec. 13.


234 MONTESQUIEU

to make every man the inspector, witness, and judge of his neighbor's conduct.

On the contrary, the people of India are mild,w tender, and compassionate. Hence their legislators repose great confi- dence in them. They have established^ very few punishments ; these are not severe, nor are they rigorously executed. They have subjected nephews to their uncles, and orphans to their guardians, as in other countries they are subjected to their fathers; they have regulated the succession by the acknowl- edged merit of the successor. They seem to think that every individual ought to place entire confidence in the good nature of his fellow-subjects./'

They enfranchise their slaves without difficulty, they marry them, they treat them as their children.9 Happy climate which gives birth to innocence, and produces a lenity in the laws !

n See Bernier, torn. ii. p. 140. organisms under the equator is errone-

See in the 14th collection of the ous. — Ed.

" Edifying Letters," p. 403, the prin- q I had once thought that the lenity

cipal laws or customs of the inhabitants of slavery in India had made Diodorus

of the peninsula on this side the say that there was neither master nor

Ganges. slave in that country; but Diodorus has

p See " Edifying Letters," IX. 378. attributed to the whole continent of

Great exception has been taken to India what, according to Strabo, lib.

Montesquieu's abuse upon the effects XV,, belonged only to a particular

of climate physically; it is Servan who nation, avers that the weakness attributed to


BOOK XV

IN WHAT MANNER THE LAWS OF CIVIL SLA- VERY RELATE TO THE NATURE OF THE CLI- MATE

I. — Of civil Slavery

SLAVERY, properly so called, is the establishment of a right which gives to one man such a power over an- other as renders him absolute master of his life and for- tune. The state of slavery is in its own nature bad. It is neither useful to the master nor to the slave ; not to the slave, because he can do nothing through a motive of virtue; nor to the master, because by having an unlimited authority over his slaves he insensibly accustoms himself to the want of all moral virtues, and thence becomes fierce, hasty, severe, chol- eric, voluptuous, and cruel.

In despotic countries, where they are already in a state of political servitude, civil slavery is more tolerable than in other governments. Every one ought to be satisfied in those coun- tries with necessaries and life. Hence the condition of a slave is hardly more burdensome than that of a subject.

But in a monarchical government, where it is of the utmost importance that human nature should not be debased or dispir- ited, there ought to be no slavery. In democracies, where they are all upon equality; and in aristocracies, where the laws ought to use their utmost endeavors to procure as great an equality as the nature of the government will permit, slavery is contrary to the spirit of the constitution : it only contributes to give a power and luxury to the citizens which they ought not to have.o

a Montesquieu seems to have forgot- adopted domestic servitude as the basis ten that all the democracies of Greece of social independence. — Ed.

235


236 MONTESQUIEU

2. — Origin of the Right of Slavery among the Roman Civilians

One would never have imagined that slavery should owe its birth to pity, and that this should have been excited in three different ways>

The law of nations to prevent prisoners from being put to death has allowed them to be made slaves. The civil law of the Romans empowered debtors, who were subject to be ill used by their creditors, to sell themselves. And the law of nature requires that children whom a father in a state of servi- tude is no longer able to maintain should be reduced to the same state as the father.

These reasons of tlie civilians are all false. It is false that killing in war is lawful, unless in a case of absolute necessity : but when a man has made another his slave, he cannot be said to have been under a necessity of taking away his life, since he actually did not take it away. War gives no other right over prisoners than to disable them from doing any further harm by securing their persons. All nations c concur in de- testing the murdering of prisoners in cold blood.

Neither is it true that a freeman can sell himself. Sale im- plies a price; now when a person sells himself, his whole substance immediately devolves to his master ; the master, therefore, in that case, gives nothing, and the slave receives nothing. You will say he has a peculium. But this peculimn goes along with the person. If it is not lawful for a man to kill himself because he robs his country of his person, for the same reason he is not allowed to barter his freedom. The freedom of every citizen constitutes a part of the public liberty, and in a democratic state is even a part of the sovereignty. To sell one's freedom d is so repugnant to all reason as can scarcely be supposed in any man. If liberty may be rated with respect to the buyer, it is beyond all price to the seller. The civil law, which authorizes a division of goods among men, cannot be thought to rank among such goods a part of the men who were to make this division. The same law annuls all iniquitous con- tracts; surely then it affords redress in a contract where the grievance is most enormous.

b Justinian's " Institutes," book I. dl mean slavery in a strict sense, as

c Excepting a few cannibals. formerly among the Romans, and at

present in our colonies.


THE SPIRIT OF LAWS 237

The third way is birth, which falls with the two former ; for if a man could not sell himself, much less could he sell an un- born infant. If a prisoner of war is not to be reduced to slavery, much less are his children.

The lawfulness of putting a malefactor to death arises from this circumstance : the law by which he is punished was made for his security. A murderer, for instance, has enjoyed the benefit of the very law which condemns him ; it has been a con- tinual protection to him; he cannot, therefore, object to it. But it is not so with the slave. The law of slavery can never be beneficial to him ; it is in all cases against him, without ever being for his advantage ; and therefore this law is contrary to the fundamental principle of all societies.

If it be pretended that it has been beneficial to him, as his master has provided for his subsistence, slavery, at this rate, should be Hmited to those who are incapable of earning their livelihood. But who will take up with such slaves? As to infants, nature, who has supplied their mothers with milk, had provided for their sustenance ; and the remainder of their child- hood approaches so near the age in which they are most capa- ble of being of service that he who supports them cannot be said to give them an equivalent which can entitle him to be their master.

Nor is slavery less opposed to the civil law than to that of nature. What civil law can restrain a slave from running away, since he is not a member of society, and consequently has no interest in any civil institutions ? He can be retained only by a family law, that is, by the master's authority.

3. — Another Origin of the Right of Slavery

I would as soon say that the right of slavery proceeds from the contempt of one nation for another, founded on a differ- ence in customs.

Lopez de Gama e relates " that the Spaniards found near St. Martha several basketfuls of crabs, snails, grasshoppers, and locusts, which proved to be the ordinary provision of the na- tives. This the conquerors turned to a heavy charge against the conquered." The author owns that this, with their smok-

e " Biblioth. Ang." torn. xiii. part II. art. 3.


238 MONTESQUIEU

ing and trimming their beards in a different manner, gave rise to the law by which the Americans became slaves to the Spaniards.

Knowledge humanizes mankind, and reason inclines to mildness ; but prejudices eradicate every tender disposition.

4. — Another Origin of the Right of Slavery

I would as soon say that religion gives its professors a right to enslave those who dissent from it, in order to render its propagation more easy.

This was the notion that encouraged the ravagers of America in their iniquity./" Under the influence of this idea they founded their right of enslaving so many nations; for these robbers, who would absolutely be both robbers and Christians, were superlatively devout.

Louis XIII g was extremely uneasy at a law by which all the negroes of his colonies were to be made slaves ; but it be- ing strongly urged to him as the readiest means for their con- version, he acquiesced without further scruple.

5. — Of the Slavery of the Negroes

Were I to vindicate our right to make slaves of the negroes, these should be my arguments : —

The Europeans, having extirpated the Americans, were obliged to make slaves of the Africans, for clearing such vast tracts of land.

Sugar would be too dear if the plants which produce it were cultivated by any other than slaves.

These creatures are all over black, and with such a flat nose that they can scarcely be pitied.

It is hardly to be believed that God, who is a wise Being, should place a soul, especially a good soul, in such a black ugly body.

It is so natural to look upon color as the criterion of human nature, that the Asiatics, among whom eunuchs are employed, always deprive the blacks of their resemblance to us by a more opprobrious distinction.

f See " History of the Conquest of g Labat's " New Voyage to the Isles

Mexico," by Solis, and that of '^ Peru," of America," vol, iv, p. 314, in 1752, by Garcilasso de la Vega. izmo.


THE SPIRIT OF LAWS 239

The color of the skin may be determined by that of the hair, which, among the Egyptians, the best philosophers in the world, was of such importance that they put to death all the red-haired men who fell into their hands.

The negroes prefer a glass necklace to that gold which polite nations so highly value. Can there be a greater proof of their wanting common sense ?

It is impossible for us to suppose these creatures to be men, because, allowing them to be men, a suspicion would follow that we ourselves are not Christians.^

Weak minds exaggerate too much the wrong done to the Africans. For were the case as they state it, would the Euro- pean powers, who make so many needless conventions among themselves, have failed to enter into a general one, in behalf of humanity and compassion ?

6. — The true Origin of the Right of Slavery

It is time to inquire into the true origin of the right of slavery. It ought to be founded on the nature of things ; let us see if there be any cases where it can be derived thence.

In all despotic governments people make no difficulty in selling themselves ; the political slavery in some measure anni- hilates the civil liberty.

According to Mr. Perry,* the Muscovites sell themselves very readily: their reason for it is evident — their liberty is not worth keeping.

At Achim every one is for selling himself. Some of the chief lords a have not less than a thousand slaves, all principal mer- chants, who have a great number of slaves themselves, and these also are not without their slaves. Their masters are their heirs, and put them into trade. In those states, the freemen being overpowered by the government, have no better re- source than that of making themselves slaves to the tyrants in office.

This is the true and rational origin of that mild law of slavery which obtains in some countries : and mild it ought to be, as founded on the free choice a man makes of a master, for his

ft The above arguments form a strik- t " Present State of Russia."

ing instance of the ipreiudice under a Dampier's " Voyages," vol. iii.

which even a liberal mina can labor. — Ed,


240 MONTESQUIEU

own benefit; which forms a mutual convention between the two parties.

7. — Another Origin of the Right of Slavery

There is another origin of the right of slavery, and even of the most cruel slavery which is to be seen among men.

There are countries where the excess of heat enervates the body, and renders men so slothful and dispirited that nothing but the fear of chastisement can oblige them to perform any laborious duty : slavery is there more reconcilable to reason ; and the master being as lazy with respect to his sovereign as his slave is with regard to him, this adds a political to a civil slavery.

Aristotle & endeavors to prove that there are natural slaves ; but what he says is far from proving it. If there be any such, I believe they are those of whom I have been speaking.

But as all men are born equal, slavery must be accounted unnatural, though in some countries it be founded on natural reason ; and a wide difference ought to be made between such countries, and those in which even natural reason rejects it, as in Europe, where it has been so happily abolished.

Plutarch, in the " Life of Numa," says that in Saturn's time there was neither slave nor master. Christianity has restored that age in our climates.

8. — Inutility of Slavery among us

Natural slavery, then, is to be limited to some particular parts of the world. In all other countries, even the most serv- ile drudgeries may be performed by freemen.

Experience verifies my assertion. Before Christianity had abolished civil slavery in Europe, working in the mines was judged too toilsome for any but slaves or malefactors : at pres- ent there are men employed in them who are known to live comfortably.^ The magistrates have, by some small privileges, encouraged this profession : to an increase of labor they have joined an increase of gain ; and have gone so far as to make those people better pleased with their condition than with any other which they could have embraced.

b " Polit." lib. I. cap. i. Hartz, in Lower Saxony, and in those

p As may be seen in the mines of of Hungary.


THE SPIRIT OF LAWS 241

No labor is so heavy but it may be brought to a level with the workman's strength, when regulated by equity, and not by avarice. The violent fatigues which slaves are made to under- go in other parts may be supplied by a skilful use of ingenious machines. The Turkish mines in the Bannat of Temeswaer, though richer than those of Hungary, did not yield so much ; because the working of them depended entirely on the strength of their slaves.

I know not whether this article be dictated by my under- standing or by my heart. Possibly there is not that climate upon earth where the most laborious services might not with proper encouragement be performed by freemen. Bad laws having made lazy men, they have been reduced to slavery be- cause of their laziness.


9. — Several Kinds of Slavery

Slavery is of two kinds, real and personal. The real annexes the slave to the land, which Tacitus makes d the condition of slaves among the Germans. They were not employed in the family: a stated tribute of corn, cattle, or other movables, paid to their master, was the whole of their servitude. And such a servitude still continues in Hungary, Bohemia, and several parts of Lower Germany.

Personal slavery consists in domestic services, and relates more to the master's person.

TJhe worst degree of slavery is when it is at once both real and personal, as that of the Helotes among the Lacedaemonians. They underwent the fatigues of the field, and suffered all man- ner of insults at home. This helotism is contrary to the nature of things. Real slavery is to be found only among nations re- markable for their simplicity of life : e all family business being done by the wives and children. Personal slavery is peculiar to voluptuous nations ; luxury requiring the service of slaves in the house. But helotism joins in the same person the slavery established by voluptuous nations and that of the most simple.

d " De Moribus Germanorum." tingwished from the slave by any deli-

e Tacitus, " Dc Moribus Germano- cacy of living, rum," says the master is not to be dis-

VOL. I.— 16


242 MONTESQUIEU

10. — Regulations necessary in respect to Slavery

But of whatsoever kind the slavery be, the civil laws should endeavor on the one hand to abolish the abuses of it, and on the other to guard against its dangers.

II. — Abuses of Slavery

In Mahommedan states,/^ not only the life and goods of fe- male slaves, but also what is called their virtue or honor, are at their master's disposal. One of the misfortunes of those countries is that the greatest part of the nation are born only to be subservient to the pleasures of the other. This servitude is alleviated by the laziness in which such slaves spend their days ; which is an additional disadvantage to the state.

It is this indolence which renders the eastern seraglios so delightful to those very persons whom they were made to con- fiuQ.g People who dread nothing but labor may imagine them- selves happy in those places of indolence and ease. But this shows how contrary they are to the very intent of the institu- tion of slavery.

Reason requires that the master's power should not extend to what does not appertain to his service: slavery should be calculated for utility, and not for pleasure. The laws of chas- tity arise from those of nature, and ought in all nations to be respected.

If a law which preserves the chastity of slaves be good in those states where an arbitrary power bears down all before it, how much more will it be so in monarchies, and how much more still in republics ?

The law of the Lombards h has a regulation which ought to be adopted by all governments. " If a master debauches his slave's wife, the slave and his wife shall be restored to their freedom." An admirable expedient, which, without severity, lays a powerful restraint on the incontinence of masters !

The Romans seem to have erred on this head. They allowed an unlimited scope to the master's lusts, and, in some measure, denied their slaves the privilege of marrying. It is true, they were the lowest part of the nation ; yet there should have been

f Sir John Chardin's " Travels to g Sir John Chardin, vol. ii., in his

Persia." description of the market of Izagour.

h Lib. I. tit. 32, sec. 5.


THE SPIRIT OF LAWS 243

some care taken of their morals, especially as in prohibiting their marriage they corrupted the morals of the citizens.

12. — Danger from the Multitude of Slaves

The multitude of slaves has different effects in different gov- ernments. It is no grievance in a despotic state, where the po- litical servitude of the whole body takes away the sense of civil slavery. Those who are called freedmen in reality are little more so than they who do not come within that class ; and as the latter, in quality of eunuchs, freedmen, or slaves, have gen- erally the management of all affairs, the condition of a freedman and that of a slave are very nearly allied. This makes it there- fore almost a matter of indifference whether in such states the slaves be few or numerous.

But in moderate governments it is a point of the highest importance that there should not be a great number of slaves. The political liberty of those states adds to the value of civil liberty ; and he who is deprived of the latter is also bereft of the former. He sees the happiness of a society, of which he is not so much as a member ; he sees the security of others fenced by laws, himself without any protection. He perceives that his master has a soul, capable of enlarging itself; while his own labors under a continual depression. Nothing more assimi- lates a man to a beast than living among freedmen, himself a slave. Such people as these are natural enemies of society; and their number must be dangerous.

It is not therefore to be wondered at that moderate govern- ments have been so frequently disturbed by the revolts of slaves, and that this so seldom happens in despotic states.*

13. — Of armed Slaves

The danger of arming slaves is not so great in monarchies as in republics. In the former, a warlike people and a body of nobility are a sufficient check upon these armed slaves; whereas the pacific members of a republic would have a hard task to quell a set of men who, having offensive weapons in their hands, would find themselves a match for the citizens.

The Goths, who conquered Spain, spread themselves over

t'The revolt of the Mamelukes was a different case; this was a body of the militia who usurped the empire.


244 MONTESQUIEU

the country, and soon became very weak. They made three important regulations: they aboHshed an ancient custom which prohibited intermarriages with the Romans ; / they en- acted that all the freedmen k belonging to the Fiscus should serve in war, under penalty of being reduced to slavery ; and they ordained that each Goth should arm and bring into the field the tenth part of his slaves./ This was but a small pro- portion : besides, these slaves thus carried to the field did not form a separate body ; they were in the army, and might be said to continue in the family.

14. — The same Subject continued

When a whole nation is of a martial temper, the slaves in arms are less to be feared.

By a law of the Alemans, a slave who had committed a clandestine thefts was liable to the same punishment as a freedman in the like case; but if he was found guilty of an open robbery ,w he was only bound to restore the things so taken. Among the Alemans, courage and intrepidity extenu- ated the guilt of an action. They employed their slaves in their wars. Most republics have been attentive to dispirit their slaves ; but the Alemans, relying on themselves and being al- ways armed, were so far from fearing theirs that they were rather for augmenting their courage; they were the instru- ments either of their depredations or of their glory.

15. — Precautions to he used in Moderate Governments

Lenity and humane treatment may prevent the dangers to be apprehended from the multitude of slaves in a moderate gov- ernment. Men grow reconciled to everything, and even to servitude, if not aggravated by the severity of the master. The Athenians treated their slaves with great lenity ; and this se- cured that state from the commotions raised by the slaves among the austere Lacedaemonians.

It does not appear that the primitive Romans met with any trouble from their slaves. Those civil broils which have been

" Law of the Visigoths," lib. III. m " Law of the Alemans," cap. v.

tit. I, sec. I. ^^^'^?:,

k Ibid. lib. V. tit. 17, sec. 20. n Ibid. sec. 5, per virtutem.

/Ibid. IX. tit. 2, sec. 9.


THE SPIRIT OF LAWS 245

Compared to the Punic wars were the consequence of their having divested themselves of all humanity towards their slaves.^?

A frugal and laborious people generally treat their slaves more kindly than those who are above labor. The primitive Romans used to live, work, and eat with their slaves ; in short, they behaved towards them with justice and humanity. The greatest punishment they made them suffer was to make them pass before their neighbors with a forked piece of wood on their backs. Their manners were sufficient to secure the fidelity of their slaves ; so that there was no necessity for laws.

But when the Romans aggrandized themselves ; when their slaves were no longer the companions of their labor, but the instruments of their luxury and pride; as they then wanted morals, they had need of laws. It was even necessary for these laws to be of the most terrible kind, in order to establish the safety of those cruel masters who lived with their slaves as in the midst of enemies.

They made the Sillanian senatus-consultum, and other laws,/' which decreed that when a master was murdered all the slaves under the same roof, or in any place so near the house as to be within the hearing of a man's voice, should, without distinction, be condemned to die. Those who in this case sheltered a slave, in order to save him, were punished as mur- derers ; Q. he whom his master r ordered to kill him, and who obeyed, was reputed guilty ; even he who did not hinder him from killing himself was liable to be punished.^ If a master was murdered on a journey, they put to death those who were with him and those who fled.^ All these laws took place even against persons whose innocence was proved; the intent of them was to inspire their slaves with a prodigious respect for their master. They were not dependent on the civil govern- ment, but on a fault or imperfection of the civil government. They were not derived from the equity of civil laws, since they were contrary to the principle of those laws. They were prop-

" Sicily," says Florus, " suffered r When Antony commanded Eros to more in the Servile than in the Punic kill him, it was the same as command- war." — Lib. III. ing him to kill himself; because, if he

p See the whole title of the " Senat.- had obeyed, he would have been pun- Cons. Sill." in ff. ished as the murderer of his master.

a Leg. siquis, sec. 12 ff. " de Senat.- s Leg. i, 'sec. 22 fT. " de Senat.-Cons.

Cons. Sill.'^ Sill."

t Leg. I, sec. 31 flf. ibid.


246 MONTESQUIEU

erly founded on the principles of war, with this difference, that the enemies were in the bosom of the state. The Sillanian senatiis-consultum was derived from the law of nations, which requires that a society, however imperfect, should be preserved. It is a misfortune in government when the magistrates thus find themselves under the necessity of making cruel laws ; be- cause they have rendered obedience difficult, they are obliged to increase the penalty of disobedience, or to suspect the slave's fidelity. A prudent legislator foresees the ill consequences of rendering the legislature terrible. The slaves amongst the Romans could have no confidence in the laws; and therefore the laws could have none in them.

1 6. — Regulations between Masters and Slaves

The magistrate ought to take care that the slave has his food and raiment ; and this should be regulated by law.

The laws ought to provide that care be taken of them in sick- ness and old age. Claudius w decreed that the slaves who in sickness had been abandoned by their masters should, in case they recovered, be emancipated. This law insured their lib- erty ; but should not there have been some care also taken to preserve their lives ?

When the law permitted a master to take away the life of his slave, he was invested with a power which he ought to exercise as judge, and not as master ; it was necessary, therefore, that the law should ordain those formalities which remove the sus- picion of an act of violence.

When fathers, at Rome, were no longer permitted to put their children to death, the magistrates ordained the punish- ment which the father would have inflicted.^ A like custom between the master and his slaves would be highly reasonable in a country where masters have the power of life and death.

The law of Moses was extremely severe. " If a man struck his servant so that he died under his hand, he was to be pun- ished ; but, if he survived a day or two, no punishment ensued, because he was his money." "^ Strange that a civil institution should thus relax the law of nature !

By a law of the Greeks,^ a slave too severely treated by his

« Xiphilin, in " Claudio."» w Lev. xxi, 20.

V See law 3, in the Code " de patria x Plutarch on " Superstition."

potestate," by the Emperor Alexander.


THE SPIRIT OF LAWS 247

master might insist upon being sold to another. In later times there was a law of the same nature at Rome.y A master dis- pleased with his slave, and a slave with his master, ought to be separated.

When a citizen uses the slave of another ill, the latter ought to have the liberty of complaining before the judge. The laws of Plato,^ and of most nations, took away from slaves the right of natural defence. It was necessary then that they should give them a civil defence.

At Sparta slaves could have no justice against either insults or injuries. So excessive was their misery, that they were not only the slaves of a citizen, but also of the public ; they be- longed to all, as well as to one. At Rome, when they consid- ered the injury done to a slave, they had regard only to the in- terest of the master.^ In the breach of the Aquilian law they confounded a wound given to a beast and that given to a slave ; they regarded only the diminution of their value. At Athens,^ he who had abused the slave of another was punished severely, and sometimes even with death. The law of Athens was very reasonable in not adding the loss of security to that of liberty.

17. — Of Enfranchisements

It is easy to perceive that many slaves in a republican gov- ernment create a necessity of making many free. The evil is, if they have too great a number of slaves they cannot keep them in due bounds; if they have too many freedmen, they cannot live, and must become a burden to the republic: be- sides, it may be as much in danger from the multitude of freed- men as from that of slaves. It is necessary, therefore, that the law should have an eye to these two inconveniences.

The several laws and decrees of the senate made at Rome, both for and against slaves, sometimes to limit, and at other times to facilitate, their enfranchisement, plainly show the em- barrassment in which they found themselves in this respect. There were even times in which they durst not make laws. When, under Nero,^ they demanded of the senate permission

y See the constitution of Antoninus of Germany, as may be seen by their

Pius, " Institut." lib. I. tit. 7. codes.

z Lib. IX. b Demosthenes, " Orat. contra Midi-

This was frequently the spirit of an," p. 610. Edition of Frankfort, in

the laws of those nations who came out 1604.

c " Annals of Tacitus," lib. XIII.


248 MONTESQUIEU

for the masters to reduce again to slavery the ungrateful freed- men, the emperor declared that it was their duty to decide the aflfairs of individuals, and to make no general decree.

Much less can I determine what ought to be the regulations of a good republic in such an affair ; this depends on too many circumstances. Let us, however, make some reflections.

A considerable number of freedmen ought not suddenly to be made by a general law. We know that among the Volsini- enses d the freedmen, becoming masters of the suffrages, en- acted an abominable law, which gave them the right of lying the first night with the young women married to the free-born.

There are several ways of insensibly introducing new citizens into a republic. The laws may favor the acquiring a peculium, and put slaves into a condition of buying their liberty : they may prescribe a term to servitude, like those of Moses, which limited that of the Hebrew slaves to six years.^ It is easy to enfranchise every year a certain number of those slaves who, by their age, health, or industry, are capable of getting a sub- sistence. The evil may be even cured in its root, as a great number of slaves are connected with the several employments which are given them ; to divide amongst the free-born a part of these employments, for example, commerce or navigation, is diminishing the number of slaves.

When there are many freedmen, it is necessary that the civil laws should determine what they owe to their patron, or that these duties should be fixed by the contract of enfranchise- ment.

It is certain that their condition should be more favored in the civil than in the political state ; because, even in a popular government, the power ought not to fall into the hands of the vulgar.

At Rome, where they had so many freedmen, the political laws with regard to them were admirable. They gave them very little, and excluded them almost from nothing : they had even a share in the legislature, but the resolutions they were capable of taking were almost of no weight. They might bear a part in the public offices, and even in the dignity of the priest- hood ; f but this privilege was in some sort rendered useless

d Freinshemius's " Supplement," dec. e Exod. xxi.

2, lib. V. / " Annals " of Tacitus, lib. III.


THE SPIRIT OF LAWS 249

by the disadvantages they had to encounter in the elections. They had a right to enter into the army ; but they were to be registered in a certain class of the census before they could be soldiers. Nothing hindered the g freedmen from being united by marriage with the families of the free-born ; but they were not permitted to mix with those of the senator. In short, their children were free-born, though they were not so themselves.

18. — Of Freedmen and Eunuchs

Thus in a republican government it is frequently of advan- tage that the situation of the freedmen be but little below that of the free-born, and that the laws be calculated to remove a disHke of their condition. But in a despotic government, where luxury and arbitrary power prevail, they have nothing to do in this respect ; the freedmen generally finding themselves above the free-born. They rule in the court of the prince, and in the palaces of the great ; and as they study the foibles and not the virtues of their master, they lead him entirely by the former, not by the latter. Such were the freedmen of Rome in the times of the emperors.

When the principal slaves are eunuchs, let never so many privileges be granted them, they can hardly be regarded as freedmen. For as they are incapable of having a family of their own, they are naturally attached to that of another : and it is only by a kind of fiction that they are considered as citizens.

And yet there are countries where the magistracy is entirely in their hands. " In Tonquin," h says Dampier,* " all the man- darins, civil and military, are eunuchs." They have no families, and though they are naturally avaricious, the master or the prince benefits in the end by this very passion.

Dampier tells us, too, that in this country the eunuchs cannot live without women, and therefore marry. The law which per- mits their marriage may be founded partly on their respect for these eunuchs, and partly on their contempt of the fair sex.

Thus they are trusted with the magistracy, because they have no family; and permitted to marry, because they are magis- trates.

g Augustus's speech in Dio, lib. LVI. use the word eunuch whenever they

h It was formerly the same in China. speak of a governor of the city.

The two Mahommedan Arabs who i Vol. iii.

travelled thither in the ninth century


250 MONTESQUIEU

Then it is that the sense which remains would fain supply that which they have lost ; and the enterprises of despair be- come a kind of enjoyment. So, in Milton, that spirit who has nothing left but desires, enraged at his degradation, would make use of his impotency itself.

We see in the history of China a great number of laws to deprive eunuchs of all civil and military employments; but they always returned to them again. It seems as if the eunuchs of the east were a necessary evU.


BOOK XVI

HOW THE LAWS OF DOMESTIC SLAVERY BEAR A RELATION TO THE NATURE OF THE CLI- MATE

I. — Of domestic Servitude

SLAVES are established for the family ; but they are not a part of it. Thus I distinguish their servitude from that which the women in some countries suffer, and which I shall properly call domestic servitude.

2. — That in the Countries of the South there is a natural Inequality between the two Sexes

Women, in hot climates, are marriageable at eight, nine, or ten years of age '.a, thus, in those countries, infancy and mar- riage generally go together. They are old at twenty: their reason, therefore, never accompanies their beauty. When beauty demands the empire, the want of reason forbids the claim ; when reason is obtained, beauty is no more. These women ought then to be in a state of dependence ; for reason cannot procure in old age that empire which even youth and beauty could not give. It is, therefore, extremely natural that in these places a man, when no law opposes it, should leave one wife to take another, and that polygamy should be introduced.

In temperate climates, where the charms of women are best preserved, where they arrive later at maturity, and have chil- dren at a more advanced season of life, the old age of their husbands in some degree follows theirs ; and as they have more reason and knowledge at the time of marriage, if it be only on account of their having continued longer in life, it must natu-

o "Mahomet married Cadhisja at five, of Mahomet." We see women in the

and took her to his bed at eight years kingdom of Algiers pregnant at nine,

old. In the hot countries of Arabia and ten, and eleven years of age. " Hist,

the Indies, girls are marriageable at of the Kingdom of Algiers," by Logiers

eight years of age, and are brought to de Tassis, p. 6i. bed the year after."--Prideaux, ^* Life

251


252 MONTESQUIEU

rally introduce a kind of equality between the two sexes ; and, in consequence of this, the law of having only one wife.

In cold countries the almost necessary custom of drinking strong liquors establishes intemperance amongst men. Wom- en, who in this respect have a natural restraint, because they are always on the defensive, have, therefore, the advantage of reason over them.

Nature, which has distinguished men by their reason and bodily strength, has set no other bounds to their power than those of this strength and reason. It has given charms to women, and ordained that their ascendant over man shall end with these charms : but in hot countries, these are found only at the beginning, and never in the progress of life.

Thus the law which permits only one wife is physically con- formable to the climate of Europe, and not to that of Asia. This is the reason why Mahommedanism was so easily estab- lished in Asia, and with such difficulty extended in Europe; why Christianity is maintained in Europe, and has been de- stroyed in Asia; and, in fine, why the Mahommedans have made such progress in China, and the Christians so little. Hu- man reasons, however, are subordinate to that Supreme Cause who does whatever He pleases, and renders everything sub- servient to His will.

Some particular reasons induced Valentinian& to permit polygamy in the empire. That law, so improper for our cli- mates, was abrogated by Theodosius, Arcadius, and Honorius.c


3. — That a Plurality of Wives greatly depends on the Means of supporting them

Though in countries where polygamy is once established the number of wives is principally determined by the opulence of the husband, yet it cannot be said that opulence established polygamy in those states, since poverty may produce the same effect, as I shall prove when I come to speak of the savages.

Polygamy, in powerful nations, is less a luxury in itself than the occasion of great luxury. In hot climates they have few

h See Jornandes, '* de Regno et Tern- c See Law 7 of the Code " de Judaeis

Eor. Success.," and the ecclesiastic et Cselicolis," and Nov. 18, cap. v. istorians.


THE SPIRIT OF LAWS 253

wants, and it costs little to maintain a wife and children \d they may, therefore, have a great number of wives.

4. — That the Law of Polygamy is an affair that depends on Calculation

According to the calculations made in several parts of Eu- rope, there are here born more boys than girls ;e on the con- trary, by the accounts we have of Asia, there are there born more girls than boys/ The law which in Europe allows only one wife, and that in Asia which permits many, have, there- fore, a certain relation to the climate.

In the cold climates of Asia there are born, as in Europe, more males than females ; and hence, say the Lamas,g is de- rived the reason of that law which amongst them permits a woman to have many husbands./t

But it is difficult for me to believe that there are many coun- tries where the disproportion can be great enough for any ex- igency to justify the introducing either the law in favor of many wives or that of many husbands. This would only imply that a majority of women, or even a majority of men, is more conformable to nature in certain countries than in others. ' I confess that if what history tells us be true, that at Bantam there are ten women to one man,i this must be a case particu- larly favorable to polygamy.

In all this I only give their reasons, but do not justify their customs.

5. — The Reason of a Law of Malabar

In the tribe of the Naires, on the coast of Malabar, the men can have only one wife, while a woman, on the contrary, may have many husbands./ The origin of this custom is not, I believe, difficult to discover. The Naires are the tribe of nobles,

d In Ceylon a man mav live on ten hommedan Arabs who, in the ninth cen-

sols a month ; they eat nothing there but tury, went into India and China,

rice and fish. " Collection of Voyages thought this custom a prostitution,

made to establish an India Company." And indeed nothing could be more

e Dr. Arbuthnot finds that in Eng- contrary to the ideas of a Mahommedan.

land the number of boys exceeds that ^ i " Collection of Voyages for the estab-

of girls; but people have been to blame lishment of an India Company," vol. i.

to conclude that the case is the same L^^^ Francis Pirard, cap. xxvii.

in all climates. " Edifying Letters," 3d and loth col-

f See Kempfer, who relates that upon lection, on the Malleami on the Coast

numbering the people of Meaco there of Malabar. This is considered as an

were found 182,072 males, and 223,573 abuse of the military profession, as a

females. ^ ^ woman, says Pirard, of the tribe of

g Du Halde's " Hist, of China," vol. iv. the Bramins never would marry many

h Albuzeir-el-hassen, one of the Ma- husbands.


254 MONTESQUIEU

who are the soldiers of all those nations. In Europe soldiers are forbidden to marry ; in Malabar, where the climate requires greater indulgence, they are satisfied with rendering marriage as little burdensome to them as possible : they give one wife amongst many men, which consequently diminishes the attach- ment to a family, and the cares of housekeeping, and leaves them in the free possession of a military spirit.


6. — Of Polygamy considered in itself

With regard to polygamy in general, independently of the circumstances which may render it tolerable, it is not of the least service to mankind, nor to either of the two sexes, whether it be that which abuses or that which is abused. Neither is it of service to the children ; for one of its greatest inconveniences is, that the father and mother cannot have the same affection for their offspring ; a father cannot love twenty children with the same tenderness as a mother can love two. It is much worse when a wife has many husbands ; for then paternal love only is held by this opinion, that a father may believe, if he will, or that others may believe, that certain children belong to him.

They say that the Emperor of Morocco has women of all colors, white, black, and tawny, in his seraglio. But the wretch has scarcely need of a single color.

Besides, the possession of so many wives does not always prevent their entertaining desires for those of others -fi it is with lust as with avarice, whose thirst increases by the acquisi- tion of treasure.

In the reign of Justinian, many philosophers, displeased with the constraint of Christianity, retired into Persia. What struck them the most, says Agathias,^ was that polygamy was per- mitted amongst men who did not even abstain from adultery.

May I not say that a plurality of wives leads to that passion which nature disallows? for one depravation always draws on another. I remember that in the revolution which happened at Constantinople, when Sultan Achmet was deposed, history says that the people, having plundered the Kiaya's house, found

k This is the reason why women in / " Life and Actions of Justinian," p.

the East are so carefully concealed. 403.


THE SPIRIT OF LAWS 255

not a single woman ; they tell us that at Algiers/w in the great- est part of their seraglios, they have none at all.

7'-T0f ^^ Equality of Treatment in case of many Wives From the law which permitted a plurality of wives followed that of an equal behavior to each. Mahomet, who allowed of four, would have everything, as provisions, dress, and con- jugal duty, equally divided between them. This law is also in force in the Maldivian isles,w where they are at liberty to marry three wives.

The law of Moseso even declares that if any one has married his son to a slave, and this son should afterwards espouse a free woman, her food, her raiment, and her duty of marriage shall he not diminish. They might give more to the new wife, but the first was not to have less than she had before.

8. — Of the Separation of Women from Men

The prodigious number of wives possessed by those who live in rich and voluptuous countries is a consequence of the law of polygamy. Their separation from men, and their close con- finement, naturally follow from the greatness of this number. Domestic order renders this necessary ; thus an insolvent debt- or seeks to conceal himself from the pursuit of his creditors. There are climates where the impulses of nature have such force that morality has almost none. If a man be left with a woman, the temptation and the fall will be the same thing ; the attack certain, the resistance none. In these countries, instead of precepts, they have recourse to bolts and bars.

One of the Chinese classic authors considers the man as a prodigy of virtue who, finding a woman alone in a distant apartment, can forbear making use of force./*

9. — Of the Connection between domestic and political

Government In a republic the condition of citizens is moderate, equal, mild, and agreeable ; everything partakes of the benefit of pub-

tn " History of Algiers," by Logier de woman in a lonely apartment ; or to

Tassis. hear the cries of an enemy, who must

n See Pirard, cap. xii. perish without our assistance." Trans-

Exod. xxi. 10, II. lation of a Chinese piece of morality,

p " It is an admirable touch-stone, to which may be seen in Du Halde, vol.

find by oneself a treasure, and to know iii. p. 151.

the right owner; or to see a beautiful


256 MONTESQUIEU

lie liberty. An empire over the women cannot, amongst them, be so well exerted; and where the climate demands this em- pire, it is most agreeable to a monarchical government. This is one of the reasons why it has ever been difficult to estabUsh a popular government in the east.

On the contrary, the slavery of women is perfectly conform- able to the genius of a despotic government, which delights in treating all with severity. Thus at all times have we seen in Asia domestic slavery and despotic government walk hand in hand with an equal pace.

In a government which requires, above all things, that a par- ticular regard be paid to its tranquillity, and where the ex- treme subof-dination calls for peace, it is absolutely necessary to shut up the women; for their intrigues would prove fatal to their husbands. A government which has not time to exam- ine into the conduct of its subjects views them with a suspicious eye, only because they appear and suffer themselves to be known.

Let us only suppose that the levity of mind, the indiscretions, the tastes and caprices of our women, attended by their passions of a higher and a lower kind, with all their active fire, and in that full liberty with which they appear amongst us, were conveyed into an eastern government, where would be the father of a family who could enjoy a moment's repose? The men would be everywhere suspected, everywhere enemies ; the state would be overturned, and the kingdom overflowed with rivers of blood.

10. — The Principle on which the Morals of the East are founded

In the case of a multiplicity of wives, the more a family ceases to be united, the more ought the laws to reunite its detached parts in a common centre ; and the greater the diversity of in- terests, the more necessary is it for the laws to bring them back to a common interest.

This is more particularly done by confinement. The women should not only be separated from the men by the walls of the house, but they ought also to be separated in the same enclos- ure, in such a manner that each may have a distinct household in the same family. Hence each derives all that relates to the


i


THE SPIRIT OF LAWS


257


practice of morality, modesty, chastity, reserve, silence, peace, dependence, respect, and love ; and, in short, a general direc- tion of her thoughts to that which, in its own nature, is a thing of the greatest importance, a single and entire attachment to her family.

Women have naturally so many duties to fulfil — duties which are peculiarly theirs, that they cannot be sufficiently excluded from everything capable of inspiring other ideas ; from every- thing that goes by the name of amusements ; and from every- thing which we call business.

We find the manners more pure in the several parts of the East, in proportion as the confinement of women is more strictly observed. In great kingdoms there are necessarily great lords. The greater their wealth, the more enlarged is their ability of keeping their wives in an exact confinement, and of preventing them from entering again into society. Hence it proceeds that in the empires of Turkey, Persia, of the Mogul, China, and Japan, the manners of their wives are admirable.

But the case is not the same in India, where a multitude of islands and the situation of the land have divided the country into an infinite number of petty states, which from causes that we have not here room to mention are rendered despotic.

There are none there but wretches, some pillaging and others pillaged. Their grandees have very moderate fortunes, and those whom they call rich have only a bare subsistence. The confinement of their women cannot, therefore, be very strict ; nor can they make use of any great precautions to keep them within due bounds; hence it proceeds that the corruption of their manners is scarcely to be conceived.

We may there see to what an extreme the vices of a climate indulged in full liberty will carry licentiousness. It is there that nature has a force, and modesty a weakness, which exceed all comprehension. At Patan^ the wanton desires of the wom- en are so outrageous, that the men are obliged to make use of a certain apparel to shelter them from their designs.** Accord-

q " Collection of Voyages for the es- want of a husband. See Pirard, cap.

tablishment of an India Company," vol. xii. At Bantam, as soon as a girl is

ii. p. 2. twelve or thirteen years old, she must

r In the Maldivian isles the fathers be married, if they would not have her

marry their daughters at ten and eleven lead a debauched life. " Collection of

years of age, because it is a great sin. Voyages for the establishment of an

say they, to suffer them to endure the India Company," p. 348.

Vol. I.— 17


258 MONTESQUIEU

ing to Mr. Smith,^ things are not better conducted in the petty kingdoms of Guinea. In these countries the two sexes lose even those laws which properly belong to each.

II. — Of domestic Slavery independently of Polygamy

It is not only a plurality of wives which in certain places of the East requires their confinement, but also the climate it- self. Those who consider the horrible crimes, the treachery, the dark villainies, the poisonings, the assassinations, which the liberty of women has occasioned at Goa and in the Portuguese settlements in the Indies, where religion permits only one wife ; and who compare them with the innocence and purity of man- ners of the women of Turkey, Persia, Hindostan, China, and Japan, will clearly see that it is frequently as necessary to sepa- rate them from the men, when they have but one, as when they have many.

These are things which ought to be decided by the climate. What purpose would it answer to shut up women in our north- ern countries, where their manners are naturally good ; where all their passions are calm ; and where love rules over the heart with so regular and gentle an empire that the least degree of prudence is sufficient to conduct it ?

It is a happiness to live in those climates which permit such freedom, of converse, where that sex which has most charms seems to embellish society, and where wives, reserving them- selves for the pleasures of one, contribute to the amusement of all.

12. — Of natural Modesty

All nations are equally agreed in fixing contempt and ig- nominy on the incontinence of women. Nature has dictated this to all. She has established the attack, and she has estab- lished too the resistance ; and having implanted desires in both, she has given to the one boldness, and to the other shame. To individuals she has granted a long succession of years to attend to their preservation: but to continue the species, she has granted only a moment.

5 " Voyage to Guinea," part second. They steal into a man's bed, and wake

" _When the women happen to meet him ; and if he refuses to comply with

with a man, they lay hold of him, and their desires, they threaten to suflFer

threaten to make a complaint to their themselves to be caught in flagranti." husbands if he slight their addresses.


THE SPIRIT OF LAWS 259

It is then far from being true that to be incontinent is to follow the laws of nature ; on the contrary, it is a violation of these laws, which can be observed only by behaving with modesty and discretion.

Besides, it is natural for intelligent beings to feel their im- perfections. Nature has, therefore, fixed shame in our minds — a shame of our imperfections.

When, therefore, the physical power of certain climates vio- lates the natural law of the two sexes, and that of intelligent beings, it belongs to the legislature to make civil laws, with a view to opposing the nature of the climate and re-establishing the primitive laws.

13. — Of Jealousy

With respect to nations, we ought to distinguish between the passion of jealousy and a jealousy arising from customs, man- ners, and laws. The one is a hot raging fever ; the other, cold, but sometimes terrible, may be joined with indifference and contempt.

The one, an abuse of love, derives its source from love itself. The other depends only on manners, on the customs of a na- tion, on the laws of the country, and sometimes even on re- ligion.^

It is generally the efifect of the physical power of the climate ; and, at the same time, the remedy of this physical power.

14. — Of the Eastern Manner of domestic Government

Wives are changed so often in the East that they cannot have the power of domestic government. This care is, therefore, committed to the eunuchs, whom they intrust with their keys and the management of their families. " In Persia," says Sir John Chardin, " married women are furnished with clothes as they want them, after the manner of children." Thus that care which seems so well to become them, that care which every- where else is the first of their concern, does not at all regard them.

< Mahomet desired his followers to when he was dying, said the same thing; watch their wives; a certain Iman, and Confucius preached the same doc- trine.


26o MONTESQUIEU


15. — Of Divorce and Repudiation

There is this difference between a divorce and a repudiation, that the former is made by mutual consent, arising from a mutual antipathy; while the latter is formed by the will, and for the advantage of one of the two parties, independently of the will and advantage of the other.

The necessity there is sometimes for women to repudiate, and the difficulty there always is in doing it, render that law very tyrannical which gives this right to men without granting it to women. A husband is the master of the house ; he has a thousand ways of confining his wife to her duty, or of bringing her back to it ; so that in his hands it seems as if repudiation could be only a fresh abuse of power. But a wife who repudi- ates only makes use of a dreadful kind of remedy. It is always a great misfortune for her to go in search of a second husband, when she has lost the most part of her attractions with another. One of the advantages attending the charms of youth in the female sex is that in an advanced age the husband is led to complacency and love by the remembrance of past pleasures.

It is then a general rule that in all countries where the laws have given to men the power of repudiating, they ought also to grant it to women. Nay, in climates where women live in domestic slavery, one would think that the law ought to favor women with the right of repudiation, and husbands only with that of divorce.

When wives are confined in a seraglio, the husband ought not to repudiate on account of an opposition of manners ; it is the husband's fault if their manners are incompatible.

Repudiation on account of the barrenness of the woman ought never to take place except where there is only one wife :«  when there are many, this is of no importance to the husband.

A law of the Maldivians permitted them to take again a wife whom they had repudiated.^ A law of Mexico^ forbade their being reunited under pain of death. The law of Mexico was more rational than that of the Maldivians : at the time even of the dissolution, it attended to the perpetuity of marriage ; in-

u It does not follow hence that re- any other, because in this case there

pudiation on account of sterility should was less expense. Pirard's " Travels."

be permitted amongst Christians. w " Hist, of the Conquest of Mexico,"

V They took them again preferably to by Solis, p. 499.


THE SPIRIT OF LAWS 261

stead of this, the law of the Maldivians seemed equally to sport with marriage and repudiation.

The law of Mexico admitted only of divorce. This was a particular reason for their not permitting those who were vol- untarily separated to be ever reunited. Repudiation seems chiefly to proceed from a hastiness of temper, and from the dictates of passion; while divorce appears to be an afifair of deliberation.

Divorces are frequently of great political use : but as to the civil utility, they are estabUshed only for the advantage of the husband and wife, and are not always favorable to their chil- dren.

16. — Of Repudiation and Divorce amongst the Romans

Romulus permitted a husband to repudiate his wife, if she had committed adultery, prepared poison, or procured false keys. He did not grant to women the right of repudiating their husbands. Plutarch^ calls this a law extremely severe.

As the Athenian law3' gave the power of repudiation to the wife as well as to the husband, and as this right was obtained by the women amongst the primitive Romans, notwithstand- ing the law of Romulus, it is evident that this institution was one of those which the deputies of Rome brought from Athens, and which were inserted in the laws of the Twelve Tables.

Cicero says that the reasons of repudiation sprang from the law of the Twelve Tables.^ We cannot then doubt but that this law increased the number of the reasons for repudiation established by Romulus.

The power of divorce was also an appointment, or at least a consequence, of the law of the Twelve Tables. For from the moment that the wife or the husband had separately the right of repudiation, there was a much stronger reason for their having the power of quitting each other by mutual consent.

The law did not require that they should lay open the causes of divorce.^ In the nature of the thing, the reasons for repu- diation should be given, while those for a divorce are unneces- sary; because, whatever causes the law may admit as suffi-

X " Life of Romulus." ex duodecim tabuHs causam addidit." —

y This was a law of Solon. Philip, ii.

e " Mimam res suas sibi habere jussit, a Justinian altered this, Nov. 117,

cap. X.


262 MONTESQUIEU

cient to break a marriage, a mutual antipathy must be stronger than them all.

The following fact, mentioned by Dionysius Halicarnassus,^ Valerius Maximus,^ and Aulus Gellius,^^ does not appear to me to have the least degree of probability: though they had at Rome, say they, the power of repudiating a wife, yet they had so much respect for the auspices that nobody for the space of five hundred and twenty years ever made^ use of this right, till Carvilius Ruga repudiated his, because of her sterility. We need only be sensible of the nature of the human mind to per- ceive how very extraordinary it must be for a law to grant such right to a whole nation, and yet for nobody to make use of it. Coriolanus, setting out on his exile, advised hisf wife to marry a man more happy than himself. We have just been seeing that the law of the Twelve Tables and the manners of the Romans greatly extended the law of Romulus. But to what purpose were these extensions if they never made use of a power to repudiate ? Besides, if the citizens had such a respect for the auspices that they would never repudiate, how came the legislators of Rome to have less than they ? And how came the laws incessantly to corrupt their manners?

All that is surprising in the fact in question will soon dis- appear, only by comparing two passages in Plutarch. The regal lawg permitted a husband to repudiate in the three cases already mentioned, and " it enjoined," says Plutarch,/* " that he who repudiated in any other case should be obliged to give the half of his substance to his wife, and that the other half should be consecrated to Ceres." They might then repudiate in all cases, if they were but willing to submit to the penalty. Nobody had done this before Carvilius Ruga,« who, as Plutarch says in another place,/ " put away his wife for her sterility two hundred and thirty years after Romulus." That is, she was re- pudiated seventy-one years before the law of the Twelve Tables, which extended both the power and causes of repudiation.

^ l^h ^^- ■ S Plutarch's " Life of Romulus."

c Ibid., cao. IV. h Ibid.

d Lib. IV. cap. iii. 8. i Indeed sterility is not a cause men-

^ According to Dionys. Halicarn. and tioned by the law of Romulus: but to

Valerius Maximus; and five hundred all appearance he was not subject to a

and twenty-three, according to Aulus confiscation of his eflfects, since he fol-

Gellius, Neither did they agree in lowed the orders of the censors,

placing this under the same consuls. ; In his comparison between Theseus

f bee the Speech of Veturia " in and Romulus. Dionys. Hahcam. lib. VIII.


THE SPIRIT OF LAWS 263

The authors I have cited say that Carvilius Ruga loved his wife, but that the censors made him take an oath to put her away, because of her barrenness, to the end that he might give children to the republic; and that this rendered him odious to the people. We must know the genius and temper of the Romans before we can discover the true cause of the hatred they had conceived against CarviUus. He did not fall into dis- grace with the people for repudiating his wife; this was an affair that did not at all concern them. But Carvilius had taken an oath to the censors, that by reason of the sterility of his wife he would repudiate her to give children to the republic. This was a yoke which the people saw the censors were going to put upon them. I shall discover, in the prosecution of this work,^ the repugnance which they always felt to regulations of the Hke kind. But wherrce can such a contradiction between those authors arise? It is because Plutarch examined into a fact, and the others have recounted a prodigy.

k Book XXIII. chap. iii.


BOOK XVII

HOW THE LAWS OF POLITICAL SERVITUDE BEAR A RELATION TO THE NATURE OF THE CLIMATE

I. — Of political Servitude

POLITICAL servitude does not less depend on the nature of the climate than that which is civil and domestic; and this we shall now demonstrate.

2. — The Difference between Nations in point of Courage

We have already observed that great heat enervates the strength and courage of men, and that in cold climates they have a certain vigor of body and mind, which renders them patient and intrepid, and qualifies them for arduous enterprises. This remark holds good, not only between dififerent nations, but even in the dififerent parts of the same country. In the north of China a people are more courageous than those in the south ; and those in the south of Corea b have less bravery than those in the north.

We ought not, then, to be astonished that the efifeminacy of the people in hot climates has almost always rendered them slaves ; and that the bravery of those in cold climates has en- abled them to maintain their liberties. This is an effect which springs from a natural cause.

This has also been found true in America; the despotic empires of Mexico and Peru were near the Line, and almost all the little free nations were, and are still, near the Poles.

3. — Of the Climate of Asia The relations of travellers c inform us " that the vast continent of the north of Asia, which extends from forty degrees or

a Du Halde, vol. i. p. 112. c See " Travels to the North," vol.

& The Chinese books make mention viii.- the "Hist, of the Tartars"; and of this. Ibid. Du Halde, vol. iv.

264


THE SPIRIT OF LAWS 265

thereabouts to the pole, and from the frontiers of Muscovy even to the eastern ocean, is in an extremely cold climate ; that this immense tract of land is divided by a chain of mountains which run from west to east, leaving Siberia on the north, and Great Tartary on the south ; that the climate of Siberia is so cold that, excepting a few places, it is unsusceptible of cultivation ; and that, though the Russians have settlements all along the Irtis, they cultivate nothing; that this country produces only some little firs and shrubs ; that the natives of the country are di- vided into wretched hordes or tribes, like those of Canada; that the reason of this cold proceeds, on the one hand, from the height of the land, and on the other from the mountains, which, in proportion as they run from south to north, are levelled in such a manner that the north wind everywhere blows with- out opposition; that this wind, which renders Nova Zembla uninhabitable, blowing in Siberia makes it a barren waste; that in Europe, on the contrary, the mountains of Norway and Lapland are admirable bulwarks, which cover the northern countries from the wind ; so that at Stockholm, which is about fifty-nine degrees latitude, the earth produces plants, fruits, and corn; and that about Abo, which is sixty-one degrees, and even to sixty-three and sixty-four, there are mines of silver, and the land is fruitful enough."

We see also in these relations " that Great Tartary, situated to the south of Siberia, is also exceedingly cold ; that the coun- try will not admit of cultivation ; that nothing can be found but pasturage for flocks and herds ; that trees will not grow there, but only brambles, as in Iceland; that there are, near China and India, some countries where there grows a kind of millet, but that neither corn nor rice will ripen ; that there is scarcely a place in Chinese Tartary at forty-three, forty-four, and forty- five degrees where it does not freeze seven or eight months in the year, so that it is cold as Iceland, though it might be imagined, from its situation, to be as hot as the south of France ; that there are no cities, except four or five towards the eastern ocean, and some which the Chinese, for political reasons, have built near China ; that in the rest of Great Tartary there are only a few situated in Buchar, Turkestan, and Cathay; that the reason of this extreme cold proceeds from the nature of the nitrous earth, full of saltpetre and sand, and more particularly


266 MONTESQUIEU

from the height of the land. Father Verbiest found that a cer- tain place, eighty leagues north of the great wall, towards the source of Kavamhuran, exceeded the height of the sea near Pekin three thousand geometrical paces ; that this height d is the cause that though almost all the great rivers of Asia have their source in this country, there is, however, so great a want of water that it can be inhabited only near the rivers and lakes."

These facts being laid down, I reason thus : Asia has prop- erly no temperate zone, as the places situated in a very cold climate immediately touch upon those which are exceedingly hot, that is, Turkey, Persia, India, China, Corea, and Japan.

In Europe, on the contrary, the temperate zone is very ex- tensive, though situated in climates widely different from each other; there being no affinity between the climates of Spain and Italy and those of Norway and Sweden. But as the climate grows insensibly cold upon our advancing from south to north, nearly in proportion to the latitude of each country, it thence follows that each resembles the country joining it ; that there is no very extraordinary difference between them, and that, as I have just said, the temperate zone is very extensive.

Hence it comes that in Asia the strong nations are opposed to the weak ; the warlike, brave, and active people touch imme- diately upon those who are indolent, effeminate, and timorous ; the one must, therefore, conquer, and the other be conquered. In Europe, on the contrary, strong nations are opposed to the strong; and those who join each other have nearly the same courage. This is the grand reason of the weakness of Asia, and of the strength of Europe ; of the liberty of Europe, and of the slavery of Asia : a cause that I do not recollect ever to have seen remarked. Hence it proceeds that liberty in Asia never increases; whilst in Europe it is enlarged or diminished, ac- cording to particular circumstances.

The Russian nobility have indeed been reduced to slavery by the ambition of one of their princes ; but they have always discovered those marks of impatience and discontent which are never to be seen in the southern climates. Have they not been able for a short time to establish an aristocratic govern- ment ? Another of the northern kingdoms has lost its laws ; but we may trust to the climate that they are not lost in such a manner as never to be recovered.

d Tartary is, then, a kind of flat mountain.


THE SPIRIT OF LAWS 267

4. — The Consequences resulting from this

What we have now said is perfectly conformable to history. Asia has been subdued thirteen times; eleven by the north- ern nations, and twice by those of the south. In the early ages it was conquered three times by the Scythians ; afterwards it was subdued once by the Medes, and once by the Persians ; again by the Greeks, the Arabs, the Moguls, the Turks, the Tartars, the Persians, and the Afghans. I mention only the Upper Asia, and say nothing of the invasions made in the rest of the south of that part of the world which has most frequently suffered prodigious revolutions.

In Europe, on the contrary, since the establishment of the Greek and Phoenician colonies, we know but of four great changes ; the first caused by the conquest of the Romans ; the second by the inundation of barbarians, who destroyed those very Romans ; the third by the victories of Charlemagne ; and the last by the invasions of the Normans. And if this be rightly examined, we shall find, even in these changes, a general strength diffused through all the parts of Europe. We know the difficulty which the Romans met with in conquering Eu- rope, and the ease and facility with which they invaded Asia. We are sensible of the difficulties the northern nations had to encounter in overturning the Roman empire ; of the wars and labors of Charlemagne ; and of the several enterprises of the Normans. The destroyers were incessantly destroyed.

5. — That when the People in the North of Asia and those of the North of Europe made Conquests, the Effects of the Conquest were not the same

The nations in the north of Europe conquered as freemen ; the people in the north of Asia conquered as slaves, and sub- dued others only to gratify the ambition of a master.

The reason is, that the people of Tartary, the natural con- querors of Asia, are themselves enslaved. They are inces- santly making conquests in the south of Asia, where they form empires: but that part of the nation which continues in the country finds that it is subject to a great master, who, being despotic in the South, will likewise be so in the North, and exer-


268 MONTESQUIEU

cising an arbitrary power over the vanquished subjects, pre- tends to the same over the conquerors. This is at present most conspicuous in that vast country called Chinese Tartary, which is governed by the emperor, with a power almost as despotic as that of China itself, and which he every day extends by his conquests.

We may likewise see in the history of China that the em- perors e sent Chinese colonies into Tartary. These Chinese have become Tartars, and the mortal enemies of China; but this does not prevent their carrying into Tartary the spirit of the Chinese government.

A part of the Tartars who were conquerors have very often been themselves expelled ; when they have carried into their deserts that servile spirit which they had acquired in the climate of slavery. The history of China furnishes us with strong proofs of this assertion, as does also our ancient history./^

Hence it follows that the genius of the Getic or Tartarian na- tion has always resembled that of the empires of Asia. The people in these are governed by the cudgel ; the inhabitants of Tartary by whips. The spirit of Europe has ever been contrary to these manners ; and in all ages, what the people of Asia have called punishment those of Europe have deemed the most outrageous abuse.^

The Tartars who destroyed the Grecian Empire established in the conquered countries slavery and despotic power: the Goths, after subduing the Roman Empire, founded monarchy and liberty.

I do not know whether the famous Rudbeck, who in his " Atlantica " has bestowed such praises on Scandinavia, has made mention of that great prerogative which ought to set this people above all the nations upon earth ; namely, this country's having been the source of the liberties of Europe — that is, of almost all the freedom which at present subsists amongst man- kind.

Jornadez the Goth called the north of Europe the forge of the human race.^ I should rather call it the forge where those

e As Vouty V, Emperor of the fifth concerning the manner of thinking

dynasty. among the German nations in respect

f The Scythians thrice conquered to the cudgel ; let the instrument be

Asia, and thrice were driven thence. what it will, the power or action of

Justin, lib. II. beating was always considered by them

g This is in no way contrary to what as an affront.

I shall say in book XXVIII. chap. xx. h " Humani generis officinam."


THE SPIRIT OF LAWS 269

weapons were framed which broke the chains of southern na- tions. In the North were formed those vaHant people who salHed forth and deserted their countries to destroy tyrants and slaves, and to teach men that, nature having made them equal, reason could not render them dependent, except where it was necessary to their happiness.

6. — A new physical Cause of the Slavery of Asia, and of the Liberty of Europe

In Asia they have always had great empires; in Europe these could never subsist. Asia has larger plains; it is cut out into much more extensive divisions by mountains and seas ; and as it lies more to the south, its springs are more easily dried up ; the mountains are less covered with snow ; and the rivers being not so large form more contracted barriers.*

Power in Asia ought, then, to be always despotic: for if their slavery was not severe they would make a division incon- sistent with the nature of the country.

In Europe the natural division forms many nations of a moderate extent, in which the ruling by laws is not incom- patible with the maintenance of the state : on the contrary, it is so favorable to it, that without this the state would fall into decay, and become a prey to its neighbors.

It is this which has formed a genius for liberty that ren- ders every part extremely difficult to be subdued and subjected to a foreign power, otherwise than by the laws and the advan- tage of commerce.

On the contrary, there reigns in Asia a servile spirit, which they have never been able to shake oflf, and it is impossible to find in all the histories of that country a single passage which discovers a freedom of spirit; we shall never see anything there but the excess of slavery.

7. — Of Africa and America

This is what I had to say of Asia and Europe. Africa is in a climate like that of the south of Asia, and is in the same servi- tude. America,; being lately destroyed and re-peopled by the

» The waters lose themselves or erap- America are called by the Spaniards

orate before or after their streams are " Indies Bravos," and are much more

united, difficult to subdue than the great era-

yThe petty barbarous nations of pires of Mexico and Peru.


1


270 MONTESQUIEU

nations of Europe and Africa, can now scarcely display its genuine spirit ; but what we know of its ancient history is very conformable to our principles.

8. — Of the Capital of the Empire

One of the consequences of what we have been mentioning is, that it is of the utmost importance to a great prince to make a proper choice of the seat of his empire. He who places it to the southward will be in danger of losing the north; but he who fixes it on the north may easily preserve the south. I do not speak of particular cases. In mechanics there are frictions by which the effects of the theory are frequently changed or retarded ; and policy has also its frictions.


BOOK XVIII

OF LAWS IN THE RELATION THEY BEAR TO THE NATURE OF THE SOIL

I. — How the Nature of the Soil has an Influence on the Laws

THE goodness of the land, in any country, naturally es- tablishes subjection and dependence. The husband- men, who compose the principal part of the people, are not very jealous of their liberty ; they are too busy and too intent on their own private affairs. A country which over- flows with wealth is afraid of pillage, afraid of an army. " Who is there that forms this goodly party ? " said Cicero to Atti- cus ; a " are they the men of commerce and husbandry ? Let us not imagine that these are averse to monarchy — these to whom all governments are equal, as soon as they bestow tranquillity."

Thus monarchy is more frequently found in fruitful coun- tries, and a republican government in those which are not so ; and this is sometimes a sufficient compensation for the incon- veniences they sufifer by the sterility of the land.

The barrenness of the Attic soil established there a democ- racy ; and the fertility of that of Lacedsemonia an aristocratic constitution. For in those times Greece was averse to the government of a single person, and aristocracy bore the near- est resemblance to that government.

Plutarch says & that the Cilonian sedition having been ap- peased at Athens, the city fell into its ancient dissensions, and was divided into as many parties as there were kinds of land in Attica. The men who inhabited the eminences would, by all means, have a popular government; those of the flat, open country demanded a government composed of the chiefs ; and they who were near the sea desired a mixture of both.

a Lib. XVII. b " Life of Solon."

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2. — The same Subject continued

These fertile provinces are always of a level surface, where the inhabitants are unable to dispute against a stronger power ; they are then obliged to submit ; and when they have once sub- mitted, the spirit of liberty cannot return; the wealth of the country is a pledge of their fidelity. But in mountainous dis- tricts, as they have but little, they may preserve what they have. The liberty they enjoy, or, in other words, the government they are under, is the only blessing worthy of their defence. It reigns, therefore, more in mountainous and rugged countries than in those which nature seems to have most favored.

The mountaineers preserve a more moderate government, because they are not so liable to be conquered. They defend themselves easily, and are attacked with difficulty; ammuni- tion and provisions are collected and carried against them with great expense, for the country furnishes none. It is, then, a more arduous, a more dangerous, enterprise to make war against them ; and all the laws that can be enacted for the safety of the people are there of least use.

3. — What Countries are best cultivated

Countries are not cultivated in proportion to their fertility, but to their liberty ; and if we make an imaginary division of the earth, we shall be astonished to see in most ages deserts in the most fruitful parts, and great nations in those where nature sems to refuse everything.

It is natural for a people to leave a bad soil to seek a better, and not to leave a good soil to go in search of worse. Most invasions have, therefore, been made in countries which nature seems to have formed for happiness, and as nothing is more nearly allied than desolation and invasion, the best provinces are most frequently depopulated, while the frightful countries of the North continue always inhabited, from their being al- most uninhabitable.

We find by what historians tell us of the passage of the peo- ple of Scandinavia along the banks of the Danube that this was not a conquest, but only a migration into desert countries.

These happy climates must, therefore, have been depopu-


I


THE SPIRIT OF LAWS 273

lated by other migrations, though we know not the tragic scenes that happened.

" It appears by many monuments of antiquity," says Aris- totle,^ " that the Sardinians were a Grecian colony. They were formerly very rich ; and Aristeus, so famed for his love of ag- riculture, was their law-giver. But they have since fallen to decay; for the Carthaginians, becoming their masters, de- stroyed everything proper for the nourishment of man, and forbade the cultivation of the lands on pain of death." Sar- dinia was not recovered in the time of Aristotle, nor is it to this day.

The most temperate parts of Persia, Turkey, Muscovy, and Poland have not been able to recover perfectly from the dev- astations of the Tartars.

4. — New Effects of the Fertility and Barrenness of Countries

The barrenness of the earth renders men industrious, sober, inured to hardship, courageous, and fit for war; they are obliged to procure by labor what the earth refuses to bestow spontaneously. The fertility of a country gives ease, effemi- nacy, and a certain fondness for the preservation of life. It has been remarked that the German troops raised in those places where the peasants are rich, as, for instance, in Saxony, are not so good as the others. Military laws may provide against this inconvenience by a more severe discipline.

5. — Of the Inhabitants of Islands

The inhabitants of islands have a higher relish for liberty than those of the continent. Islands are commonly of small extent ; d one part of the people cannot be so easily employed to oppress the other; the sea separates them from great em- pires ; tyranny cannot so well support itself within a small com- pass: conquerors are stopped by the sea; and the islanders, being without the reach of their arms^ more easily preserve their own laws.

6. — Of Countries raised by the Industry of Man Those countries which the industry of man has rendered habitable, and which stand in need of the same industry to

c Or he who wrote the book " De d Japan is an exception to this, by its

Mirabilibus." great extent as well as by its slavery.

Vol. I.— 18


2 74 MONTESQUIEU

provide for their subsistence, require a mild and moderate gov- ernment. There are principally three of this species : the two fine provinces of Kiang-nan and Tsekiang in China, Egypt, and Holland.

The ancient emperors of China were not conquerors. The first thing they did to aggrandize themselves was what gave the highest proof of their wisdom. They raised from beneath the waters two of the finest provinces of the empire; these owe their existence to the labor of man. And it is the inexpressible fertility of these two provinces which has given Europe such ideas of the felicity of that vast country. But a continual and necessary care to preserve from destruction so considerable a part of the empire demanded rather the manners of a wise than of a voluptuous nation, rather the lawful authority of a mon- arch than the tyrannic sway of a despotic prince. Power was, therefore, necessarily moderated in that country, as it was formerly in Egypt, and as it is now in Holland, which nature has made to attend to herself, and not to be abandoned to negligence or caprice.

Thus, in spite of the climate of China, where they are natu- rally led to a servile obedience ; in spite of the apprehensions which follow too great an extent of empire, the first legislators of this country were obliged to make excellent laws, and the government was frequently obliged to follow them*

7-. — Of human Industry

Mankind by their industry, and by the influence of good laws, have rendered the earth more proper for their abode. We see rivers flow where there have been lakes and marshes : this is a benefit which nature has not bestowed ; but it is a bene- fit maintained and suppHed by nature. When the Persians^ were masters of Asia, they permitted those who conveyed a spring to any place which had not been watered before to en- joy the benefit for five generations ; and as a number of rivu- lets flowed from Mount Taurus, they spared no expense in directing the course of their streams. At this day, without knowing how they came thither, they are found in the fields and gardens.

Thus, as destructive nations produce evils more durable than

ePolybius, lib. X.


1


THE SPIRIT OF LAWS 275

themselves, the actions of an industrious people are the source of blessings which last when they are no more.

8. — The general Relation of Laws

The laws have a very great relation to the manner in which the several nations procure their subsistence. There should be a code of laws of a much larger extent for a nation attached to trade and navigation than for people who are content with cul- tivating the earth. There should be a much greater for the lat- ter than for those who subsist by their flocks and herds. There must be a still greater for these than for such as live by hunting.

9. — Of the Soil of America

The cause of there being such a number of savage nations in America is the fertility of the earth, which spontaneously pro- duces many fruits capable of affording them nourishment. If the women cultivate a spot of land round their cottages, the maize grows up presently; and hunting and fishing put the men in a state of complete abundance. Besides, black cattle, as cows, bufifaloes, etc., thrive there better than carnivorous beasts. The latter have always reigned in Africa.

We should not, I believe, have all these advantages in Eu- rope if the land was left uncultivated ; it would scarcely pro- duce anything besides forests of oaks and other barren trees.

10. — Of Population in the Relation it hears to the Manner of procuring Subsistence

Let us see in what proportion countries are peopled where the inhabitants do not cultivate the earth. As the produce of uncultivated land is to that of land improved by culture, so the number of savages in one country is to that of husbandmen in another : and when the people who cultivate the land culti- vate also the arts, this is also in such proportions as would re- quire a minute detail.

They can scarcely form a great nation. If they are herds- men and shepherds, they have need of an extensive country to furnish subsistence for a small number; if they live by hunting, their number must be still less, and in order to find the means of life they must constitute a very small nation.

Their country commonly abounds with forests, which, as


276 MONTESQUIEU

the inhabitants have not the art of draining off the waters, are filled with bogs ; here each troop canton themselves, and form a petty nation.

II. — Of savage and barbarous Nations

There is this difference between savage and barbarous na- tions : the former are dispersed clans, which for some particu- lar reason cannot be joined in a body ; and the latter are com- monly small nations, capable of being united. The savages are generally hunters ; the barbarians are herdsmen and shep- herds.

This appears plain in the nortli of Asia. The people of Si- beria cannot live in bodies, because they are unable to find subsistence ; the Tartars may live in bodies for some time, be- cause their herds and flocks may for a time be reassembled. All the clans may then be reunited, and this is effected when one chief has subdued many others ; after which they may do two things — either separate, or set out with a design to make a great conquest in some southern empire.

12. — Of the Law of Nations amongst People who do not culti- vate the Earth

As these people do not live in circumscribed territories, many causes of strife arise between them ; they quarrel about waste land as we about inheritances. Thus they find frequent occa- sions for war, in disputes in relation either to their hunting, their fishing, the pasture for their cattle, or the violent seizing of their slaves ; and as they are not possessed of landed prop- erty, they have many things to regulate by the law of nations, and but few to decide by the civil law.

13. — Of the Civil Laws of those Nations who do not cultivate

the Earth

The division of lands is what principally increases the civil code. Amongst nations where they have not made this divi- sion there are very few civil laws.

The institutions of these people may be called manners rather than laws.

Amongst such nations as these the old men, who remember


THE SPIRIT OF LAWS 277

things past, have great authority; they cannot there be dis- tinguished by wealth, but by wisdom and valor.

These people wander and disperse themselves in pasture grounds or in forests. Marriage cannot there have the securi- ty which it has amongst us, where it is fixed by the habitation, and where the wife continues in one house; they may then more easily change their wives, possess many, and sometimes mix indifferently like brutes.

Nations of herdsmen and shepherds cannot leave their cat- tle, which are their subsistence; neither can they separate themselves from their wives, who look after them. All this ought, then, to go together, especially as, living generally in a flat open country, where there are few places of considerable strength, their wives, their children, their flocks, may become the prey of their enemies.

The laws regulate the division of plunder, and give, like our Salic laws, a particular attention to theft.

14. — Of the political State of the People who do not cultivate

the Land

These people enjoy great liberty; for as they do not cul- tivate the earth, they are not fixed: they are wanderers and vagabonds ; and if a chief should deprive them of their liberty, they would immediately go and seek it under another, or re- tire into the woods, and there live with their families. The liberty of the man is so great among these people that it neces- sarily draws after it that of the citizen.

15. — Of People who know the Use of Money

Aristippus being cast away, swam and got safely to the next shore, where, beholding geometrical figures traced in the sand, he was seized with a transport of joy, judging that he was amongst Greeks, and not in a nation of barbarians.

Should you ever happen to be cast by some adventure amongst an unknown people ; upon seeing a piece of money you may be assured that you have arrived in a civilized coun- try.

The culture of lands requires the use of money. This culture supposes many inventions and many degrees of knowledge;


278 MONTESQUIEU

and we always see ingenuity, the arts, and a sense of want mak- ing their progress with an equal pace. All this conduces to the establishment of a sign of value.

Torrents and eruptions have led to the discovery that metals are contained in the bowels of the earth.o When once they have been separated, they have easily been applied to their proper use.

16. — Of Civil Laws amongst People who know not the Use of

Money

When a people have not the use of money, they are seldom acquainted with any other injustice than that which arises from violence: and the weak, by uniting, defend themselves from its effects. They have nothing there but political regulations. But where money is estabHshed, they are subject to that injus- tice which proceeds from craft — an injustice that may be exer- cised in a thousand ways. Hence they are forced to have good civil laws, which spring up with the new practices of iniquity.

In countries where they have no specie, the robber takes only bare movables, which have no mutual resemblance. But where they make use of money, the robber takes the signs, and these always resemble each other. In the former nothing can be concealed, because the robber takes along with him the proofs of his conviction ; but in the latter it is quite the contrary.

17. — Of political Laws amongst Nations who have not the Use

of Money

The greatest security of the liberties of a people who do not cultivate the earth is their not knowing the use of money. What is gained by hunting, fishing, or keeping herds of cattle cannot be assembled in such great quantity, nor be sufficiently preserved, for one man to find himself in a condition to corrupt many others: but when, instead of this, a man has a sign of riches, he may obtain a large quantity of these signs, and dis- tribute them as he pleases.

The people who have no money have but few wants; and these are supplied with ease, and in an equal manner. Equal-

a It is thus that Diodorus tells us the mountains. Aristotle concurs in this shepherds found gold in the Pyrenean idea, but Strabo treats it as a fable. —


THE SPIRIT OF LAWS 279

ity is then unavoidable ; and hence it proceeds that their chiefs are not despotic.

If what travellers tell us be true, the constitution of a nation of Louisiana, called the Natchez, is an exception to this. Their chief disposes of the goods of all his subjects, and obliges them to work and toil, according to his pleasure.^ He has a power like that of the grand seignior, and they cannot even refuse him their heads. When the presumptive heir enters the world, they devote all the sucking children to his service during his life. One would imagine that this is the great Sesostris. He is treated in his cottage with as much ceremony as an emperor of Japan or China.

18. — Of the Power of Superstition

The prejudices of superstition are superior to all others, and have the strongest influence on the human mind. Thus, though the savage nations have naturally no knowledge of despotic tyranny, still they feel the weight of it. They adore the sun ; and if their chief had not imagined that he was the brother of this glorious luminary, they would have thought him a wretch like themselves.

19. — Of the Liberty of the Arabs and the Servitude of the

Tartars

The Arabs and Tartars are nations of herdsmen and shep- herds. The Arabs find themselves in that situation of which we have been speaking, and are, therefore, free ; whilst the Tar- tars (the most singular people on earth) are involved in a po- litical slavery.t^ I have already given reasons for this,c^ and shall now assign some others.

They have no towns, no forests, and but few marshes ; their rivers are generally frozen, and they dwell in a level country of an immense extent. They have pasture for their herds and flocks, and consequently property; but they have no kind of retreat, or place of safety. A khan is no sooner overcome than they cut off his head; his children are treated in the same manner,^ and all his subjects belong to the conqueror. These

h " Edifying Letters," 20th collection. e We ought not therefore to be aston-

c When a khan is proclaimed, all the ished at Mahomet, the son of Miriveis,

people cry that his word shall be as a who, upon taking Ispahan, put all the

sword. princes of the blood to the sword. d Book XVII. chap. 5.


28o MONTESQUIEU

are not condemned to a civil slavery, for in that case they would be a burden to a simple people, who have no lands to cultivate, and no need of any domestic service. They, therefore, add to the bulk of the nation ; but, instead of civil servitude, a political slavery must naturally be introduced amongst them.

It is apparent that in a country where the several clans make continual war, and are perpetually conquering each other; in a country where, by the death of the chief, the body politic of the vanquished clan is always destroyed, the nation in gen- eral can enjoy but little freedom; for there is not a single party that must not have been often subdued.

A conquered people may preserve some degree of liberty when, by the strength of their situation, they are in a state that will admit of capitulating after their defeat. But the Tartars, always defenceless, being once overcome can never be able to obtain conditions.

I have said, in chapter 2, that the inhabitants of cultivated plains are seldom free. Circumstances have occurred to put the Tartars, who dwell in uncultivated plains, in the same situ- ation.

20. — Of the Law of Nations as practised by the Tartars

The Tartars appear to be mild and humane amongst them- selves ; and yet they are most cruel conquerors : when they take cities they put the inhabitants to the sword, and imagine that they act humanely if they only sell the people, or dis- tribute them amongst their soldiers.

They have destroyed Asia, from India even to the Mediter- ranean ; and all the country which forms the east of Persia they have rendered a desert.

The law of nations is owing, I think, to the following cause. These people having no towns, all their wars are carried on with eagerness and impetuosity. They fight whenever they hope to conquer ; and when they have no such hope, they join the stronger army. With such customs, it is contrary to the law of nations that a city incapable of repelling their attack should stop their progress. They regard not cities as an asso- ciation of inhabitants, but as places made to bid defiance to their power. They besiege them without military skill, and ex-


THE SPIRIT OF LAWS 281

pose themselves greatly in the attack ; and, therefore, revenge themselves on all those who have spilled their blood.

21. — The Civil Law of the Tartars

Father Du Halde says that amongst the Tartars the young- est of the males is always the heir, by reason that as soon as the elder brothers are capable of leading a pastoral life they leave the house with a certain number of cattle, given them by their father, and build a new habitation. The last of the males, who continues at home with the father, is then his natural heir.

I have heard that a like custom was also observed in some small districts of England ; and we find it still in Brittany, in the Duchy of Rohan, where it obtains with regard to ignoble tenures. This is doubtless a pastoral law conveyed thither by some of the people of Britain, or established by some German nation. By Caesar and Tacitus we are informed that the latter cultivated but little land.

22. — Of a Civil Law of the German Nations

I shall here explain how that particular passage of the Salic law which is commonly distinguished by the term " the Salic law " relates to the institutions of a people who do not cultivate the earth, or at least who cultivate it but very little.

The Salic law ordains/^ that when a man has left children be- hind him, the males shall succeed to the Salic land in prefer- ence to the females.

To understand the nature of those Salic lands, there needs no more than to search into the usages or customs of the Franks with regard to lands before they left Germany.

Mr. Echard has very plainly proved that the word Salic is derived from Sala, which signifies a house ; and, therefore, that the Salic land was the land belonging to the house. I shall proceed further, and examine into the nature of the house, and of the land belonging to the house, among the Germans.

" They dwell not in towns," says Tacitus, " nor can they bear to have their habitations contiguous to those of others ; every one leaves a space or small piece of ground about his

/Tit. 62.


282 MONTESQUIEU

house, which is inclosed.^ Tacitus is very exact in this ac- count, for many laws of the barbarian codes have different decrees against those who threw down this inclosure, as well as against such as broke into the housed

We learn from Tacitus and Caesar that the lands cultivated by the Germans were given them only for the space of a year, after which they again became public. They had no other patrimony but the house and a piece of land within the in- closure that surrounded it.i It was this particular patrimony which belonged to the males. And, indeed, how could it be- long to the daughters ? They were to pass into another habi- tation.

The Salic land was then within that inclosure which be- longed to a German house; this was the only property they had. The Franks, after their conquests, acquired new posses- sions, and continued to call them Salic lands.

When the Franks lived in Germany their wealth consisted of slaves, flocks, horses, arms, etc. The habitation and the small portion of land adjoining it were naturally given to the male children who were to dwell there. But afterwards when the Franks had by conquest acquired large tracts of land, they thought it hard that the daughters and their children should be incapable of enjoying any part of them. Hence it was that they introduced a custom of permitting the father to settle the estate after his death upon his daughter, and her children. They silenced the law; and it appears that these settlements were frequent, since they were entered in the formularies./

Amongst these formularies I find one of a singular nature.^ A grandfather ordained by will that his grandchildren should share his inheritance with his sons and daughters. What then became of the Salic law ? In those times either it would not be observed, or the continual use of nominating the daughters to an inheritance had made them consider their ability to succeed as a case authorized by custom.

g " Nullas Germanorum populis urbes i This inclosure is called " Cortis " in

habitari satis notum est, ne pati quidem the charters.

inter se junctas sedes; colunt discreti, /See Marculfus, lib. II. form. lo and

ut nemus placuit. Vicos locant, non in 12, Append, to Marculf. form. 49, and

nostrum morem connexis et cohaerenti- the ancient formularies of " Sirmon-

bus asdificiis: suam quisque domum dus," form. 22.

spatio circumdat."— " De Moribus Ger- k Form. 55, in Lindembroch's coUec-

manorum." tion.

h The " Law of the Alemans," chap. X., and the " Law of the Bavarians," tit. 10, sees. I and 2.


THE SPIRIT OF LAWS 283

The Salic law had not in view a preference of one sex to the other, much less had it a regard to the perpetuity of a family, a name, or the transmission of land. These things did not enter into the heads of the Germans ; it was purely an econom- ical law, which made the house and the land dependent thereon to the males who should dwell in it, and to whom it conse- quently was of most service.

We need here only transcribe the title of the allodial lands of the Salic law; that famous text of which so many have talked, and which so few have read.

" I. If a man dies without issue, his father or mother shall succeed him. 2. If he has neither father nor mother, his brother or sister shall succeed him. 3. If he has neither brother nor sister, the sister of his mother shall succeed him. 4. If his mother has no sister, the sister of his father shall suc- ceed him. 5. If his father has no sister, the nearest relative by the male side shall succeed. 6. Not any part of the Salic land shall pass to the females ; but it shall belong to the males ; that is, the male children shall succeed their father." I

It is plain that the first live articles relate to the inheritance of a man who dies without issue ; and the sixth to the succes- sion of him who has children.

When a man dies without children, the law ordains that neither of the two sexes shall have the preference to the other, except in certain cases. In the first two degrees of succession, the advantages of the males and females were the same ; in the third and fourth, the females had the preference ; and the males in the fifth.

Tacitus points out the source of these extravagances. " The sister's children," says he, " are as dear to their uncle as to their own father. There are men who regard this degree of kindred as more strict, and even more holy. They prefer it when they receive hostages."^ Hence it proceeds that our earliest his- torians speak in such strong terms of the love of the kings of the Franks for their sisters and their sisters' children.w And,

/ " De terra vero Salica in muHerem nexum sanguinis arbitrantur, et in ac-

nulla portio hereditatis transit, sed hoc cipiendis obsidibus magis exigunt, tan-

yirilis sexus acquirit, hoc est filii in quam ii et animum firmius et domum

ipsa hereditate succedunt."— Tit. 62, latius teneant."— " De Moribus Ger-

sec. 6. manorum."

m " Sororum filiis idem apud avun- n See, in " Gregory of Tours," lib.

culum quam apud patrem honor. Qui- VIII. chap, xviii. ana xx., and lib. XI.

dam sanctiorem arctioremque hunc chap. xvi. and xx., the rage of Gontram


284 MONTESQUIEU

indeed, if the children of the sister were considered in her brother's house as his own children, it was natural for these to regard their aunt as their mother.

The sister of the mother was preferred to the father's sister ; this is explained by other texts of the Salic law. When a woman became a widow,^ she fell under the guardianship of her husband's relatives ; the law preferred to this guardianship the relatives by the females before those by the males. Indeed, a woman who entered into a family joining herself with those of her own sex, became more united to her relatives by the female than by the male. Moreover, when a man killed another, and had not wherewithal to pay the pecuniary penalty, the law per- mitted him to deliver up his substance and his relatives were to supply the deficiency./' After the father, mother, and brother, the sister of the mother was to pay, as if this tie had something in it most tender : now the degree of kindred which imposes the burdens ought also to confer the advantages.

The Salic law enjoins that after the father's sister, the suc- cession should be held by the nearest relative male ; but if this relative was beyond the fifth degree, he should not inherit. Thus a female of the fifth degree might inherit to the prejudice of a male of the sixth ; and this may be seen in the law of the Ripuarian Franks (a faithful interpreter of the Salic law), un- der the title of allodial lands, where it closely adheres to the Salic law on the same subject.?

If the father left issue, the Salic law would have the daughters excluded from the inheritance of the Salic land, and deter- mined that it should belong to the male children.

It would be easy for me to prove that the Salic law did not absolutely exclude the daughters from the possession of the Salic land, but only in the case where they were debarred by their brothers, i. This appears from the letter of the Salic law ; which, after having said that the women shall possess none of the Salic land, but only the males, interprets and restrains itself by adding, " that is, the son shall succeed to the inheritance of the father."

2. The text of the Salic law is cleared up by the law of the

at Leovigild's ill treatment of Ingunda, p Ibid. tit. 61, sec. i.

his niece, which Childebert, her brother, q " Et deinceps usque ad quintum

took up arms to revenge. genuculum qui proximus fuerit in

o Salic law, tit. 47. hereditatem succedat." — Tit. 56, sec. 3.


THE SPIRIT OF LAWS 285

Ripuarian Franks, which has also a title on allodial lands very conformable to that of the Salic law.^

3. The laws of these barbarous nations who all sprang from Germany interpret each other, more particularly as they all have nearly the same spirit. The Saxon law enjoined the father and mother to leave their inheritance to their son, and not to their, daughter; but if there were none but daughters, they were to have the whole inheritance.^

4. We have two ancient formularies t that state the case in which, according to the Salic law, the daughters were excluded by the males; that is, when they stood in competition with their brother.

5. Another formulary u proves that the daughter succeeded, to the prejudice of the grandson ; she was, therefore, excluded only by the son.

6. If daughters had been generally debarred by the Salic law from the inheritance of land, it would be impossible to ex- plain the histories, formularies, and charters which are continu- ally mentioning the lands and possessions of the females un- der the first race.

People have been wrong in asserting that the Salic lands were fief s.^ i. This head is distinguished by the title of allodial lands. 2. Fiefs at first were not hereditary. 3. If the SaHc lands had been fiefs, how could Marculfus treat that custom as impious which excluded the women from inheriting, when the males themselves did not succeed to fiefs? 4. The charters which have been cited to prove that the Salic lands were fiefs only show that they were freeholds. 5. Fiefs were not estab- lished till after the conquest, and the SaHc customs existed long before the Franks left Germany. 6. It was not the SaHc law that formed the establishment of fiefs, by setting bounds to the succession of females ; but it was the establishment of fiefs that prescribed limits to the succession of females, and to the regulations of the Salic law.

After what has been said, one would not imagine that the per- petual succession of males to the crown of France should have

rTit. s6. tin Marculfus, lib. II. form. 12, and

J Ibid., 7, sec. i: " Pater aut mater de- in the Appendix to Marculfus, form. 49.

functi, filio non filiae hereditatem re- u Lindembroch's collection, form. 55.

linquant '*; sec. 4, " qui defunctus, non v Ducange, Pithou, etc.

filios, sed filias reliquerit, ad eas omnis

hcrcditas pcrtineat.


286 MONTESQUIEU

taken its rise from the Salic law. And yet this is a point in- dubitably certain. I prove it from the several codes of the barbarous nations. The Salic law,w and the law of the Bur- gundians,^ debarred the daughters from the right of succeed- ing to the land in conjunction with their brothers ; neither did they succeed to the crown. The law of the VisigothSj^ on the contrary, permitted the daughters to inherit the land with the brothers : z and the women were capable of inheriting the crown. o Amongst these people the regulations of the civil law had an effect on the political.

This was not the only case in which the political law of the Franks gave way to the civil. By the Salic law, all the brothers succeeded equally to the land, and this was also decreed by a law of the Burgundians. Thus, in the kingdom of the Franks, and in that of the Burgundians, all the brothers succeeded to the crown, if we except a few murders and usurpations which took place amongst the Burgundians. -

23. — Of the regal Ornaments among the Franks

A people who do not cultivate the land have no idea of lux- ury. We may see, in Tacitus, the admirable simplicity of the German nations : they had no artificial elegances of dress ; their ornaments were derived from nature. If the family of their chief was to be distinguished by any sign, it was no other than that which nature bestowed. The kings of the Franks, of the Burgundians, and the Visigoths wore their long hair for a diadem.

24. — Of the Marriages of the Kings of the Franks

I have already mentioned that with people who do not cul- tivate the earth, marriages are less fixed than with others, and that they generally take many wives. " Of all the barbarous na- tions the Germans were almost the only people who were sat-

w Tit. 62. might have held the crown in their own

jr Tit. I, sec. 3; tit. 14, sec. i; and tit. right; for Amalasuntha reigned after

51. the death of Athalaricus; nay, even af-

y Lib. IV. tit. 2, sec. i. ter the election of Theodat, and in con-

s Among the Ostrogoths, the crown junction with that prince. See Ama-

twice devolved to the males by means lasuntha's and Theodat's letters, in

of females; the first time to Athalaricus, " Cassiodorus," lib. X.

through Amalasuntha, and the second a The German nations, says Tacitus,

to Theodat, through Amalafreda, Not had common customs, as well as those

but that the females of that nation which were peculiar to each.


THE SPIRIT OF LAWS 287

isfied with one wiiefi if we except," says Tacitus, " some persons who, not from a dissoluteness of manners, but because of their nobiHty, had many.'V

This explains the reason why the kings of the first race had so great a number of wives. These marriages were less a proof of incontinence than a consequence of dignity: and it would have wounded them in a tender point to have deprived them of such a prerogative.^ This also explains the reason why the example of the kings was not followed by the subjects.

25. — Childeric

" The laws of matrimony amongst the Germans," says Taci- tus, " are strictly observed. Vice is not there a subject of ridicule. To corrupt or be corrupted is not called fashion, or the custom of the age : e there are few examples in this populous nation of the violation of conjugal faith."/^

This was the reason of the expulsion of Childeric: he shocked their rigid virtue, which conquest had not had time to corrupt.

26. — Of the Time when the Kings of the Franks became of age

Barbarians who do not cultivate the earth have strictly speaking, no jurisdiction, and are, as we have already remem- bered, rather governed by the law of nations than by civil in- stitutions. They are, therefore, always armed. Thus Tacitus tells us " that the Germans undertook no affairs either of a public or private nature unarmed."^: They gave their vote by the sound of their arms./^ As soon as they could carry them, they were presented to the assembly ; i they put a javelin into their hands ; / and from that moment they were out of their min- ority : they had been a part of the family, now they became a part of the republic.^

b " Prope soli Barbarorum singulis g " Nihil neque publicae neque pri-

uxoribus contenti sunt." — " De Moribus vatae rei nisi armati agunt." — Ibid.

Germanorum." h " Si displicuit sententia, fremitu

c " Exceptis admodum paucis qui non aspernantur; sin placuit, frameas con-

libidine, sed ob nobilitatem, plurimis cutiunt." — Ibid,

nuptiis ambiuntur." — Ibid. t " Sed arma sumere non ante cui-

d See Fredegarius's " Chronicle of the quam moris, quam civitas suffecturum

Year 628." probaverit."

e " Severa matrimonia nemo illic ; " Turn in ipso concilio vel princi-

vitia ridet, nee corrumpere et corrumpi pum aliquis, vel pater, vel propinquus,

sseculum vocatur."— " De Moribus Ger- scuto, frameaque juvenem ornant.'

manorum." k " Hsec apud illos toga, hie primus

/ " Paucissima in tam numerosa gente juventae honos; ante hoc domus pars

adulteria." — Ibid. videntur, mox reipublicse."


288 MONTESQUIEU

" The eagles," said the King of the Ostrogoths,/ " cease to feed their young ones as soon as their wings and talons are formed ; the latter have no need of assistance when they are able themselves to seize their prey: it would be a disgrace if the young people in our armies were thought to be of an age un- fit for managing their estates or regulating the conduct of their lives. It is virtue that constitutes full age among the Goths."

Childebert II was fifteen years old when Gontram, his uncle, declared that he was of age, and capable of governing by him- self.w We find in the Ripuarian laws that the age of fifteen, the ability of bearing arms and majority, went together. It is there said n " that if a Ripuarian dies, or is killed, and leaves a son behind him, that son can neither prosecute, nor be prose- cuted, till he has completely attained the age of fifteen; and then he may either answer for himself or choose a champion." It was necessary that his mind should be sufficiently formed to be able to defend himself in court ; and that his body should have all the strength that was proper for his defence in single combat. Amongst the Burgundians,o who also made use of this combat in their judiciary proceedings, they were of age at fifteen.

Agathias tells us that the arms of the Franks were Hght: they might, therefore, be of age at fifteen. In succeeding times the arms they made use of were heavy, and they were already greatly so in the time of Charlemagne, as appears by our capit- ularies and romances. Those who had fiefs,/' and were conse- quently obliged to do military sefrvice, were not then of age till they were twenty-one years old.9

27. — The same Subject continued

We have seen that the Germans did not appear in their as- semblies before they were of age ; they were a part of the family, but not of the republic. This was the reason that the children of Clodomir, King of Orleans, and conqueror of Bur- gundy, were not proclaimed kings, because they were of too

/ Theodoric in " Cassiod." lib. I. ep. n Tit. 81.

38. oTit. 87.

m He was scarcely five years old, says p There was no change in the time

" Gregory of Tours," lib. V. cap. i., with regard to the common people,

when he succeeded to his father, in the g St. Louis was not of age till t\yenty-

year 575. Gontram declared him of age one; this was altered by an edict of

in the year 585; he was, therefore, at Charles V in the year 1374. that time no more than fifteen.


THE SPIRIT OF LAWS 289

tender an age to be present at the assembly. They were not yet kings, but they had a right to the regal dignity as soon as they were able to bear arms ; and in the meantime, Clotilda, their grandmother, governed the state. >' But their uncles, Clotaire and Childebert, assassinated them, and divided their kingdom. This was the cause that in the following ages princes in their minority were proclaimed kings immediately after the death of their fathers. Thus Duke Gondovald saved Childebert II from the cruelty of Chilperic, and caused him to be pro- claimed king when he was only five years old.^

But even in this change they followed the original spirit of the nation ; for the public acts did not pass in the name of the young monarch. So that the Franks had a double administra- tion : the one which concerned the person of the infant king, and the other which regarded the kingdom ; and in the fiefs there was a difiference between the guardianship and the civil administration.

28. — Of Adoption among the Germans

As the Germans became of age by the wielding of arms, so they were adopted by the same sign. This Gontram, willing to declare his nephew Childebert of age and to adopt him for his son, made use of these words : " I have put this javelin into thy hands as a token that I have given thee all my kingdom."^ Then, turning towards the assembly, he added, " You see that my son Childebert is grown a man ; obey him." Theodoric, King of the Ostrogoths, intending to adopt the King of the Heruli, wrote to him thus : w " It is a noble custom of ours to be adopted by arms ; for men of courage alone deserve to be our children. Such is the efificacy of this act, that whoever is the ob- ject of it had rather die than submit to anything ignominious. Therefore, in compliance with the national usage, and because you are a man of courage, we adopt you for our son by these bucklers, these swords, these horses, which we send you as a present."

fit appears from "Gregory of 5 " Gregory of Tours," lib. V. cap. i.:

Tours," lib. III., that she chose two " vix lustro setatis uno jam peracto qui

natives of Burgundy, which had been die Dominicae Natalis regnare coeptt?'

conquered by Clodomir, to raise them t See " Gregory of Tours," lib. VII.

to the see of Tours, which also belonged cap. xxiii.

to Clodomir. u In " Cassiod." lib. IV. ep. 2.

Vol. I.— 19


290 MONTESQUIEU

29. — Of the sanguinary Temper of the Kings of the Franks

Clovis was not the only prince amongst the Franks who had invaded Gaul. Many of his relatives had penetrated into this country with particular tribes ; but as he had met with much greater success, and could grant considerable settlements to such as followed him, the Franks flocked to him from all parts, so that the other chiefs found themselves too weak to resist him. He formed a design of exterminating his whole house, and he succeeded.'z^ He feared, says Gregory of Tours,w lest the Franks should choose another chief. His children and succes- sors followed this practice to the utmost of their power. Thus the brother, the uncle, the nephew, and, what is still worse, the father or the son, were perpetually conspiring against their whole family. The law continually divided the monarchy; while fear, ambition, and cruelty wanted to reunite it.

30. — Of the national Assemblies of the Franks

It has been remarked above that nations who do not cul- tivate the land enjoy great liberty.

This was the case of the Germans. Tacitus says that they gave their kings, or chiefs, a very moderate degree of power ; x and Caesar adds further that in times of peace they had no com- mon magistrates ; but their princes administered justice in each village.^ Thus, as Gregory of Tours^ sufficiently proves, the Franks in Germany had no king.

" The princes," says Tacitus, " deliberate on matters of no great concern ; while affairs of importance are submitted to the whole nation, but in such a manner that these very afifairs which are under the cognizance of the people are at the same time laid before the princes. "o This custom was observed by them after their conquests, as may be seen in all their records.^

Tacitus says that capital crimes might be carried before the

V " Gregory of Tours," lib. II. 2 Lib. II.

«/ Ibid. a " De minoribus principes con-

  • • " Nee Regibus libera aut infinita sultant, de majoribus omnes; ita tamen

potestas. Caeterum neque animadver- ut ca quorum penes plebem arbitrium

tere, neque vincire, neque verberare," est, apud principes pertractentur." —

etc. — " De Moribus Germanorum." " De Moribus Germanorum."

y " In pace nullus est communis h " Lex consensu Populi fit et con-

magistratus, sed principes regionum stitutione Regis." — " Capitularies of

atque pagorum inter suos jus dicunt." Charles the Bald," anno 864, art. 6. -•* De Bello Gall." lib. VI.


THE SPIRIT OF LAWS 291

assembly.<^ It was the same after the conquest, when the great vassals were tried before that body.


31. — Of the Authority of the Clergy under the first Race

The priests of barbarous nations are commonly invested with power, because they have both that authority which is due to them from their religious character, and that influence which amongst such a people is the offspring of superstition. Thus we see in Tacitus that priests were held in great veneration by the Germans, and that they presided in the assemblies of the people.^ They alone were permitted e to chastise, to bind, to smite; which they did, not by order of the prince, or as his ministers of justice, but as by an inspiration of that Deity ever supposed to be present with those who made war.

We ought not, therefore, to be astonished when, from the very beginning of the first race, we meet with bishops the dis- pensers of justice ; f when we see them appear in the assemblies of the nation ; when they have such a prodigious influence on the minds of sovereigns; and when they acquire so large a share of property .g

c " Licet apud Concilium accusare et velut Deo imperante, quern adesse bel-

discrimen capitis intendere." — " De Mo- latoribus credunt." — Ibid,

ribus Germanorum." f See the " Constitutions of Clotaire "

d " Silentium per sacerdotes, quibus in the year 560, art. 6.

et coercendi jus est, imperatur."— Ibid. g The last ten chapters of this book,

e " Nee Regibus libera aut infinita reunited in Books XXVIII., XXX.,

potestas. Caeterum neque animadver- and XXXI., form a complete treatise

tere, neque vincire, neque verberare, upon the origin and early ages of the

nisi sacerdotibus est permissum, non French monarchy, and they should be

quasi in poenam, nee Ducis jussu, sed thus read to be understood.— Ed.


BOOK XIX

OF LAWS IN RELATION TO THE PRINCIPLES WHICH FORM THE GENERAL SPIRIT, THE MORALS, AND CUSTOMS OF A NATION

I. — Of the Subject of this Book

THIS subject is very extensive. In that crowd of ideas which presents itself to my mind, I shall be more at- tentive to the order of things than to the things them- selves. I shall be obliged to wander to the right and to the left, that I may investigate and discover the truth.

2. — That it is necessary People's Minds should he prepared for the Reception of the best Laws

Nothing could appear more insupportable to the Germans than the tribunal of Varus.^ That which Justinian h erected amongst the Lazi, to proceed against the murderers of their king, appeared to them as an affair most horrid and barbarous. Mithridates,c haranguing against the Romans, reproached them more particularly for their law proceedings.c^ The Parthians could not bear with one of their kings who, having been educated at Rome, rendered himself affable and easy of access to all.^ Liberty itself has appeared intolerable to those nations who have not been accustomed to enjoy it. Thus pure air is sometimes disagreeable to such as have lived in a fenny country.

Balbi, a Venetian, being at Pegu, was introduced to the king.^ When the monarch was informed that they had no king

a They cut out the tongues of the ad- e " Prompti aditus, nova comitas, ig-

vocates, and cried, " Viper, don't hiss." notse Partnis virtutes, nova vitia."—

—Tacitus. Tacitus.

b Agathias, lib. IV. f He has described this interview,

c Justin, lib. XXXVITI. which happened in 1596, in the " Col-

d " CsHimnias litium."— Justin, lib. lection of Voyages for the establish-

XXXVIII. ment of an India Company," vol. iii.

part I. p. 33. 292


THE SPIRIT OF LAWS


293


at Venice, he burst into such a fit of laughter that he was seized with a cough, and with difficulty could speak to his courtiers. What legislator could propose a popular govern- ment to a people like this ?

3. — Of Tyranny

There are two sorts of tyranny : one real, which arises from oppression; the other is seated in opinion, and is sure to be left whenever those who govern estabhsh things shocking to the existing ideas of a nation.

Diog tells us that Augustus was desirous of being called Romulus; but having been informed that the people feared that he would cause himself to be crowned king, he changed his design. The old Romans were averse to a king, because they could not suffer any man to enjoy such power; these would not have a king, because they could not bear his man- ners. For though Caesar, the Triumvirs, and Augustus were really invested with regal power, they had preserved all the out- ward appearance of equality, while their private lives were a kind of contrast to the pomp and luxury of foreign monarchs ; so that when the Romans were resolved to have no king, this only signified that they would preserve their customs, and not imitate those of the African and Eastern nations.

The same writer informs us that the Romans were exas- perated against Augustus for making certain laws which were too severe ; but as soon as he had recalled Pylades, the come- dian, whom the jarring of different factions had driven out of the city, the discontent ceased. A people of this stamp have a more lively sense of tyranny when a player is banished than when they are deprived of their laws.

4. — Of the general Spirit of Mankind

Mankind are iftfoerrced by various causes : by the climate, by the religion, by the laws, by the maxims of government, by precedents, morals, and customs ; whence is formed a general spirit of nations.

In proportion as, in every country, any one of these causes acts with more force, the others in the same degree are weak-

g Book LIV. 532.


294 MONTESQUIEU

ened. Nature and the climate rule almost alone over the sav- ages ; customs govern the Chinese ; the laws tyrannize in Japan; morals had formerly all their influence at Sparta; maxims of government, and the ancient simplicity of manners, once prevailed at Rome.

5. — How far we should he attentive lest the general Spirit of a Nation he changed

Should there happen to be a country whose inhabitants were of a social temper, open-hearted, cheerful, endowed with taste and a faciHty in communicating their thoughts; who were sprightly and agreeable; sometimes imprudent, often indis- creet; and besides had courage, generosity, frankness, and a certain notion of honor, no one ought to endeavor to restrain their manners by laws, unless he would lay a constraint on their virtues. If in general the character be good, the little foibles that may be found in it are of small importance.

They might lay a restraint upon women, enact laws to re- form their manners and to reduce their luxury, but who knows but that by these means they might lose that peculiar taste which would be the source of the wealth of the nation, and that politeness which would render the country frequented by strangers ?

It is the business of the legislature to follow the spirit of the nation, when it is not contrary to the principles of government ; for we do nothing so well as when we act with freedom, and follow the bent of our natural genius.

If an air of pedantry be given to a nation that is naturally gay, the state will gain no advantage from it, either at home or abroad. Leave it to do frivolous things in the most serious manner, and with gayety the things most serious.

6. — That Everything ought not to he corrected

Let them but leave us as we are, said a gentleman of a nation which had a very great resemblance to that we have been de- scribing, and nature will repair whatever is amiss. She has given us a vivacity capable of ofifending, and hurrying us be- yond the bounds of respect: this same vivacity is corrected


THE SPIRIT OF LAWS 295

by the politeness it procures, inspiring us with a taste of the world, and, above all, for the conversation of the fair sex.

Let them leave us as we are ; our indiscretions joined to our good nature would make the laws which should constrain our sociability not at all proper for us.

7. — Of the Athenians and Lacedcemonians

The Athenians, this gentleman adds, were a nation that had some relation to ours. They mingled gayety with business ; a stroke of raillery was as agreeable in the senate as in the theatre. This vivacity, which discovered itself in their councils, went along with them in the execution of their resolves. The character of the Spartans was one of gravity, seriousness, severity, and silence. It would have been as difficult to bring over an Athenian by teasing as it would a Spartan by diverting him.

8. — Effects of a sociable Temper

The more communicative a people are the more easily they change their habits, because each is in a greater degree a spec- tacle to the other, and the singularities of individuals are better observed. The climate which influences one nation to take pleasure in being communicative, makes it also delight in change, and that which makes it delight in change forms its taste.

The society of the fair sex spoils the manners and forms the taste ; the desire of giving greater pleasure than others estab- Hshes the embelHshments of dress ; and the desire of pleasing others more than ourselves gives rise to fashions. This fash- ion is a subject of importance ; by encouraging a trifling turn of mind, it continually increases the branches of its commerce./*

9. — Of the Vanity and Pride of Nations

Vanity is as advantageous to a government as pride is dan- gerous. To be convinced of this we need only represent, on the one hand, the numberless benefits which result from vanity, as industry, the arts, fashions, politeness, and taste; on the other, the infinite evils which spring from the pride of certain nations, as laziness, poverty, a total neglect of everything — in fine, the

h Fable of the Bees.


296 MONTESQUIEU

destruction of the nations which have happened to fall under their government, as well as of their own. Laziness is the ef- fect of pride ; » labor, a consequence of vanity. The pride of a Spaniard leads him to decline labor; the vanity of a French- man to work better than others.

All lazy nations are grave ; for those who do not labor re- gard themselves as the sovereigns of those who do.

If we search amongst all nations, we shall find that for the most part gravity, pride, and indolence go hand in hand.

The people of Achim ; are proud and lazy ; those who have no slaves, hire one, if it be only to carry a quart of rice a hun- dred paces ; they would be dishonored if they carried it them- selves.

In many places people let their nails grow, that all may see they do not work.

Women in the Indies k believe it shameful for them to learn to read : this is, they say, the business of their slaves, who sing canticles in the pagodas. In one tribe they do not spin; in another they make nothing but baskets and mats ; they are not even to pound rice; and in others they must not go to fetch water. These rules are established by pride, and the same passion makes them followed. There is no necessity for men- tioning that the moral qualities, according as they are blended with others, are productive of different efifects; thus pride, joined to a vast ambition and notions of grandeur, produced such efifects among the Romans as are known to all the world.

10. — Of the Character of the Spaniards and Chinese

The characters of the several nations are formed of virtues and vices, of good and bad qualities. From the happy mixture of these, great advantages result, and frequently where it would be least expected ; there are others whence great evils arise — evils which one would not suspect.

The Spaniards have been in all ages famous for their hon-

i The people who follow the khan of veniences of life, like the Europeans. —

Malacamber, those of Carnataca and " Collection of Voyages for the Es-

Coromandel, are proud and indolent; tablishment of an India Company," vol.

they consume little, because they are i. p. 54. miserably poor; while the subjects of ; See Dampier, vol. iii.

the Mogul and the people of Hindostan k " Edifying Letters," 12th collect, p.

employ themselves, and enjoy the con- 80.


THE SPIRIT OF LAWS 297

esty. Justin I mentions their fidelity in keeping whatever was intrusted to their care; they have frequently suffered death frather than reveal a secret. They have still the same fidelity [for which they were formerly distinguished. All the nations who trade at Cadiz trust their fortunes to the Spaniards, and [have never yet repented it. But this admirable quality, joined ^to their indolence, forms a mixture whence such effects result is to them are most pernicious. The rest of the European na- tions carry on in their very sight all the commerce of their ^monarchy.

The character of the Chinese is formed of another mixture, directly opposite to that of the Spaniards ; the precariousness of their subsistence m inspires them with a prodigious activity, and such an excessive desire of gain, that no trading nation can confide in them.w This acknowledged infidelity has secured them the possession of the trade to Japan. No European mer- chant has ever dared to undertake it in their name, how easy soever it might be for them to do it from their maritime prov- inces in the north.

II. — A Rejection

I have said nothing here with a view to lessen that infinite distance which must ever be between virtue and vice. God forbid that I should be guilty of such an attempt! I would only make my readers comprehend that all political are not all moral vices ; and that all moral are not political vices ; and that those w^ho make laws which shock the general spirit of a nation ought not to be ignorant of this.

12. — Of Customs and Manners in a despotic State

It is a capital maxim, that the manners and customs of a despotic empire ought never to be changed ; for nothing would more speedily produce a revolution. The reason is, that in these states there are no laws, that is, none that can be properly called so; there are only manners and customs; and if you overturn these you overturn all.

Laws are established, manners are inspired ; these proceed from a general spirit, those from a particular institution : now

/ By the nature of the soil and climate. m Lib. XLIII.

n Du Halde, vol. ii.


298 MONTESQUIEU

it is as dangerous, nay more so, to subvert the general spirit as to change a particular institution.

There is less communication in a country where each, either as superior or inferior, exercises or is oppressed by arbitrary power, than there is in those where liberty reigns in every station. They do not, therefore, so often change their man- ners and behavior. Fixed and established customs have a near resemblance to laws. Thus it is here necessary that a prince or a legislator should less oppose the manners and customs of the people than in any other country upon earth.

Their women are commonly confined, and have no influence in society. In other countries, where they have intercourse v/ith men, their desire of pleasing, and the desire men also have of giving them pleasure, produce a continual change of customs. The two sexes spoil each other ; they both lose their distinctive and essential quality ; what was naturally fixed be- comes quite unsettled, and their customs and behavior alter every day.

13. — Of the Behavior of the Chinese

But China is the place where the customs of the country can never be changed. Besides their women being absolutely separated from the men, their customs, like their morals, are taught in the schools. A man of letters may be known by his easy address.o These things being once taught by precept, and inculcated by grave doctors, become fixed, like the principles of moraHty, and are never changed.

14. — What are the natural Means of changing the Manners and Customs of a Nation

We have said that the laws were the particular and precise institutions of a legislator, and manners and customs the in- stitutions of a nation in general. Hence it follows that when these manners and customs are to be changed, it ought not to be done by laws ; this would have too much the air of tyranny : it would be better to change them by introducing other man- ners and other customs.

Thus when a prince would make great alterations in his kingdom, he should reform by law what is established by law,

Du Halde.


THE SPIRIT OF LAWS 299

and change by custom what is settled by custom ; for it is very bad policy to change by law what ought to be changed by cus- tom.

The law which obliged the Muscovites to cut off their beards and to shorten their clothes, and the rigor with which Peter I made them crop, even to their knees, the long cloaks of those who entered into the cities, were instances of tyranny. There are means that may be made use of to prevent crimes; these are punishments : there are those for changing our customs ; these are examples.

The facility and ease with which that nation has been pol- ished plainly show that this prince had a worse opinion of his people than they deserved ; and that they were not brutes, though he was pleased to call them so. The violent measures which he employed were needless ; he would have attained his end as well by milder methods.

He himself experienced the facility of bringing about these alterations. The women were shut up, and in some measure slaves ; he called them to court ; he sent them silks and fine stuffs, and made them dress like the German ladies. This sex immediately relished a manner of life which so greatly flattered their taste, their vanity, and their passions ; and by their means it was relished by the men.

What rendered the change the more easy was that their man- ners at that time were foreign to the climate, and had been in- troduced amongst them by conquest and by a mixture of na- tions. Peter I, in giving the manners and customs of Europe to a European nation, found a facility which he did not himself expect. The empire of the climate is the first, the most power- ful, of all empires. He had then no occasion for laws to change the manners and customs of his country ; it would have been sufficient to have introduced other manners and other customs.

Nations are in general very tenacious of their customs; to take them away by violence is to render them unhappy: we should not therefore change them, but engage the people to make the change themselves.

All punishment which is not derived from necessity is tyran- nical. The law is not a mere act of power ; things in their own nature indifferent are not within its province.


300 MONTESQUIEU

15. — The Influence of domestic Government on the political

This alteration in the manners of women will doubtless have a great influence on the government of Muscovy. One natu- rally follows the other : the despotic power of the prince is con- nected with the servitude of women ; the liberty of women with the spirit of monarchy.

16. — How some Legislators have confounded the Principles which govern Mankind

Manners and customs are those habits which are not estab- lished by legislators, either because they were not able or were not willing to establish them.

There is this difference between laws and manners, that the laws are most adapted to regulate the actions of the subject, and manners to regulate the actions of the man. There is this difference between manners and customs, that the former prin- cipally relate to the interior conduct, the latter to the exterior.

These things have been sometimes confounded.^ Lycurgus made the same code for the laws, manners, and customs, and the legislators of China have done the same.

We ought not to be surprised that the legislators of China and Sparta should confound the laws, manners, and customs ; the reason is, their manners represent their laws, and their cus- toms their manners.

The principal object which the legislators of China had in view was to make their subjects live in peace and tranquillity. They would have people filled with a veneration for one an- other, that each should be every moment sensible of his de- pendence on society, and of the obligations he owed to his fel- low-citizens. They therefore gave rules of the most extensive civility.

Thus the inhabitants of the villages of Chinas practise amongst themselves the same ceremonies as those observed by persons of an exalted station; a very proper method of inspiring mild and gentle dispositions, of maintaining peace and good order, and of banishing all the vices which spring from an asperity of temper. In effect, would not the freeing

P Moses made the same code for laws founded the ancient customs with the and religion. The old Romans con- laws.

g See Du Halde.


THE SPIRIT OF LAWS


them from the rules of civiHty be to search out a method for them to indulge their own humors ?

Civility is in this respect of more value than poUteness. Po- liteness flatters the vices of others, and civility prevents ours from being brought to light. It is a barrier which men have placed within themselves to prevent the corruption of each other.

Lycurgus, whose institutions were severe, had no regard to civility in forming the external behavior, he had a view to that warHke spirit with which he would fain inspire his people. A people who were in a continual state of discipline and instruc- tion, and who were endued with equal simplicity and rigor, atoned by their virtues for their want of complaisance.

17. — Of the peculiar Quality of the Chinese Government

The legislators of China went further.^ They confounded their religion, laws, manners, and customs; all these were morality, all these were virtue. The precepts relating to these four points were what they called rites ; and it was in the exact observance of these that the Chinese Government triumphed. They spent their whole youth in learning them, their whole life in the practice. They were taught by their men of letters, and were inculcated by the magistrates; and as they included all the ordinary actions of Hfe, when they found the means of making them strictly observed, China was well governed.

Two things have contributed to the ease with which these rites are engraved on the hearts and minds of the Chinese; one, the difficulty of writing, which, during the greatest part of their lives, wholly employs their attention,-^ because it is nec- essary to prepare them to read and understand the books in which they are comprised; the other, that the ritual precepts having nothing in them that is spiritual, but being merely rules of common practice, are more adapted to convince and strike the mind than things merely intellectual.

Those princes who, instead of ruling by these rites, governed by the force of punishments, wanted to accomplish that by punishments which it is not in their power to produce, that is,

r See the classic books from which s It is this which has established

Father Du Halde gives us some excel- emulation, which has banished laziness, lent extracts. and cultivated a love of learning.


302 MONTESQUIEU

to give habits of morality. By punishments, a subject is very justly cut off from society, v^^ho, having lost the purity of his manners, violates the law^s; but if all the world were to lose their moral habits, would these re-establish them? Punish- ments may be justly inflicted to put a stop to many of the con- sequences of the general evil, but they will not remove the evil itself. Thus when the principles of the Chinese government were discarded, and morality was banished, the state fell into anarchy, and revolutions succeeded.

i8. — A Consequence drawn from the preceding Chapter

Hence it follows that the laws of China are not destroyed by conquest. Their customs, manners, laws, and religion be- ing the same thing, they cannot change all these at once ; and as it will happen that either the conqueror or the conquered must change, in China it has always been the conqueror. For the manners of the conquering nation not being their customs, nor their customs their laws, nor their laws their religion, it has been more easy for them to conform by degrees to the van- quished people than the latter to them.

There still follows hence a very unhappy consequence, which is, that it is almost impossible for Christianity ever to be es- tablished in China.o The vows of virginity, the assembling of women in churches, their necessary communication with the ministers of religion, their participation in the sacraments, au- ricular confession, extreme unction, the marriage of only one wife — all these overturn the manners and customs of the coun- try, and with the same blow strike at their religion and laws.

The Christian religion, by the establishment of charity, by a public worship, by a participation of the same sacraments, seems to demand that all should be united ; while the rites of China seem to ordain that all should be separated.

And as we have seen that this separation h depends, in gen- eral, on the spirit of despotism, this will show us the reason why monarchies, and indeed all moderate governments, are more consistent with the Christian religion.^

a See the reasons given by the Chi- h See book IV. chap, iii., and book

nese magistrates in their decrees for XIX. chap. xii.

proscribing the Christian religion. c See book XXIV. chap. iii.

  • ' Edifying Letters," 17th collect.


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303


19. — How this Union of Religion, Laws, Manners, and Customs amongst the Chinese was effected

The principal object of government which the Chinese legis- lators had in view was the peace and tranquillity of the em- pire ; and subordination appeared to them as the most proper means to maintain it. Filled with this idea, they believed it their duty to inspire a respect for parents, and therefore exerted all their power to effect it. They established an infinite num- ber of rites and ceremonies to do them honor when living, and after their death. It was impossible for them to pay such honors to deceased parents without being led to reverence the living. The ceremonies at the death of a father were more nearly related to religion; those for a living parent had a greater relation to the laws, manners, and customs : however, these were only parts of the same code ; but this code was very extensive.

A veneration for their parents was necessarily connected with a suitable respect for all who represented them; such as old men, masters, magistrates, and the sovereign. This respect for parents supposed a return of love towards children, and consequently the same return from old men to the young, from magistrates to those who were under their jurisdiction, and from the emperor to his subjects. This formed the rites, and these rites the general spirit of the nation.

We shall now show the relation which things in appearance the most indifferent may bear to the fundamental constitution of China. This empire is formed on the plan of a government of a family. If you diminish the paternal authority, or even if you retrench the ceremonies which express your respect for it, you weaken the reverence due to magistrates, who are con- sidered as fathers; nor would the magistrates have the same care of the people, whom they ought to look upon as their chil- dren; and that tender relation which subsists between the prince and his subjects would insensibly be lost. Retrench but one of these habits and you overturn the state. It is a thing in itself very indifferent whether the daughter-in-law rises every morning to pay such and such duties to her mother-in-law; but if we consider that these exterior habits incessantly revive an idea necessary to be imprinted on all minds — an idea that


304 MONTESQUIEU

forms the ruling spirit of the empire — we shall see that it is necessary that such or such a particular action be performed.

20. — Explanation of a Paradox relating to the Chinese

It is very remarkable that the Chinese, whose lives are guided by rites, are nevertheless the greatest cheats upon earth. This appears chiefly in their trade, which, in spite of its natural tendency, has never been able to make them honest. He who buys of them ought to carry with him his own weights ; d every merchant having three sorts, the one heavy for buying, an- other light for selling, and another of the true standard for those who are upon their guard. It is possible, I believe, to explain this contradiction.

The legislators of China had two objects in view : they were desirous that the people should be submissive and peaceful, and that they should also be laborious and industrious. By the nature of the soil and climate, their subsistence is very precari- ous ; nor can it be in any other way secured than by industry and labor.

When everyone obeys, and everyone is employed, the state is in a happy situation. It is necessity, and perhaps the nature of the climate, that have given to the Chinese an inconceivable greediness for gain, and laws have never been made to restrain it. Everything has been forbidden when acquired by acts of violence; everything permitted when obtained by artifice or labor. Let us not then compare the morals of China with those of Europe. Everyone in China is obliged to be attentive to what will be for his advantage ; if the cheat has been watchful over his own interest, he who is the dupe ought to be atten- tive to his. At Sparta they were permitted to steal ; in China they are suffered to deceive.

21. — How the Laws ought to have a Relation to Manners and

Customs

It is only singular institutions which thus confound laws, manners, and customs — ^things naturally distinct and separate ; but though they are in themselves different, there is neverthe- less a great relation between them.

d Lange's Journal in 1721 and 1722, in " Voyages to the North," vol. viii. p. 363.


THE SPIRIT OF LAWS- 305

Solon being asked if the laws he had given to the Athenians were the best, he repHed, " I have given them the best they were able to bear " e — a fine expression that ought to be per- fectly understood by all legislators! When Divine Wisdom said to the Jews, " I have given you precepts which are not good," this signified that they had only a relative goodness; which is the sponge that wipes out all the difficulties in the law of Moses.

22. — The same Subject continued

When a people have pure and regular manners, their laws become simple and natural. Plato f says that Rhadamanthus, who governed a nation extremely religious, finished every process with extraordinary despatch, administering only the oath on each accusation. " But," says the same Plato,s: " when a people are not religious we should never have recourse to an oath, except he who swears is entirely disinterested, as in the case of a judge and a witness."

23. — How the Laws are founded on the Manners of a People

At the time when the manners of the Romans were pure, they had no particular law against the embezzlement of the public money. When this crime began to appear, it was thought so infamous, that to be condemned to restore h what they had taken was considered as a sufficient disgrace: for a proof of this, see the sentence of L. Scipio.« 

24. — The same Subject continued

The laws which gave the right of tutelage to the mother were most attentive to the preservation of the infant's person ; those which granted it to the next heir were most attentive to the preservation of the state. When the manners of a people are corrupted, it is much better to give the tutelage to the mother. Amongst those whose laws confide in the manners of the sub- jects, the guardianship is granted either to the next heir or to the mother, and sometimes to both.

If we reflect on the Roman laws, we shall find that the spirit of these was conformable to what I have advanced. At the

e Plutarch, " Life of Solon." 9. /? Tbid. XII.

/"Of Laws," lib. XII. /i " In simplum."

JLivy, lib. XXXVIII.

Vol. I. — 20


3o6 MONTESQUIEU

time when the laws of the Twelve Tables were made, the man- ners of the Romans were most admirable. The guardianship was given to the nearest relative of the infant, from a con- sideration that he ought to have the trouble of the tutelage who might enjoy the advantage of possessing the inheritance. They did not imagine the life of the heir in danger though it was put into a person's hands who would reap a benefit by his death. But when the manners of Rome were changed, her legislators altered their conduct. " If, in the pupillary substitution," say Gains ; and Justinian,^ " the testator is afraid that the substi- tute will lay any snares for the pupil, he may leave the vulgar substitution open,/ and put the pupillary into a part of the testament, which cannot be opened till after a certain time." These fears and precautions were unknown to the primitive Romans.

25. — The same Subject continued

The Roman law gave the liberty of making presents before marriage; after the marriage they were not allowed. This was founded on the manners of the Romans, who were led to marriage only by frugality, simplicity, and modesty; but might suffer themselves to be seduced by domestic cares, by complacency, and the constant tenor of conjugal felicity.

A law of the Visigoths wi forbade the man giving more to the woman he was to marry than the tenth part of his substance, and his giving her anything during the first year of their mar- riage. This also took its rise from the manners of the country. The legislators were willing to put a stop to that Spanish os- tentation which only led them to display an excessive liberality in acts of magnificence.

The Romans by their laws put a stop to some of the incon- veniences which arose from the most durable empire in the world — that of virtue ; the Spaniards, by theirs, would prevent the bad effects of a tyranny the most frail and transitory — that of beauty.

y " Institut." lib. tit. 2, 6, sec. 2. to take the inheritance, I substitute in

Ozel's compilation at Leyden, in 1658. his stead," etc., the pupillary substitu-

k " Institut." lib. II., " de pupil, sub- tion, " If such a one dies before he ar-

stit." sec. 3. rives at the age of puberty, I substi-

/The form of the vulgar substitution tute," etc.

ran thus: "If such a one is unwilling w Lib. III. tit. 5, sec. 5.


THE SPIRIT OF LAWS 307

26. — The same Subject continued

The law of Theodosius and Valentinian n drew the causes of repudiation from the ancient manners and customs of the Ro- mans.o It placed in the number of these causes the behavior of the husband who beat his wife /> in a manner that disgraced the character of a free-born woman. This cause was omitted in the following laws : q for their manners, in this respect, had undergone a change, the Eastern customs having banished those of Europe. The first eunuch of the empress, wife to Jus- tinian II, threatened her, says the historian, to chastise her in the same manner as children are punished at school. Nothing but established manners, or those which they were seeking to establish, could raise even an idea of this kind.

We have seen how the laws follow the manners of a people ; let us now observe how the manners follow the laws.

2y. — How the Laws contribute to form the Manners, Customs, and Character of a Nation

The customs of an enslaved people are a part of their servi- tude, those of a free people are a part of their liberty.

I have spoken in the eleventh book ^ of a free people, and have given the principles of their constitution: let us now see the effects which follow from this liberty, the character it is capable of forming, and the customs which naturally result from it.

I do not deny that the climate may have produced a great part of the laws, manners, and customs of this nation ; but I maintain that its manners and customs have a close connec- tion with its laws.

As there are in this state two visible powers — the legislative and executive — and as every citizen has a will of his own, and may at pleasure assert his independence, most men have a greater fondness for one of these powers than for the other, and the multitude have commonly neither equity nor sense enough to show an equal affection to both.

And as the executive power, by disposing of all employ-

n Leg. 8 cod. " de Repudiis." p " Si verberibus quae ingenuis aliena

And the law of the Twelve Tables. sunt, aflficientem probaverit." See Cicero's 2d " Philippic." q In Nov. 117, cap. xiv.

r Chap. vi.


3o8 MONTESQUIEU

ments, may give great hopes, and no fears, every man who obtains any favor from it is ready to espouse its cause ; while it is liable to be attacked by those who have nothing to hope from it.

All the passions being unrestrained, hatred, envy, jealousy, and an ambitious desire of riches and honors, appear in their extent ; were it otherwise, the state would be in the condition of a man weakened by sickness, who is without passions be- cause he is without strength.

The hatred which arises between the two parties will always subsist, because it will always be impotent.

These parties being composed of freemen, if the one becomes too powerful for the other, as a consequence of liberty this other is depressed ; while the citizens take the weaker side, with the sam.e readiness as the hands lend their assistance to remove the infirmities and disorders of the body.

Every individual is independent, and being commonly led by caprice and humor, frequently changes parties ; he aban- dons one where he left all his friends, to unite himself to an- other in which he finds all his enemies : so that in this nation it frequently happens that the people forget the laws of friend- ship, as well as those of hatred.

The sovereign is here in the same case with a private per- son; and against the ordinary maxims of prudence is fre- quently obliged to give his confidence to those who have most offended him, and to disgrace the men who have best served him: he does that by necessity which other princes do by choice.

As we are afraid of being deprived of the blessing we already enjoy, and which may be disguised and misrepresented to us ; and as fear always enlarges objects, the people are uneasy under such a situation, and believe themselves in danger, even in those moments when they are most secure.

As those who with the greatest warmth oppose the executive power dare not avow the self-interested motives of their op- position, so much the more do they increase the terrors of the people, who can never be certain whether they are in danger or not. But even this contributes to make them avoid the real dangers, to which they may, in the end, be exposed.

But the legislative body having the confidence of the people,


THE SPIRIT OF LAWS 309

and being more enlightened than they, may calm their un- easiness, and make them recover from the bad impressions they have entertained.

This is the great advantage which this government has over the ancient democracies, in which the people had an immedi- ate power; for when they were moved and agitated by the orators, these agitations always produced their effect.

But when an impression of terror has no certain object, it produces only clamor and abuse ; it has, however, this good effect, that it puts all the springs of government into motion, and fixes the attention of every citizen. But if it arises from a violation of the fundamental laws, it is sullen, cruel, and pro- duces the most dreadful catastrophes.

Soon we should see a frightful calm, during which everyone would unite against that power which had violated the laws.

If, when the uneasiness proceeds from no certain object, some foreign power should threaten the state, or put its pros- perity or its glory in danger, the little interests of party would then yield to the more strong and binding, and there would be a perfect coalition in favor of the executive power.

But if the disputes were occasioned by a violation of the fundamental laws, and a foreign power should appear, there would be a revolution that would neither alter the constitution nor the form of government. For a revolution formed by lib- erty becomes a confirmation of liberty.

A free nation may have a deliverer: a nation enslaved can have only another oppressor.

For whoever is able to dethrone an absolute prince has a power sufficient to become absolute himself.

As the enjoyment of liberty, and even its support and pres- ervation consist in every man's being allowed to speak his thoughts, and to lay open his sentiments, a citizen in this state will say or write whatever the laws do not expressly forbid to be said or written.

A people like this, being always in a ferment, are more easily conducted by their passions than by reason, which never produces any great effect in the mind of man ; it is therefore easy for those who govern to make them undertake enterprises contrary to their true interest.

This nation is passionately fond of liberty, because this lib-


3IO MONTESQUIEU

erty is real ; and it is possible for it, in its defence, to sacrifice its wealth, its ease, its interest, and to support the burden of the heaviest taxes, even such as a despotic prince durst not lay upon his subjects.

But as the people have a certain knowledge of the necessity of submitting to those taxes, they pay them from the well- founded hope of their discontinuance ; their burdens are heavy, but they do not feel their weight : while in other states the un- easiness is infinitely greater than the evil.

This nation must therefore have a fixed and certain credit, because it borrows of itself and pays itself. It is possible for it to undertake things above its natural strength, and employ against its enemies immense sums of fictitious riches, which the credit and nature of the government may render real.

To preserve its liberty, it borrows of its subjects: and the subjects, seeing that its credit would be lost if ever it were conquered, have a new motive to make fresh efforts in defence of its liberty.

This nation, inhabiting an island, is not fond of conquering, because it would be weakened by distant conquests — especially as the soil of the island is good, for it has then no need of en- riching itself by war: and as no citizen is subject to another, each sets a greater value on his own liberty than on the glory of one or any number of citizens.

Military men are there regarded as belonging to a profession which may be useful but is often dangerous, and as men whose very services are burdensome to the nation : civil qualifications are therefore more esteemed than the military.

This nation, which liberty and the laws render easy, on be- ing freed from pernicious prejudices, has become a trading people ; and as it has some of those primitive materials of trade out of which are manufactured such things as from the artist's hand receive a considerable value, it has made settlements proper to procure the enjoyment of this gift of heaven in its fullest extent.

As this nation is situated towards the north, and has many superfluous commodities, it must want also a great number of merchandise which its climate will not produce : it has there- fore entered into a great and necessary intercourse with the southern nations ; and making choice of those states whom it


THE SPIRIT OF LAWS


3"


is willing to favor with an advantageous commerce, it enters into such treaties with the nation it has chosen as are recipro- cally useful to both.

In a state where, on the one hand, the opulence is extreme, and on the other the taxes are excessive, they are hardly able to live on a small fortune without industry. Many, therefore, under a pretence of travelling, or of health, retire from amongst them, and go in search of plenty, even to the coun- tries of slavery.

A trading nation has a prodigious number of little particular interests ; it may then injure or be injured in an infinite num- ber of ways. Thus it becomes immoderately jealous, and is more afflicted, at the prosperity of others than it rejoices at its own.

And its laws, otherwise mild and easy, may be so rigid with respect to the trade and navigation carried on with it, that it may seem to trade only with enemies.

If this nation sends colonies abroad, it must rather be to ex- tend its commerce than its dominion.

As men are fond of introducing into other places what they have established amongst themselves, they have given the peo- ple of the colonies their own form of government; and this government carrying prosperity along with it, they have raised great nations in the forests they were sent to inhabit.

Having formerly subdued a neighboring nation, which by its situation, the goodness of its ports, and the nature of its products, inspires it with jealousy, though it has given this nation its own laws, yet it holds it in great dependence: the subjects there are free and the state itself in slavery.

The conquered state has an excellent civil government, but is oppressed by the law of nations. Laws are imposed by one country on the other, and these are such as render its pros- perity precarious, and dependent on the will of a master.

The ruling nation inhabiting a large island, and being in possession of a great trade, has with extraordinary ease grown powerful at sea : and as the preservation of its liberties requires that it should have neither strongholds nor fortresses nor land forces, it has occasion for a formidable navy to defend it against invasions ; a navy which must be superior to that of all other


312 MONTESQUIEU

powers, who, employing their treasures in wars on land, have not sufficient for those at sea.

The empire of the sea has always given those who have en- joyed it a natural pride ; because, thinking themselves capable of extending their insults wherever they please, they imagine that their power is as boundless as the ocean.

This nation has a great influence in the affairs of its neigh- bors ; for as its power is not employed in conquests, its friend- ship it more courted, and its resentment more dreaded, than could naturally be expected from the inconstancy of its govern- ment, and its domestic divisions.

Thus it is the fate of the executive power to be almost always disturbed at home and respected abroad.

Should this nation on some occasions become the centre of the negotiations of Europe, probity and good faith would be carried to a greater height than in other places ; because the ministers being frequently obliged to justify their conduct be- fore a popular council, their negotiations could not be secret ; and they would be forced to be, in this respect, a little more honest.

Besides, as they would in some sort be answerable for the events which an irregular conduct might produce, the surest, the safest way for them would be to take the straightest path.

If the nobles were formerly possessed of an immoderate power, and the monarch had found the means of abasing them by raising the people, the point of extreme servitude must have been that between humbling the nobility and that in which the people began to feel their power.

Thus this nation, having been formerly subject to an arbi- trary power, on many occasions preserves the style of it, in such a manner as to let us frequently see upon the foundation of a free government the form of an absolute monarchy.

With regard to religion, as in this state every subject has a free will, and must consequently be either conducted by the light of his own mind or by the caprice of fancy, it necessarily follows that everyone must either look upon all religion with indifference, by which means they are led to embrace the es- tablished religion, or they must be zealous for religion in gen- eral, by which means the number of sects is increased.

It is not impossible but that in this nation there may be men


i THE SPIRIT OF LAWS 313

of no religion, who would not, however, bear to be obliged to change that which they would choose, if they cared to choose any; for they would immediately perceive that their lives and fortunes are not more peculiarly theirs than their manner of thinking, and that whoever would deprive them of the one might even with better reason take away the other.

If, amongst the different religions, there is one that has been attempted to be established by methods of slavery, it must there be odious ; because as we judge of things by the appendages we join with them, it could never present itself to the mind in conjunction with the idea of liberty.

The laws against those who profess this religion could not, however, be of the sanguinary kind ; for liberty can never in- flict such punishments ; but they may be so rigorous as to do all the mischief that can be done in cold blood.

It is possible that a thousand circumstances might concur to give the clergy so little credit, that other citizens may have more. Therefore, instead of a separation, they have chosen rather to support the same burdens as the laity, and in this respect to make only one body with them; but as they always seek to conciliate the respect of the people, they distinguish themselves by a more retired life, a conduct more reserved, and a greater purity of manners.

The clergy not being able to protect religion, nor to be pro- tected by it, only seek to persuade ; their pens therefore furnish us with excellent works in proof of a revelation and of the providence of the Supreme Being.

Yet the state prevents the sitting of their assembhes, and does not suffer them to correct their own abuses ; it chooses thus, through a caprice of liberty, rather to leave their reforma- tion imperfect than to suffer the clergy to be the reformers.

Those dignities which make a fundamental part of the con- stitution are more fixed than elsewhere; but, on the other hand, the great in this country of liberty are nearer upon a level with the people; their ranks are more separated, and their persons more confounded.

As those who govern have a power which, in some measure, has need of fresh vigor every day, they have a greater regard for such as are useful to them than for those who only con- tribute to their amusement: we see, therefore, fewer courtiers.


314 MONTESQUIEU

flatterers, and parasites; in short, fewer of all those who make their own advantage of the folly of the great.

Men are less esteemed for frivolous talents and attainments than for essential qualities ; and of this kind there are but two, riches and personal merit.

They enjoy a solid luxury, founded, not on the refinements of vanity, but on that of real wants ; they ask nothing of nature but what nature can bestow.

The rich enjoy a great superfluity of fortune, and yet have no relish for frivolous amusements ; thus, many having more wealth than opportunities of expense, employ it in a fantastic manner : in this nation they have more judgment than taste.

As they are always employed about their own interest, they have not that politeness which is founded on indolence; and they really have not leisure to attain it.

The era of Roman politeness is the same as that of the es- tablishment of arbitrary power. An absolute government produces indolence, and this gives birth to politeness.

The more people there are in a nation who require circum- spect behavior, and care not to displease, the more there is of politeness. But it is rather the politeness of morals than that of manners which ought to distinguish us from barbarous na- tions.

In a country where every man has, in some sort, a share in the administration of the government, the women ought scarcely to live with the men. They are therefore modest, that is, timid; and this timidity constitutes their virtue: whilst the men without a taste for gallantry plunge themselves into a de- bauchery, which leaves them at leisure, and in the enjoyment of their full liberty.

Their laws not being made for one individual more than an- other, each considers himself a monarch ; and, indeed, the men of this nation are rather confederates than fellow-subjects.

As the climate has given many persons a restless spirit and extended views, in a country where the constitution gives every man a share in its government and political interests, conversation generally turns upon politics: and we see men spend their lives in the calculation of events which, considering the nature of things and caprices of fortune, or rather of men, can scarcely be thought subject to the rules of calculation.


THE SPIRIT OF LAWS 315

In a free nation it is very often a matter of indifference whether individuals reason well or ill ; it is sufficient that they do reason : hence springs that liberty which is a security from the effects of these reasonings.

But in a despotic government, it is equally pernicious whether they reason well or ill ; their reasoning is alone suf- ficient to shock the principle of that government.

Many people who have no desire of pleasing abandon them- selves to their own particular humor ; and most of those who have wit and ingenuity are ingenious in tormenting themselves : filled with contempt or disgust for all things, they are unhappy amidst all the blessings that can possibly contribute to promote their felicity.

As no subject fears another, the whole nation is proud : for the pride of kings is founded only on their independence.

Free nations are haughty; others may more properly be called vain.

But as these men who are naturally so proud live much by themselves, they are commonly bashful when they appear among strangers; and we frequently see them behave for a considerable time with an odd mixture of pride and ill-placed shame.

The character of the nation is more particularly discovered in their literary performances, in which we find the men of thought and deep meditation.

As society gives us a sense of the ridicule of mankind, retire- ment renders us more fit to reflect on the folly of vice. Their satirical writings are sharp and severe, and we find amongst them many Juvenals, without discovering one Horace.

In monarchies extremely absolute, historians betray the truth, because they are not at liberty to speak it ; in states re- markably free, they betray the truth, because of their liberty itself; which always produces divisions, everyone becoming as great a slave to the prejudices of his faction as he could be in a despotic state.

Their poets have more frequently an original rudeness of in- vention than that particular kind of delicacy which springs from taste ; we there find something which approaches nearer to the bold strength of a Michael Angelo than to the softer graces of a Raphael.


BOOK XX

OF LAWS IN RELATION TO COMMERCE CON- SIDERED IN ITS NATURE AND DISTINCTIONS

I. — Of Commerce

THE following subjects deserve to be treated in a more extensive manner than the nature of this work will permit.^ Fain would I glide down a gentle river, but I am carried away by a torrent.

Commerce is a cure for the most destructive prejudices ; for it is almost a general rule, that wherever we find agreeable manners, there commerce flourishes ; and that wherever there is commerce, there we meet with agreeable manners.

Let us not be astonished, then, if our manners are now less savage than formerly. Commerce has everywhere diffused a knowledge of the manners of all nations : these are compared one with another, and from this comparison arise the greatest advantages.

Commercial laws, it may be said, improve manners for the same reason that they destroy them. They corrupt the purest morals.^ This was the subject of Plato's complaints ; and we every day see that they polish and refine the most barbarous.

2. — Of the Spirit of Commerce

Peace is the natural effect of trade. Two nations who traffic with each other become reciprocally dependent ; for if one has an interest in buying, the other has an interest in selling ; and thus their union is founded on their mutual necessities.

But if the spirit of commerce unites nations, it does not in

a This book was the beginning of the were spoiled by the neighborhood and

second part of " The Spirit of Laws " commerce of Marseilles ; insomuch that

in all the editions published during the they who formerly always conquered

life of the author. — Ed. the Germans had now become inferior

b Caesar said of the Gauls that they to them. — " War of the Gauls," lib. VI.

316


THE SPIRIT OF LAWS 317

the same manner unite individuals. We see that in countries c where the people move only by the spirit of commerce, they make a traffic of all the humane, all the moral virtues ; the most trifling things, those which humanity would demand, are there done, or there given, only for money.

The spirit of trade produces in the mind of a man a certain sense of exact justice, opposite, on the one hand, to robbery, and on the other to those moral virtues which forbid our always adhering rigidly to the rules of private interest, and suffer us to neglect this for the advantage of others.

The total privation of trade, on the contrary, produces rob- bery, which Aristotle ranks in the number of means of acquir- ing ; yet it is not at all inconsistent with certain moral virtues. Hospitality, for instance, is most rare in trading countries, while it is found in the most admirable perfection among na- tions of vagabonds.

It is a sacrilege, says Tacitus, for a German to shut his door against any man whomsoever, whether known or unknown. He who has behaved with hospitality to a stranger goes to show him another house where this hospitality is also prac- tised ; and he is there received with the same humanity.^ But when the Germans had founded kingdoms, hospitality had be- come burdensome. This appears by two laws of the code of the Burgundians ; ^ one of which inflicted a penalty on every barbarian who presumed to show a stranger the house of a Roman ; and the other decreed, that whoever received a stranger should be indemnified by the inhabitants, every one being obliged to pay his proper proportion.

3. — Of the Poverty of the People

There are two sorts of poor ; those who are rendered such by the severity of government: these are, indeed, incapable of performing almost any great action, because their indigence is a consequence of their slavery. Others are poor, only be- cause they either despise or know not the conveniences of life ; and these are capable of accomplishing great things, because their poverty constitutes a part of their liberty.

c Holland. manorum." Vide Caesar, " de Bello

d " Et qui modo hospes fuerat, mon- Gall." lib. VI. strator hospitii." — " De Moribus Ger- e Tit. 38.


3i8 MONTESQUIEU

4. — Of Commerce in different Governments

Trade has some relation to forms of government. In a mon- archy, it is generally founded on luxury; and though it be also founded on real wants, yet the principal view with which it is carried on is to procure everything that can contribute to the pride, the pleasure, and the capricious whims of the na- tion. In republics, it is commonly founded on economy. Their merchants, having an eye to all the nations of the earth, bring from one what is wanted by another. It is thus that the re- publics of Tyre, Carthage, Athens, Marseilles, Florence, Venice, and Holland engaged in commerce.

This kind of traffic has a natural relation to a republican government: to monarchies it is only occasional. For as it is founded on the practice of gaining little, and even less than other nations, and of remedying this by gaining incessantly, it can hardly be carried on by a people swallowed up in luxury, who spend much, and see nothing but objects of grandeur.

Cicero was of this opinion, when he so justly said, " that he did not Hke that the same people should be at once both the lords and factors of the whole earth. 'V For this would, indeed, be to suppose that every individual in the state, and the whole state collectively, had their heads constantly filled with grand views, and at the same time with small ones ; which is a con- tradiction.

Not but that the most noble enterprises are completed also in those states which subsist by economical commerce: they have even an intrepidity not to be found in monarchies. And the reason is this :

One branch of commerce leads to another, the small to the moderate, the moderate to the great ; thus he who has gratified his desire of gaining a little raises himself to a situation in which he is not less desirous of gaining a great deal.

Besides, the grand enterprises of merchants are always neces- sarily connected with the aflfairs of the public. But, in mon- archies, these public afifairs give as much distrust to the mer- chants as in free states they appear to give safety. Great en- terprises, therefore, in commerce are not for monarchical, but for republican, governments.

/ " Nolo eundem populum imperatorem et portitorem esse terrarum."


THE SPIRIT OF LAWS 319

In short, an opinion of greater certainty, as to the possession of property in these states, makes them undertake everything. They flatter themselves with the hopes of receiving great ad- vantages from the smiles of fortune ; and thinking themselves sure of what they have already acquired, they boldly expose it in order to acquire more ; risking nothing, but as the means of obtaining.

I do not pretend to say that any monarchy is entirely ex- cluded from an economical commerce ; but of its own nature it has less tendency towards it : neither do I mean that the re- publics with which we are acquainted are absolutely deprived of the commerce of luxury ; but it is less connected with their constitution.

With regard to a despotic state, there is no occasion to men- tion it. A general rule: A nation in slavery labors more to preserve than to acquire ; a free nation, more to acquire than to preserve.

5. — Of Nations that have entered into an economical Commerce

Marseilles, a necessary retreat in the midst of a tempestuous sea ; Marseilles, a harbor which all the winds, the shelves of the sea, the disposition of the coasts, point out for a landing-place, became frequented by mariners ; while the sterility of the ad- jacent country determined the citizens to an economical com- merce.^ It was necessary that they should be laborious to supply what nature had refused ; that they should be just, in order to live among barbarous nations, from whom they were to derive their prosperity; that they should be moderate, to the end that they might always taste the sweets of a tranquil government ; in fine, that they should be frugal in their man- ners, to enable them to subsist by trade — a trade the more cer- tain as it was less advantageous.

We everywhere see violence and oppression give birth to a commerce founded on economy, while men are constrained to take refuge in marshes, in isles, in the shallows of the sea, and even on rocks themselves. Thus it was that Tyre, Venice, and the cities of Holland were founded. Fugitives found there a place of safety. It was necessary that they should subsist ; they drew, therefore, their subsistence from all parts of the world.

g Justin, lib. XLIII. cap. iii.


320 MONTESQUIEU

6. — Some Effects of an extensive Navigation

It sometimes happens that a nation, when engaged in an economical commerce, having need of the merchandise of one country, which serves as a capital or stock for procuring the commodities of another, is satisfied with making very little profit, and frequently none at all, in trading with the former, in expectation of gaining greatly by the latter. Thus, when the Dutch were almost the only nation that carried on the trade from the south to the north of Europe, the French wines which they imported to the north were in some measure only a cap- ital or stock for conducting their commerce in that part of the world.

It is a known fact that there are some kinds of merchandise in Holland which, though imported from afar, sell for very Httle more than they cost upon the spot. They account for it thus : a captain who has occasion to ballast his ship will load it with marble; if he wants wood for stowage, he will buy it; and, provided he loses nothing by the bargain, he will think himself a gainer. Thus it is that Holland has its quarries and its forests.

Further, it may happen so that not only a commerce which brings in nothing shall be useful, but even a losing trade shall be beneficial. I have heard it affirmed in Holland that the whale fishery in general does not answer the expense ; but it must be observed that the persons employed in building the ships, as also those who furnish the rigging and provisions, are jointly concerned in the fishery. Should they happen to lose in the voyage, they have had a profit in fitting out the vessel. This commerce, in short, is a kind of lottery, and every one is allured with the hopes of a prize. Mankind are generally fond of gaming ; and even the most prudent have no aversion to it, when the disagreeable circumstances attending it, such as dis- sipation, anxiety, passion, loss of time, and even of Hfe and for- tune, are concealed from their view.

7. — The Spirit of England zvith respect to Commerce

The tariff or customs of England are very unsettled with respect to other nations ; they are changed, in some measure, with every parliament, either by taking off particular duties, or


THE SPIRIT OF LAWS 321

by imposing new ones. They endeavor by these means still to preserve their independence. Supremely jealous with re- spect to trade, they bind themselves but little by treaties, and depend only on their own laws.

Other nations have made the interests of commerce yield to those of politics ; the English, on the contrary, have ever made their political interests give way to those of commerce.

They know better than any other people upon earth how to value, at the same time, these three great advantages — religion, commerce, and liberty.

8. — In what Manner economical Commerce has been sometimes

restrained

In several kingdoms laws have been made extremely proper to humble the states that have entered into economical com- merce. They have forbidden their importing any merchandise, except the product of their respective countries; and have permitted them to traffic only in vessels built in the kingdom to which they brought their commodities.

It is necessary that the kingdom which imposes these laws should itself be able easily to engage in commerce ; otherwise it will, at least, be an equal sufiferer. It is much more ad- vantageous to trade with a commercial nation, whose profits are moderate, and who are rendered in some sort dependent by the affairs of commerce ; with a nation whose larger views and whose extended trade enable them to dispose of their super- fluous merchandise ; with a wealthy nation, who can take ofif many of their commodities, and make them a quicker return in specie ; with a nation under a kind of necessity to be faithful, pacific from principle, and that seeks to gain, and not to con- quer : it is much better, I say, to trade with such a nation than with others, their constant rivals, who will never grant such great advantages.

9. — Of the Prohibition of Commerce

It is a true maxim that one nation should never exclude an- other from trading with it, except for very great reasons. The Japanese trade only with two nations, the Chinese and the Dutch. The Chinese/^ gain a thousand per cent, upon sugars,

h Du Halde, vol. ii, p. 170. Vol. I.— 21


322 MONTESQUIEU

and sometimes as much by the goods they take in exchange. The Dutch make nearly the same profits. Every nation that acts upon Japanese principles must necessarily be deceived; for it is competition which sets a just value on merchandise, and establishes the relation between them.

Much less ought a state to lay itself under an obligation of selling its manufactures only to a single nation, under a pre- tence of their taking all at a certain price. The Poles, in this manner, dispose of their corn to the city of Dantzig ; and sev- eral Indian princes have made a like contract for their spices with the Dutch.i These agreements are proper only for a poor nation, whose inhabitants are satisfied to forego the hopes of enriching themselves, provided they can be secure of a cer- tain subsistence ; or for nations whose slavery consists either in renouncing the use of those things which nature has given them, or in being obliged to submit to a disadvantageous com- merce.

10. — An Institution adapted to economical Commerce

In states that carry on an economical commerce, they have luckily established banks, which by their credit have formed a new species of wealth : but it would be quite wrong to intro- duce them into governments whose commerce is founded only on luxury. The erecting of banks in countries governed by an absolute monarch supposes money on the one side, and on the other power : that is, on the one hand, the means of procur- ing everything, without any power; and on the other, the power, without any means of procuring at all. In a govern- ment of this kind, none but the prince ever had, or can have, a treasure ; and wherever there is one, it no sooner becomes great than it becomes the treasure of the prince.

For the same reason, all associations of merchants, in order to carry on a particular commerce, are seldom proper in abso- lute governments. The design of these companies is to give to the wealth of private persons the weight of public riches. But in those governments this weight can be found only in the prince. Nay, they are not even always proper in states en- gaged in economical commerce ; for, if the trade be not so great as to surpass the management of particular persons, it

» This was first established by the Portuguese.— Fr. Pirard's " Voyages," chap. XV. part II.


THE SPIRIT OF LAWS 323

is much better to leave it open than, by exclusive privileges, to restrain the liberty of commerce.

II. — The same Subject continued

A free port may be established in the dominions of states whose commerce is economical. That economy in the govern- ment which always attends the frugality of individuals is, if I may so express myself, the soul of its economical commerce. The loss it sustains with respect to customs it can repair by drawing from the wealth and industry of the republic. But in a monarchy a step of this kind must be opposite to reason ; for it could have no other effect than to ease luxury of the weight of taxes. This would be depriving itself of the only advantage that luxury can procure, and of the only curb which, in a con- stitution like this, it is capable of receiving.

12. — Of the Freedom of Commerce

The freedom of commerce is not a power granted to the merchants to do what they please ; this would be more properly its slavery. The constraint of the merchant is not the constraint of commerce. It is in the freest countries that the merchant finds innumerable obstacles; and he is never less crossed by laws than in a country of slaves.

England prohibits the exportation of her wool ; coals must be brought by sea to the capital ; no horses, except geldings, are allowed to be exported; and the vessels of her colonies trading to Europe must take in water in England.; The Eng- lish constrain the merchant, but it is in favor of commerce.

1-3. — What it is that destroys this Liberty

Wherever commerce subsists, customs are established. Commerce is the exportation and importation of merchandise, with a view to the advantage of the state : customs are a certain right over this same exportation and importation, founded also on the advantage of the state. Hence it becomes necessary that the state should be neutral between its customs and its com- merce, that neither of these two interferes with the other, and then the inhabitants enjoy a free commerce.

f Act of Navigation, 1660. It is only Boston and Philadelphia send their in time of war that the merchants of vessels directly to the Mediterranean.


324 MONTESQUIEU

The farming of the customs destroys commerce by its injus- tice and vexations, as well as by the excess of the imposts : but independent of this, it destroys it even more by the difficulties that arise from it and by the formalities it exacts. In England, where the customs are managed by the king's officers, business is negotiated with a singular dexterity: one word of writing accomplishes the greatest affairs. The merchant needs not lose an infinite deal of time ; he has no occasion for a particular commissioner, either to obviate all the difficulties of the farmers, or to submit to them.

14. — The Laws of Commerce concerning the Confiscation of

Merchandise

The Magna Charta of England forbids the seizing and con- fiscating, in case of war, the effects of foreign merchants, ex- cept by way of reprisals. It is an honor to the English nation that they have made this one of the articles of their liberty.

In the late war between Spain and England, the former made a law which punished with death those who brought English merchandise into the dominions of Spain ; and the same pen- alty on those who carried Spanish merchandise into England.^ An ordinance like this cannot, I believe, find a precedent in any laws but those of Japan. It equally shocks humanity, the spirit of commerce, and the harmony which ought to subsist in the proportion of penalties ; it confounds all our ideas, making that a crime against the state which is only a violation of civil polity.

15. — Of seizing the Persons of Merchants

Solon made a law that the Athenians should no longer seize the body for civil debts.^ This law he received from Egypt. It had been made by Boccoris, and renewed by Sesostris.w

This law is extremely good with respect to the generality of civil affairs ; but there is sufficient reason for its not being observed in those of commerce.^ For as merchants are obliged to intrust large sums, frequently for a very short time, and to pay money as well as to receive it, there is a necessity that the

k Published in Cadiz in March, 1740. in preventing the arms and plough of

/Plutarch, in his treatise against any man from being taken in pledge,

lending upon usury. and yet permitting the taking of the

m Diodorus, book I. part II. chap. iii. man himself. — Diodorus, book I. part

n The Greek legislators were to blame II. chap. iii.


k


THE SPIRIT OF LAWS 325

debtor should constantly fulfil his engagements at the time pre- fixed ; and hence it becomes necessary to lay a constraint on his person.

In affairs relating to common civil contracts, the law ought not to permit the seizure of the person ; because the liberty of one citizen is of greater importance to the public than the ease or prosperity of another. But in conventions derived from commerce, the law ought to consider the public prosperity as of greater importance than the liberty of a citizen ; which, how- ever, does not hinder the restrictions and limitations that hu- manity and good policy demand.

16. — An excellent Law

Admirable is that law of Geneva which excludes from the magistracy, and even from the admittance into the great coun- cil, the children of those who have lived or died insolvent, except they have discharged their father's debts. It has this effect: it creates a confidence in the merchants, in the magistrates, and in the city itself. There the credit of the individual has still all the weight of public credit.

17. — A Law of Rhodes

The inhabitants of Rhodes went further. Sextus Empiricus observes that among those people a son could not be excused from paying his father's debts by renouncing the succession. This law of Rhodes was calculated for a republic, founded on commerce. Now I am inclined to think that reasons drawn from commerce itself should make this Hmitation, that the debts contracted by the father since the son's entering into com- merce should not affect the estate or property acquired by the latter.. A merchant ought always to know his obligations, and to square his conduct by his circumstances and present fortune.

18. — Of the Judges of Commerce

Xenophon, in his book of Revenues,/* would have rewards given to those overseers of commerce who despatched the causes brought before them with the greatest expedition. He was sensible of the need of our modern jurisdiction of a consul.

Hypotiposes, book I. chap. xiv. p " De Proventibus," III.


326 MONTESQUIEU

The affairs of commerce are but little susceptible of formal- ities. They are the actions of a day, and are every day followed by others of the same nature. Hence it becomes necessary that every day they should be decided. It is otherwise with those actions of life whice have a principal influence on futurity, but rarely happen. We seldom marry more than once ; deeds and wills are not the work of every day ; we are but once of age.

Plato Q. says that in a city where there is no maritime com- merce there ought not to be above half the number of civil laws : this is very true. Commerce brings into the same coun- try different kinds of people ; it introduces also a great number of contracts and species of wealth, with various ways of acquir- ing it.

Thus in a trading city there are fewer judges, and more laws.

19. — That a Prince ought not to engage himself in Commerce

Theophilus,*' seeing a vessel laden with merchandise for his wife Theodora, ordered it to be burned. " I am emperor," said he, " and you make me the master of a galley. By what means shall these poor men gain a livelihood if we take their trade out of their hands ? " He might have added, Who shall set bounds to us if we monopolize all ourselves ? Who shall oblige us to fulfil our engagements? Our courtiers will follow our example ; they will be more greedy and more unjust than we : the people have some confidence in our justice, they will have none in our opulence : all these numerous duties, the cause of their wants, are certain proofs of ours.

20. — The same Subject continued

When the Portuguese and Castilians bore sway in the East Indies, commerce had such opulent branches that their princes did not fail to seize them. This ruined their settlements in those parts of the world.

The viceroy of Goa granted exclusive privileges to particular persons. The people had no confidence in these men ; and the commerce declined, by the perpetual change of those to whom it was intrusted ; nobody took care to improve it, or to leave it entire to his successor. In short, the profit centred in a few hands, and was not sufficiently extended.

q "On Laws," book VIII. r Zonaras.


THE SPIRIT OF LAWS 327

21. — Of the Commerce of the Nobility in a Monarchy

In a monarchical government, it is contrary to the spirit of commerce that any of the nobility should be merchants. " This/' said the Emperors Honorius and TheodosiuSj-y " would be pernicious to cities ; and would remove the facility of buying and selling between the merchants and the plebeians."

It is contrary to the spirit of monarchy to admit the nobility into commerce. The custom of suffering the nobility of Eng- land to trade is one of those things which have there mostly contributed to weaken the monarchical government.

22. — A singular Reflection

Persons struck with the practice of some states imagine that in France they ought to make laws to engage the nobility to enter into commerce. But these laws would be the means of destroying the nobility, without being of any advantage to trade. The practice of this country is extremely wise; mer- chants are not nobles, though they may become so. They have the hopes of obtaining a degree of nobility, unattended with its actual inconveniences. There is no surer way of being ad- vanced above their profession than to manage it well, or with success; the consequence of which is generally an affluent fortune.

Laws which oblige every one to continue in his profession, and to devolve it upon his children, neither are nor can be of use in any but despotic kingdoms ; where nobody either can or ought to have emulation.^

Let none say that every one will succeed better in his profes- sion when he cannot change it for another : I say that a person will succeed best when those who have excelled hope to rise to another.

The possibility of purchasing honor with gold encourages many merchants to put themselves in circumstances by which they may attain it. I do not take it upon me to examine the justice of thus bartering for money the price of virtue. There are governments where this may be very useful.

In France the dignity of the long robe, which places those

5 Leg. " Nobiliorfcs," Cod. "de t This is actually very often the case

Comm," et leg. " ult. de rescind, ven- in such governments, dit."


328 MONTESQUIEU

who wear it between the great nobility and the people, and with- out having such shining honors as the former, has all their priv- ileges ; a dignity which, while this body, the depositary of the laws, is encircled with glory, leaves the private members in a mediocrity of fortune ; a dignity in which there are no other means of distinction but by a superior capacity and virtue, yet which still leaves in view one much more illustrious : the war- like nobility, likewise, who conceive that, whatever degree of wealth they are possessed of, they may still increase their for- tunes ; who are ashamed of augmenting, if they begin not with dissipating, their estates ; who always serve their prince with their whole capital stock, and when that is sunk make room for others, who follow their example ; who take the field that they may never be reproached with not having been there; who, when they can no longer hope for riches, live in expectation of honors ; and when they have not obtained the latter, enjoy the consolation of having acquired glory : all these things together have necessarily contributed to augment the grandeur of this kingdom ; and if for two or three centuries it has been inces- santly increasing in power, this must be attributed not to For- tune, who was never famed for constancy, but to the goodness of its laws.

23. — To what Nations Commerce is prejudicial

Riches consist either in lands or in movable effects. The soil of every country is commonly possessed by the natives. The laws of most states render foreigners unwilling to purchase their lands; and nothing but the presence of the owner im- proves them: this kind of riches, therefore, belongs to every state in particular ; but movable effects, as money, notes, bills of exchange, stocks in companies, vessels, and, in fine, all mer- chandise, belong to the whole world in general; in this re- spect, it is composed of but one single state, of which all the societies upon earth are members. The people who possess more of these movable effects than any other on the globe are the most opulent. Some states have an immense quantity ac- quired by their commodities, by the labor of their mechanics, by their industry, by their discoveries, and even by chance. The avarice of nations makes them quarrel for the movables of the whole universe. If we could find a state so unhappy as


THE SPIRIT OF LAWS


329


to be depfived of the effects of other countries, and at the same time of almost all its own, the proprietors of the lands would be only planters to foreigners. This state, wanting all, could ac- quire nothing; therefore, it would be much better for the in- habitants not to have the least commerce with any nation upon earth, for commerce in these circumstances must necessarily lead them to poverty.

A country that constantly exports fewer manufactures or commodities than it receives will soon find the balance sinking ; it will receive less and less, until, falling into extreme poverty, it will receive nothing at all.

In trading countries the specie, which suddenly vanishes, quickly returns; because those nations that have received it are its debtors. But it never returns into those states of which we have just been speaking, because those who have received it owe them nothing.

Poland will serve us for an example. It has scarcely any of those things which we call the movable effects of the universe, except corn, the produce of its lands. Some of the lords pos- sess entire provinces ; they oppress the husbandmen, in order to have greater quantities of corn, which they send to strangers, to procure the superfluous demands of luxury. If Poland had no foreign trade, its inhabitants would be happier. The grandees, who would have only their corn, would give it to their peasants for subsistence; as their too extensive estates would become burdensome, they would divide them amongst their peasants ; every one would find skins or wool in their herds or flocks, so that they would no longer be at an immense expense in providing clothes ; the great, who are ever fond of luxury, not being able to find it but in their own country, would en- courage the labor of the poor. This nation, I affirm, would then become more flourishing, at least if it did not become bar- barous ; and this the laws might easily prevent.

Let us next consider Japan. The vast quantity of what they receive is the cause of the vast quantity of merchandise they send abroad. Things are thus in as nice an equilibrium as if the importation and exportation were but small. Besides, this kind of exuberance in the state is productive of a thousand ad- vantages ; there is a greater consumption, a greater quantity of those things on which the arts are exercised; more men


330 MONTESQUIEU

employed, and more numerous means of acquiring power ; ex- igencies may also happen that require a speedy assistance, which so opulent a state can better afford than any other. It is difficult for a country to avoid having superfluities ; but it is the nature of commerce to render the superfluous useful, and the useful necessary. The state will be, therefore, able to af- ford necessaries to a much greater number of subjects.

Let us say, then, that it is not those nations who have need of nothing that must lose by trade ; it is those who have need of everything. It is not such people as have a sufficiency within themselves, but those who are most in want, that will find an advantage in putting a stop to all commercial inter- course.


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CHOICE EXAMPLES OF EARLY PRINTING AND ENGRAVING.

Fac-similes from Pare and Curious Books.


A PAGE FROM THE PSALMORLM CODEX.

Printed 111 i^>y hv Fust and Schoeffer, being the first printed Psalter and the first printed book with a printed date.

It is generally conceded that this famous Psalter carried the intricacies of print- ing much further than had been dreamed of by its first projector. It should be noted that the credit so long accorded to Schoeffer as the invent<jr and producer ol the initials printed in colors, which render this Psalter so remarkable, may after all belong (like the glory of printing the first Bible) to Gutenberg alone, for it is a well-established fact that he had been preparing a large Gothic type lor the pur- pose of producing a great church-service Psalter ; and it appears probable that he prepared at the same time a series of colored initials, which he used by way ot essay in the " Doixittis." But even allowing this to be the case, the perfect manner in which the printing itself is executed, in the first serious attempt to produce in a printed book the effects hitherto produced by the hand of the illuminator, is suffi- cient to secure to Schoeffer's name a place among the greatest masters of his art. The best preserved copy of this interesting monument of the early days of printing is that in the Imperial Library of Vienna. Other copies are preserved in the British Museum and the French National Library.


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BOOK XXI

■ D ocuit quee maximus Atlas, — ViRGiL, yEneid,

OF LAWS IN RELATION TO COMMERCE, CON- SIDERED IN THE REVOLUTIONS IT HAS MET WITH IN THE WORLD

I. — Some general Considerations

THOUGH commerce be subject to great revolutions, yet it is possible that certain physical causes, as the quality of the soil, or the climate, may fix its nature forever.

We at present carry on the trade of the Indies merely by means of the silver which we send thither. The Romans carried annually thither about fifty millions of sesterces ; a and this sil- ver, as ours is at present, was exchanged for merchandise, which was brought to the West. Every nation that ever traded to the Indies has constantly carried bullion and brought merchandise in return.^

It is nature itself that produces this effect. The Indians have their hearts adapted to their manner of living. Our luxury cannot be theirs ; nor theirs our wants. Their climate demands and permits hardly anything which comes from ours. They go in a great measure naked ; such clothes as they have the coun- try itself furnishes ; and their religion, which is deeply rooted, gives them an aversion for those things that serve for our nourishment. They want, therefore, nothing but our bullion to serve as the medium of value; and for this they give us merchandise in return, with which the frugality of the people and the nature of the country furnish them in great abundance. Those ancient authors who have mentioned the Indies describe them just as we now find them, as to their policy, customs, and marners.c The Indies have ever been the same Indies they

a Pliny, lib. VI. cap. xxiii. c See Pliny, book VI. chap, xix., and

h See Pausanias, " Laconia," sine III. Strabo, book XV. cap. xii.


332 MONTESQUIEU

are at present ; and in every period of time those who traded with that country carried specie thither and brought none in return.

2. — Of the People of Africa

The greatest part of the people on the coast of Africa are savages and barbarians. , The principal reason, I believe, of this is, because the small countries capable of being inhabited are separated from each other by large and almost uninhabit- able tracts of land. They are without industry or arts. They have gold in abundance, which they receive immediately from the hand of nature. Every civilized state is, therefore, in a condition to traffic with them to advantage, by raising their es- teem for things of no value, and receiving a very high price in return.

3. — That the Wants of the People in the South are different from those of the North

In Europe there is a kind of balance between the southern and northern nations. The first have every convenience of life, and few of its wants : the last have many wants, and few con- veniences. To one nature has given much, and demands but little ; to the other she has given but little, and demands a great deal. The equilibrium is maintained by the laziness of the southern nations, and by the industry and activity which she has given to those in the North. The latter are obliged to un- dergo excessive labor, without which they would want every- thing, and degenerate into barbarians. This has neutralized slavery to the people of the south : as they can easily dispense with riches, they can more easily dispense with liberty. But the people of the North have need of liberty, for this can best procure them the means of satisfying all those wants which they have received from nature. The people of the North, then, are in a forced state, if they are not either free or bar- barians. Almost all the people of the South are, in some meas- ure, in a state of violence, if they are not slaves.


THE SPIRIT OF LAWS


333


4. — The principal Difference between the Commerce of the Ancients and the Moderns

The world has found itself, from time to time, in different situations; by which the face of commerce has been altered. The trade of Europe is, at present, carried on principally from the north to the south ; and the difference of climate is the cause that the several nations have great occasion for the mer- chandise of each other. For example, the liquors of the south, which are carried to the north, form a commerce little known to the ancients. Thus the burden of vessels, which was former- ly computed by measures of corn, is at present determined by tuns of liquor.

The ancient commerce, so far as it is known to us, was car- ried on from one port in the Mediterranean to another; and was almost wholly confined to the South. Now the people of the same cHmate, having nearly the same things of their own, have not the same need of trading amongst themselves as with those of a different climate. The commerce of Europe was, therefore, formerly less extended than at present.

This does not at all contradict what I have said of our com- merce to the Indies : for here the prodigious difference of cli- mate destroys all relation between their wants and ours.

5. — Other Differences

Commerce is sometimes destroyed by conquerors, sometimes cramped by monarchs; it traverses the earth, flies from the places where it is oppressed, and stays where it has liberty to breathe: it reigns at present where nothing was formerly to be seen but deserts, seas, and rocks ; and where it once reigned now there are only deserts.

To see Colchis in its present situation, which is no more than a vast forest, where the people are every day diminishing, and only defend their liberty to sell themselves by piecemeal to the Turks and Persians, one could never imagine that this country had ever, in the time of the Romans, been full of cities where commerce convened all the nations of the world. We find no monument of these facts in the country itself; there are no traces of them, except in Vlmyd and Strabo.e

d Lib. VI. e Lib. XL


334 MONTESQUIEU

The history of commerce is that of the communication of people. Their numerous defeats, and the flux and reflux of populations and devastations, here form the most extraordi- nary events.

6. — Of the Commerce of the Ancients

The immense treasures of Semiramis,^ which could not be acquired in a day, give us reason to believe that the Assyrians themselves had pillaged other rich nations, as other nations afterwards pillaged them.

The effect of commerce is riches ; the consequence of riches, luxury ; and that of luxury the perfection of arts. We find that the arts were carried to great perfection in the time of Semira- mis ; g which is a sufficient indication that a considerable com- merce was then established.

In the empires of Asia there was a great commerce of luxury. The history of luxury would make a fine part of that of com- merce. The luxury of the Persians was that of the Medes, as the luxury of the Medes was that of the Assyrians.

Great revolutions have happened in Asia. The northeast parts of Persia, viz., Hyrcania, Margiana, Bactria, etc., were formerly full of flourishing cities,^ which are now no more; and the north of this empire,* that is, the isthmus which sep- arates the Caspian and the Euxine Seas, was covered with cities and nations, which are now destroyed.

Eratosthenes and Aristobulus ; learned from Patroclus k that the merchandise of India passed by the Oxus into the sea of Pontus. Marcus Varro I tells us that at the time when Pompey commanded against Mithridates, they were informed that peo- ple went in seven days from India to the country of the Bactri- ans, and to the River Icarus, which falls into the Oxus ; that by this method they were able to bring the merchandise of India across the Caspian Sea, and to enter the mouth of Cyrus; whence it was only five days' passage to the Phasis, a river that discharges itself into the Euxine Sea. There is no doubt but it was by the nations inhabiting these several countries that the

f Dipdorus, lib. II. k The authority of Patroclus is of

S Ibid. great weight, as appears from a passage

h Pliny, lib. VI. cap. xvi., and Strabo, in Strabo, lib. II.

lib- XI. ., „_ i Pliny, lib. VI. cap. xvii. See also

» Strabo, lib. XI. Strabo, lib. XI., upon the passage by

^ Ibidf which the merchandise was conveyed

from the Phasis to the Cyrus.


THE SPIRIT OF LAWS 335

great empires of the Assyrians, Medes, and Persians had com- munication with the most distant parts of the east and west.

An entire stop is now put to this communication. All these countries have been laid waste by the Tartars,wt and are still infested by this destructive nation. The Oxus no longer runs into the Caspian Sea; the Tartars, for some private reasons, have changed its course, and it now loses itself in the barren sands.w

The Jaxartes, which was formerly a barrier between the polite and barbarous nations, has had its course turned in the same manner by the Tartars, and it no longer empties itself into the sea.o

Seleucus Nicator formed the project of joining the Euxine to the Caspian Sea./* This project, which would have greatly facilitated the commerce of those days, vanished at his death.9 We are not certain it could have been executed in the isthmus which separates the two seas. This country is at present very little known, it is depopulated, and full of forests; however, water is not wanting, for an infinite number of rivers roll into it from Mount Caucasus ; but as this mountain forms the north of the isthmus, and extends like two arms r towards the south, it would have been a grand obstacle to such an enterprise, es- pecially in those times, when they had not the art of making sluices.

It may be imagined that Seleucus would have joined the two seas in the very place where Peter I has since joined them ; that is, in that neck of land where the Tanais approaches the Volga ; but the north of the Caspian Sea was not then discovered.

While the empires of Asia enjoyed the commerce of luxury, the Tyrians had the commerce of economy, which they ex- tended throughout the world. Bochard has employed the first book of his " Canaan " in enumerating all the colonies which they sent into all the countries bordering upon the sea ; they passed the pillars of Hercules, and made establishments on the coasts of the ocean.^

m There must have been very great the " Collection of Voyages to the

changes in that country since the time North," vol. iv.

of Ptolemy, who gives us an account of o I am disposed to think that thence

so many rivers that empty themselves the Lake Aral was formed,

into the east side of the Caspian Sea. p Claudius Caesar, in Plin. lib. VI.

In the Czar's chart we find only the cap. xi.

river of Astrabat ; in that of M. Bathalsi q He was slain by Ptolemy Ceraunus.

there is none at all. r See Strabo, lib. XI.

n See Jenkinson's account of this, in s They founded Tartessus, and made

a settlement at Cadiz.


336 MONTESQUIEU

In those times their pilots were obHged to follow the coasts, which were, if I may so express myself, their compass. Voy- ages were long and painful. The laborious voyage of Ulysses has been the fruitful subject of the finest poem in the world, next to that which alone has the preference.

The little knowledge which the greatest part of the world had of those who were far distant from them favored the na- tions engaged in the economical commerce. They managed trade with as much obscurity as they pleased ; they had all the advantages which the most intelligent nations could take over the most ignorant.

The Egyptians — a people who by their religion and their manners were averse to all communication with strangers — had scarcely at that time any foreign trade. They enjoyed a fruitful soil and great plenty. Their country was the Japan of those times ; it possessed everything within itself.

So little jealous were these people of commerce, that they left that of the Red Sea to all the petty nations that had any harbors in it. Here they suffered the Idumeans, the Syrians, and the Jews to have fleets. Solomon employed in this naviga- tion the Tyrians, who knew those seas.^

Josephus w says that this nation, being entirely employed in agriculture, knew little of navigation: the Jews, therefore, traded only occasionally in the Red Sea. They took from the Idumeans Eloth and Eziongeber, from whom they received this commerce ; they lost these two cities, and with them lost this commerce.

It was not so with the Phoenicians : theirs was not a com- merce of luxury ; nor was their trade owing to conquest ; their frugality, their abilities, their industry, their perils, and the hard- ships they suffered, rendered them necessary to all the nations of the world.

Before Alexander, the people bordering on the Red Sea traded only in this sea, and in that of Africa. The astonishment which filled the globe at the discovery of the Indian Sea, under that conqueror, is a sufficient proof of this. I have observed "v that bullion was always carried to the Indies, and never any brought thence; now the Jewish fleets, which brought gold

1 1 Kings ix. ; 2 Chron. viii. v Chap, i of this book.

M Against Appian.


THE SPIRIT OF LAWS 337

and silver by the way of the Red Sea, returned from Africa, and not from the Indies.^

Besides, this navigation was made on the eastern coast of Africa ; for the state of navigation at that time is a convincing proof that they did not sail to a very distant shore.

I am not ignorant that the fleets of Solomon and Jehosha- phat returned only every three years ; but I do not see that the time taken up in the voyage is any proof of the greatness of the distance.

Pliny and Strabo inform us that the junks of India and the Red Sea were twenty days in performing a voyage which a Greek or Roman vessel v^^ould accompHsh in seven.-*^ In this proportion, a voyage of one year, made by the fleets of Greece or Rome, would take very nearly three when performed by those of Solomon.

Two ships of unequal swiftness do not perform their voyage in a time proportionate to their swiftness. Slowness is fre- quently the cause of much greater slowness. When it becomes necessary to follow the coast, and to be incessantly in a differ- ent position, when they must wait for a fair wind to get out of a gulf, and for another to proceed, a good sailor takes the ad- vantage of every favorable moment, while the other still con- tinues in a difficult situation, and waits many days for another change.

The slowness of the Indian vessels, which in an equal time could make but the third of the way of those of the Greeks and Romans, may be explained by what we every day see in our modern navigation. The Indian vessels, which were built with a kind of sea-rushes, drew less water than those of Greece and Rome, which were of wood and joined with iron.

We may compare these Indian vessels to those at present made use of in ports of little depth of water. Such are those of Venice, and even of all Italy in general,^ of the Baltic, and of the province of Holland.-sf Their ships, which ought to be able to go in and out of port, are built round and broad at the bot- tom ; while those of other nations, who have good harbors.


w The proportion between gold and x See Pliny, lib. VI. cap. xxii., and

silver, as settled in Europe, may some- Strabo, lib. XV. '"■ . . ij yThey are mo

has excellent po z I say the pr the ports of Zealand are deep enough.


times render it profitable to take gold yThey are mostly shallow; but Sicily

instead of silver into the East Indies; has excellent ports.

but the advantage is very trifling. z I say the province of Holland ; for


Vol. I. — 22


338 MONTESQUIEU

are formed to sink deep into the water. This mechanism ren- ders these last-mentioned vessels able to sail much nearer the wind ; while the first can hardly sail, except the wind be nearly in the poop. A ship that sinks deep into the water sails towards the same side with almost every wind; this proceeds from the resistance which the vessel, while driven by the wind, meets with from the water, from which it receives a strong support ; and from the length of the vessel which presents its side to the wind, while, from the form of the helm, the prow is turned to the point proposed; so that she can sail very near the wind, or, in other words, very near the point whence the wind blows. But when the hull is round and broad at the bottom, and conse- quently draws little water, it no longer finds this steady sup- port ; the wind drives the vessel, which is incapable of resist- ance, and can run them but with a small variation from the point opposite to the wind. Whence it follows, that broad-bot- tomed vessels are longer in performing voyages.

I. They lose much time in waiting for the wind, especially if they are obliged frequently to change their course. 2. They sail much slower, because not having a proper support from a depth of water, they cannot carry so much sail. If this be the case at a time when the arts are everywhere known, at a time when art corrects the defects of nature, and even of art itself ; if at this time, I say, we find this difference, how great must that have been in the navigation of the ancients ?

I cannot yet leave this subject. The Indian vessels were small, and those of the Greeks and Romans, if we except those machines built for ostentation, much less than ours. Now, the smaller the vessel the greater danger it encounters from foul weather. A tempest that would swallow up a small vessel would only make a large one roll. The more one body sur- passes another in size, the more its surface is relatively small. Whence it follows, that in a small ship there is a less propor- tion, that is, a greater difference in respect to the surface of the vessel, compared with the weight or lading she can carry, than in a large one. We know that it is a pretty general practice to make the weight of the lading equal to that of half the water the vessel could contain. Suppose a vessel will contain eight hundred tons, her lading then must be four hundred ; and that of a vessel which would hold but four hundred tons of water


THE SPIRIT OF LAWS 339

would be two hundred tons. Thus the largeness of the first ship will be to the weight she carries as 8 to 4, and that of the second as 4 to 2. Let us suppose, then, that the surface of the greater is to the surface of the smaller as 8 to 6 ; the surface of the latter will be to her weight as 6 to 2,a while the surface of the former will be to her weight only as 8 to 4. Therefore, as the winds and waves act only upon the surface, the large vessel will, by her weight, resist their impetuosity much more than the small.

7. — Of the Commerce of the Greeks

The first Greeks were all pirates. Minos, who enjoyed the empire of the sea, was only more successful, perhaps, than others in piracy; for his maritime dominion extended no farther than round his own isle. But when the Greeks became a great people, the Athenians obtained the real dominion of the sea; because this trading and victorious nation gave laws to the most potent monarch of that time,& and humbled the mari- time powers of Syria, of the isle of Cyprus, and Phoenicia.

But this Athenian lordship of the sea deserves to be more par- ticularly mentioned. " Athens," says Xenophon,c " rules the sea ; but as the country of Attica is joined to the continent, it is ravaged by enemies while the Athenians are engaged in dis- tant expeditions. Their leaders suffer their lands to be de- stroyed, and secure their wealth by sending it to some island. The populace, who are not possessed of lands, have no uneasi- ness. But if the Athenians inhabited an island, and, beside this, enjoyed the empire of the sea, they would, so long as they were possessed of these advantages, be able to annoy others, and at the same time to be out of all danger of being annoyed." One would imagine that Xenophon was speaking of England.

The Athenians, a people whose heads were filled with ambi- tious projects ; the Athenians, who augmented their jealousy instead of increasing their influence ; who were more attentive to extend their maritime empire than to enjoy it ; whose polit- ical government was such that the common people distributed the public revenues among themselves, while the rich were in a state of oppression ; the Athenians, I say, did not carry on so

a That is, to compare magnitudes of h The King of Persia,

the same kind, the action or pressure c On the Athenian Republic.**

of the fluid upon the ship vrill be to the resistance of the same ship as, etc.


340 MONTESQUIEU

extensive a commerce as might be expected from the produce of their mines, from the multitude of their slaves, from the num- ber of their seamen, from their influence over the cities of Greece, and, above all, from the excellent institutions of Solon. Their trade was almost wholly confined to Greece and to the Euxine Sea, whence they drew their subsistence.

Corinth was admirably situated ; it separated two seas, and opened and shut the Peloponnesus ; it was the key of Greece, and a city of the greatest importance, at a time when the people of Greece were a world, and the cities of Greece nations. Its trade was more extensive than that of Athens, having a port to receive the merchandise of Asia, and another that of Italy ; for the great difficulties which attended the doubling Cape Malea, where the meeting of opposite winds causes shipwrecks,^ induced every one to go to Corinth, and they could even convey their vessels over land from one sea to the other. Never was there a city in which the works of art were carried to so high a degree of perfection. But here religion finished the corrup- tion which their opulence began. They erected a temple to Venus, in which more than a thousand courtesans were con- secrated to that deity; from this seminary came the greatest part of those celebrated beauties whose history Athenseus has presumed to commit to writing.

It seems that in Homer's time the opulence of Greece cen- tred in Rhodes, Corinth, and Orchomenus ; " Jupiter," he says, " loved the Rhodians, and made them a very wealthy nation."^ On Corinth he bestows the epithet of rich./" In like manner, when he speaks of cities that have plenty of gold, he mentions Orchomenus, to which he joins Thebes in Egypt. Rhodes and Corinth preserved their power; but Orchomenus lost hers. The situation of Orchomenus in the neighborhood of the Hel- lespont, the Propontis, and the Euxine Sea makes us naturally imagine that she was indebted for her opulence to a trade along that maritime coast, which had given rise to the fable of the golden fleece; and, indeed, the name of Minyeios has been given to Orchomenus as well as to the Argonauts.^ But these seas becoming afterwards more frequented, the Greeks planted along the coasts a greater number of colonies, which traded

d See Strabo, lib. VIII. / Ibid.

f " Iliad," lib. II, e Strabo, lib. IX. p. 914.


THE SPIRIT OF LAWS 341

with the barbarous nations and at the same time preserved an intercourse with their mother country. In consequence of this, Orchomenus began to decHne till at length it was lost in the crowd of the other cities of Greece.

Before Homer's time the Greeks had scarcely any trade but among themselves, and with a few barbarous nations ; in pro- portion, however, as they formed new colonies, they extended their dominion. Greece was a large peninsula, the capes of which seemed to have kept off the seas, while its gulfs opened on all sides to receive them. If we cast an eye on Greece, we shall find, in a pretty compact country, a considerable extent of sea-coast. Her innumerable colonies formed an immense circle round her ; and there she beheld, in some measure, the whole civilized world. Did she penetrate into Sicily an.d Italy, she formed new nations. Did she navigate towards the sea of Pon- tus, the coast of Asia Minor, or that of Africa, she acted in the same manner. Her cities increased in prosperity in proportion as they happened to have new people in their neighborhood. And what was extremely beautiful, she was surrounded on every side with a prodigious number of islands, drawn, as it were, in a line of circumvallation.

What a source of prosperity must Greece have found in those games with which she entertained, in some measure, the whole globe ; in those temples, to which all the kings of the earth sent their offerings ; in those festivals, at which such a concourse of people used to assemble from all parts ; in those oracles, to which the attention of all mankind was directed; and, in short, in that exquisite taste for the polite arts, which she carried to such a height that to expect ever to surpass her would be only betraying our ignorance !

8. — Of Alexander: his Conquests

Four great events happened in the reign of Alexander which entirely changed the face of commerce: the taking of Tyre, the conquest of Egypt, that likewise of the Indies, and the dis- covery of the sea which lies south of that country.

The Empire of Persia extended to the Indus.^ Darius, long before Alexander, had sent some vessels, which sailed down this river, and passed even into the Red Sea.* How then were the

h Strabo, lib. XV. i Herodotus, in " Melpomene,"


342 MONTESQUIEU

Greeks the first who traded with the Indies by the south ? Had not the Persians done this before? Did they make no ad- vantage of seas which were so near them, of the very seas that washed their coasts? Alexander, it is true, conquered the Indies ; but was it necessary for him to conquer a country in order to trade with it ? This is what I shall now examine.

Ariana,; which extended from the Persian Gulf as far as the Indus, and from the South Sea to the mountains of Paropam- isus, depended, indeed, in some measure, on the Empire of Persia ; but in the southern part it was barren, scorched, rude, and uncultivated.^ Tradition relates^ that the armies of Semiramis and Cyrus perished in these deserts ; and Alexander, who caused his fleet to follow him, could not avoid losing in this place a great part of his army. The Persians left the whole coast to the Ichthyophagi,w the Oritse, and other barbarous na- tions. Besides, the Persians were no great sailors,^ and their very religion debarred them from entertaining any such notion as that of a maritime commerce. The voyage undertaken by Darius's direction upon the Indus and the Indian Sea proceeded rather from the capriciousness of a prince vainly ambitious of showing his power than from any settled regular project. It was attended with no consequence either to the advantage of commerce or of navigation. They emerged from their igno- rance only to plunge into it agam.

Besides, it was a received opinion^ before the expedition of Alexander that the southern parts of India were uninhabitable./' This proceeded from a tradition that Semiramis q had brought back thence only twenty men, and Cyrus but seven.

Alexander entered by the north. His design was to march towards the east ; but having found a part of the south full of great nations, cities, and rivers, he attempted to conquer it, and succeeded.

He then formed a design of uniting the Indies to the Western nations by a maritime commerce, as he had already united them by the colonies he had established by land.

■ Strabo, lib. XV. this day they have no maritime com-

k Pliny says. " Ariana regio ambusta merce. Those who take to the sea are

fervoribus, aesertisque circumdata." treated by them as atheists.

(" Nat. Hist." VI. cap. xxiii.)— Ed. o Strabo, lib. XV.

/ Strabo, lib. XV. p Herodotus (in " Melpomene ") saj^s

w Pliny, lib. VI. cap. xxiii.; Strabo, that Darius conquered the Indies; this

lib. XV. must be understood only to mean Ari-

n Thcjyr sailed not upon the rivers, lest ana; and even this was only an ideal

they should defile the elements (Hyde's conquest.

" Religion of the. Persians ")• Even to q Strabo, lib. XV.


THE SPIRIT OF LAWS 343

He ordered a fleet to be built on the Hydaspes, then fell down that river, entered the Indus, and sailed even to its mouth. He left his army and his fleet at Patala, went himself with a few vessels to view the sea, and marked the places where he would have ports to be opened and arsenals erected. Upon his return from Patala he separated the fleet, and took the route by land, for the mutual support of fleet and army. The fleet followed the coast from the Indus along the banks of the country of the Oritae, of the Ichthyophagi, of Carmania, and Persia. He caused wells to be dug, built cities, and would not suffer the Ichthyophagi to live on fish,** being desirous of having the bor- ders of the sea inhabited by civilized nations. Nearchus and Onesecritus wrote a journal of this voyage, which was per- formed in ten months. They arrived at Susa, where they found Alexander, who gave an entertainment to his whole army.

This prince had founded Alexandria, with a view of securing his conquest of Egypt ; this was a key to open it, in the very place where the kings his predecessors had a key to shut it ; s and he had not the least thought of a commerce of which the discovery of the Indian Sea could alone give him the idea.

It even seems that after his discovery he had no new design in regard to Alexandria. He had, indeed, a general scheme of opening a trade between the East Indies and the western parts of his empire ; but as for the project of conducting this com- merce through Egypt, his knowledge was too imperfect to be able to form any such design. It is true he had seen the In- dus, he had seen the Nile, but he knew nothing of the Arabian seas between the two rivers. Scarcely had he returned from India when he fitted out new fleets, and navigated on the Euleus,^ the Tigris, the Euphrates, and the ocean ; he removed the cataracts, with which the Persians had encumbered those rivers ; and he discovered that the Persian Gulf was a branch of the main sea. But as he went to view this sea w in the same

r This cannot be understood of all the think that Alexander's prohibition re- Ichthyophagi, who inhabited a coast of lated to these people, or to some other ten thousand furlongs in extent. How tribe still more bordering on Persia, was it possible for Alexander to have s Alexandria was founded on a flat maintained them? How could he com- shore, called Rhacotis, where, in ancient mand their submission? This can be times, the kings had kept a garrison to only understood of some particular prevent all strangers, and more par- tribes. Nearchus, in his book " Rerum ticularly the Greeks, from entering the Indicarum," says that at the extremity country. — Pliny, lib. VI. cap. x.; Strabo, of this coast, on the side of Persia, he lib. XVIII.

had found some people who were less / Arrian, " de expedit. Alexandri,"

Ichthyophagi than the others. I should lib. VII.

«Ibid.


344 MONTESQUIEU

manner as he had done in respect to that of India; as he caused a port to be opened for a thousand ships, and arsenals to be erected at Babylon ; as he sent five hundred talents into Phoenicia and Syria, to draw mariners into this service whom he intended to distribute in the colonies along the coast; in fine, as he caused immense works to be erected on the Euphrates, and the other rivers of Assyria, there could be no doubt but he designed to carry on the commerce of India by the way of Babylon and the Persian Gulf.

There are some who pretend that Alexander wanted to sub- due Arabia,^' and had formed a design to make it the seat of his empire : but how could he have pitched upon a place with which he was entirely unacquainted ? w Besides, of all countries, this would have been the most inconvenient to him ; for it would have separated him from the rest of his empire. The Caliphs, who made distant conquests, soon withdrew from Arabia to reside elsewhere.

9. — Of the Commerce of the Grecian Kings after the Death of

Alexander

At the time when Alexander made the conquest of Egypt, they had but a very imperfect idea of the Red Sea, and none at all of the ocean, which, joining this sea, on one side washes the coast of Africa, and on the other that of Arabia; nay, they thought it impossible to sail round the peninsula of Arabia. They who attempted it on each side had relinquished their de- sign. " How is it possible," said they,-!^ " to navigate to the southern coast of Arabia, when Cambyses's army, which trav- ersed it on the north side, almost entirely perished; and the forces which Ptolemy, the son of Lagus, sent to the assistance of Seleucus Nicator at Babylon, underwent incredible hard- ships, and, upon account of the heat, could march only in the night?"

The Persians were entire strangers to navigation. When they had subdued Egypt, they introduced the same spirit into that country as prevailed in Persia: hence, so great was the supineness of the Persians in this respect, that the Grecian kings found them quite strangers, not only to the commerce of

V Strabo, lib. VI., towards the end. Arabia as an island. — Aristob. in Strabo, w Seeing Babylon overflowed, he lib. XVI. looked upon the neighboring country of x See the book " Rerum Indicarum."


THE SPIRIT OF LAWS 345

the Tyrians, Idumeans, and the Jews on the ocean, but even to the navigation of the Red Sea. I am apt to think that the destruction of the first Tyre by Nebuchadnezzar, together with the subversion of several petty nations and towns bordering on the Red Sea, had obhterated all their former knowledge of commerce.

Egypt, at the time of the Persian monarchy, did not front the Red Sea; it contained only that long narrow neck of land which the Nile covers with its inundations, and is inclosed on both sides by a chain of mountains.^ They were, therefore, under the necessity of making a second discovery of the ocean and the Red Sea ; and this discovery engaged the curiosity of the Grecian monarchs.

They ascended the Nile, and hunted after elephants in the countries situated between that river and the sea ; by this pro- gression they traced the sea-coast ; and as the discoveries were made by the Greeks, the names are all Grecian, and the temples are consecrated to Greek divinities.^

The Greeks settled in Egypt were able to command a most extensive commerce ; they were masters of all the harbors on the Red Sea; Tyre, the rival of every trading nation, was no more ; they were not constrained by the ancient superstitions a of the country ; in short, Egypt had become the centre of the world.

The kings of Syria left the commerce of the south to those of Egypt, and attached themselves only to the northern trade, which was carried on by means of the Oxus and the Caspian Sea. They then imagined that this sea was part of the North- ern Ocean ; b and Alexander,^ some time before his death, had fitted out a fleet d in order to discover whether it communicated with the ocean by the Euxine Sea, or some other eastern sea towards India. After him, Seleucus and Antiochus applied themselves to make discoveries in it, with particular attention ; and with this view they scoured it with their fleets.^ That part which Seleucus surveyed was called the Seleucidian Sea ; that

y Strabo, lib. XVI. z Ibid. c Pliny, lib. II. cap. Ixvii., and lib. VI.

a These gave them an aversion to cap, ix. and xii., and Strabo, lib. XI.;

strangers. Arrian, " de expedit. Alexandri," lib.

b It is true that Strabo, Pomponius III. p. 74, and lib. V. p. 104.

Mela, and Pliny believed the Caspian a d Arrian, " de expedit. Alexandri," lib.

part of the Northern Ocean, while their VII.

Predecessors Diodorus, Aristotle, and e Pliny, lib. II. cap. Ixiv. lerodotus were correct in their sur- mises that it was an isolated sea. — Ed. '


346 MONTESQUIEU

which Antiochus discovered received the name of the Sea of Antiochus. Attentive to the projects they might have formed on that side, they neglected the seas on the south ; whether it was that the Ptolemies, by means of their fleets on the Red Sea, had already become the masters of it, or that they dis- covered an invincible aversion in the Persians against engag- ing in maritime afifairs. The southern coasts of Persia sup- pHed them with no seamen ; there had been none in those parts, except towards the latter end of Alexander's reign. But the Egyptian kings, being masters of the Isle of Cyprus, of Phoe- nicia, and of a great number of towns on the coast of Asia Minor, were possessed of all sorts of conveniences for undertak- ing maritime expeditions. They had no occasion to force; they had only to follow the genius and bent of their subjects.

I am surprised, I confess, at the obstinacy with which the ancients believed that the Caspian Sea was a part of the ocean. The expeditions of Alexander, of the kings of Syria, of the Parthians and the Romans, could not make them change their sentiments ; notwithstanding these nations described the Cas- pian Sea with wonderful exactness: but men are generally tenacious of their errors. When only the south of this sea was known, it was at first taken for the ocean ; in proportion as they advanced along the banks of the northern coast, instead of imagining it a great lake, they still believed it to be the ocean, that here made a sort of bay : surveying the coast, their dis- coveries never went eastward beyond the Jaxartes, nor west- ward farther than the extremity of Albania. The sea towards the north was shallow, and, of course, very unfit for navigation.^ Hence it was that they always looked upon this as the ocean.

The land army of Alexander had been on the east only as far as the Hypanis, which is the last of those rivers that fall into the Indus: thus the first trade which the Greeks carried on with the Indies was confined to a very small part of the coun- try. Seleucus Nicator penetrated as far as the Ganges, and thereby discovered the sea into which this river falls, that is to say, the Bay of Bengal.^ The moderns discover countries by voyages at sea; the ancients discovered seas by conquests at land.

Strabo,^ notwithstanding the testimony of Apollodorus,

/ See the Czar's Chart. g Pliny, lib. VI. cap. xvii. h Lib. XV.


THE SPIRIT OF LAWS 347

seems to doubt whether the Grecian kings of Bactria proceeded farther than Seleucus and Alexander.* Were it even true that they went no farther to the east than Seleucus, yet they went farther towards the south ; they discovered Siger, and the ports on the coast of Malabar, which gave rise to the navigation I am going to mention./

Pliny informs us that the navigation of the Indies was suc- cessively carried on in three dififerent ways.* At first they sailed from the Cape of Siagre to the island of Patalena, which is at the mouth of the Indus. This we find was the course that Alex- ander's fleet steered to the Indies. They took afterwards a shorter and more certain course, by sailing from the same cape or promontory to Siger : I this can be no other than the kingdom of Siger mentioned by Strabo,w and discovered by the Grecian kings of Bactria. Pliny, by saying that this way was shorter than the other, can mean only that the voyage was made in less time : for, as Siger was discovered by the kings of Bactria, it must have been farther than the Indus : by this passage they must, therefore, have avoided the winding of certain coasts, and taken advantage of particular winds. The merchants at last took a third way ; they sailed to Canes, or Ocelis, ports situated at the entrance of the Red Sea ; whence by a west wind they arrived at Muziris, the first staple town of the Indies, and thence to the other ports. Here we see that instead of sailing to the mouth of the Red Sea as far as Siagre, by coasting Arabia Felix to the northeast, they steered directly from west to east, from one side to the other, by means of the monsoons, whose regular course they discovered by sailing in these lati- tudes. The ancients never lost sight of the coasts, except when they took advantage of these and the trade winds, which were to them a kind of compass.w

Pliny says that they set sail for the Indies in the middle of summer and returned towards the end of December, or in the beginning of January. This is entirely conformable to our naval journals. In that part of the Indian Ocean which is be- tween the Peninsula of Africa, and that on this side the Ganges,

t'ApolIonius Adrumatinus in Strabo, fn Lib. XI. " Sigertidis regnum."

lib. II. n The monsoons blow part of the year

j The Macedonians of Bactria, India, from one quarter, and part from an-

and Ariana, having separated themselves other; the trade winds blow the whole

from Syria, formed a great state. year round from the same quarter.

k Lib. VI. cap. xxiii. o Lib. VI. cap. xxiii.

/Pliny, lib. VI. cap. xxiii.


348 MONTESQUIEU

there are two monsoons ; the first, during which the winds blow from west to east, begins in the month of August or September ; and the second, during which the wind is in the east, begins in January. Thus we set sail from Africa for Malabar at the sea- son of the year that Ptolemy's fleet used to put to sea thence ; and we return too at the same time as they.

Alexander's fleet was seven months in sailing from Patala to Susa. It set out in the month of July, that is, at a season when no ship dare now put to sea to return from the Indies. Be- tween these two monsoons there is an interval, during which the winds vary ; when a north wind, meeting with the common winds, raises, especially near the coasts, the most terrible tem- pests. These continue during the months of June, July, and August. Alexander's fleet, therefore, setting sail from Patala in the month of July, must have been exposed to many storms, and the voyage must have been long, because they sailed against the monsoon.

Pliny says that they set out for the Indies at the end of sum- mer ; thus they spent the time proper for taking advantage of the monsoon in their passage from Alexandria to the Red Sea.

Observe here, I pray, how navigation has, little by little, ar- rived at perfection. Darius's fleet was two years and a half in falling down the Indus and going to the Red Sea./* After- wards the fleet of Alexander,? descending the Indus, arrived at Susa in ten- months, having sailed three months on the Indus, and seven on the Indian Ocean ; at last the passage from the coast of Malabar to the Red Sea was made in forty days.r

Strabo,^ who accounts for their ignorance of the countries between the Hypanis and the Ganges, says there were very few of those who sailed from Egypt to the Indies that ever pro- ceeded so far as the Ganges. Their fleets, in fact, never went thither : they sailed with the western monsoons from the mouth of the Red Sea to the coast of Malabar. They cast anchor in the ports along that coast, and never attempted to get round the peninsula on this side the Ganges by Cape Comorin and the coast of Coromandel. The plan of navigation laid down by the kings of Egypt and the Romans was to set out and return the same year.^

p Herodotus, " Melpomene." 5 Lib. XV.

q Pliny, lib. VI. cap. xxiii. t Pliny, lib. VI. cap. xxiii.

r Ibid.


THE SPIRIT OF LAWS 349

Thus it is demonstrable that the commerce of the Greeks and Romans to the Indies was much less extensive than ours. We know immense countries, which to them were entirely un- known ; we traffic with all the Indian nations ; we even man- age their trade and carry on their commerce.

But this commerce of the ancients was carried on with far greater facility than ours. And if the moderns were to trade only with the coast of Guzerat and Malabar, and, without seek- ing for the southern isles, were satisfied with what these island- ers brought them, they would certainly prefer the way of Egypt to that of the Cape of Good Hope. Strabo informs us w that they traded thus with the people of Taprobane.

10. — Of the Circuit of Africa

We find from history that before the discovery of the mar- iner's compass four attempts were made to sail round the coast of Africa. The Phoenicians sent by Necho^' and Eu- doxus,w flying from the wrath of Ptolemy Lathyrus, set out from the Red Sea, and succeeded. Sataspes x sent by Xerxes, and Hanno by the Carthaginians, set out from the Pillars of Hercules, and failed in the attempt.

The capital point in surrounding Africa was to discover and double the Cape of Good Hope. Those who set out from the Red Sea found this cape nearer by half, than it would have been in setting out from the Mediterranean. The shore from the Red Sea is not so shallow as that from the cape to Hercules' Pillars.y The discovery of the cape by Hercules's Pillars was owing to the invention of the compass, which permitted them to leave the coast of Africa, and to launch out into the vast ocean, in order to sail towards the island of St. Helena, or towards the coast of Brazil.^ It was, therefore, possible for them to sail from the Red Sea into the Mediterranean, but not to set out from the Mediterranean to return by the Red Sea.

Thus, without making this grand circuit, after which they could hardly hope to return, it was most natural to trade to the

u Lib. XV. s In the months of October, Novem-

V He was desirous of conquering it. — ber, December, and January the wind

Herodotus, lib. IV. in the Atlantic Ocean is found to blow

w Pliny, lib. II. cap. Ixvii. ; Pomponius northeast; our ships therefore cross the

Mela. lib. III. cap. ix. line, and to avoid the wind, which is

X Herodotus, in " Melpomene." there generally east, they direct their

y Add to this what I shall say in chap. course to the south ; or else they enter

11 of this book on the navigation of into the torrid zone, in those places

Hanno. where the wind is west.


350 MONTESQUIEU

east of Africa by the Red Sea, and to the western coast by Her- cules' Pillars.

The Grecian kings of Egypt discovered at first, in the Red Sea, that part of the coast of Africa which extends from the bottom of the gulf, where stands the town of Heroum, as far as Dira, that is, to the strait now known by the name of Babel- mandel. Thence to the promontory of Aromatia, situate at the entrance of the Red Sea,o the coast had never been surveyed by navigators : and this is evident from what Artemidorus tells us,& that they were acquainted with the places on that coast, but knew not their distances : the reason of which is, they suc- cessively gained a knowledge of those ports by land, without sailing from one to the other.

Beyond this promontory, at which the coast along the ocean commenced, they knew nothing, as we learn from Eratosthenes and Artemidorus.c

Such was the knowledge they had of the coasts of Africa in Strabo's time, that is, in the reign of Augustus. But after the prince's decease, the Romans found out the two capes Raptum and Prassum, of which Strabo makes no mention, because they had not as yet been discovered. It is plain that both those names are of Roman origin.

Ptolemy, the geographer, flourished under Adrian and An- toninus Pius ; and the author of the Periplus of the Red Sea, whoever he was, lived a little after. Yet the former limits known Africa to Cape Prassum,^^ which is in about the 14th degree of south latitude ; while the author of the Periplus e con- fines it to Cape Raptum, which is nearly in the loth degree of the same latitude. In all likelihood the latter took his limit from a place then frequented, and Ptolemy his from a place with which there was no longer any communication.

What confirms me in this notion is that the people about Cape Prassum were Anthropophagi.^ Ptolemy takes notice g of a great number of places between the port or emporium Aromatum and Cape Raptum, but leaves an entire blank be-

a The sea to which we give this name called Austricornu ; and Eratosthenes,

was called by the ancients the Gulf of Cinnamomiferam.

Arabia; the name of Red Sea they gave d Lib. I. cap. vii.; lib. IV. cap. ix.

to that part of the ocean which borders table ^ of Africa,

on this gulf. e This Periplus is attributed to Arrian.

h Strabo, lib. XVI. / Ptol. lib. IV. cap. ix.

c Ibid. Artemidorus settled the bor- g Lib. IV. cap. vii. and viii. dcrs of the known coast at the place


THE SPIRIT OF LAWS 351

tween Capes Raptum and Prassum. The great profits of the East India trade must have occasioned a neglect of that of Africa. In fine, the Romans never had any settled navigation ; they had discovered these several ports by land expeditions, and by means of ships driven on that coast ; and as at present we are well acquainted with the maritime parts of Africa, but know very little of the inland country, the ancients, on the contrary, had a very good knowledge of the inland parts, but were al- most strangers to the coasts.^

I said that the Phoenicians sent by Necho and Eudoxus un- der Ptolemy Lathyrus had made the circuit of Africa ; but at the time of Ptolemy, the geographer, those two voyages must have been looked upon as fabulous, since he places after i the Sinus Magnus, which I apprehend to be the Gulf of Siam, an unknown country, extending from Asia to Africa, and terminat- ing at Cape Prassum, so that the Indian Ocean would have been no more than a lake. The ancients who discovered the Indies towards the north, advancing eastward, placed this un- known country to the south.

II. — Of Carthage and Marseilles

The law of nations which prevailed at Carthage was very ex- traordinary : all strangers who traded to Sardinia and towards Hercules* Pillars this haughty republic sentenced to be drowned. Her civil polity was equally surprising; she for- bade the Sardinians to cultivate their lands, upon pain of death. She increased her power by her riches, and afterwards her riches by her power. Being mistress of the coasts of Africa, which are washed by the Mediterranean, she extended herself along the ocean. Hanno, by order of the Senate of Carthage, distributed thirty thousand Carthaginians from Hercules' Pil- lars as far as Cerne. This place, he says, is as distant from Hercules' Pillars as the latter from Carthage. This situation is extremely remarkable. It lets us see that Hanno limited his settlements to the 25th degree of north latitude ; that is, to two or three degrees south of the Canaries.

h See what exact descriptions Strabo world had waged with the people of and Ptolemy have given us of the dif- Africa, to the alliances they had con- ferent parts of Africa. Their knowledge tracted, and to the trade they had car- was owing to the several wars which ried on with those countries, the two most powerful nations in the • Lib. VII. cap. iii.


352 MONTESQUIEU

Hanno being at Cerne undertook another voyage, with a view of making further discoveries towards the south. He took but little notice of the continent. He followed the coast for twenty-six days, when he was obliged to return for want of provisions. The Carthaginians, it seems, made no use of this second enterprise. Scylax says ; that the sea is not navigable beyond Cerne, because it is shallow, full of mud and sea-weeds : k and, in fact, there are many of these in those latitudes./ The Carthaginian merchants mentioned by Scylax might find ob- stacles which Hanno, who had sixty vessels of fifty oars each, had surmounted. Difficulties are at most but relative; be- sides, we ought not to confound an enterprise in which bravery and resolution must be exerted with things that require no ex- traordinary conduct.

The relation of Hanno's voyage is a fine fragment of an- tiquity. It was written by the very man that performed it.

His recital is not mingled with ostentation. Great com- manders write their actions with simplicity ; because they re- ceive more glory from facts than from words.

The style is agreeable to the subject ; he deals not in the marvellous. All he says of the climate, of the soil, the behavior, the manners of the inhabitants, correspond with what is every day seen on this coast of Africa; one would imagine it the journal of a modern sailor.

He observed from his fleet that in the daytime there was a prodigious silence on the continent, that in the night he heard the sound of various musical instruments, and that fires might then be everywhere seen, some larger than others.wt Our rela- tions are conformable to this ; it has been discovered that in the day the savages retire into the forests to avoid the heat of the sun, that they light up great fires in the night to dis- perse the beasts of prey, and that they are passionately fond of music and dancing.

The same writer describes a volcano with all the phenomena of Vesuvius ; and relates that he captured two hairy women,

■ See his " Periplus," under the article weed covers the surface of the water in

of Carthage. such a manner as to be scarcely per-

k See Herodotus, in " Melpomene," ceived, and ships can only pass through

on the obstacles which Sataspes en- it with a stiff gale,

countered. m Pliny tells us the same thing, speak-

/ See the charts and relations in the ing of Mount Atlas: " Noctibus micare

first volume of " Voyages that con- crebris ignibus, tibiarum cantu timpa-

tributed to the establishment of an East norumque sonitu strepere, neminem in-

India company," part I. p. 201. This terdiu cerni.'


THE SPIRIT OF LAWS 353

who chose to die rather than follow the Carthaginians, and whose skins he carried to Carthage. This has been found not void of probability.

This narration is so much the more valuable as it is a monu- ment of Punic antiquity ; and hence alone it has been regarded as fabulous. For the Romans retained their hatred of the Carthaginians, even after they had destroyed them. But it was victory alone that decided whether we ought to say the Punic or the Roman faith.

Some moderns n have imbibed these prejudices. What has become, say they, of the cities described by Hanno, of which even in Pliny's time there remained no vestiges ? But it would have been a wonder, indeed, if any such vestiges had remained. Was it a Corinth or Athens that Hanno built on those coasts ? He left Carthaginian families in such places as were most com- modious for trade, and secured them as well as his hurry would permit against savages and wild beasts. The calamities of the Carthaginians put a period to the navigation of Africa ; these families must necessarily then either perish or become savages. Besides, were the ruins of these cities even still in being, who is it that would venture into the woods and marshes to make the discovery ? We find, however, in Scylax and Polybius that the Carthaginians had considerable settlements on those coasts. These are the vestiges of the cities of Hanno ; there are no others, from the same reason that there are no others of Car- thage itself.

The Carthaginians were in the high road to wealth ; and had they gone so far as four degrees of north latitude, and fifteen of longitude, they would have discovered the Gold Coast. They would then have had a trade of much greater importance than that which is carried on at present on that coast, at a time when America seems to have degraded the riches of all other coun- tries. They would there have found treasures of which they could never have been deprived by the Romans.

Very surprising things have been said of the riches of Spain. If we may believe Aristotle,^ the Phoenicians who arrived at Tartessus found so much silver there that their ships could not hold it all ; and they made of this metal their meanest utensils.

n Mr. Dodwell. See his Dissertation " Of Wonderful Things."

on Hanno's " Periplus."

Vol. I. — 23


354 MONTESQUIEU

The Carthaginians,/' according to Diodorus,g found so much gold and silver in the Pyrenean mountains, that they adorned the anchors of their ships with it. But no foundation can be built on such popular reports. Let us, therefore, examine the facts themselves.

We find in a fragment of Polybius, cited by Strabo,*' that the silver mines at the source of the river Ba^tis, in which forty thousand men were employed, produced to the Romans twen- ty-five thousand drachmas a day, that is, about five million livres a year, at fifty livres to the mark. The mountains that contained these mines were called the Silver Mountains : s which shows they were the Potosi of those times. At present, the mines of Hanover do not employ a fourth part of the workmen, and yet they yield more. But as the Romans had not many copper mines, and but few of silver ; and as the Greeks knew none but the Attic mines, which were of little value, they might well be astonished at their abundance.

In the war that broke out for the succession of Spain, a man called the Marquis of Rhodes, of whom it was said that he was ruined in gold mines and enriched in hospitals,^ proposed to the Court of France to open the Pyrenean mines. He alleged the example of the Tyrians, the Carthaginians, and the Romans. He was permitted to search, but sought in vain ; he still alleged, and found nothing.

The Carthaginians, being masters of the gold and silver trade, were willing to be so of the lead and pewter. These metals were carried by land from the ports of Gaul upon the ocean to those of the Mediterranean. The Carthaginians were desirous of receiving them at the first hand ; they sent Himilco to make a settlement in the isles called Cassiterides,w which are imagined to be those of Scilly.

These voyages from Bsetica into England have made some persons imagine that the Carthaginians knew the compass : but it is very certain that they followed the coasts. There needs no other proof than Himilco's being four months in sailing from the mouth of the Bsetis to England ; besides, the famous piece of history of the Carthaginian i^ pilot who, being followed by a

p Diodorus speaks of the Phoenicians 5 " Mons Argentarius."

in this relation, and not of the Cartha- t He had some share in their manage-

ginians. — Ed. ment.

q Lib. III. u See Festus Avienus.

r Lib. VI. V Strabo, lib. III., towards the end


THE SPIRIT OF LAWS


355


Roman vessel, ran aground, that he might not show her the way to England,w plainly intimates that those vessels were very near the shore when they fell in with each other.

The ancients might have performed voyages that would make one imagine they had the compass, though they had not. If a pilot was far from land, and during his voyage had such serene weather that in the night he could always see a polar star-*^ and in the day the rising and setting of the sun, it is certain he might regulate his course as well as we do now by the compass : but this must be a fortuitous case, and not a regular method of navigation.

We see in the treaty which put an end to the first Punic war that Carthage was principally attentive to preserve the empire of the sea, and Rome that of the land. Hanno,^ in his nego- tiation with the Romans, declared that they should not be suf- fered even to wash their hands in the sea of Sicily ; they were not permitted to sail beyond the promontorium pulchrum; they were forbidden to trade in Sicily, Sardinia, and Africa, except at Carthage : ^ an exception that proves there was no design to favor them in their trade with that city.

In early times there had been very great wars between Car- thage and Marseilles a on the subject of fishing. After the peace they entered jointly into economical commerce. Mar- seilles at length grew jealous, especially as, being equal to her rival in industry, she had become inferior to her in power. This is the motive of her great fidelity to the Romans. The war be- tween the latter and the Carthaginians in Spain was a source of riches to Marseilles, which had now become their magazine. The ruin of Carthage and Corinth still increased the glory of Marseilles, and had it not been for the civil wars, in which this republic ought on no account to have engaged, she would have been happy under the protection of the Romans, who were not the least jealous of her commerce.

w He was rewarded by the senate of y Frenshemius's Supplement to Livy,

Carthage. 2d Decad.

X Montesquieu has been found fault s In the parts subject to the Cartha-

with in this construction, as though he ginians.

were giving the impression that there o Justin, lib. XLIII. cap. v, was more than one North Star.— Ed.


3s6 MONTESQUIEU

12. — The Isle of Delos — Mithridates

Upon the destruction of Corinth by the Romans, the mer- chants retired to Delos, an island which from religious con- siderations was looked upon as a place of safety : b besides, it was extremely well situated for the commerce of Italy and Asia, which, since the reduction of Africa and the weakening of Greece, had grown more important.

From the earliest times the Greeks, as we have already ob- served, sent colonies to Propontis and to the Euxine Sea — colonies which retained their laws and liberties under the Per- sians. Alexander, having undertaken his expedition against the barbarians only, did not molest these people.^ Neither does it appear that the kings of Pontus, who were masters of many of those colonies, ever deprived them of their own civil gov- ernment.rf

The power of those kings increased as soon as they sub- dued those cities.^ Mithridates found himself able to hire troops on every side ; to repair his frequent losses ; to have a multitude of workmen, ships, and military machines ; to pro- cure himself allies ; to bribe those of the Romans, and even the Romans themselves ; to keep the barbarians of Asia and Eu- rope in his pay ; f to continue the war for many years, and, of course, to discipline his troops, he found himself able to train them to arms, to instruct them in the military art of the Ro- mans,sr and to form considerable bodies out of their deserters ; in a word, he found himself able to sustain great losses, and to be frequently defeated, without being ruined ; h neither would he have been ruined if the voluptuous and barbarous king had not destroyed, in his prosperous days, what had been done by the great prince in times of adversity.

Thus it was that when the Romans had arrived at their high- est pitch of grandeur, and seemed to have nothing to appre-

6 See Strabo, lib. X. e See Appian, in regard to the im-

c He confirmed the liberty of the city mense treasures which Mithridates em-

of Amisus, an Athenian colony which plowed in his wars, those which he had

had enjoyed a popular government, even buried, those which he frequently lost

under the kings of Persia. Lucullus by the treachery of his own people, and

having taken Sinone and Amisus, re- those which were found after his death.

stored them to their liberty, and recalled f See Appian on the Mithridatic war.

the inhabitants, who had fled on board g Ibid.

their ships. h He lost at one time 170,000 men, yet

d See what Appian writes concerning he soon recruited his armies.

the Phanagoreans, the Amisians, and

the Synopians, in his treatise of the

Mithridatic war.


THE SPIRIT OF LAWS 357

hend but from the ambition of their own subjects, Mithridates once more ventured to contest the mighty point, which the overthrows of PhiHp, of Antiochus, and of Perseus had already decided. Never was there a more destructive war: the two contending parties, being possessed of great power, and re- ceiving alternate advantages, the inhabitants of Greece and of Asia fell a sacrifice in the quarrel, either as foes, or as friends of Mithridates. Delos was involved in the general fatality, and commerce failed on every side : which was a necessary conse- quence, the people themselves being destroyed.

The Romans, in pursuance of a system of which I have spoken elsewhere,* acting as destroyers, that they might not appear as conquerors, demolished Carthage and Corinth; a practice by which they would have ruined themselves had they not subdued the world. When the kings of Pontus became masters of the Greek colonies on the Euxine Sea, they took care not to destroy what was to be the foundation of their own gran- deur.

13. — Of the Genius of the Romans as to Maritime Affairs

The Romans laid no stress on anything but their land forces, who were disciplined to stand firm, to fight on one spot, and there bravely to die. They could not like the practice of sea- men, who first ofifer to fight, then fly, then return, constantly avoid danger, often make use of stratagem, and seldom of force. This was not suitable to the genius of the Greeks,; much less to that of the Romans.

They destined, therefore, to the sea only those citizens who were not considerable enough to have a place in their legions.^ Their marines were commonly treed-men.

At this time we have neither the same esteem for land forces nor the same contempt for those of the sea. In the former, art has decreased ; i in the latter, it has augmented : m now things are generally esteemed in proportion to the degree of ability requisite to discharge them.

t In the " Considerations on the k Polybius, lib. V.

Causes of the Rise and Declension of I See the " Considerations on the

the Roman Grandeur," Causes of the Rise and Declension of

■ As Plato has observed, lib. IV., of the Roman Grandeur."

Laws. »t Ibid.


358 MONTESQUIEU


14. — Of the Genius of the Romans with respect to Commerce

The Romans were never distinguished by a jealousy for trade. They attacked Carthage as a rival, not as a commercial nation. They favored trading cities that were not subject to them. Thus they increased the power of Marseilles by the cession of a large territory. They were vastly afraid of bar- barians, but had not the least apprehension from a trading peo- ple. Their genius, their glory, their military education, and the very form of their government estranged them from com- merce.

In the city, they were employed only about war, elections, factions, and law-suits ; in the country, about agriculture ; and as for the provinces, a severe and tyrannical government was incompatible with commerce.

But their political constitution was not more opposed to trade than their law of nations. " The people," says Pomponius, the civilian,^ " with whom we have neither friendship nor hos- pitality nor alliance, are not our enemies ; however, if anything belonging to us falls into their hands, they are the proprietors of it ; freemen become their slaves ; and they are upon the same terms with respect to us."

Their civil law was not less oppressive. The law of Con- stantine,o after having stigmatized as bastards the children of a mean rank who had been married to those of a superior sta- tion, confounds women who retail merchandise with slaves, with the mistresses of taverns, with actresses, with the daugh- ters of those who keep public stews, or who had been con- demned to fight in the amphitheatre: this had its origin in the ancient institutions of the Romans.

I am not ignorant that men prepossessed with these two ideas, that commerce is of the greatest service to a state, and that the Romans had the best regulated government in the world, have believed that these people greatly honored and encouraged commerce ; but the truth is, they seldom troubled their heads about it.

n Leg. V. ff. " de Captivis." Quae mercimoniis publice prsefuit.--

Leg. V. cod. " de natural, liberis."


THE SPIRIT OF LAWS 359

15.— 0/ the Commerce of the Romans with the Barbarians

The Romans having erected a vast empire in Europe, Asia, and Africa, the weakness of the people and the tyranny of their laws united all the parts of this immense body. The Roman policy was then to avoid all communication with those nations whom they had not subdued : the fear of carrying to them the art of conquering made them neglect the art of enriching them- selves. They made laws to hinder all commerce with bar- barians. " Let nobody ,'* said Valens and Gratian,^ " send wine, oil, or other liquors to the barbarians, though it be only for them to taste." Let no one carry gold to them," add Gratian, Valentinian, and Theodosius ; Q. " rather, if they have any, let our subjects deprive them of it by stratagem." The exportation of iron was prohibited on pain of death.

Domitian, a prince of great timidity, ordered the vines in Gaul to be pulled up,r from fear, no doubt, lest their wines should draw thither the barbarians. Probus and Julian, who had no such fears, gave orders for their being planted again.

I am sensible that upon the declension of the Roman Em- pire the barbarians obliged the Romans to establish staple towns, and to trade with them.^ But even this is a proof that the minds of the Romans were averse to commerce.*

16. — Of the Commerce of the Romans with Arabia and the

Indies

The trade to Arabia Felix, and that to the Indies, were the two branches, and almost the only ones, of their foreign com- merce. The Arabians were possessed of immense riches, which they found in their seas and forests ; and as they sold much and purchased little, they drew to themselves the gold and silver of the Romans.w Augustus,^ being well apprised of that opu- lence, resolved they should be either his friends or his enemies. With this view he sent yElius Gallus from Egypt into Arabia. This commander found the people indolent, peaceable, and un- skilled in war. He fought battles, laid sieges to towns, and lost but seven of his men by the sword ; but the perfidy of his

p Leg. ad barbaricum cod. quae res t See the " Considerations on the

exportari non debeant. Causes of the Rise and Declension of

Q Leg. 2 cod. de commerc. et mercator. the Roman Grandeur."

r Leg. 2 quse res exportari non de- u Pliny, lib. VI. cap. xxviii., and

beant, and Procopius, " War of the Strabo, lib. XVI.

Persians," book I. v Ibid.

s See the Chronicles of Eusebius and Cedrenus.


36o MONTESQUIEU

guides, long marches, the dimate, want of provisions, distem- pers, and ill conduct, caused the ruin of his army.

He was, therefore, obliged to be content with trading to Arabia, in the same manner as other nations; that is, with giving them gold and silver in exchange for their commodi- ties. The Europeans trade with them still in the same manner ; the caravans of Aleppo and the royal vessel of Suez carry thither immense sums.w

Nature had formed the Arabs for commerce, not for war; but when those quiet people came to be near neighbors to the Parthians and the Romans, they acted as auxiliaries to both nations, ^lius Gallus found them a trading people; Ma- homet happened to find them trained to war ; he inspired them with enthusiasm, which led them to glory and conquest.

The commerce of the Romans to the Indies was very con- siderable. Strabo x had been informed in Egypt that they em- ployed in this navigation one hundred and twenty vessels ; this commerce was carried on entirely with bullion. They sent thither annually fifty milHons of sesterces. Pliny y says that the merchandise brought thence was sold at Rome at a centuple cent, profit. He speaks, I believe, too generally ; if this trade had been so vastly profitable, everybody would have been will- ing to engage in it, and then it would have been at an end.

It will admit of a question, whether the trade to Arabia and the Indies was of any advantage to the Romans. They were obliged to export their bullion thither, though they had not, like us, the resource of America, which supplies what we send away. I am persuaded that one of the reasons of their increas- ing the value of their specie by establishing base coin was the scarcity of silver, owing to the continual exportation of it to the Indies : and though the commodities of this country were sold at Rome at a centuple rate, this profit of the Romans, being obtained from the Romans themselves, could not enrich the empire.

It may be alleged, on the other hand, that this commerce in- creased the Roman navigation, and, of course, their power; that new merchandise augmented their inland trade, gave en-

wThe caravans of Aleppo and Suez sel of Suez carries thither also two

carry thither annually to the value of millions, about two millions of livres, and as x Lib. II. p. 8i.

much more clandestinely ; the royal ves- y Lib. VI. cap. xxiii.


THE SPIRIT OF LAWS 361

couragement to the arts, and employment to the industrious ; that the number of subjects multipHed in proportion to the new- means of support ; that this new commerce was productive of luxury, which I have proved to be as favorable to a monarch- ical government as fatal to a commonwealth ; that this estab- lishment was of the same date as the fall of their republic ; that the luxury of Rome had become necessary; and that it was extremely proper that a city which had accumulated all the wealth of the universe should refund it by its luxury.

Strabo says a that the Romans carried on a far more exten- sive commerce with the Indies than the kings of Egypt ; but it is very extraordinary that those people who were so little ac- quainted with commerce should have paid more attention to that of India than the Egyptian kings, whose dominions lay so conveniently for it. The reason of this must be explained.

After the death of Alexander, the kings of Egypt established a maritime commerce with the Indies ; while the kings of Syria, who were possessed of the more eastern provinces, and consequently of the Indies, maintained that commerce of which we have taken notice in the sixth chapter, which was carried on partly by land, and partly by rivers, and had been further facilitated by means of the Macedonian colonies; insomuch that Europe had communication with the Indies both by Egypt and by Syria. The dismembering of the latter kingdom, whence was formed that of Bactriana, did not prove in any way prejudicial to this commerce. Marinus the Tyrian, quoted by Ptolemy,^ mentions the discoveries made in India by means of some Macedonian merchants, who found out new roads, which had been unknown to kings in their military expeditions. We find in Ptolemy,*^ that they went from Peter's tower,^ as far as Sera ; and the discovery made by mercantile people of so distant a mart, situated in the northeast part of China, was a kind of prodigy. Hence, under the kings of Syria and Bac- triana, merchandise was conveyed to the west from the south- ern parts of India, by the River Indus, the Oxus, and the Cas- pian Sea ; while those of the more eastern and northern parts were transported from Sera, Peter's tower, and other staples,

a He says, in his 12th book, that the b Lib. I. cap, ii.

Romans employed a hundred and c Lib. I. cap. xiii.

twenty ships in that trade; and in the d Our best maps place Peter's tower

17th book, that the Grecian kings in the hundredth degree of longitude,

scarcely employed twenty. and about the fortieth of latitude.


362 MONTESQUIEU

as far as the Euphrates. Those merchants directed their route nearly by the fortieth degree of north latitude, through coun- tries situated to the west of China, more civilized at that time than at present, because they had not as yet been infested by the Tartars.

Now while the Syrian Empire was extending its trade to such a distance by land, Egypt did not greatly enlarge its maritime commerce.

The Parthians soon after appeared, and founded their em- pire ; and when Egypt fell under the power of the Romans, this empire was at its height, and had received its whole extension.

The Romans and Parthians were two rival nations, that fought not for dominion but for their very existence. Be- tween the two empires deserts were formed and armies were always stationed on the frontiers ; so that instead of there being any commerce, there was not so much as communication be- tween them. Ambition, jealousy, religion, national antipathy, and difference of manners completed the separation. Thus the trade from east to west, which had formerly so many channels, was reduced to one ; and Alexandria becoming the only staple, the trade to this city was immensely enlarged.

We shall say but one word of their inland trade. Its principal branch was the corn brought to Rome for the subsistence of the people ; but this was rather a political affair than a point of commerce. On this account the sailors were favored with some privileges, because the safety of the empire depended on their vigilance.^

17. — Of Commerce after the Destruction of the Western Empire

After the invasion of the Roman Empire one effect of the general calamity was the destruction of commerce. The bar- barous nations at first regarded it only as an opportunity for robbery ; and when they had subdued the Romans, they hon- ored it no more than agriculture, and the other professions of a conquered people.

Soon was the commerce of Europe almost entirely lost. The nobility, who had everywhere the direction of affairs, were in no pain about it.

e Suet, in " Claudio," leg. 8 cod. Theodosis. " de Naviculiariis."


THE SPIRIT OF LAWS 363

The laws of the Visigoths f permitted private people to oc- cupy half the beds of great rivers, provided the other half re- mained free for nets and boats. There must have been very little trade in countries conquered by these barbarians.

In those times were established the ridiculous rights of escheatage and shipwrecks. These men thought that, as strangers were not united to them by any civil law, they owed them on the one hand no kind of justice, and on the other no sort of pity.

In the narrow bounds which nature had originally prescribed to the people of the North, all were strangers to them : and in their poverty they regarded all only as contributing to their riches. Being established, before their conquest, on the coasts of a sea of very little breadth, and full of rocks, from these very rocks they drew their subsistence.

But the Romans, who made laws for all the world, had es- tablished the most humane ones with regard to shipwrecks.^ They suppressed the rapine of those who inhabited the coasts, and what was more still, the rapacity of their treasuries./t

18. — A particular Regulation

The law of the Visigoths made, however, one regulation in favor of commerce.* It ordained that foreign merchants should be judged, in the differences that arose among themselves, by the laws and by judges of their own nation. This was founded on an established custom among all mixed people, that every man should live under his own law — a custom of which I shall speak more at large in another place.

19. — Of Commerce after the Decay of the Roman Power in the East

The Mahommedans appeared, conquered, extended, and dis- persed themselves. Egypt had particular sovereigns; these carried on the commerce of India, and being possessed of the merchandise of this country, drew to themselves the riches of all other nations. The sultans of Egypt were the most powerful princes of those times. History informs us with what a con-

/ Lib. VIII. tit. 4, sec. 9. h Leg. i cod. de naufragiis.

g Toto titulo fJ. de incend. ruin, et « Lib. II. tit. 3, sec. a.

naufrag. and cod. de naufragiis, and leg. 3 ff. ad leg. Cornel, de sicariis.


364 MONTESQUIEU

stant and well regulated force they stopped the ardor, the fire, and the impetuosity of the crusades.

20. — How Commerce broke through the Barbarism of Europe

Aristotle's philosophy being carried to the west, pleased the subtle geniuses who were the virtuosi of those times of ig- norance. The schoolmen were infatuated with it, and bor- rowed from the philosopher / a great many notions on lending upon interest, whereas its source might have been easily traced in the gospel ; in short, they condemned it absolutely and in all cases. Hence commerce, which was the profession only of mean persons, became that of knaves ; for whenever a thing is forbidden, which nature permits or necessity requires, those who do it are looked upon as dishonest.

Commerce was transferred to a nation covered with infamy, and soon ranked with the most shameful usury, with monopo- lies, with the levying of subsidies, and with all the dishonest means of acquiring wealth.

The Jews, enriched by their exactions, were pillaged by the tyranny of princes ; which pleased indeed, but did not ease, the people.^

What passed in England may serve to give us an idea of what was done in other countries. King John I having imprisoned the Jews, in order to obtain their wealth, there were few who had not at least one of their eyes plucked out. Thus did that king administer justice. A certain Jew, who had a tooth pulled out every day for seven days successively, gave ten thousand marks of silver for the eighth. Henry IH extorted from Aaron, a Jew at York, fourteen thousand marks of silver, and ten thou- sand for the queen. In those times they did by violence what is now done in Poland with some semblance of moderation. As princes could not dive into the purses of their subjects because of their privileges, they put the Jews to the torture, who were not considered as citizens.

At last a custom was introduced of confiscating the effects of those Jews who embraced Christianity. This ridiculous cus-

i See Aristot. " Polit." lib. I, cap. ix. in the year 1206, between the King, the

and X. Countess of Champagne, and Guy of

k See in " Marca Hispanica," the con- Dampierre.

stitutions of Aragon, in the years 1228 / Stowe's " Survey of London," book

and 1231 ; and in Brussel, the agreement. III,, p. 54.


THE SPIRIT OF LAWS 365

torn is known only by the law which suppressed it.w The most vain and trifling reasons were given in justification of that pro- ceeding ; it was alleged that it was proper to try them, in order to be certain that they had entirely shaken off the slavery of the devil. But it is evident that this confiscation was a species of the right of amortization, to recompense the prince, or the lords, for the taxes levied on the Jews, which ceased on their embracing Christianity.^ In those times, men, like lands, were regarded as property. I cannot help remarking, by the way, how this nation has been sported with from one age to another : at one time, their effects were confiscated when they were willing to become Christians ; and at another, if they re- fused to turn Christians, they were ordered to be burned.

In the meantime, commerce was seen to arise from the bosom of vexation and despair. The Jews, proscribed by turns from every country, found out the way of saving their effects. Thus they rendered their retreats forever fixed ; for though princes might have been willing to get rid of their persons, yet they did not choose to get rid of their money.

The Jews invented letters of exchange ; commerce, by this method, became capable of eluding violence, and of maintain- ing everywhere its ground ; the richest merchant having none but invisible effects, which he could convey imperceptibly wher- ever he pleased.

The Theologians were obliged to limit their principles ; and commerce, which they had before connected by main force with knavery, re-entered, if I may so express myself, the bosom of probity.

Thus we owe to the speculations of the schoolmen all the misfortunes which accompanied the destruction of commerce ; P and to the avarice of princes, the establishment of a practice which puts it in some measure out of their power.

From this time it became necessary that princes should gov-

m The edict passed at Baville, 4th of who were chased from France took

April, 1392. , refuge in Lombardy, and that there they

n In France the Jews were slaves in gave to foreign merchants and travellers

mortmain, and the lords their succes- secret letters, drawn upon those to

sors. Mr. Brussel mentions an agree- whom they had intrusted their effects

ment made in the year 1206, between the in France, which were accepted.

King and Thibaut, Count of Cham- p See the 83d novel of the Emperor

pagne, by which it was agreed that the Leo, which revokes the law of Basil his

Tews of the one should not lend in the father. This law of Basil is in Her-

lands of the other. menopulus, under the name of Leo, lib.

It is known that under Philip Au- III. tit. 7, sec. 27. gustus and Philip the Long, the Jews


366 MONTESQUIEU

ern with more prudence than they themselves could ever have imagined ; for great exertions of authority were, in the event, found to be impolitic ; and from experience it is manifest that nothing but the goodness and lenity of a government can make it flourish.

We begin to be cured of Machiavelism, and recover from it every day. More moderation has become necessary in the councils of princes. What would formerly have been called a master-stroke in politics would be now, independent of the horror it might occasion, the greatest imprudence.

Happy is it for men that they are in a situation in which, though their passions prompt them to be wicked, it is, never- theless, to their interest to be humane and virtuous.


21. — The Discovery of two new Worlds, and in what Manner Europe is affected hy it

The compass opened, if I may so express myself, the uni- verse. Asia and Africa were found, of which only some borders were known ; and America, of which we knew nothing.

The Portuguese, sailing on the Atlantic Ocean, discovered the most southern point of Africa ; they saw a vast sea, which carried them to the East Indies. Their danger upon this sea, the discovery of Mozambique, Melinda, and Calicut, have been sung by Camoens, whose poems make us feel something of the charms of the " Odyssey " and the magnificence of the " ^neid."

The Venetians had hitherto carried on the trade of the Indies through the Turkish dominions, and pursued it in the midst of oppressions and discouragements. By the discovery of the Cape of Good Hope, and those which were made some time after, Italy was no longer the centre of the trading world ; it was, if I may be permitted the expression, only a corner of the universe, and is so still. The commerce even of the Levant depending now on that of the great trading nations to both the Indies, Italy even in that branch can no longer be con- sidered as a principal.

The Portuguese traded to the Indies in right of conquest. The constraining laws which the Dutch at present impose on


THE SPIRIT OF LAWS 367

the commerce of the Httle Indian princes had been estabUshed before by the Portuguese.^

The fortune of the house of Austria was prodigious. Charles V succeeded to the possession of Burgundy, Castile, and Ara- gon ; he arrived afterwards at the imperial dignity ; and to pro- cure him a new kind of grandeur, the globe extended itself, and there was seen a new world paying him obeisance.

Christopher Columbus discovered America; and though Spain sent thither only a force so small that the least prince in Europe could have sent the same, yet it subdued two vast em- pires, and other great states.

While the Spaniards discovered and conquered the west, the Portuguese pushed their conquests and discoveries in the east. These two nations met each other ; they had recourse to Pope Alexander VI, who made the celebrated Hne of partition, and determined the great suit.

But the other nations of Europe would not suffer them quietly to enjoy their shares. The Dutch chased the Portu- guese from almost all their settlements in the East Indies ; and several other nations planted colonies in America.

The Spaniards considered these new-discovered countries as the subject of conquest; while others, more refined in their views, found them to be the proper subjects of commerce, and upon this principle directed their proceedings. Hence several nations have conducted themselves with so much wisdom that they have given a kind of sovereignty to companies of mer- chants, who, governing these far distant countries only with a view to trade, have made a great accessory power without em- barrassing the principal state.

The colonies they have formed are under a kind of de- pendence, of which there are but very few instances in all the colonies of the ancients ; whether we consider them as holding of the state itself, or of some trading company established in the state.

The design of these colonies is, to trade on more advan- tageous conditions than could otherwise be done with the neighboring people, with whom all advantages are reciprocal. It has been estabUshed that the metropolis,*- or mother country, alone shall trade in the colonies, and that from very good rea-

q See the " Relation of Fr. Pirard," r This, in the language of the ancients,

part II. chap. xv. is the state which founded the colony.


368 MONTESQUIEU

son ; because the design of the settlement was the extension of commerce, not the foundation of a city or of a new empire.

Thus it is still a fundamental law of Europe that all com- merce with a foreign colony shall be regarded as a mere mon- opoly, punishable by the laws of the country ; and in this case we are not to be directed by the laws and precedents of the ancients, which are not at all applicable.-?

It is likewise acknowledged that a commerce established be- tween the mother countries does not include a permission to trade in the colonies ; for these always continue in a state of prohibition.

The disadvantage of a colony that loses the liberty of com- merce is visibly compensated by the protection of the mother country, who defends it by her arms, or supports it by her laws.

Hence follows a third law of Europe, that when a foreign commerce with a colony is prohibited, it is not lawful to trade in those seas, except in such cases as are excepted by treaty.

Nations who are, with respect to the whole globe, what indi- viduals are in a state, are governed like the latter by the laws of nature, and by particular laws of their own making. One na- tion may resign to another the sea, as well as the land. The Carthaginians forbade the Romans to sail beyond certain limits,^ as the Greeks had obliged the King of Persia to keep as far distant from the sea-coast as a horse could gallop."

The great distance of our colonies is not an inconvenience that afifects their safety ; for if the mother country, on whom they depend for their defence, is remote, no less remote are those nations who rival the mother country, and by whom they may be afraid of being conquered.

Besides, this distance is the cause that those who are estab- lished there cannot conform to the manner of living in a climate so different from their own; they are obliged, therefore, to draw from the mother country all the conveniences of life. The Carthaginians,^ to render the Sardinians and Corsicans more dependent, forbade their planting, sowing, or doing anything of the kind, under pain of death ; so that they supplied them with necessaries from Africa.

J Except the Carthaginians, as we see by treaty not to sail with any vessel of by the treaty which put an end to the war beyond the Cyanean rocks and the first Punic war. Chelidonean isles.— Plutarch, in the

t Polyb. lib. III. " Life of Cimon."

«The King of Persia obliged himself r Aristotle on "Wonderful Things";

J^ivy, lib. VII. dec. 2.


THE SPIRIT OF LAWS 369

The Europeans have compassed the same thing, without hav- ing recourse to such severe laws. Our colonies in the Carib- bean Islands are under an admirable regulation in this respect ; the subject of their commerce is what we neither have nor can produce ; and they want what is the subject of ours.

A consequence of the discovery of America was the con- necting Asia and Africa with Europe; it furnished materials for a trade with that vast part of Asia known by the name of the East Indies. Silver, that metal so useful as the medium of commerce, became now as merchandise the basis of the great- est commerce in the world. In fine, the navigation to Africa became necessary, in order to furnish us with men to labor in the mines, and to cultivate the lands of America.

Europe has arrived at so high a degree of power that noth- ing in history can be compared with it, whether we consider the immensity of its expenses, the grandeur of its engagements, the number of its troops, and the regular payment even of those that are least serviceable, and which are kept only for osten- tation.

Father Du Halde says w that the interior trade of China is much greater than that of all Europe. That might be, if our foreign trade did not augment our inland commerce. Europe carries on the trade and navigation of the other three parts of the world ; as France, England, and Holland do nearly that of Europe.

22. — Of the Riches which Spain drew from America

If Europe has derived so many advantages from the Amer- ican trade, it seems natural to imagine that Spain must have derived much greater.^ She drew from the newly discovered world so prodigious a quantity of gold and silver, that all we had before could not be compared with it.

But (what one could never have expected) this great king- dom was everywhere baffled by its misfortunes. Philip II, who succeeded Charles V, was obliged to make the celebrated bank- ruptcy known to all the world. There never was a prince who suffered more from the murmurs, the insolence, and the revolt of troops constantly ill paid.

wTom. ii. p. 170. about twenty years ago; which has been

fThis has been already shown in a almost entirely incorporated in the

small treatise written by the author present work.

Vol,. I. — 24


370 MONTESQUIEU

From that time the monarchy of Spain has been incessantly declining. This has been owing to an interior and physical de- fect in the nature of those riches, which renders them vain — a defect which increases every day.

Gold and silver are either a fictitious or a representative wealth. The representative signs of wealth are extremely dur- able, and, in their own nature, but little subject to decay. But the more they are multipHed, the more they lose their value, because the fewer are the things which they represent.

The Spaniards, after the conquest of Mexico and Peru, aban- doned their natural riches, in pursuit of a representative wealth which daily degraded itself. Gold and silver were extremely scarce in Europe, and Spain becoming all of a sudden mistress of a prodigious quantity of these metals, conceived hopes to which she had never before aspired. The wealth she found in the conquered countries, great as it was, did not, however, equal that of her mines. The Indians concealed part of them ; and besides, these people, who made no other use of gold and silver than to give magnificence to the temples of their gods and to the palaces of their kings, sought not for it with an avarice like ours. In short, they had not the secret of drawing these metals from every mine; but only from those in which the separation might be made with fire : they were strangers to the manner of making use of mercury, and perhaps to mercury itself.

However, it was not long before the specie of Europe was doubled ; this appeared from the price of commodities, which everywhere was doubled.

The Spaniards raked into the mines, scooped out mountains, invented machines to draw out water, to break the ore, and separate it ; and as they sported with the lives of the Indians, they forced them to labor without mercy. The specie of Eu- rope soon doubled, and the profit of Spain diminished in the same proportion; they had every year the same quantity of metal, which had become by one-half less precious.

In double the time the specie still doubled, and the profit still diminished another half.

It diminished even more than half : let us see in what man- ner.

To extract the ^old frpm the mines, to give it the requisite


THE SPIRIT OF LAWS


371


preparations, and to import it into Europe, must be attended with some certain expense. I will suppose this to be as i to 64. When the specie was once doubled, and consequently became by one-half less precious, the expense was as 2 to 64. Thus the galoons which brought to Spain the same quantity of gold, brought a thing which really was of less value by one-half, though the expenses attending it had been twice as high.

If we proceed doubHng and doubling, we shall find in this progression the cause of the impotency of the wealth of Spain.

It is about two hundred years since they have worked their Indian mines. I suppose the quantity of specie at present in the trading world is to that before the discovery of the Indies as 32 is to I ; that is, it has been doubled five times : in two hundred years more the same quantity will be to that before the dis- covery as 64 is to I ; that is, it will be doubled once more. Now, at present, fifty quintals of ore yield four, five, and six ounces of gold ; y and when it yields only two, the miner receives no more from it than his expenses. In two hundred years, when the miner will extract only four, this too will only defray his charges. There will then be but little profit to be drawn from the gold mines. The same reasoning will hold good of silver, except that the working of the silver mines is a little more ad- vantageous than those of gold.

But, if mines should be discovered so fruitful as to give a much greater profit, the more fruitful they may be, the sooner the profit will cease.

The Portuguese in Brazil have found mines of gold so rich,5 that they must necessarily very soon make a considerable diminution in the profits of those of Spain, as well as in their own.

I have frequently heard people deplore the blindness of the Court of France, who repulsed Christopher Columbus, when he made the proposal of discovering the Indies.^ Indeed they did, though perhaps without design, an act of the greatest wis- dom. Spain has behaved like the foolish king who desired that

y See Frezier's " Voyages." were far from being so considerable an

s According to Lord Anson, Europe item as they are at present,

receives every year from Brazil two a Voltaire deplores the insufficiency of

millions sterling in gold, which is found Montesquieu's knowledge upon finance

jn sand at the foot of the mountains, or and commerce, saying that these prin-

in the beds of rivers. When I wrote the ciples were not then discovered, or, at

little treatise mentioned in the first note least, had not been developed in his

of this chapter the returns from Brazil time.— Ed.


372 MONTESQUIEU

everything he touched might be converted into gold, and who was obHged to beg of the gods to put an end to his misery.

The companies and banks estabHshed in many nations have put a finishing stroke to the lowering of gold and silver as a sign of representation of riches ; for by new fictions they have multiplied in such a manner the signs of wealth, that gold and' silver having this office only in part have become less precious.

Thus public credit serves instead of mines, and diminishes the profit which the Spaniards drew from theirs.

True it is that the Dutch trade to the East Indies has in- creased, in some measure, the value of the Spanish merchan- dise : b for as they carry bullion, and give it in exchange for the merchandise of the East, they ease the Spaniards of part of a commodity which in Europe abounds too much.

And this trade, in which Spain seems to be only indirectly concerned, is as advantageous to that nation as to those who are directly employed in carrying it on.

From what has been said we may form a judgment of the last order of the Council of Spain, which prohibits the making use of gold and silver in gildings, and other superfluities ; a decree as ridiculous as it would be for the states of Holland to prohibit the consumption of spices.

My reasoning does not hold good against all mines ; those of Germany and Hungary, which produce little more than the expense of working them, are extremely useful. They are found in the principal state ; they employ many thousand men, who there consume their superfluous commodities, and they are properly a manufacture of the country.

The mines of Germany and Hungary promote the culture of land ; the working of those of Mexico and Peru destroys it.

The Indies and Spain are two powers under the same master ; but the Indies are the principal, while Spain is only an acces- sory. It is in vain for politics to attempt to bring back the principal to the accessory; the Indies will always draw Spain to themselves.

Of the merchandise, to the value of about fifty millions of livres, annually sent to the Indies, Spain furnishes only two millions and a half: the Indies trade for fifty millions, the Spaniards for two and a half.

h Voltaire holds that the Spaniards that they were obliged to draw such had no manufactures of their own, and supplies from abroad. — Ed.


THE SPIRIT OF LAWS 373

That must be a bad kind of riches which depends on accident, and not on the industry of a nation, on the number of its inhab- itants, and on the cultivation of its lands. The King of Spain, who receives great sums from his custom-house at Cadiz, is in this respect only a rich individual in a state extremely poor. Everything passes between strangers and himself, while his subjects have scarcely any share in it; this commerce is inde- pendent both of the good and bad fortune of his kingdom.

Were some provinces of Castile able to give him a sum equal to that of the custom-house of Cadiz, his power would be much greater; his riches would be the effect of the wealth of the country; these provinces would animate all the others, and they would be altogether more capable of supporting their re- spective charges ; instead of a great treasury he would have a great people.

23. — A Problem

It is not for me to decide the question whether if Spain be not herself able to carry on the trade of the Indies, it would not be better to leave it open to strangers. I will only say that it is for their advantage to load this commerce with as few obstacles as politics will permit. When the merchandise which several nations send to the Indies is very dear, the inhabitants of that country give a great deal of their commodities, which are gold and silver, for very little of those of foreigners ; the contrary to this happens when they are at a low price. It would perhaps be of use that these nations should undersell each other, to the end that the merchandise carried to the Indies might be always cheap. These are principles which deserve to be ex- amined, without separating them, however, from other con- siderations: the safety of the Indies, the advantages of only one custom-house, the danger of making great alterations, and the foreseen inconveniences, which are often less dangerous than those which cannot be foreseen.


BOOK XXII

OF LAWS IN RELATION TO THE USE OF MONEY

I. — The Reason of the Use of Money

PEOPLE who have Httle merchandise, as savages, and among civilized nations those who have only two or three species, trade by exchange. Thus the caravans of Moors that go to Timbuctoo, in the heart of Africa, have no need of money, for they exchange their salt for gold. The Moor puts his salt in a heap, and the Negro his dust in an- other ; if there is not gold enough, the Moor takes away some of his salt, or the Negro adds more gold, till both parties are agreed.

But when a nation traffics with a great variety of merchan- dise, money becomes necessary ; because a metal easily carried from place to place saves the great expenses which people would be obliged to be at if they always proceeded by exchange.

As all nations have reciprocal wants, it frequently happens that one is desirous of a large quantity of the other's merchan- dise, when the latter will have very little of theirs, though with respect to another nation the case is directly opposite. But when nations have money, and proceed by buying and selling, those who take most merchandise pay the balance in specie. And there is this difference, that in the case of buying, the trade carried on is in proportion to the wants of the nation that has the greatest demands ; whilst in bartering, the trade is only according to the wants of the nation whose demands are the fewest; without which the latter would be under an impossi- bility of balancing its accounts.

2. — Of the Nature of Money

Money is a sign which represents the value of all merchan- dise. Metal is taken for this sign, as being durable,^ because

a The salt made use of for this purpose in Abyssinia has this defect, that it is continually wasting away.

374


THE SPIRIT OF LAWS 375

it consumes but little by use ; and because, without being de- stroyed, it is capable of many divisions. A precious metal has been chosen as a sign, as being most portable. A metal is most proper for a common measure, because it can be easily reduced to the same standard. Every state fixes upon it a particular impression, to the end that the form may correspond with the standard and the weight, and that both may be known by in- spection only.

The Athenians, not having the use of metals, made use of oxen,& and the Romans of sheep ; but one ox is not the same as another ox in the manner that one piece of metal may be the same as another.

As specie is the sign of the value of merchandise, paper is the sign of the value of specie ; and when it is of the right sort, it represents this value in such a manner that as to the effects produced by it there is not the least difference.

In the same manner, as money is the sign and representative of a thing, everything is a sign and representative of money ; and the state is in a prosperous condition when on the one hand money perfectly represents all things, and on the other all things perfectly represent money, and are reciprocally the sign of each other ; that is, when they have such a relative value that we may have the one as soon as we have the other. This never happens in any other than a moderate government, nor does it always happen there ; for example, if the laws favor the dishonest debtor, his effects are no longer a representative or sign of money. With regard to a despotic government, it would be a prodigy did things there represent their sign. Tyranny and distrust make everyone bury their specie ; c things therefore are not there the representative of money.

Legislators have sometimes had the art not only to make things in their own nature the representative of specie, but to convert them even into specie, like the current coin. Caesar, when he was dictator, permitted debtors to give their lands in payment to their creditors, at the price they were worth before the civil war.<^ Tiberius ordered that those who desired specie

b Herodotus, in " Clio," tells us that c It is an ancient custom in Algiers

the Lydians found out the art of coin- for the father of a family to have a

ing money; the Greeks learned it from treasure concealed in the earth. — " His-

them: the Athenian coin had the im- tory of the Kingdom of Algiers," by

pression of their ancient ox. T have Laugier de Tassis.

seen one of those pieces in the Earl of d Caesar on the " Civil War," book

Pembroke's cabinet. III.


376 MONTESQUIEU

should have it from the public treasury on binding over their land to double the value.^ Under Caesar the lands were the money which paid all debts ; under Tiberius ten thousand ses- terces in land became as current money equal to five thousand sesterces in silver.

The Magna Charta of England provides against the seizing of the lands or revenues of a debtor, when his movable or per- sonal goods are sufficient to pay, and he is willing to give them up to his creditors ; thus all the goods of an Englishman rep- resented money.

The laws of the Germans constituted money a satisfaction for the injuries that were committed, and for the sufferings due to guilt. But as there was but very little specie in the country, they again constituted this money to be paid in goods or chat- tels. This we find appointed in a Saxon law, with certain regu- lations suitable to the ease and convenience of the several ranks of people. At first the law declared the value of a sou in cat- tle ; f the sou of two tremises answered to an ox of twelve months, or to a ewe with her lamb ; that of three tremises was worth an ox of sixteen months. With these people money be- came cattle, goods, and merchandise, and these again became money.

Money is not only a sign of things ; it is also a sign and rep- resentative of money, as we shall see in the chapter on ex- change.

3. — Of ideal Money

There is both real and ideal money. Civilized nations gen- erally make use of ideal money only, because they have con- verted their real money into ideal. At first their real money was some metal of a certain weight and standard, but soon dis- honesty or want made them retrench a part of the metal from every piece of money, to which they left the same name; for example, from a livre at a pound weight they took half the silver, and still continued to call it a livre ; the piece which was the twentieth part of a pound of silver they continued to call a sou, though it is no more the twentieth part of this pound of silver. By this method the livre is an ideal livre, and the sou an ideal sou. Thus of the other subdivisions ; and so far may

e Tacitus, lib. VI. / " The Laws of the Saxons," chap, xviii.


THE SPIRIT OF LAWS 377

this bd carried that what we call a livre shall be only a small part of the original livre or pound, which renders it still more ideal. It may even happen that we have no piece of money of the precise value of a livre, nor any piece exactly with a sou, then the livre and the sou will be purely ideal. They may give to any piece of money the demonmination of as many livres and as many sous as they please, the variation may be continual, because it is as easy to give another name to a thing as it is difficult to change the thing itself.

To take away the source of this abuse, it would be an ex- cellent law for all countries who are desirous of making com- merce flourish, to ordain that none but real money should be current, and to prevent any methods from being taken to ren- der it ideal.

Nothing ought to be so exempt from variation as that which is the common measure of all.

Trade is in its own nature extremely uncertain ; and it is a great evil to add a new uncertainty to that which is founded on the nature of the thing.

4. — Of the Quantity of Gold and Silver

While civilized nations are the mistresses of the world, gold and silver, whether they draw it from among themselves, or fetch it from the mines, must increase every day. On the con- trary, it diminishes when barbarous nations prevail. We know how great was the scarcity of these metals when the Goths and Vandals on the one side, and on the other the Saracens and Tartars, broke in like a torrent on the civilized world.

5. — The same Subject continued

The bullion drawn from the American mines, imported into Europe, and thence sent to the East, has greatly promoted the navigation of the European nations; for it is merchandise which Europe receives in exchange from America, and which she sends in exchange to the Indies. A prodigious quantity of gold and silver is therefore an advantage, when we consider these metals as merchandise ; but it is otherwise when we con- sider them as a sign, because their abundance gives an alloy to their quality as a sign, which is chiefly founded on their scar- city.


378 MONTESQUIEU

Before the first Punic war g copper was to silver as 960 to i ; ^ it is at present nearly as 73^ to i. When the proportion shall be as it was formerly, silver will better perform its office as a sign.

6. — The Reason why Interest was lowered one-half after the Conquest of the Indies

Garcilaso informs us i that in Spain after the conquest of the Indies the interest, which was at ten per cent., fell to five. This was a necessary consequence. A great quantity of specie being all of a sudden brought into Europe, much fewer persons had need of money. The price of all things increased, while the value of money diminished ; the proportion was then broken, and all the old debts were discharged. We may recollect the time of the System,/ when everything was at a high price ex- cept specie. Those who had money after the conquest of the Indies were obliged to lower the price or hire of their mer- chandise, that is, in other words, their interest.

From this time they were unable to bring interest to its ancient standard, because the quantity of specie brought to Europe has been annually increasing. Besides, as the public funds of some states, founded on riches procured by com- merce, gave but a very small interest, it became necessary for the contracts of individuals to be regulated by these. In short, the course of exchange having rendered the conveying of specie from one country to another remarkably easy ; money cannot be scarce in a place where they may be so readily sup- plied with it by those who have it in plenty.

7. — How the Price of Things is -fixed in the Variation of the Sign of Riches

Money is the price of merchandise or manufactures. But how shall we fix this price ? Or, in other words, by what piece of money is everything to be represented ?

If we compare the mass of gold and silver in the whole world with the quantity of merchandise therein contained, it is cer- tain that every commodity or merchandise in particular may

^ See chap. 12 of this book. t " History of the Civil Wars of the

h Supposing a mark of eight ounces Spaniards in the West Indies."

of silver to be worth forty-nine livres, j In France, Law's project was called

and copper twenty sols per pound. by this name.


THE SPIRIT OF LAWS 379

be compared to a certain portion of the entire mass of gold and silver. As the total of the one is to the total of the other, so part of the one will be to part of the other. Let us suppose that there is only one commodity or merchandise in the world, or only one to be purchased, and that this is divisible like money ; a part of this merchandise will answer to a part of the mass of gold and silver ; the half of the total of the one to the half of the total of the other ; the tenth, the hundredth, the thou- sandth part of the one, to the tenth, the hundredth, the thou- sandth part of the other. But as that which constitutes property among mankind is not all at once in trade, and as the metals or money which are the sign of property are not all in trade at the same time, the price is fixed in the compound ratio of the total of things with the total of signs, and that of the total of things in trade with the total of signs in trade also ; and as the things which are not in trade to-day may be in trade to-mor- row, and the signs not now in trade may enter into trade at the same time, the establishment of the price of things fundamen- tally depends on the proportion of the total of things to the total of signs.

Thus the prince or the magistrate can no more ascertain the value of merchandise than he can establish by a decree that the relation i has to 10 is equal to that of i to 20. Julian's lowering the price of provisions at Antioch was the cause of a most terrible famine.^

8. — The same Subject continued The negroes on the coast of Africa have a sign of value with- out money. It is a sign merely ideal, founded on the degree of esteem which they fix in their minds for all merchandise, in proportion to the need they have of it. A certain commodity or merchandise is worth three macoutes; another, six ma- coutes ; another, ten macoutes ; that is, as if they said simply three, six, and ten. The price is formed by a comparison of all merchandise with each other. They have therefore no particu- lar money ; but each kind of merchandise is money to the other. Let us for a moment transfer to ourselves this manner of valuing things, and join it with ours : all the merchandise and goods in the world, or else all the merchandise or manufactures

k " History of the Church," by Socrates, lib. II.


380 MONTESQUIEU

of a state, particularly considered as separate from all others, would be worth a certain number of macoutes ; and, dividing the money of this state into as many parts as there are ma- coutes, one part of this division of money will be the sign of a macoute.

If we suppose the quantity of specie in a state doubled, it will be necessary to double the specie in the macoute ; but if in doubling the specie you double also the macoute, the pro- portion will remain the same as before the doubling of either.

If, since the discovery of the Indies, gold and silver have in- creased in Europe in the proportion of i to 20, the price of provisions and merchandise must have been enhanced in the proportion of i to 20. But if, on the other hand, the quantity of merchandise has increased as i to 2 — it necessarily follows that the price of this merchandise and provisions, having been raised in proportion of i to 20, and fallen in proportion of i to 2 — it necessarily follows, I say, that the proportion is only as I to 10.

The quantity of goods and merchandise increases by an aug- mentation of commerce, the augmentation of commerce by an augmentation of the specie which successively arrives, and by new communications with freshly discovered countries and seas, which furnish us with new commodities and new mer- chandise.

9. — Of the relative Scarcity of Gold and Silver

Besides the positive plenty and scarcity of gold and silver, there is still a relative abundance and a relative scarcity of one of these metals compared with the other.

The avaricious hoard up their gold and silver, for as they do not care to spend, they are fond of signs that are not subject to decay. They prefer gold to silver, because as they are always afraid of losing, they can best conceal that which takes up the least room. Gold, therefore, disappears when there is plenty of silver, by reason that every one has some to conceal ; it ap- pears again when silver is scarce, because they are obliged to draw it from its confinement.

It is then a rule, that gold is common when silver is scarce, and gold is scarce when silver is common. This lets us see the


THE SPIRIT OF LAWS 381

difference between their relative and their real abundance and scarcity, of which I shall presently speak more at large.


10. — Of Exchange

The relative abundance and scarcity of specie in different countries forms what is called the course of exchange.

Exchange is a fixing of the actual and momentary value of money.

Silver as a metal has value like all other merchandise, and an additional value as it is capable of becoming the sign of other merchandise. If it were no more than mere merchandise, it would lose much of its value.

Silver, as money, has a value, which the prince in some re- spects can fix, and in others cannot.

I. The prince establishes a proportion between a quantity of silver as metal, and the same quantity as money. 2. He fixes the proportion between the several metals made use of as money. 3. He establishes the weight and standard of every piece of money. In fine, 4. He gives to every piece that ideal value of which I have spoken. I shall call the value of money in these four respects its positive value, because it may be fixed by law.

The coin of every state has, besides this, a relative value, as it is compared with the money of other countries. This relative value is established by the exchange, and greatly depends on its positive value. It is fixed by the general opinion of the mer- chants, never by the decrees of the prince ; because it is subject to incessant variations, and depends on a thousand accidents.

The several nations, in fixing this relative value, are chiefly guided by that which has the greatest quantity of specie. If she has as much specie as all the others together, it is then most proper for the others to regulate theirs by her standard : and the regulation between all the others will pretty nearly agree with the regulation made with this principal nation.

In the actual state of the globe, Holland / is the nation we are

/ The Dutch regulate the exchange for for all Europe, it would be done in a

almost all Europe, by a kind of deter- manner most advantageous to them-

mination among themselves, in a man- selves, which would not be permitted;

ner most agreeable to their own Inter- and experience further contradicts Mon-

ests. In point of fact, however, if the tesquieu's statement.— Ed. Dutch undertook to regulate exchange


382 MONTESQUIEU

speaking of. Let us examine the course of exchange with re- lation to her.

They have in Holland a piece of money called a florin, worth twenty sous, or forty half-sous or gros. But, to render our ideas as simple as possible, let us imagine that they have not any such piece of money in Holland as a florin, and that they have no other but the gros : a man who should have a thousand florins should have forty thousand gros; and so of the rest. Now the exchange with Holland is determined by our know- ing how many gros every piece of money in other countries is worth; and as the French commonly reckon by a crown of three livres, the exchange makes it necessary for them to know how many gros are contained in a crown of three livres. If the course of exchange is at fifty-four, a crown of three livres will be worth fifty-four gros ; if it is at sixty, it will be worth sixty gros. If silver is scarce in France, a crown of three livres will be worth more gros ; if plentiful, it will be worth less.

This scarcity or plenty, whence results the mutability of the course of exchange, is not the real, but a relative, scarcity or plenty. For example, when France has greater occasion for funds in Holland than the Dutch of having funds in France, specie is said to be common in France and scarce in Holland : and vice versa.

Let us suppose that the course of exchange with Holland is at fifty-four. If France and Holland composed only one city, they would act as we do when we give change for a crown: the Frenchman would take three livres out of his pocket, and the Dutchman fifty-four gros from his. But as there is some distance between Paris and Amsterdam, it is necessary that he who for a crown of three livres gives me fifty-four gros, which he has in Holland, should give me a bill of exchange for fifty- four gros payable in Holland. The fifty-four gros is not the thing in question, but a bill for that sum. Thus, in order to judge of the scarcity or plenty of specie,^ we must know if there are in France more bills of fifty-four gros drawn upon Holland than there are crowns drawn upon France. If there are more bills from Holland than there are from France, specie is scarce in France, and common in Holland ; it then becomes necessary

m There is much specie in a place there is little when there is more paper when there is more specie than paper; than specie.


THE SPIRIT OF LAWS 383

that the exchange should rise, and that they give for my crown more than fifty-four gros; otherwise I will not part with it; and vice versa.

Thus the various turns in the course of exchange form an account of debtor and creditor, which must be frequently set- tled, and which the state in debt can no more discharge by exchange than an individual can pay a debt by giving change for a piece of silver.

We will suppose that there are but three states in the world, France, Spain, and Holland ; that several individuals in Spain are indebted to France, to the value of one hundred thousand marks of silver ; and that several individuals of France owe in Spain one hundred and ten thousand marks : now, if some cir- cumstance both in Spain and France should cause each to with- draw his specie, what will then be the course of exchange? These two nations will reciprocally acquit each other of a hun- dred thousand marks : but France will still owe ten thousand marks in Spain, and the Spaniards will still have bills upon France, to the value of ten thousand marks ; while France will have none at all upon Spain.

But if Holland was in a contrary situation with respect to France, and in order to balance the account must pay her ten thousand marks, the French would have two ways of paying the Spaniards ; either by giving their creditors in Spain bills for ten thousand marks upon their debtors in Holland, or else by sending specie to the value of ten thousand marks to Spain.

Hence it follows that when a state has occasion to remit a sum of money to another country, it is indifferent, in the nature of the thing, whether specie be conveyed thither or they take bills of exchange. The advantage or disadvantage of these two methods solely depends on actual circumstances. We must inquire which will yield most gros in Holland — money carried thither in specie, or a bill upon Holland for the like sum.w

When money of the same standard and weight in France yields money of the same standard and weight in Holland, we say that the exchange is at par. In the actual state of specie the par is nearly at fifty-four gros to the crown. When the ex- change is above fifty-four gros, we say it is high; when be- neath, we say it is low.

n With the expenses of carriage and insurance deducted. o In 1744.


384 MONTESQUIEU

In order to know the loss and gain of a state in a particular situation of exchange, it must be considered as debtor and cred- itor, as buyer and seller. When the exchange is below par, it loses as a debtor, and gains as a creditor ; it loses as a buyer and gains as a seller. It is obvious it loses as debtor ; suppose, for example, France owes Holland a certain number of gros, the fewer gros there are in a crown the more crowns she has to pay. On the contrary, if France is creditor for a certain num- ber of gros, the less number of gros there are in a crown the more crowns she will receive. The state loses also as buyer, for there must be the same number of gros to purchase the same quantity of merchandise ; and while the exchange is low, every French crown is worth fewer gros. For the same reason the state gains as a seller. I sell my merchandise in Holland for a certain number of gros ; I receive then more crowns in France, when for every fifty gros I receive a crown, than I should do if I received only the same crown for every fifty-four. The con- trary to this takes place in the other state. If the Dutch are indebted a certain number of crowns to France, they will gain ; if this money is owing to them, they will lose ; if they sell, they lose ; and if they buy, they gain.

It is proper to pursue this somewhat further. When the ex- change is below par; for example, if it be at fifty instead of fifty-four, it should follow that France, on sending bills of ex- change to Holland for fifty-four thousand crowns, could buy merchandise only to the value of fifty thousand ; and that on the other hand, the Dutch sending the value of fifty thousand crowns to France might buy fifty-four thousand, which makes a difference of /:f , that is, a loss to France of more than one- seventh ; so that France would be obliged to send to Holland one-seventh more in specie or merchandise than she would do were the exchange at par. And as the mischief must constantly increase, because a debt of this kind would bring the exchange still lower, France would in the end be ruined. It seems, I say, as if this should certainly follow ; and yet it does not, because of the principle which I have elsewhere established ; P which is, that states constantly lean towards a balance, in order to pre- serve their independency. Thus they borrow only in propor- tion to their ability to pay, and measure their buying by what

p See book XX. chap. xxi.


THE SPIRIT OF LAWS 385

they sell ; and taking the example from above, if the exchange falls in France from fifty-four to fifty, the Dutch who buy mer- chandise in France to the value of a thousand crowns, for which they used to pay fifty-four thousand gros, would now pay only fifty thousand, if the French would consent to it. But the merchandise of France will rise insensibly, and the profit will be shared between the French and the Dutch ; for when a merchant can gain, he easily shares his profit; there arises then a communication of profit between the French and the Dutch. In the same manner the French, who bought mer- chandise of Holland for fifty-four thousand gros, and who, when the exchange was at fifty-four, paid for them a thousand crowns, will be obliged to add one-seventh more in French crowns to buy the same merchandise. But the French mer- chant, being sensible of the loss he suflfers, will take up less of the merchandise of Holland. The French and the Dutch mer- chant will then both be losers, the state will insensibly fall into a balance, and the lowering of the exchange will not be at- tended with all those inconveniences which we had reason to fear.

A merchant may send his stock into a foreign country when the exchange is below par without injuring his fortune, be- cause, when it returns, he recovers what he had lost; but a prince who sends only specie into a foreign country which never can return, is always a loser.

When the merchants have great dealings in any country, the exchange there infallibly rises. This proceeds from their entering into many engagements, buying great quantities of merchandise, and drawing upon foreign countries to pay for them.

A prince may amass great wealth in his dominions, and yet specie may be really scarce, and relatively common; for in- stance, if the state is indebted for much merchandise to a for- eign country, the exchange will be low, though specie be scarce.

The exchange of all places constantly tends to a certain pro- portion, and that in the very nature of things. If the course of exchange from Ireland to England is below par, and that of England to Holland is also under par, that of Ireland to Hol- land will be still lower ; that is, in the compound ratio of that of Ireland to England, and that of England to Holland ; for a Vol. I.— 25


386 MONTESQUIEU

Dutch merchant who can have his specie indirectly from Ire- land, by way of England, will not choose to pay dearer by hav- ing it in the direct way. This, I say, ought naturally to be the case ; but, however, it is not exactly so. There are always cir- cumstances which vary these things ; and the different profit of drawing by one place, or of drawing by another, constitutes the particular art and dexterity of the bankers, which does not belong to the present subject.

When a state raises its specie, for instance, when it gives the name of six livres, or two crowns, to what was before called three livres, or one crown, this new denomination, which adds nothing real to the crown, ought not to procure a single gros more by the exchange. We ought only to have for the two new crowns the same number of gros which we before received for the old one. If this does not happen, it must not be imputed as an effect of the regulation itself, but to the nov- elty and suddenness of the affair. The exchange adheres to what is already established, and is not altered till after a cer- tain time.

When a state, instead of only raising the specie by a law, calls it in in order to diminish its size, it frequently happens that during the time taken up in passing again through the mint there are two kinds of money — the large, which is the old, and the small, which is the new ; and as the large is cried down as not to be received as money, and bills of exchange must consequently be paid in the new, one would imagine then that the exchange should be regulated by the new. If, for example, in France, the ancient crown of three livres, be- ing worth in Holland sixty gros, was reduced one-half, the new crown ought to be valued only at thirty. On the other hand, it seems as if the exchange ought to be regulated by the old coin ; because the banker who has specie, and receives bills, is obliged to carry the old coin to the mint in order to change it for the new, by which he must be a loser. The ex- change then ought to be fixed between the value of the old coin and that of the new. The value of the old Is decreased, if we may call it so, both because there is already some of the new in trade, and because the bankers cannot keep up to the rigor of the law, having an interest in letting loose the old coin from their chests, and being sometimes obliged to make


THE SPIRIT OF LAWS 387

payments with it. Again, the value of the new specie must rise, because the banker having this finds himself in a situa- tion in which, as we shall immediately prove, he will reap great advantage by procuring the old. The exchange should then be fixed, as I have already said, between the new and the old coin. For then the bankers find it their interest to send the old out of the kingdom, because by this method they procure the same advantage as they could receive from a regular ex- change of the old specie, that is, a great many gros in Holland ; and in return, a regular exchange a little lower, between the old and the new specie, which would bring many crowns to France.

Suppose that three livres of the old coin yield by the actual exchange forty-five gros, and that by sending this same crown to Holland they receive sixty, but with a bill of forty-five gros, they procure a crown of three livres in France, which being sent in the old specie to Holland, still yields sixty gros; thus all the old specie would be sent out of the kingdom, and the bankers would run away with the whole profit.

To remedy this, new measures must be taken. The state which coined the new specie would itself be obliged to send great quantities of the old to the nation which regulates the exchange, and, by thus gaining credit there, raise the exchange pretty nearly to as many gros for a crown of three livres out of the country. I say to nearly the same, for while the profits are small the bankers will not be tempted to send it abroad, because of the expense of carriage and the danger of confisca- tion.

It is fit that we should give a very clear idea of this. Mr. Bernard, or any other banker employed by the state, proposes bills upon Holland, and gives them at one, two, or three gros higher than the actual exchange ; he has made a provision in a foreign country, by means of the old specie, which he has continually been sending thither; and thus he has raised the exchange to the point we have just mentioned. In the mean- time, by disposing of his bills, he seizes on all the new specie, and obliges the other bankers, who have payments to make, to carry their old specie to the mint ; and, as he insensibly ob- tains all the specie, he obliges the other bankers to give him bills of exchange at a very high price. By this means his


388 MONTESQUIEU

profit in the end compensates in a great measure for the loss he suffered at the beginning.

It is evident that during these transactions the state must be in a dangerous crisis. Specie must become extremely scarce — I, because much the greatest part is cried down; 2, because a part will be sent into foreign countries ; 3, because every one will lay it up, as not being willing to give that profit to the prince which he hopes to receive himself. It is dangerous to do it slowly; and dangerous also to do it in too much haste. If the supposed gain be immoderate, the inconveniences in- crease in proportion.

We see, from what has been already said, that when the exchange is lower than the specie, a profit may be made by sending it abroad ; for the same reason, when it is higher than the specie, there is profit in causing it to return.

But there is a case in which profit may be made by sending the specie out of the kingdom, when the exchange is at par ; that is, by sending it into a foreign country to be coined over again. When it returns, an advantage may be made of it, whether it be circulated in the country or paid for foreign bills.

If a company has been erected in a state with an immense number of shares, and these shares have in a few months risen twenty or twenty-five times above the original purchase value ; if, again, the same state established a bank, whose bills were to perform the office of money, while the legal value of these bills was prodigious, in order to answer to the legal value of the shares (this is Mr. Law's System), it would follow, from the nature of things, that these shares and these bills would vanish in the same manner as they arose. Stocks cannot suddenly be raised twenty or twenty-five times above their original value without giving a number of people the means of procuring immense riches in paper: every one would endeavor to make his fortune; and as the exchange offers the most easy way of removing it from home, or conveying it whither one pleases, people would incessantly remit a part of their effects to the nation that regulates the exchange. A continual process of remittarices into a foreign country must lower the exchange. Let us suppose that at the time of the System, in proportion to the standard and weight of the silver coin, the exchange was fixed at forty gros to the crown ; when a vast quantity of paper


THE SPIRIT OF LAWS 389

became money, they were unwilling to give more than thirty- nine gros for a crown, and afterwards thirty-eight, thirty-seven, etc. This proceeded so far, that- after a while they would give but eight gros, and at last there was no exchange at all.

The exchange ought in this case to have regulated the pro- portion between the specie and the paper of France. I sup- pose that, by the weight and standard of the silver, the crown of three livres in silver was worth forty gros, and that the ex- change being made in paper, the crown of three livres in paper was worth only eight gros, the difference was four-fifths. The crown of three livres in paper was then worth (our-fifths less than the crown of three livres in silver.


II. — Of the Proceedings of the Romans with respect to Money

How great soever the exertion of authority had been in our times, with respect to the specie of France, during the admin- istration of two successive ministers, still it was vastly exceeded by the Romans ; not at the time when corruption had crept into their republic, nor when they were in a state of anarchy, but when they were as much by their wisdom as their courage in the full vigor of the constitution, after having conquered the cities of Italy, and at the very time that they disputed for em- pire with the Carthaginians.

And here I am pleased that I have an opportunity of examin- ing more closely into this matter, that no example may be taken from what can never justly be called one.

In the first Punic war the as,9 which ought to be twelve ounces of copper, weighed only two, and in the second it was no more than one. This retrenchment answers to what we now call the raising of coin. To take half the silver from a crown of six livres, in order to make two crowns, or to raise it to the value of twelve livres, is precisely the same thing.

They have left us no monument of the manner in which the Romans conducted this afifair in the first Punic war ; but what they did in the second is a proof of the most consummate wis- dom. The republic found herself under an impossibility of paying her debts : the as weighed two ounces of copper, and the denarius, valued at ten ases, weighed twenty ounces of

g Pliny's "Natural History," lib. XXXIII. art. 13.


39© MONTESQUIEU

copper. The republic, being willing to gain half on her credi- tors, made the as of an ounce of copper,*- and by this means paid the value of a denarius with ten ounces. This proceeding must have given a great shock to the state ; they were obliged therefore to break the force of it as well as they could. It was in itself unjust, and it was necessary to render it as little so as possible. They had in view the deliverance of the republic with respect to the citizens ; they were not, therefore, obliged to direct their view to the deliverance of the citizens with respect to each other. This made a second step necessary. It was ordained that the denarius, which hitherto contained but ten ases, should contain sixteen. The result of this double opera- tion was, that while the creditors of the republic lost one-half,^ those of individuals lost only a fifth ; t the price of merchandise was increased only a fifth ; the real change of the money was only a fifth. The other consequences are obvious.

The Romans then conducted themselves with greater pru- dence than we, who in our transactions involved both the pub- lic treasure and the fortunes of individuals. But this is not all : their business was carried on amidst more favorable circum- stances than ours.

12. — The Circumstances in which the Romans changed the Value of their Specie

There was formerly very little gold and silver in Italy. This country has few or no mines of gold or silver. When Rome was taken by the Gauls, they found only a thousand-weight of gold.w And yet the Romans had sacked many powerful cities, and brought home their wealth. For a long time they made use of none but copper money ; and it was not till after the peace with Pyrrhus that they had silver enough to coin money : v they made denarii of this metal of the value of ten ases,w or ten pounds of copper. At that time the proportion of silver was to that of copper as i to 960. For as the Roman denarius was valued at ten ases, or ten pounds of copper, it was worth one hundred and twenty ounces of copper ; and as the same denarius

r Pliny's " Natural History," lib. u Pliny, lib. XXXIII. art. 5.

XXXIII. art. 13. V Freinshemius, lib. V. of the 2d

5 They received ten ounces of copper decad.

for twenty. w Ibid. They struck also, says the

t They received sixteen ounces of cop- same author, half-denarii, called quina-

per for twenty. rii; and quarters, called sesterces.


THE SPIRIT OF LAWS 391

was valued only at one-eighth of an ounce of silver,^ this pro- duced the above proportion.

When Rome became mistress of that part of Italy which is nearest to Greece and Sicily, by degrees she found herself between two rich nations — the Greeks and the Carthaginians. Silver increased at Rome ; and as the proportion of i to 960 between silver and copper could be no longer supported, she made several regulations with respect to money, which to us are unknown. However, at the beginning of the second Punic war the Roman denarius was worth no more than twenty ounces of copper ; y and thus the proportion between silver and copper was no longer but as i to 160. The reduction was very considerable, since the republic gained five-sixths upon all copper money. But she did only what was necessary in the nature of things, by establishing the proportion between the metals made use of as money.

The peace which terminated the first Punic war left the Romans masters of Sicily. They soon entered Sardinia ; after- wards they began to know Spain ; and thus the quantity of silver increased at Rome. They took measures to reduce the denarius from twenty ounces to sixteen,^ which had the effect of putting a nearer proportion between the silver and copper ; thus the proportion, which was before as i to 160, was now made as i to 128.

If we examine into the conduct of the Romans, we shall never find them so great as in choosing a proper conjuncture for performing any extraordinary operation.

13. — Proceedings with respect to Money in the Time of the Emperors

In the changes made in the specie during the time of the re- public, they proceeded by diminishing it: in its wants, the state intrusted the knowledge to the people, and did not pre- tend to deceive them. Under the emperors, they proceeded by way of alloy. These princes, reduced to despair even by their liberalities, found themselves obliged to degrade the specie; an indirect method, which diminished the evil without seeming to touch it. They withheld a part of the gift and yet concealed

X An eighth, according to Budseus ; y Pliny's " Nat. Hist." lib. XXXIII.

according to other authors, a seventh. art. 13. e Ibid.


392 MONTESQUIEU

the hand that did it ; and, without speaking of the diminution of the pay, or of the gratuity, it was found diminished.

We even still see in cabinets a kind of medals which are called plated, and are only pieces of copper covered with a thin plate of silver.^ This money is mentioned in a fragment of the 77th book of Dio.b

Didius Julian first began to debase it. We find that the coin of Caracalla c had an alloy of more than half ; that of Alexander Severus of two-thirds ; d the debasing still increased, till in the time of Gallienus nothing was to be seen but copper silvered over.^

It is evident that such violent proceedings could not take place in the present age ; a prince might deceive himself, but he could deceive nobody else. The exchange has taught the banker to draw a comparison between all the money in the world, and to estabHsh its just value. The standard of money can be no longer a secret. Were the prince to begin to alloy his silver, everybody else would continue it, and do it for him ; the specie of the true standard would go abroad first, and nothing would be sent back but base metal. If, like the Roman Emperors, he debased the silver without debasing the gold, the gold would suddenly disappear, and he would be reduced to his bad silver. The exchange, as I have said in the preceding book,/" has deprived princes of the opportunity of showing great exertions of authority, or at least has rendered them ineffectual.

14. — How the Exchange is a Constraint on despotic Power

Russia would have descended from its despotic power, but could not. The establishment of commerce depended on that of the exchange, and the transactions were inconsistent with all its laws.

In 1745 the Czarina g made a law to expel the Jews, because they remitted into foreign countries the specie of those who were banished into Siberia, as well as that of the foreigners entertained in her service. As all the subjects of the empire are slaves, they can neither go abroad themselves nor send

See Father Joubert's " Science of 28th of July, on a discovery of fifty thou- Medals," Paris edit, of 1739, p. 59. sand medals.

b " Extract of Virtues and Vices." d See " Savote," ibid.

c See " Savote," part II. chap, xii., e Ibid.

and " Le Journal des Savants " of the f Chap. 16.

g Elizabeth, daughter of Peter I. — Ed.


THE SPIRIT OF LAWS 393

away their effects without permission. The exchange which gives them the means of remitting their specie from one coun- try to another is, therefore, entirely incompatible with the laws of Russia.

Commerce itself is inconsistent with the Russian laws. The people are composed only of slaves employed in agriculture, and of slaves called ecclesiastics or gentlemen, who are the lords of those slaves; there is then nobody left for the third estate, which ought to be composed of mechanics and mer- chants.

15. — The Practice of some Countries in Italy

They have made laws in some part of Italy to prevent sub- jects from selling their lands, in order to remove their specie into foreign countries. These laws may be good, when the riches of a state are so connected with the country itself that there would be great difficulty in transferring them to another. But since, by the course of exchange, riches are in some degree independent of any particular state, and since they may with so much ease be conveyed from one country to another, that must be a bad law which will not permit persons for their own interest to dispose of their lands, while they can dispose of their money. It is a bad law, because it gives an advantage to mov- able effects, in prejudice to the land ; because it deters strang- ers from settling in the country ; and, in short, because it may be eluded.

16. — The Assistance a State may derive from Bankers

The banker's business is to change, not to lend, money./* If the prince makes use of them to change his specie, as he never does it but in great affairs, the least profit he can give for the remittance becomes considerable ; and if they demand large profits, we may be certain that there is a fault in the ad- ministration. On the contrary, when they are employed to advance specie, their art consists in procuring the greatest profit for the use of it, without being liable to be charged with usury.

h The mistake here is apparent, bankers and money-changers being by no means identical.— Ed.


394 MONTESQUIEU

17.— 0/ Public Debts

Some have imagined that it was for the advantage of a state to be indebted to itself : they thought that this multiplied riches by increasing the circulation.

Those who are of this opinion have, I believe, confounded a circulating paper which represents money, or a circulating paper which is the sign of the profits that a company has or will make by commerce, with a paper which represents a debt. The first two are extremely advantageous to the state : the last can never be so ; and all that we can expect from it is, that individuals have a good security from the government for their money. But let us see the inconveniences which result from it.

1. If foreigners possess much paper which represents a debt, they annually draw out of the nation a considerable sum for interest.

2. In a nation that is thus perpetually in debt the exchange must be very low.

3. The taxes raised for the payment of the interest of the debt are an injury to the manufactures, by raising the price of the artificer's labor.

4. It takes the true revenue of the state from those who have activity and industry, to convey it to the indolent ; that is, it gives facilities for labor to those who do not work, and clogs with difficulties those who do work.

These are its inconveniences : I know of no advantages. Ten persons have each a yearly income of a thousand crowns, either in land or trade ; this raises to the nation, at five per cent., a capital of two hundred thousand crowns. If these ten persons employed one-half of their . income, that is, five thousand crowns, in paying the interest of a hundred thousand crowns, which they had borrowed of others, that still would be only to the state as two hundred thousand crowns ; that is, in the language of the algebraists, 200,000 crowns — 100,000 crowns + 100,000 crowns = 200,000.

People are thrown perhaps into this error by reflecting that the paper which represents the debt of a nation is the sign of riches ; for none but a rich state can support such paper with- out falling into decay. And if it does not fall, it is a proof that the state has other riches besides. They say that it is not an


THE SPIRIT OF LAWS 395

evil, because there are resources against it; and that it is an advantage, since these resources surpass the evil.

18. — Of the Payment of Public Debts

It is necessary that there should be a proportion between the state as creditor and the state as debtor. The state may be a creditor to infinity, but it can only be a debtor to a certain degree, and when it surpasses that degree the title of creditor vanishes.

If the credit of the state has never received the least blemish, it may do what has been so happily practised in one of the kingdoms of Europe ; i that is, it may require a great quantity of specie, and oflfer to reimburse every individual, at least if they will not reduce their interest. When the state borrows, the individuals fix the interest ; when it pays, the interest for the future is fixed by the state.

It is not sufficient to reduce the interest : it is necessary to erect a sinking-fund from the advantage of the reduction, in order to pay every year a part of the capital : a proceeding so happy that its success increases every day.

When the credit of the state is not entire, there is a new rea- son for endeavoring to form a sinking-fund, because this fund being once established will soon procure the public confidence.

1. If the state is a republic, the government of which is in its own nature consistent with its entering into projects of a long duration, the capital of the sinking-fund may be inconsiderable ; but it is necessary in a monarchy for the capital to be much greater.

2. The regulations ought to be so ordered that all the sub- jects of the state may support the weight of the establishment of these funds, because they have all the weight of the estab- lishment of the debt ; thus the creditor of the state, by the sums he contributes, pays himself.

3. There are four classes of men who pay the debts of the state: the proprietors of the land, those engaged in trade, the laborers and artificers, and, in fine, the annuitants either of the state or of private people. Of these four classes the last, in a case of necessity one would imagine, ought least to be spared, because it is a class entirely passive, while the state is

t England.


396 MONTESQUIEU

supported by the active vigor of the other three. But as it can- not be higher taxed, without destroying the pubHc confidence, of which the state in general and these three classes in particular have the utmost need ; as a breach in the public faith cannot be made on a certain number of subjects without seeming to be made on all ; as the class of creditors is always the most ex- posed to the projects of ministers, and always in their eye, and under their immediate inspection, the state is obliged to give them a singular protection, that the part which is indebted may never have the least advantage over that which is the creditor.

19. — Of lending upon Interest

Specie is the sign of value. It is evident that he who has occasion for this sign ought to pay for the use of it as well as for everything else that he has occasion for. All the difference is, that other things may be either hired or bought; whilst money, which is the price of things, can only be hired, and not bought./

To lend money without interest is certainly an action laud- able and extremely good; but it is obvious that it is only a counsel of religion, and not a civil law.

In order that trade may be successfully carried on, it is neces- sary that a price be fixed on the use of specie ; but this should be very inconsiderable. If it be too high, the merchant who sees that it will cost him more in interest than he can gain by commerce will undertake nothing ; if there is no considera- tion to be paid for the use of specie, nobody will lend it ; and here too the merchant will undertake nothing.

I am mistaken when I say nobody will lend ; the affairs of society will ever make it necessary. Usury will be established, but with all the disorders with which it has been constantly attended.

The laws of Mahomet confound usury with lending upon in- terest. Usury increases in Mahommedan countries in propor- tion to the severity of the prohibition. The lender indemnifies himself for the danger he undergoes of suffering the penalty.

In those Eastern countries, the greater part of the people are secure in nothing ; there is hardly any proportion between the actual possession of a sum and the hopes of receiving it again

j We do not speak here of gold and silver considered as a merchandise.


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397


after having lent it : usury, then, must be raised in proportion to the danger of insolvency.

20. — Of Maritime Usury

The greatness of maritime usury is founded on two things : the danger of the sea, which makes it proper that those who expose their specie should not do it without considerable ad- vantage, and the ease with which the borrower, by means of commerce, speedily accomplishes a variety of great affairs. But usury, with respect to landmen, not being founded on either of these two reasons, is either prohibited by the legislators, or, what is more rational, reduced to proper bounds.

21. — Of Lending by Contract, and the State of Usury among

the Romans

Besides the loans made for the advantage of commerce, there is still a kind of lending by a civil contract, whence results in- terest or usury.

As the people of Rome increased every day in power, the magistrates sought to insinuate themselves in their favor by enacting such laws as were most agreeable to them. They re- trenched capitals ; they first lowered, and at length prohibited, interest ; they took away the power of confining the debtor's body ; in fine, the abolition of debts was contended for when- ever a tribune was disposed to render himself popular.

These continual changes, whether made by the laws or by the plebiscita, naturalized usury at Rome; for the creditors, seeing the people their debtor, their legislator, and their judge, had no longer any confidence in their agreements : the people, like a debtor who has lost his credit, could only tempt them to lend by allowing an exorbitant interest,^ especially as the laws applied a remedy to the evil only from time to time, while the complaints of the people were continual, and constantly intimi- dated the creditors. This was the cause that all honest means of borrowing and lending were abolished at Rome, and that the most monstrous usury established itself in that city, not- withstanding the strict prohibition and severity of the law./ This evil was a consequence of the severity of the laws against

k Cicero assures us that in his day per cent., and forty-eight per cent, in money was lent at Rome at thirty-four the country.— Ed.

/ Tacit. " Annal." lib. VI.


398 MONTESQUIEU

usury. Laws excessively good are the source of excessive evil. The borrower found himself under the necessity of paying for the interest of the money, and for the danger the creditor under- went of suffering the penalty of the law.

22. — The same Subject continued

The primitive Romans had not any laws to regulate the rate of usury.w In the contests which arose on this subject be- tween the plebeians and the patricians, even in the sedition on the Mons Sacer, nothing was alleged, on the one hand, but justice, and on the other, the severity of contracts.^

They then only followed private agreements, which, I be- lieve, were most commonly at twelve per cent, per annum. My reason is, that in the ancient language of the Romans, in- terest at six per cent, was called half-usury, and interest at three per cent, quarter-usury.o Total usury must, therefore, have been interest at twelve per cent.

But if it be asked how such great interest could be established among a people almost without commerce, I answer that this people, being very often obliged to go to war without pay, were under a frequent necessity of borrowing: and as they incessantly made happy expeditions, they were commonly well able to pay. This is visible from the recital of the contests which arose on this subject; they did not then disagree con- cerning the avarice of creditors, but said that those who com- plained might have been able to pay, had they lived in a more regular manner ./»

They then made laws which had only an influence on the present situation of affairs: they ordained, for instance, that those who enrolled themselves for the war they were engaged in should not be molested by their creditors ; that those who were in prison should be set at liberty ; that the most indigent should be sent into the colonies ; and sometimes they opened the public treasury. The people, being eased of their present burdens, became appeased ; and as they required nothing for the future, the Senate was far from providing against it.

m Usury and interest among the Ro- digests and codes on usury, and espe-

mans signified the same thing. cially the 17th law, with the note flf.

n See Dionysius Halicarnassus, who " de Usuris."

has described it so well. p See Appius's speech on this subject,

o " Usurae semisses, trientes, quad- in Dionysius Halicarnassus. rantes." See the several titles of the


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399


At the time when the Senate maintained the cause of usury with so much constancy, the Romans were distinguished by an extreme love of frugaHty, poverty, and moderation: but the constitution was such that the principal citizens alone sup- ported all the expenses of government, while the common peo- ple paid nothing. How, then, was it possible to deprive the former of the liberty of pursuing their debtors, and at the same time to oblige them to execute their offices, and to support the republic amidst its most pressing necessities ?

Tacitus says that the law of the Twelve Tables fixed the in- terest at one per cent. 5 It is evident that he was mistaken, and that he took another law, of which I am going to speak, for the law of the Twelve Tables. If this had been regulated in the law of the Twelve Tables, why did they not make use of its authority in the disputes which afterwards arose between the creditors and debtors? We find no vestige of this law upon lending at interest; and let us have ever so little knowledge of the history of Rome, we shall see that a law like this could not be the work of the Decemvirs.

The Licinian law, made eighty-five years after that of the Twelve Tables,^ was one of those temporary regulations of which we have spoken. It ordained that what had been paid for interest should be deducted from the principal, and the rest discharged by three equal payments.

In the year of Rome 398, the tributes Duellius and Menenius caused a law to be passed, which reduced the interest to one per cent, per annum.^ It is this law which Tacitus confounds with that of the Twelve Tables,^ and this was the first ever made by the Romans to fix the rate of interest. Ten years after m this usury was reduced one-half,^ and in the end entirely abolished ; w and if we may believe some authors whom Livy had read, this was under the consulate of C. Martins Rutilius and Q. Servilius, in the year of Rome 413.-*^

It fared with this law as with all those in which the legislator carries things to excess: an infinite number of ways were

q " Annal." lib. VI. to T. Liv. lib. VII. This is the law

r In the year of Rome 379.— Tit, Liv. mentioned by Tacitus, " Annal." lib.

lib. VI. VI. s " Unciaria usura.** — Tit. Liv. lib. v Semiunciaria usura."

VII. See the " Defence of the Spirit of w As Tacitus says, " Annal." lib. VI.

Laws," article " Usury." x This law was passed at the instance

t " Annal." lib. VI. of M. Genucius, Tribune of the people. —

« Under the consulate of L. Manlius Tit. Liv. lib. VII., towards the end.

Torquatus and C. Plautius, according


400 MONTESQUIEU

found to elude it. They enacted, therefore, many others to con- firm, correct, and temper it. Sometimes they quitted the laws to follow the common practice ; at others, the common practice to follow the laws ; but in this case, custom easily prevailed.^ When a man wanted to borrow, he found an obstacle in the very law made in his favor ; this law must be evaded by the person it was made to succor, and by the person condemned. Sem- pronius Asellus, the pretor, having permitted the debtors to act in conformity to the laws,^ was slain by the creditors for attempting to revive the memory of a severity that could no longer be supported.^

I quit the city, in order to cast an eye on the provinces.

I have somewhere else observed that the Roman provinces were exhausted by a severe and arbitrary government.^ But this is not all, they were also ruined by a most shocking usury.

Cicero takes notice, that the inhabitants of Salamis wanted to borrow a sum of money at Rome, but could not, because of the Gabinian law.c We must, therefore, inquire into the nature of this law.

As soon as lending upon interest was forbidden at Rome, they contrived all sorts of means to elude the law ; d and as their allies,^ and the Latins, were not subject to the civil laws of the Romans, they employed a Latin, or an ally, to lend his name, and personate the creditor. The law, therefore, had only subjected the creditors to a matter of form, and the public were not relieved.

The people complained of this artifice ; and Marius Sem«  pronius, tribune of the people, by the authority of the Senate, caused a plebiscitum to be enacted to this purport, that in re- gard to loans the laws prohibiting usury between Roman citi- zens should equally take place between a citizen and an ally, or a citizen and a Latin./

At that time they gave the name of allies to the people of Italy properly so called, which extended as far as the Arno and the Rubicon, and was not governed in the form of a Roman province.

y •' Verteri jam more foenus receptum a In the year of Rome 663.

erat."— Appian " on the Civil War," b Book XI. chap. 19.

lib. I. c " Letters to Atticus," lib. V. ep. 21.

2 " Permislt eos legibus agere." — Ap- d Livy.

pian " on the Civil War," lib. I. ; and e Ibid,

the " Epitome " of Livy, lib. LXIV. / In the year 559 of Rome. See Livy.


THE SPIRIT OF LAWS 401

It is an observation of Tacitus,g that new frauds were con- stantly committed, whenever any laws were passed for the pre- venting of usury. Finding themselves debarred from lending or borrowing in the name of an ally, they soon contrived to bor- row of some inhabitant of the provinces.

To remedy this abuse they were obliged to enact a new law ; and Gabinius h upon the passing of that famous law, which was intended to prevent the corruption of suffrages,