The Spirit Of Laws Part 50

21 Ibid.

22 Ibid., Table propositions, book II.

23 Book I.

24 "Livy," book III. 20.

25 "Livy," book III.

26 "The people here referred to were several young officers, who, in despair, proposed to retire, but were restrained by Scipio."-Crevier.

27 About a hundred years after.

28 See Book XI. chap. xii.

29 See "Dio," book x.x.xVII. Cicero's life in Plutarch, Cicero to Atticus, book IV. letters 10 and 15. Asconius on Cicero, de divinatione.

30 As when a petty sovereign supports himself between two great powers by means of their mutual jealousy; but then he has only a precarious existence.

31 See the "History of the United Provinces," by M. Le Clerc.

32 "It is the cudgel that governs China," says Father Du Halde.

33 Among others, De Lange's relation.

34 Of the family of Sourmama, "Edifying Letters," 18th collection.

35 See in Father Du Halde how the missionaries availed themselves of the authority of Canhi to silence the mandarins, who constantly declared that by the laws of the country no foreign wors.h.i.+p could be established in the empire.

36 See "Lettres Persanes," cxx.

37 See the order of Tsongtou for tilling the land, in the "Edifying Letters," 21st collection.

Book IX

Of Laws in the Relation they Bear to a Defensive Force 1.-In what Manner Republics provide for their Safety IF a republic be small, it is destroyed by a foreign force; if it be large, it is ruined by an internal imperfection.

To this twofold inconvenience democracies and aristocracies are equally liable, whether they be good or bad. The evil is in the very thing itself, and no form can redress it.

It is, therefore, very probable that mankind would have been, at length, obliged to live constantly under the government of a single person, had they not contrived a kind of const.i.tution that has all the internal advantages of a republican, together with the external force of a monarchical, government. I mean a confederate republic.

This form of government is a convention by which several petty states agree to become members of a larger one, which they intend to establish. It is a kind of a.s.semblage of societies, that const.i.tute a new one, capable of increasing by means of further a.s.sociations, till they arrive at such a degree of power as to be able to provide for the security of the whole body.

It was these a.s.sociations that so long contributed to the prosperity of Greece. By these the Romans attacked the whole globe, and by these alone the whole globe withstood them; for when Rome had arrived at her highest pitch of grandeur, it was the a.s.sociations beyond the Danube and the Rhine-a.s.sociations formed by the terror of her arms-that enabled the barbarians to resist her.

Hence it proceeds that Holland,1 Germany, and the Swiss cantons are considered in Europe as perpetual republics.

The a.s.sociations of cities were formerly more necessary than in our times. A weak, defenceless town was exposed to greater danger. By conquest it was deprived not only of the executive and legislative power, as at present, but, moreover, of all human property.2 A republic of this kind, able to withstand an external force, may support itself without any internal corruption; the form of this society prevents all manner of inconveniences.

If a single member should attempt to usurp the supreme power, he could not be supposed to have an equal authority and credit in all the confederate states. Were he to have too great an influence over one, this would alarm the rest; were he to subdue a part, that which would still remain free might oppose him with forces independent of those which he had usurped, and overpower him before he could be settled in his usurpation.

Should a popular insurrection happen in one of the confederate states, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The state may be destroyed on one side, and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty.

As this government is composed of petty republics, it enjoys the internal happiness of each; and with regard to its external situation, by means of the a.s.sociation, it possesses all the advantages of large monarchies.

2.-That a confederate Government ought to be composed of States of the same Nature, especially of the republican Kind The Canaanites were destroyed by reason that they were petty monarchies that had no union or confederacy for their common defence; and, indeed, a confederacy is not agreeable to the nature of petty monarchies.

As the confederate republic of Germany consists of free cities, and of petty states subject to different princes, experience shows us that it is much more imperfect than that of Holland and Switzerland.

The spirit of monarchy is war and enlargement of dominion: peace and moderation are the spirit of a republic. These two kinds of government cannot naturally subsist in a confederate republic.

Thus we observe, in the Roman history, that when the 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 seat among the Amphictyons.

The confederate republic of Germany, composed of princes and free towns, subsists by means of a chief, who is, in some respects, the magistrate of the union, in others the monarch.

3.-Other Requisites in a confederate Republic In the republic of Holland one province cannot conclude an alliance without the consent of the others. This law, which is an excellent one, and even necessary in a confederate republic, is wanting in the Germanic const.i.tution, where it would prevent the misfortunes that may happen to the whole confederacy, through the imprudence, ambition, or avarice of a single member. A republic united by a political confederacy has given itself entirely up, and has nothing more to resign.

It is difficult for the united states to be all of equal power and extent. The Lycian3 republic was an a.s.sociation of twenty-three towns; the large ones had three votes in the common council, the middling ones two, and the small towns one. The Dutch republic consists of seven provinces of different extent of territory, which have each one voice.

The cities of Lycia4 contributed to the expenses of the state, according to the proportion of suffrages. The provinces of the United Netherlands cannot follow this proportion; they must be directed by that of their power.

In Lycia5 the judges and town magistrates were elected by the common council, and according to the proportion already mentioned. In the republic of Holland they are not chosen by the common council, but each town names its magistrates. Were I to give a model of an excellent confederate republic, I should pitch upon that of Lycia.

4.-In what Manner despotic Governments provide for their Security As republics provide for their security by uniting, despotic governments do it by separating, and by keeping themselves, as it were, single. They sacrifice a part of the country; and by ravaging and desolating the frontiers they render the heart of the empire inaccessible.

It is a received axiom in geometry that the greater the extent of bodies, the more their circ.u.mference is relatively small. This practice, therefore, of laying the frontiers waste is more tolerable in large than in middling states.

A despotic government does all the mischief to itself that could be committed by a cruel enemy, whose arms it were unable to resist.

It preserves itself likewise by another kind of separation, which is by putting the most distant provinces into the hands of a great va.s.sal. The Mogul, the King of Persia, and the emperors of China have their feudatories; and the Turks have found their account in putting the Tartars, the Moldavians, the Wallachians, and formerly the Transylvanians between themselves and their enemies.

5.-In what Manner a Monarchical Government provides for its Security A monarchy never destroys itself like a despotic government. But a kingdom of a moderate extent is liable to sudden invasions: it must, therefore, have fortresses to defend its frontiers; and troops to garrison those fortresses. The least spot of ground is disputed with military skill and resolution. Despotic states make incursions against one another; it is monarchies only that wage war.

Fortresses are proper for monarchies; despotic governments are afraid of them. They dare not intrust their officers with such a command, as none of them have any affection for the prince or his government.

6.-Of the defensive Force of States in general To preserve a state in its due force, it must have such an extent as to admit of a proportion between the celerity with which it may be invaded, and that with which it may defeat the invasion. As an invader may appear on every side, it is requisite that the state should be able to make on every side its defence; consequently it should be of a moderate extent, proportioned to the degree of velocity that nature has given to man, to enable him to move from one place to another.

France and Spain are exactly of a proper extent. They have so easy a communication for their forces as to be able to convey them immediately to what part they have a mind; the armies unite and pa.s.s with rapidity from one frontier to another, without any apprehension of such difficulties as require time to remove.

It is extremely happy for France that the capital stands near to the different frontiers in proportion to their weakness; and the prince has a better view of each part of his country according as it is more exposed.

But when a vast empire, like Persia, is attacked, it is several months before the troops are a.s.sembled in a body; and then they are not able to make such forced marches, for that s.p.a.ce of time, as they could for fifteen days. Should the army on the frontiers be defeated, it is soon dispersed, because there is no neighboring place of retreat. The victor, meeting with no resistance, advances with all expedition, sits down before the capital and lays siege to it, when there is scarcely time sufficient to summon the governors of the provinces to its relief. Those who foresee an approaching revolution hasten it by their disobedience. For men whose fidelity is entirely owing to the danger of punishment are easily corrupted as soon as it becomes distant; their aim is their own private interest. The empire is subverted, the capital taken, and the conqueror disputes the several provinces with the governors.

The real power of a prince does not consist so much in the facility he meets with in making conquests as in the difficulty an enemy finds in attacking him, and, if I may so speak, in the immutability of his condition. But the increase of territory obliges a government to lay itself more open to an enemy.

As monarchs, therefore, ought to be endued with wisdom in order to increase their power, they ought likewise to have an equal share of prudence to confine it within bounds. Upon removing the inconveniences of too small a territory, they should have their eye constantly on the inconveniences which attend its extent.

7.-A Reflection The enemies of a great prince, whose reign was protracted to an unusual length, have very often accused him, rather, I believe, from their own fears than upon any solid foundation, of having formed and carried on a project of universal monarchy. Had he attained his aim, nothing would have been more fatal to his subjects, to himself, to his family, and to all Europe. Heaven, that knows our true interests, favored him more by preventing the success of his arms than it could have done by crowning him with victories. Instead of raising him to be the only sovereign in Europe, it made him happier by rendering him the most powerful.

The subjects of this prince, who in travelling abroad are never affected but with what they have left at home; who on quitting their own habitations look upon glory as their chief object, and in distant countries as an obstacle to their return; who disgust you even by their good qualities, because they are tainted with so much vanity; who are capable of supporting wounds, perils, and fatigues, but not of foregoing their pleasures; who are supremely fond of gayety, and comfort themselves for the loss of a battle by a song upon the general-those subjects, I say, would never have the solidity requisite for an enterprise of this kind, which if defeated in one country would be unsuccessful everywhere else; and if once unsuccessful would be so forever.

8.-A particular Case in which the defensive Force of a State is inferior to the offensive It was a saying of the Lord of Coucy to King Charles V "that the English are never weaker, nor more easily overcome, than in their own country." The same was observed of the Romans; the same of the Carthaginians; and the same will happen to every power that sends armies to distant countries, in order to re-unite by discipline and military force those who are divided among themselves by political or civil interests. The state finds itself weakened by the disorder that still continues, and more so by the remedy.

The Lord of Coucy's maxim is an exception to the general rule, which disapproves of wars against distant countries. And this exception confirms likewise the rule because it takes place only with regard to those by whom such wars are undertaken.

9.-Of the relative Force of States All grandeur, force, and power are relative. Care, therefore, must be taken that in endeavoring to increase the real grandeur, the relative be not diminished.

During the reign of Louis XIV, France was at its highest pitch of relative grandeur. Germany had not yet produced such powerful princes as have since appeared in that country. Italy was in the same case. England and Scotland were not yet formed into one united kingdom. Aragon was not joined to Castile: the distant branches of the Spanish monarchy were weakened by it, and weakened it in their turn; and Muscovy was as little known in Europe as Crim Tartary.

10.-Of the Weakness of neighboring States Whensoever a state lies contiguous to another that happens to be in its decline, the former ought to take particular care not to precipitate the ruin of the latter, because this is the happiest situation imaginable; nothing being so convenient as for one prince to be near another, who receives for him all the rebuffs and insults of fortune. And it seldom happens that by subduing such a state the real power of the conqueror is as much increased as the relative is diminished.

1 It is composed of about fifty different republics, all different from one another.-"State of the United Provinces," by M. Janisson. Voltaire notes upon this remark that Montesquieu has taken each of the independent cities as a republic.-Ed.

2 Civil liberty, goods, wives, children, temples, and even burying-places.

3 Strabo, lib. XIV.

4 Ibid.

5 Ibid.

Book X

Of Laws in the Relation they Bear to Offensive Force 1.-Of offensive Force OFFENSIVE force is regulated by the law of nations, which is the political law of each country considered in its relation to every other.

2.-Of War The life of governments is like that of man. The latter has a right to kill in case of natural defence: the former have a right to wage war for their own preservation.

In the case of natural defence I have a right to kill, because my life is in respect to me what the life of my antagonist is to him: in the same manner a state wages war because its preservation is like that of any other being.

With individuals the right of natural defence does not imply a necessity of attacking. Instead of attacking they need only have recourse to proper tribunals. They cannot, therefore, exercise this right of defence but in sudden cases, when immediate death would be the consequence of waiting for the a.s.sistance of the law. But with states the right of natural defence carries along with it sometimes the necessity of attacking; as, for instance, when one nation sees that a continuance of peace will enable another to destroy her, and that to attack that nation instantly is the only way to prevent her own destruction.

Thence it follows that petty states have oftener a right to declare war than great ones, because they are oftener in the case of being afraid of destruction.

The right, therefore, of war is derived from necessity and strict justice. If those who direct the conscience or councils of princes do not abide by this maxim, the consequence is dreadful: when they proceed on arbitrary principles of glory, convenience, and utility, torrents of blood must overspread the earth.

But, above all, let them not plead such an idle pretext as the glory of the prince: his glory is nothing but pride; it is a pa.s.sion, and not a legitimate right.

It is true the fame of his power might increase the strength of his government; but it might be equally increased by the reputation of his justice.

3.-Of the Right of Conquest From the right of war comes that of conquest; which is the consequence of that right, and ought therefore to follow its spirit.

The right the conqueror has over a conquered people is directed by four sorts of laws: the law of nature, which makes everything tend to the preservation of the species; the law of natural reason, which teaches us to do to others what we would have done to ourselves; the law that forms political societies, whose duration nature has not limited; and, in fine, the law derived from the nature of the thing itself. Conquest is an acquisition, and carries with it the spirit of preservation and use, not of destruction.

The inhabitants of a conquered country are treated by the conqueror in one of the four following ways: Either he continues to rule them according to their own laws, and a.s.sumes to himself only the exercise of the political and civil government, or he gives them new political and civil government; or he destroys and disperses the society; or, in fine, he exterminates the people.

The first way is conformable to the law of nations now followed; the fourth is more agreeable to the law of nations followed by the Romans: in respect to which I leave the reader to judge how far we have improved upon the ancients. We must give due commendations to our modern refinements in reason, religion, philosophy, and manners.

The authors of our public law, guided by ancient histories, without confining themselves to cases of strict necessity, have fallen into very great errors. They have adopted tyrannical and arbitrary principles, by supposing the conquerors to be invested with I know not what right to kill: thence they have drawn consequences as terrible as the very principle, and established maxims which the conquerors themselves, when possessed of the least grain of sense, never presumed to follow. It is a plain case, that when the conquest is completed, the conqueror has no longer a right to kill, because he has no longer the plea of natural defence and self-preservation.

What has led them into this mistake is, that they imagined a conqueror had a right to destroy the state; whence they inferred that he had a right to destroy the men that compose it: a wrong consequence from a false principle. For from the destruction of the state it does not at all follow that the people who compose it ought to be also destroyed. The state is the a.s.sociation of men, and not the men themselves; the citizen may perish, and the man remain.

From the right of killing in the case of conquest, politicians have drawn that of reducing to slavery-a consequence as ill grounded as the principle.

There is no such thing as a right of reducing people to slavery, save when it becomes necessary for the preservation of the conquest. Preservation, and not servitude, is the end of conquest; though servitude may happen sometimes to be a necessary means of preservation.

Even in that case it is contrary to the nature of things that the slavery should be perpetual. The people enslaved ought to be rendered capable of becoming subjects. Slavery in conquests is an accidental thing. When after the expiration of a certain s.p.a.ce of time all the parts of the conquering state are connected with the conquered nation, by custom, marriages, laws, a.s.sociations, and by a certain conformity of disposition, there ought to be an end of the slavery. For the rights of the conqueror are founded entirely on the opposition between the two nations in those very articles, whence prejudices arise, and the want of mutual confidence.

A conqueror, therefore, who reduces the conquered people to slavery, ought always to reserve to himself the means (for means there are without number) of restoring them to their liberty.

These are far from being vague and uncertain notions. Thus our ancestors acted, those ancestors who conquered the Roman Empire. The laws they made in the heat and transport of pa.s.sion and in the insolence of victory were gradually softened; those laws were at first severe, but were afterwards rendered impartial. The Burgundians, Goths, and Lombards would have the Romans continue a conquered people; but the laws of Euric, Gundebald, and Rotharis made the Romans and barbarians fellow-citizens.1 Charlemagne, to tame the Saxons, deprived them of their liberty and property. Louis the Debonnaire made them a free people,2 and this was one of the most prudent regulations during his whole reign. Time and servitude had softened their manners, and they ever after adhered to him with the greatest fidelity.

4.-Some Advantages of a conquered People Instead of inferring such destructive consequences from the right of conquest, much better would it have been for politicians to mention the advantages which this very right may sometimes give to a conquered people-advantages which would be more sensibly and more universally experienced were our law of nations exactly followed, and established in every part of the globe.

Conquered countries are, generally speaking, degenerated from their original inst.i.tution. Corruption has crept in, the execution of the laws has been neglected, and the government has grown oppressive. Who can question but such a state would be a gainer, and derive some advantages, from the very conquest itself, if it did not prove destructive? When a government has arrived at that degree of corruption as to be incapable of reforming itself, it would not lose much by being newly moulded. A conqueror who enters triumphant into a country where the moneyed men have, by a variety of artifices, insensibly arrived at innumerable ways of encroaching on the public, where the miserable people, who see abuses grown into laws, are ready to sink under the weight of oppression, yet think they have no right to apply for redress-a conqueror, I say, may make a total change, and then the tyranny of those wretches will be the first thing exposed to his resentment.

We have beheld, for instance, countries oppressed by the farmers of the revenues, and eased afterwards by the conqueror, who had neither the engagements nor wants of the legitimate prince. Even the abuses have been often redressed without any interposition of the conqueror.

Sometimes the frugality of a conquering nation has enabled them to allow the conquered those necessaries of which they had been deprived under a lawful prince.

A conquest may destroy pernicious prejudices, and lay, if I may presume to use the expression, the nation under a better genius.

What good might not the Spaniards have done to the Mexicans? They had a mild religion to impart to them; but they filled their heads with a frantic superst.i.tion. They might have set slaves at liberty; they made freemen slaves. They might have undeceived them with regard to the abuse of human sacrifices; instead of that they destroyed them. Never should I have finished, were I to recount all the good they might have done, and all the mischief they committed.

It is a conqueror's business to repair a part of the mischief he has occasioned. The right, therefore, of conquest I define thus: a necessary, lawful, but unhappy power, which leaves the conqueror under a heavy obligation of repairing the injuries done to humanity.

5.-Gelon, King of Syracuse The n.o.blest treaty of peace ever mentioned in history is, in my opinion, that which Gelon made with the Carthaginians. He insisted upon their abolis.h.i.+ng the custom of sacrificing their children.3 Glorious, indeed! After having defeated three hundred thousand Carthaginians, he required a condition that was advantageous only to themselves, or rather he stipulated in favor of human nature.

The Bactrians exposed their aged fathers to be devoured by large mastiffs-a custom suppressed by Alexander,4 whereby he obtained a signal triumph over superst.i.tion.

6.-Of Conquest made by a Republic It is contrary to the nature of things that in a confederate government one state should make any conquest over another, as in our days we have seen in Switzerland.5 In mixed confederate republics, where the a.s.sociation is between petty republics and monarchies, of a small extent, this is not so absurd.

Contrary is it also to the nature of things that a democratic republic should conquer towns which cannot enter into the sphere of its democracy. It is necessary that the conquered people should be capable of enjoying the privileges of sovereignty as was settled in the very beginning among the Romans. The conquest ought to be limited to the number of citizens fixed for the democracy.