MONTESQUIEU.
One man stands out among the French nobility of the gown in the
eighteenth century, influencing human thought beyond the walls of the
court-room; one Philosopher who looks on existing society as something
to be saved and directed. The work of Voltaire and his followers was
principally negative. Their favorite task was demolition. The ugly and
uninhabitable edifices of Rousseau's genius required for their erection
a field from which all possible traces of civilized building had been
removed. But Montesquieu, while he satirized the vices of the society
which he saw about him, yet appreciated at their full value the benefits
of civilization. He recognized that change is always accompanied by
evil, even if its preponderating result be good, and that it should be
attempted only with care and caution. His ideas influenced the leading
men of the second half of the century somewhat in proportion to their
judgment and in inverse proportion to their enthusiasm.
Charles Louis de Secondat, Baron of Montesquieu, born in 1689, was by
inheritance one of the presidents of the Parliament of Bordeaux.
[Footnote: In his youth he was known as Charles Louis de la Brède, the
name being taken from a fief of his mother. The name of Montesquieu he
inherited from an uncle, together with his place of _président à
mortier_. Vian, _Histoire de Montesquieu_, 16, 30.] He was recognized
in early life as a rising man, a respectable magistrate, sensible and
brilliant rather than learned; a man of the world, rich and thrifty,
not very happily married, and fond of the society of ladies. In
appearance he was ugly, with a large head, weak eyes, a big nose, a
retreating forehead and chin. In temperament he was calm and cheerful.
"I have had very few sorrows," he says, "and still less
ennui."--"Study has been to me a sovereign remedy against the troubles
of life, and I have never had a grief that an hour's reading would not
dissipate." He was shy, he tells us, but less among bright people than
among stupid ones. Good-natured he appears to have been, and somewhat
selfish; easily amused, less by what people said than by their way of
saying it. He was a good landlord and a kind master. It is told of him
that one day, while scolding one of his servants, he turned round with
a laugh to a friend standing by. "They are like clocks," said he, "and
need winding up now and then".[Footnote: See the medallion given in
Vian, and said by the _Biographie universelle_ to be the only
authentic portrait. Also Montesq. vii. 150, (_Pensées diverses.
Portrait de M. par lui-même_, apparently written when he was about
forty). Also Vian, 141.]
Montesquieu set himself a high standard of duty. In a paper intended
only for his son, he writes: "If I knew something which was useful to
myself and injurious to my family, I should reject it from my mind. If I
knew of anything which was useful to my family and which was not so to
my country, I should try to forget it. If I knew something useful to my
country, which was injurious to Europe and the human race, I should
consider it a crime."[Footnote: Montesq., vii. 157.]
Montesquieu's first book appeared in 1721, a book very different from
those which followed it. It is witty and licentious after a rather
stately fashion, full of keen observation and cutting satire. In
contrast to the books of other famous writers of the century, the
"Persian Letters" are eminently the work of a gentleman;--of a French
gentleman, when the Duke of Orléans was Regent.
The "Lettres Persanes" are, as their name suggests, the supposed
correspondence of two rich Persians, Usbek and Rica, traveling in France
and exchanging letters with their friends and their eunuchs in Persia.
The letters which the travelers receive, containing the gossip of their
harems, form but the smaller portion of the book, and are evidently
intended to give it variety and lightness. In the letters which they
write to their Persian correspondents we have the satirical picture of
French society. How far had the ruling, infallible church sunk in the
minds of Frenchmen, when a well-placed and rather selfish man could
write what follows.
"The Pope is the chief of the Christians. He is an old idol, to which
people burn incense from the force of habit. In old times he was
formidable even to princes; for he deposed them as easily as our
magnificent Sultans depose the kings of Irimette and of Georgia. But he
is no longer feared. He calls himself the successor of one of the
earliest Christians, known as Saint Peter; and it is certainly a rich
inheritance, for he has enormous treasures and a rich country under his
dominion."
The bishops are legists, subordinate to the Pope. They have two
functions. When assembled they make articles of faith as he does. When
separate, they dispense people from obeying the law. For the Christian
religion is full of difficult observances; and it is thought to be
harder to do your duty than to have bishops to give you dispensation.
The doctors, bishops, and monks are constantly raising questions on
religious subjects, and dispute for a long time, until at last an
assembly is held to decide among them. In no kingdom have there been as
many civil wars as in that of Christ.[Footnote: Montesq., i. 124.
Letter xxix.]
Farther on we have a picture of the way in which religion is regarded in
French society. It is less a subject of sanctification than of dispute.
Courtiers, soldiers, even women, rise up against ecclesiastics and ask
them to prove what the others have resolved not to believe. This is not
because people have determined their minds by reason, nor that they have
taken the trouble to examine the truth or falsehood of this religion
which they reject. They are rebels who have felt the yoke and who have
shaken it off before they have known it. They are, therefore, no firmer
in their unbelief than in their faith. They live in an ebbing and
flowing tide, which unceasingly carries them from one to the other.
[Footnote: Montesq., i. 251. Letter lxxv.] Making a large allowance for
satire, we have yet an interesting and doleful picture of a small but
important part of the French nation. And it is noticeable that the
Persian Letters precede by thirteen years Voltaire's "Philosophical," or
"English Letters."[Footnote: 1721-1734.]
Montesquieu argues that it is well to have several sects in a country,
as they keep a watch on each other, and every man is anxious not to
disgrace his party. But it is for toleration and not for equality that
the author pleads. A state church seemed almost necessary to thought in
the early part of the eighteenth century. Yet Montesquieu has no great
liking for any form of dogmatic religion; in this he belongs distinctly
with the Philosophers; morality is, in his eyes, the great, perhaps the
only thing to be desired; obedience to law, love to men, filial piety,
those, he says, are the first acts of all religions; ceremonies are good
only on the supposition that God has commanded them; but about the
commands of God it is easy to be mistaken, for there are two thousand
religions, each of which puts in its claim. Thus was the great argument
of the Catholics, that the multiplicity of Protestant sects--provided
their falsity, turned against its inventors.[Footnote: Ibid., i. 164.
Letter xlvi. Compare with Montesquieu's opinion, expressed in the
_Spirit of the Laws_, that the sovereign should neither allow the
establishment of a new form of religion, nor persecute one already
established.]
The licentiousness of the "Persian Letters" has been mentioned. It is
one of the most noticeable features of the writings of the Philosophers
of the eighteenth century that the whole subject of sexual morality is
viewed by them from a standpoint different from that taken by ourselves.
The thinking Frenchmen of that age believed that there was a system of
natural morals, imposed on man by his own nature and the nature of
things. They believed that there was also an artificial system resting
only on positive law, or on the ordinances of the church. It was the
tendency of the ecclesiastical mind to ignore that distinction. That
tendency had been pushed too far and had produced a reaction.
The distinction is one which is not quite disregarded even by men of
those races which have most respect for law. Nobody feels that the
injunction to keep off the grass in a public park, or the rule to pass
to the right in driving, is of quite the same sort of obligation as
the precept to keep your hands from picking and stealing. A far
greater amount of odium is incurred by the known breach of a rule of
natural morals, than by that of a rule depending solely on the
ordinance of the legislative power. Smuggling may be mentioned as a
crime coming near the dividing line in the popular feeling of most
countries. Few men would feel as much disgraced at being caught by a
custom-house officer, with a box of cigars hidden under the trowsers
at the bottom of their trunk, as at being seized in the act of
stealing the same box from the counter of a tobacconist. In countries
where the laws are arbitrary and the law-making power distrusted, this
distinction is more strongly marked than where the government has the
full confidence and approbation of the community. The more progressive
Frenchmen of a hundred and fifty years ago believed the laws of their
country to be bad in many respects. They therefore thought that there
was a great difference between what jurists call _prohibited wrong_
and _wrong in itself_.
Now, admitting this distinction to exist in men's minds, there is one
large class of crimes and vices which is put in one category by most
Anglo-Saxons and which was put in the other by the French Philosophers.
These are the breaches of the sexual laws. It is one of the greatest
services of the church to Christendom that she has always laid
particular emphasis on the duty of chastity. It is one of her greatest
errors, that she has exalted the practice of celibacy over that of
conjugal fidelity. The Philosophers, as was their custom, looked abroad
on the practice of various nations. They found that some of the ancients
granted divorce freely at the request of either party. They learned that
Orientals generally allowed polygamy. They saw in their own country a
low state of sexual morals among the highest classes, partly due perhaps
to the example of a depraved court. Observation and desire concurred
with hatred of the clergy to warp their judgments. They forgot, at least
in part, that chastity is the foundation of the family and the civilized
state; that divorce and polygamy, although of momentous importance, are
but secondary questions; that on sexual self-restraint civilization
rests, as much as on respect for life and property. On the false theory
that unchastity is but an artificial crime, the delusive invention of an
ascetic church, will, I think, be found to depend much that has been
worst in the practice of Frenchmen, much that is most disgusting in
their literature.[Footnote: The commandment "Thou shalt not commit
adultery" is equally applicable to polygamists and monogamists. It was
originally promulgated to the former, and to a nation in which a man
could put away his wife.]
This theory is seldom held unreservedly. In the "Persian Letters" it
goes no farther than an elaborate apology for divorce, a scathing
denunciation of celibacy, and a general licentiousness of tone. The
later writings of Montesquieu are free from indecency. But it is
noticeable of him, perhaps the most high-minded of the Philosophers, and
of the rest of them, that while they constantly insist on the importance
of virtue, they hardly rank chastity among the virtues.[Footnote: See
the story of a Guebir who marries his sister, Montesq., i. 226, Letter
lxvii. The point appears to be that the laws forbidding marriage in
cases of consanguinity are arbitrary.]
The monarchy fares little better than the church in the "Persian
Letters." "The King of France," says Rica, "is the most powerful prince
in Europe. He has no gold-mines like his neighbor the King of Spain; but
he has more wealth than the latter, for he draws it from the vanity of
his subjects, more inexhaustible than mines. He has been known to
undertake and carry on great wars, with no other resource than titles of
honor to sell; and by a prodigy of human pride, his troops were paid,
his forts furnished, his fleets equipped."
"Moreover, this king is a great magician; he rules the very minds of his
subjects; he makes them think as he pleases. If he has only one million
dollars in his treasury and needs two, he has but to assure them that
one dollar is worth two, and they believe him. If he has a difficult war
to carry on, and has no money, he has but to put it into their heads
that a piece of paper is bullion, and immediately they are convinced. He
even goes so far as to make them believe that he cures them of all
manner of diseases by touching them. Such is the strength and power that
he has over their minds."[Footnote: Ibid., i. 110, Letter xxiv.
Referring to the sale of offices and titles, to the habit of debasing
the coinage, and to that of touching for scrofula.]
"What I tell you of this prince need not astonish you, There is another
magician stronger than he; who is no less master of the king's spirit,
than the king himself is of that of others. This magician is called the
Pope. Sometimes he makes the king believe that three are only one; that
the bread people eat is not bread, that the wine that they drink is not
wine, and many things of the same kind."
Rica has seen the young king, Louis XV. His countenance is majestic and
charming; a good education, added to a good natural disposition, gives
promise of a great sovereign. But Rica is informed that you cannot tell
about these western kings until you know of their mistress and their
confessor. "Under a young prince these exercise rival powers; under an
old one, they are united. The strength of a young king makes the dervish
weak; but the mistress turns both strength and weakness to account."
[Footnote: Montesq., i. 339, Letter cvii.]
The Christian princes long ago freed all the slaves in their states;
saying that Christianity made all men equal. This religious action was
very useful to them, for it abridged the power of their chief lords.
Since then, they have conquered new countries where slavery was
profitable. They have forgotten their religion and allowed slaves to be
bought and sold.[Footnote: Ibid., i. 252, Letter lxxv.]
The French are more governed by the laws of honor than the Persians,
because they are more free. But the sanctuary of honor, reputation, and
virtue seems to be built in republics, where a man may feel that he has
indeed a country. In Greece and Rome a crown of leaves, a statue, the
praise of the state, were recompense enough for a battle won or a city
taken. Switzerland and Holland, with the poorest soil in Europe, are
the most populous countries for their area. Liberty--and opulence,
which always follows it--draws strangers to the country. Political
equality among citizens generally produces equality of fortune, and
scatters abundance and life.
But under an arbitrary government, the prince, his courtiers, and a few
individuals, possess all the wealth, while the rest of the country
suffers from extreme poverty.[Footnote: Montesq., i. 291, Letter
lxxxix. See also pp. 381, 386, Letters cxxii., cxxiv.]
The satirical character of the "Persian Letters" is sufficiently evident
from the extracts given above. But Montesquieu is far more widely and
justly known as a wise and learned writer on government than as a
satirist. The book we have been considering was by far the lightest, as
it was the earliest, of his considerable writings. The good sense,
caution, and conservatism of his nature appear in the "Persian Letters"
less conspicuously than in his later works; yet, even there, are in
marked contrast to the haste and shallowness of many of the
Philosophers. "It is true'," he says, "that laws must sometimes be
altered, but the case is rare; and when it happens, they should be
touched with a trembling hand; and so many solemnities should be
observed, and so many precautions used, that the people may naturally
conclude that the laws are very sacred, since so many formalities are
necessary to abrogate them."[Footnote: Ibid., i. 401, Letter cxxix.]
Here is an opinion, overstated perhaps, but not without its frequent
illustrations since he wrote it. "It seems ... that the largest heads
grow narrow when they are assembled, and that where there are, most wise
men, there is least wisdom. Large bodies are always deeply attached to
details, to vain customs; and essential matters are always postponed. I
have heard that a king of Aragon, having assembled the Estates of Aragon
and Catalonia, the first meetings were taken up in deciding in what
language the deliberations should be held. The dispute was lively, and
the Estates would have broken up a thousand times, had not an expedient
been hit upon, which was that the questions should be put in Catalonian
and the answers given in Aragonese."[Footnote: Montesq., i. 344, Letter
cix. See several of the principal deliberative bodies of the world so
bound by their own rules that they can scarcely move; and compare with
them in point of efficiency the small legislatures and boards which
manage many important and complicated interests promptly, sitting with
closed doors.]
"I have never heard people talk about public law," he says in another
letter, "that they did not inquire carefully what was the origin of
society; which strikes me as absurd. If men did not form a society, if
they separated and fled from each other, we should have to ask the
reason of it, and to seek out why they kept apart. But they are created
all bound to each other, the son is born near his father and stays
there; this is society, and the cause of society."[Footnote: Ibid., i.
301, Letter xciv.]
A satirical book, like the "Persian Letters," could not have been openly
published in France under Louis XV. The first edition was in fact
printed at Amsterdam, although Cologne appeared on the title-page as the
place of publication. The book was anonymous, but Montesquieu was well
known to be the author, and speedily acquired a great reputation. After
several years, for things did not move fast in Old France, he was
proposed for election to the Academy. To be one of the forty members of
that body is the legitimate ambition of the literary Frenchman. The
Cardinal de Fleury, who was prime minister, is said to have announced
that the king would never consent to the election of the author of the
"Persian Letters." He added that he had not read the book, but that
people in whom he had confidence assured him that it was dangerous.
According to Voltaire, Montesquieu thereupon had a garbled edition of
the Letters hastily printed, himself took a copy to the Cardinal,
induced His Eminence to read a part of it, and, with the help of
friends, prevailed on him to alter his decision. Such a trick is more
worthy of Voltaire, who continually denied his own works, than of
Montesquieu, who, I believe, never did so. D'Alembert tells the story in
a way entirely creditable to the latter. He says that Montesquieu saw
the minister, told him that for private reasons he did not give his name
to the "Persian Letters," but that he was far from disowning a book of
which he did not think he had cause to be ashamed. He then insisted that
the Letters should be judged after reading them, and not on hearsay.
Thereupon the Cardinal read the book, was pleased with it and with its
author, and withdrew his opposition to the latter's election to the
Academy.[Footnote: _Nouvelle Biographie Universelle. Voltaire (Siècle
de Louis XIV. liste des écrivains)_. D'Alembert, vi. 252. The date of
Montesquieu's election was Jan. 24, 1728. See a discussion of the whole
story in Vian, 100. Montesquieu is there said to have threatened to
leave France, and to have declined a pension at this time. Montesquieu
tells the story of the pension, but without fixing a date: "Je dis que
n'ayant pas fait de bassesse, je n'avais pas besoin d'etre consolé par
des graces," vii. 157. Voltaire was always jealous of Montesquieu's
reputation; and also, at this time, out of temper with the Academy, to
which he was elected only in 1746.]
A little before this time Montesquieu resigned his place as one of the
presidents of the Parliament of Bordeaux, selling the life estate in it,
but reserving the reversion for his son. Having thus obtained leisure,
he set out on a long course of travel, lasting three years. "In France,"
said he later, "I make friends with everybody; in England with nobody;
in Italy I make compliments to every one; in Germany I drink with every
one." "When I go into a country, I do not look to see if there are good
laws, but whether they execute those they have; for there are good laws
everywhere."[Footnote: Vian, 90. Montesq. vii. 186, 189.]
Montesquieu arrived in England in the autumn of 1729, sailing from
Holland in the yacht of Lord Chesterfield, whose acquaintance he had
made on the Continent. He spent seventeen months in the country, and, in
spite of his epigram about making friends with nobody, saw some of the
most eminent men, including Swift and Pope, was received by the Royal
Society, and presented at Court. At a time when England and the English
language were little known in France, he studied them in a way which
deeply influenced all his views of government. "In London," he says,
"liberty and equality. The liberty of London is the liberty of the best
people,[Footnote: _Honnestes gens,_ which cannot be exactly
translated. Montesq., vii. 185. Vian, 112.] in which it differs from the
liberty of Venice, "which is the liberty of debauchery." The equality of
London is also the equality of the best people, in which it differs from
the liberty of Holland, which is the liberty of the populace."
"England is at present the most free country in the world; I do not
except any republic. I call it free because the prince can do no
conceivable harm to anybody; because his power is controlled and limited
by a law. But if the lower chamber should become them mistress, its
power would be unlimited and dangerous, because it would have executive
power also; whereas now unlimited power is in the parliament and the
king, and the executive power in the king, whose power is limited. A
good Englishman must, therefore, seek to defend liberty equally against
the attacks of the crown and those of the chamber."[Footnote: Montesq.,
vii. 195 (_Notes sur l'Angleterre_).]
Montesquieu brought back from England an admiration of what he had seen
there as genuine, and far more discriminating than that of Voltaire.
While the studies of Montesquieu were principally directed to the
political institutions of the country, those of Voltaire embraced the
philosophy and social life of England. Through these two great men, more
perhaps than through any others, English ideas were spread in France in
the middle of the eighteenth century.[Footnote: Voltaire returned from
England a few months before Montesquieu went there in 1729.]
Montesquieu now went on with his studies with an enlarged mind. He would
appear, before he started on his travels, to have already formed the
project of writing a great work on the Spirit of the Laws. But in 1784
he published a smaller book, the "Greatness and Decadence of the
Romans." It is said that this essay was composed of a part of the
material collected for the Spirit of the Laws, and was published
separately in order not to give the Romans too large a place in the more
important work. This has been doubted, but there is nothing either in
the subject or in the treatment to make it improbable. Nor is it
important, so long as between the two books there is unity of purpose
and agreement of method.
The "Greatness and Decadence of the Romans" is a study of philosophic
history. In form it is not unlike Machiavelli's Discourses on the first
ten books of Livy. That remarkable work would have been most profitable
reading for Frenchmen of the eighteenth century, as it must be in all
times for students of the science of politics. Of republics Machiavelli
had more experience than Montesquieu. Both considered the republican
form of government the most desirable; both thought it impossible
without the preservation of substantial equality of property among the
citizens. Montesquieu, who knew more of monarchy than Machiavelli, had
also more faith in it. Both hated the Rule of the Roman Church.
[Footnote: Machiavelli, ii. 210. Montesq., ii. 136, 140. Mach., ii.
130.] The Frenchman excels the Italian in practical wisdom; he is also
more brilliant. By his brilliancy he may sometimes have been led away,
but I think not often. While we feel in reading Voltaire that the
sparkling point is often the cause of the saying, with Montesquieu we
are generally struck with the weight of thought in what we read.
"The tyranny of a prince," says Montesquieu, "does not bring him
nearer to ruin, than indifference to the public good brings a
republic. The advantage of a free state is that the revenues are
better administered--but how if they are worse? The advantage of a
free state is that there are no favorites; but when that is not the
case, and when instead of enriching the prince's friends and
relations, all the friends and relations of all those who share in the
government have to be enriched, all is lost; the laws are evaded more
dangerously than they are violated by a prince, who, being always the
greatest citizen of a state, has the most interest in its
preservation."[Footnote: Montesq., ii. 139.]
Kings, as Montesquieu points out, are less envied than aristocracies;
for the king is too far above most of his subjects to excite
comparisons, while the nobility is not so placed. Republics, where birth
confers no privileges, are, he thinks, happier in this respect than
other countries; for the people can envy but little an authority which
it grants and withdraws at its pleasure. Montesquieu forgets that every
chance to rise which excites in the strong and virtuous a noble
emulation, will cause in the weak and sour the corresponding base
passion of envy. Complete despotism he believes to be impossible. There
is in every nation a general spirit on which all power is founded.
Against this, the ruler is powerless. It is wise not to disturb
established forms and institutions, for the very causes which have made
them last hitherto may maintain them in the future, and these causes are
often complicated and unknown. When the system is changed, theoretic
difficulties may be overcome, but drawbacks remain which only use can
show. It is folly in conquerors to wish to make the conquered adopt new
laws and customs, and it is useless; for under any form of government,
subjects can obey. Men are never more offended than when their
ceremonies and customs are interfered with. Oppression is sometimes a
proof of the esteem in which they are held; interference with their
customs is always a mark of contempt.[Footnote: Montesq., ii. 181, 315,
316, 266, 174, 209.]
Such are some of the general opinions of Montesquieu, found in the
"Greatness and Decadence of the Romans." In the same book occurs the
expression of an idea (afterwards repeated and worked out), which was to
be perhaps the most fruitful of his teachings. "The laws of Rome," he
says, "had wisely divided the public power among a great number of
offices, which sustained, arrested, and moderated each other; and as
each had but a limited power, every citizen was capable of attaining to
any one of them; and the people, seeing several persons pass before it
one after the other, became accustomed to none of them."[Footnote:
Ibid., ii. 200.]
This idea that the division of power was highly desirable, that a system
of checks and balances in government would tend to secure freedom, never
took firm root in France. Indeed, Montesquieu, as he himself had partly
foreseen, was more praised than read in his own country.[Footnote:
Ibid., vii. 157 (Pensées diverses. Portrait de M par lui-même).] But in
the distant colonies of America the "Greatness and Decadence of the
Romans" and the "Spirit of the Laws" found eager students. The thoughts
of Montesquieu were embodied in the constitutions of new states, whose
social and economic condition was not far removed from that which he
considered the most desirable. In these states the doctrine of the
division of powers was consciously and carefully adopted, with the most
beneficent results. This division was not a new idea to the American
colonists: it was already in a measure a part of their institutions. But
there can be little doubt that the idea was enforced in their minds by
being clearly stated by one of the writers on political subjects whom
they most admired.[Footnote: We have seen that Montesquieu had arrived
at this idea from the study of the English Constitution as it existed in
his day. In respect to the division of powers, the government of the
United States conforms far more nearly to his idea than does the present
government of England, in which the system of balanced powers has been
superseded by that of government by the Lower Chamber, of which he
pointed out the danger. The full results of this change will be known
only to future generations.]
Fourteen years had passed from the time of the publication of the
"Greatness and Decadence of the Romans," when in 1748 appeared the great
work of Montesquieu, the "Spirit of the Laws." The book is announced by
its author as something entirely original, "a child without a mother."
[Footnote: _Prolem sine matre creatam_, on the title-page.] Nor is
the claim altogether unfounded, although any reader familiar with the
"Politics" of Aristotle can hardly fail to observe the resemblance
between that great book and the other. Nor is it a detraction from the
genius of Montesquieu to say that the comparison will not be altogether
in his favor.
Montesquieu's scheme is announced in the title originally given to his
book. "Of the Spirit of the Laws, or of the relation which the laws
should have to the constitution of every government, manners, climate,
religion, commerce, etc. To which the author has added new researches
into the Roman laws concerning inheritance, into French laws, and into
feudal laws." Thus we see that the principal subject of the book is the
relation of laws to the circumstances of the country in which they
exist. In this also is its chief value and its claim to originality.
The Philosophers of the eighteenth century, following the example of the
churches, believed that there was an absolute standard of justice to
which all laws could easily be referred, independently of the country in
which the laws existed. If the laws of Naples differed from those of
Prussia, the laws which governed the phlegmatic Dutchman from those
which contained the excitable inhabitant of Marseilles, one or the other
set of laws, or both of them, must be wrong. The Civil Law of the Latin
races, the Common Law of England, each claimed to be the expression of
perfect abstract reason. The church with its canon, the same for all
races and climates, confirmed the theory. To all these came Montesquieu
with a teaching that would reconcile their claims.
"Law in general is human reason, in so far as it governs all the nations
of the earth; and the political and civil laws of each nation should be
but the particular cases to which that human reason is applied."
"They should be so adapted to the people for whom they are made, that it
is a very great chance if those of one nation will apply to another."
"They must be in relation to the nature and the principle of the
government which is established, or about to be established; whether
they form it, as do political laws; or maintain it, as do civil laws."
"They must be in relation to the _physical_ nature of the country;
to the frozen, burning, or temperate climate; to the quality of the
soil, the situation and size of the country; to the style of life of the
people, as farmers, hunters, or shepherds; they should be in relation to
the amount of liberty which the constitution may allow; to the religion
of the inhabitants, their inclinations, their wealth, their numbers,
their customs, their morals, and their manners. Finally, they have
relations to each other; they have them to their own origin, to the
object of the legislator, to the order of things on which they are
established. They should be considered from all these points of view."
"This is what I undertake to do in this work. I will examine all these
relations. They form together what is called `the Spirit of the Laws.'"
[Footnote: Montesq., iii. 99 (liv. i. c. 3).]
It will be noticed that Montesquieu by no means denies that there are
general principles of justice. On the contrary, he positively asserts
it.[Footnote: Ibid., iii. 91 (liv. i. c. 1).] But the great value of
his teaching consists in the other lesson. "It is better to say that the
government most in conformity with nature is that whose particular
disposition is most in relation to the disposition of the people for
which it is established." This principle may certainly be deduced from
Aristotle; but it was none the less necessary to teach it in the
eighteenth century; it is none the less necessary to teach it to-day.
[Footnote: Ibid., iii. 99; Aristotle, _Politics_, liv. vii. c. ii.]
The conception was a great one, so simple that it seems impossible that
it could ever have been missed; but it was combated with violence on its
announcement, and many brilliant and learned men have failed to grasp
it.[Footnote: Montesq., iv. 145 _n_] Such are the persons in our
own time who praise despotism in France, or who would set up
parliamentary government in India. Montesquieu probably carried his
theories too far. To the north he assigned energy and valor, as if the
most widely conquering nations that Europe had then known had been the
Norwegian and the Finn, instead of the Macedonian, the Italian, and the
Spaniard. Sterility of soil he considered favorable to republics,
fertility to monarchies. It was natural that a man in revolt against the
long spiritual tyranny that had oppressed thought in Europe should have
attributed excessive importance to material causes. Not the less did the
idea contain its share of truth. Nor was his statement of this, which we
may call his favorite theory, always excessive. "Several things," he
says, "govern man; climate, religion, laws, the maxims of government,
the examples of things past, morals, manners; whence comes a general
spirit which is their result. Sometimes one of these forces dominates
and sometimes another."[Footnote: Montesq., iv. 307 (liv. xix. c. 4).]
It may be noted of Montesquieu, and as often of Voltaire, that each of
them is constantly led astray by imperfect knowledge of foreign, and
especially of barbarous and savage nations. Since the voyages and
conquests of the Renaissance, accounts of strange countries had abounded
in Europe, written in many cases by men anything but accurate, if not,
in the words of Macaulay, "liars by a double right, as travellers and as
Jesuits."[Footnote: _Essay on Machiavelli_.] The writers of a
hundred and fifty years ago could use no better material than was to be
had. They wished to draw instruction from distant objects, and their
spy-glasses distorted shapes and modified colors. Imperfect knowledge of
foreign countries sometimes led Montesquieu into curious mistakes; yet
these affected his illustrations oftener than his theories.
Having stated his general doctrine, Montesquieu proceeds to apply it. As
laws should be adapted to the nature of the government of each country,
it is essential to study that nature, and to consider what is the
_principle_, or motive force of each form of government. "There is
this difference," he says, "between the nature of the government and its
principle: that its nature is what makes it such as it is, and its
principle what makes it act. One is its especial structure, and the
other the human passions which cause it to operate."[Footnote:
Montesq., iii, 120 (liv. iii. c. 1).]
Four kinds of government are recognized by Montesquieu: democratic,
aristocratic, monarchical, and despotic. The principle of democracy he
holds to be _virtue_, without which popular government cannot
continue to exist.[Footnote: Montesq., iii. 122 (liv. iii. c. 3).] An
aristocratic state needs less virtue, because the people is kept in
check by the nobles. But the nobility can with difficulty repress the
members of their own order, and do justice for their crimes. In default
of great virtue, however, an aristocratic state can exist if the ruling
class will practice _moderation_.[Footnote: Ibid., iii. 126 (liv.
c. 4).] In monarchies great things can be done with little virtue, for
in them there is another moving principle, which is honor.[Footnote:
Ibid., iii. 128 (liv. iii. c. 5, 6, and 7).] This sort of government is
founded on the prejudice of each person and each sort of men; it rests
on ranks, preferences, and distinctions, so that emulation often
supplies the place of virtue. In a monarchy there will be many tolerable
citizens, but seldom a very good man, who loves the state better than
himself. The motive principle of a despotism is _fear_[Footnote:
Ibid., iii. 135 (liv. iii. c. 9).]; for in despotic states virtue is
unnecessary, and honor would be dangerous. These qualities of virtue,
honor, and fear, may not exist in every republic, monarchy, and
despotism; but they should do so, if the government is to be perfect of
its kind.[Footnote: Ibid., iii. 140 (liv. iii. c. 11).]
It is worth while to remember, when considering the "Spirit of the
Laws," that Montesquieu oftenest had in his mind, when speaking of
democratic republics, those of Greece; when speaking of aristocratic
republics, early Rome and Venice; of monarchies, France and England; of
despotisms, the East.[Footnote: But he sometimes refers to England as a
country where a republic is hidden under the forms of a monarchy.
Montesq, iii. 216 (liv. V. c. 19).]
Under each form of government, education and the laws should work
together to strengthen the motive principle belonging to that form.
Especially is this necessary in republics, for honor, which sustains
monarchies, is favored by the passions; but virtue, on which democracies
depend, implies renunciation of self. Virtue, in a republic, is love of
the republic itself, which leads to good morals; the public good is set
above private gratification. Thus we see that monks love their order the
more, the more austere is its rule. The love of the state, in a
democracy, becomes the love of equality, and thus limits ambition to the
desire to render great services to the republic. The love of equality
and frugality are principally excited by equality and frugality
themselves, when both are established by law. The laws of a democratic
state should encourage equality in every way; as by forbidding last
wills, and preventing the acquisition of large landed estates. In a
democracy all men contract an enormous debt to the state at their birth,
and, do what they may, they can never repay it. There should be no great
wealth in the hands of private persons, because such wealth confers
power and furnishes delights which are contrary to equality. Domestic
frugality should make public expenditure possible. Even talents should
be but moderate. But if a democratic republic be founded on commerce,
individuals may safely possess great riches; for the spirit of commerce
brings with it that of frugality, economy, moderation, labor, wisdom,
tranquillity, and order.
It is very important in a democracy to keep old laws and customs; for
things tend to degenerate, and a corrupted nation seldom does anything
great. To maintain an aristocratic republic, moderation is necessary.
The nobles should be simple in their lives and hardly distinguishable
from plebeians. Distinctions offensive to pride, such as laws
forbidding intermarriage, are to be avoided. Privileges should belong to
the senate as a body and simple respect only be paid to the individual
senators.[Footnote: Montesq., iii. 151 (liv. iv. c. 5). Ibid., iii.
165-183 (liv. v. c. 2-8).]
As honor is the motive principle of monarchy, the laws should support
it, and be adapted to sustain that _nobility_ which is the parent
and the child of honor. Nobility must be hereditary; it must have
prerogatives and rights; it forms the link between the prince and the
nation. Monarchical government has the great advantage over the
republican form, that, as affairs are in a single hand, there is the
greater promptitude of execution. But there should still be something to
moderate the will of the prince. This is best found, not in the nobility
itself, but in such bodies as courts of law with constitutional rights,
like the French Parliaments.[Footnote: In a despotic government the
motive principle is fear. The governor of the town must be absolutely
responsible Montesq., iii, 191 (liv, v. c. 10).]
Montesquieu has been much blamed, both in his own age and since, for his
partiality to the monarchy as he found it existing in France. While
recognizing that a republic was a more just and equal form of
government, he thought that monarchy was that best suited to his time
and country. Many people who have watched the history of France since
his day will be found to agree with him. While defending some practices
which are now considered among the flagrant abuses of old France, he
recommended some reforms which would have been very salutary. It is
often wiser to find excuses for retaining an old custom than reasons for
introducing a new one; and Montesquieu was a conservative, made so by
his nature, his social position, his wealth, his education as a lawyer,
his age and his experience. When he wrote the "Persian Letters" he might
possibly have been willing to overthrow the principal institutions of
his country for the sake of remedying abuses; but when he had spent
twenty years over the "Spirit of the Laws," when he had realized the
complication of life, and the interdependence of things, he was more
ready to reform than to destroy.
In a despotic government the motive principle is fear. The governor of
the town must be absolutely responsible to the governor of the province,
or the latter cannot be entirely responsible to the sovereign. Thus
absolutism extends throughout the state. As there is no law but the will
of the prince, and as that law cannot be known in detail to every one,
there must be a great number of petty tyrants dependent on those
immediately above them.[Footnote: Montesq., ii. 209 (liv. v. c. 16).]
After a not very successful attempt to define liberty, which he decides
to be the power to do that which we ought to desire and not to do that
which we ought not to desire,[Footnote: Ibid., iv. 2-4 (liv. xi. c. 2,
3).] Montesquieu tells us that political liberty is found only in
limited governments, for all men who have power will tend to abuse it,
and will go on until they meet with obstacles; as virtue itself needs to
be restrained. Various nations, he then says, have various objects:
conquest was that of Rome, war of Sparta, commerce of Marseilles; there
is a country the direct object of whose constitution is political
liberty. That country is England.[Footnote: Montesquieu, here and
elsewhere, avoids mentioning England or France by name; a curious
affectation. The references, however, are unmistakable.]
There are in every state three kinds of power, the legislative, the
executive, and the judicial. Political liberty in a citizen is the
tranquillity of mind which comes from the opinion he has of his own
security; and to give him this liberty the government must be such that
no citizen can be afraid of another. Now this security can exist only
where the legislative, executive, and judicial powers are in different
hands. In most of the monarchies of Europe the government is limited,
because the prince, who has the first two powers, leaves the third to
others; he makes laws and executes them, but he appoints other men to
act as judges in his place. In the republics of Italy all three powers
are united. The same body of magistrates makes the laws, executes them,
and judges every citizen according to its pleasure; such a body is as
despotic as an eastern prince.[Footnote: This judgment is somewhat
softened as to Venice. The most conspicuous example in modern times of
the tyranny of a single popular body is that of France under the
Convention.] The judicial power, says Montesquieu (with the English jury
in his mind), should not be given to a permanent senate, but exercised
by persons drawn from the body of the people, forming a tribunal which
lasts only as long as necessity may require it. In serious cases the
criminal should combine with the law to choose his judges, or at least
should have a right of challenge. The legislative and executive powers
can with less danger be given to permanent bodies, because they are not
exercised against individuals. He then commends representative
government and the freedom left to members of Parliament in the English
system. He believes the people more capable of choosing representatives
wisely than of deciding questions, an opinion on which modern experience
may have thrown some doubt. He approves of the existence of a second
chamber, composed of persons distinguished by birth, wealth, or honors;
for if such were mixed with the people and given only one vote apiece
like the others, the common liberty would be their slavery, and they
would have no interest in defending it, because it would oftenest be
turned against themselves.[Footnote: Montesq., iv. 7 (liv. xi. c. 6).]
The government of France, says Montesquieu, has not, like that of
England, liberty for its direct object; it tends only to the glory of
the citizen, the state, and the prince. But from this glory comes a
spirit of liberty, which in France can do great things, and can
contribute as much to happiness as liberty itself. The three powers are
not there distributed as in England; but they have a distribution of
their own, according to which they approach more or less to political
liberty; and if they did not approach it, the monarchy would degenerate
into despotism.[Footnote: Montesq., iv. 24. (liv. xi. c. 7).] This
sounds somewhat like an empty phrase; yet there undoubtedly were in
Montesquieu's time some checks on the absolutism of a French monarch.
"If subjects owe obedience to kings, kings on their part owe obedience
to the laws," said the Parliament of Paris in 1753. And outside of its
own boundaries France had long been considered a limited monarchy.
[Footnote: Rocquain, 170. Machiavelli, ii. 140, 215, 322 (Discourses on
the first ten books of Livy).] Apart from the limitations imposed by the
privileges of the church and of the Parliaments, there appear to have
been some acknowledged fundamental laws (the succession of the crown in
the male line was one of them) which it would have been beyond the power
of the sovereign for the time being to destroy. And public opinion, as
Montesquieu has already told us, has power even in the most despotic
countries. In a European nation, not broken in spirit by long-continued
tyranny, and possessing the printing-press, this power must always be
very great.
As for Montesquieu's admiration of the English form of government, it
doubtless concurred with other causes to encourage on the Continent the
study of English political methods. Those methods have since been
adopted by many continental states, with hardly as many modifications to
adapt them to local circumstances as might have been desirable. But it
is the modern English constitution, in which power lies almost entirely
in the House of Commons, and is exercised by its officers, that has been
thus copied. In America the principle of the division of powers has been
carried farther than it ever was in England; and is, of all parts of
their form of government, that from which many intelligent Americans
would be most loath to part.
We have seen enough of Montesquieu's attacks on the church. The most
violent of them were made in his youth, and in a book avowedly
satirical. In mature life, writing in a more philosophical spirit, his
language is temperate and wise. "It is bad reasoning against religion,"
he says, "to bring together in a great work a long enumeration of the
evils which she has produced, unless you also recount the good she has
done. If I should tell all the harm which civil laws, monarchy, or
republican government have done in the world, I should say frightful
things."[Footnote: Montesq., v. 117 (liv. xxiv. c. 2).] This idea was
far beyond the reach of Voltaire.
Montesquieu goes on to argue about different forms of religion.
Mahometanism he holds especially suited to despotism, Christianity to
limited governments. Catholicism is adapted to monarchies,
Protestantism, and especially Calvinism, to republics. Where fatalism is
a religious dogma, the penalties imposed by law must be more severe, and
the watch kept on the community more vigilant, so that men may be driven
by these motives who otherwise would abandon self-restraint; but if the
dogma of liberty be established, the case is otherwise. Climate is not
without influence on religion. The ablutions required of a Mahometan are
useful in his warm country. The Protestant of Northern Europe has to
work harder for a living than the Catholic of the South, and therefore
desires fewer religious holidays. If a state can prevent the
establishment of a new form of religion within its borders, it will find
it well to do so; but if several religions are established, they should
not be allowed to interfere with each other. Penal laws in religious
matters should be avoided; for each religion has its own spiritual
penalties, and to put a man between the fear of temporal punishment, on
the one hand, and the fear of spiritual punishment on the other,
degrades his soul. The possessions of the clergy should be limited by
laws of mortmain.[Footnote: Ibid., v. 124-136 (liv. xxiv. c. 5-14).]
The spirit of moderation should be the spirit of the legislator. This
Montesquieu declared to be the great theme of his book. Political good,
like moral good, is always found between extremes.[Footnote: Montesq.,
v. 379 (liv. xxix. c. 1).]
It was this moderation which made the "Spirit of the Laws" distasteful
to the more ardent Philosophers. Sharing in many of the feelings of his
contemporaries, and especially in their distrust of the church,
Montesquieu was yet unwilling to go to the same extremes as they. His
chapter on Uniformity and the criticisms made on it by Condorcet, form
an admirable instance of this.
"There are certain ideas of uniformity," says Montesquieu, "which
sometimes take possession of great minds (for they touched Charlemagne),
but which invariably strike small ones. These find in them a kind of
perfection which they recognize, because it is impossible not to see it;
the same weights in matters of police, the same measures in commerce,
the same laws in the state, the same religion in all its parts. But is
this always desirable without exceptions? Is the evil of changing always
less than the evil of suffering? And would not the greatness of genius
rather consist in knowing in what case uniformity is necessary, and in
what case difference? In China, the Chinese are governed by the Chinese
ceremonies, and the Tartars by Tartar ceremonies; yet this is the nation
in all the world which is most devoted to tranquillity. So long as the
citizens obey the law, what matters it that they shall all obey the
same?"
This chapter (the whole of it is given above, and it may pass in the
"Spirit of the Laws" for one of middling length), is, according to
Condorcet, "one of those which have acquired for Montesquieu the
indulgence of all prejudiced people, of all who hate intellectual light;
of all protectors of abuses, etc." And after going on with his invective
for some time, Condorcet states the substance of his argument as
follows: "As truth, reason, justice, the rights of men, the interest of
property, of liberty, of security, are the same everywhere, we do not
see why all the provinces of one state, or even why all states should
not have the same criminal laws, the same civil laws, the same laws of
commerce, etc. A good law must be good for all men, as a true
proposition is true for all. The laws which appear as if they should be
different for different countries, either pronounce on objects which
should not be regulated by laws, like most commercial regulations, or
are founded on prejudices and habits which should be uprooted; and one
of the best means of destroying them is to cease to sustain them by
laws."[Footnote: Montesq., v. 412 (liv. xxix. c. 18). Condorcet, i.
377. Yet Condorcet speaks elsewhere of Montesquieu as having made a
revolution in men's minds on the subject of law. D'Alembert, i. 64
(Condorcet's _Éloge de d'Alembert_). Rousseau also teaches that all
laws and institutions are not adapted to all nations, but it is because
he considers most nations childish or effete.]
In these two passages we have the issue between Montesquieu and the
Philosophic party fairly joined. He alone of the great Frenchmen of his
century recognized the enormous complication of human life and human
affairs. Not denying that there are fundamental principles of justice,
he saw that those principles are hard to formulate truly, harder to
apply wisely. For their application he offered many valuable
suggestions. These were lost in the rush and hurry of approaching
revolution. The superb simplicity of mind which could ignore the
diversities of human nature was perhaps necessary for the uprooting of
old abuses. But the delicate task of constructing a permanent government
cannot succeed unless the differences as well as the resemblances among
men be taken into account.