Montesquieu
 

VI.3 In which governments, and in which cases, one must judge according to a precise text of the law

The clo­ser the govern­ment comes to being a repu­blic, the more fixed beco­mes the man­ner of jud­ging ; and it was a vice of the repu­blic of Lacedæmon that the Ephors jud­ged arbi­tra­rily without laws to guide them. In Rome, the first consuls jud­ged the way the Ephors did ; they per­cei­ved the disad­van­ta­ges of that situa­tion and made some pre­cise laws.

In des­po­tic sta­tes, there is no law : the judge is his own rule. In monar­chi­cal sta­tes, there is a law, and where it is pre­cise the judge fol­lows it ; where it is not, he tries to find its spi­rit. In repu­bli­can govern­ment, it is in the nature of the cons­ti­tu­tion for jud­ges to fol­low the let­ter of the law. There is no citi­zen against whom a law can be inter­pre­ted when his pro­perty, his honor, or his life are at stake.

In Rome, jud­ges pro­noun­ced only that the accu­sed was guilty of a cer­tain crime, and the penalty was found in the law, as we see in various laws that were made. In England, jurors decide whe­ther the fact which has been brought before them is pro­ven or not ; and if it is, the judge pro­noun­ces the penalty which the law impo­ses for that deed : and for that he needs only his eyes.