In what Governments, and in what Cases, the Judges ought to determine according to the express Letter of the Law.
THE nearer the government approaches towards a republic, the more the manner of judging becomes settled and fixt: hence it was a fault, in the republic of Sparta, for the Ephori to pass such arbitrary judgements, without having any laws to direct them. The first consuls, at Rome, pronounced sentence in the same manner as the Ephori; but the inconveniency of this proceeding was soon felt, and they were obliged to have recourse to express and determinate laws.
In despotic governments there are no laws; the judge himself is his own rule. There are laws in monarchies; and, where these are explicit, the judge conforms to them; where they are otherwise, he endeavours to investigate their spirit.
In republics, the very nature of the constitution requires the judges to follow the letter of the law; otherwise, the law might be explained to the prejudice of every citizen, in cases where their honour, property, or life, are concerned.
At Rome, the judges had no more to do than to declare that the person accused was guilty of a particular crime, and then the punishment was found in the laws, as may be seen in divers laws still extant. In England, the jury give their verdict, whether the fact, brought under their cognizance, be proved or not; if it be proved, the judge pronounces the punishment inflicted by the law, and for this he needs only to open his eyes.
Of the Manner of passing Judgement
HENCE arises the different manner of passing judgement. In monarchies the judges choose the method of arbitration: they deliberate together; they communicate their sentiments for the sake of unanimity; they moderate their opinions, in order to render them conformable to those of others; and the lesser number is obliged to give way to the majority.
But this is not agreeable to the nature of a republic. At Rome, and in the cities of Greece, the judges never entered into a consultation; each gave his opinion one of these three ways; I absolve; I condemn; it does not appear clear to me: this was because the people judged, or were supposed to judge. But the people are far from being civilians; all these restrictions and methods of arbitration are above their reach; they must have only one object, and one single fact, set before them; and then they have only to see whether they ought to condemn, to acquit, or to suspend their judgement.
The Romans introduced fet forms of actions, after the example of the Greeks, and established a rule, that each cause should be directed by its proper action. This was necessary in their manner of judging; it was necessary to fix the state of the question, that the people might have it always before their eyes: otherwise, in a long process, this state of the question would continually change, and be no longer distinguished.
Hence it followed, that the Roman judges granted only the simple demand, without making any addition, deduction, or limitation. But the prætors devised other forms of actions, which were called ex bona fide, where the method of pronouncing sentence was left to the disposition of the judge. This was more agreeable to the spirit of monarchy. Hence it is a saying among the French lawyers, that, in France, all actions are ex bona fide.
In what Governments the Sovereign may be Judge
MACHIAVEL attributes the loss of the liberty of Florence to the people’s not judging in a body in cases of high-treason against themselves, as was customary at Rome. For this purpose they had eight judges: but the few, says Machiavel, are corrupted by a few. I should willingly adopt the maxim of this great man: but as, in those cases, the political interest prevails, in some measure, over the civil, (for it is always an inconveniency that the people should 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; they gave the persons accused permission to banish themselves before sentence was pronounced; and they ordained, that the goods of those who were condemned should be sacred, to prevent their being confiscated to the people. We shall see, in the XIth book, 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 make of their power in criminal judgements. He ordained, that the court of Areopagus should re-examine the affair; that, if they believed the party accused was unjustly acquitted, they should impeach him again before the people; that, if they believed him unjustly condemned, they should prevent the execution of the sentence, and make them re-judge the proceeding. An admirable law, that subjected the people to the censure of the magistracy which they most revered, and even to their own!
In affairs of this kind, it is always proper to throw in some delays, especially when the party accused is under confinement; to the end 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.
We shall give here a few more reflections on this point. 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 XIII. being desirous to sit in judgement upon the trial of the duke ae la Valette, sent for some members of the parliament and of the privy-council to debate the matter. Upon their being ordered by the king to give their opinion concerning the warrant for his arrest, the president de Believre said, “That he found it very strange a prince should pass sentence upon 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.
“Claudius, (says Tacitus,) having appropriated to himself the determination of law suits and the function of magistrates, gave occasion to all manner of rapine.” But Nero, upon coming to the empire after Claudius, endeavoured to conciliate the minds of 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§.”
“Under the reign of Arcadius, (says Zozimus,) 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.”
“Formerly, (says Procopius,) 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.” Every body 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.
That, in Monarchies, Ministers ought not to sit as Judges.
IT is, likewise, a very great inconveniency, in monarchies, for the ministers of the prince to sit as judges. We have still instances of states where there is a great number of judges to decide exchequer causes, and where the ministers, nevertheless, (a thing most incredible,) would fain determine them. Many are the reflections that here arise; but this single one will suffice for my purpose.
There is, in the very nature of things, a kind of contrast between a prince’s council and his courts of judicature. The king’s council ought to be composed of a few persons, and the courts of judicature of a great many. The reason is, in the former, things should be undertaken and conducted with a kind of warmth and passion, which can hardly be expected but from four or five men who make it their sole business. On the contrary, in courts of judicature, a certain coolness is requisite, and an indifference, in some measure, to all manner of affairs.
Of a single Magistrate
A magistracy of this kind cannot take place but in a despotic government. We have an instance, in the Roman history, how far a single magistrate may abuse his power. Might it not be very well expected that Appius, on his tribunal, should contemn all laws, after having violated that of his own enacting? Livy has given us the iniquitous distinction of the decemvir. He had suborned a man to reclaim Virginia, in his presence, as his slave: Virginia’s relations insisted, that, by virtue of his own law, she should be consigned to them till the definitive judgement was passed. Upon which, he declared, that his law had been enacted only in favour of the father; and that, as Virginius was absent, no application could be made of it to the present case.
SOURCE: The Spirit of Laws-Charles Louis de Secondat, Baron de Montesquieu (1689-1755)