The Justice System

[38] With regard to the number of judges, however, a consideration of this kind of constitution does not demand any special figure; but, as in the case of monarchy, it is of prime importance to see that the judges are too numerous to be corrupted by a private person.

For their duty is simply to ensure that no private person does wrong to another, and so to settle disputes between private persons, patricians as well as commoners, and to exact punishment from offenders, even from patricians, syndics, and senators insofar as these have offended against the laws by which all are bound. As for disputes which may arise between cities within the state, these are to be decided in the supreme council.

[ 39] Furthermore, the consideration that regulates the term of their appointment is the same in every state, as is also the requirement that a certain proportion should retire every year.

Finally, although there is no need for each of them to come from a different clan, yet it is necessary that no two near kinsmen should sit on the bench together.

This rule should apply to all other councils except for the supreme council, where it is enough if only it is provided by law that no one may nominate a kinsman at elections or vote in his case ifhe is nominated by another, and also that no two kinsmen may draw lots for any minister of state to be nominated. 51

This, I say, suffices in the case of a council composed of so large a

number of men and for which no special emoluments are assigned. Thus no harm will accrue to the state from the above arrangements, so that it is absurd to pass a law excluding all kinsmen of patricians from the council, as we mentioned in Section 14 of this Chapter.

Its absurdity is manifest, for the enactment of such a law by the patricians would be bound to enta il an absolute surrender of their right by them all, and therefore the partisans of that same law would be not the patricians but the commons.

This would be in flat contradiction with our conclusions in Sections 5 and 6 of this Chapter. But the constitutional law52 requiring that a constant ratio be maintained between the number of patricians and people has for its main object to preserve the right and power of the patricians, ensuring that they are not too few to be capable of governing the people.

[40] However, judges are to be appointed by the supreme council from the patricians, that is (by Section 17 of this Chapter), from the lawmakers themselves.

Their judgments in both civil and criminal cases shall be valid if pronounced in proper order and without partiality. On th is subject the syndics shall be authorised by law to make enquiry, to judge, and to reach decisions. 53

[41] The remuneration of judges should be the same as stated in Section 29, Chapter 6, namely, that for every judgment they make in civil cases they should receive from the losing party a certain proportion of the total sum involved. With regard to judgments made in criminal cases, the only difference here should be that goods confiscated and fines exacted for minor offences should be assigned to them alone. But there should be this condition, that they are never allowed to exact confession by torture.

In this way they will be sufficiently deterred from treating the commons unfairly and from showing too much favour to patricians through fear. For avarice is quite enough to hold in check their fear, especially when avarice is cloaked under the specious title of justice.

Furthermore, the judges are numerous and do not vote openly, but by secret ballot, so that if anyone is indignant at losing his case, he cannot put the blame on any one person.

Respect for the syndics will restrain them from pronouncing an unjust, or at any rate an absurd, judgment and will prevent any single one of them from acting in bad faith; besides wh ich, the judges being so numerous, there will always be one or two of whom the unscrupulous will stand in awe.

The commons will have a sufficient safeguard if they are allowed to appeal to the syndics,54 who are authorised by law to make inquiry into judicial matters, to judge, and to make decisions.

The syndics will not be able to avoid the hatred of many ofthe patricians, whereas they will always be very popular with the commons, whose applause they will do all they can to win.

To this end, when given the opportunity, they will never fail to reverse judgments which violate the rules of the court and to scrutinise the conduct of any judge, punishing those who are at fault; for nothing makes a greater impression on the people than this. Nor is it a drawback, but rather a great advantage, that such examples can rarely occur.

For apart from the fact that a commonwealth must be ill-organised if it is continually making example of offenders (as we pointed out in Chapter 5, Section 2), it is of course the rarest events that achieve the widest publicity.

[42] Those who are sent as governors to cities or provinces should be of senatorial rank.

This is because it is the duty of senators to exercise supervision over the fortification of cities, the treasury, the armed forces, etc.

But those sent to govern distant regions would not be able to attend the senate. This is why only those appointed to cities on native soil should be chosen from the senate itself.

Those to be sent to more distant places should be appointed from men of senatorial-age.

These measures will not be enough to safeguard the peace of the entire state, that is, if neighbouring cities are altogether denied the right to vote, unless these are all so weak that they can be openly slighted-which is hardly likely.

So the neighbouring cities be granted citizenship. From each city, 20-40 chosen citizens should be added to the roll of patricians.

This number would vary with the city’s size.

Of these, 3-5 must be appointed every year to serve on the senate and one to serve as a syndic for life.

Those who are senators are to be sent, together with the syndic, as govemors of the city from which they were appointed.

[43] The judges to be appointed in each city should also be drawn from the patricians of the same city. But since these matters do not have reference to the fundamental laws of this state in particular, I do not think it necessary to discuss them at greater length.

[44] The secretaries and similar officials in any councils, since they do not have the right to vote, should be appointed from the commons.

But since, through their long experience of handling affairs, these men are thoroughly conversant with the way business is transacted, it is often the case that more deference than is proper is shown to their advice and that the condition of the entire state depends largely on their guidance, which has been the ruin of the Dutch.55

For this situation is bound to arouse much jealousy among many of the nobles. And we surely cannot doubt that a senate whose policy derives from the advice not of senators but of officials will be attended mostly by those who are lacking in energy, and the condition of such a state will be little better than that of a monarchy ruled by a few king’s counsellors; for which see Chapter 6, Sections 5, 6, and 7.

However, a state will be exposed to this evil to a greater or lesser degree according as it has been well- or ill-founded.

For if the freedom of a state is not based on a sufficiently secure foundation, it is never defended without danger; and to avoid incurring this risk, patricians choose as ministers ambitious men from the commons who, when the situation later takes a different tum, are slaughtered like sacrificial animals to appease the wrath of those who are enemies to freedom % But where freedom has a sufficiently secure foundation, patricians are eager to claim for themselves the glory of safeguarding it, and they are anxious to ensure that good policy in the conduct of affairs derives only from their advice. In laying the foundations of the state it is these two rules that we have particularly followed, namely, that the commons should be debarred both from giving advice and from voting (see Sections 3 and 4 of this Chapter); and so sovereignty should be vested in the whole body of patricians,57 authority in the syndics and the senate, and the right to summon the senate, to bring forward, discuss, and deal with matters pertaining to the public welfare should lie with consuls appointed from the senate. And if it is also ordained that the secretary to the senate or to the other councils be appointed for four or five years at the most, with the addition of an assistant secretary appointed for the same period to lighten his load, or alternatively that there should be not one but several secretaries to the senate employed in different departments, it will never come about that the influence58 of officials could be of any importance.

[45] Treasurers are likewise to be appointed from the commons, to be accountable not only to the senate but also to the syndics.

[46] With regard to religion , we have set forth our views at sufficient length in the Tractatus theologico-politicus.

However, we omitted some points, the discussion of which was not there appropriate, to wit, that all patricians should be of the same religion, a very simple religion of a most universal nature as described in that treatise. 59

For it is of the first importance to guard against the patricians’ being spl it into sects, showing favour some to this group, some to that, and furthermore against becoming victims to superstition, seeking to deprive their subjects of the freedom to say what they think.

Secondly, although everyone should be granted freedom to say what he thinks,60 large congregations should be forbidden, and so, while those who are attached to another religion are to be allowed to build as many churches as they wish, these are to be small, of some fixed dimensions, and some distance apart.

But it is important that churches dedicated to the national religion should be large and costly, and that only patricians or senators should be permitted to administer its chief rites. Thus only patricians should be permitted to baptise, to solemnise marriages, to lay on hands; quite simply, they alone should be acknowledged as ministers of the churches and as guardians and interpreters of the national religion. But for preaching and for managing the church’s finances and everyday business, some commoners should be appointed by the senate to act as the senate’s deputies and therefore to be accountable to it for all their actions.

[47] Here are the less essential measures, but still important.

Patricians should appear in public distinguished by a particular style of clothing or dress and should be saluted by some special title, and all commoners should give way to them. If any patrician loses his possessions by some unavoidable misfortune and can prove this beyond any doubt, he should be reinstated in his former position from public funds.

But if it is established that he has wasted his fortune through extravagance, luxurious living, gaming, debauchery, and so forth, or that he is hopelessly insolvent, he should lose his status and be regarded as unfit for any office or honour. For he who cannot manage himself and his private affairs will far less be capable of caring for the public interest.

[48] Those whom the law requires to take an oath will be much more concerned to avoid perjury if they are bidden to swear by the welfare and freedom of their native land and by its supreme council than if they are bidden to swear by God.

For he who swears by God puts at stake a private good of which he alone knows the value,62 but he who by his oath puts at stake the freedom and welfare of his country is swearing by the common good of all, the value of which is not set by him, and if he perjures himself, he thereby declares himself an enemy to his country.

[49] Academies founded at public expense are established not so much to encourage natural talents as to restrain them.

But in a free commonwealth, arts and sciences will be best fostered if anyone who asks leave is allowed to teach publicly at his own expense and with his own reputation at risk 6! But these and similar topics I reserve for another occasion, for my intention here has been to confine myself to matters relating only to aristocratic government.