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Amendments V and VI



Document 10

Montesquieu, Spirit of Laws, bk. 6, CH. 2

1748

2.--Of the Simplicity of Criminal Laws in different Governments

We hear it generally said that justice ought to be administered with us as in Turkey. Is it possible, then, that the most ignorant of all nations should be the most clearsighted on a point which it most behooves mankind to know?

If we examine the set forms of justice with respect to the trouble the subject undergoes in recovering his property or in obtaining satisfaction for an injury or affront, we shall find them doubtless too numerous: but if we consider them in the relation they bear to the liberty and security of every individual, we shall often find them too few; and be convinced that the trouble, expense, delays, and even the very dangers of our judiciary proceedings are the price that each subject pays for his liberty.

In Turkey, where little regard is shown to the honor, life, or estate of the subject, all causes are speedily decided. The method of determining them is a matter of indifference, provided they be determined. The pasha, after a quick hearing, orders which party he pleases to be bastinadoed, and then sends them about their business.

Here it would be dangerous to be of a litigious disposition; this supposes a strong desire of obtaining justice, a settled aversion, an active mind, and a steadiness in pursuing one's point. All this should be avoided in a government where fear ought to be the only prevailing sentiment, and in which popular disturbances are frequently attended with sudden and unforeseen revolutions. Here every man ought to know that the magistrate must not hear his name mentioned, and that his security depends entirely on his being reduced to a kind of annihilation.

But in moderate governments, where the life of the meanest subject is deemed precious, no man is stripped of his honor or property until after a long inquiry; and no man is bereft of life till his very country has attacked him--an attack that is never made without leaving him all possible means of making his defence.

Hence it is that when a person renders himself absolute, he immediately thinks of reducing the number of laws. In a government thus constituted they are more affected with particular inconveniences than with the liberty of the subject, which is very little minded.

In republics, it is plain that as many formalities at least are necessary as in monarchies. In both governments they increase in proportion to the value which is set on the honor, fortune, liberty, and life of the subject.

In republican governments, men are all equal; equal they are also in despotic governments: in the former, because they are everything; in the latter, because they are nothing.


The Founders' Constitution
Volume 5, Amendments V and VI, Document 10
http://press-pubs.uchicago.edu/founders/documents/amendV-VI_criminal_processs10.html
The University of Chicago Press

The Spirit of Laws. 1748. Translated by Thomas Nugent, 1750.

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