The Spirit Of Laws Part 4

16 Father Parennin in the "Edfying Letters."

17 Book XXIX.

18 Gratian, Valentinian, and Theodosius. This is the second in the Code "de Crimin. Sacril."

19 "Sacrilegii instar est dubitare an is dignus sit quem elegerit imperator."-Code "de Crimin. Sacril." This law has served as a model to that of Roger in the "Const.i.tution of Naples," t.i.t. 4.

20 The 5th law, "ad leg. Jul. Maj."

21 Arcadius and Honorius.

22 "Memoirs of Montresor," tom. i.

23 "Nam ipsi pars corporis nostrisunt."-The same law of the Code "ad leg. Jul. Maj."

24 It is the 9th of the Code Theod. "de falsa moneta."

25 "Etiam ex aliis causis majestatis crimina cessant meo saeculo."-Leg i "eod ad leg. Jul. Maj."

26 "Alienam sectae meae solicitudinem concepisti."-Leg. 2 "eod. ad leg. Jul. Maj."

27 See the 4th law in ff. "ad leg. Jul. Maj."

28 See the 5th law ibid.

29 Ibid.

30 "Aliudve quid simile admiserint."-Leg. 6 ff. "ad leg. Jul. Maj."

31 In the last law in ff. "ad leg. Jul. de Adulteris."

32 See Burnet's "History of the Reformation."

33 Plutarch's "Life of Dionysius."

34 The thought must be joined with some sort of action.

35 "Si non tale sit delictum in quodvel scriptura legis descendit vel ad exemplum legis vindicandum est," says Modestinus in the seventh law, in ff. "ad leg. Jul. Maj."

36 In 1740.

37 "Nec lubric.u.m linguae ad pnam facile trahendum est."-Modestin. In the seventh law in ff. "ad leg. Jul. Maj."

38 "Si id ex levitate processerit, contemnendum est; si ex insania, miseratione dignissimum; si ab injuria, remittendum."-Leg. unica Cod. "Si quis Imperat. maled."

39 Tacit. "Annal." book I. This continued under the following reigns. See the first law in the Code "de famosis libellis."

40 Tacit. "Annal." book IV.

41 The law of the Twelve Tables.

42 Suetonius, in "Tiberio."

43 "Collection of Voyages that Contributed to the Establishment of the East India Company," tom. v. part II.

44 Dio, in "Xiphilinus." Tacitus attributes this law, not to Augustus, but to Tiberius.-P.

45 Flavius Vopiscus in his life.

46 Sylla made a law of majesty, which is mentioned in Cicero's Orations, "pro Cluentio," art. 3, "in Pisonem," art. 21, 2d against "Verres," art. 5. "Familiar Epistles," book III. letter II. Caesar and Augustus inserted them in the Julian laws; others made additions to them.

47 "Et qu quis distinctior accusator, e magis honores a.s.sequebatur, ac veluti sacrosanctus erat."-Tacit.

48 Deut. xiii. 6.

49 "Collection of Voyages that Contributed to the Establishment of the East India Company," p. 423, book V. part II.

50 Dionys. Halicarn., "Roman Antiquities," book VIII.

51 "Tyranno occiso quinque ejus proximos cognatione magistratus necato."-Cic. "de invent." lib. II.

52 Book VIII. p. 547.

53 Of the civil wars, book IV.

54 "Quod felix faustumque sit."

55 "Sacris et epulis dent hunc diem; qui secus faxit, inter proscriptos esto."

56 It is not sufficient in the courts of justice of that kingdom that the evidence be of such a nature as to satisfy the judges; there must be a legal proof; and the law requires the deposition of two witnesses against the accaused. No other proof will do. Now, if a person who is presumed guilty of high treason should contrive to secrete the witnesses, so as to render it impossible for him to be legally condemned, the government then may bring a bill of attainder against him; that is, they may enact a particular law for that single fact. They proceed then in the same manner as in all other bills brought into parliament; it must pa.s.s the two houses, and have the King's consent, otherwise it is not a bill: that is, a sentence of the Legislature. The person accused may plead against the bill by counsel, and the members of the house may speak in defence of the bill.

57 "Legem de singulari aliquo ne rogato, nisi s.e.x millibus ita visum."-"Ex Andocide de Mysteriis." This is what they called Ostracism.

58 "De privis hominibus latae."-Cicero, "de Leg." lib. III.

59 "Scitum est jussum in omnes."-Ibid.

60 See Philostratus, book I.: "Lives of the Sophists," "Life of aeschines." See likewise Plutarch and Phocius.

61 By the Remmian law.

62 This was the initial of an old Latin word which to-day is written "Calumnia."-P.

63 Plutarch, in a treatise ent.i.tled, "How a person may reap advantage from his enemies."

64 "A great many sold their children to pay their debts."-Plutarch, "Life of Solon."

65 Plutarch, "Life of Solon."

66 It appears from history that this custom was established among the Romans before the law of the Twelve Tables.-Livy, dec. 1, book II.

67 Dionys. Halicarn., "Roman Antiquities," book VI.

68 Plutarch, "Life of Furius Camillus."

69 See what follows in the 24th chapter of the book of Laws as relative to the use of money.

70 One hundred and twenty years after the law of the Twelve Tables: "Eo anno plebi Romanae, velut aliud initium libertatis factum est, quod necti desierunt."-Livy, lib. VIII.

71 "Bona debitoris, non corpus obnoxium esset."-Ibid.

72 The year of Rome 465.

73 That of Plautius, who made an attempt upon the body of Veturius.-Valerius Maximus, book VI. art. 9. These two events ought not to be confounded; they are neither the same persons nor the same times.

74 See a fragment of Dionys. Halicarn. in the "Extract of Virtues and Vices"; Livy's epitome, book II.; and Freinshemius, book II.

75 Plutarch's "Morals: Comparison of some Roman and Greek Histories," tom. ii. p. 487.

76 Leg. 6, Cod. Theod. "de famosis libellis."

77 "Nerva," says Tacitus, "increased the ease of government." It is worthy of note that the best editions of Tacitus have "felicitatem imperii," and not "facilitatem imperii."-Ed.

78 "State of Russia," p. 173, Paris edition, 1717.

79 The Caliphs.

80 "History of the Tartars," 3d part, p. 277, in the remarks.

81 It is plain here that Montesquieu confounds the Mollahs with the Mufti.-P.

82 See Francis Pirard.

83 As at present in Persia, according to Sir John Chardin, this custom is very ancient. "They put Cavades," says Procopius," into the castle of oblivion; there is a law which forbids any one to speak of those who are shut up, or even to mention their name."

84 The fifth law in the cod. "ad leg. Jul. Maj."

85 In the 8th chapter of this book.

86 Frederick copied this law in the "Const.i.tutions of Naples," book I.

87 In monarchies there is generally a law which forbids those who are invested with public employments to go out of the kingdom without the prince's leave. This law ought to be established also in republics. But in those that have particular inst.i.tutions the prohibition ought to be general, in order to prevent the introduction of foreign manners.

Book XIII

Of the Relation which the Levying of Taxes and the Greatness of the Public Revenues Bear to Liberty 1.-Of the Public Revenues THE public revenues are a portion that each subject gives of his property, in order to secure or enjoy the remainder.

To fix these revenues in a proper manner, regard should be had both to the necessities of the state and to those of the subject. The real wants of the people ought never to give way to the imaginary wants of the state.

Imaginary wants are those which flow from the pa.s.sions and the weakness of the governors, from the vain conceit of some extraordinary project, from the inordinate desire of glory, and from a certain impotence of mind incapable of withstanding the impulse of fancy. Often have ministers of a restless disposition imagined that the wants of their own mean and ign.o.ble souls were those of the state.

Nothing requires more wisdom and prudence than the regulation of that portion of which the subject is deprived, and that which he is suffered to retain.

The public revenues should not be measured by the people's abilities to give, but by what they ought to give; and if they are measured by their abilities to give, it should be considered what they are able to give for a constancy.

2.-That it is bad Reasoning to say that the Greatness of Taxes is good in its own Nature There have been instances in particular monarchies of petty states exempt from taxes that have been as miserable as the circ.u.mjacent places which groaned under the weight of exactions. The chief reason of this is, that the petty state can hardly have any such thing as industry, arts, or manufactures, because of its being subject to a thousand restraints from the great state by which it is environed. The great state is blessed with industry, manufactures, and arts, and establishes laws by which those several advantages are procured. The petty state becomes, therefore, necessarily poor, let it pay never so few taxes.

And yet some have concluded from the poverty of those petty states that in order to render the people industrious they should be loaded with taxes. But it would be a juster inference, that they ought to pay no taxes at all. None live here but wretches who retire from the neighboring parts to avoid working-wretches who, disheartened by labor, make their whole felicity consist in idleness.

The effect of wealth in a country is to inspire every heart with ambition: that of poverty is to give birth to despair. The former is excited by labor the latter is soothed by indolence.

Nature is just to all mankind, and repays them for their industry: she renders them industrious by annexing rewards in proportion to their labor. But if an arbitrary prince should attempt to deprive the people of nature's bounty, they would fall into a disrelish of industry; and then indolence and inaction must be their only happiness.

3.-Of Taxes in Countries where Part of the People are Villains or Bondmen The state of villanage is sometimes established after a conquest. In that case, the bondman or villain that tills the land ought to have a kind of partners.h.i.+p with his master. Nothing but a communication of loss or profit can reconcile those who are doomed to labor to such as are blessed with a state of affluence.

4.-Of a Republic in the like Case When a republic has reduced a nation to the drudgery of cultivating her lands, she ought never to suffer the free subject to have the power of increasing the tribute of the bondman. This was not permitted at Sparta. Those brave people thought the Helotes1 would be more industrious in cultivating their lands, and knowing that their servitude was not to increase; they imagined, likewise, that the masters would be better citizens, when they desired no more than what they were accustomed to enjoy.

5.-Of a Monarchy in the like Case When the n.o.bles of a monarchical state cause the lands to be cultivated for their own use by a conquered people, they ought never to have the power of increasing the service or tribute.2 Besides, it is right the prince should be satisfied with his own demesne and the military service. But if he wants to raise taxes on the va.s.sals of his n.o.bility, the lords of the several districts ought to be answerable for the tax,3 and be obliged to pay it for the va.s.sals, by whom they may be afterwards reimbursed. If this rule be not followed, the lord and the collectors of the public taxes will hara.s.s the poor va.s.sal by turns till he perishes with misery or flies into the woods.

6.-Of a despotic Government in the like Case The foregoing rule is still more indispensably necessary in a despotic government. The lord who is every moment liable to be stripped of his lands and his va.s.sals is not so eager to preserve them.

When Peter I thought proper to follow the custom of Germany, and to demand his taxes in money, he made a very prudent regulation, which is still followed in Russia. The gentleman levies the tax on the peasant, and pays it to the Czar. If the number of peasants diminishes, he pays all the same; if it increases, he pays no more; so that it is his interest not to worry or oppress his va.s.sals.

7.-Of Taxes in Countries where Villanage is not established When the inhabitants of a state are all free subjects, and each man enjoys his property with as much right as the prince his sovereignty, taxes may then be laid either on persons, on lands, on merchandise, on two of these, or on all three together.

In the taxing of persons, it would be an unjust proportion to conform exactly to that of property. At Athens the people were divided into four cla.s.ses.4 Those who drew five hundred measures of liquid or dried fruit from their estates paid a talent5 to the public; those who drew three hundred measures paid half a talent; those who had two hundred measures paid ten minae; those of the fourth cla.s.s paid nothing at all. The tax was fair, though it was not proportionable: if it did not follow the measure of people's property, it followed that of their wants. It was judged that every man had an equal share of what was necessary for nature, that whatsoever was necessary for nature ought not to be taxed; that to this succeeded the useful, which ought to be taxed, but less than the superfluous; and that the largeness of the taxes on what was superfluous prevented superfluity.

In the taxing of lands it is customary to make lists or registers, in which the different cla.s.ses of estates are ranged. But it is very difficult to know these differences, and still more so to find people that are not interested in mistaking them. Here, therefore, are two sorts of injustice, that of the man and that of the thing. But if in general the tax be not exorbitant, and the people continue to have plenty of necessaries, these particular acts of injustice will do no harm. On the contrary, if the people are permitted to enjoy only just what is necessary for subsistence, the least disproportion will be of the greatest consequence.

If some subjects do not pay enough, the mischief is not so great; their convenience and ease turn always to the public advantage; if some private people pay too much, their ruin redounds to the public detriment. If the government proportions its fortune to that of individuals, the ease and convenience of the latter will soon make its fortune rise. The whole depends upon a critical moment: shall the state begin with impoveris.h.i.+ng the subjects to enrich itself? Or had it better wait to be enriched by its subjects? Is it more advisable for it to have the former or the latter advantage? Which shall it choose-to begin or to end with opulence?

The duties felt least by the people are those on merchandise, because they are not demanded of them in form. They may be so prudently managed that the people themselves shall hardly know they pay them. For this purpose it is of the utmost consequence that the person who sells the merchandise should pay the duty. He is very sensible that he does not pay it for himself; and the consumer, who pays it in the main, confounds it with the price. Some authors have observed that Nero had abolished the duty of the five-and-twentieth part arising from the sale of slaves;6 and yet he had only ordained that it should be paid by the seller instead of the purchaser; this regulation, which left the impost entire, seemed, nevertheless, to suppress it.

There are two states in Europe where the imposts are very heavy upon liquors: in one the brewer alone pays the duty, in the other it is levied indiscriminately upon all the consumers; in the first n.o.body feels the rigor of the impost, in the second it is looked upon as a grievance; in the former the subject is sensible only of the liberty he has of not paying, in the latter he feels only the necessity that compels him to pay.

Further, the obliging the consumers to pay requires a perpetual rummaging and searching into their houses. Now nothing is more contrary than this to liberty; and those who establish these sorts of duties have not surely been so happy as to hit upon the best method of collecting the revenue.

8.-In what Manner the Deception is preserved In order to make the purchaser confound the price of the commodity with the impost, there must be some proportion between the impost and the value of the commodity: for which reason there ought not to be an excessive duty upon merchandise of little value. There are countries in which the duty exceeds seventeen or eighteen times the value of the commodity. In this case the prince removes the disguise: his subjects plainly see they are dealt with in an unreasonable manner, which renders them most exquisitely sensible of their servile condition.

Besides, the prince, to be able to levy a duty so disproportioned to the value of the commodity, must be himself the vendor, and the people must not have it in their power to purchase it elsewhere: a practice subject to a thousand inconveniences.

Smuggling being in this case extremely lucrative, the natural and most reasonable penalty, namely, the confiscation of the merchandise, becomes incapable of putting a stop to it; especially as this very merchandise is intrinsically of inconsiderable value. Recourse must, therefore, be had to extravagant punishments, such as those inflicted for capital crimes.

All proportion then of penalties is at an end. Persons that cannot really be considered as vicious are punished like the most infamous criminals; which of all things in the world is the most contrary to the spirit of a moderate government.