A Commentary and Review of Montesquieu's "Spirit of Laws"
On the Twelve First Books of the Spirit of Laws.
We have yet the greatest part of our task to accomplish: I cannot resist the desire of stopping where we are: for although Montesquieu's Spirit of Laws, be composed of thirty-one books, the twelve first contain all that directly and immediately concerns the social organization, and the distribution of its powers; in the others we only meet with economical, philosophical, and historical considerations, on the causes, effects, circumstances, and connexion, of the different conditions of society, in certain times and particular countries, and on the relations of all these with the social organization. The opinions there offered, the views there presented, will be found more or less exact, more or less perspicuous, more or less profound; but it will be obvious still, that this organization is only formed to produce good results, in as much as it is preferable to anarchy, (understood by natural independence of the will,) by the evils which it prevents, and the advantages it procures. We can only judge of its degree of perfection, by the effects it produces; it is therefore proper, before we go any farther, briefly to recall the principles we have extracted from the preceding discussions; we shall then perceive more distinctly, how they unite with different circumstances, and whether it is on account of having neglected or followed them, that the good or evil fortune of mankind has been produced.
Desirous of explaining the spirit of laws.... that is to say, the spirit in which laws are or should be made, we have commenced by defining the word law, that its primitive and essential signification is.... a rule prescribed for our actions by an authority invested with the right to do so. This word is, therefore, necessarily relative to the social organization, and could have been formed in the infancy of society only; however, by an extension of the sense, it was afterwards denominated the laws of nature, in other words, they constitute the apparent rules which phenomena daily taking place before our eyes, appear to be governed by and to follow, considering them always so acting, as if an irresistable and unchangeable authority had ordered all beings to follow a certain order of action, in relation to each other. These laws or rules of nature, are nothing else than the expression of the manner in which things inevitably present themselves to our senses; we cannot change this universal order of things, we must therefore submit to it, conforming our actions and our institutions also thereto. So that in entering upon the subject, we at once perceive, that our positive laws should be consequent of the laws of our nature.
But our different social organizations are not in all places alike conformable to this principle; they have not all an equal tendency to submit themselves thereto, and become conformable to the laws of nature; their forms are very much varied; it is therefore indispensable, to study these separately. In the second book, we shall perceive, that all governments may be classed under two heads, namely.... those which are founded on the general rights of man.... and those which are supposed to be founded on particular rights.
Montesquieu has not adopted this distribution; he classes governments according to the accidental circumstances of the number of men invested with authority; and in the third book he enquires which are the moving, or rather conservative principles of each kind of government. To despotism he assigns the attribute of fear.... to monarchy, honor.... to a republic, virtue. These principles may be more or less subject to explanation or doubt; but without pretending absolutely to deny them, we believe it may be asserted, that from the discussion in which they have engaged us, it results that the principle of government founded on the rights of men, is reason. We shall confine ourselves to this conclusion, which all that follows will confirm.
The fourth book, concerns education: Montesquieu determines that it should be accordant with the principles of the government, in order to secure its existence; this is reasonable, and from it I draw this consequence, that those governments which support themselves by false ideas, should not venture to give to their subjects a very solid education; that those which require to keep certain classes in a state of degradation and oppression, should not permit them to obtain instruction; and that those governments only which are founded on reason, can desire that education should be solid, profound, and generally diffused.
If precepts of education should be relative to the principles of government, there can be no doubt that the laws, strictly so called, should with still greater reason be so; for laws constitute the education of men: and this is what Montesquieu says in the fifth book, and in consequence there are none of the governments he speaks of, to which he does not propose some principles evidently contrary to distributive justice and to the natural sentiments of man. I do not deny that these miserable expedients are necessary for their support; but I have also shewn, that governments founded on reason have only to leave nature to act and follow it without restraint.
Montesquieu appropriates the sixth book to the examination of the consequences of the principles of different governments, applied to the simplicity of civil and criminal laws, and the forms of judgment. In treating of this subject with him, and profiting by what had been previously said, I have obtained more general and extensive results. I noticed that the human mind is as progressive in the social as in all other sciences, that democracy or despotism were the first governments imagined by men, and mark the first degree of civilization.... that aristocracy under one or more chiefs, whatever name may be given to it, has every where taken the place of these in artificial governments, and constitutes the second degree of civilization.... and that representative democracy under one or several delegates, is a new invention, which forms and constitutes the third degree of civilization. I added, that in the first state, it is ignorance which governs or force that dictates.... in the second, opinions are formed, and religion has the greatest power.... in the third, reason begins to prevail and philosophy has more influence. I also observed, that the principal motive of punishment in the first stage of civilization, is human vengeance.... in the second, divine vengeance.... and in the third, to prevent future evil. I shall not here lengthen out my observations on this topic, which must give way to considerations and objects of another kind.
The seventh book treats of the consequences of the different principles of the three governments of Montesquieu as they relate to sumptuary laws, to luxury, and to the condition of women. The merit of sumptuary laws has been determined by what we have said of civil laws in general, in the fifth book; what relates to women, will be better placed with the subject of manners and climate; luxury consequently only remained to be examined, and the result of the discussion has been, that in agreeing to the necessity that certain governments are subject to, of encouraging luxury in order to the security of their power, the a effect of luxury is to employ labor in a useful or an injurious manner. Now labor, and the employment of our faculties, being all our own, and our only means of action, I am very much deceived if this truth is not the basis of all social science, and if it does not decide all questions on the subject of luxury; for that which checks or stifles the unfolding of our faculties, or renders them hurtful, or even useless, cannot be proper for us.
The eighth book has other objects in view, the corruption of the principles of the three governments distinguished by Montesquieu; and after having explained in what the corruption of these pretended principles consists, he lays it down, that each of them is relative to a certain extent of territory, and is lost if it be changed. This decision induced me to consider the subject under very different aspects, to point out the great consequences which would result from a state possessing certain limits instead of others; and to conclude generally, that the extent proper for a state, is to have a sufficient force with the best possible limits; and that the sea is the best boundary of all, for various reasons.
Montesquieu having advanced that such a government can only exist in a small territory, another in a larger territory, is obliged to assign to each a particular and exclusive manner of defending itself against the aggressions of strangers; and he pretends in the ninth book, that republics have no other means of safety, but in forming confederations. I made use of the occasion to discuss the principles and effects of confederative governments, and concluded that confederation produces more strength than separation, but less strength than an intimate and complete union.
In the tenth book, our author examines these same governments in relation to their offensive force; and this leads him into a discussion on the foundation of the rights of war, and the consequences and principles of the rights of war, and the right of conquest. I confess, that to me his doctrine does not appear enlightened, and that probably the perfection of the right of war would be the confederation of nations, and so far the right of war originates in the right of natural defence, and that of conquest out of the right of war.
After having, in his first ten books, considered the different kinds of government, under every aspect, Montesquieu devotes the eleventh book, entitled.... of laws which establish political liberty with relation to the constitution, to shew that the English constitution is the most perfect example of the social science, and that it is folly to seek the means of securing political liberty, since it is already secured.
Not feeling any conviction of the correctness of this opinion, I divided the book into two chapters; and in the first, proved that the problem had not been yet solved, and that it could not be solved so long as too much power is rested in a single person; and in the second chapter I have endeavored to explain how the problem might be solved, by never giving to a single man, any more power than can be taken from him without violence; and that when he is changed, all shall not change with him.
To conclude: Montesquieu in his twelfth book, treats of laws establishing political liberty with relation to the citizens; there being little new to be drawn from this took, I confined myself to the investigation which produced this result.... Political liberty cannot exist, without individual liberty, and that of the press; nor these, without trial by jury.
This view of our first twelve books, is necessarily rapid; it would not afford a sufficient idea of them, to those who have not read them, and even presents imperfectly to those who have, what they may themselves have remarked; however, it condenses a series of ideas, which, taken together, form an important whole.
Man is but an atom in the immensity of beings; he is so constituted by nature as to possess sensibility, and consequently will; his happiness consists in the accomplishment of this will, and he has but little power to execute it. This is the power which he denominates liberty; and therefore, he has very little liberty; particularly, he has not that of being otherwise than he is, nor to cause all others to be so; he is subject to all the laws of nature, and principally that of his own nature; he cannot change them; he can benefit himself only by conforming to them.
Happily or unhappily, it is in his nature to combine the perceptions of his sensibility, and to analyse them sufficiently, and to clothe them with a diversity of characters, and to employ the means which he has devised for discriminating, between then to multiply and express these perceptions; consequently he makes use of the faculties thus possessed and devised, to communicate with his kind, and to unite with them, so as to augment his power, or his liberty.... by whichever name you may choose to call it.
In this state of society, men acquire laws to regulate their conduct with one another: these laws should be conformable to the unchangeable laws of human nature, and flow out of them; without which they can have no important effect, must be of short duration, and only productive of disorder. But men are not at first acquainted with these truths. They have not yet sufficiently examined their own nature, without which they cannot know the necessary laws. They can at first imagine no other means than submitting to the will of all, or to the will of one who has obtained their confidence; ignorance and force prevail with democracy and despotism; then it is that men resort to punishments to avenge themselves of the wrongs which they believe they have suffered, and this is the basis of their criminal code; it is the consequence of the natural right of self-defence; for the right of nations, and of one nation in relation to another, is an absolute nullity.
After some time, knowlege, mutual relations, and the concerns of society, become multiplied and complicated; neither the theory nor the links by which it is connected, are perceived; enquiry, speculation, and conjectures succeed; systems of various kinds and even religious systems, are created: opinions obtain respect; and even opinion itself is found to possess power: all these operations are found susceptible of use; arrangements take place by accident or particular circumstances, and remain so without any recurrence to principles, but subsisting solely on expediency. Hence originated different and incongruous orders of things; society itself assumed this discordant result of expediency in various modes, which always produced aristocracies of some kind under one or several chiefs, and in which religious opinions were made to perform a principal part. This was the period of partial knowlege and the power of opinion; then the idea of divine vengeance was subjoined to human vengeance, and became the foundation of the penal code; at this period also, some forms were established among nations, which, without meriting the honor of the denomination, were called laws of nations.
This period is of considerable duration; it exists yet it exists over almost the whole earth. However, from time to tine, the principles of nature, that is the eternal order of the universe in relation to us, has been observed, and some of its laws acknowleged. Controversy has discovered errors, and these errors have been discussed; and it was perceived, that if we do not comprehend every thing that is, we often know that which is not. Some men, more enlightened and enterprizing than others, or excited by some particular incident, have undertaken to regulate their conduct according to the discoveries which they have made; they have attempted, with various degrees of success, to give themselves a manner of being more conformable to nature, truth, and reason: behold the dawn of this last effort of the human mind, it is offences that are combated and not the offenders; if punishment takes place, it is only to prevent future evil. Such is the only principle of criminal laws, in the third epoch, which is now commencing.
The governments which have or may spring up under it, may be considered as having reason, for the principle of action and conservation.
Their first laws are declared to be formed for the governed, not the governed for them; consequently they only exist in virtue of the will of the majority of those governed, and should change when the will changes: and necessarily arising out of this state of things, at no time should any one be retained in their territory who does not wish to live under their laws.
It follows also, that no hereditary power can be established therein, nor can any class be constituted with exclusive privileges or honors, nor any class depressed or degraded to profit another.
The second principle of the laws is, that there should never be a power in society which cannot be changed without violence, nor any such that when it is changed all must change with it.
This principle prevents one man from being entrusted with the entire disposal of the power of a nation, and also guards against the investing of the same collective body which legislates, with the formation of the constitution, and from perverting these distinct functions; it tends carefully to preserve the separation of the executive and legislative powers, and the conservative, or that of passing judgment on political differences.
The third law of a rational government, is always to have in view the conservation of the independence of the nation, the liberty of its members, and such security for every individual as to supercede the idea of fear internal or external.
This principle implies the necessity of a proper extent of territory; but that the nation should not be composed of parts too much diversified, that its boundaries may be subject in the least possible degree to contention, and that its extent should require the smallest number of military forces; for the same reason, having obtained this end, an union might be formed by ties of confederation with the neighboring countries. The relations of independent nations should always approach as much as practicable to a state of confederation, for this is the perfection of the rights of nations, or in other words, that in which violence gives way to the arbitration of justice, and when what was called the laws of nations, first comes to merit the appellation of law.
It also follows from this law, that the government should never suffer any attempts upon the security of any citizen whatever, nor on their right of declaring their sentiments upon any subject whatever, nor interfere in any manner whatever with their religious opinions.
Such are nearly, I believe, the fundamental laws of all governments truly rational, and these alone are the real fundamental principles of government, inasmuch as they alone are unchangeable, and should always exist; for all others can and should be changed, when the members of the society will it.... observing, however, the necessary forms: so that the laws we speak of are not properly positive laws, but those of our nature, the declaration of principles, the enunciation of eternal truth; they should be placed at the head of all constitutions, instead of those declarations of rights, which of late years have prefaced them; not because I censure this practice, for it is a great improvement in the social art, and will constitute an epoch in the history of human society;*16 it is very useful, for it dare not be followed by giving a nation a constitution, vicious in its principles, or in the manner in which it is established.
But it is no less true, that this precaution of introducing the political code of a nation with the exposition of the rights of citizens, is an effect of the long forgetfulness in which these rights have been left, and a consequence of the continual war, that every where existed between the governed and governing. It is a kind of manifesto and protest against oppression, in case it should again shew itself. Without these motives, there is no reason why people freely uniting, to regulate the mode of association, should commence by enumerating the rights they suppose themselves to be possessed of;*17 for they have them all, and they can do what they please; they are to render an account of their determination to no one but themselves; it is not, therefore, a declaration of rights, that should precede a constitution, but rather a declaration of principles on which it should be founded, and truths to which it should be conformable. Then I think, there need not be placed in it, more than two or three laws, of which we have just explained the nature, and which equally flow out of the experience of mankind and their discovery of truths and errors.
Whatever it may be, this is a succinct view of the truths we have unfolded by an examination of Montesquieu's twelve first books; it seems in some measure sufficient to complete all that concerns the organization of society, and the distribution of its power, and consequently all the primary and most important part of the spirit of laws, or the spirit in which laws should be made. It is at this point I was desirous of resting awhile: our author will now present a multitude of subjects for our contemplation: taxes, climate, the nature of the soil, the state of intelligence and habits, commerce, money, population, religion, the successive revolutions of certain laws, civil and political, in particular nations, all of which it may be interesting to examine with him; but it will still be impracticable to form a judgment upon any of them, without constantly reverting to the interests and dispositions of the different kinds of government, as well as the interests to which they should properly be made to tend: so that what precedes really serves to measure what follows; and that which follows will aid us in forming a fair estimate of their several relations. I may even venture to say, that the manner in which we have considered society, its organization, and its progress, is a ray of light, thrown in the midst of these important objects, which will one day dissipate all their obscurity. Let us hasten to realize this hope, at least in part.
Notes for this chapter
The first declaration of the rights of man, that has been proposed in Europe, was presented to the constituent assembly of France, by general Lafayette, on the 11th July, 1789. I think it is the best ever made, for it consists in the enunciation of a small number of principles perfectly sound. It is remarkable that the man who so powerfully contributed to establish the rights of man in the western hemisphere, was the first who proclaimed them in the old world. At that period it was a declaration of war against oppression.
It is this same spirit of timid precaution, that afterwards caused a declaration of duties, to be added to the declaration of rights, as if it were not the same thing to say.... "I am possessed of this right, or respect in me this right;" this repetition is very silly.
End of Notes
Return to top