11 Montesquieu, The Spirit of the Laws
by Charles-Louis de Secondat, baron of Montesquieu
Translated by Thomas Nugent
Of Laws in General.
Of the relation of Laws to different Beings.
LAWS in their most general signification, are the necessary relations resulting from the nature of things. In this sense all beings have their laws, the Deity has his laws, the material world its laws, the intelligences superior to man have their laws, the beasts their laws, man his laws.
Those who assert that a blind fatality produced the various effects we behold in this world, are guilty of a very great absurdity, for can any thing be more absurd than to pretend that a blind fatality could be productive of intelligent Beings?
There is then a primitive reason, and laws are relations which subsist between it and different beings, and the relations of these beings among themselves.
God is related to the universe as creator and preserver; the laws by which he created all things, are those by which he preserves them. He acts according to these rules because he knows them; he knows them because he made them; and he made them because they are relative to his wisdom and power.
As we see that the world, though formed by the motion of matter, and void of understanding, subsists through so long a succession of ages, its motions must certainly be directed by invariable laws: and could we imagine another world, it must also have constant rules, or must inevitably perish.
Thus the creation, which seems an arbitrary act, suppose the laws as invariable as those of the fatality of the Atheists. It would be absurd to say, that the Creator might govern the world without those rules, since without them it could not subsist.
These rules are a fixt and invariable relation. In bodies moved the motion is received, increased, diminished, lost, according to the relations of the quantity of matter and velocity, each diversity is uniformity, each change is constancy.
Particular intelligent beings may have laws of their own making, but they have some likewise which they never made. Before there were intelligent beings, they were possible; they had therefore possible relations, and consequently possible laws. Before laws were made, there were relations of possible justice. To say that there is nothing just or unjust but what is commanded or forbidden by positive laws, is the same as saying that before the describing of a circle all the radii were not equal.
We must therefore acknowledge relations of justice antecedent to the positive law by which they are established: as for instance, that if human societies existed, it would be right to conform to their laws; if there were intelligent beings that had received a benefit of another being, they ought to be grateful; if one intelligent being had created another intelligent being, the latter ought to continue in its original state of dependance; if one intelligent being injures another, it deserves a retaliation of the injury, and so on.
But the intelligent world is far from being so well governed as the physical. For though the former has also its laws which of their own nature are invariable, yet it does not conform to them so exactly as the physical world. This is because on the one hand particular intelligent beings are of a finite nature, and consequently liable to error; and on the other, their nature requires them to be free agents. Hence they do not steadily conform to their primitive laws; and even those of their own instituting they frequently infringe.
Whether brutes be governed by the general laws of motion, or by a particular movement, is what we cannot determine. Be that as it may, they have not a more intimate relation to God than the rest of the material world; and sensation is of no other use to them, than in the relation they have either to other particular beings, or to themselves.
By the allurement of pleasure they preserve the being of the individual, and by the same allurement they preserve their species. They have natural laws, because they are united by sensations, positive laws they have none, because they are not connected by knowledge. And yet they do not conform invariably to their natural laws; these are better observed by vegetables, that have neither intellectual nor sensitive faculties.
Brutes are deprived of the high advantages which we have, but they have some which we have not. They have not our hopes, but they are without our fears, they are subject like us to death, but without knowing it, even most of them are more attentive than we to self-preservation, and do not make so bad a use of their passions.
Man, as a physical being, is, like other bodies, governed by invariable laws. As an intelligent being, he incessantly transgresses the laws established by God, and changes those which he himself has established. He is left to his own direction, though he is a limited being, subject like all finite intelligences, to ignorance and error; even the imperfect knowledge he has, he loses as a sensible creature, and is hurried away by a thousand impetuous passions. Such a being might every instant forget his Creator; God has therefore reminded him of his duty by the laws of religion. Such a being is liable every moment to forget himself; philosophy has provided against this by the laws of morality. Formed to live in society, he might forget his fellow creatures; legislators have therefore by political and civil laws confined him to his duty.
Of the Laws of Nature.
ANtecedent to all these laws are those of nature, so called because they derive their force entirely from our frame and being. In order to have a perfect knowledge of these laws, we must consider man before the establishment of society: the laws received in such a state would be those of nature.
The law which by imprinting on our minds the idea of a Creator inclines us to him, is the first in importance, though not in order, of natural laws. Man in a state of nature would have the faculty of knowing, before he had any acquired knowledge. Plain it is that his first ideas would not be of a speculative nature; he would think of the preservation of his being, before he would investigate its original. Such a man would feel nothing in himself at first but impotency and weakness; his fears and apprehensions would be excessive; as appears from instances (were there any necessity of proving it) of savages found in forests, trembling at the motion of a leaf, and flying from every shadow.
In this state every man, instead of being sensible of his equality, would fancy himself inferior. There would therefore be no danger of their attacking one another; peace would be the first law of nature.
The natural impulse or desire which Hobbes attributes to mankind of subduing one another, is far from being well founded. The idea of empire and dominion is so complex, and depends on so many other notions, that it could never be the first that would occur to human understandings.
Hobbes enquires, For what reason do men go armed, and have locks and keys to fasten their doors, if they be not naturally in a state of war? But is it not obvious that he attributes to man before the establishment of society, what can happen but in consequence of this establishment, which furnishes them with motives for hostile attacks and self defence?
Next to a sense of his weakness man would soon find that of his wants. Hence another law of nature would prompt him to seek for nourishment.
Fear, I have observed, would incline men to shun one another; but the marks of this fear being reciprocal, would soon induce them to associate. Besides, this association would quickly follow from the very pleasure one animal feels at the approach of another of the same species. Again, the attraction arising from the difference of sexes would enhance this pleasure, and the natural inclination they have for each other, would form a third law.
Beside the sense or instinct which man has in common with brutes, he has the advantage of attaining to acquired knowledge; and thereby has a second tye wich brutes have not. Mankind have therefore a new motive of uniting; and a fourth law of nature arises from the desire of living in society.
Of positive Laws.
AS soon as mankind enter into a stare of society, they lose the sense of their weakness, the equality ceases, and then commences the state of war.
Each particular society begins to feel its strength, whence arises a state of war betwixt different nations. The individuals likewise of each society become sensible of their strength; hence the principal advantages of this society they endeavour to convert to their own emolument, which constitutes between them a state of war.
These two different kinds of military states give rise to human laws. Considered as inhabitants of so great a planet which necessarily implies a variety of nations, they have laws relative to their mutual intercourse, which is what we call the law of nations. Considered as members of a society that must be properly supported, they have laws relative to the governors and the governed ; and this we call politic law. They have also another sort of laws relating to the mutual communication of citizens; by which is understood the civil law.
The law of nations is naturally founded on this principle, that different nations ought in time of peace to do one another all the good they can, and in time of war as little harm as possible, without prejudicing their real interests.
The object of war is victory; victory aims at conquest; conquest at preservation. From this and the preceding principle all those rules are derived which constitute the law of nations.
All countries have a law of nations, not excepting the Iroquois themselves, though they devour their prisoners: for they send and receive ambassadors, and understand the rights of war and peace. The mischief is that their law of nations is not founded on true principles.
Besides the law of nations relating to all societies, there is a politic law for each particularly considered. No society can subsist without a form of government. The conjunction of the particular forces of individuals, as Gravina well observes, constitutes what we call a political state.
The general force may be in the hands of a single person, or of many. Some think that nature having established paternal authority, the government of a single person was most conformable to nature. But the example of paternal authority proves nothing. For if the power of a father is relative to a single government, that of brothers after the death of a father, or that of cousin germans after the decease of brothers, are relative to a government of many. The political power necessarily comprehends the union of several families.
Better is it to say that the government most conformable to nature, is that whose particular disposition best agrees with the humour and disposition of the people in whole favour it is established.
The particular force of individuals cannot be united without a conjunction of all their wills. The conjunction of those wills, as Gravina again very justly observes, is what we call the civil state.
Law in general is human reason, inasmuch as it governs all the inhabitants of the earth, the political and civil laws of each nation ought to be only the particular cases in which this applied.
They should be adapted in such a manner to the people for whom they are made, as to render it very unlikely for those of one nation to be proper for another.
They should be relative to the nature and principle of the actual, or intended government, whether they form it, as in the case of political laws, or whether they support it, as may be said of civil institutions.
They should be relative to the climate of each country, to the quality of the soil, to its situation and extent, to the manner of living of the natives, whether husbandmen, huntsmen, or shepherds: they should have a relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, number, commerce, manners, and customs. In sine, they have relations amongst themselves, as also to their origin, to the intent of the legislator, and to the order of things on which they are established , in all which different lights they ought to be considered.
This is what I have undertaken to perform in the following work. These relations I shall examine, since all these together form what I call the Spirit of laws.
I have not separated the political from the civil laws, for as I do not pretend to treat of laws, but of their spirit, and as this spirit consists in the various relations which the laws may have to different things, it is not so much my business to follow the natural order of laws, as that of these relations and things.
I shall first examine the relation which laws have to the nature and principle of each government; and as this principle has a strong influence on laws, I shall make it my business to understand it thoroughly: and if I can but once establish it, the laws will soon appear to flow from thence as from their source. I shall proceed afterwards to other more particular relations.
Of Laws Directly derived from the Nature of Government.
Of the republican Government, and the Laws relative to Democracy.
WHEN the body of the people in a republic are possessed of the supreme power, this is called a democracy. When the supreme power is lodged in the hands of a part of the people, it is then an aristocracy.
In a democracy the people are in some respects the sovereign, and in others the subject.
There can be no exercise of sovereignty but by their suffrages, which are their own will; now the sovereign’s will is the sovereign himself. The laws therefore which establish the right of suffrage, are fundamental to this government. In fact, it is as important to regulate in a republic, in what manner, by whom, to whom, and concerning what, suffrages are to be given, as it is in a monarchy to know who is the prince and after what manner he ought to govern.
Libanius says, that at Athens a stranger who intermeddled in the assemblies of the people, was punished with death. This is because such a man usurped the rights of sovereignty.
It is an essential point to fix the number of citizens who are to form the public assemblies, otherwise it might be uncertain whether they had the votes of the whole, or of only a part of the people. At Sparta the number was fixt to ten thousand. But at Rome, a city designed by providence to rise from the weakest beginnings to the highest pitch of grandeur; at Rome, a city doomed to experience all the vicissitudes of fortune; at Rome, who had sometimes all her inhabitants without her walls, and sometimes all Italy and a considerable part of the world within them: at Rome, I say, this number was never fixed, and this was one of the principal causes of her ruin.
The people in whom the supreme power resides, ought to do of themselves whatever conveniently then can; and what they themselves cannot rightly perform, they must do by their ministers.
The ministers are not properly their’s unless they have the nomination of them: it is therefore a fundamental maxim in this government, that the people should chuse their ministers, that is, their magistrates.
They have occasion as well as monarchs, and even more so, to be directed by a council or senate. But to have a proper confidence in these, they should have the chusing of the members, and this whether the election be made by themselves, as at Athens; or by some magistrate deputed for that purpose, as on certain occasions was customary at Rome.
The people are extremely well qualified for chusing those, whom they are to intrust with part of their authority. They have only to be determined by things which they cannot be strangers to, and by facts that are obvious to sense. They can tell when a person has been in several engagements, and has had particular success ; they are therefore very capable of electing a general. They can tell when a judge is assiduous in his office, when he gives general satisfaction, and has never been charged with bribery : this is sufficient for chusing a praetor. They are struck with the magnificence or riches of a fellow citizen; this is as much as is requisite for electing an edile. These are all facts of which they can have better information in a public forum, than a monarch in his palace. But are they to manage an intricate affair, to find out and make a proper use of places, occasions, moments? No, this is beyond their capacity.
Should we doubt of the people’s natural ability in respect to the discernment of merit, we need only cast an eye on the continual series of surprising elections made by the Athenians and Romans; which no one surely will attribute to hazard.
We know that though the people of Rome assumed to themselves the right of raising plebeians to public offices, yet they could not resolve to chuse them; and though at Athens the magistrates were allowed by the law of Aristides, to be elected from all the different classes of inhabitants, yet there never was case, says Xenophon, that the common people petitioned for employments that could endanger their security or glory.
As most citizens have a capacity of chusing, though they are not sufficiently qualified to be chosen, so the people, though capable of calling others to an account for their administration, are incapable of the administration themselves.
The public business must be carried on, with a certain motion neither too quick nor too slow. But the motion of the people is always either too remiss or too violent. Sometimes with a hundred thousand arms they overturn all before them; and sometimes with a hundred thousand feet they creep like insects.
In a popular state the inhabitants are divided into certain classes. It is in the manner of making this division that great legislators have signalized themselves , and it is on this the duration and prosperity of democracy have always depended.
Servius Tullius followed the spirit of aristocracy in the distribution of his classes. We find in Livy and in Dionysius Halicarnasseus, in what manner he lodged the right of suffrage in the hands of the principal citizens. He had divided the people of Rome into a hundred and ninety-three centuries, which formed six classes; and ranking the rich, who were in smaller numbers, in the first centuries, and those in middling circumstances, who were more numerous, in the following centuries; he slung the indigent multitude into the last; and as each century had but one vote, it was property rather than numbers that decided the elections.
Solon divided the people of Athens into four classes. In this he was directed by the spirit of democracy, his intention not being to fix those who were to chuse, but those who were capable of being chosen , wherefore leaving to each citizen the right of election, he made the judges eligible from each of those four classes; but the magistrates he ordered to be chosen only out of the three first, which consisted of citizens of easy fortunes.
As the division of those who have a right of suffrage, is a fundamental law in a republic; so the manner also of giving this suffrage is another fundamental law.
The suffrage by lot is natural to democracy, as that by choice is to aristocracy.
The suffrage by lot is a method of electing that offends no one; it lets each citizen entertain reasonable hopes of serving his country.
But as this method is in itself defective, it has been the glorious endeavour of the most eminent legislators to regulate and amend it.
Solon made a law at Athens that military employments should be conferred by choice, but that senators and judges should be elected by lot.
The same legislator ordained, that civil magistracies, attended with great expence, should be given by choice; and the others by lot.
But in order to amend the suffrage by lot, he made a rule that none but those who presented themselves should be elected , that the person elected should be examined by judges, and that every one should have a right to accuse him if he were unworthy of the office: this participated at the same time of suffrage by lot, and of that by choice. When the time of their magistracy was expired, they were obliged to submit to another judgment upon the manner they had behaved. Persons utterly unqualified, must have been extremely backward in giving in their names to be drawn by lot.
The law which determines the manner of giving the suffrages, is likewise fundamental in a democracy. It is a question of some importance, whether the suffrages ought to be public or secret. Cicero observes, that the laws which rendered them secret towards the the republic, were the cause of its decline. But as this is differently practised in different republics, I shall offer here my thoughts concerning this subject.
The people’s suffrages ought doubtless to be public; and this should be considered as a fundamental law of democracy. The lower sort of people ought to be directed by those of higher rank, and restrained within bounds by the gravity of certain personages. Hence by rendering the suffrages secret in the Roman Republic all was lost; it was no longer possible to direct a populace that sought its own destruction. But when the body of the nobles are to vote in an aristocracy; or in a democracy, the senate; as the business is then only to prevent intrigues, the suffrages cannot be too secret.
Intriguing in a senate is dangerous; dangerous it is also in a body of nobles, but not so in the people whose nature it is to act through passion. In countries where they have no share in the government, we often see them as much inflamed on the account of an actor, as ever they could be for any concern of the state. The misfortune of a republic is, when there are no more intrigues; and this happens when the people are corrupted by dint of money: in which case they grow indifferent to public concerns, and passionately desirous of lucre. Careless of the government, and of every thing belonging to it, they quietly wait for their salary.
It is likewise a fundamental law in democracies, that the people should have the sole power to enact laws. And yet there are a thousand occasions on which it is necessary the senate should have a power .of decreeing, nay it is frequently proper to make some trial of a law before it is established. The constitutions of Rome and Athens were excellent. The decrees of the senate had the force of laws for the space of a year, and did not become perpetual till they were ratified by the consent of the people.
Of the Principles of the three kinds of Government.
Of the Principle of Democracy.
THERE is no great share of probity necessary to support a monarchical or despotic government. The force of laws in one, and the prince’s arm in the other, are sufficient to direct and maintain the whole. But in a popular state, one spring more is necessary, namely, virtue.
What I have here advanced, is confirmed by the unanimous testimony of historians, and is extremely agreeable to the nature of things. For it is clear that in a monarchy, where he who commands the execution of the laws generally thinks himself above them, there is less need of virtue than in a popular government, where the person intrusted with the execution of the laws, is sensible of his being subject himself to their direction.
Clear it is also that a monarch, who through bad advice or indolence ceases to enforce the execution of the laws, may easily repair the evil: he has only to follow other advice; or to shake off this indolence. But when in popular government, there is a suspension of the laws, as this can proceed only from the corruption of the republic, the state is certainly undone.
A very droll spectacle it was in the last century to behold the impotent efforts the English made for the establishment of democracy. As those who had a share in the direction of public affairs were void of all virtue, as their ambition was inflamed by the success of the most daring of their members, as the spirit of a faction was suppressed only by that of a succeeding faction, the government was continually changing: the people amazed at so many revolutions, fought every where for a democracy, without being able to find it. At length after a series of tumultuary motions and violent shocks, they were obliged to have recourse to the very government which they had so odiously proscribed.
When Sylla wanted to restore Rome to her liberty, this unhappy city was incapable of receiving it. She had only some feeble remains of virtue, and as this was every day diminishing, instead of being roused out of her lethargy, by Caesar, Tiberius, Caius, Claudius, Nero, Domitian, the riveted every day her chains; the blows the struck were levelled against the tyrants, but not at the tyranny.
The politic Greeks who lived under a popular government, knew no other support but virtue. The modern inhabitants of that country are intirely taken up with manufactures, commerce, finances, riches and luxury.
When virtue is banished, ambition invades the hearts of those who are disposed to receive it, and avarice possesses the whole community. The desires now change their objects; what they were fond of before, becomes indifferent; they were free, while under the restraint of laws, they will now be free to act against law; and as every citizen is like a slave escaped from his master’s house, what was a maxim of equity, they call rigour; what was a rule of action, they call constraint; and to precaution they give the name of fear. Frugality, and not the thirst of gain, now passes for avarice. Formerly the wealth of individuals constituted the public treasure; but now the public treasure is become the patrimony of private persons. The members of the commonwealth riot on the public spoils, and its strength is only the power of some citizens, and the licentiousness of the whole community.
Athens was possessed of the same number of forces, when she triumphed with so much glory, and when with so much infamy she was inslaved. She had twenty thousand citizens, when she defended the Greeks against the Persians, when she contended for empire with Sparta, and invaded Sicily. She had twenty thousand when Demetrius Phalereus numbered them, as slaves are told by the head in a market. When Philip attempted to reign in 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 awake her: the dreaded Philip not as the enemy of her liberty, but of her pleasures. This famous city, which had withstood so many defeats, and after having been so often destroyed, had as often risen out of her ashes, was overthrown at Chaeronea, and at one blow deprived of all hopes of resource. What does it avail her that Philip sends back her prisoners, if he does not return her men? It was ever after as easy to triumph over the Athenian forces, as it would have been difficult to triumph over her virtue.
How was it possible for Carthage to maintain her ground? When Hannibal, upon his being made praetor, endeavoured to hinder the magistrates from plundering the republic, did not they complain of him to the Romans? Wretches, who wanted to be citizens without a city, and to be beholden for their riches, to their very destroyers! Rome soon insisted upon having three hundred of their principal citizens as hostages; the obliged them next to surrender their arms and ships; and then she declared war against them. By the efforts made by this defenceless city, when reduced to despair, one may judge of what she might have done in her full strength, and assisted by virtue.
Of the Principle of despotic Government.
AS virtue is necessary in a republic, and in a monarchy honor, so fear is necessary in a despotic government: with regard to virtue, there is no occasion for it, and honor would be extremely dangerous.
Here the immense power of the prince is devolved intirely upon those to whom he is pleased to intrust Persons capable of setting a value upon themselves would be likely to create revolutions. Fear must therefore depress their spirits, and extinguish even the least sense of ambition.
A moderate government may, whenever it pleases, and without any danger relax its springs. It supports itself by its laws, and by its own force. But when a despotic prince ceases one single moment to lift up his arm, when he cannot instantly demolish those whom he has entrusted with the first posts and employments, all is over: for as fear, the spring of this government, no longer subsists, the people are left without a protector.
It is probably in this sense the Cadis maintained that the grand Seignor was not obliged to keep his word or oath, when he limited thereby his authority.
It is necessary that the people should be judged by laws, and the great men by the caprice of the prince; that the lives of the lowest subjects should be safe, and the bashaw’s head always in danger. We cannot mention these monstrous governments without horror. The Sophi of Persia dethroned in our days by Mahomet the son of Miriveis, saw the constitution subverted before this revolution, because he had been too sparing of blood.
History informs us that the horrid cruelties of Domitian struck such a terror into the governors, that the people recovered themselves a little under his reign. Thus a torrent lays one side or a whole country waste, and on the other leaves fields untouched, where the eye is refreshed with the fight of some distant meadows.
Of the Corruption of the Principles of the three Governments.
Of the Corruption of the Principle of Democracy.
THE principle of democracy is corrupted, not only when the spirit of equality is extinct, but likewise when they fall into a spirit of extreme equality, and when every citizen wants to be upon a level with those he has chosen to command him. Then the people, incapable of bearing the very power they have intruded, want to do every thing of themselves, to debate for the senate, to execute for the magistrate, and to strip the judges.
When this is the case, virtue can no longer subsist in the republic. The people want to exercise the functions of the magistrates; who cease to be revered. The deliberations of the senate are flighted; all respect is then laid aside for the senators, and consequently for old age. If there is no more respect for old age, there will be none soon for parents; deference to husbands will be likewise thrown off, and submission to masters. This licentiousness will soon taint the mind; and the restraint of command be as fatiguing as that of obedience. Wives, children, slaves, will shake off all subjection. No longer will there be any such thing as manners, order, or virtue.
We find in Xenophon’s banquet a very lively description of a republic in which the people abused their equality. Each guest gives in his turn the reason why he is satisfied. “Content I am with myself, says Chamides, because of my poverty. When I was rich, I was obliged to pay my court to informers, knowing I was more liable to be hurt by them, than capable of doing them harm. The republic constantly demanded some new sum of me; and I could not decline paying. Since I am grown poor, I have acquired authority; no body threatens me, I rather threaten others. I can go or stay where I please. The rich already rise from their seats and give me the way. I am a king, I was before a slave: I paid taxes to the republic, now it maintains me: I am no longer afraid of losing; I hope to acquire.”
The people fall into this misfortune, when those in whom they confide, desirous of concealing their own corruption, endeavour to corrupt. To prevent them from seeing their own ambition, they speak to them only of their grandeur; to conceal their own avarice, they incessantly flatter theirs.
The corruption will increase among the corrupters, and likewise among those who are already corrupted. The people will distribute the public money among themselves, and having added the administration of affairs to their indolence, they will be for adding to their poverty the amusements of luxury. But with their indolence and luxury, nothing but the public treasure will be able to satisfy their demands.
We must not be surprised to see their suffrages given for money. It is impossible to give a great deal to the people without squeezing much more out of them: and to compass this, the state must be subverted. The greater the advantages they seem to derive from their liberty, the nearer they draw to the critical moment of losing it. Petty tyrants arise, who have all the vices of a single tyrant. The small remains of liberty soon become unsupportable; a single tyrant starts up, and the people lose all, even the advantages of their corruption.
Democracy hath therefore two excesses to avoid, the spirit of inequality which leads to aristocracy or monarchy; and the spirit of extreme equality, which leads to despotic power, as the latter is compleated by conquest.
True it is that those who corrupted the Greek republics, did not become tyrants. This was because they had a greater passion for eloquence than for the military art. Besides there reigned an implacable hatred in the hearts of the Greeks against those who subverted a republican government; and for this reason anarchy degenerated into annihilation, instead of being changed into tyranny.
But Syracuse, which was situated in the midst of a great number of petty states whose government had been changed from oligarchy to tyranny; Syracuse which had a senate scarce ever mentioned in history, was exposed to such miseries as are the consequences of a more than ordinary corruption. This city continually in a state of licentiousness or oppression, equally labouring under its liberty and servitude, receiving always the one and the other like a tempest, and notwithstanding its external strength constantly determined to a revolution by the least foreign power: This city, I say, had in its bosom an immense multitude of people, whose fate it was to have always this cruel alternative, of either giving themselvcs a tyrant, or of being the tyrant themselves.
Of Laws in the relation they bear to a defensive Force.
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 they were petty monarchies that had no union nor 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 shews us that it is much more imperfect than that of Holland and Swisserland.
The spirit of monarchy is war and enlargement of dominion: peace and moderation is the spirit of a republic. These two kinds of government cannot naturally subsist in a confederate republic.
Thus we observe in the Roman history, that when the Veientes had chosen a king, they were immediately abandoned by all the other petty republics of Tuscany. Greece was undone as soon as the kings of Macedon obtained a feat among the Amphietyons.
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.
Of the Laws that form political Liberty, with regard to the Constitution.
I Make a distinction between the laws that form political liberty with regard to the constitution, and those by which it is formed in respect to the citizen. The former shall be the subject of this book; the latter I shall examine in the next.
Different Significations given to the word Liberty.
THERE is no word that has admitted of more various significations, and has made more different impressions on human minds, than that of Liberty. Some have taken it for a facility of deposing a person on whom they had conferred a tyrannical authority; others for the power of chusing a person whom they are obliged to obey; others for the right of bearing arms, and of being thereby enabled to use violence; others in fine for the privilege of being governed by a native of their own country or by their own laws. 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 government, in exclusion of others: Those who had a republican taste, applied it to this government; those who liked a monarchical state, gave it to monarchies. Thus they all have applied the name of liberty to the government most conformable to their own customs and inclinations: and as in a republic people have not so constant and so present a view of the instruments of the evils they complain of, and likewise as the laws seem there to speak more, and the executors of the laws less, it is generally attributed to republics, and denied to monarchies. In fine as in democracies the people seem to do very near whatever they please, liberty has been placed in this sort of government, and the power of the people has been confounded with their liberty.
In what Liberty consists.
IT is true that in democracies the people seem to do what they please; but political liberty does not consist in an unrestrained freedom. In governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will.
We must have continually present to our minds the difference between independence and liberty. Liberty is a right of doing whatever the laws permit; and if a citizen could do what they forbid, he would no longer be possest of liberty, because all his fellow citizens would have the same power.
The same Subject continued.
DEmocratic and aristocratic states are not necessarily free. Political liberty is to be met with only in moderate governments: yet even in these it is not always met with. It is there only when there is no abuse of power: but constant experience shews us, that every man invested with power is apt to abuse it; he pushes on till he comes to the utmost limit. Is it not strange, though true, to say, that virtue itself has need of limits?
To prevent the abuse of power, it is necessary that by the very disposition o[ things power should be a check to power. A government may be so constituted, as no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits.
Of the end or view of different Governments.
THOUGH all governments have the same general end, which is that of preservation, yet each has another particular view. Increase of dominion was the view of Rome; war, of Sparta; religion, of the Jewish laws; commerce, that of Marseilles; public tranquillity, that of the laws of China; navigation, of the laws of Rhodes; natural liberty, that of the policy of the savages; in general the pleasures of the prince, that of despotic states; that of monarchies, the prince’s and the kingdom’s glory: the independence of individuals is the end aimed at by the laws of Poland, and from thence results the oppression of the whole.
One nation there is also in the world, that has for the direct end of its constitution political liberty. We shall examine presently the principles on which this liberty is founded: if they are sound, liberty will appear as in a mirror.
To discover political liberty in a constitution, no great labour is requisite. If we are capable of seeing it where it exists, why should we go any further in search of it?
Of the Constitution of England.
IN every government there are three sorts of power: the legislative, the executive in respect to things dependent on the law of nations; and the executive, in regard to things that depend on the civil law.
By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state.
The political liberty of the subject is a tranquillity of mind, arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another.
When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.
There would be an end of every thing, were the same man, or the same body whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals.
Most kingdoms of Europe enjoy a moderate government, because the prince who is invested with the two first powers, leaves the third to his subjects. In Turky, where these three powers are united in the Sultan’s person, the subjects groan under the weight of a most frightful oppression.
In the republics of Italy where these three powers are united, there is less liberty than in our monarchies. Hence their government is obliged to have recourse to as violent methods for its support, as even that of the Turks; witness the state inquisitors, and the lion’s mouth into which every informer may at all hours throw his written accusations.
What a situation must the poor subject be in, under those republics! The same body of magistrates are possessed, as executors of the laws, of the whole power they have given themselves in quality of legislators. They may plunder the state by their general determinations; and as they have likewise the judiciary power in their hands, every private citizen may be ruined by their particular decisions.
The whole power is here united in one body; and though there is no external pomp that indicates a despotic sway, yet the people feel the effects of it every moment.
Hence it is that many of the princes of Europe, whose aim has been levelled at arbitrary power, have constantly set out with uniting in their own persons, all the branches of magistracy, and all the great offices of state.
I allow indeed that the mere hereditary aristocracy of the Italian republics, does not answer exactly to the despotic power of the Eastern princes. The number of magistrates sometimes softens the power of the magistracy; the whole body of the nobles do not always concur in the same designs; and different tribunals are erected, that temper each other. Thus at Venice the legislative power is in the council, the executive in the pregadi, and the judiciary in the quarantia. But the mischief is that these different tribunals are composed of magistrates all belonging to the same body; which constitutes almost one and the same power.
The judiciary power ought not to be given to a standing senate; it should be excrcised by persons taken from the body of the people, at certain times of the year, and pursuant to a form and manner prescribed by law, in Order to erect a tribunl that should last only as long as necessity requires.
By this means the power of judging, a power so terrible to mankind, not being annexed to any particular state or profession, becomes, as it were, invisible. People have not then the judges continually present to their view; they fear the office, but not the magistrate.
In accusations of a deep or criminal nature, it is proper the person accused should have the privilege of chufing in some measure his judges in concurrence with the law; or at least he should have a right to except against so great a number, that the remaining part may be deemed his own choice.
The other two powers may be given rather to magistrates or permanent bodies, because they are not exercised on any private subject; one being no more than the general will of the state, and the other the execution of that general will.
But though the tribunals ought not to be fixt, yet the judgments ought, and to such a degree as to be always conformable to the exact letter of the law. Were they to be the private opinion of the judge, people would then live in society without knowing exactly the obligations it lays them under.
The judges ought likewise to be in the same station as the accused, or in other words, his peers, to the end that he may not imagine he is fallen into the hands of persons inclined to treat him with rigour.
If the legislature leaves the executive power in possession of a right to imprison those subjects who can give security for their good behaviour, there is an end of liberty; unless they are taken up, in order to answer without delay to a capital crime; in this case they are really free, being subject only to the power of the law.
But should the legislature think itself in danger by some secret conspiracy against the state, or by a correspondence with a foreign enemy, it might authorize the executive power, for a short and limited time, to imprison suspected persons, who in that case would lose their liberty only for a while, to preserve it for ever.
And this is the only reasonable method, that can be substituted to the tyrannical magistracy of the Ephori and to the state inquisitors of Venice, who are also despotical.
As in a free state, every man who is supposed a free agent, ought to be his own governor; so the legislative power should reside in the whole body of the people. But since this is impossible in large states, and in small ones is subject to many inconveniencies; it is fit the people should act by their representatives, what they cannot act by themselves.
The inhabitants of a particular town are much better acquainted with its wants and interests, than with those of other places; and are better judges of the capacity of their neighbours, than of that of the rest of their countrymen. The members therefore of the legislature should not be chosen from the general body of the nation; but it is proper that in every considerable place, a representative should be elected by the inhabitants.
The great advantage of representatives is their being capable of discussing affairs. For this the people collectively are extremely unfit, which is one of the greatest inconveniencies of a democracy.
It is not at all necessary that the representatives who have received a general instruction from their electors, should wait to be particularly instructed on every affair, as is practised in the diets of Germany. True it is that by this way of proceeding, the speeches of the deputies might with greater propriety be called the voice of the nation: but on the other hand this would throw them into infinite delays, would give each deputy a power of controlling the assembly; and on the most urgent and pressing occasions the springs of the nation might be stopped by a single caprice.
When the deputies, as Mr. Sidney well observes, represent a body of people, as in Holland, they ought to be accountable to their constituents: but it is a different thing in England, where they are deputed by boroughs.
All the inhabitants of the several districts ought to have a right of voting at the election of a representative, except such as are in so mean a situation, as to be deemed to have no will of their own.
One great fault there was in most of the ancient republics; that the people had a right to active resolutions, such as require some execution, a thing of which they arc absolutely incapable. They ought to have no hand in the government but for the chusing of representatives, which is within their reach. For though few can tell the exact degree of mens capacities, yet there are none but are capable of knowing in general whether the person they chuse is better qualified than most of his neighbours.
Neither ought the representative body to be chosen for active resolutions, for which it is not so fit; but for the enacting of laws, or to see whether the laws already enacted be duly executed, a thing they are very capable of, and which none indeed but themselves can properly perform.
In a state there are always persons distinguished by their birth, riches, or honors: but were they to be confounded with the common people, and to have only the weight of a single vote like the rest, the common liberty would be their slavery, and they would have no interest in supporting it, as most of the popular resolutions would be against them. The share they have therefore in the legislature ought to be proportioned to the other advantages they have in the state; which happens only when they form a body that has a right to put a stop to the enterprizes of the people, as the people have a right to oppose any encroachment of theirs.
The legislative power is therefore committed to the body of the nobles, and to the body chosen to represent the people, which have each their assemblies and deliberations apart, each their separate view and interests.
Of the three powers above-mentioned the judiciary is in some measure next to nothing. There remains therefore only two; and as these have need of a regulating power to temper them, the part of the legislative body composed of the nobility, is extremely proper for this very purpose.
The body of the nobility ought to be hereditary. In the first place it is so in its own nature; and in the next there must be a considerable interest to preserve its privileges; privileges that in themselves are obnoxious to popular envy, and of course in a free state are always in danger.
But as an hereditary power might be tempted to pursue its own particular interests, and forget those of the people; it is proper that where they may reap a singular advantage from being corrupted, as in the laws relating to the supplies, they should have no other share in the legislation, than the power of rejecting, and not that of resolving.
By the power of resolving, I mean the right of ordaining by their own authority, or of amending what has been ordained by others. By the power of rejecting, I would be understood to mean the right of annulling a resolution taken by another; which was the power of the tribunes at Rome. And though the person possessed of the privilege of rejecting may likewise have the right of approving, yet this approbation passes for no more than a declaration, that he intends to make no use of his privilege of rejecting, and is derived from that very privilege.
The executive power ought to be in the hands of a monarch; because this branch of government, which has always need of expedition, is better administered by one than by many: whereas, whatever depends on the legislative power, is oftentimes better regulated by many than by a single person.
But if there was no monarch, and the executive power was committed to a certain number of persons selected from the legislative body, there would be an end then of liberty; by reason the two powers would be united, as the same persons would actually sometimes have, and would moreover be always able to have, a share in both.
Were the legislative body to be a considerable time without meeting, this would likewise put an end to liberty. For of two things one would naturally follow; either that there would be no longer any legislative resolutions, and then the state would fall into anarchy; or that these resolutions would be taken by the executive power which would render it absolute.
It would be needless for the legislative body to continue always assembled. This would be troublesome to the representatives, and moreover would cut out too much work for the executive power, so as to take off its attention from executing, and oblige it to think only of defending its own prerogatives and the right it has to execute.
Again, were the legislative body to be always assembled, it might happen to be kept up only by filling the places of the deceased members with new representatives; and in that case, if the legislative body was once corrupted, the evil would be past all remedy. When different legislative bodies succeed one another, the people who have a bad opinion of that which is actually fitting, may reasonably entertain some hopes of the next: but were it to be always the same body, the people upon seeing it once corrupted, would no longer expect any good from its laws; and of course they would either become desperate or fall into a state of indolence.
The legislative body should not assemble of itself. For a body is supposed to have no will but when it is assembled; and besides were it not to assemble unanimously, it would be impossible to determine which was really the legislative body, the part assembled, or the other. And if it had a right to prorogue itself, it might happen never to be prorogued; which would be extremely dangerous in case it should ever attempt to incroach on the executive power. Besides there are seasons, some of which are more proper than others, for assembling the legislative body: it is fit therefore that the executive power should regulate the time of convening as well as the duration of those assemblies, according to the circumstances and exigencies of state known to itself.
Were the executive power not to have a right of putting a stop to the encroachments of the legislative body, the latter would become despotic; for as it might arrogate to itself what authority it pleased, it would soon destroy all the other powers.
But it is not proper on the other hand that the legislative power should have a right to stop the executive. For as the execution has its natural limits, it is useless to confine it; besides the executive power is generally employed in momentary operations. The power therefore of the Roman tribunes was faulty, as it put a stop not only to the legislation, but likewise to the execution itself; which was attended with infinite mischiefs.
But if the legislative power in a free government has no right to stay the executive, it has a right and ought to have the means of examining in what manner its laws have been executed; an advantage which this government has over that of Crete and Sparta, where the Cosmi and the Ephuri gave no account of their administration.
But whatever may be the issue of that examination, the legislative body ought not to have a power of judging the person, nor of course the conduct of him who is intrusted with the executive power. His person should be sacred, because as it is necessary for the good of the state to prevent the legislative body from rendering themselves arbitrary, the moment he is accused or tried, there is an end of liberty.
In this case the state would be no longer a monarchy, but a kind of republican, though not a free, government. But as the person intrusted with the executive power cannot abuse it without bad counsellors, and such as hate the laws as ministers, though the laws favour them as subjects; these men may be examined and punished. An advantage which this government has over that of Gnidus, where the law allowed of no such thing as calling the Amymones to an account, even after their administration; and therefore the people could never obtain any satisfaction for the injuries done them.
Though in general the judiciary power ought not to be united with any part of the legislative, yet this is liable to three exceptions founded on the particular interest of the party accused.
The great are always obnoxious to popular envy; and were they to be judged by the people, they might be in danger from their judges, and would moreover be deprived of the privilege which the meanest subject is possessed of in a free state, of being tried by their peers. The nobility for this reason ought not to be cited before the ordinary courts of judicature, but before that part of the legislature which is composed of their own body.
It is possible that the law, which is clear-sighted in one sense, and blind in another, might in some cases be too severe. But as we have already observed, the national judges are no more than the mouth that pronounces the words of the law, mere passive beings incapable of moderating either its force or rigor. That part therefore of the legislative body, which we have just now observed to be a necessary tribunal on another occasion, is also a necessary tribunal in this; it belongs to its supreme authority to moderate the law in favour of the law itself, by mitigating the sentence.
It might also happen that a subject intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of crimes which the ordinary magistrates either could not, or would not punish. But in general the legislative power cannot judge , and much less can it be a judge in this particular case, where it represents the party concerned, which is the people. It can only therefore impeach. But before what court shall it bring its impeachment? Must it go and demean itself before the ordinary tribunals, which are its inferiors, and being composed moreover of men who are chosen from the people as well as itself, will naturally be swayed by the authority of so powerful an accuser? No: in order to preserve the dignity of the people, and the security of the subject, the legislative part which represents the people, must bring in its charge before the legislative part which represents the nobility, who have neither the same interests nor the same passions.
Here is an advantage which this government has over most of the ancient republics, where there was this abuse, that the people were at the same time both judge and accuser.
The executive power, pursuant to what has been already said, ought to have a share in the legislature by the power of rejecting, otherwise it would soon be stripp’d of its prerogative. But should the legislative power usurp a share of the executive, the latter would be equally undone.
If the prince were to have a share in the legislature by the power of resolving, liberty would be lost. But as it is necessary he should have a share in the legislature for the support of his own prerogative, this share must consist in the power of rejecting.
The change of government at Rome was owing to this, that neither the senate who had one part of the executive power, nor the magistrates who were entrusted with the other, had the right of rejecting, which was intirely lodged in the people.
Here then is the fundamental constitution of the government we are treating of. The legislative body being composed of two parts, one checks the other, by the mutual privilege of rejecting. They are both checked by the executive power, as the executive is by the legislative.
These three powers should naturally form a state of repose or inaction. But as there is a necessity for movement in the course of human affairs, they are forced to move, but still to move in concert.
As the executive power has no other part in the legislative than the privilege of rejecting, it can have no share in the public debates. It is not even necessary that it should propose, because as it may always disapprove of the resolutions that shall be taken, it may likewise reject the decisions on those proposals which were made against its will.
In some ancient commonwealths, where public debates were carried on by the people in a body, it was natural for the executive power to propose and debate with the people, otherwise their resolutions must have been attended with a strange confusion.
Were the executive power to determine the raising of public money, otherwise than by giving its consent, liberty would be at an end; because it would become legislative in the most important point of legislation.
If the legislative power was to settle the subsidies, not from year to year, but for ever, it would run the risk of losing its liberty, because the executive power would no longer be dependent; and when once it was possessed of such a perpetual right, it would be a matter of indifference, whether it held it of itself, or of another. The same may be said, if it should come to a resolution of intrusting, not an annual, but a perpetual command of the sea and land forces to the executive power.
To prevent the executive power from being able to oppress, it is requisite that the armies, with which it is intrusted, should consist of the people, and have the same spirit as the people, as was the case at Rome till the time of Marius. To obtain this end, there are only two ways, either that the persons employed in the army, should have sufficient property to answer for their conduct to their fellow subjects, and be entitled only for a year, as was customary at Rome: or if there should be a standing army, composed chiefly of the most despicable part of the nation, the legislative power should have a right to disband them as loon as it pleased; the soldiers should live in common with the rest of the people; and no separate camp, barracks, or fortress, should be suffered.
When once an army is established, it ought not to depend immediately on the legislative, but on the executive power; and this from the very nature of the thing; its business consisting more in action than in deliberation.
From a manner of thinking that prevails amongst mankind, they set a higher value upon courage than timorousness, on activity than prudence, on strength than counsel. Hence the army will ever despise a senate, and respect their own officers. They will naturally flight the orders sent them by a body of men, whom they look upon as cowards, and therefore unworthy to command them. So that as soon as the army depends on the legislative body, the government becomes a military one; and if the contrary has ever happened, it has been owing to some extraordinary circumstances. It is because the army was always kept divided; it is because it was composed of several bodies, that depended each on their particular province; it is because the capital towns were strong places, defended by their natural situation, and not garrisoned with regular troops. Holland for instance, is still safer than Venice; she might drown, or starve the revolted troops; for as they are not quartered in towns capable of furnishing them with necessary subsistence; this subsistence is of course precarious.
Whoever shall read the admirable treatise of Tacitus on the manners of the Germans, will find that it is from them the English have borrowed the idea of their political government. This beautiful system was invented first in the woods.
As all human things have an end, the state we are speaking of will lose its liberty, will perish. Have not Rome, Sparta, and Carthage perished? It will perish when the legislative power shall be more corrupt than the executive.
It is not my busines to examine whether the English actually enjoy this liberty, or nor: Sufficient it is for my purpose to observe, that it is established by their laws; and I inquire no further.
Neither do I pretend by this to undervalue other governments, nor to say that this extreme political liberty ought to give uneasiness to those who have only a moderate share of it. How should I have any such design, I who think that even the excess of reason is not always desirable, and that mankind generally find their account better in mediums than in extremes?
Harrington in his Occana has also inquired into the highest point of liberty to which the constitution of a state may be carried. But of him indeed it may be said, that for want of knowing the nature of real liberty, he busied himself in pursuit of an imaginary one, and that he built a Chalcedon though he had a Byzantium before his eyes.