Encyclopedic Liberty. Jean Le Rond d'Alembert
advantages: the republican is more appropriate for small States, the monarchical for large ones; the republican is more subject to excesses, the monarchical to abuses; the republican brings more maturity into the execution of the laws, the monarchical more dispatch.
The different principles of the three governments are bound to produce differences in the number and purposes of the laws, in the form of the sentences and the nature of the punishments. Since the constitution of monarchies is unchanging and fundamental, it requires more civil laws and tribunals so that justice may be rendered in a more uniform and less arbitrary manner. In moderate States, whether monarchies or republics, one cannot bring too many formalities to bear on the criminal laws. Punishment must be not only in proportion with the crime, but also as mild as possible, especially in a democracy; the opinion attached to punishments will often have more effect than their actual scale. In republics, one must judge according to the law, because no individual is in command of changing it. In monarchies, the sovereign’s clemency can sometimes soften the law; but crimes must never be judged except by the magistrates expressly charged with knowing about them. Finally, it is mainly in democracies that the laws should be rigorous against luxury, the relaxation of mores, and the seduction of women. The mildness of women and even their weakness renders them fit enough to govern in monarchies, and history proves that they have often worn the crown with glory.
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Having surveyed each government in particular, M. de Montesquieu next examines them in the relationship they may have with each other, but only from the most general viewpoint—that is, the viewpoint uniquely related to their nature and their principle. Envisioned in this manner, States can have no other relationships but that of defending or attacking. Confined by nature to a small State, republics cannot defend themselves without allies, but it is with other republics that they should be allied; the defensive strength of monarchy consists mainly in having frontiers out of attack range. Like men, States have the right to attack for their own preservation: from the right of war derives the right of conquest, a right that is necessary, legitimate, and unfortunate, which always leaves an immense debt to be discharged if human nature is to be repaid,1 and whose general law is to do the least harm possible to the vanquished.2 Republics are less able to conquer than monarchies; immense conquests presuppose despotism, or ensure it. One of the great principles of the spirit of conquest should be to improve the condition of the conquered people as much as possible. This simultaneously satisfies the natural law and the maxim of State. Nothing is more noble than Gelon’s peace treaty with the Carthaginians, by which he prohibited them from immolating their own children in the future.3 In conquering Peru,4 the Spanish ought likewise to have obliged the inhabitants to no longer immolate men to their gods, but they thought it more beneficial to immolate these very peoples. They had nothing more for a conquest than a vast desert; they were forced to depopulate their country, and they weakened themselves forever by their own victory. One may sometimes be obliged to change the laws of the defeated people; nothing can ever oblige one to take away their mores or even their customs, which are often their whole mores. But the surest means of preserving a conquest is, if possible, to put the vanquished people on the level of the conquering people, to accord them the same rights and privileges. This is the means the Romans often used; this is especially the means Caesar used with respect to the Gauls.
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In considering each government both in itself and in its relation with others, we have thus far been concerned neither with what they ought to have in common, nor with the particular circumstances drawn either from the nature of the country or from the genius of the people. This is what now needs to be explored.
The common law of all governments, at least of moderate and therefore just governments, is the political liberty that each citizen should enjoy.5 This liberty is not the absurd license of doing what one wants, but the power to do everything the laws permit. It can be envisioned either in its relation with the constitution, or in its relation with the citizen.6
In the constitution of each State, there are two sorts of powers, the legislative and the executive power. This latter has two objects, the internal affairs of the State and its external ones. The degree of perfection in a constitution’s political liberty depends on the legitimate distribution and the appropriate allocation of these different kinds of power. M. de Montesquieu brings in as evidence the constitution of the Roman republic and that of England. He finds the principle of the latter in the fundamental law of the ancient Germans’ government: that unimportant affairs were decided by the chieftains, and that great affairs were brought to the tribunal of the nation after being debated by the chieftains. M. de Montesquieu does not examine whether the English do or do not enjoy that extreme political liberty which their constitution provides them;7 it suffices for him to say that it is established by their laws. He is even further from intending to satirize other States.8 On the contrary, he believes that an excess even of good things is not always desirable, that extreme liberty has its disadvantages as does extreme servitude, and that in general, human nature adjusts better to a middling condition.9
Political liberty considered in relation to the citizen consists in the security that he is sheltered by the laws, or at least he is of the opinion that he
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has that security which causes one citizen not to fear another.10 It is mainly through the nature and proportion of the punishments that this liberty is established or destroyed.11 Crimes against religion should be punished by privation of the goods that religion procures; crimes against mores, by shame; crimes against public tranquility, by prison or exile; crimes against security, by corporal punishment. Writings should be less punished than actions; simple thoughts should never be punished. Nonjudicial accusations, spies, anonymous letters: all these expedients of tyranny, equally shameful to those who are their instruments and to those who use them, should be proscribed in a good monarchical government. It is not permissible to accuse except in the face of the law, which always punishes either the accused or the slanderer. In every other case, those who govern should say with Emperor Constans:12 We cannot suspect a man who has no accuser even though he does not lack enemies. It is very good to have established a public party who is charged in the name of the State to prosecute crimes, and who has all the usefulness of the informant without having the vile interests, the disadvantages, and the infamy.13
The level of taxes should be in direct proportion with liberty.14 Thus, in democracies, they can be greater than elsewhere without being onerous, because every citizen regards them as a tribute15 he pays to himself, which ensures the tranquility and the lot of each member. Moreover, in a democratic State, the unfaithful use of public revenue is more difficult, because it is easier to know about and punish, since the agent owes an account, so to speak, to the first citizen who demands it.
In any government, the least onerous type of tax is the one established on merchandise, because the citizen pays without being aware of it.16 The excessive number of troops in time of peace is only a pretext to burden
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the people with taxes, a means of enervating the State, and an instrument of servitude. The direct collection17 of taxes, which brings the whole yield into the public fisc, is incomparably less burdensome to the people, and therefore more advantageous (when it can take place) than the farming of these same taxes, which always leaves a portion of State revenues in the hands of some private individuals. All is lost especially (these are the terms of the author) when the profession of tax-farmer becomes honorable,18 and it becomes honorable as soon as luxury is in force. To let a few men feed on the public sustenance in order to fleece them in their turn, as has been practiced in the past in certain States, is to remedy one injustice by another, and to do two bad things instead of one.
Let us move now, with M. Montesquieu, to the particular circumstances that are independent of the nature of the government and that are bound to modify its laws. The circumstances that come from the nature of the country are of two sorts: some are related to the climate, others to the terrain. No one doubts that climate has an influence on the customary arrangement of bodies, and therefore on characters.19 This