Montesquieu
 

VI.5 Under which governments the sovereign can be the judge

Machivelli attri­bu­tes Florence’s loss of free­dom to the fact that the peo­ple did not, as in Rome, judge as a body cri­mes of lese-majesty com­mit­ted against her.1 For that, eight jud­ges were esta­bli­shed. “But,” says Machiavelli, “few are cor­rup­ted by lit­tle.” I would willin­gly adopt the great man’s maxim. But in these cases, the poli­ti­cal inte­rest for­ces, so to speak, the civil inte­rest (for it is always a disad­van­tage for the peo­ple itself to judge its offen­ses) ; in order to cor­rect this the laws must, inso­far as they can, pro­vide for the secu­rity of indi­vi­duals.

With this in mind, the legis­la­tors of Rome did two things : they allo­wed the accu­sed to choose exile2 before the trial3 ; and they wan­ted the pro­perty of the condem­ned conse­cra­ted so the peo­ple would not be able to confis­cate it. We shall see in Book XI the other limi­ta­tions they put on the peo­ple’s autho­rity to judge.

Solon took good steps to anti­ci­pate the ways the peo­ple could abuse its autho­rity in jud­ging cri­mes ; he wan­ted the areo­pa­gus to review the case : if it found the accu­sed unjustly acquit­ted,4 it should charge him again before the peo­ple ; if it found him unjustly condem­ned,5 it should halt the exe­cu­tion and have the case retried. The admi­ra­ble law, which sub­jec­ted the peo­ple to the cen­sure of the magis­tracy it res­pec­ted the most, its very own !

It will be well to observe some deli­be­ra­te­ness in simi­lar mat­ters, espe­cially once the accu­sed is a pri­so­ner, so the peo­ple can calm down and judge dis­pas­sio­na­tely.

In des­po­tic sta­tes, the prince him­self can judge. In monar­chies he can­not : the cons­ti­tu­tion would be des­troyed, and the depen­dent inter­me­diary powers redu­ced to nothing ; all the for­ma­li­ties of judg­ments would be ended ; fear would invade eve­ryone’s mind, every face would blanch : no more confi­dence, no more honor, no more love, no more secu­rity, no more monar­chy.

Here are some other thoughts. In monar­chi­cal sta­tes, the prince is the party who pro­se­cu­tes the accu­sed and has them puni­shed or acquit­ted ; were he him­self to judge, he would be both judge and party.

In these same sta­tes, confis­ca­tions often go to the prince ; if he jud­ged the cri­mes, he would again be both judge and party.

In addi­tion, he would lose the finest attri­bute of his sove­rei­gnty, which is to par­don6 ; it would be absurd for him to make and then unmake his own ver­dicts : he would not wish to be in contra­dic­tion with him­self. That would, moreo­ver, throw eve­ry­thing into confu­sion ; no one would know whe­ther a man would be acquit­ted, or receive his par­don.

When Louis XIII wan­ted to be the judge in the trial of the Duke de la Valette,7 and for that pur­pose cal­led seve­ral offi­cers of the par­le­ment and seve­ral coun­sel­lors of state into his office, the king having for­ced them to opine on the arrest war­rant, President de Belièvre said that in this mat­ter he saw a strange thing : a prince expres­sing an opi­nion in the trial of one of his sub­jects ; that kings had reser­ved to them­sel­ves only par­dons, and dele­ga­ted condem­na­tions to their offi­cers, “and your Majesty would be willing to see a man on the stand before him who by his ver­dict would go in an hour to his death ?” That the face of the prince, who bears mercy, can­not bear this ; that the very sight of him lif­ted the of chur­ches ; that no one should leave the prince’s pre­sence unsa­tis­fied. When the case was jud­ged, this same pre­si­dent said, in his opi­nion : “This is a ver­dict without exam­ple, even contrary to every past exam­ple until this day, that a king of France has, as judge, with his opi­nion sen­ten­ced a gent­le­man to death.8

Verdicts han­ded down by the prince would be an end­less source of injus­ti­ces and abu­ses ; cour­tiers by dint of their impor­tu­ni­ties would extort his ver­dicts. Some Roman empe­rors had a pas­sion for jud­ging : no rei­gns more asto­ni­shed the world with their injus­ti­ces.

“Claudius,” says Tacitus, “having taken over the judg­ment of law­suits and the func­tions of the magis­tra­tes, made pos­si­ble all sorts of plun­der.”9 That is why Nero, acce­ding to the empire after Claudius, hoping to gain appro­val, decla­red that he would cer­tainly not be the judge of all cau­ses, so that accu­sers and accu­sed in the walls of a palace would not be expo­sed to the evil power of a few freed sla­ves.10

“Under the reign of Arcadius,” says Zosimus, “the nation of slan­de­rers spread, sur­roun­ding and infec­ting the court. When a man died, it was assu­med he had left no chil­dren,11 and his pro­perty was given away by a res­cript. For as the prince was stran­gely dull, and the empress overly enter­pri­sing, she ser­ved the insa­tia­ble ava­rice of her ser­vants and confi­dants, such that for mode­rate per­sons nothing was more desi­ra­ble than death.”12

“There were once,” says Procopius, “very few peo­ple at the court ; but under Justinian, as jud­ges were no lon­ger free to dis­pense jus­tice, their tri­bu­nals were aban­do­ned, whe­reas the prince’s palace echoed with the cla­mors of liti­ga­tors soli­ci­ting there for their cau­ses.”13 Everyone knows how judg­ments and even laws were sold there.

Laws are the eyes of the prince ; with them he sees what he could not see without them. If he wishes to exer­cise the func­tion of the tri­bu­nals, he is wor­king not for him­self, but for his betrayers against him­self.

Discourses on the First Ten Books of Livy, book I, ch. vii.

This is well explained in Cicero’s oration Pro Cæcina, at the end.

It was a law of Athens, as it appears from Demosthenes. Socrates refused to make use of it.

Demosthenes on the crown, p. 494, Frankfort edition of the year 1604.

See Philostratus, Lives of the Sophists, book I, life of Æschines.

Plato does not think that kings, who are, he says, priests, may attend trials that condemn to death, to exile, or to prison.

See the relation of the case made against the Duke de la Valette ; it is printed in the Mémoires de Montrésor [1723 ; Catalogue no. 3018], vol. II, p. 62.

It was later changed : see the same relation.

Annals, book XI.

Ibid., book XIII.

Same disorder under Theodosius the younger.

Historiæ, book V.

Anecdota sive historia arcana [’Anecdotes or secret history’].