The Simplicity of civil Laws in different Governmentsby Montesquieu
MONARCHIES have more complex laws than despotic governments because monarchies need courts of judicature which decide on cases.
The decisions must be preserved and learnt so that:
- we may judge in the same manner to-day as yesterday
- the lives and property of the citizens may be as certain and fixed
In monarchies, the administration of justice decides:
- whatever belongs to life and property and
This creates the demand for very scrupulous enquiries. The judge’s delicacy increases in proportion to:
- the increase of his trust, and
- the importance of the interests on which he determines.
Thus, monarchies have so many rules, restrictions, and extensions that multiply the particular cases, and seem to make of reason itself an art.
The difference of rank, birth, and condition, established in monarchical governments, is frequently attended with distinctions in the nature of property.
The laws relative to the constitution of this government may augment the number of these distinctions.
Hence, among us French, goods are divided into:
- real estates, purchases, dowries, paraphernalia, paternal and maternal inheritances;
- moveables of different kinds;
- estates held in fee-simple or in tail;
- acquired by descent or conveyance;
- allodial, or held by soccage;
- ground-rents, or annuities.
Each sort of goods is subject to particular rules, which must be complied with in the disposal of them.
- These things reduce the simplicity of the laws.
In our governments, the fiefs have become hereditary.
It was necessary that the nobility should have a fixed property.
- The fief should have a certain consistency; to the end that the proprietor might be always in a capacity of serving the prince.
This must have been productive of great varieties.
For instance, there are countries where fiefs could not be divided among the brothers. In others, the younger brothers may be allowed a more generous subsistence.
The monarch knows each of his provinces. He may establish different laws, or tolerate different customs.
But the despotic prince knows nothing and can attend to nothing. He must take general measures, and govern by a rigid and inflexible will, which, throughout his whole dominions, produces the same effect= in short, every thing bends under his feet.
In proportion as the decisions of the courts of judicature are multiplied in monarchies, the law is loaded with decrees that sometimes contradict one another; either because succeeding judges are of a different way of thinking, or because the same causes are sometimes well, and at other times ill, defended; or, in fine, by reason of an infinite number of abuses, to which all human regulations are liable.
This is a necessary evil, which the legislator redresses from time to time.
It is contrary even to the spirit of moderate governments.
When people are obliged to have recourse to courts of judicature, this should come from the nature of the constitution, and not from the contradiction or uncertainty of the law.
In governments where there are necessary distinctions of persons there must likewise be privileges. This also diminishes the simplicity, and creates a thousand exceptions.
One of the privileges least burthensome to society, and especially to him who confers it, is that of pleading in one court preferably to another. Here new difficulties arise, when it becomes a question before which court we shall plead.
Far different is the case of the people under despotic governments.
In those countries, I can see nothing that the legislator is able to decree, or the magistrate to judge. As the lands belong to the prince, it follows that there are scarce any civil laws in regard to landed property. From the right the sovereign has to successions it follows likewise that there are none relating to inheritances.
- establish monopolies for themselves in some countries
- These render all sorts of commercial laws quite useless.
- contract marriages with female slaves
- This is why there are scarce any civil laws relating to dowries, or to the particular advantage of married women.
From the prodigious multitude of slaves it follows likewise that there are very few who have any such thing as a will of their own, and of course are answerable for their conduct before a judge.
Most moral actions, that are only in consequence of a father’s, a husband’s, or a master’s, will, are regulated by them, and not by the magistrates.
“Honour” is a thing hardly known in those countries, the several difficulties relating to this article, though of such importance with us, are with them quite out of the question.
Despotic power is self-sufficient. There is an absolute vacuum around it.
This is why when travellers favour us with the description of countries where arbitrary sway prevails, they seldom make mention of civil laws.*
All occasions, therefore, of wrangling and lawsuits are here removed.
This is because litigious people in those countries are so roughly handled. The injustice of their demand is neither screened, palliated, nor protected by an infinite number of laws which are supposed to immediately discover it.