Chap. XI.... How shall we be able to compare and judge between two laws.

For the principle asserted in this chapter to be true, a system of laws must be selected, in which there are some good and some bad; otherwise, it is more natural to judge of every law separately, to examine and discover whether it contains any thing repugnant to justice or to natural rights: if contrary thereto, it should be rejected; and in any case where it might have a local utility, it should be superseded by another law, calculated to produce the same utility, without violating justice.

In the example quoted, we should discover first, false testimony considered in itself as a crime, and false testimony considered only as an attempt against the life and honor of a citizen, and prove that it is only under this point of view that it is a crime: secondly, if I should be shewn that the law of France is not only not necessary, but that it is bad; not that it punishes as a capital crime and with death, the person who by false testimony has caused the death of an innocent person; but because it authorises the prosecution of any one, as a false witness, who, after an examination, should retract that to which, he had sworn, or whose false evidence should be discovered, so that consequently it is only a greater obstacle in the way of justification to an innocent person: thirdly, because it is difficult in England, to cause the death of an innocent person by false testimony; it does not follow, that we should not consider it as a capital crime, when ever it is committed.

So that not only the principle explained in this chapter is very uncertain, but the facts cited as illustrations, do not apply.

We cannot help being a little surprised that the disparity of fortune, the unjust and tyrannical refusal to admit justificatory facts in evidence, and the equivocal and perhaps too rigorous laws against false witnesses, should be held forth by Montesquieu, as forming a system of legislation, of which we should examine the whole: if this be intended as ridicule, it is not sufficiently pointed.