Constitution, Hamilton and Madison, and Jay, soon to be called to expound it,-projected and wrote a series of newspaper articles, known as the 'Federalist,' in exposition and defense of the proposed plan; directed to the people of the State of New York, who at the time were considering the question of ratification. Of the twenty foot-notes to the Federalist,' three refer to Blackstone and three to the 'Spirit of Laws'; but the references to Montesquieu are accompanied by quotations, one of which is the longest quotation in the 'Federalist. The ninth and the seventy-eighth numbers, in which the quotations from Montesquieu occur, are by Hamilton. The paramount influence of Montesquieu in the American constitutions is seen in the practically successful separation of the three functions of the State, "to the end," as the Constitution of Massachusetts puts it, that "it may be a government of laws and not of men"; and, as this and others provide, that one department shall never exercise the powers of either of the others. The phrase "checks and balances in government,” which occurs so often in American political literature down to 1850, though not originating with Montesquieu, is an American abbreviation of a large use of him in practical politics. When it is remembered that the American constitutions are the oldest written constitutions in existence, that they have become precedents for all later republics, and that they have powerfully affected the written and the unwritten constitutions of European nations, - the influence of Montesquieu must be acknowledged to be as wide-spread, in our day, as are the sources on which he based his profound conclusions.

To this influence, as it were by dynastic and political succession, there must be added the economic and educational influence he has

long exercised in all civilized countries. He has been a principal text-book in politics for a century and a half. In English-speaking lands he has quite displaced Aristotle; for he is found, on trial, to be the only writer whom a modern student can understand without such a body of corrective notes as to make the original text a mere exercise in translation. Specialization, which characterizes modern scholarship, has relegated portions of the Spirit of Laws' to the epoch-making books of the past, and has left those portions as a sort of political encyclopædia that the world has outgrown. Time is a trying editor, and many who read Montesquieu now feel that they are going over some old edition of a general treatise on government. What change is this in a book which, as Helvetius and Saurin, fellow Academicians, warned Montesquieu, contained so many innovations that his reputation would be destroyed! His reply was, "Prolem sine creatam" (Spare the born child).

Ten years

Fortune favored Montesquieu at birth and through life. in the hereditary office of chief justice at Bordeaux, near which city

he was born, completed his public services. He was thirty-seven when he resigned and entered upon the life of the scholar. Montesquieu was an academician and an encyclopædist, and with Voltaire, helped to turn the world upside down. But between the two men acquaintance never ripened into love. The Persian Letters,' which Montesquieu published at thirty-two, laid the foundations of his fame, and started a controversy that raged even at his death-bed.

"Vous savez, Monsieur le President," began the curate of Saint Sulpice, in exhortation, as Montesquieu lay dying, "Vous savez combien Dieu est grand." "Oui," quickly replied the philosopher, "et combien les hommes sont petits.»*

Francis Hurton Thorpe

E

ON THE POWER OF PUNISHMENTS

From The Spirit of Laws

XPERIENCE Shows that in countries remarkable for the lenity of their laws, the spirit of the inhabitants is as much affected by slight penalties as in other countries by severer punish

ments.

If an inconveniency or abuse arises in the State, a violent government endeavors suddenly to redress it; and instead of putting the old laws in execution, it establishes some cruel punishment, which instantly puts a stop to the evil. But the spring of government hereby loses its elasticity: the imagination grows accustomed to the severe as well as to the milder punishment; and as the fear of the latter diminishes, they are soon obliged in every case to have recourse to the former. Robberies on the highway were grown common in some countries. In order to remedy this evil, they invented the punishment of breaking upon the wheel: the terror of which put a stop for a while to this mischievous practice; but soon after, robberies on the highways became as

common as ever.

Desertion, in our days, was grown to a very great height; in consequence of which it was judged proper to punish those delinquents with death; and yet their number did not diminish. The reason is very natural: a soldier, accustomed to venture his life, despises, or affects to despise, the danger of losing it; he is habituated to the fear of shame: it would have been, therefore,

*"You know how great God is."—"Yes, and how small men are."

much better to have continued a punishment which branded him with infamy for life; the penalty was pretended to be increased, while it really was diminished.

Mankind must not be governed with too much severity: we ought to make a prudent use of the means which nature has given us to conduct them. If we inquire into the cause of all human corruptions, we shall find that they proceed from the impunity of criminals, and not from the moderation of punishments. Let us follow nature, who has given shame to man for his scourge, and let the heaviest part of the punishment be the infamy attending it.

But if there be some countries where shame is not a consequence of punishment, this must be owing to tyranny, which has inflicted the same penalties on villains and honest men.

And if there are others where men are deterred only by cruel punishments, we may be sure that this must, in a great measure, arise from the violence of the government, which has used such penalties for slight transgressions.

It often happens that a legislator, desirous of remedying an abuse, thinks of nothing else: his eyes are open only to this object, and shut to its inconveniences. When the abuse is redressed, you see only the severity of the legislator;-yet there remains an evil in the State, that has sprung from this severity: the minds of the people are corrupted and become habituated to despotism.

Lysander having obtained a victory over the Athenians, the prisoners were ordered to be tried, in consequence of an accusation brought against that nation of having thrown all the captives of two galleys down a precipice, and of having resolved, in full assembly, to cut off the hands of those whom they should chance to make prisoners. The Athenians were therefore all massacred, except Adymantes, who had opposed this decree. Lysander reproached Philocles, before he was put to death, with having depraved the people's minds, and given lessons of cruelty to all Greece.

"The Argives" (says Plutarch), "having put fifteen hundred of their citizens to death, the Athenians ordered sacrifices of expi ation, that it might please the gods to turn the hearts of the Athenians from so cruel a thought."

There are two sorts of corruption: one when the people do not observe the laws; the other when they are corrupted by the laws, an incurable evil, because it is in the very remedy itself.

IN WHAT MANNER REPUBLICS PROVIDE FOR THEIR SAFETY

From The Spirit of Laws

F A republic be small, it is destroyed by a foreign force; if it be large, it is ruined by an internal imperfection.

I'

To this twofold inconveniency democracies and aristocracies are equally liable, whether they be good or bad.

is in the very thing itself, and no form can redress it.

The evil

It is therefore very probable that mankind would have been, at length, obliged to live constantly under the government of a single person, had they not contrived a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical government. I mean a confederate republic.

This form of government is a convention, by which several petty States agree to become members of a larger one which they intend to establish. It is a kind of assemblage of societies that constitute a new one, capable of increasing by means of further associations, till they arrive at such a degree of power as to be able to provide for the security of the whole body.

It was these associations that so long ago contributed to the prosperity of Greece. By these the Romans attacked the whole globe; and by these alone the whole globe withstood them. For when Rome had attained her highest pitch of grandeur, it was the associations beyond the Danube and the Rhine,-associations formed by the terror of her arms,- that enabled the barbarians to resist her. From hence it proceeds that Holland, Germany, and the Swiss Cantons are considered in Europe as perpetual republics.

The associations of cities were formerly more necessary than in our times. A weak defenseless town was exposed to greater danger. By conquest, it was deprived not only of the executive and legislative power, as at present, but moreover of all human rights.

A republic of this kind, able to withstand an external force, may support itself without any internal corruption; the form of this society prevents all manner of inconveniences.

If a single member should attempt to usurp the supreme power, he could not be supposed to have an equal authority and credit in all the confederate States. Were he to have too great an influence over one, this would alarm the rest; were he to subdue a part, that which would still remain free might oppose XVIII-642

him with forces independent of those which he had usurped, and overpower him before he could be settled in his usurpation.

Should a popular insurrection happen in one of the confederate States, the others are able to quell it. Should abuses creep into one part, they are reformed by those that remain sound. The State may be destroyed on one side and not on the other; the confederacy may be dissolved, and the confederates preserve their sovereignty.

As this government is composed of petty republics, it enjoys the internal happiness of each; and with regard to its external situation, by means of the association it possesses all the advantages of large monarchies.

ORIGIN OF THE RIGHT OF SLAVERY AMONG THE ROMAN

ON

CIVILIANS

From the Spirit of Laws

NE would never have imagined that slavery should owe its birth to pity, and that this should have been excited three different ways.

The law of nations, to prevent prisoners from being put to death, has allowed them to be made slaves. The civil law of the Romans empowered debtors, who were subject to be ill-used by their creditors, to sell themselves. And the law of nature requires that children whom a father in the state of servitude is no longer able to maintain, should be reduced to the same state as the father.

These reasons of the civilians are all false. It is false that killing in war is lawful, unless in a case of absolute necessity; but when a man has made another his slave, he cannot be said to have been under a necessity of taking away his life, since he actually did not take it away. War gives no other right over prisoners than to disable them from doing any farther harm, by securing their persons. All nations concur in detesting the murdering of prisoners in cold blood.

Neither is it true that a freeman can sell himself. Sale implies a price: now, when a person sells himself, his whole substance immediately devolves to his master; the master therefore in that case gives nothing, and the slave receives nothing. You will say he has a peculium.

But this peculium goes along with his