The Spirit Of Laws Part 45

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

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

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

In fine, as the law is the momentary will of the prince, it is necessary that those who will for him should follow his sudden manner of willing.

17.-Of Presents It is a received custom in despotic countries never to address any superior whomsoever, not excepting their kings, without making them a present.60 The Mogul61 never receives the pet.i.tions 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 themselves bound by no other tie than the chastis.e.m.e.nts inflicted by one party upon another; where, in fine, there is very little to do, and where the people have seldom an occasion of presenting themselves before the great, of offering their pet.i.tions, 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 Plato62 ordered those who received presents for doing their duty, to be punished with death. "They must not take presents," says he, "neither for good nor for evil actions."

A very bad law was that among the Romans63 which gave the magistrates leave to accept small presents,64 provided they did not exceed one hundred crowns in the whole year. They who receive nothing expect nothing; they who receive a little soon covet more, till at length their desires swell to an exorbitant height. Besides, it is much easier to convict a man who knows himself obliged to accept no present at all, and yet will accept something, than a person who takes more when he ought to take less, and who always finds pretexts, excuses, and plausible reasons in justification of his conduct.

18.-Of Rewards conferred by the Sovereign In despotic governments, where, as we have already observed, the princ.i.p.al motive of action is the hope of the conveniences of life, the prince who confers rewards has nothing to bestow but money. In monarchies, where honor alone predominates, 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 republics 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 t.i.tle of citizen the same weight in a republic.

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

19.-New Consequences of the Principles of the three Governments I cannot conclude this book without making some applications of my three principles.

1st Question.] It is a question whether the laws ought to oblige a subject to accept a public employment. My opinion is that they ought in a republic, but not in a monarchical government. In the former, public employment 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.65 In the latter, public offices are testimonials of honor; now such is the capriciousness of honor that it chooses to accept none of these testimonies but when and in what manner it pleases.

The late King of Sardinia66 inflicted punishments on his subjects who refused the dignities and public offices of the state. In this he unknowingly followed republican ideas: but his method of governing in other respects sufficiently proves that this was not his intention.

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 the Romans it was usual to see a captain serve the next year under his lieutenant.67 This is because virtue in republics requires a continual sacrifice of our persons and of our repugnances for the good of the state. But in monarchies, 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.

3d Question.] Thirdly, it may be inquired, whether civil and military employment should be conferred on the same person. In republics I think they should be joined, but in monarchies separated. In the former it would be extremely dangerous to make the profession of arms a particular state, distinct from that of civil functions; and in the latter, no less dangerous would it be to confer these two employment on the same person.

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

In monarchies, they whose condition engages them in the profession of arms have nothing but glory, or at least honor or fortune, in view. To men, therefore, like these, the prince should never give any civil employment; 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.68 We have only to cast an eye on a nation that may be justly called a republic, disguised under the form of monarchy, and we shall see how jealous they are of making a separate order of the profession of arms, and how the military state is constantly allied with that of the citizen, and even sometimes of the magistrate, to the end that these qualities may be a pledge for their country, which should never be forgotten.

The division of civil and military employment, 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 const.i.tution of Rome; it was natural to a monarchical government; and what was only commenced under Augustus,69 succeeding emperors70 were obliged to finish, in order to temper the military government.

Procopius, therefore, the compet.i.tor of Valens the emperor, was very much to blame when, conferring the proconsular dignity71 upon Hormisdas, a prince of the blood royal of Persia, he restored to this magistracy the military command of which it had been formerly possessed; unless, indeed, he had very particular reasons for so doing. A person that aspires to the sovereignty concerns himself less about what is serviceable to the state than what is likely to promote his own interest.

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

But in monarchies this custom is not at all improper, by reason it is an inducement to engage in that as a family employment72 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. Suidas73 very justly observes, that Anastasius had changed the empire into a kind of aristocracy, by selling all public employments.

Plato74 cannot bear with this prost.i.tution: "This is exactly," says he, "as if a person were to be made a mariner or pilot of a s.h.i.+p, for his money. Is it possible that this rule should be bad in every other employment of life, and hold good only in the administration of a republic?" But Plato speaks of a republic founded on virtue, and we of a monarchy. Now, in monarchies (where, though there were no such thing as a regular sale of public offices, still the indigence and avidity of the courtier would equally prompt him to expose them to sale) chance will furnish better subjects than the prince's choice. In short, the method of attaining to honors through riches inspires and cherishes industry,75 a thing extremely wanting in this kind of government.

5th Question.] The fifth question is, in what kind of government censors are necessary. My answer is, that they are necessary in a republic, where the principle of government is virtue. We must not imagine that criminal actions only are destructive of virtue; it is destroyed also by omissions, by neglects, by a certain coolness in the love of our country, by bad examples, and by the seeds of corruption: whatever does not openly violate but elude the laws, does not subvert but weaken them, ought to fall under the inquiry and correction of the censors.

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

In monarchies there should be no censors; the former are founded on 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 corruption of a monarchy; the corruption rather would be too strong against them.

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

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

2 Plutarch, "Life of Solon."

3 Ibid.

4 Philolaus of Corinth made a law at Athens that the number of the portions of land and that of inheritances should be always the same.-Arist. "Polit.," lib. II. cap. xii.a 5 "Republic," book VIII.

6 Cornelius Nepos, in praefat. This custom began in the earliest times. Thus Abraham says of Sarah, "She is my sister, my father's daughter, but not my mother's." The same reasons occasioned the establis.h.i.+ng the same law among different nations.

7 De specialibus legibus quae pertinent ad praeceptor Decalogi.

8 Lib. X.b 9 Athenis dimidium licet, Alexandriae totum.-Seneca, "de morte Claudii."

10 Montesquieu is here accused of an attempt at satire, since it is Tacitus who says, "Sila.n.u.s lived in great friends.h.i.+p with his sister, though not criminally, although not without indiscretion."-Crevier.

11 Plato has a law of this kind, lib. XI. "Leg."

12 Aristot. lib. II. cap. vii.

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

14 Solon excludes from public employments all those of the fourth cla.s.s.

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

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

17 The magistrates there were annual, and the senators for life.

18 Lycurgus, says Xenophon, "de Repub. Lacedaem.," ordained that the senators should be chosen from amongst the old men, to the end that they might not be neglected in the decline of life; thus, by making them judges of the courage of young people, he rendered the old age of the former more honorable than the strength and vigor of the latter.

19 Even the Areopagus itself was subject to their censure.

20 "Republic of the Lacedaemonians."

21 We may see in the Roman History how useful this power was to the republic. I shall give an instance, even in the time of its greatest corruption. Aulus Fulvius was set out on his journey in order to join Catiline; his father called him back, and put him to death.-Sall.u.s.t, "de bello Catil."c 22 In our days the Venetians, who in many respects may be said to have a very wise government, decided a dispute between a n.o.ble Venetian and a gentleman of Terra Firma in respect to precedency in a church, by declaring that out of Venice a n.o.ble Venetian had no pre-eminence over any other citizen.

23 It was inserted by the decemvirs in the two last tables. See Dionys. Halicarn., lib. X.

24 As in some aristocracies in our time; nothing is more prejudicial to the government.

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

26 Amelot de la Housaye, "Of the Government of Venice," part III. The Claudian have any s.h.i.+p at sea that held above law forbade the senators to forty bushels.-Liv., lib XXI. cap. lxiii.

27 The informers throw their scrolls into it.

28 Their vote is secret; whereas at Rome it was public.-Ed.

29 See Livy, lib. XLIX. A censor could not be troubled even by a censor; each made his remark without taking the opinion of his colleague; and when it otherwise happened, the censors.h.i.+p was in a manner abolished.

30 At Athens the Logistae, who made all the magistrates accountable for their conduct, gave no account themselves.

31 It is so practised at Venice.-Amelot de la Housaye, pp. 30 and 31.

32 The main design of some aristocracies seems to be less the support of the state than of their n.o.bility.

33 These were not kings of Sparta, but pretenders. The true sovereigns were the Ephori, since royalty itself was subservient to them.-Ed.

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

35 "Testam. polit."

36 Barbaris cunctatio servilis, statim exequi regium videtur.-Tacit. "Annal," lib. V. cap. x.x.xii.

37 Lib. III. "de Leg." 10.

38 See the first note of book II. chap. 4.

39 Memoirs of Cardinal de Retz and other histories.

40 "Testam. polit.

41 Voltaire maintains that the conqueror of Candia, the Vizier Ibrahim, and many others of despotic sway contradict this statement.-Ed.

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

43 The king was not then at Bender, but at Demotica.-D.

44 Continuation of Puffendorf's introduction to the "History of Europe," in the article of Sweden, chap. x.

45 According to Sir John Chardin, there is no council of state in Persia.d 46 See Ricaut, "State of the Ottoman Empire," p. 196.

47 See concerning the inheritances of the Turks, Ancient and Modern Sparta. See also Ricaut on the Ottoman empire.

48 "Collection of Voyages that contributed to the establishment of the East India Company," tom. i. The law of Pegu is less cruel: if there happen to be children, the king succeeds only to two-thirds. Ibid. tom. iii. p. 1.

49 Chardin, chap. i. and iii.

50 See the different const.i.tutions, especially that of 1722.

51 See Justin.

52 See the book of laws as relative to the nature of the climate, Spirit of Laws, XIV.

53 Laquilletiere, "Ancient and Modern Sparta," p. 463.

54 The same may be said of compositions in regard to fair bankrupts.

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

56 Authentica bona d.a.m.natorum.-Cod. de bon d.a.m.n.

57 They seem to have been too fond of confiscations in the republic of Athens.

58 Book V. chap. iii.

59 "Ut esse Phbi dulcius lumen solet Jamjam cadentis" de bon d.a.m.n.--Sen. "Trias," act v. sc. 1.

60 Chardin, chap. xi.

61 "Collection of Voyages that contributed to the establishment of the East India Company," tom. i. p. 80.

62 Book XII. of Laws.

63 Leg. 5, sec. ad leg. Jul. repet.

64 Munuscula.

65 Plato, in his "Republic," book VIII., ranks these refusals among the marks of the corruption of a republic. In his "Laws," book VI., he orders them to be punished by a fine. At Venice they are punished with banishment.

66 Victor Amadeus.

67 Some centurions having appealed to the people for the employment which they had before enjoyed, "It is just, my comrades," said a centurion, "that you should look upon every post as honorable in which you have an opportunity of defending the republic."-Livy, dec. 5, lib. XLII.

68 "Ne imperium ad optimos n.o.bilium transferretur, Senatum militia vetuit Gallienus, etiam adire exercitum."-Aurelius Victor, "de virii ill.u.s.tribus."

69 Augustus deprived the senators, proconsuls, and governors of the privilege of wearing arms.-Dio, lib. LIII.

70 Constantine. See Zozimus, lib. II.

71 Ammia.n.u.s Marcellinus, lib. XXVI., "More veterum et bella recturo."

72 Voltaire exclaims, "Let us lament that Montesquieu has defamed his work by such paradoxes. But we can forgive him: his uncle purchased the office of President in the country, and left it to him. After all we find the man. No one of us is without his weak point."-Ed.

73 Fragments taken from the emba.s.sies of Constantine Porphyrogenitus.

74 "Repub." lib. VIII.