Page:Montesquieu - The spirit of laws.djvu/161

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HE nearer a government approaches to a republic, the more the manner of judging becomes settled and fixt; wherefore it was a fault in the republic of Sparta for the Ephori to pass such arbitrary judgments, 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 fixed 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. Here there is no possibility of interpreting a law against a subject, in cases where either his honor, property, or life is 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 determine whether the fact brought under their cognizance be proved or not; if it be proved, the judge pronounces the punishment inflicted by the law for such a particular fact, and for this he need only open his eyes. Rh