Education of a Christian Prince. Chapter 6: Enacting or Amending Laws
16 min read
16 min read
The principal method of making a city or kingdom prosperous is to have the best of laws under the best of princes; the happiest situation arises when the prince is obeyed by all and himself obeys the laws, provided that these conform to the ideals of justice and honour and have no other purpose than to advance the interests of all.
The good, wise, and upright prince is simply a sort of embodiment of the law. He will therefore spare no effort to enact the best possible laws, those most beneficial to the state, rather than a great number. A very small number of laws will be sufficient in a well-ordered state under a good prince and honest magistrates, and if things are otherwise, no amount of laws will suffice. When an incompetent doctor tries one remedy after another, his patients tend to suffer.
In enacting laws, special care must be taken to ensure that they do not smell of profit for the privy purse or of special treatment for the nobility; everything should be related to an ideal standard of honour and to the public interest, and this should be defined, not by the opinion of the mob, but according to the precepts of wisdom, which should always be present at the councils of princes; in other words, as the pagans also agree, there will be no true law unless it is just, fair, and conducive to the common good. Nor does something become law simply because the prince has so decided, unless the decision is that of a wise and good prince, who will decide on nothing that is not honourable and in the best interests of the state. If the standards by which wrongdoing is to be judged are themselves distorted, the only result will be that even things that were just will be perverted by laws of this kind.
Plato too requires as few laws as possible, especially on less important subjects such as contracts, business deals, and taxation. For, he says, the state is not made healthy by a great number of laws any more than a man by a great number of medicines. Where the prince is impartial and the magistrates do their job, there is no need for many laws; where things are otherwise, abuse of the laws will lead the state to perdition, and the dishonesty of these men will divert even laws properly enacted to other purposes.
The tyrannical scheme of Dionysius of Syracuse has been justly censured; he passed a great many laws, piling one on top of another, but he is said to have allowed his people to ignore them and in this way to have made everyone beholden to him. That was not making laws, but setting traps.
Epitades too has been deservedly condemned for passing a law whereby a man was free to leave his property to anyone he liked; but he only did this so that he could disinherit his own son whom he hated. At first the people did not see through the man’s trick, but in the end the affair brought the state to the brink of disaster.
The prince should promote the kind of laws which not only prescribe punishment for the guilty but also dissuade men from breaking the law. It is thus a mistake to think that the laws should be restricted to the shortest possible form of words, so that they merely give orders and not instruction; on the contrary, they should be concerned to deter men from law-breaking more by reasoning than by punishments. As it happens, Seneca disagrees with Plato’s opinion here, but in doing so he shows more boldness than Wisdom.
Again, Plato does not allow young men to debate the fairness of a law, although he allows this to their elders, in moderation. But if it is not the people’s role to voice ill-considered opinions of the prince’s laws, it is the prince’s duty to ensure that his laws will be acceptable to all good men, remembering that even the humblest of men have a certain common sense. Antoninus Pius has been praised because he never proposed anything without attempting to justify it to everyone by rescripts in which he gave his reasons for judging it useful to the state.
In his Oeconomica, Xenophon shrewdly demonstrated that all other creatures can be made to obey by two things in particular: inducements, such as food, if they are of the lower sort, or caresses, if they are nobler, like the horse; or blows, if they are stubborn, like the ass. But since man is the noblest of all creatures, it is only fitting that he should be induced to observe the law by rewards, rather than coerced by threats and punishment.
Therefore the law should not only prescribe penalties for wrongdoers but also provide rewards to encourage service to the state. We know that the Ancients had many laws of this kind: anyone who had distinguished himself in battle could hope for a reward, and if he fell, his children were brought up at public expense; anyone who had rescued a citizen, throwndown an enemy from the walls, or assisted the state with sound advice was entitled to a reward.
Of course the better sort of citizen will always follow the best course even if no reward is offered, but these inducements are useful to inspire the less well educated to pursue an honourable course.
Men of noble character are more interested in honour; the baser sort are attracted by money too. Thus a law will make use of all these methods to influence men: honour and disgrace, profit and loss. Finally, men of thoroughly servile, or rather bestial, disposition must be tamed by chains and the lash.
Citizens should be familiar with this sense of honour and disgrace from boyhood onwards, so that they know that rewards are given for good conduct rather than for wealth or connections.
In short, the vigilant prince should direct his best efforts, not simply to punishing crime, but to looking beyond that, and taking pains to ensure that no crime worthy of punishment is committed in the first place.
A doctor who prevents disease and keeps it away is better than one who expels it with medicine once it is established. Similarly, it is far better to ensure that no offences at all are committed than to punish them once they have been perpetrated. This will be achieved if the prince can destroy, if possible, or at least check and reduce anything that he has noted as a likely source of criminal behaviour.
First, as we have said, the vast majority of crimes spring, as if from a muddy fountain, from perverted ideas about the state of things. Your first aim therefore should be to have citizens in whom the best of principles have been implanted, and your second, that the magistrates should be not only wise but uncorrupted.
Plato rightly warns that everything else must be tried, that no stone, as they say, should be left unturned, before the supreme penalty is invoked. To persuade men not to break the law, you must first use reasoned arguments, then, as a deterrent, the fear of divine vengeance against criminals, and in addition threats of punishment. If these are ineffective, you must resort to punishment, but of a comparatively light kind, more to cure the disease than to kill the patient. If none of this is successful, then at last the law must reluctantly cut the criminal off, like a hopeless, incurable limb, to prevent the infection spreading to the healthy part.
A reliable and skilful doctor will not resort to amputation or cauterization if he can cure the disease by compresses or a draught of medicine, and will never fall back on them unless compelled by the illness to do so. In the same way, the prince will try all other remedies before resorting to capital punishment, remembering that the state is one body; no one cuts off a limb if it can be restored to health in some other way.
In applying his treatment, the conscientious doctor concentrates on getting rid of the illness with the minimum of danger to his patient; similarly, in framing his laws, the good prince will consider nothing but the public interest and seek to remedy the ills of the people with the minimum of discomfort.
A good many crimes arise particularly from the fact that in every country riches are prized and poverty is scorned. The prince will therefore strive to ensure that his subjects are respected for good conduct and good character rather than for wealth, and he should apply this first to himself and his court. If the people see the prince flaunting his wealth, if they see that at his court the richest men are the most admired and that the road to the magistracy, honours, and public office is open to cash, then of course all this will incite the common people to acquire wealth by fair means or foul. Now, to speak more generally, many of the pitfalls which exist in every state are the result of idleness, which everyone seeks in different ways. Once men have acquired a taste for it, they turn to the paths of evil if they lack the means to provide for it. The vigilant prince will therefore ensure that he has as few idlers as possible among his subjects, either making them work or banishing them from the state.
Plato thinks that all beggars must be driven out of his republic. But if there are men broken by illness or old age, with no family to care for them, they should be looked after in state institutions for the old and the sick. A man who is in good health and satisfied with little will not need to beg. The inhabitants of Marseille refused entry to some priests who, in order to live in idleness and luxury under the guise of religion, used to hawk certain sacred relics from town to town. Perhaps, too, it would be to the state’s advantage to limit the number of monasteries. For monastic life too is a kind of idleness, especially for those whose lives have been far from blameless and who now fritter away lethargic lives in idleness. My remarks about monasteries apply to colleges as well.
Under this heading too come tax farmers, pedlars, usurers, brokers, panders, estate managers, game wardens, the whole gang of agents and retainers whom some people keep purely for the sake of ostentation. When men like these cannot meet the demands of extravagance, the concomitant of idleness, they lapse into evil ways.
Soldiering, too, is a very energetic kind of idleness, and much the most dangerous, since it causes the total destruction of everything worthwhile and opens up a cesspit of everything that is evil. And so, if the prince will banish from his realm all such seed-beds of crime, there will be much less for his laws to punish.
Thus useful occupations must be held in high esteem and, I should add in passing, ineffective idleness should not go under the name of nobility. I would not wish to strip their honours from those of noble birth, if they upheld the standards of their forebears and excelled in those activities which originally created the aristocracy. But when we see so many of them these days grown soft with idleness, emasculated by their debauches, devoid of any useful talent, little more than jolly table-companions and devoted gamblers – I pass over their more revolting activities – why on earth should this sort of fellow be treated better than a cobbler or a farmer? In days gone by the aristocracy were excused the more menial tasks, not to allow them to waste time, but to learn those skills which help in the government of the state.
Therefore, rich or noble citizens should not be frowned on for instructing their sons in some sedentary occupation; for one thing, young men preoccupied with their studies will be kept away from many temptations, and for another, even if they have no need of their skills at least they harm no one. But, since human affairs are subject to the vagaries of fortune, if the need arises then skill will find its reward, not only in any land, as the proverb says, but in any station in life too.
The Ancients, recognizing that many problems arise from extravagance and luxurious living, counteracted them by sumptuary laws and appointed inspectors to control excessive expenditure on banquets, clothes, or buildings. If anyone thinks it harsh to prevent a man from using or abusing his own property as he pleases, let him reflect that it is much harsher to let social standards deteriorate, through luxurious living, to the point where capital punishment is required, and that it is less harsh to be compelled to live frugally than to be brought to perdition by vice.
There is nothing more harmful than for magistrates to make a profit out of convicting citizens. Who will exert himself to keep crime down to a minimum, if it is in his interest that there should be as many criminals as possible?
It is appropriate, and it was the custom among the Ancients, that money from fines should go primarily to the injured party, some part of it to public funds and, in the case of the most odious crimes, something also to the informer. But the degree of odiousness must be decided, not by the personal feelings of any one man, but according to the damage or benefit to the state.
The whole purpose of the law should be to protect everyone, rich or poor, noble or humble, serf or free man, public official or private citizen. But it should incline more towards helping the weaker elements, because the position of humble men exposes them more easily to danger. The law’s indulgence should compensate for the privileges denied them by their station in life. There should thus be more severe punishment for a crime against a poor man than for offences against the rich, for a corrupt official than for a common criminal, and for a wicked nobleman than for a humble citizen.
According to Plato, there are two kinds of penalty. For the first, care must be taken that the punishment is not too harsh for the crime, and for this reason the supreme penalty must not be invoked lightly; nor must the gravity of the crime be measured by our greed, but fairly and honourably. Why is it that, contrary to the laws of all the Ancients, simple theft is generally punished by death, while adultery goes virtually unpunished? Is it that everyone values money too highly, and so its loss is judged, not on the facts, but on emotional grounds? But this is not the place to discuss why adulterers, on whom the laws used to be very severe, are less severely treated today.
The other kind of penalty, which Plato calls exemplary, must be invoked very sparingly; it should act as a deterrent to others more by its rarity than by its frightfulness. For there is nothing so horrifying that familiarity does not breed contempt for it, nor anything so harmful as allowing one’s subjects to become inured to a punishment.
Just as new remedies should not be tried out on a disease if the old ones will cure the illness, so new laws should not be enacted if the old ones will provide a means to treat the ills of the state.
If useless laws cannot be repealed without much trouble, they should be allowed gradually to lapse or else be amended. It is dangerous to alter laws without due consideration, but it is also necessary to adapt the law to the present circumstances of the state, just as treatment is adapted to suit the condition of the patient: some laws, appropriate enough when enacted, are still more appropriately repealed.
Many laws have been introduced quite justifiably but have been put to the worst uses by the corruption of officials; there is nothing so pernicious as a good law diverted to evil purposes. The prince must not be deterred from removing or amending such laws by any loss of revenue, for there is no profit to be made from the loss of honour, especially since the repeal of this kind of law will be much applauded. Nor should the prince be deceived by the fact that laws of this kind have grown up almost everywhere and are now firmly established by long custom; justice, essentially, is not a matter of mere numbers, and the more deeply rooted an evil practice the more thoroughly it needs to be extirpated.
Here are a few examples. In some places it is the practice that a prefect takes possession, in the king’s name, of the property of anyone who dies while abroad. This was introduced, quite rightly, to prevent the property of a traveller being claimed by people who had no right to it; it remained in the hands of the prefect for a short time, until the true heirs came forward. But now the custom has been most unjustly perverted, so that whether the heir comes forward or not the traveller’s property goes into the prince’s treasury. A law was rightly introduced to allow property found in the possession of a thief when arrested to be seized by the prince or by an officer in his name; obviously this was to prevent property going to the wrong person by some trick, if everyone had the right to claim. As soon as ownership was established, the property would be restored. But now anything found in a thief’s possession is regarded by some princes as their own, as if it were part of their patrimony. They are well aware that this practice is shamefully unjust, but the profit motive overcomes honourable intentions.
It was a good idea, in days gone by, to provide officials on the frontiers of states to supervise imports and exports, to ensure, of course, that merchants and travellers could come and go free from the fear of bandits. If anything was stolen, each prince would ensure, within the boundaries of his realm, that the merchants should not suffer any loss and the robber not go unpunished; later, perhaps as a courtesy, merchants began to pay a small fee. But nowadays the traveller is held up at every turn by these customs duties, visitors are harassed, merchants are fleeced, and there is no longer any word of protecting them although the tolls increase from one day to the next. In this way the purpose for which the institution was first established has been totally lost, and what was a sound practice when introduced has been turned into utter tyranny by the fault of those who administer it.
It was established in days gone by that property washed ashore from a shipwreck should be held by the prefect of the sea, not so that it should pass into his hands or the prince’s but so that they could prevent it being seized by the wrong people; it would finally become public property if no one survived with a rightful claim on it. But today, in some places, anything which falls into the sea, no matter how, is taken as his own by the prefect, who is more merciless than the sea itself: for anything which the storm has left to the miserable survivors he snatches away like a second storm. You can see, then, how everything has gone wrong. The thief is punished for seizing another’s property; but the magistrate, appointed to prevent theft, does the same, and the rightful owner is robbed twice over by the very man employed to spare him such loss. Merchants too are much harassed and robbed by those appointed specifically to prevent travellers being harassed and robbed. Property is withheld from its rightful owner by the very man appointed by law to prevent it getting into the wrong hands. In many lands there is a vast number of similar institutions, no less unjust than injustice itself. But it is not my purpose in this treatise to reproach any particular state, since these things are common to practically all – and are condemned by them all; I have listed them for the sake of instruction. It may be true that some of them cannot be abrogated without a great upheaval, but their abrogation will win the prince approval and – something more important than any financial gain – a good reputation.
Like the prince, the law must, more than anything else, be accessible and fair to all; otherwise, as the Greek philosopher cleverly put it, the laws will be nothing but spiders’ webs, which birds can easily break because of their size, and in which only flies will be entangled.
Like the prince, the law must always be more willing to forgive than to punish, either because it has a certain intrinsic mildness, or because it is a reflection of the ways of God, slow to be moved to anger and vengeance, or, again, because a man wrongly released can be recalled for punishment, but a man unjustly condemned cannot be helped; even if he is still alive, who can put a price on another man’s suffering?
We read that in days gone by there was a kind of men, tyrants, not princes – and the conduct of the Christian prince must be entirely different – for whom the measure of a crime was the harm done to their personal interests; so they thought it mere petty theft to strip a pauper of his property and condemn him, with his wife and children, to slavery or to beggary, but a most serious theft, worthy of the sternest punishment, to cheat the privy purse or some rapacious official even of a few coins. Again, they would cry lese-majest^if anyone murmured against a prince, however bad, or spoke a little too freely of some pestilent magistrate. But the pagan emperor Hadrian, not normally included among good princes, never allowed a charge of lese-majeste, and not even the ruthless Nero set much store by accusations of this sort. Another one, who completely ignored charges of this kind, is supposed to have said: ‘In a free state, tongues too should be free.’
It follows that the good prince will forgive no offences more easily and willingly than those which damage his personal interests: who will find it easier to overlook such things than the prince? The easier vengeance may be, the more it will appear invidious and unseemly, since vengeance is the mark of a weak and mean spirit, and nothing is less appropriate to the prince, whose spirit must be lofty and magnanimous.
It is not enough for the prince to keep clear of crime unless he is also free from any suspicion or taint of crime. For this reason he will consider not only the deserts of the man who has committed a crime against him, but also how other men will judge the prince, and he will sometimes show mercy in an undeserving case out of concern for his honour, and pardon a man unworthy of pardon to safeguard his reputation.
Let no one immediately cry out that this advice takes too little account of the majesty of a prince, which it should be the state’s principal concern to keep sacrosanct and inviolate. On the contrary, there is no better safeguard for his greatness than that the people know him to be so vigilant that nothing escapes him, so wise that he understands the true sources of the prince’s majesty, and so merciful that he will avenge no offence against himself unless the public interest demands it. The pardon granted to Cinna made the majesty of Augustus Caesar both more glorious and more secure, when so many executions had had no effect.
Lese-majeste occurs only when a man has diminished those qualities which make the prince truly great; if his greatness lies in the excellence of his mind and the prosperity which his wisdom brings to his people, then anyone who undermines these must be accused of lese-majeste. It is a great mistake, and a complete misunderstanding of the true majesty of the prince, to suppose that this can be increased if the law and public liberties are little respected, as if prince and state were two separate entities. If a comparison must be made between things which nature has united, a king should not compare himself with any one of his subjects but with the whole body of the state: then he will realize that the latter, comprising so many distinguished men and women, is worth far more than the head alone, the prince. A state, even if it lacks a prince, will still be a state. Vast empires have flourished without a prince, such as Rome and Athens under democracy. But a prince simply cannot exist without a state, and in fact the state takes in the prince, rather than the reverse. What makes a prince a great man, except the consent of his subjects? On the other hand, if a man achieves greatness by goodness, that is, by his virtues, he will still be a great man even if deprived of his Power.
It is obvious, therefore, that those who measure a prince’s honour by standards unworthy of a prince’s grandeur are quite wrong in their judgment. They call traitor (a word supposed by them to be the most loathsome of all) a man who, by advice freely given, recalls his prince to better paths when he strays and puts at risk his honour, his safety, and his country’s welfare. But a man who corrupts the prince with ignoble ideas and launches him into a round of sordid pleasures, feasts, gambling, and similar indignities: surely such a man is not preserving the prince’s honour? They call it loyalty to humour a foolish prince with constant flattery, and treason to oppose his shameful enterprises. But no one is less a friend to the prince than a man who deludes him and leads him astray by base flattery, who involves him in wars, advises him to pillage the people, teaches him the arts of the tyrant, and causes him to be hated by all decent people; this is real treason, and deserves no mean punishment.
Plato requires that the ‘guardians of the law,’ that is, those appointed to watch over the laws, be the least corruptible of men. The good prince should never act more severely than against those who administer the law corruptly, since the prince himself is the chief of the ‘guardians of the law.’
To sum up: it is best to have as few laws as possible; these should be as just as possible and further the public interest; they should also be as familiar as possible to the people: for this reason the Ancients exhibited them in tables and on tablets in public places for all to see. It is disgraceful that certain men use the laws like a spider’s web, plainly intending to entangle as many as possible, not in the interest of the state, but simply to catch their prey. Finally, the laws should be drafted in plain terms, with the minimum of complications, so that there is little need for that grasping sort who call themselves lawyers and advocates; once, in fact, this profession was the preserve of the best men in society, bringing little profit but much honour; but nowadays the profit motive has corrupted it, as it vitiates everything.
Plato says that there is no enemy more dangerous to the state than the man who subjects the laws to human eccentricity, whereas under the best princes the laws will possess supreme authority.