A Commentary and Review of Montesquieu's "Spirit of Laws"
Consequences of the Principles of Different Governments, in Relation to the Simplicity of Civil and Criminal Laws, the Forms of Juridical Proceedings, and the Apportionment of Punishments.
Spirit of Laws, Book VI.
Notwithstanding, the great and interesting views, indicated by the title of this book, excite our curiosity and admiration, we do not find the instruction, which we had a right to expect in it, because the illustrious author has not sufficiently discriminated between civil and criminal justice. We shall endeavor to supply this defect; but before we commence this particular subject, we must indulge in some general reflections, on the nature of the governments we have spoken of in the second book; for what we have discussed in the third, fourth, and fifth books, ought to place this subject in a new light.
The division of governments into different classes, presents important difficulties, and suggests many new observations, for it fixes and defines the precise idea we entertained of each of these governments, and the essential character therein recognized. I have already expressed my opinion, respecting Montesquieu's division of them into republican, monarchical, and despotic: I think it defective on several accounts. However, he is so much attached to it, as to make it the basis of his political system; to it he refers every thing, and subjects his entire theory to it; which, I am persuaded, very frequently affects the justness, the connexion, and the profoundness of his conceptions: I cannot, therefore, be too exact in explaining my opinion.
In the first place, democracy and aristocracy are so essentially different, that they should not be confounded under a common denomination; and Montesquieu himself, is often obliged to discriminate between them, and then he has four forms of government, instead of three; when he speaks of the republican, we know not which he particularly means.... here is a first inconvenience.
Next, what is despotism? We have found that it is only an abuse, and not a kind of government. This will be found true, if we only consider the use of power; but if we regard its extent, despotism is the government of a single person.... it is the concentration of all power in one man.... it is that state of society, in which a single person possesses all the power, and the other members of society none.... it is in fine monarchy, taking the word in the extent of its true signification; on which account we have observed, that it is the true pure monarchy; that is to say, unlimited, there being no other true monarchy: for whoever describes a monarchy as tempered or limited, or says that the monarch, though sole chief, yet is not invested with all the power, or that there are other powers in the government besides his, they say no more than this, that.... he is a monarch who is not a monarch: this denomination of limited monarchy, is therefore absurd, and should be exploded, as it implies a contradiction; and instead of republican, monarchical, and despotic, we shall have democratic, aristocratic and monarchical.
But according to this system, what is to be done with what has been called the tempered or limited monarchy: It must be taken into view also, that this limitation of the monarchical power, is never in the hands of the entire body of the nation, for then it would no longer be a monarchical government, as usually understood, but a species of representative or delegated government under a single executive chief, as in the constitution of the United States of America, or as in the constitution formed for France in 1791.
But the power of the monarch or chief, in what is called a tempered monarchy, is always limited by a small part of the nation, or by some powerful body or bodies springing up within the nation; that is by some small body forming a party, by some families uniting their interests, or united by birth, by particular functions, or by some common interests, distinct from the general interests of the people; now this is precisely what constitutes an aristocracy, and hence I conclude, that the monarchy of Montesquieu, is neither more nor less than an aristocracy under a single chief, and consequently that his division of governments, well explained, and properly understood, is reduced to this.... simple democracy.... aristocracy with one or several chiefs.... and pure monarchy.
This new manner of considering the social forms, by enabling us to discern more distinctly their essential characters, will suggest to us some important considerations: simple democracy, notwithstanding the eulogiums of pedantry, is an impracticable order of things; pure monarchy is nearly as intolerable; the one is a government of savages, the other of barbarians; neither can possibly endure for any considerable tine, being only the infant state of society, and almost necessarily of every nation just forming.
Indeed ignorant and rude men, cannot be presumed capable of combining principles of social organization: two modes of social action or order only could be conceived by them, either that all should take a part in common, in the management of their affairs; or that they should blindly charge one among them, in whom they have confidence, with the sole care of them. The first of these two means, is generally proposed by those whose restless activity have kept up a spirit of independence, and the second by those among whom idleness and love of repose are the predominant passions; in this primitive state of man, the influence of climate is powerful, and generally determines these dispositions; we see every society in a rude state, from North America to Africa, and to the islands of the Pacific Ocean, under one of these two modes of social organization, or passing rapidly from one to the other, according to circumstances; for when a horde of savages have elected a chief to conduct their war, they follow him and obey him implicitly, and thus simple democracy is transformed into pure monarchy.
But these two opposite modes of government, severally produce discontent; one by the misconduct of the chief, the other by that of the citizens; meanwhile there arises a disparity of talents, wealth, riches, power, among the members of the social body; and those who possess this superiority unite with each other, assume exclusive power, take advantage of the civil and religious opinions which prevail in the community, and turn them to their purposes; if any resistance be made to the means that are employed in directing the multitude or restraining the despot. This is the origin of direct aristocracies every where, whether with one chief or without any, and their organization is so slow, concealed, gradual, and insidious, their progress is so imperceivable, that they often exist before they are suspected, and their origin is scarcely to be traced, nor can their rights be defined in any other way than by their possession and practical of oration. Thus all nations worthy of our attention, are under a government more or less aristocratical; nor has there been any other government in the world, until this enlightened time, when entire nations, renouncing inequality as established, have united themselves by the means of representatives freely elected from among their equals, and constituted the authority of the general will, carefully collected, and clearly expressed.... a representative government.
Let us here take leave of barbarians, since we really have only two forms of government to compare with each other.... aristocracy and representation, and their several modifications: our enquiry will thus be more simplified, and produce more determinate conclusions.
Returning to the particular object of this book, we shall commence with the consideration of those laws, which are denominated civil.
Montesquieu remarks, that laws are more complicated in what he calls monarchy, than in what he calls despotism; he pretends that this proceeds from the principle of honor in the citizens of a monarchy, where that sentiment is held in greater estimation and commands more reverence; of course we must take this for granted, since he appears not to perceive this to be another advantage of his favorite monarchy; content with the assumption which he makes, he passes over the heads of democracy and aristocracy, without examination. But there appears to me, another manner of considering this subject; and in the first place, there can be no doubt that the simplicity of the civil laws, is in itself a matter of great importance; but it is also certain, that this advantage becomes more difficult of attainment, in proportion as the society advances from the first stage upwards; for as the social relations become more numerous and delicate, the laws governing them, necessarily become more complicated.
But it must be observed, that the civil laws in a pure monarchy, are generally very simple, for another reason, because these men are not counted as of any more consideration than cattle: and, although Montesquieu does not say so, the same effect is perceptible in the democracy, notwithstanding the respect that is there professed for men and their rights; this is necessarily so in both cases, nor need we seek for the cause in fear or in virtue, which he gives as principles to those two forms of government; the real reason is, that they are the two conditions peculiar to society in a rude state.
For the contrary reason, these laws are inevitably more complicated in the several forms of aristocracy, which govern civilized nations, only that we must remark, with Montesquieu, that the aristocracy under a single chief, is still more subject than the others to the inconvenience, not because it possesses honor for a principle, but because it requires a greater variety of gradations among the different classes of citizens, of which one of the conditions is not to be subject to the same rules, nor judged by the same tribunals; because the same monarch may easily govern provinces, in which the established laws are different; and, in fine, because he may have an interest in maintaining divisions among his subjects, the better to keep them in obedience, by means of each other.
Let us add, in closing this article, that as the representative government cannot subsist, without the equality and union of the citizens, it is that form of all others, among civilized nations, which should most desire simplicity and conformity in its civil laws, and should constantly labor, as much as the nature of things admits, to render them simple and consistent with the spirit of the government.
Respecting the form of judicial proceeding, it appears to me, that in every government, the sovereign, whether it be the people, monarch, or senate, should never decide on the interests of private individuals, either by himself or by his ministers, nor by special commissions, but by judges previously appointed for the purpose; and their decisions should in all cases, be founded on the precise text of the law: this last condition, however, does not seem to me in any manner, to prevent either the admission into courts of those actions which lawyers call ex bona fide, nor the judges from giving decisions in equity, when the laws are not sufficiently explicit or applicable.
The criminal laws should be as simple as possible, and under every form of government, judgments literally enforced. The more respect which governments entertain for the rights of men, the more circumspect but liberal the form of proceeding should be in receiving the defence of the accused. These two points are so clear as not to furnish matter for discussion. Various important questions relative to the use of juries, might be treated of in this place; but Montesquieu does not even mention them. I confine myself barely to saying that this institution appears to the more worthy of praise under the political than under the judicial head; that is to say, I am not satisfied, that trial by jury is always a very certain and efficacious means of ensuring exact justice; nevertheless it is certainly a powerful check upon the tyranny of those who have the appointment of judges; and a certain means of accustoming men to pay attention to their rights, and of witnessing the injustice which may be done to their equals.
This consideration proves that the institution of juries is proper in a government in proportion as its principles are compatible with liberty, the love of justice, and a general concern in public affairs.
It is an excellent institution, under any form of government, that offences shall be prosecuted by the public, and not by particular individuals. To provide such punishments for crimes as will prevent their repetition, should be the true object of corrective justice: but no one should be permitted to employ the public arm to subserve individual passions, for this would not be justice, but private vengeance.... and that is despotism in its essence.
With regard to the severity of punishments, the first question that presents itself is, whether society has the right to take away the life of one of its members. Montesquieu has said nothing pertinent on this question, probably because he conceived his plan was always to state facts, but never to discuss rights. Although disposed to be scrupulously exact in following him, I think it unnecessary here to attempt the vindication of capital punishments against the reproaches of injustice, which have been heaped upon it, by men respectable for their motives and intelligence. This severe and afflicting measure, ought not to have too odious a character attached to it, so long as circumstances render it necessary. I acknowlege then, that society possesses the right of previously announcing that it will punish with death, any person who shall commit a crime, the consequences of which appear sufficient to endanger the existence of society. Such persons as are unwilling to submit to the consequences of such established laws, should renounce the society which adopts it, before they render themselves liable thereto; they should always have full liberty so to do, on this and on all other occasions, without which right there is no law universally just; since there is not one, which has been freely adopted with the previous knowlege and consent of the interested: with such a condition, the institution of the punishment of death appears to me as just in itself, as that of any other punishment.
This admission does not imply, that the culprit is obliged in conscience to give up his life because the law requires his death, or to renounce self defence, because the law attacks him; those who profess such sentiments, are as extravagant as those who deny society the right of punishing with death are in theirs: both have but an imperfect idea of criminal justice. When the social body announces that it will punish such an action, in such a manner, it thenceforth declares itself in a state of war on such a point, with whoever may commit the action; but the criminal has not on that account, lost the right of personal defence; as no animated being, can be deprived of that, he is only reduced to his individual force; and the social power, which on every other occasion would have protected him, is here arrayed against him.
It remains only to examine, how far this power may be exercised against crimes, so as to effectually prevent them: in this respect, the excellent observation of Montesquieu, cannot be too much admired, that in proportion as the government is animated by the spirit of liberty, the more mild will the punishments he: and what he says on the inefficacy of barbarous, or even of cruel punishments, and the unhappy effects which they have had in multiplying, instead of diminishing crimes, because they render manners atrocious, and sentiments ferocious, are equally deserving of admiration. The necessity of punishment, he properly observes, is in proportion to the magnitude of the crime, or the temptation to commit it; and it should be a particular object of the law, that the guilty should never escape with impunity; for it is the certainty of punishment, which most effectualy deters from the commission of crimes; and it should never be forgotten, that the only reasonable motive for inflicting punishment, and the only justifiable cause, is not because the evil is thereby supposed to be repaired, for that is impossible; nor for the gratification of hatred, for that would be promoting vice, and substituting blind passion for justice, but simply.... the prevention of evil alone.
These reflections, shew the absurdity of the law of retaliation, which gives justice the appearance of savage vengeance: we are therefore astonished, to find in our illustrious author, a particular chapter on this law of savages, and not to find the illustrations which it called for. There are moments, in which the greatest genius appears to doze; Montesquieu furnishes us with an example, in the chapter following, where he approves of dishonoring innocent men, for the crimes of their fathers, or of their children. The same observations would apply to chapter XVIII. where after these words.... "Our forefathers, the Germans, seldom admitted of any but pecuniary punishments:" he adds.... "Warlike and free men, think their blood should never be spilt but with sword in hand:" nor does he perceive, that if the savages of the forest of Hessia, whom he so much extols, no one knows why, had never accepted pecuniary composition for an assassination, he would have said with more reason.... 'These fierce and generous men, estimated the blood of their kindred so highly, that the life of an offender only, could atone for the offence: for they would have despised making a shameful traffic of their blood.' This profound thinker is often mistaken, and, like Tacitus, appears to be too great an admirer of barbarous nations and their institutions.
Notwithstanding these trivial faults, he cannot be more admired, than he merits: I cannot, however, but reproach him again in this book, for not expressing himself with more indignation against the use of torture and confiscation, though he disapproves of both. It is certain that the power of pardoning is at least necessary, so long as the punishment of death is continued; for while the fallibility of human judges is exposed to imposition, or to be influenced through their passions to violate justice irreparably, there should be some preventative means; and this is the more indispensible, since it is allowed by the common consent of mankind, that laws themselves are at best very imperfect.
I cannot discover upon what principle it is, that Montesquieu says.... "Clemency is the destructive attribute of the monarch." In republics, where virtue is the basis of every thing, clemency is less necessary. Nor do his reflections on this subject please me more. In governments where liberty is held in regard, great precautions should be taken, that the power of pardon be not rendered detrimental, and that it shall not become a privilege to certain persons, or classes, for the perpetration of crimes with impunity, as too often happens in monarchies; an exception which Helvetius makes to Montesquieu with great reason.
Let us pass to another subject.
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