Montesquieu
 

VI.1 On the simplicity of civil laws under the various governments

The monar­chi­cal govern­ment does not entail laws as sim­ple as the des­po­tic ; it requi­res tri­bu­nals. These tri­bu­nals hand down deci­sions : they must be pre­ser­ved and they must be lear­ned so that today’s judg­ment will be like yes­ter­day’s, and so the pro­perty and lives of the citi­zens will be as assu­red and fixed as the cons­ti­tu­tion itself of the state.

In a monar­chy, the admi­nis­tra­tion of a jus­tice which deci­des not only nat­ters if life and pos­ses­sions, but also of honor, requi­res scru­pu­lous research. The sen­si­ti­vity of the judge increa­ses as he holds a grea­ter trust and pro­noun­ces on grea­ter inte­rests.

Therefore one should not be sur­pri­sed to find so many rules, res­tric­tions, and exten­sions in the laws of these sta­tes, which mul­ti­ply the indi­vi­dual cases and seem to make an art of rea­son itself.

The dif­fe­rence of rank, ori­gin, and sta­tion which is esta­bli­shed in the monar­chi­cal govern­ment often entails dis­tinc­tions in the nature of pro­perty, and laws rela­tive to the cons­ti­tu­tion of that state can increase the num­ber of such dis­tinc­tions. Thus, in France, pro­per­ties are per­so­nal, prior legacy, or com­mu­nal acqui­si­tions, acqui­red by dowry, hol­dings of the wife, pater­nal and mater­nal ; movea­ble items of seve­ral kinds : free, sub­sti­tu­ted, family heir­looms or not ; noble or com­mon fief­doms, annui­ties on land or contrac­ted for a sum of money. Each kind of pro­perty is sub­ject to par­ti­cu­lar rules ; they must be fol­lo­wed in order to dis­pose of them, which fur­ther redu­ces sim­pli­city.

In our govern­ments, fiefs have become here­di­tary. The nobi­lity had to pos­sess a cer­tain amount of pro­perty, in other words the fief had to have a cer­tain sub­stance, so the owner of the fief would be in a posi­tion to serve the prince. . That was bound to pro­duce many varie­ties : for exam­ple, there are coun­tries where fiefs could not be divi­ded bet­ween bro­thers ; in others, the youn­ger bro­thers were able to have their sub­sis­tence with more land.

The monarch who is fami­liar with each of his pro­vin­ces can esta­blish various laws or tole­rate dif­fe­rent cus­toms. But the des­pot is fami­liar with nothing, and can­not keep an eye on any­thing ; he must have a gene­ral approach ; he governs with a rigid will which is eve­ryw­here the same ; eve­ry­thing beco­mes level under his feet.

As the judg­ments of tri­bu­nals mul­ti­ply in monar­chies, juris­pru­dence takes over deci­sions, which some­ti­mes contra­dict each other, either because suc­ces­sive jud­ges think dif­fe­rently, or because the same cau­ses are some­ti­mes well and some­ti­mes badly defen­ded, or finally because of innu­me­ra­ble abu­ses that slip into eve­ry­thing that pas­ses through human hands. It is a neces­sary evil which the legis­la­tor cor­rects from time to time even as contrary to the spi­rit of mode­rate govern­ments. For when one is obli­ged to have recourse to tri­bu­nals, that must result from the nature of the cons­ti­tu­tion, and not from the contra­dic­tions and uncer­tainty of the laws.

In govern­ments where there are neces­sa­rily dis­tinc­tions of per­sons, there must be pri­vi­le­ges. This fur­ther dimi­ni­shes sim­pli­city and makes for a thou­sand excep­tions.

One of the pri­vi­le­ges least one­rous to society, and espe­cially to the per­son who grants it, is to plead before one court rather than ano­ther. Hence more dis­pu­tes, that is, those over the court before which to plead.

The peo­ples of des­po­tic sta­tes are in a very dif­fe­rent situa­tion. I do not know on what, in such a coun­try, the legis­la­tor could decide or the magis­trate judge. From the fact that the lands belong to the prince it fol­lows that there are almost no civil laws over owner­ship of lands. It fol­lows from the sove­reign’s right to inhe­rit that there also are no dis­pu­tes over lega­cies either. In some coun­tries, his exclu­sive right to engage in trade obvia­tes all sorts of laws on com­merce. Because of mar­ria­ges contrac­ted with slave girls, there are scar­cely any civil laws over dowries and over the spe­cial por­tions of wives. A fur­ther result of this pro­di­gious mul­ti­tude of sla­ves is that there are very few who have a will of their own, and who conse­quently must ans­wer for their conduct before a judge. Most moral acts which are but the deci­sions of the father, the hus­band, or the mas­ter, are deci­ded by them and not by magis­tra­tes.

I neglec­ted to say that since what we call honor is scar­cely known in those sta­tes, none of the cases that involve such honor, which is such an impor­tant mat­ter to us, can arise there. Despotism is self-suf­fi­cient ; all around it is void. So it is that when tra­ve­lers des­cribe to us the coun­tries where it rei­gns, they rarely have any­thing to tell us about civil laws.1

All oppor­tu­ni­ties for dis­pu­tes and law­suits are thus sup­pres­sed. That is in part why liti­gants are so badly trea­ted there : the injus­tice of their demand seems patent, not being hid­den, hed­ged, or pro­tec­ted by an infi­nite num­ber of laws.

In Machilipatnam it has not been ascertained whether there is any positive law. See Recueil des Voyages qui ont servi à l’établissement de la Compagnie des Indes, vol. IV, part I, p. 391. In judgments, the Indians go only by certain customs. The Vedas and other such books contain no civil laws, but religious precepts. See Lettres édifiantes et curieuses, 14th volume.