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SECTION THE NINTH.
THE LEGAL POLICY OF THE UNITED STATES.
Montesquieu’s analysis of forms of government, is neither moral nor numerical. He divides them into "republican, monarchical, and despotick," and the presence or absence of law constitutes his criterion of liberty and despotism. But having by these definitions disclosed a partiality for his country, he proceeds to truth, by proving that civil laws are the instruments for fostering or destroying both free and despotick governments, and that neither can be preserved, except by an analogy of legal to constitutional principles. Whatever analysis of governments we adopt, must also be an analysis for legislation. If we adopt the numerical, the same laws cannot be congenial with the three, nor with any two of its forms; if the moral, it is still more difficult to reconcile the same laws, with both good and bad principles. The necessity of civil law, to foster or impair every form of government, makes it equally indispensable to a free nation and a monarch, to be able to distinguish its character and effects, for the preservation of liberty or despotism. A conviction that republican forms beget the first, and monarchical the second, united with an ignorance of the laws adapted to the preservation or introduction of either, excites the fermentation of mobs, and ends in the tranquillity of tyranny.
An incapacity to discern the difference between a power to divide and to protect property, or between a national militia and a mercenary army, is an incapacity for the preservation of a free government. As the first member of each contrast corrupts or enervates nations, they belong to
