The Spirit Of Laws Part 47

In "The Consideration on the Rise and Declension of the Roman Grandeur,"51 we find in what manner Constantine changed the military despotism into a military and civil government, and drew nearer to monarchy. There we may trace the different revolutions of this state, and see how they fell from rigor to indolence, and from indolence to impunity.

16.-Of the just Proportion between Punishments and Crimes It is an essential point, that there should be a certain proportion in punishments, because it is essential that a great crime should be avoided rather than a smaller, and that which is more pernicious to society rather than that which is less.

"An impostor,52 who called himself Constantine Ducas, raised a great insurrection at Constantinople. He was taken and condemned to be whipped; but upon informing against several persons of distinction, he was sentenced to be burned as a calumniator." It is very extraordinary that they should thus proportion the punishments between the crime of high treason and that of calumny.

This puts me in mind of a saying of Charles II, King of Great Britain. He saw a man one day standing in the pillory; upon which he asked what crime the man had committed. He was answered, "Please your majesty, he has written a libel against your ministers. "The fool!" said the King, "why did he not write against me? They would have done nothing to him."

"Seventy persons having conspired against the Emperor Basil, he ordered them to be whipped, and the hair of their heads and beards to be burned. A stag, one day, having taken hold of him by the girdle with his horn, one of his retinue drew his sword, cut the girdle, and saved him; upon which he ordered that person's head to be cut off, 'for having,' said he, 'drawn his sword against his sovereign.'"53 Who could imagine that the same prince could ever have pa.s.sed two such different judgments?

It is a great abuse amongst us to condemn to the same punishment a person that only robs on the highway and another who robs and murders. Surely, for the public security, some difference should be made in the punishment.

In China, those who add murder to robbery are cut in pieces:54 but not so the others; to this difference it is owing that though they rob in that country they never murder.

In Russia, where the punishment of robbery and murder is the same, they always murder.55 The dead, say they, tell no tales.

Where there is no difference in the penalty, there should be some in the expectation of pardon. In England they never murder on the highway, because robbers have some hopes of transportation, which is not the case in respect to those that commit murder.

Letters of grace are of excellent use in moderate governments. This power which the prince has of pardoning, exercised with prudence, is capable of producing admirable effects. The principle of despotic government, which neither grants nor receives any pardon, deprives it of these advantages.

17.-Of the Rack The wickedness of mankind makes it necessary for the law to suppose them better than they really are. Hence the deposition of two witnesses is sufficient in the punishment of all crimes. The law believes them, as if they spoke by the mouth of truth. Thus we judge that every child conceived in wedlock is legitimate; the law having a confidence in the mother, as if she were chast.i.ty itself. But the use of the rack against criminals cannot be defended on a like plea of necessity.

We have before us the example of a nation blessed with an excellent civil government,56 where without any inconvenience the practice of racking criminals is rejected. It is not, therefore, in its own nature necessary.57 So many men of learning and genius have written against the custom of torturing criminals, that after them I dare not presume to meddle with the subject. I was going to say that it might suit despotic states, where whatever inspires fear is the fittest spring of government. I was going to say that the slaves among the Greeks and Romans-but nature cries out aloud, and a.s.serts her rights.

18.-Of pecuniary and corporal Punishments Our ancestors, the Germans, admitted of none but pecuniary punishments. Those free and warlike people were of opinion that their blood ought not to be spilled but with sword in hand. On the contrary, these punishments are rejected by the j.a.panese,58 under pretence that the rich might elude them. But are not the rich afraid of being stripped of their property? And might not pecuniary penalties be proportioned to people's fortunes? And, in fine, might not infamy be added to those punishments?

A good legislator takes a just medium; he ordains neither always pecuniary nor always corporal punishments.

19.-Of the Law of Retaliation The use of the law of retaliation59 is very frequent in despotic countries, where they are fond of simple laws. Moderate governments admit of it sometimes; but with this difference, that the former exercise it in full rigor, whereas among the latter it ever receives some kind of limitation.

The law of the Twelve Tables admitted two: first, it never condemned to retaliation, but when the plaintiff could not be satisfied in any other manner.60 econdly, after condemnation they might pay damages and interest,61 and then the corporal was changed into a pecuniary punishment.62 20.-Of the Punishment of Fathers for the Crimes of their Children In China, fathers are punished for the crimes of their children. This was likewise the custom of Peru63-a custom derived from the notion of despotic power.

Little does it signify to say that in China the father is punished for not having exerted that paternal authority which nature has established, and the laws themselves have improved. This still supposes that there is no honor among the Chinese. Amongst us, parents whose children are condemned by the laws of their country, and children64 whose parents have undergone the like fate, are as severely punished by shame, as they would be in China by the loss of their lives.

21.-Of the Clemency of the Prince Clemency is the characteristic of monarchs. In republics, whose principle is virtue, it is not so necessary. In despotic governments, where fear predominates, it is less customary, because the great men are to be restrained by examples of severity. It is more necessary in monarchies, where they are governed by honor, which frequently requires what the very law forbids. Disgrace is here equivalent to chastis.e.m.e.nt; and even the forms of justice are punishments. This is because particular kinds of penalty are formed by shame, which on every side invades the delinquent.

The great men in monarchies are so heavily punished by disgrace, by the loss (though often imaginary) of their fortune, credit, acquaintances, and pleasures, that rigor in respect to them is needless. It can tend only to divest the subject of the affection he has for the person of his prince, and of the respect he ought to have for public posts and employments.

As the instability of the great is natural to a despotic government, so their security is interwoven with the nature of monarchy.

So many are the advantages which monarchs gain by clemency, so greatly does it raise their fame and endear them to their subjects, that it is generally happy for them to have an opportunity of displaying it; which in this part of the world is seldom wanting.

Some branch, perhaps, of their authority, but never hardly the whole, will be disputed; and if they sometimes fight for their crown, they do not fight for their life.

But some may ask when it is proper to punish, and when to pardon. This is a point more easily felt than prescribed. When there is danger in the exercise of clemency, it is visible; nothing so easy as to distinguish it from that imbecility which exposes princes to contempt and to the very incapacity of punis.h.i.+ng.

The Emperor Maurice65 made a resolution never to spill the blood of his subjects. Anastasius66 punished no crimes at all. Isaac Angelus took an oath that no one should be put to death during his reign. Those Greek emperors forgot that it was not for nothing they were intrusted with the sword.

1 In Mazulipatam it could never be found out that there was such a thing as a written law. See the "Collection of Voyages that contributed to the establishment of the East India Company," tom. iv. part 1. p. 391. The Indians are regulated in their decisions by certain customs. The Vedas and such books do not contain civil laws, but religious precepts. See "Lettres edifiantes," 14, collect.

2 Caesar, Cromwell, and many others.

3 Non liquet.

4 "Quas actiones ne populus prout vellet inst.i.tueret, certas solemnesque esse voluerunt."-Lib. II. sec. 6, Digest de Orig. Jur.

5 In France a person, though sued for more than he owes, loses his costs if he has not offered to pay the exact debt.

6 "Discourse on the first Decade of Livy, "book I. chap. vii.

7 This is well explained in Cicero's oration "pro Caecina," towards the end.

8 This was the law at Athens, as appears by Demosthenes. Socrates refused to make use of it.

9 Demosthenes, "pro Corona," p. 494, edit. Frankf. an. 1604.

10 See Philostratus's "Lives of the Sophists," book I., Life of aeschines.

11 Plato does not think it right that kings, who, as he says, are priests, should preside at trials where people are condemned to death, to exile, or to imprisonment.

l2 See the relation of the trial of the Duke de la Valette. It is printed in the "Memoirs of Montresor," tom. ii. p. 62.

13 It was afterwards revoked. See then same relation. It was ordinarily a right of the peerage that a peer criminally accused should be judged by the king, as Francis II in the trial of the Prince of Conde, and Charles VII in the case of the Duc d'Alencon. To-day, the presence of the king at the trial of a peer, in order to condemn him, would seem an act of tyranny.-Voltaire.

14 "Annal." lib. XI.

15 "Annal." lib. XIII.

16 "Hist." lib. V.

17 The same disorder happened under Theodosius the younger.

18 "Secret History."

19 See the 2d law, sec. 24 ff. "de Orig. Jur."

20 "Quod pater puellae abesset, loc.u.m injuriae esse ratus."-Livius, dec. I. lib. III.

21 And in a great many other cities.

22 See in Tacitus the rewards given to those informers.

23 Lib. IX.

24 I shall show hereafter that China is, in this respect, in the same case as a republic or a monarchy.

25 Suppose, for instance, to prevent the execution of a decree, the common people paid a fine of forty sous, and the n.o.bility of sixty livres.-"Somme Rurale," book II. p.198, edit. Got. of the year 1512.

26 See the "Council of Peter Defontaines," chap. xiii., especially the 22d art.

27 It was made by Valerius Publicola soon after the expulsion of the kings, and was twice renewed, both times by magistrates of the same family. As Livy observes, lib. X., the question was not to give it a greater force, but to render its injunctions more perfect. "Diligentius sanctum," says Livy, ibid.

28 "Lex Porcia pro tergo civium lata." It was made in the 454th year of the foundation of Rome.

29 "Nihil ultra quam improbe factum adjecet."-Liv.

30 They slit his nose or cut off his ears.

31 Xenoph. "Hist." lib. III.

32 Morals of those who are intrusted with the direction of the state affairs.

33 Montesquieu appears to have followed Amyot, who was mistaken here. Plutarch says that the Athenians carried the victims of expiation around the a.s.sembly. It was done as an act of purification.-Crevier.

34 See Kempfer.

35 "Collection of Voyages that contributed to the establishment of the East India Company," tom. iii. p. 428.

36 Let this be observed as a maxim in practice, with regard to cases where minds of people have been depraved by too great a severity of punishments.

37 "Collection of Voyages that contributed to the establishment of the East India Company," tom. v. p. 2.

38 "Collection of Voyages that contributed to the establishment of the East India Company," tom. v. p. 2.

39 The guilty were condemned to a fine; they could not be admitted into the rank of senators, nor nominated to any public office.-Dio, book x.x.xVI.

40 Book x.x.xVI.

41 Lib. I.

42 We find there the punishment of fire, and generally capital punishments, theft punished with death, etc.

43 Sylla, animated with the same spirit as the Decemvirs, followed their example in augmenting the penal laws against satirical writers.

44 Book I.

45 "Pnas facinorum auxit, c.u.m locupletes eo facilius scelere se obligarent, quod integris patrimoniis exularent."-Suet. in "Jul. Caesare."

46 See the 3d law, sec. legis ad leg. Cornel. "de Sicariis," and a vast number of others in the Digest and in the Codex.

47 Sublimiores.

48 Medios.

49 Infimos. Leg. 3, sec. legis ad leg. Cornel. "de Sicariis."

50 Jul. Cap., Maximini duo.

51 Chap. xvii.

52 "History of Nicephorus, Patriarch of Constantinople."

53 In Nicephorus's history.

54 Du Halde, tom. i. p. 6.

55 "Present State of Russia," by Perry.

56 The English.

57 The citizens of Athens could not be put to the rack (Lysias, "Orat. in Agorat.") unless it was for high treason. The torture was used within thirty days after condemnation. (Curius Fortunatus, "Rhetor. Schol." lib. II.) There was no preparatory torture. In regard to the . Romans, the 3d and 4th laws, "ad leg. Juliam Majest.," show that birth, dignity, and the military profession exempted people from the rack, except in cases of high treason. See the prudent restrictions of this practice made by the laws of the Visigoths.

58 See Kempfer 59 It is established in the Koran. See the chapter of the Cow.

60 "Si membrum rupit, ni c.u.m eo pacit, talio esto."-Aulus Gellius, lib. XX. cap. i.

61 Ibid.

62 See also the law of the Visigoths, book VI. t.i.t. iv. secs. 3 and 5.

63 See Garcilaso, "History of the Civil Wars of the Spaniards."

64 "Instead of punis.h.i.+ng them," says Plato, "they ought to be commended for not having followed their fathers' example."-Book IX. of Laws.

65 Evagr. Hist.

66 Frag. of Suidas, in Constantine Porphyrogenitus.

Book VII

Consequences of the Different Principles of the Three Governments with Respect to Sumptuary Laws, Luxury, and the Condition of Women 1.-Of Luxury LUXURY is ever in proportion to the inequality of fortunes. If the riches of a state are equally divided there will be no luxury; for it is founded merely on the conveniences acquired by the labor of others.

In order to have this equal distribution of riches, the law ought to give to each man only what is necessary for nature. If they exceed these bounds, some will spend, and others will acquire, by which means an inequality will be established.

Supposing what is necessary for the support of nature to be equal to a given sum, the luxury of those who have only what is barely necessary will be equal to a cipher: if a person happens to have double that sum, his luxury will be equal to one; he that has double the latter's substance will have a luxury equal to three; if this be still doubled, there will be a luxury equal to seven; so that the property of the subsequent individual being always supposed double to that of the preceding, the luxury will increase double, and a unit be always added, in this progression, 0, 1, 3, 7, 15, 31, 63, 127.

In Plato's republic,1 luxury might have been exactly calculated. There were four sorts of censuses or rates of estates. The first was exactly the term beyond poverty, the second was double, the third triple, the fourth quadruple to the first. In the first census, luxury was equal to a cipher; in the second to one, in the third to two, in the fourth to three: and thus it followed in an arithmetical proportion.

Considering the luxury of different nations with respect to one another, it is in each state a compound proportion to the inequality of fortunes among the subjects, and to the inequality of wealth in different states. In Poland, for example, there is an extreme inequality of fortunes, but the poverty of the whole hinders them from having so much luxury as in a more opulent government.

Luxury is also in proportion to the populousness of the towns, and especially of the capital; so that it is in a compound proportion to the riches of the state, to the inequality of private fortunes, and to the number of people settled in particular places.