make the profession of arms a particular state, distinct from that of civil functions; and in the latter, no less dangerous would it be to confer these two employments on the same per

son.

In republics a person takes up arms only with a view to defend his country and its laws; it is because he is a citizen he makes himself for a while a soldier. Were these two distinct states, the person who under arms thinks himself a citizen would soon be made sensible he is only a soldier.

• In monarchies, they whose condition engages them in the profession of arms have nothing but glory, or at least honor or fortune, in view. To men, therefore, like these, the prince should never give any civil employments; on the contrary, they ought to be checked by the civil magistrate, that the same persons may not have at the same time the confidence of the people and the power to abuse it.r

We have only to cast an eye on a nation that may be justly called a republic, disguised under the form of monarchy, and we shall see how jealous they are of making a separate order of the profession of arms, and how the military state is constantly allied with that of the citizen, and even sometimes of the magistrate, to the end that these qualities may be a pledge for their country, which should never be forgotten.

The division of civil and military employments, made by the Romans after the extinction of the republic, was not an arbitrary thing. It was a consequence of the change which happened in the constitution of Rome; it was natural to a monarchical government; and what was only commenced under Augustus, succeeding emperorst were obliged to finish, in order to temper the military government.

Procopius, therefore, the competitor of Valens the emperor, was very much to blame when, conferring the proconsular dignity upon Hormisdas, a prince of the blood royal of Persia, he restored to this magistracy the military command of which it had been formerly possessed; unless, indeed, he had very particular reasons for so doing. A person that aspires to the

sovereignty concerns himself less about what is serviceable to the state than what is likely to promote his own interest.

4th Question.] Fourthly, it is a question whether public employments should be sold. They ought not, I think, in despotic governments, where the subjects must be instantaneously placed or displaced by the prince.

But in monarchies this custom is not at all improper, by reason it is an inducement to engage in that as a family employment which would not be undertaken through a motive of virtue; it fixes likewise every one in his duty, and renders the several orders of the kingdom more permanent. Suidasw very justly observes, that Anastasius had changed the empire into a kind of aristocracy, by selling all public employments.

Plator cannot bear with this prostitution: "This is exactly," says he, " as if a person were to be made a mariner or pilot of a ship, for his money. Is it possible that this rule should be bad in every other employment of life, and hold good only in the administration of a republic?" But Plato speaks of a republic founded on virtue, and we of a monarchy. Now, in monarchies (where, though there were no such thing as a regular sale of public offices, still the indigence and avidity of the courtier would equally prompt him to expose them to sale) chance will furnish better subjects than the prince's choice. In short, the method of attaining to honors through riches inspires and cherishes industry,y a thing extremely wanting in this kind of government.

5th Question.] The fifth question is, in what kind of government censors are necessary. My answer is, that they are necessary in a republic, where the principle of government is virtue. We must not imagine that criminal actions only are destructive of virtue; it is destroyed also by omissions, by neglects, by a certain coolness in the love of our country, by bad examples, and by the seeds of corruption: whatever does not openly violate but elude the laws, does not subvert but weaken them, ought to fall under the inquiry and correction of the censors.

Voltaire exclaims, "Let us lament that Montesquieu has defamed his work by such paradoxes. But we can forgive him: his uncle purchased the office of President in the country, and left it to him. After all we find the man. No one of us is without his weak point."Ed.

w Fragments taken from the embassies of Constantine Porphyrogenitus. "Repub." lib. VIII.

y We see the laziness of Spain, where all public employments are given away.

We are surprised at the punishment of the Areopagite for killing a sparrow which, to escape the pursuit of a hawk, had taken shelter in his bosom. Surprised we are also that an Areopagite should put his son to death for putting out the eyes of a little bird. But let us reflect, that the question here does not relate to a criminal sentence, but to a judgment concerning manners in a republic founded on manners.

In monarchies there should be no censors; the former are founded on honor, and the nature of honor is to have the whole world for its censor. Every man who fails in this article is subject to the reproaches even of those who are void of honor.

Here the censors would be spoiled by the very people whom they ought to correct: they could not prevail against the corruption of a monarchy; the corruption rather would be too strong against them.

Hence it is obvious that there ought to be no censors in despotic governments. The example of China seems to derogate from this rule; but we shall see, in the course of this work, the particular reasons of that institution.

BOOK VI

CONSEQUENCES OF THE PRINCIPLES OF DIFFERENT GOVERNMENTS WITH RESPECT TO THE SIMPLICITY OF CIVIL AND

CRIMINAL

LAWS, THE FORM OF JUDGMENTS, AND THE INFLICTING OF PUNISHMENTS

1.-Of the Simplicity of Civil Laws in different Governments ONARCHIES do not permit of so great a simplicity

M

of laws as despotic governments. For in monarchies there must be courts of judicature; these must give their decisions; the decisions must be preserved and learned, that we may judge in the same manner to-day as yesterday, and that the lives and property of the citizens may be as certain and fixed as the very constitution of the state.

In monarchies, the administration of justice, which decides not only in whatever belongs to life and property, but likewise to honor, demands very scrupulous inquiries. The delicacy of the judge increases in proportion to the increase of his trust, and of the importance of the interests on which he determines.

We must not, therefore, be surprised to find so many rules, restrictions, and extensions in the laws of those countriesrules that multiply the particular cases, and seem to make of reason itself an art.

The difference of rank, birth, and condition established in monarchical governments is frequently attended with distinctions in the nature of property; and the laws relating to the constitution of this government may augment the number of these distinctions. Hence, among us goods are divided into real estates, purchases, dowries, paraphernalia, paternal and maternal inheritances; movables of different kinds; estates held in fee-simple, or in tail; acquired by descent or convey

ance; allodial, or held by socage; ground rents; or annuities. Each sort of goods is subject to particular rules, which must be complied with in the disposal of them. These things must needs diminish the simplicity of the laws.

In our governments the fiefs have become hereditary. It was necessary that the nobility should have a fixed property, that is, the fief should have a certain consistency, to the end that the proprietor might be always in a capacity of serving the prince. This must have been productive of great varieties; for instance, there are countries where fiefs could not be divided among the brothers; in others, the younger brothers may be allowed a more generous subsistence.

The monarch who knows each of his provinces may establish different laws or tolerate different customs. But as the despotic prince knows nothing, and can attend to nothing, he must take general measures, and govern by a rigid and inflexible will, which throughout his whole dominions produces the same effect; in short, everything bends under his feet.

In proportion as the decisions of the courts of judicature are multiplied in monarchies, the law is loaded with decrees that sometimes contradict one another; either because succeeding judges are of a different way of thinking, or because the same causes are sometimes well, and at other times ill, defended; or, in fine, by reason of an infinite number of abuses, to which all human regulations are liable. This is a necessary evil, which the legislator redresses from time to time, as contrary even to the spirit of moderate governments. For when people are obliged to have recourse to courts of judicature, this should come from the nature of the constitution, and not from the contradiction or uncertainty of the law.

In governments where there are necessary distinctions of persons, there must likewise be privileges. This also diminishes the simplicity, and creates a thousand exceptions.

One of the privileges least burdensome to society, and especially to him who confers it, is that of pleading in one court in preference to another. Here new difficulties arise, when it becomes a question before which court we shall plead.

Far different is the case of the people under despotic governments. In those countries I can see nothing that the legislator is able to decree, or the magistrate to judge. As the lands be