Montesquieu: Of the Manner of Composing Laws

The Spirit of Laws (1751)Charles de Secondat, Baron de Montesquieu

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Of the Manner of Composing Laws1. Of the Spirit of a Legislator.2. The same Subject continued.3. That the Laws which seem to deviate from the Views of the Legislator are frequently agreeable to them.4. Of the Laws contrary to the Views of the Legislator.5. The same Subject continued.6. The Laws which appear the same have not always the same Effect.7. The same Subject continued.8. That Laws which appear the same were not always made through the same Motive.9. That the Greek and Roman Laws punished Suicide, but not through the same Motive.10. That Laws which seem contrary proceed sometimes from the same Spirit.11. How to compare two different Systems of Laws.12. That Laws which appear the same are sometimes really different.13. That we must not separate Laws from the End for which they were made: of the Roman Laws on Theft.14. That we must not separate the Laws from the Circumstances in which they were made.15. That sometimes it is proper the Law should amend itself.16. Things to be observed in the composing of Laws.17. A bad Method of giving Laws.18. Of the Ideas of Uniformity.19. Of Legislators. FOOTNOTES
   1. Aristotle, Politics, iv. 11.
   2. Book xx. 1.
   3. Cecilius says that he never saw nor read of an instance in which this punishment had been inflicted; but it is likely that no such punishment was ever established: the opinion of some civilians, that the law of the Twelve Tables meant only the division of the money arising from the sale of the debtor, seems very probable.
   4. De Falsa legatione.
   5. Dio, xli.
   6. Aristotle, Politics, v. 13.
   7. Plutarch, Dionysius.
   8. See xxvi. 17, p. 223, above.
   9. When the inheritance was too much encumbered they eluded the pontifical law by certain sales, whence come the words sine sacris hæreditas.
   10. Laws ix.
   11. Tacitus, Annals, vi. 29.
   12. Rescript of the Emperor Pius in Leg. 3, °°1, 2, ff. de bonis eorum qui ante sententiam mortem sibi consciverunt.
   13. Leg. 18, ff. de in fus vocando.
   14. See the Law of the Twelve Tables.
   15. Rapit in jus. -- Horace, Sat., i. 9. Hence they could not summon those to whom a particular respect was due.
   16. See Leg. 18, ff. de in jus vocando.
   17. By the ancient French law, witnesses were heard on both sides; hence we find in the Institutions of St. Louis, i. 7, that there was only a pecuniary punishment against false witnesses.
   18. Leg. 1, ff. de receptatoribus.
   19. Ibid.
   20. See what Favorinus says in Aulus Gellius, xx. 1.
   21. Compare what Plutarch says in the Lycurgus with the laws of the Digest, title De furtis; and the Institutes, iv, tit. 1, °°1, 2, 3.
   22. Laws, i.
   23. Syrian., in Hermog.
   24. The Cornelian law De Sicariis, Institutes, iv, tit. 3, de lege Aquilia, °7.
   25. See Leg. 4, ff. ad leg. Aquil.
   26. Ibid.; see the decree of Tassillon added to the law of the Bavarians, de popularib. Legib. art. 4.
   27. Ut carmen necessarium. -- Cicero, De Leg. ii, 23.
   28. It is the work of Irnerius.
   29. Testament. Polit.
   30. Appendix to the Theodosian code in the first volume of Father Sirmond's works, p. 737.
   31. Aulus Gellius, xx. 1.
   32. We find in the verbal process of this ordinance the motives that determined him.
   33. In his ordinance of Montel-les-Tours, in the year 1453.
   34. They might punish the attorney, without there being any necessity of disturbing the public order.
   35. The ordinance of the year 1667 has made some regulations upon this head.
   36. Book ii, tit. 37.
   37. In Father Sirmond's appendix to the Theodosian code, i.
   38. Leg. 1, Cod. de repudiis.
   39. See the authentic sed hodie, in the Cod. de repudiis.
   40. Leg. 1, ff. de Postulando.
   41. Sentences, iv. 9.
   42. Della guerra civile di Francia, p. 96.
   43. It was made on November 18, 1702.
   44. Laws, ix.
   45. It is the authentic sed cum testator.
   46. Book xii, tit. 2, °16.
   47. See Julius Capitolinus, in Macrinus, 13.
   48. Ibid.
   49. In his Utopia.