Of Laws Directly Derived from the Nature of Government
1. Of the Nature of the three different
Governments. There are three species of government: republican,
monarchical, and despotic. In order to discover their nature, it is
sufficient to recollect the common notion, which supposes three
definitions, or rather three facts: that a republican government is that
in which the body, or only a part of the people, is possessed of the
supreme power; monarchy, that in which a single person governs by fixed
and established laws; a despotic government, that in which a single person
directs everything by his own will and caprice.
This is what I call the nature of each government; we must now inquire
into those laws which directly conform to this nature, and consequently
are the fundamental institutions.
2. Of the Republican Government, and the Laws in
relation to Democracy.1 When
the body of the people is possessed of the supreme power, it is called a
democracy. When the supreme power is lodged in the hands of a part of the
people, it is then an aristocracy.
In a democracy the people are in some respects the sovereign, and in
others the subject.
There can be no exercise of sovereignty but by their suffrages, which
are their own will; now the sovereign's will is the sovereign himself. The
laws therefore which establish the right of suffrage are fundamental to
this government. And indeed it is as important to regulate in a republic,
in what manner, by whom, to whom, and concerning what, suffrages are to be
given, as it is in a monarchy to know who is the prince, and after what
manner he ought to govern.
Libanius2 says that at Athens a
stranger who intermeddled in the assemblies of the people was punished
with death. This is because such a man usurped the rights of sovereignty.
It is an essential point to fix the number of citizens who are to form
the public assemblies; otherwise it would be uncertain whether the whole,
or only a part of the people, had given their votes. At Sparta the number
was fixed at ten thousand. But Rome, designed by Providence to rise from
the weakest beginnings to the highest pitch of grandeur; Rome, doomed to
experience all the vicissitudes of fortune; Rome, who had sometimes all
her inhabitants without her walls, and sometimes all Italy and a
considerable part of the world within them; Rome, I say, never fixed the
number3 and this was one of the
principal causes of her ruin.
The people, in whom the supreme power resides, ought to have the
management of everything within their reach: that which exceeds their
abilities must be conducted by their ministers.
But they cannot properly be said to have their ministers, without the
power of nominating them: it is, therefore, a fundamental maxim in this
government, that the people should choose their ministers — that is,
They have occasion, as well as monarchs, and even more so, to be
directed by a council or senate. But to have a proper confidence in these,
they should have the choosing of the members; whether the election be made
by themselves, as at Athens, or by some magistrate deputed for that
purpose, as on certain occasions was customary at Rome.
The people are extremely well qualified for choosing those whom they are
to entrust with part of their authority. They have only to be determined
by things to which they cannot be strangers, and by facts that are obvious
to sense. They can tell when a person has fought many battles, and been
crowned with success; they are, therefore, capable of electing a general.
They can tell when a judge is assiduous in his office, gives general
satisfaction, and has never been charged with bribery: this is sufficient
for choosing a prętor. They are struck with the magnificence or
riches of a fellow-citizen; no more is requisite for electing an edile.
These are facts of which they can have better information in a public
forum than a monarch in his palace. But are they capable of conducting an
intricate affair, of seizing and improving the opportunity and critical
moment of action? No; this surpasses their abilities.
Should we doubt the people's natural capacity, in respect to the
discernment of merit, we need only cast an eye on the series of surprising
elections made by the Athenians and Romans; which no one surely will
attribute to hazard.
We know that though the people of Rome assumed the right of raising
plebeians to public offices, yet they never would exert this power; and
though at Athens the magistrates were allowed, by the law of Aristides, to
be elected from all the different classes of inhabitants, there never was
a case, says Xenophon,4 when the
common people petitioned for employments which could endanger either their
security or their glory.
As most citizens have sufficient ability to choose, though unqualified
to be chosen, so the people, though capable of calling others to an
account for their administration, are incapable of conducting the
The public business must be carried on with a certain motion, neither
too quick nor too slow. But the motion of the people is always either too
remiss or too violent. Sometimes with a hundred thousand arms they
overturn all before them; and sometimes with a hundred thousand feet they
creep like insects.
In a popular state the inhabitants are divided into certain classes. It
is in the manner of making this division that great legislators have
signalised themselves; and it is on this the duration and prosperity of
democracy have ever depended.
Servius Tullius followed the spirit of aristocracy in the distribution
of his classes. We find in Livy5
and in Dionysius Halicarnassus,6 in
what manner he lodged the right of suffrage in the hands of the principal
citizens. He had divided the people of Rome into 193 centuries, which
formed six classes; and ranking the rich, who were in smaller numbers, in
the first centuries, and those in middling circumstances, who were more
numerous, in the next, he flung the indigent multitude into the last; and
as each century had but one vote7
it was property rather than numbers that decided the election.
Solon divided the people of Athens into four classes. In this he was
directed by the spirit of democracy, his intention not being to fix those
who were to choose, but such as were eligible: therefore, leaving to every
citizen the right of election, he made8
the judges eligible from each of those four classes; but the magistrates
he ordered to be chosen only out of the first three, consisting of persons
of easy fortunes.9
As the division of those who have a right of suffrage is a fundamental
law in republics, so the manner of giving this suffrage is another
The suffrage by lot is natural to democracy; as that by choice is to
The suffrage by lot is a method of electing that offends no one, but
animates each citizen with the pleasing hope of serving his country.
Yet as this method is in itself defective, it has been the endeavour of
the most eminent legislators to regulate and amend it.
Solon made a law at Athens that military employments should be conferred
by choice; but that senators and judges should be elected by lot.
The same legislator ordained that civil magistracies, attended with
great expense, should be given by choice; and the others by lot.
In order, however, to amend the suffrage by lot, he made a rule that
none but those who presented themselves should be elected; that the person
elected should be examined by judges11
and that every one should have a right to accuse him if he were unworthy
of the office:12 this participated
at the same time of the suffrage by lot, and of that by choice. When the
time of their magistracy had expired, they were obliged to submit to
another judgment in regard to their conduct. Persons utterly unqualified
must have been extremely backward in giving in their names to be drawn by
The law which determines the manner of giving suffrage is likewise
fundamental in a democracy. It is a question of some importance whether
the suffrages ought to be public or secret. Cicero observes13
that the laws14 which rendered them
secret towards the close of the republic were the cause of its decline.
But as this is differently practised in different republics, I shall offer
here my thoughts concerning this subject.
The people's suffrages ought doubtless to be public15
and this should be considered as a fundamental law of democracy. The lower
class ought to be directed by those of higher rank, and restrained within
bounds by the gravity of eminent personages. Hence, by rendering the
suffrages secret in the Roman republic, all was lost; it was no longer
possible to direct a populace that sought its own destruction. But when
the body of the nobles are to vote in an aristocracy16
or in a democracy the senate17 as
the business is then only to prevent intrigues, the suffrages cannot be
Intriguing in a senate is dangerous; it is dangerous also in a body of
nobles; but not so among the people, whose nature is to act through
passion. In countries where they have no share in the government, we often
see them as much inflamed on account of an actor as ever they could be for
the welfare of the state. The misfortune of a republic is when intrigues
are at an end; which happens when the people are gained by bribery and
corruption: in this case they grow indifferent to public affairs, and
avarice becomes their predominant passion. Unconcerned about the
government and everything belonging to it, they quietly wait for their
It is likewise a fundamental law in democracies, that the people should
have the sole power to enact laws. And yet there are a thousand occasions
on which it is necessary the senate should have the power of decreeing;
nay, it is frequently proper to make some trial of a law before it is
established. The constitutions of Rome and Athens were excellent. The
decrees of the senate18 had the
force of laws for the space of a year, but did not become perpetual till
they were ratified by the consent of the people.
3. Of the Laws in relation to the Nature of
Aristocracy. In an aristocracy the supreme power is lodged in the
hands of a certain number of persons. These are invested both with the
legislative and executive authority; and the rest of the people are, in
respect to them, the same as the subjects of a monarchy in regard to the
They do not vote here by lot, for this would be productive of
inconveniences only. And indeed, in a government where the most mortifying
distinctions are already established, though they were to be chosen by
lot, still they would not cease to be odious; it is the nobleman they
envy, and not the magistrate.
When the nobility are numerous, there must be a senate to regulate the
affairs which the body of the nobles are incapable of deciding, and to
prepare others for their decision. In this case it may be said that the
aristocracy is in some measure in the senate, the democracy in the body of
the nobles, and the people are a cipher.
It would be a very happy thing in an aristocracy if the people, in some
measure, could be raised from their state of annihilation. Thus at Genoa,
the bank of St. George being administered by the people19
gives them a certain influence in the government, whence their whole
prosperity is derived.
The senators ought by no means to have the right of naming their own
members; for this would be the only way to perpetuate abuses. At Rome,
which in its early years was a kind of aristocracy, the senate did not
fill up the vacant places in their own body; the new members were
nominated by the censors.20
In a republic, the sudden rise of a private citizen to exorbitant power
produces monarchy, or something more than monarchy. In the latter the laws
have provided for, or in some measure adapted themselves to, the
constitution; and the principle of government checks the monarch: but in a
republic, where a private citizen has obtained an exorbitant power,21
the abuse of this power is much greater, because the laws foresaw it not,
and consequently made no provision against it.
There is an exception to this rule, when the constitution is such as to
have immediate need of a magistrate invested with extraordinary power.
Such was Rome with her dictators, such is Venice with her state
inquisitors; these are formidable magistrates, who restore, as it were by
violence, the state to its liberty. But how comes it that these
magistracies are so very different in these two republics? It is because
Rome supported the remains of her aristocracy against the people; whereas
Venice employs her state inquisitors to maintain her aristocracy against
the nobles. The consequence was that at Rome the dictatorship could be
only of short duration, as the people acted through passion and not with
design. It was necessary that a magistracy of this kind should be
exercised with lustre and pomp, the business being to intimidate, and not
to punish, the multitude. It was also proper that the dictator should be
created only for some particular affair, and for this only should have an
unlimited authority, as he was always created upon some sudden emergency.
On the contrary, at Venice they have occasion for a permanent magistracy;
for here it is that schemes may be set on foot, continued, suspended, and
resumed; that the ambition of a single person becomes that of a family,
and the ambition of one family that of many. They have occasion for a
secret magistracy, the crimes they punish being hatched in secrecy and
silence. This magistracy must have a general inquisition, for their
business is not to remedy known disorders, but to prevent the unknown. In
a word, the latter is designed to punish suspected crimes; whereas the
former used rather menaces than punishment even for crimes that were
In all magistracies, the greatness of the power must be compensated by
the brevity of the duration. This most legislators have fixed to a year; a
longer space would be dangerous, and a shorter would be contrary to the
nature of government. For who is it that in the management even of his
domestic affairs would be thus confined? At Ragusa22
the chief magistrate of the republic is changed every month, the other
officers every week, and the governor of the castle every day. But this
can take place only in a small republic environed23
by formidable powers, who might easily corrupt such petty and
The best aristocracy is that in which those who have no share in the
legislature are so few and inconsiderable that the governing party have no
interest in oppressing them. Thus when24
Antipater made a law at Athens that whosoever was not worth two thousand
drachms should have no power to vote, he formed by this method the best
aristocracy possible; because this was so small a sum as to exclude very
few, and not one of any rank or consideration in the city.
Aristocratic families ought therefore, as much as possible, to level
themselves in appearance with the people. The more an aristocracy borders
on democracy, the nearer it approaches perfection: and, in proportion as
it draws towards monarchy, the more is it imperfect.
But the most imperfect of all is that in which the part of the people
that obeys is in a state of civil servitude to those who command, as the
aristocracy of Poland, where the peasants are slaves to the nobility.
4. Of the Relation of Laws to the Nature of
Monarchical Government. The intermediate, subordinate, and dependent
powers constitute the nature of monarchical government; I mean of that in
which a single person governs by fundamental laws. I said the
intermediate, subordinate, and dependent powers. And indeed, in monarchies
the prince is the source of all power, political and civil. These
fundamental laws necessarily suppose the intermediate channels through
which the power flows: for if there be only the momentary and capricious
will of a single person to govern the state, nothing can be fixed, and of
course there is no fundamental law.
The most natural, intermediate, and subordinate power is that of the
nobility. This in some measure seems to be essential to a monarchy, whose
fundamental maxim is: no monarch, no nobility; no nobility, no monarch;
but there may be a despotic prince.
There are men who have endeavoured in some countries in Europe to
suppress the jurisdiction of the nobility, not perceiving that they were
driving at the very thing that was done by the parliament of England.
Abolish the privileges of the lords, the clergy and cities in a monarchy,
and you will soon have a popular state, or else a despotic government.
The courts of a considerable kingdom in Europe have, for many ages, been
striking at the patrimonial jurisdiction of the lords and clergy. We do
not pretend to censure these sage magistrates; but we leave it to the
public to judge how far this may alter the constitution. Far am I from
being prejudiced in favour of the privileges of the clergy; however, I
should be glad if their jurisdiction were once fixed. The question is not
whether their jurisdiction was justly established; but whether it be
really established; whether it constitutes a part of the laws of the
country, and is in every respect in relation to those laws: whether
between two powers acknowledged independent, the conditions ought not to
be reciprocal; and whether it be not equally the duty of a good subject to
defend the prerogative of the prince, and to maintain the limits which
from time immemorial have been prescribed to his authority.
Though the ecclesiastic power be so dangerous in a republic, yet it is
extremely proper in a monarchy, especially of the absolute kind. What
would become of Spain and Portugal, since the subversion of their laws,
were it not for this only barrier against the incursions of arbitrary
power? A barrier ever useful when there is no other: for since a despotic
government is productive of the most dreadful calamities to human nature,
the very evil that restrains it is beneficial to the subject.
In the same manner as the ocean, threatening to overflow the whole
earth, is stopped by weeds and pebbles that lie scattered along the shore,
so monarchs, whose power seems unbounded, are restrained by the smallest
obstacles, and suffer their natural pride to be subdued by supplication
The English, to favour their liberty, have abolished all the
intermediate powers of which their monarchy was composed. They have a
great deal of reason to be jealous of this liberty; were they ever to be
so unhappy as to lose it, they would be one of the most servile nations
Mr. Law, through ignorance both of a republican and monarchical
constitution, was one of the greatest promoters of absolute power ever
known in Europe. Besides the violent and extraordinary changes owing to
his direction, he would fain suppress all the intermediate ranks, and
abolish the political communities. He was dissolving25
the monarchy by his chimerical reimbursements, and seemed as if he even
wanted to redeem the constitution.
It is not enough to have intermediate powers in a monarchy; there must
be also a depositary of the laws. This depositary can only be the judges
of the supreme courts of justice, who promulgate the new laws, and revive
the obsolete. The natural ignorance of the nobility, their indolence and
contempt of civil government, require that there should be a body invested
with the power of reviving and executing the laws, which would be
otherwise buried in oblivion. The prince's council are not a proper
depositary. They are naturally the depositary of the momentary will of the
prince, and not of the fundamental laws. Besides, the prince's council is
continually changing; it is neither permanent nor numerous; neither has it
a sufficient share of the confidence of the people; consequently it is
capable of setting them right in difficult conjunctures, or of reducing
them to proper obedience.
Despotic governments, where there are no fundamental laws, have no such
kind of depositary. Hence it is that religion has generally so much
influence in those countries, because it forms a kind of permanent
depositary; and if this cannot be said of religion, it may of the customs
that are respected instead of laws.
5. Of the Laws in relation to the Nature of a
despotic Government. From the nature of despotic power it follows that
the single person, invested with this power, commits the execution of it
also to a single person. A man whom his senses continually inform that he
himself is everything and that his subjects are nothing, is naturally
lazy, voluptuous, and ignorant. In consequence of this, he neglects the
management of public affairs. But were he to commit the administration to
many, there would be continual disputes among them; each would form
intrigues to be his first slave; and he would be obliged to take the reins
into his own hands. It is, therefore, more natural for him to resign it to
a vizir,26 and to invest him with
the same power as himself. The creation of a vizir is a fundamental law of
It is related of a pope that he had started an infinite number of
difficulties against his election, from a thorough conviction of his
incapacity. At length he was prevailed on to accept of the pontificate,
and resigned the administration entirely to his nephew. He was soon struck
with surprise, and said, "I should never have thought that these
things were so easy." The same may be said of the princes of the
East, who, being educated in a prison where eunuchs corrupt their hearts
and debase their understandings, and where they are frequently kept
ignorant even of their high rank, when drawn forth in order to be placed
on the throne, are at first confounded: but as soon as they have chosen a
vizir, and abandoned themselves in their seraglio to the most brutal
passions; pursuing, in the midst of a prostituted court, every capricious
extravagance, they would never have dreamed that they could find matters
The more extensive the empire, the larger the seraglio; and consequently
the more voluptuous the prince. Hence the more nations such a sovereign
has to rule, the less he attends to the cares of government; the more
important his affairs, the less he makes them the subject of his
1. Compare Aristotle, Politics,
2. Declamations, 17, 18.
3. See the Considerations on the
Causes of the Grandeur and Decline of the Romans, 9.
4. Pp. 691, 693, ed. Wechel, 1596.
5. Bk. i.
6. Bk. iv, art. 15 et seq.
7. See in the Considerations on
the Causes of the Grandeur and Decline of the Romans, 9, how this
spirit of Servius Tullius was preserved in the republic.
8. Dionysius Halicarnassus, Eulogium
of Isocrates, ii, p. 97, ed. Wechel. Pollux, viii. 10, art. 130.
9. See Aristotle's Politics,
10. Ibid, iv. 9.
11. See the oration of Demosthenes,
De Falsa legat., and the oration against Timarchus.
12. They used even to draw two
tickets for each place, one which gave the place, and the other which
named the person who was to succeed, in case the first was rejected.
13. De Leg., i, iii.
14. They were called leges
tabulares; two tablets were presented to each citizen, the first
marked with an A, for Antique, or I forbid it; and
the other with an U and an R, for Uti rogas, or
Be it as you desire.
15. At Athens the people used to lift
up their hands.
16. As at Venice.
17. The thirty tyrants at Athens
ordered the suffrages of the Areopagites to be public, in order to
manage them as they pleased. — Lysias, Orat. contra Agorat.
18. See Dionysius Halicarnassus, iv,
19. See Mr. Addison, Travels to
Italy, p. 16.
20. They were named at first by the
21. This is what ruined the republic
of Rome. See Considerations on the Causes of the Grandeur and Decline
of the Romans, 14, 16.
22. Tournefort, Voyages.
23. At Lucca the magistrates are
chosen only for two months.
24. Diodorus, xviii, p. 601, ed.
25. Ferdinand, king of Aragon, made
himself grand master of the orders, and that alone changed the
26. The Eastern kings are never
without vizirs, says Sir John Chardin.
Next | Previous
| Text Version | Contents
| Liberty Library |