The natural impulse, or desire, which Hobbes attributes to mankind, of subduing one another, is far from being well founded.
The idea of empire and dominion is so complex, and depends on so many other notions, that it could never be the first which occurred to the human understanding. Next to a sense of his weakness, man would soon find that of his wants. Hence, another law of nature would prompt him to seek for nourishment. Fear, I have observed, would induce men to shun one another; but the marks of this fear, being reciprocal, Edition: current; Page: [ 6 ] would soon engage them to associate.
Besides, this association would quickly follow from the very pleasure one animal feels at the approach of another of the same species. Again, the attraction arising from the difference of sexes would enhance this pleasure, and the natural inclination they have for each other would form a third law. Beside the sense or instinct which man possesses in common with brutes, he has the advantage of acquired knowledge; and thence arises a second tie, which brutes have not.
Mankind have therefore a new motive of uniting, and a fourth law of nature results from the desire of living in society. AS soon as mankind enter into a state of society, they lose the sense of their weakness; equality ceases, and then commences the state of war. Each particular society begins to feel its strength; whence arises a state of war betwixt different nations. The individuals likewise of each society become sensible of their force: hence the principal advantages of this society they endeavour to convert to their own emolument; which constitutes a state of war betwixt individuals.
These two different kinds of states give rise to human laws. Considered as inhabitants of so great a planet, which necessarily contains a variety of nations, they have laws relative to their mutual intercourse, which is what we call the law of nations. As members of a society that must be properly supported, they have laws relative to the governors and the governed; and this we distinguish by the name of politic law.
They have also another sort of laws, as they stand in relation to each other; by which is understood the civil law. The law of nations is naturally founded on this principle, that different nations ought in time of peace to do one another all the good they can, and in time of war as little injury as possible, without prejudicing their real interests. The object of war is victory; that of victory is conquest; and that of conquest, preservation. From this and the preceding principle all those rules are derived which constitute the law of nations. All countries have a law of nations, not excepting the Iroquois themselves, though they devour their prisoners; for they send and receive ambassadors, and understand the rights of war and peace.
The mischief is, that their law of nations is not founded on true principles. Besides the law of nations relating to all societies, there is a polity, or civil constitution, for each, particularly considered. No society can subsist without a form of government.
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The general strength may be in the hands of a single person, or of many. Some think that, nature having established paternal authority, the most natural government was that of a single person. But the example of paternal authority proves nothing: for, if the power of a father be relative to a single government, that of brothers after the death of a father, and that of cousin-germans after the decease of brothers, refer to a government of many. The political power necessarily comprehends the union of several families. Better is it to say, that the government most conformable to nature is that which best agrees with the humour and disposition of the people in whose favour it is established.
The strength of individuals cannot be united without a conjunction of all their wills. Law in general is human reason, inasmuch as it governs all the inhabitants of the earth; the political and civil laws of each nation ought to be only the particular cases in which human reason is applied. They should be adapted in such a manner to the people for whom they are framed, that it is a great chance if those of one nation suit another. They should be relative to the nature and principle of each government; whether they form it, as may be said of political laws; or whether they support it, as in the case of civil institutions.
They should be relative to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen, or shepherds: they should have a relation to the degree of liberty which the constitution will bear, to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs. In fine, they have relations to each other, as also to their origin, to the intent of the legislator, and to the order of things on which they are established; in all which different lights they ought to be considered.
This is what I have undertaken to perform in the following work. These relations I shall examine, since all these together constitute what I call the Spirit of Laws. I have not separated the political from the civil institutions; for, as I do not pretend to treat of laws, but of their spirit, and as this spirit consists in the various relations which the laws may have to different objects, it is not so much my business to follow Edition: current; Page: [ 9 ] the natural order of laws, as that of these relations and objects.
I shall first examine the relations which laws have to the nature and principle of each government: and, as this principle has a strong influence on laws, I shall make it my study to understand it thoroughly; and, if I can but once establish it, the laws will soon appear to flow from thence as from their source. I shall proceed afterwards to other more particular relations. THERE are three species of government; republican, monarchical, and despotic.
This is what I call the nature of each government: we must now inquire into those laws which directly conform to this nature, and consequently are the fundamental institutions. WHEN the body of the people is possessed of the supreme power, this is called a democracy.
When the supreme power is lodged in the hands of a part of the people, it is then an aristocracy. In a democracy the people are in some respects the sovereign, and in others the subject. The laws, therefore, which establish the right of suffrage, are fundamental to this government. And indeed it is as important to regulate, in a republic, in what manner, by whom, to whom, and concerning what, suffrages are to be given, as it is, in a monarchy, to know who is the prince, and after what manner he ought to govern.
It is an essential point, to fix the number of citizens who are to form the public assemblies; otherwise it would be uncertain whether the whole or only a part of the people had given their votes. At Sparta the number was fixed to ten thousand. The people, in whom the supreme power resides, ought to have the management of every thing within their reach: what exceeds their abilities must be conducted by their ministers.
But they cannot properly be said to have their ministers, without the power of nominating them: it is therefore a fundamental maxim, in this government, that the people should choose their ministers; that is, their magistrates. They have occasion, as well as monarchs, and even more so, to be directed by a council or senate.
But, to have a proper confidence in these, they should have the choosing of the members; whether the election be made by themselves, as at Athens; or by some magistrate deputed for that purpose, as on certain occasions was customary at Rome. The people are extremely well qualified for choosing those whom they are to intrust with part of their authority.
They have only to be determined by things to which they cannot be strangers, and by facts that are obvious to sense. They can tell when a person has fought many battles, and been crowned with success; they are therefore very capable of electing a general. These are facts of which they can have better information in a public forum than a monarch in his palace. But are they capable of conducting an intricate affair, of seizing and improving Edition: current; Page: [ 12 ] the opportunity and critical moment of action?
No; this surpasses their abilities. As most citizens have sufficient abilities to choose, though unqualified to be chosen, so the people, though capable of calling others to an account for their administration, are incapable of conducting the administration themselves. The public business must be carried on, with a certain motion, neither too quick nor too slow. But the motion of the people is always either too remiss or too violent.
Sometimes, with a hundred thousand arms, they overturn all before them; and sometimes, with a hundred thousand feet, they creep like insects. In a popular state the inhabitants are divided into certain classes. It is in the manner of making this division that great legislators have signalized themselves; and it is on this the duration and prosperity of democracy have ever depended. Servius Tullus followed the spirit of aristocracy in the distribution of his classes. Solon divided the people of Athens into four classes. As the division of those who have a right of suffrage is a fundamental law in republics, the manner also of giving this suffrage is another fundamental.
The suffrage by lot is natural to democracy, as that by choice is to aristocracy.
The suffrage by lot is a method of electing that offends no one; but animates each citizen with the pleasing hope of serving his country. Yet, as this method is in itself defective, it has been the endeavour of the most eminent legislators to regulate and amend it. Solon made a law, at Athens, that military employments should be conferred by choice; but that senators and judges should be elected by lot. The same legislator ordained, that civil magistracies attended with great expence should be given by choice, and the others by lot.
When the time of their magistracy was expired, they were obliged to submit to another judgement in regard to their conduct. Persons utterly unqualified must have been extremely backward in giving in their names to be drawn by lot. The law which determines the manner of giving suffrage is likewise fundamental in a democracy. It is a question of some importance, whether the suffrages ought to be public or secret. But, as this is differently practised in different republics, I shall offer here my thoughts concerning this subject.
The lower class ought to be directed by those of higher rank, and restrained within bounds by the gravity of eminent personages. Hence, by rendering the suffrages secret in the Roman republic, all was lost: it was no longer possible to direct a populace that sought its own destruction. Intriguing in a senate is dangerous: dangerous it is also in a body of nobles; but not so in the people, whose nature is to act through passion. In countries where they have no share in the government, we often see them as much inflamed on the account of an actor, as ever they could be for the welfare of the state.
The misfortune of a republic is, when intrigues are at an end; which happens when the people are gained by bribery and corruption: in this case they grow indifferent to public affairs, and avarice becomes their predominant passion. Unconcerned about the government and every thing belonging to it, they quietly wait for their hire. It is likewise a fundamental law, in democracies, that the people should have the sole power to enact laws.
And yet there are a thousand occasions on which it is necessary the senate should have a power of decreeing: nay, it is frequently proper to make some trial of a law before it is established. The constitutions of Rome and Athens were excellent.