Chapter 5

In what Governments the Sovereign may be Judge

by Montesquieu Icon

MACHIAVEL says that:

  • Florence lost its liberty because its people did not judge cases of high-treason as a body, as was customary at Rome.
  • Instead, they had 8 judges.
    • those few are corrupted by a few.

I agree to his maxim.

When a few people decide, the political interest prevails over the civil because it is always inconvenient for the people to be judges in their own cause.

In order to remedy this evil, the laws must provide as much as possible for the security of individuals.

With this view, the Roman legislators did two things:

  1. They gave the persons accused permission to banish themselves before sentence was pronounced
  2. They ordained, that the goods of those who were condemned should be sacred, to prevent their being confiscated to the people.

In Book 11, the other limitations that were set to the judicatory power residing in the people.

Solon knew how to prevent the abuse which the people might commit in criminal judgements.

He ordained that the court of Areopagus should re-examine the affair.

  • If they believed the party accused was unjustly acquitted, they should impeach him again before the people.
  • If they believed him unjustly condemned, they should prevent the execution of the sentence, and make them re-judge the proceeding.

This is an admirable law that subjected the people to the censure of the magistracy which they most revered, and even to their own!

In this scheme, it is always proper to throw in some delays especially when the party accused is in jail so that the people may grow calm and give their judgement coolly.

In despotic governments, the prince himself may be judge. But in monarchies, this cannot be. The constitution by such means would be subverted, and the dependent intermediate powers annihilated.

All set forms of judgement would cease; fear would take possession of the people’s minds, and paleness spread itself over every countenance= the more confidence, honour, affection, and security, in the subject, the more extended is the power of the monarch.

In monarchies, the prince is the party that prosecutes the person accused, and causes him to be punished or acquitted; now, were he himself to sit upon the trial, he would be both judge and party.

In this government the prince has frequently the benefit of confiscation; so that here again, by determining criminal causes, he would be both judge and party.

Farther, by this method, he would deprive himself of the most glorious attribute of sovereignty, namely, that of granting pardon*; for it would be quite ridiculous of him to make and unmake his decisions= surely, he would not choose to contradict himself.

Besides, this would be confounding all ideas; it would be impossible to tell whether a man was acquitted or received his pardon.

Lewis 13th being desirous to sit in judgement upon the trial of the duke ae la Valette†, sent for some [101] members of the parliament and of the privy-council to debate the matter.

The president de Believre was ordered by the king to give their opinion on the warrant for his arrest. He said:

He found it very strange that a prince should pass sentence on a subject, that kings had reserved to themselves the power of pardoning, and left that of condemning to their officers, that his majesty wanted to see before him at the bar a person, who, by his decision, was to be hurried away into the other world, that the prince’s countenance should inspire with hopes, and not confound with fears= that his presence alone removed ecclesiastic censures= and that subjects ought not to go away dissatisfied from the sovereign.

When sentence was passed, the same magistrate declared, “This is an unprecedented judgement; to see, contrary to the example of past ages, a king of France, in the quality of a judge, condemning a gentleman to death‡.”

Again, sentences passed by the prince would be an inexhaustible source of injustice and abuse; the courtiers, by their importunity, would always be able to extort his decisions. Some Roman emperors were so mad as to sit as judges themselves; the consequence was, that no reigns ever so surprized the world with oppression and injustice.

Tacitus says:

Claudius, having appropriated to himself the determination of law suits and the function of magistrates, gave occasion to all manner of rapine.”

Nero succeeded Claudius and tried to conciliate the people by declaring that he would take care not to be judge himself in private causes, that the parties might not be exposed, within the walls of a palace, to the iniquitous influence of a few freedmen.

Zozimus says:

Under the reign of Arcadius, a swarm of calumniators spread themselves on every side, and infected the court. Upon a person’s decease, it was immediately supposed he had left no children and, in consequence of this, his property was given away by a recript. For, as the prince was surprizingly stupid, and the empress excessively enterprizing, she was a slave to the insatiable avarice of her domestics and confidents; insomuch, that, to an honest man, nothing could be more desirable than death.

Procopius says:

There used to be very few people at court; but, in Justinian’s reign, as the judges had no longer the liberty of administering justice, their tribunals were deserted, while the prince’s palace resounded with the litigious clamours of the several parties.

Everybody knows what a prostitution there was of public judgements, and even of the very laws themselves, at the emperor’s court.

The laws are the eye of the prince; by them he sees what would otherwise escape his observation. Should he attempt the function of a judge, he would not then labour for himself, but for impostors, whose aim is to deceive him.


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