The Spirit Of Laws Part 2

There was also another thing worthy of admiration, which is, that as Servius Tullius's division into cla.s.ses was in some measure the fundamental principle of the const.i.tution, it thence followed that an equal levying of the taxes was so connected with this fundamental principle that the one could not be abolished without the other.

But while the city paid the taxes as she pleased, or paid none at all,83 the provinces were plundered by the knights, who were the farmers of the public revenue. We have already made mention of their oppressive extortions, with which all history abounds.

"All Asia," says Mithridates,84 "expects me as her deliverer; so great is the hatred which the rapaciousness of the proconsuls,85 the confiscations made by the officers of the revenue, and the quirks and cavils of judicial proceedings,86 have excited against the Romans."

Hence it was that the strength of the provinces did not increase, but rather weakened, the strength of the republic. Hence it was that the provinces looked upon the loss of the liberty of Rome as the epoch of their own freedom.

20.-The End of this Book I should be glad to inquire into the distribution of the three powers, in all the moderate governments we are acquainted with, in order to calculate the degrees of liberty which each may enjoy. But we must not always exhaust a subject, so as to leave no work at all for the reader. My business is not to make people read, but to make them think.

1 "I have copied," says Cicero, "Scaevola's edict, which permits the Greeks to terminate their difference among themselves according to their own laws; this makes them consider themselves a free people."

2 The Russians could not bear that Czar Peter should make them cut if off.

3 The Cappadocians refused the condition of a republican state, which was offered them by the Romans.

4 "Omnes legum servi sumus ut liberi esse possimus."-Cicero, "pro Cluentio," 53.

5 The natural end of a state that has no foreign enemies, or that thinks itself secured against them by barriers.

6 Inconvenience of the "Liberum veto."

7 The greater part of the principles produced in this chapter by Montesquieu is derived from Locke's "Treatise upon Civil Government," xii.-Ed.

8 At Venice.

9 As at Athens.

10 See Aristotle, "Polit." III. cap. vii.

11 See Aristotle, "Repub." II. cap. x.

12 Ibid. cap. ix.

13 These were magistrates chosen annually by the people. See Stephen of Byzantium.

14 It was lawful to accuse the Roman magistrates after the expiration of their several offices. See in Dionys. Halicarn. lib. IX. the affair of Genutius the tribune.

15 De minoribus rebus principles consultant de majoribus omnes; ita tamen ut ea quoque quorum penes plebem arbitrium est, apud principles pertractentur.

16 Nevertheless, during the same epoch there were kings in Macedonia, Syria, Egypt, etc.-Crevier.

17 "Polit." book III. chap. xiv.

18 Notwithstanding the fact that Arybas sought to render his monarchy more stable, the kings of Epirus retrained their power until overthrown by Paulus aemilius.-D 19 See Justin, book XVII.

20 Arist. "Polit." book V. chap. viii. Montesquieu seems to have misconstrued Aristotle, since the Molossi never had but one king.-P.

21 Ibid., book III. chap. xiv.

22 Ibid.

23 See what Plutarch says in the "Life of Theseus." See likewise "Thucydides," book I.

24 Aristot. "Polit." book IV. chap. viii.

25 Dionys. Halicarn. book II. p. 120, and book IV. pp. 242 and 243.

26 See Tanaquil's "Discourse on Livy," book I. dec. 1, and the regulations of Servius Tullius in Dionys. Halicarn. book IV. p. 229.

27 See Dionys. Halicarn. book II. p. 118, and book III. p. 171.

28 It was by virtue of a senatus-consultum that Tullius Hostilius ordered Alba to be destroyed.-Dionys. Halicarn. book III. pp. 167 and 172.

29 Ibid. book IV. p. 276.

30 Ibid., book II. And yet they could not have the nomination of all offices, since Valerius Publicola made that famous law by which every citizen was forbidden to exercise any employment, unless he had obtained it by the suffrage of the people.

31 Book III. p. 159.

32 Ibid., book IV.

33 He divested himself of half the regal power, says Dionys. Halicarn. book IV. p. 229.

34 It was thought that if he had not been prevented by Tarquin he would have established a popular government.-Dionys. Halicarn. book IV. p. 243.

35 Ibid., book IV.

36 Livy, dec. 1, book VI.

37 "Quaestores parricidii."-Pomponius, leg. 2 ff. "de Orig. Jur."

38 Plutarch, "Life of Publicola."

39 Comitiis centuriatis.

40 See Livy, book I.; Dionys. Halicarn. books IV. and VII.

41 Dionys. Halicarn. book IX. p. 598.

42 Dionys. Halicarn. book VII.

43 Contrary to the ancient custom, as may be seen in Dionys. Halicarn. book V. p. 320.

44 Dionys. Halicarn. book V. pp. 410 and 411.

45 Ibid. book IX. p. 650.

46 Dionys. Halicarn. book XI. p. 725.

47 By the sacred laws, the plebeians had the power of making the plebiscita by patricians into their a.s.sembly.-Dionys.themselves, without admitting the Halicarn. book VI. p. 410, and book VII. p. 430.

48 By the law enacted after the expulsion of the decemvirs, the patricians were made subject to the plebiscita, though they had not a right of voting there. Livy, book III. and Dionys. Halicarn. book XI. p. 725. This law was confirmed by that of Publius Philo the dictator in the year of Rome 416. Livy, book VIII.

49 In the year 312 of Rome the consuls performed still the business of surveying the people and their estates, as appears by Dionys. Halicarn. book XI.

50 Such as those by which it was allowed to appeal from the decisions of all the magistrates to the people.

51 Book VI.

52 In the year of Rome 444, Livy, dec. I, book IX. As the war against Perseus appeared somewhat dangerous, it was ordained by a senatus-consultum that this law should be suspended, and the people agreed to it. Livy, dec. 5, book II.

53 They extorted it from the Senate, says Freinshemius, dec. 2, book VI.

54 There is no manner of doubt but the consuls had the power of trying civil causes before the creation of the pretors. See Livy, dec. 1, book II. p. 19; Dionys. Halicarn. book X. p. 627, and the same book, p. 645.

55 The tribunes frequently tried causes by themselves only, but nothing rendered them more odious.-Dionys. Halicarn. book XI. p. 709.

56 Judicia extraordinaria. See the "Inst.i.tutes," book IV.

57 Book VI. p. 360.

58 Alb.u.m Judicium.

59 "Our ancestors," says Cicero, pro Cluentio, "would not suffer any man whom the parties had not agreed to to be judge of the least pecuniary affair, much less of a citizen's reputation."

60 See in the fragments of the Servilian, Cornelian, and other laws, in what manner these laws appointed judges for the crimes they proposed to punish. They were often pitched upon by choice, sometimes by lot, or, in fine, by lot mixed together with choice.

61 Seneca, "de Benefic." lib. II. cap. vii. in fine.

62 See Quintilian, lib. IV. p. 54, in fol. edit. of Paris, 1541.

63 Leg. 2 ff. "de Orig. Jur." Magistrates who were called decemvirs presided in court, the whole under a pretor's direction.

64 "Quoniam de capite civis Romani, injussu populi Romani, non erat permissum consulibus jus dicere."-See Pomponius, Leg. 2 ff. "de Orig. Jur."

65 Dionys. Halicarn. book V. p. 322.

66 The comitia by centuries. Thus Manlius Capitolinus was tried in these comitia.-Livy, dec. 1, book VI. p. 60.

67 Pomponius, in the second Law in the Digest "de Orig. Jur."

68 See a fragment of Ulpian, who gives another of the Cornelian law: it is to be met with in the Collation of the Mosaic and Roman Laws, t.i.t. 1, de sicariis et homicidiis.

69 This took place, especially in regard to crimes committed in Italy, which were subject chiefly to the inspection of the Senate. See Livy, dec. 1, book IX., concerning the conspiracies at Capua.

70 This was the case in the prosecution for the murder of Posthumius, in the year 340 of Rome. See Livy.

71 This judgment was pa.s.sed in the year of Rome 567.

72 Book VIII.

73 Cicero, in "Bruto."

74 This is proved from Livy, book XLIII., who says that Hannibal rendered their magistracy annual.

75 The senatus-consultums were in force for the s.p.a.ce of a year, though not confirmed by the people.-Dionys. Halicarn. book IX. p. 595, and book XI. p735.

76 In the year 630.

77 "Capite censos plerosque.-Sall.u.s.t, "de bello Jugurth."

78 Fragment of this author, book x.x.xVI., in the collection of Constantine Porphyrogenitus, of "Virtues and Vices."

79 Fragment of his history, taken from the "Extract of Virtues and Vices."

80 Fragment of the 34th book in the "Extract of Virtues and Vices."

81 "Penes quos Romae tum judicial erant, atque ex equestri ordine solerent sort.i.to judices eligi in causa Praetorum et Proconsulum, quibus post administratam provinciam dies dicta erat."

82 They made their edicts upon entering the provinces.

83 After the conquest of Macedonia the Romans paid no taxes.

84 Speech taken from Trogus Pompeius and related by Justin, book x.x.xVIII..

85 See the orations against Verres.

86 It is well known what sort of a tribunal was that of Varus, which provoked the Germans to revolt.

Book XII

Of the Laws that Form Political Liberty, in Relation to the Subject 1.-Idea of this Book IT is not sufficient to have treated of political liberty in relation to the const.i.tution; we must examine it likewise in the relation it bears to the subject.

We have observed that in the former case it arises from a certain distribution of the three powers; but in the latter, we must consider it in another light. It consists in security, or in the opinion people have of their security.

The const.i.tution may happen to be free, and the subject not. The subject may be free, and not the const.i.tution. In those cases, the const.i.tution will be free by right, and not in fact; the subject will be free in fact, and not by right.

It is the disposition only of the laws, and even of the fundamental laws, that const.i.tutes liberty in relation to the const.i.tution. But as it regards the subject: manners, customs, or received examples may give rise to it, and particular civil laws may encourage it, as we shall presently observe.

Further, as in most states liberty is more checked or depressed than their const.i.tution requires, it is proper to treat of the particular laws that in each const.i.tution are apt to a.s.sist or check the principle of liberty which each state is capable of receiving.

2.-Of the Liberty of the Subject Philosophic liberty consists in the free exercise of the will; or at least, if we must speak agreeably to all systems, in an opinion that we have the free exercise of our will. Political liberty consists in security, or, at least, in the opinion that we enjoy security.

This security is never more dangerously attacked than in public or private accusations. It is, therefore, on the goodness of criminal laws that the liberty of the subject princ.i.p.ally depends.