Chap. XIX.... Of legislators.

Montesquieu here confounds legislators, with political writers who have proposed systems of legislation.

Is it certain that Aristotle had so marked an intention of contradicting Plato? What we know of the Grecian republics gives us reason to believe that their legislation was very imperfect in some respects, and particularly that it was very complicated. The more simple the legislation of a state is, the better it will be governed.

What has Cæsar Borgia to do with legislation? The discourse of Machiavel on Titus Livius, and his history of Florence, contain many political views which announce, when we take into consideration the age in which Machiavel lived, a comprehensive and profound mind; but he certainly never dreamt of Cæsar Borgia in writing them. The book entitled, The Prince, the life of Castracani, &c. are works in which Machiavel explains how a rascal may conduct himself in order to rob, murder, and so forth, with impunity. Cæsar Borgia was for some time thought to be an adept of this kind; but there is in this no question involving principles of legislation.

Why has not Montesquieu counted Locke among the number of legislators? Is it because he thought the laws of Carolina too simple?

Were it permitted us to offer a few ideas here, on the subjects of this book, we should, in the first place, distinguish the case wherein it was in agitation to give a new legislation to a people; that wherein laws are only passed on a branch more or less extensive of legislation; and where the law has only a particular object.

In the first case, it is a necessary preliminary to fix the object on which the legislator should act.... These objects are: 1. The laws which relate to the defence of the rights of the citizen against violence and fraud: these are the criminal laws. 2. The laws of the police or civil administration; they are divided into two classes; some determine the sacrifices which each citizen may be obliged to make of his liberty for the maintenance of order and public tranquillity. It is a genuine right that man acquires by living in society, and consequently it is not unjust that individuals should make some sacrifices of a part of their liberty to secure it.

The second kind of laws of police, are those which regulate our enjoyments as to things that are public, such as roads, streets, &c.

Thirdly, the civil laws may be divided into five kinds; those which determine what should belong to possessions, as the laws of succession; &c.

Those which regulate the means of acquiring property, as the laws on sales and purchases; those which regulate the exercise of the right of possession in cases where the entrance upon possession was obstructed; those which secure possession, as in cases of mortgages closed, or debts due; those, in short, which affect the condition of individuals.

On all these objects, laws of two kinds are required, the first are such as determine the principles upon which each question should be investigated and decided: the other the forms of decision.

Fourthly, political laws, which regulate.... l. The exercise of the right of legislation. 2. The mode of employing the public force for defence against internal attack. 3. The means of executing the laws internally. 4. The manner of treating with foreigners on behalf of the nation. 5. The public expenditures. 6. Public resources to defray expenditures.

We shall not speak of the laws that relate to commerce, because it should be free, and requires no other laws than those which protect property.

Then, on every subject all the particular questions which present themselves, should be reduced to general and simple propositions, and to as small a number as is consistent with efficacy; then a particular enquiry should be made into each, in order to determine.

First: if they should be established by a law. Second: whether, according to the principles of justice, reason does not furnish an answer to the proposition.

If reason furnishes a principle, it should be followed; if not, the course most congenial with public utility, should be pursued.

It is not sufficient that the laws thus framed be clear, they should be couched in language the most simple and precise, and in words of a determinate and known signification; and whenever words of questionable construction are used, they should not be suffered to pass without a definite and scrupulous explanation.

As every legislator may be deceived, the motive for instituting the law should accompany it. This course is necessary in order to attach those who are subject to them, to the laws, and for the information of those who execute them; in short, to prevent pernicious changes, and to facilitate changes that are useful. But the explanation of the motive should be detached from the law, as in a mathematical book, the demonstration is separated from the proposition, and even the work containing them. A law is nothing more than this proposition.... it is just or reasonable.... according to the text of the law.

If desirous only of giving a particular branch of legislation, care should be taken to define, with great exactness, the limits beyond which it should not pass; after having regulated it according to reason and justice, to examine whether it contains any thing contrary to any established law, and carefully to discover all such errors, as the roots of those evils which it is the best interest of society to eradicate. However, it would be better to have a good law, in contradiction to a bad one, which could not be destroyed, than to suffer the bad one to remain alone.

When desirous of being convinced that a particular law is good, it should be examined, but not alone; it should be taken in connexion with all the laws that enter into a good system for the branch of legislation to which it belongs and with its actual situation; it may then be discovered either that the laws we are desirous of making, should enter into and make part of a system, or that they are only useful or necessary by being opposed to the injustice which may result from laws already established, and which cannot otherwise be changed.

In the first case, we should conform ourselves to positive justice: in the second, to relative justice; in the first.... the law should be presented as a true law; in the second.... as a modification of the bad law for which it is a remedy. The more particular the object of a law is, the more important it is for the legislator to explain his motives. It is much more easy to understand the general spirit of legislation, or a branch of it, than a particular law.

It would be well to regulate, in a general legislature, the means by which the laws are to be reformed, from which abuses result, without being obliged to wait for the excess of abuses, which usually makes the necessity evident, by the calamity that has been produced.

There are laws which should appear to the legislator as formed for perpetuity: there are others, which should be considered as only temporary. These two descriptions of laws should be classed and distinguished in the compilation of the laws.

For example.... the law which declares that taxes, should always be established in proportion to the clear product of the land, may be considered as a law founded on the nature of things; but the law which fixes the manner of estimating the produce, may require to be changed, because it is possible to render the method more perfect.

It is yet more important to distinguish the laws which are only temporary. The chancellor de l'Hopital, in an edict of pacification, condemned to death any one who should break an image. It is very evident, that this too rigorous law, had only for its object, to prevent such irregularities as might tend to rekindle the civil war; yet it was in virtue of this law, interpreted as perpetual against all reason, that the parliament of Paris had the barbarity to condemn the chevalier de Labarre. Even if the law were just, it should have been declared that it was to expire after a certain number of years, unless the continuation of the troubles should require it to be renewed.

What Montesquieu says, chap. 16, on the emission of money, is not sufficient; not only their valuation should be specific, but the intrinsic value also, should be determined; but this real value should be sufficient, whether in metallic value, or in other goods; as for example.... according to the mean price of bread in Europe, and of rice in Asia: because the article forming the principal and habitual nourishment of the people, is the only one of which the value can be considered as constant; but if the manner of living should change, the principle of valuation should also change, and a new measure of valuation be established.

We have said there are things which should be valued in metal; such is the interest of a sum of money lent, which should always be some part of a known weight; such is the interest of the purchase money of a house, or furniture, and the like; while the interest of the purchase money of land, should be valued in produce.

Laws should be composed according to a systematic order, so that it may be easy to comprehend them all, and follow each of the details.

This is the only method by which it can be discovered whether there are not contradictions or omissions, or if the questions which present themselves in the sequel have been proved or not.

This is the only means of clearly discovering when a reform is necessary, or on what part of the old law it should act, and then the reform ought to be so conducted, that without altering the unity of the system of laws, it may substitute the new law for that which is to be made the object of reform.

These reflections are simple; they contain only a small number of the principles which should enter into the composition of a work, on the manner of instituting laws; they are necessary; but Montesquieu has not thought it worth his while to employ his time upon them.