A Commentary and Review of Montesquieu's "Spirit of Laws"

Tracy, Antoine Louis Claude Destutt de
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Thomas Jefferson, trans.
First Pub. Date
Philadelphia: William Duane
Pub. Date
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Book XII

Of Laws That Establish Political Liberty in Relation to the Citizen.


Political liberty cannot exist without individual liberty, and that of the press.... nor this without trial by jury.
Spirit of Laws, Book XII.


The book preceding, Montesquieu entitles.... Of laws establishing political liberty in relation to the constitution. We have seen that, under this title, he treats of the effects which the laws forming the constitution of a state, produce on the liberty of man; that is to say.... which regulate the distribution of political power. These laws, in effect, contain the principles of those which affect the general interests of society, and by combining them with those which regulate the public economy, that is those which govern the formation and distribution of wealth, we shall be in possession of the whole code by which the aggregate interests of the political body are regulated, and by which the happiness and liberty of each is influenced, and thence the happiness and liberty of the whole.


The question here is, what are the laws which directly concern each citizen in his private interests? It is no longer public and political liberty it attacks, or immediately protects, it is individual and particular liberty. It will be perceived, that this second species of liberty is very necessary to the first, and intimately connected with it; because every citizen should be secure against oppression in his person and goods, in order to be able to defend political liberty: and it is very evident that if any authority, for example, should be possessed of the right of inflicting imprisonment, banishment, or fines, it would be impracticable to restrain it within the bounds that may be prescribed to it by the constitution of the state, if it has a constitution very exact and formal. Montesquieu also says.... that under the consideration in question, liberty consists in security, and that the constitution may be free.... that is, it may contain clauses favorable to liberty.... while the citizens do not really enjoy liberty; and he adds, with much reason, that in most states.... he might have said in all.... individual liberty is more restrained, violated, and kept down, than the constitution authorises or requires. The reason is, that the functionaries, always desirous of going beyond the bounds of law, instead of regarding them, find it necessary to check and repress political liberty, in order to keep down individual liberty. As principles the constitutional laws, and in operation the administrative laws, influence general liberty, so criminal and civil laws dispose of civil liberty. The subject we are treating of belongs almost entirely to the sixth book, where Montesquieu proposed examining the consequences and principles of different governments, in relation to the simplicity of criminal laws, the forms of judgment, and the infliction of punishment. A better method of distribution and connexion of ideas, would have united that book with this, and even with the twenty-ninth, which treats of the manner of composing laws, and at the same time to appreciate their effects; but we must follow the order adopted by our author: any one so disposed, would do well to new model both his work and ours, and form for himself a connected and complete system of principles.


We have said at the opening of the sixth book, that notwithstanding the great and admirable views which it contains, we do not there meet with all the instruction we had a right to expect; we are obliged to say the same of this. Naturally it ought to comprehend an exposition and estimate of the principal institutions, most favorable or most adverse to the security of each citizen, and the free exercise of his natural, civil, and political rights. Now we do not meet with any of these topics. Montesquieu, according to custom, travels through all times and countries, and particularly through remote ages and countries not well known, in a multitude of small unconnected chapters. It is true, that he generally draws very exact inferences from all the facts he produces, but there was no necessity for so much enquiry or such a display of learning, to inform us.... that the accusations for exercising magic were absurd.... that errors purely religious should be corrected by means purely religious.... or that in monarchies the law against high treason has been often abused even to barbarity, and so far as to become ridiculous.... that it is tyrannical to punish for satirical writings, or indiscreet words.... that judgments should not be sought by special commissions, nor by spies, nor by anonymous informers; all of which are odious, often atrocious: if he had been obliged to employ address, in daring to declare such truths, and if it was impossible for him to go beyond such a course, we should condole with him, but we should not stop there.


But even among all this, I meet with only one refection of real importance, which is, that it is very dangerous in a republic to multiply punishments on account of the crime of high treason, or treason against the nation, under pretence of avenging the republic; for then, says Montesquieu, the tyranny of vengeance will be established: it is those who are dominated over, and not the dominator, that will be punished or destroyed. The ordinary course of government should be pursued in such cases, as well as in all others, and the laws which protect all, operate equally against all who transgress them. These sentiments are admirable, they are derived from facts in Grecian history, and cannot be invalidated. The exile, or the return from exile, of proscribed citizens, are always attended with commotion and a change in the constitution; and the history of modern times is not deficient of examples which might be cited to corroborate it, if it were necessary.


But accompanying these wise considerations, there is one principle admitted that is very dangerous, and contrary to the formal advice of Cicero; which is, that there are occasions which may authorise a law to be made against a single man; and that there are cases when a veil should for a moment be cast over liberty, as the statues of the Gods are sometimes concealed. To what lengths has the prepossession for the government of England conducted this great man.


Whatever political liberty may be, for our author has not thought proper to penetrate further into the subject, we shall confine ourselves here to repeating that it cannot subsist without individual liberty and that of the press; and that for the preservation of this last, all arbitrary seizure and detention should be proscribed, and the use of trial by jury adopted, at least in criminal cases: referring the reader to what we have said on these subjects in the preceding books, particularly in the fourth, sixth, and eleventh, where we have shewn why these principles are favored or opposed by the nature and spirit of each kind of government.

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