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were no fuch thing as a regular fale of public offices, ftill the indigence and avidity of the courtier would equally prompt him to expofe them to fale) chance will turnih better fubjects than the prince's choice. In fine, the method of attaining to honors through riches, infpires and cherishes induftry,* a thing extremely wanting in this kind of government.

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QUEST. 5. The fifth question is, in what kind of ernment cenfors are neceffary? My anfwer is, they are neceffary in a republic, where the principle of government is virtue. We must not imagine that criminal actions only are deftructive of virtue; it is deftroyed alfo by careleffnefs, by faults, by a certain coolnefs in the love of our country, by dangerous examples, by feeds of corruption, by whatever does not openly violate but elude the laws, by what does not fubvert but weaken them; all this ought to fall under the inquiry and correction of the cenfors.

We are furprised at the punishment of the Areopagite, for killing a fparrow, which, to escape the pursuit of a hawk, had taken fhelter in his bofom. Surprifed we are also that an Areopagite fhould put his fon to death for pulling out the eyes of a little bird. But let us reflect that the queftion here does not relate to a criminal condemnation, but to a judgment of manners in a republic founded on

manners.

In monarchies there fhould be no cenfors; monarchies are founded on honor, and the nature of honor is to have the whole universe for its cenfor. Every man that fails in this refpect, is fubject to the reproaches even of thofe who are void of honor."

Here the cenfors would be fpoiled 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 ftrong against them.

Hence it is obvious that there ought to be no cenfors in defpotic governments. The example of China feems to derogate from this rule; but we fhall fee, in the courfe of. this work, the particular reafon of that inftitution.

BOOK

* We fee the laziness of Spain, where all public employments are given

away.

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.

CHAP. I.

Of the Simplicity of Civil Laws in different Governments.

MONARCHIES do not admit of fo great a fim

plicity of laws as defpotic governments. For in monarchies there must be courts of judicature; these must give their decifions; the decifions must be preserved and learned, that we may judge in the fame manner today as yefterday, and that the lives and property of the citizens may be as certain and fixed as the very conftitution of the state.

In monarchies, the administration of juftice, which decides not only in whatever belongs to life and property, but likewife to honor, demands very fcrupulous inquiries. The delicacy of the judge increases in proportion to the increase of his truft, and of the importance of the interefts on which he determines.

We must not therefore be surprised to find fo many rules, reftrictions and extenfions in the laws of thofe countries; rules that multiply the particular cases, and feem to make an art of reafon itself.

The difference of rank, birth and condition, established in monarchical governments, is frequently attended with diftinctions in the nature of property; and the laws relative to the conftitution of this government, may augment the ⚫ number of these diftin&tions. Hence, among us, goods are divided into real eftates, purchases, doweries, paraphernalia, paternal and maternal eftates; moveables of different kinds; estates held in fee fimple or in tail, acquired by descent or conveyance; allodial or held by foccage; ground

rents

rents or annuities. Each fort of goods is fubject to particular rules, which must be complied with in the difpofal of them. These things muft needs diminish the fimplicity of the laws.

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

;

The monarch who knows each of his provinces, may eftablish different laws, or tolerate different customs. But the defpotic prince knows nothing, and can attend to nothing; he must take general measures; he governs by a rigid and inflexible will, which throughout his whole dominions produces the fame effects; every thing yields under his feet.

In proportion as the decifions of the courts of judicature are multiplied in monarchies, the law is loaded with decrees that fometimes contradict one another, either because fucceeding judges are of a different way of thinking; or because the fame caufes are fometimes well, and at other times ill defended; or, in fine, by reason of an infinite number of abuses that flip into whatever paffes through the hands of man. This is a neceffary evil, which the legiflator redreffes from time to time, as contrary even to the fpirit of moderate governments. For when people are obliged to have recourse to courts of judicature, this should come from the nature of the conflitution, and not from the contradictions or uncertainty of the laws.

In governments where there are neceffary diftinctions of perfons, there must likewise be privileges. This also diminishes the fimplicity, and creates a thousand exceptions.

One of the privileges leaft burthenfome to fociety, and efpecially to him that confers it, is that of pleading in one court preferably to another. Here new difficulties arife, when it becomes a question before which court we shall plead.

Far

As

Far different is the cafe of people under defpotic governments. In those countries I can fee nothing that the legiflator is able to decree, or the magiftrate to judge. the lands belong to the prince, it follows, that there are fcarce any civil laws concerning the property of lands. From the right the fovereign has to fucceed to eftates, it follows likewife that there are none relating to inheritances. The monopolies eftablished by the prince for himself in some countries, render all forts of commercial laws quite ufelefs. The marriages which they ufually contract with fhe flaves, are the cause that there are scarce any civil laws relating to doweries, or to the particular advantage of married women. From the prodigious multitude of flaves it follows likewife, that there are very few who have any fuch thing as a will of their own, and of course are anfwerable for their conduct before a judge. Moft moral actions that are only in confequence of a father's, a husband's or a master's will, are regulated by them, and not by the magiftrates.

I forgot to obferve, that as what we call honor, is a thing hardly known in thofe countries, the feveral points relating to this honor, which are of fuch importance with us, are with them quite out of the question.

Defpotic power is of itfelf fufficient; round it there is an abfolute vacuum. Hence it is, that when travellers favor us with the defcription of countries where arbitrary fway prevails, they feldom make mention of civil laws.*

All occafions therefore of wrangling and of lawsuits are here removed. And to this in part it is owing that litigious people in thofe countries are fo roughly handled; as the injuftice of their demand is neither fcreened, palliated nor protected by an infinite number of laws, of courfe it is immediately difcovered.

CHAP.

In Mazulipatan it could never be found out that there was fuch a thing as written law. See the collection of voyages that contributed to the estabJifhment of the India company, tome iv. part 1. p. 391. The Indians are regulated in their judgments by certain cuftoms. The Vedan and fuch lik beeks do not contain civil laws, but religious precepts. See edifying letters, 14 collect.

CHA P. II.

Of the Simplicity of Criminal Laws in different Governments.

WE hear it generally faid, that juftice ought to

be administered with us as in Turkey. Is it poffible then that the most ignorant of all nations fhould be the most clearfighted in a point that it most behoves mankind to know ?

If we examine the fet forms of juftice in refpect to the trouble the fubject undergoes in recovering his property, or in obtainging fatisfaction for an injury or affront, we shall find them doubtless too many: But if we confider them in the relation they have to the liberty and fecurity of the subject, we fhall often find them too few; and we fhall be convincel that the trouble, expenfe, delays, and even the very dangers of our judiciary proceedings, are the price that every fubject pays for his liberty.

In Turkey, where little regard is fhewn to the honor, lives or eftates of the fubject, all caufes are one way or other quickly decided. The method of determining them is a matter of indifference, provided they be determined. The Bafhaw, after a quick bearing, orders which party he pleases to be baftinadoed, and then fends them about their bufinefs.

Here it would be dangerous to have the paffion of litigioufnefs; this fuppofes a violent defire of obtaining juftice, a ftrong averfion, a hurry of mind and an obftinacy in purfuing revenge. All this fhould be avoided in a government, where fear ought to be the only prevailing fentiment, and in which the leaft popular difturbances are frequently attended with fudden and unforeseen revolutions. Here every man ought to know that the magiftrate muft not hear his name mentioned, and that his fecurity depends entirely on his being reduced to a kind of annihilation.

But in moderate governments, where the life of the meanest fubject is deemed precious, no man is ftript of his honor or property but after a long inquiry; and no man is bereft of life, till his very country has attacked him, an attack

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