英文版論法的精神-5

Book V. That the Laws Given by the Legislator Ought to Be in Relation to the Principle of Government

1. Idea of this Book. That the laws of education should relate to the principle of each government has been shown in the preceding book. Now the same may be said of those which the legislator gives to the whole society. The relation of laws to this principle strengthens the several springs of government; and this principle derives thence, in its turn, a new degree of vigour. And thus it is in mechanics, that action is always followed by reaction.

Our design is, to examine this relation in each government, beginning with the republican state, the principle of which is virtue.

2. What is meant by Virtue in a political State. Virtue in a republic is a most simple thing: it is a love of the republic; it is a sensation, and not a consequence of acquired knowledge: a sensation that may be felt by the meanest as well as by the highest person in the state. When the common people adopt good maxims, they adhere to them more steadily than those whom we call gentlemen. It is very rarely that corruption commences with the former: nay, they frequently derive from their imperfect light a stronger attachment to the established laws and customs.

The love of our country is conducive to a purity of morals, and the latter is again conducive to the former. The less we are able to satisfy our private passions, the more we abandon ourselves to those of a general nature. How comes it that monks are so fond of their order? It is owing to the very cause that renders the order insupportable. Their rule debars them from all those things by which the ordinary passions are fed; there remains therefore only this passion for the very rule that torments them. The more austere it is, that is, the more it curbs their inclinations, the more force it givfes to the only passion left them.

3. What is meant by a Love of the Republic in a Democracy. A love of the republic in a democracy is a love of the democracy; as the latter is that of equality.

A love of the democracy is likewise that of frugality. Since every individual ought here to enjoy the same happiness and the same advantages, they should consequently taste the same pleasures and form the same hopes, which cannot be expected but from a general frugality.

The love of equality in a democracy limits ambition to the sole desire, to the sole happiness, of doing greater services to our country than the rest of our fellow-citizens. They cannot all render her equal services, but they all ought to serve her with equal alacrity. At our coming into the world, we contract an immense debt to our country, which we can never discharge.

Hence distinctions here arise from the principle of equality, even when it seems to be removed by signal services or superior abilities.

The love of frugality limits the desire of having to the study of procuring necessaries to our family, and superfluities to our country. Riches give a power which a citizen cannot use for himself, for then he would be no longer equal. They likewise procure pleasures which he ought not to enjoy, because these would be also repugnant to the equality.

Thus well-regulated democracies, by establishing domestic frugality, made way at the same time for public expenses, as was the case at Rome and Athens, when magnificence and profusion arose from the very fund of frugality. And as religion commands us to have pure and unspotted hands when we make our offerings to the gods, the laws required a frugality of life to enable them to be liberal to our country.

The good sense and happiness of individuals depend greatly upon the mediocrity of their abilities and fortunes. Therefore, as a republic, where the laws have placed many in a middling station, is composed of wise men, it will be wisely governed; as it is composed of happy men, it will be extremely happy.

4. In what Manner the Love of Equality and Frugality is inspired. The love of equality and of a frugal economy is greatly excited by equality and frugality themselves, in societies where both these virtues are established by law.

In monarchies and despotic governments, nobody aims at equality; this does not so much as enter their thoughts; they all aspire to superiority. People of the very lowest condition desire to emerge from their obscurity, only to lord it over their fellow-subjects.

It is the same with respect to frugality. To love it, we must practise and enjoy it. It is not those who are enervated by pleasure that are fond of a frugal life; were this natural and common, Alcibiades would never have been the admiration of the universe. Neither is it those who envy or admire the luxury of the great; people that have present to their view none but rich men, or men miserable like themselves, detest their wretched condition, without loving or knowing the real term or point of misery.

A true maxim it is, therefore, that in order to love equality and frugality in a republic, these virtues must have been previously established by law.

5. In what Manner the Laws establish Equality in a Democracy. Some ancient legislators, as Lycurgus and Romulus, made an equal division of lands. A settlement of this kind can never take place except upon the foundation of a new republic; or when the old one is so corrupt, and the minds of the people are so disposed, that the poor think themselves obliged to demand, and the rich obliged to consent to a remedy of this nature.

If the legislator, in making a division of this kind, does not enact laws at the same time to support it, he forms only a temporary constitution; inequality will break in where the laws have not precluded it, and the republic will be utterly undone.

Hence for the preservation of this equality it is absolutely necessary there should be some regulation in respect to women's dowries, donations, successions, testamentary settlements, and all other forms of contracting. For were we once allowed to dispose of our property to whom and how we pleased, the will of each individual would disturb the order of the fundamental law.

Solon, by permitting the Athenians, upon failure of issue1 to leave their estates to whom they pleased, acted contrary to the ancient laws, by which the estates were ordered to continue in the family of the testator;2 and even contrary to his own laws, for by abolishing debts he had aimed at equality.

The law which prohibited people having two inheritances3 was extremely well adapted for a democracy. It derived its origin from the equal distribution of lands and portions made to each citizen. The law would not permit a single man to possess more than a single portion.

From the same source arose those laws by which the next relative was ordered to marry the heiress. This law was given to the Jews after the like distribution. Plato,4 who grounds his laws on this division, made the same regulation which had been received as a law by the Athenians.

At Athens there was a law whose spirit, in my opinion, has not been hitherto rightly understood. It was lawful to marry a sister only by the father's side, but it was not permitted to espouse a sister by the same venter.5 This custom was originally owing to republics, whose spirit would not permit that two portions of land, and consequently two inheritances, should devolve on the same person. A man who married his sister only by the father's side could inherit but one estate, namely, that of his father; but by espousing his sister by the same venter, it might happen that this sister's father, having no male issue, might leave her his estate, and consequently the brother who married her might be possessed of two.

Little will it avail to object to what Philo says,6 that although the Athenians were allowed to marry a sister by the father's side, and not by the mother's, yet the contrary practice prevailed among the Laced?monians, who were permitted to espouse a sister by the mother's side, and not by the father's. For I find in Strabo7 that at Sparta, whenever a woman was married to her brother she had half his portion for her dowry. Plain is it that this second law was made in order to prevent the bad consequences of the former. That the estate belonging to the sister's family might not devolve on the brother's, they gave half the brother's estate to the sister for her dowry.

Seneca8 speaking of Silanus, who had married his sister, says that the permission was limited at Athens, but general at Alexandria. In a monarchical government there was very little concern about any such thing as a division of estates.

Excellent was that law which, in order to maintain this division of lands in a democracy, ordained that a father who had several children should pitch upon one of them to inherit his portion,9 and leave the others to be adopted, to the end that the numbers of citizens might always be kept upon an equality with that of the divisions.

Phaleas of Chalcedon10 contrived a very extraordinary method of rendering all fortunes equal, in a republic where there was the greatest inequality. This was that the rich should give fortunes with their daughters to the poor, but receive none themselves; and that the poor should receive money for their daughters, instead of giving them fortunes. But I do not remember that a regulation of this kind ever took place in any republic. It lays the citizens under such hard and oppressive conditions as would make them detest the very equality which they designed to establish. It is proper sometimes that the laws should not seem to tend so directly to the end they propose.

Though real equality be the very soul of a democracy, it is so difficult to establish that an extreme exactness in this respect would not be always convenient. Sufficient is it to establish a census11 which shall reduce or fix the differences to a certain point: it is afterwards the business of particular laws to level, as it were, the inequalities, by the duties laid upon the rich, and by the ease afforded to the poor. It is moderate riches alone that can give or suffer this sort of compensation; for as to men of overgrown estates, everything which does not contribute to advance their power and honour is considered by them as an injury.

All inequality in democracies ought to be derived from the nature of the government, and even from the principle of equality. For example, it may be apprehended that people who are obliged to live by their labour would be too much impoverished by a public employment, or neglect the duties attending it; that artisans would grow insolent, and that too great a number of freemen would overpower the ancient citizens. In this case the equality12 in a democracy may be suppressed for the good of the state. But this is only an apparent equality; for a man ruined by a public employment would be in a worse condition than his fellow-citizens; and this same man, being obliged to neglect his duty, would reduce the rest to a worse condition than himself, and so on.

6. In what Manner the Laws ought to maintain Frugality in a Democracy. It is not sufficient in a well-regulated democracy that the divisions of land be equal; they ought also to be small, as was customary among the Romans. "God forbid," said Curius to his soldiers,13 "that a citizen should look upon that as a small piece of land which is sufficient to maintain him."

As equality of fortunes supports frugality, so the latter maintains the former. These things, though in themselves different, are of such a nature as to be unable to subsist separately; they reciprocally act upon each other; if one withdraws itself from a democracy, the other surely follows it.

True is it that when a democracy is founded on commerce, private people may acquire vast riches without a corruption of morals.

This is because the spirit of commerce is naturally attended with that of frugality, economy, moderation, labour, prudence, tranquillity, order, and rule. So long as this spirit subsists, the riches it produces have no bad effect. The mischief is, when excessive wealth destroys the spirit of commerce, then it is that the inconveniences of inequality begin to be felt.

In order to support this spirit, commerce should be carried on by the principal citizens; this should be their sole aim and study; this the chief object of the laws: and these very laws, by dividing the estates of individuals in proportion to the increase of commerce, should set every poor citizen so far at his ease as to be able to work like the rest, and every wealthy citizen in such a mediocrity as to be obliged to take some pains either in preserving or acquiring a fortune.

It is an excellent law in a trading republic to make an equal division of the paternal estate among the children. The consequence of this is that how great soever a fortune the father has made, his children, being not so rich as he, are induced to avoid luxury, and to work as he has done. I speak here only of trading republics; as to those that have no commerce, the legislator must pursue quite different measures.14

In Greece there were two sorts of republics: the one military, like Sparta; the other commercial, as Athens. In the former, the citizens were obliged to be idle; in the latter, endeavours were used to inspire them with the love of industry and labour. Solon made idleness a crime, and insisted that each citizen should give an account of his manner of getting a livelihood. And, indeed, in a well-regulated democracy, where people's expenses should extend only to what is necessary, every one ought to have it; for how should their wants be otherwise supplied?

7. Other Methods of favouring the Principle of Democracy. An equal division of lands cannot be established in all democracies. There are some circumstances in which a regulation of this nature would be impracticable, dangerous, and even subversive of the constitution. We are not always obliged to proceed to extremes. If it appears that this division of lands, which was designed to preserve the people's morals, does not suit the democracy, recourse must be had to other methods.

If a permanent body be established to serve as a rule and pattern of manners; a senate, to which years, virtue, gravity, and eminent services procure admittance; the senators, by being exposed to public view like the statues of the gods, must naturally inspire every family with sentiments of virtue.

Above all, this senate must steadily adhere to the ancient institutions, and mind that the people and the magistrates never swerve from them.

The preservation of the ancient customs is a very considerable point in respect to manners. Since a corrupt people seldom perform any memorable actions, seldom establish societies, build cities, or enact laws; on the contrary, since most institutions are derived from people whose manners are plain and simple, to keep up the ancient customs is the way to preserve the original purity of morals.

Besides, if by some revolution the state has happened to assume a new form, this seldom can be effected without infinite pains and labour, and hardly ever by idle and debauched persons. Even those who had been the instruments of the revolution were desirous it should be relished, which is difficult to compass without good laws. Hence it is that ancient institutions generally tend to reform the people's manners, and those of modern date to corrupt them. In the course of a long administration, the descent to vice is insensible; but there is no reascending to virtue without making the most generous efforts.

It has been questioned whether the members of the senate we are speaking of ought to be for life or only chosen for a time. Doubtless they ought to be for life, as was the custom at Rome,15 at Sparta,16 and even at Athens. For we must not confound the senate at Athens, which was a body that changed every three months, with the Areopagus, whose members, as standing patterns, were established for life.

Let this be therefore a general maxim; that in a senate designed to be a rule, and the depository, as it were, of manners, the members ought to be chosen for life: in a senate intended for the administration of affairs, the members may be changed.

The spirit, says Aristotle, waxes old as well as the body. This reflection holds good only in regard to a single magistrate, but cannot be applied to a senatorial assembly.

At Athens, besides the Areopagus, there were guardians of the public morals, as well as of the laws.17 At Sparta, all the old men were censors. At Rome, the censorship was committed to two particular magistrates. As the senate watched over the people, the censors were to have an eye over the people and the senate. Their office was to reform the corruptions of the republic, to stigmatise indolence, to censure neglects, and to correct mistakes; as to flagrant crimes, these were left to the punishment of the laws.

That Roman law which required the accusations in cases of adultery to be public w, as admirably well calculated for preserving the purity of morals; it intimidated married women, as well as those who were to watch over their conduct.

Nothing contributes more to the preservation of morals than an extreme subordination of the young to the old. Thus they are both restrained, the former by their respect for those of advanced age, and the latter by their regard for themselves.

Nothing gives a greater force to the law than a perfect subordination between the citizens and the magistrate. "The great difference which Lycurgus established between Sparta and the other cities," says Xenophon,18 "consists chiefly in the obedience the citizens show to their laws; they run when the magistrate calls them. But at Athens a rich man would be highly displeased to be thought dependent on the magistrate."

Paternal authority is likewise of great use towards the preservation of morals. We have already observed that in a republic there is not so coercive a force as in other governments. The laws must therefore endeavour to supply this defect by some means or other; and this is done by paternal authority.

Fathers at Rome had the power of life and death over their children.19 At Sparta, every father had a right to correct another man's child.

Paternal authority ended at Rome together with the republic. In monarchies, where such a purity of morals is not required, they are controlled by no other authority than that of the magistrates.

The Roman laws, which accustomed young people to dependence, established a long minority. Perhaps we are mistaken in conforming to this custom; there is no necessity for so much constraint in monarchies.

This very subordination in a republic might make it necessary for the father to continue in the possession of his children's fortune during life, as was the custom at Rome. But this is not agreeable to the spirit of monarchy.

8. In what Manner the Laws should relate to the Principle of Government in an Aristocracy. If the people are virtuous in an aristocracy, they enjoy very nearly the same happiness as in a popular government, and the state grows powerful. But as a great share of virtue is very rare where men's fortunes are so unequal, the laws must tend as much as possible to infuse a spirit of moderation, and endeavour to re-establish that equality which was necessarily removed by the constitution.

The spirit of moderation is what we call virtue in an aristocracy; it supplies the place of the spirit of equality in a popular state.

As the pomp and splendour with which kings are surrounded form a part of their power, so modesty and simplicity of manners constitute the strength of an aristocratic nobility.20 When they affect no distinction, when they mix with the people, dress like them, and with them share all their pleasures, the people are apt to forget their subjection and weakness.

Every government has its nature and principle. An aristocracy must not therefore assume the nature and principle of monarchy; which would be the case were the nobles to be invested with personal privileges distinct from those of their body; privileges ought to be for the senate, and simple respect for the senators.

In aristocratic governments there are two principal sources of disorder: excessive inequality between the governors and the governed; and the same inequality between the different members of the body that governs. From these two inequalities, hatreds and jealousies arise, which the laws ought ever to prevent or repress.

The first inequality is chiefly when the privileges of the nobility are honourable only as they are ignominious to the people. Such was the law at Rome by which the patricians were forbidden to marry plebeians;21 a law that had no other effect than to render the patricians on the one side more haughty, and on the other more odious. The reader may see what advantages the tribunes derived thence in their harangues.

This inequality occurs likewise when the condition of the citizens differs with regard to taxes, which may happen in four different ways: when the nobles assume the privilege of paying none; when they commit frauds to exempt themselves;22 when they engross the public money, under pretence of rewards or appointments for their respective employments; in fine, when they render the common people tributary, and divide among their own body the profits arising from the several subsidies. This last case is very rare; an aristocracy so instituted would be the most intolerable of all governments.

While Rome inclined towards aristocracy, she avoided all these inconveniences. The magistrates never received any emoluments from their office. The chief men of the republic were taxed like the rest, nay, more heavily; and sometimes the taxes fell upon them alone. In fine, far from sharing among themselves the revenues of the state, all they could draw from the public treasure, and all the wealth that fortune flung into their laps, they bestowed freely on the people, to be excused from accepting public honours.23

It is a fundamental maxim that largesses are pernicious to the people in a democracy, but salutary in an aristocratic government. The former make them forget they are citizens, the latter bring them to a sense of it. If the revenues of the state are not distributed among the people, they must be convinced at least of their being well administered: to feast their eyes with the public treasure is with them the same thing almost as enjoying it. The golden chain displayed at Venice, the riches exhibited at Rome in public triumphs, the treasures preserved in the temple of Saturn, were in reality the wealth of the people.

It is a very essential point in an aristocracy that the nobles themselves should not levy the taxes. The first order of the state in Rome never concerned themselves with it; the levying of the taxes was committed to the second, and even this in process of time was attended with great inconveniences. In an aristocracy of this kind, where the nobles levied the taxes, the private people would be all at the discretion of persons in public employments; and there would be no such thing as a superior tribunal to check their power. The members appointed to remove the abuses would rather enjoy them. The nobles would be like the princes of despotic governments, who confiscate whatever estates they please.

Soon would the profits hence arising be considered as a patrimony, which avarice would enlarge at pleasure. The farms would be lowered, and the public revenues reduced to nothing. This is the reason that some governments, without having ever received any remarkable shock, have dwindled away to such a degree as not only their neighbours, but even their own subjects, have been surprised at it.

The laws should likewise forbid the nobles all kinds of commerce: merchants of such unbounded credit would monopolise all to themselves. Commerce is a profession of people who are upon an equality; hence among despotic states the most miserable are those in which the prince applies himself to trade.

The laws of Venice debar24 the nobles from commerce, by which they might even innocently acquire exorbitant wealth.

The laws ought to employ the most effectual means for making the nobles do justice to the people. If they have not established a tribune, they ought to be a tribune themselves.

Every sort of asylum in opposition to the execution of the laws destroys aristocracy, and is soon succeeded by tyranny. They ought always to mortify the lust of dominion. There should be either a temporary or perpetual magistrate to keep the nobles in awe, as the Ephori at Sparta and the State Inquisitors at Venice — magistrates subject to no formalities. This sort of government stands in need of the strongest springs: thus a mouth of stone25 is open to every informer at Venice — a mouth to which one would be apt to give the appellation of tyranny.

These arbitrary magistrates in an aristocracy bear some analogy to the censorship in democracies, which of its own nature is equally independent. And, indeed, the censors ought to be subject to no inquiry in relation to their conduct during their office; they should meet with a thorough confidence, and never be discouraged. In this respect the practice of the Romans deserved admiration; magistrates of all denominations were accountable for their administration,26 except the censors.27

There are two very pernicious things in an aristocracy — excess either of poverty, or of wealth in the nobility. To prevent their poverty, it is necessary, above all things, to oblige them to pay their debts in time. To moderate the excess of wealth, prudent and gradual regulations should be made; but no confiscations, no agrarian laws, no expunging of debts; these are productive of infinite mischief.

The laws ought to abolish the right of primogeniture among the nobles28 to the end that by a continual division of the inheritances their fortunes may be always upon a level.

There should be no substitutions, no powers of redemption, no rights of Majorasgo, or adoption. The contrivances for perpetuating the grandeur of families in monarchical governments ought never to be employed in aristocracies.29

When the laws have compassed the equality of families, the next thing is to preserve a proper harmony and union among them. The quarrels of the nobility ought to be quickly decided; otherwise the contests of individuals become those of families. Arbiters may terminate, or even prevent, the rise ot disputes.

In fine, the laws must not favour the distinctions raised by vanity among families, under pretence that they are more noble or ancient than others. Pretences of this nature ought to be ranked among the weaknesses of private persons.

We have only to cast an eye upon Sparta; there we may see how the Ephori contrived to check the foibles of the kings, as well as those of the nobility and common people.

9. In what Manner the Laws are in relation to their Principle in Monarchies. As honour is the principle of a monarchical government, the laws ought to be in relation to this principle.

They should endeavour to support the nobility, in respect to whom honour may be, in some measure, deemed both child and parent.

They should render the nobility hereditary, not as a boundary between the power of the prince and the weakness of the people, but as the link which connects them both.

In this government, substitutions which preserve the estates of families undivided are extremely useful, though in others not so proper.

Here the power of redemption is of service, as it restores to noble families the lands that had been alienated by the prodigality of a parent.

The land of the nobility ought to have privileges as well as their persons. The monarch's dignity is inseparable from that of his kingdom; and-the dignity of the nobleman from that of his fief.

All these privileges must be peculiar to the nobility, and incommunicable to the people, unless we intend to act contrary to the principle of government, and to diminish the power of the nobles together with that of the people.

Substitutions are a restraint to commerce, the power of redemption produces an infinite number of processes; every estate in land that is sold throughout the kingdom is in some measure without an owner for the space of a year. Privileges annexed to fiefs give a power very burdensome to those governments which tolerate them. These are the inconveniences of nobility — inconveniences, however, that vanish when confronted with its general utility: but when these privileges are communicated to the people, every principle of government is wantonly violated.

In monarchies a person may leave the bulk of his estate to one of his children — a permission improper in any other government.

The laws ought to favour all kinds of commerce30 consistent with the constitution, to the end that the subjects may, without ruining themselves, be able to satisfy the continual cravings of the prince and his court.

They should establish some regulation that the manner of collecting the taxes may not be more burdensome than the taxes themselves.

The weight of duties produces labour, labour weariness, and weariness the spirit of indolence.

10. Of the Expedition peculiar to the Executive Power in Monarchies. Great is the advantage which a monarchical government has over a republic: as the state is conducted by a single person, the executive power is thereby enabled to act with greater expedition. But as this expedition may degenerate into rapidity, the laws should use some contrivance to slacken it. They ought not only to favour the nature of each constitution, but likewise to remedy the abuses that might result from this very nature.

Cardinal Richelieu31 advises monarchs to permit no such things as societies or communities that raise difficulties upon every trifle. If this man's heart had not been bewitched with the love of despotic power, still these arbitrary notions would have filled his head.

The bodies entrusted with the deposition of the laws are never more obedient than when they proceed slowly, and use that reflection in the prince's affairs which can scarcely be expected from the ignorance of a court, or from the precipitation of its councils.32

What would have become of the finest monarchy in the world if the magistrates, by their delays, their complaints, and entreaties, had not checked the rapidity even of their princes' virtues, when these monarchs, consulting only the generous impulse of their minds, would fain have given a boundless reward to services performed with an unlimited courage and fidelity?

11. Of the Excellence of a Monarchical Government. Monarchy has a great advantage over a despotic government. As it naturally requires there should be several orders or ranks of subjects, the state is more permanent, the constitution more steady, and the person of him who governs more secure.

Cicero is of opinion that the establishing of the tribunes preserved the republic. "And indeed," says he, "the violence of a headless people is more terrible. A chief or head is sensible that the affair depends upon himself, and therefore he thinks; but the people in their impetuosity are ignorant of the danger into which they hurry themselves." This reflection may be applied to a despotic government, which is a people without tribunes; and to a monarchy, where the people have some sort of tribunes.

Accordingly it is observable that in the commotions of a despotic government, the people, hurried away by their passions, are apt to push things as far as they can go. The disorders they commit are all extreme; whereas in monarchies matters are seldom carried to excess. The chiefs are apprehensive on their own account; they are afraid of being abandoned, and the intermediate dependent powers do not choose that the populace should have too much the upper hand. It rarely happens that the states of the kingdom are entirely corrupted: the prince adheres to these; and the seditious, who have neither will nor hopes to subvert the government, have neither power nor will to dethrone the prince.

In these circumstances men of prudence and authority interfere; moderate measures are first proposed, then complied with, and things at length are redressed; the laws resume their vigour, and command submission.

Thus all our histories are full of civil wars without revolutions, while the histories of despotic governments abound with revolutions without civil wars.

The writers of the history of the civil wars of some countries, even those who fomented them, sufficiently demonstrate the little foundation princes have to suspect the authority with which they invest particular bodies of men; since, even under the unhappy circumstance of their errors, they sighed only after the laws and their duty; and restrained, more than they were capable of inflaming, the impetuosity of the revolted.33 Cardinal Richelieu, reflecting perhaps that he had too much reduced the states of the kingdom, has recourse to the virtues of the prince and of his ministers for the support34 of government: but he requires so many things, that indeed there is none but an angel capable of such attention, such resolution and knowledge; and scarcely can we flatter ourselves that we shall ever see such a prince and ministers while monarchy subsists.

As people who live under a good government are happier than those who without rule or leaders wander about the forests, so monarchs who live under the fundamental laws of their country are far happier than despotic princes who have nothing to regulate, neither their own passions nor those of their subjects.

12. The same Subject continued. Let us not look for magnanimity in despotic governments; the prince cannot impart a greatness which he has not himself; with him there is no such thing as glory.

It is in monarchies that we behold the subjects encircling the throne, and cheered by the irradiancy of the sovereign; there it is that each person filling, as it were, a larger space, is capable of exercising those virtues which adorn the soul, not with independence, but with true dignity and greatness.