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CHAP. XVI.: Things to be observed in the composing of Laws. - Charles Louis de Secondat, Baron de Montesquieu, Complete Works, vol. 2 The Spirit of Laws [1748]

Edition used:

The Complete Works of M. de Montesquieu (London: T. Evans, 1777), 4 vols. Vol. 2.

Part of: Complete Works of Montesquieu, 4 vols.

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CHAP. XVI.

Things to be observed in the composing of Laws.

THEY who have a genius sufficient to enable them to give laws to their own, or to another nation, ought to be particularly attentive to the manner of forming them.

The stile ought to be concise. The laws of the twelve tables are a model of conciseness; the very children† used to learn them by heart. Justinian’s Novellæ were so very diffused, that they were obliged to abridge them‡ .

The stile should also be plain and simple; a direct expression being better understood than an indirect one. There is no majesty at all in the laws of the lower empire; princes are made to speak like rhetoricians. When the stile of laws is tumid, they are looked upon only as a work of parade and ostentation.

It is an essential article that the words of the laws should excite in every body the same ideas. Cardinal Richlieu* agreed, that a minister might be accused before the king; but he would have the accuser punished, if the facts he proved were not matters of moment. This was enough to hinder people from telling any truth whatsoever against the minister; because a matter of moment is entirely relative, and what may be of moment to one is not so to another.

The law of Honorius punished with death any person that purchased a freed-man as a slave, or that † gave him molestation. He should not have made use of so vague an expression; the molestation given to a man, depends entirely on the degree of his sensibility.

When the law would fix a set rate upon things, it should avoid as much as possible the estimating it in money. The value of money changes from a thousand causes, and the same denomination continues without the same thing. Every one knows the story of that impudent‡ fellow at Rome, who used to give those he met a box on the ear, and afterwards tendered them the five and twenty pence of the law of the twelve tables.

When the law has once fixed the idea of things, it should never return to vague expressions. The ordinance of Lewis XIV.∥ concerning criminal matters after an exact enumeration of the cause in which the king is immediately concerned, adds these words, “and those which in all times have been subject to the determination of the king’s judges; this renders the thing again arbitrary, after it had been fixed.

Charles VII.* says, he has been informed that the parties appeal three, four, and six months after judgment, contrary to the custom of the kingdom in the country governed by custom: he therefore ordains, that they shall appeal forthwith, unless there happens to be some fraud or deceit in the attorney† , or unless there be a great or evident cause to sue the appeal. The end of this law destroys the beginning, and it destroys it so effectually, that they used afterwards to appeal during the space of thirty years‡ .

The law of the Lombards∥ does not allow a woman that has taken a religious habit, though she has made no vow, to marry; because, says this law, “if a spouse who has been contracted to a woman only by a ring, cannot without guilt be married to another; for a much stronger reason the spouse of God or of the blessed virgin”. . . . . Now I say, that in laws the arguments should be drawn from one reality to another, and not from reality to figure, or from figure to reality.

A law enacted by Constantine§ , ordains, that the single testimony of a bishop should be sufficient, without listening to any other witnesses. This prince took a very short method; he judged of affairs by persons, and of persons by dignities.

The laws ought not to be subtle; they are designed for people of common understanding; not as an art of logic, but as the plain reason of a father of a family.

When there is no necessity for exceptions and limitations in a law, it is much better to omit them: details of that kind throw people into new details.

No alteration should be made in a law without sufficient reason. Justinian ordained, that a husband might be repudiated, and yet the wife not lose her portion, if for the space of* two years he had been incapable of consummating the marriage. He altered his law afterwards, and allowed the† poor wretch three years. But in a case of that nature, two years are as good as three, and three are not worth more than two.

When a legislator condescends to give the reason of his law, it ought to be worthy of its majesty. A Roman‡ law decrees, that a blind man is incapable to plead, because he cannot see the ornaments of the magistracy. So bad a reason must have been given on purpose, when such a number of good reasons were at hand.

Paul the civilian∥ says, that a child grows perfect in the seventh month, and that the proportion of Pythagoras’s numbers seems to prove it. It is very extraordinary that they should judge of those things by the proportion of Pythagoras’s numbers.

Some French lawyers have asserted, that when the king made an acquisition of a new country, the churches became subject to the regale, because the king’s crown is round. I shall not examine here into the king’s rights, or whether in this case the reason of the civil or ecclesiastic law ought to submit to that of the law of politics: I shall only say, that those august rights ought to be defended by grave maxims. Was there ever such a thing known, as the real rights of a dignity, founded on the figure of that dignity’s sign?

Davila* says, that Charles IX. was declared of age in the parliament of Roan at fourteen years commenced, because the laws require every moment of the time to be reckoned, in cases relating to the restitution and administration of an orphan’s estate: whereas it considers the year commenced as a year complete, when the case is concerning the acquisition of honours. I am very far from censuring a regulation which has been hitherto attended with no inconveniency; I shall only take notice that the reason alledged† is not the true one; it is false, that the government of a nation is only an honour.

In point of presumption, that of the law is far preferable to that of the man. The French law‡ considers every act of a merchant during the ten days preceding his bankruptcy as fraudulent: this is the presumption of the law. The Roman law inflicted punishments on the husband who kept his wife after she had been guilty of adultery, unless he was induced to do it through fear of the event of a law-suit, or through contempt of his own shame; this is the presumption of the man. The judge must have presumed the motives of the husband’s conduct, and must have determined a very obscure and ambiguous point: when the law presumes, it gives a fixed rule to the judge.

Plato’s law* , as I have observed already, required that a punishment should be inflicted on the person who killed himself not with a design of avoiding shame, but through pusillanimity. This law was so far defective, that in the only case in which it was impossible to draw from the criminal an acknowledgment of the motive upon which he had acted, it required the judge to determine concerning these motives.

As useless laws debilitate such as are necessary, so those that may be easily eluded, weaken the legislation. Every law ought to have its effect, and no one should be suffered to deviate from it by a particular exception.

The Falcidian law ordained among the Romans, that the heir should always have the fourth part of the inheritance: another law† suffered the testator to prohibit the heir from retaining this fourth part. This is making a jest of the laws. The Falcidian law became useless: for if the testator had a mind to favour his heir, the latter had no need of the Falcidian law; and if he did not intend to favour him, he forbad him to make use of it.

Care should be taken that the laws be worded in such a manner, as not to be contrary to the very nature of things. In the proscription of the prince of Orange, Philip II. promises to any man that will kill the prince, to give him, or his heirs, five and twenty thousand crowns, together with the title of nobility; and this upon the word of a king, and as a servant of God. To promise nobility for such an action! to ordain such an action in the quality of a servant of God! This is equally subversive of the ideas of honour, morality, and religion.

There very seldom happens to be a necessity of prohibiting a thing which is not bad, under pretence of some imaginary perfection.

There ought to be a certain simplicity and candor in the laws: made to punish the inquity of men, they themselves should be clad with the robes of innocence. We find in the law of the* Visigoths that ridiculous request, by which the Jews were obliged to eat every thing dressed with pork, provided they did not eat the pork itself. This was a very great cruelty; they were obliged to submit to a law, contrary to their own; and they were allowed to retain nothing more of their own, than what might serve as a mark to distinguish them.

[† ]Ut carmen necessarium, Cicero de legib. 2.

[‡ ]It is the work of Irnerius.

[* ]Political testament.

[† ]Aut qualibet manumissione donatum inquietare voluerit. Appendix to the Theodosian code in the first volume of father Sirmond’s works, p. 737.

[‡ ]Aulus Gellius, book xx. chap. 1.

[∥ ]We find in the verbal process of this ordinance the motives that determined him.

[* ]In his ordinance of Montel-les-tours in the year 1453.

[† ]They might punish the attorney, without there being any necessity of disturbing the public order.

[‡ ]The ordinance of the year 1667, has made some regulations upon this head.

[∥ ]Book 2. tit. 37.

[§ ]In father Sirmondus’s appendix to the Theodosian code, tom. 1.

[* ]Leg. 1. code de repudiis.

[† ]See the authentic Sed bodie, in the code de repudiis.

[‡ ]Leg. 1. ff. de postulando.

[∥ ]In his sentences, book iv. tit. 9.

[* ]Della guerra civile di Francia, page 96.

[† ]The Chancellor de l’Hospital, ibid.

[‡ ]It was made in the month of November, 1702.

[* ]Book ix. of laws.

[† ]It is the authentic, sed cum testater.

[* ]Book xii. tit. 2. sect. 16.