The Spirit of Laws (1758)/Book II

by Montesquieu

BOOK II.
Of Laws Directly derived from the Nature of Government.

CHAP. I.
Of the Nature of the three different Governments

Book II.
Chap. 1. & 2.THERE are three species of government, republican, monarchical, and despotic. In order to discover their nature, it is sufficient to recollect the common notion, which supposes three definitions, or rather three facts: that a republican government is that in which the body, or only a part of the people, is possessed of the supreme power: Monarchy, that in which a single person governs by fixt and established laws: a despotic government, that in which a single person directs every thing by his own will and caprice.

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

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

WHEN the body of the people in a republic are possessed of the supreme power, this is called a democracy. When the supreme power Book II.
Chap. 2.is lodged in the hands of a part of the people, it is then an aristocracy.

In a democracy the people are in some respects the sovereign, and in others the subject.

There can be no exercise of sovereignty but by their suffrages, which are their own will; now the sovereign's will is the sovereign himself. The laws therefore which establish the right of suffrage, are fundamental to this government. In fact, it is as important to regulate in a republic, in what manner, by whom, to whom, and concerning what, suffrages are to be given, as it is in a monarchy to know who is the prince and after what manner he ought to govern.

Libanius^[1] says, that at Athens a stranger who intermeddled in the assemblies of the people, was punished with death. This is because such a man usurped the rights of sovereignty.

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

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.

Book II.
Chap. 2.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 Book II.
Chap. 2.only cast an eye on the continual series of surprising elections made by the Athenians and Romans; which no one surely will attribute to hazard.

We know that though the people of Rome assumed to themselves the right of raising plebeians to public offices, yet they could not resolve to chuse them; and though at Athens the magistrates were allowed by the law of Aristides, to be elected from all the different classes of inhabitants, yet there never was case, says Xenophon^[3], that the common people petitioned for employments that could endanger their security or glory.

As most citizens have a capacity of chusing, though they are not sufficiently qualified to be chosen, so the people, though capable of calling others to an account for their administration, are incapable of the administration themselves.

The public business must be carried on, with a certain motion neither too quick nor too slow. But the motion of the people is always either too remiss or too violent. Sometimes with a hundred thousand arms they overturn all before them; and sometimes with a hundred thousand feet they creep like insects.

In a popular state the inhabitants are divided into certain classes. It is in the manner of making this division that great legislators have signalized themselves , and it is on this the duration and prosperity of democracy have always depended.

Servius Tullius followed the spirit of aristocracy in the distribution of his classes. We find in Livy^[4]and in Dionysius Halicarnasseus^[5], in what manner he lodged the right of suffrage in the hands of the principal citizens. He had divided Book II.
Chap. 2.the people of Rome into a hundred and ninety-three centuries, which formed six classes; and ranking the rich, who were in smaller numbers, in the first centuries, and those in middling circumstances, who were more numerous, in the following centuries; he slung the indigent multitude into the last; and as each century had but one vote,^[6] it was property rather than numbers that decided the elections.

Solon divided the people of Athens into four classes. In this he was directed by the spirit of democracy, his intention not being to fix those who were to chuse, but those who were capable of being chosen , wherefore leaving to each citizen the right of election, he made^[7] the judges eligible from each of those four classes; but the magistrates he ordered to be chosen only out of the three first, which consisted of citizens of easy fortunes.

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.

Book II.
Chap. 2.Solon made a law at Athens that military employments should be conferred by choice, but that senators and judges should be elected by lot.

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

But in order to amend the suffrage by lot, he made a rule that none but those who presented themselves should be elected , that the person elected should be examined by judges^[8], and that every one should have a right to accuse him if he were unworthy of the office^[9]: this participated at the same time of suffrage by lot, and of that by choice. When the time of their magistracy was expired, they were obliged to submit to another judgment upon the manner they had behaved. Persons utterly unqualified, must have been extremely backward in giving in their names to be drawn by lot.

The law which determines the manner of giving the suffrages, is likewise fundamental in a democracy. It is a question of some importance, whether the suffrages ought to be public or secret. Cicero observes^[10], that the laws ^[11] which rendered them secret towards the the republic, were the cause of its decline. But as this is differently practised in different republics, I shall offer here my thoughts concerning this subject.

Book II.
Chap. 2.The people's suffrages ought doubtless to be public^[12]; and this should be considered as a fundamental law of democracy. The lower sort of people ought to be directed by those of higher rank, and restrained within bounds by the gravity of certain personages. Hence by rendering the suffrages secret in the Roman Republic all was lost; it was no longer possible to direct a populace that sought its own destruction. But when the body of the nobles are to vote in an aristocracy^[13]; or in a democracy, the senate^[14]; as the business is then only to prevent intrigues, the suffrages cannot be too secret.

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 Book II.
Chap. 3. of decreeing, nay it is frequently proper to make some trial of a law before it is established. The constitutions of Rome and Athens were excellent. The decrees of the senate^[15] had the force of laws for the space of a year, and did not become perpetual till they were ratified by the consent of the people.

CHAP. III.
Of the Laws relative to the nature of Aristocracy.

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

They do not vote here by lot, for this would be attended only with inconveniencies. In fact, in a government where the most oppressive distinctions are already established, though they were to vote by lot, still they would not cease to be odious; it is the nobleman they envy and not the magistrate.

When the nobility are numerous, there must be a senate to regulate the affairs which the body of nobles are incapable of deciding, and to prepare those they decide. In this case it may be said that the aristocracy is in some measure in the senate, the democracy in the body of the nobles, and the people are nothing at all.

It would be a very happy thing in an aristocracy, if by some indirect method the people could be emancipated from their state of annihilation. Thus at Genoa the bank of St. George Book II.
Chap. 3.being administered by the people, gives them a certain influence in the government, from whence their whole prosperity arises.

The senators ought by no means to have a right of naming their own members; for this would be the only way to perpetuate abuses. At Rome, which in its early years was a kind of aristocracy, the senate did not fill up the vacant places in their own body, the new senators were nominated by the^[16] censors.

An exorbitant authority suddenly conferred upon a citizen in a republic, produces a monarch or something more than a monarchy. In the latter the laws have provided for, or in some measure adapted themselves to, the constitution; and the principle of government checks the monarch: but in a republic where a private citizen has obtained an exorbitant power^[17], the abuse of this power is much greater, because the laws foresaw it not, and consequently made no provision against it.

There is an exception to this rule when the constitution is such as to have immediate need of a magistrate inverted with an exorbitant power. Such was Rome with her dictators, such is Venice with her state inquisitors, these are formidable magistrates, who restore, as it were by violence, the state to its liberty. But how comes it that these magistracies are so very different in these two republics? It is because Rome supported the remains of her aristocracy against the people; whereas Venice employs her state inquisitors to maintain her Book II.
Chap. 3.aristocracy against the nobles. The consequence was, that at Rome the dictatorship could be only of a short duration, because the people act through passion and violence, and not with design. It was necessary that a magistracy of this kind should be exercised with lustre and pomp, because the business was to intimidate and not to punish the people. It was also necessary that the dictator should be created only for some particular affair, and for this only should have an unlimited authority, because he was always created upon some sudden emergency. On the contrary, at Venice they have occasion for a permanent magistracy; for here it is that designs may be commenced, continued, suspended, resumed; that the ambition of a single person becomes that of a family, and the ambition of one family that of many. They have occasion for a secret magistracy, because the crimes they punish, are hatched in secrecy and silence. This magistracy must have a general inquisition, by reason their business is not to put a slop to known evils, but to prevent the unknown. In sine the latter magistracy is appointed in order to punish suspected crimes; and the former used rather menaces than punishment even for crimes that were openly avowed by their authors.

In all magistracies, the greatness of the power must be compensated by the brevity of the duration, This most legislators have fixed to a year; a longer space would be dangerous, and a shorter would be contrary to the nature of the thing. For who is it that in the management even of his domestic affairs would be thus confined? At Ragufa^[18] the chief magistrate of the republic is changed every month, the Book II.
Chap. 3.other officers every week, and the governor of the castle every day. But this can take place only in a small republic environed^[19] by formidable powers, who might easily corrupt such petty and insignificant magistrates.

The best aristocracy is that in which those who have no share in the legislature, are so few and inconsiderable, that the governing party have no interest in oppressing them. Thus when Antipater^[20] made a law at Athens, that whosoever was not worth two thousand drachms, should have no power to vote, he formed by this means the best aristocracy possible; because this was so small a sum as excluded very few, and not one of any rank or consideration in the city. Aristocratical families ought therefore, as much as possible, to level themselves in appearance with the people. The more an aristocracy borders on democracy, the nearer it approaches to perfection; and the more it is imperfect, in proportion as it draws towards monarchy.

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

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

THE intermediate, subordinate and denpendent powers, constitute the nature of Book II.
Chap. 4.monarchical government, I mean of that in which a single person governs by fundamental laws. I said, the intermediate, subordinate and dependent powers. In fact, in monarchies the prince is the source of all power political and civil. These fundamental laws necessarily suppose the intermediate channels through which the power flows: for if there be only the momentary and capricious will of a single person to govern the state, nothing can be fixed, and of course there can be no fundamental law.

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

There are men who have endeavoured in some countries in Europe to abolish all the jurisdiction of the nobility; not perceiving that they were driving at the very thing that was done by the parliament of England. Abolish the privileges of the lords, of the clergy, and of the cities in a monarchy, and you will soon have a popular state, or else a despotic government.

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

Far am I from being prejudiced in favour of the privileges of the clergy; however, I should be glad their jurisdiction were once fixed. The Book II.
Chap. 4.question is not whether their jurisdiction was justly established , but whether it be really established; whether it constitutes a part of the laws of the country, and is in every respect relative to those laws; whether between two powers acknowledged independent, the conditions ought not to be reciprocal; and whether it is not equally the duty of a good subject to defend the prerogative of the prince, as to maintain the limits which from time immemorial he has prescribed to his authority.

Though the ecclesiastic power is so dangerous in a republic, yet it is extremely proper in a monarchy, especially of the absolute kind. What would become of Spain and Portugal since the subversion of their laws, were it not for this only barrier against the incursions of arbitrary power? A barrier that is always useful when there is no other: for as a despotic government is productive of the most frightful calamities to human nature, the very evil that restrains it, is beneficial to the subject.

As the ocean which seems to threaten to overflow the whole earth, is slopped by weeds and by little pebbles that lie scattered along the shore: so monarchs whose power seems unbounded, are restrained by the smallest obstacles, and suffer their natural pride to be subdued by supplication and prayer.

The English to favour their liberty, have abolished all the intermediate powers of which their monarchy was composed. They have a great deal of reason to be jealous of this liberty, were they ever to be so unhappy as to lose it, they would be one of the most servile nations upon earth.

Book II.
Chap. 4.Mr. Law, through ignorance both of a republican and monarchical constitution, was one of the greatest promoters of absolute power that ever was known in Europe. Besides the violent and extraordinary changes owing to his direction: he wanted to suppress all the intermediate ranks, and to abolish the political communities. He was dissolving^[21] the monarchy by his chimerical reimbursements, and seemed as if he wanted to redeem even the very constitution.

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

Despotic governments, where there are no fundamental laws, have no such kind of depositary. Hence it is that religion has generally so much influence in those countries, because it forms Book II.
Chap. 5.a kind of permanent depositary, and if this cannot be said of religion, it may of the customs that are respected instead of laws.

CHAP. V.
Of the Laws relative to the nature of a despotic Government.

FROM the nature of despotic power it follows that the single person invested with this power, commits the execution of it also to a single person. A man whom his senses continually inform, that he himself is every thing, and his subjects nothing, is naturally lazy, voluptuous, an ignorant. In consequence of this, he neglects the management of public affairs. But were he to commit the administration to many, there would be continual disputes among them; each would form intrigues to be his first slave; and he would be obliged to take the reins into his own hands. It is therefore more natural for him to resign it to a vizir^[22], and to invest him with the same power as himself. The creation of a vizir is a fundamental law of this government.

It is related of a pope, that he had raised an infinite number of difficulties against his election, from a thorough conviction of his incapacity. At length he was prevailed on to accept of the pontificate; and resigned the administration intirely to his nephew. He was soon struck with surprize, and said, I should never have thought that these things were so easy. The same may be said of the Book II.
Chap. 5.princes of the East, who, being bred in that prison where their eunuchs enervate both their hearts and understandings, and where they are frequently kept ignorant even of their high rank, when drawn forth in order to be placed on the throne, they are at first amazed: but as soon as they have chosen a vizir, they abandon themselves in their seraglio to the most brutal passions, pursuing in the midst of a prostituted court, the most capricious extravagancies; they then could neven have dreamt to find matters so easy.

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

 

1. Declam, 17 & 28.
2. See the considerations on the causes of the grandeur and decline of the Romans.
3. Page 691, and 692, Edit. Wechel. Ann. 1576.
4. lib 1.
5. lib. 4, Art. 13, & seq.
6. See in the Considerations on the causes of the grandeur and decline of the Romans, chap.9. how this spirit of Servius Tallius was preserved in the republic.
7. Dionysius Halicarn. elogium of Isocrates. p.97, tom. 2. Edit. Wechel. Pollux lib. 8. cap. 10. Art 130.
8. See the oration of Demosthens desalsa legat. and the oration against Timarchus.
9. They used even to draw two tickets for each place, one which gave the place, and the other which named the person who was to succeed, in case the first was rejected.
10. lib. 1. & 3. de Leg.
11. They were called Lega Tabulares; two tablets were presented to each citizen. the first marked with an A, for Antique, or I forbid it, and the other with an U and an R, for Uti Rogat, or Be it as you desire.
12. At Athens the people used to lift up their hands.
13. As at Venice.
14. The thirty tyrants at Athens ordered the suffrages of the Areopagites to be public, in order to manage them as they pleased. Lysias orat. contra Agorat. cap. 8
15. See Dionys. Halicarn. lib.4,&9.
16. They were named at first by the consuls.
17. This is what ruined the republic of Rome: ce Considerations on the causes of the grandeur and decline of the Roman.
18. Tournefort's voyages.
19. At Lucca the magistrates are chosen only ...
20. Diodorus lib. 18. p.601. Rhodoman's Edition.
21. Ferdinand king of Arragon made himself grand master of the orders, and that alone changed die constitution.
22. The Eastern kings are never without vizirs, says Sir John Chardin.