论法的精神 (与共和政体及民主政治相关的法律)

at 4年前  ca 论法的精神经典语录  pv 1137  by 名著  

 Of the Nature of the three different Governments.

There are three species of government: republican, monarchical, and despotic. 政体有三种类型:共和政体、君主政体、专制政体。  

In order to discover their nature, it is sufficient to recollect the common notion, which supposes three definitions, or rather three facts: that a republican government is that in which the body, or only a part of the people, is possessed of the supreme power; monarchy, that in which a single person governs by fixed and established laws; a despotic government, that in which a single person directs everything by his own will and caprice.

Caprice:任性;反复无常;善变

共和体制就是全体人民或部分人民拥有最高权力的体制;君主政体意味着只有一个人统治国家,只不过遵循已建立和确定的法律;专制政体则由独自一人按照自己的意志以及变化无常的情绪领导国家的一切。

This is what I call the nature of each government; we must now inquire into those laws which directly conform to this nature, and consequently are the fundamental institutions.

以上便是我所谓的每个政体的性质。应该看到直接伴随这些性质所产生出什么样的法律。因此,这些法律便是最初的基本法。

Of the Republican Government, and the Laws in relation to Democracy.

When the body of the people is possessed of the supreme power, it is called a democracy. When the supreme power is lodged in the hands of a part of the people, it is then an aristocracy.

In a democracy the people are in some respects the sovereign, and in others the subject.


在共和政体下,当全体人民拥有最高权力时,便是民主政治,而当最高权力集中在一部分人民手中时,那就是贵族政治了。在民主政治之中人民在某些方面似乎是君主,在其他方面又像是臣民。

There can be no exercise of sovereignty but by their suffrages, which are their own will; now the sovereign's will is the sovereign himself. The laws therefore which establish the right of suffrage are fundamental to this government.

只有通过选举方能成为君王,这亦是人民的意志所在。君王的意志体现于君王本身。因此,确立选举权的法被归属于基本法。    And indeed it is as important to regulate in a republic, in what manner, by whom, to whom, and concerning what, suffrages are to be given, as it is in a monarchy to know who is the prince, and after what manner he ought to govern. 在民主政体下的选举法应该如何规范、由谁规范,对于谁,就什么事情进行投票都必须予以阐明。其重要性亦如君主政体必须了解什么样的人才能称之为君主,以及应该用什么方法治理国家一样。


Libanius says that at Athens a stranger who intermeddled in the assemblies of the people was punished with death. This is because such a man usurped the rights of sovereignty.

intermeddled干涉,管闲事  Athens雅典用举手的方式选举。

李巴尼乌斯说:“在雅典曾有一个异族人混人人民议会。”他最终被处死。这样一个人竟窃取了王权中的权利。


It is an essential point to fix the number of citizens who are to form the public assemblies; otherwise it would be uncertain whether the whole, or only a part of the people, had given their votes.

确定组成议会的公民人数至关重要,否则,人们将不了解最终是人民或是人民中的一部分人表达了心声。


At Sparta the number was fixed at ten thousand. But Rome, designed by Providence to rise from the weakest beginnings to the highest pitch of grandeur; Rome, doomed to experience all the vicissitudes of fortune;

Vicissitude:变迁兴衰

在斯巴达,议会必须由一万名公民组成。

Rome, who had sometimes all her inhabitants without her walls, and sometimes all Italy and a considerable part of the world within them; Rome, I say, never fixed the number and this was one of the principal causes of her ruin.

在诞生于卑微却走向伟大的罗马;在经历了所有命运的兴衰荣辱洗礼的罗马;如此伟大的帝国,它的公民议会人数一直很不稳定,有时不包括它的任何一个公民,有时却囊括了整个意大利的公民,甚至还包括了不少世界其他的公民。这也是罗马最终覆灭的主要原因。


The people, in whom the supreme power resides, ought to have the management of everything within their reach: that which exceeds their abilities must be conducted by their ministers.

拥有最高王权的人民应该自己去做他们能够做好的所有事情,而那些自己无法出色完成的事情就应该让其代理者去完成。


But they cannot properly be said to have their ministers, without the power of nominating them: it is, therefore, a fundamental maxim in this government, that the people should choose their ministers — that is, their magistrates.

Magistrate:地方法官,治安官

但是,如果那些代理者并非人民所指派,他们便不能成为人民的代理者。因此这种政体中存在着一个基本的准则,那就是由人民指派自己的代理者,他们被称之为行政官吏。

   

They have occasion, as well as monarchs, and even more so, to be directed by a council or senate. But to have a proper confidence in these, they should have the choosing of the members; whether the election be made by themselves, as at Athens, or by some magistrate deputed for that purpose, as on certain occasions was customary at Rome.

与君主们一样,人民甚至更加需要一个参政院或参议院来统领一切。但是,出于信任,其成员由人民选举。要么由人民直接挑选,像雅典的做法;要么由人民选举的官吏去挑选,罗马曾在特定情况下实行此种做法。

Depute:委派…为代表

 

The people are extremely well qualified for choosing those whom they are to entrust with part of their authority. They have only to be determined by things to which they cannot be strangers, and by facts that are obvious to sense.

Entrust:委托;交付

人民十分荣幸地挑选其委托人,将应当委托的某一部分权力给予他们。人民只依据他们众所周知的事情以及亲眼所见的事实时才能下决心挑选。


They can tell when a person has fought many battles, and been crowned with success; they are, therefore, capable of electing a general. 他们十分了解哪一位将领经常征战疆场,也同样知道他曾有过这样或那样的功勋;因此,他们对选择哪一位将领非常在行。


They can tell when a judge is assiduous in his office, gives general satisfaction, and has never been charged with bribery: this is sufficient for choosing a judge.

Assiduous:勤奋的;兢兢业业的

他们知道哪一位将领恪尽职守,且十分了解从法院归来的众人对他的满意程度,也同样知道他不曾有过受贿行为。人民所了解的这些情况足以使他们有能力选举一位法官。

They are struck with the magnificence or riches of a fellow-citizen; no more is requisite for electing an edile.

Magnificence:华丽,富丽堂皇 Edile:营造司(古罗马管理公有建筑物、街道等的官吏)

当人民被某位公民的慷慨大度或是他的丰厚财富所感动和感到惊讶时,人民也会因此而挑选他为参政会官员。


These are facts of which they can have better information in a public forum than a monarch in his palace. But are they capable of conducting an intricate affair, of seizing and improving the opportunity and critical moment of action? No; this surpasses their abilities.

Improve:利用(机会)

人民在公共场合探询而来的这些事实,要比身居深宫的君主了解得更清楚。那么,他们是否能够以此来处理某一事物,把握某些机会和时机呢?回答是否定的,实际上他们并不懂得这一切。

Should we doubt the people's natural capacity, in respect to the discernment of merit, we need only cast an eye on the series of surprising elections made by the Athenians and Romans; which no one surely will attribute to hazard.

Hazard:斗胆提出;作无把握猜测

如果有人对于人民这种辨别能力心存疑虑的话,只要去探询一番雅典人和罗马人的一系列接连不断的令人叹为观止的选择,就足以使人信服,他们的选择绝对不是巧合。

   

We know that though the people of Rome assumed the right of raising plebeians to public offices, yet they never would exert this power; and though at Athens the magistrates were allowed, by the law of Aristides, to be elected from all the different classes of inhabitants, there never was a case, says Xenophon,when the common people petitioned for employments which could endanger either their security or their glory.

Petition:祈求;请求;请愿

正如人们熟知的那样,在罗马,尽管罗马人民拥有提拔一个平民担任公职的权力,然而他们却从未决定选择过平民。在雅典,尽管依据阿里斯蒂德法,可以从社会的任何等级中提拔官吏,然而据色诺芬称:“从未有过下层平民请求获得过与存亡或者荣誉相关的职位。”


As most citizens have sufficient ability to choose, though unqualified to be chosen, so the people, though capable of calling others to an account for their administration, are incapable of conducting the administration themselves.

正如绝大多数公民虽然有充分的能力参加选举,他们却没有相应的被选举的资格。如出一辙,人民具有相当的能力听取他人交代事务管理的情况,他们自己却并不适合处理有关事务。

The public business must be carried on with a certain motion, neither too quick nor too slow. But the motion of the people is always either too remiss or too violent. Sometimes with a hundred thousand arms they overturn all before them; and sometimes with a hundred thousand feet they creep like insects.

remiss:懈怠的;疏忽的

公众事务须根据特定节奏进行,既不能太缓慢,也不能太迅速。但是人民的行为往往总是过于懈怠,或是过于激进。有时候十万只手臂能掀翻一切;而有时候十万只脚只能像昆虫一样蠕行。


In a popular state the inhabitants are divided into certain classes. It is in the manner of making this division that great legislators have signalised themselves; and it is on this the duration and prosperity of democracy have ever depended.

Signalize:使著名;使显著

民主政体中的人民被划分为若干个等级。伟大的立法者正是通过划分等级的方式而称著于世。这些等级划分的方式往往与民主政治的持续时间和繁荣程度相关联。


Servius Tullius followed the spirit of aristocracy in the distribution of his classes. We find in Livy and in Dionysius Halicarnassus, in what manner he lodged the right of suffrage in the hands of the principal citizens.

Lodge:把(权利、权威等)授予

塞尔维乌斯·图里乌斯的等级划分法遵循的是贵族政体的精神。我们可以从狄德·李维和狄欧尼西乌斯·哈利卡尔拿苏斯的著作里看到他是怎样将选举权赋予高等级的公民。


He had divided the people of Rome into 193 centuries, which formed six classes; and ranking the rich, who were in smaller numbers, in the first centuries, and those in middling circumstances, who were more numerous, in the next, he flung the indigent multitude into the last; and as each century had but one vote it was property rather than numbers that decided the election.

Indigent:贫穷的;贫困的

他把罗马人分为一百九十三个“百人队”,这些团队又被划分为六个等级。少数富人被划分在最高级别的团队之中;相对较富而人数较多的人们被划分在其次的团队中;所有贫民被他置于最后的一个团队里;而每个团队只有投一票的权利。所以,与其说是人在参加选举,不如说是资产与财富在参加选举。


Solon divided the people of Athens into four classes. In this he was directed by the spirit of democracy, his intention not being to fix those who were to choose, but such as were eligible:

梭伦将雅典人划分为四个等级。这一划分是在民主精神引导下进行的。他把人民划分为等级,并不是以此规定什么人应该参加选举,而是确定什么人能够被选举。


therefore, leaving to every citizen the right of election, he made the judges eligible from each of those four classes; but the magistrates he ordered to be chosen only out of the first three, consisting of persons of easy fortunes.

他让每个公民都拥有被选举权,四个等级中的每一个等级中都可以选举产生“法官”,但是只有前三个等级中才能选举产生“行政官员”。这三个等级都是富裕的公民。


As the division of those who have a right of suffrage is a fundamental law in republics, so the manner of giving this suffrage is another fundamental.

The suffrage by lot is natural to democracy; as that by choice is to aristocracy.

在共和政体中划分拥有选举权的人是一项基本法律,因此进行选举的方式则是另一项基本法律。

用抽签方式进行选举具有民主政治的性质;运用挑选的方式进行选举则具有贵族政治的性质。

   

The suffrage by lot is a method of electing that offends no one, but animates each citizen with the pleasing hope of serving his country.

Yet as this method is in itself defective, it has been the endeavour of the most eminent legislators to regulate and amend it.

抽签选举的方式不会使任何人怨愤。这种方式可以激发每个公民为祖国服务的欲望。

但是,这种方式有其自身的缺陷,这也正是那些伟大的立法者竭力加以调整和纠正的理由所在。


Solon made a law at Athens that military employments should be conferred by choice; but that senators and judges should be elected by lot.

The same legislator ordained that civil magistracies, attended with great expense, should be given by choice; and the others by lot.

Confer:授予,赋予   ordain:任命   attended:[常用被动语态](作为结果、情况)伴随

在雅典,梭伦规定:用挑选方式任命所有的军事职务。参议员和法官以抽签的方式选举产生。他规定那些耗费巨资的文官以挑选的方式任命,其他文官通过抽签给予。


In order, however, to amend the suffrage by lot, he made a rule that none but those who presented themselves should be elected; that the person elected should be examined by judges and that every one should have a right to accuse him if he were unworthy of the office:  this participated at the same time of the suffrage by lot, and of that by choice.

participate:参与;参加

但是,为了修正抽签选举,他调整为:当选的人必须通过自我推荐;还将接受评判官的审查;而且每个人都有权对不合资格的候选人提出指控。这样就让抽签和挑选方式兼而有之。


When the time of their magistracy had expired, they were obliged to submit to another judgment in regard to their conduct. Persons utterly unqualified must have been extremely backward in giving in their names to be drawn by lot.

当官吏结束他的任期时,必须接受另一次对他任期内品行和表现的评价。没有能力的人,在自荐抽签选举时,当然会十分勉强地提出自己的姓名。


The law which determines the manner of giving suffrage is likewise fundamental in a democracy. It is a question of some importance whether the suffrages ought to be public or secret.

规定投票选举的方式也是民主政治中又一项基本法律。选择应该是公开地进行,还是秘密地进行,是一个重大的问题。


Cicero observes that the laws which rendered them secret towards the close of the republic were the cause of its decline. But as this is differently practised in different republics, I shall offer here my thoughts concerning this subject.

西塞罗曾指出,在罗马共和国的末期,规定选举应秘密进行,这也终于成为使共和国覆灭的重大原因之一。但是秘密投票方式在不同的共和国有着各种各样的方式,我认为这正是应该认真思索之处。


The people's suffrages ought doubtless to be public and this should be considered as a fundamental law of democracy. The lower class ought to be directed by those of higher rank, and restrained within bounds by the gravity of eminent personages. Hence, by rendering the suffrages secret in the Roman republic, all was lost; it was no longer possible to direct a populace that sought its own destruction. 

毫无疑问,人民行使其选举权时,选举理应公开进行;这应该被视为民主政治的一项基本法律。地位卑微的民众应得到权贵的指导,并应受到某些重要人物的约束;因此,在罗马共和国时期,当实行秘密选举时,一切都被破坏殆尽;指导迷途羔羊般的民众已不存在可能性。而在贵族政体下,贵族阶层行使选举权[3],或是在民主政体之下参议院行使选举权[4],其共同的目的就是防止阴谋诡计,因此,其选举不会在过分秘密的状态下进行。


But when the body of the nobles are to vote in an aristocracy or in a democracy the senate as the business is then only to prevent intrigues, the suffrages cannot be too secret.

Intriguing in a senate is dangerous; it is dangerous also in a body of nobles; but not so among the people, whose nature is to act through passion. In countries where they have no share in the government, we often see them as much inflamed on account of an actor as ever they could be for the welfare of the state.

对于参议院而言,阴谋诡计是危险的;对于贵族团体亦然。但是对于人民并非如此,因为人民都非常情绪化。

在人民没有资格参加政事的国家中,人民会像操心国家事务那样为某一位演员而狂热。


The misfortune of a republic is when intrigues are at an end; which happens when the people are gained by bribery and corruption: in this case they grow indifferent to public affairs, and avarice becomes their predominant passion. Unconcerned about the government and everything belonging to it, they quietly wait for their hire.

avarice:贪婪

当没有阴谋诡计的时候,也预示着共和国的悲哀将至。这一切发生在人民被人用金钱收买的情况下。人民变成了冷血动物,他们迷恋金钱,不再热衷于国事。他们并不为政府分忧,而是悠然地等待着薪金。


It is likewise a fundamental law in democracies, that the people should have the sole power to enact laws. And yet there are a thousand occasions on which it is necessary the senate should have the power of decreeing; nay, it is frequently proper to make some trial of a law before it is established. The constitutions of Rome and Athens were excellent. The decrees of the senate had the force of laws for the space of a year, but did not become perpetual till they were ratified by the consent of the people.

decree:颁布…为法令   ratify:批准,签认(合约等)

还有一条民主政治的基本法律,就是只有人民才能制定法律。然而,在众多的场合却十分有必要由元老院制定;某项法律在最终确定之前试行一番,往往是切实可行的手段。罗马和雅典政体对此十分明智。元老院决议的法律效力只有一年;而这些决议只有取得人民的同意才能成为永久性的法律。



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