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

Tracy, Antoine Louis Claude Destutt de
(1754-1836)
BIO
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Editor/Trans.
Thomas Jefferson, trans.
First Pub. Date
1811
Publisher/Edition
Philadelphia: William Duane
Pub. Date
1811
Comments

Book II

Of Laws Originating Directly from the Nature of the Government.

II.0

There are only two kinds of government: those founded on the general rights of man, and those founded on particular rights.
Spirit of Laws, Book II.

II.1

The ordinary division of governments into republican, monarchical, and despotic, appears to me essentially erroneous.

II.2

The word republican is itself a very vague term, comprehending in it a multitude of forms of government very different from each other: from the peaceable democracy of Schwitz, the turbulent mixed government of Athens, to the concentrated aristocracy of Berne, and the gloomy oligarchy of Venice. Moreover the term republic cannot be contrasted with that of monarchy, for the United Provinces of Holland, and the United States of America, have each a single chief magistrate, and are yet considered republics; beside, that it has always been uncertain whether we should say the kingdom or republic of Poland.

II.3

The word monarchy properly designates a government in which the executive power is vested in a single person: though this is only a circumstance which may be connected with others of a very different nature, and which is not essentially characteristic of the social organization. What we have said of Poland, Holland, and the American government, confirms this; to these Sweden and Great Britain may be added, which in many respects are regal aristocracies. The Germanic body might also be cited, which with much reason has been often called a republic of sovereign princes: and even the ancient government of France; for those perfectly acquainted with it, know that it was properly an ecclesiastical and feudal aristocracy.... a government of the gown and sword.

II.4

The word despotic implies an abuse; a vice more or less to be met with in all governments, for all human institutions are, like their authors, imperfect: but it is not the name of any particular form of society or government. Despotism, oppression, or abuse of power, takes place whenever the established laws are without force, or when they give way to the illegal authority of one or several men. This may be every where perceived from time to time. In many countries men have been either not sufficiently prudent or too ignorant to take precautions against this evil; in others the means adopted have proved insufficient; but in no place has it been established as a principle, that it should be so, not even in the East: there is then no government which in its actual nature can be called despotic.

II.5

If there were such a government in the world, it would be that of Denmark; where the nation, after having shaken off the yoke of the priests and nobles, and fearing their influence in the assembly, if again convened, requested the king to govern alone and of himself, confiding to him the care of making such laws as he might judge necessary for the good of the state: since which period he has never been called upon to give an account of this discretionary power. Nevertheless this government, so unlimited in its legislation, has been so moderately conducted, that it cannot with propriety be said to be despotic, for it has never been contemplated even to restrain its authority. Yet notwithstanding this moderation, many persons have continued to consider Denmark as a despotic state.

II.6

The same may be said of the French government, if we view it in the sense given by many writers to the celebrated maxims: "The king depends on himself and God alone," and "As the king wills so does the law."

II.7

These are the maxims to which the kings of that country have frequently referred in using the expression "God and my sword," inferring that they acknowleged no other superior light. These pretensions have not, indeed been always admitted, but if we suppose them to be acknowleged in theory, yet France, notwithstanding the enormous abuses which existed, could not be called a despotic state; on the contrary it has always been cited as a tempered monarchy. This is not then what is to be understood by a despotic government, and the denomination is not correct as a specific term, for generally it signifies a monarchy where the manners are savage or brutal.

II.8

Hence it is inferred that the division of governments, into republican, monarchical, and despotic, is every way defective, and that all of these classes, containing very opposite and very different forms, the explanation of each of them must be very vague, or not applicable to all the states comprised in the class; nor shall I adopt the positive decision of Helvetius in his letter to Montesquieu:*1 "I know only two kinds of government, the good and the bad; the good, which are yet to be formed; and the bad, the grand secret of which is to draw by a variety of means, the money of the governed into the pockets of the rulers," &c.

II.9

FIRST. If we only look to the practical effects, in this, as in all other circumstances, we find good and evil every where, and that there is no form of government which may not at some time be classed among the good or the bad.

II.10

SECONDLY. If, on the contrary, the theory only be regarded, and the principles alone on which governments are founded, be taken into our consideration, without enquiring whether they operate conformable to their theory or not, it would he necessary then to arrange each government under a good or a bad class, that we may examine the merit or justice of its principles, and thereby determine which are true, and which are false; now this is what I do not undertake to do, I will only, like Montesquieu, exhibit what exists, and point out the different consequences arising from the various modes of social organization, leaving it to the reader to form such conclusions as he may think fit, in favor of the one or the other.

II.11

Confining myself, then, wholly to the fundamental principles of political society, disregarding the difference of forms, neither censuring nor approving any, I will divide all governments into two classes, one of these I denominate national, in which social rights are common to all; the other special, establishing or recognizing particular or unequal rights.*2

II.12

In whatever manner governments may be organized, I shall place in the first class, all those which recognize the principle, that all rights and power originate in, reside in, and belong to, the entire body of the people or nation; and that none exists, but what is derived from, and exercised for the nation; those, in short, which explicitly and without reserve, maintain the maxim expressed in the parliament of Paris, in the month of October, 1788, by one of its members, namely.... Magistrates as magistrates, have only duties to perform, citizens alone have rights; understanding by the term magistrate, any person whatever who is invested with a public function.

II.13

The governments which I call national, may therefore take any form, for a nation may itself exercise all the necessary powers, and then it would be a simple democracy; it may on the contrary delegate the whole effective power to functionaries elected by the people for a limitted period, subject to a renewal from time to time; then it would be a representative democracy; the nation may also abandon its power, wholly or partially, to numerous, or select bodies of men, either for life, with hereditary succession, or with the power of nominating their colleagues in cases of vacancy; and these would be different kinds of aristocracies: the nation may in like manner intrust all its power, or only the executive power, to one man, either for life, or in hereditary succession, and this would produce a monarchy more or less limitted, or even without limits.

II.14

But so long as the fundamental principle of sovereignity remains in the people, and is not called into question, all these forms so different have this common characteristic, that they can be at any time modified, or even cease altogether, as soon as it shall be the will of the nation; and that there is no one who can have any right to oppose the general will when manifested according to the established form: now this essential circumstance, is in my opinion, sufficient to discriminate between the various organizations of society, and to designate a single class of the species of government.

II.15

On the other hand, I call all those special governments, whatever may be their forms, where any other sources of power or right, than the general will of the nation, are admitted as legitimate; such as divine authority, conquest, birth in a particular place or tribe, mutual articles of agreement, a social compact manifest or tacit, where the parties enter into stipulations like powers foreign to each other, &c. It is evident that these different sources of particular rights, may, like the general will, produce all forms, the democratic, aristocratic, and the monarchical; but they are very different from those of the same name, which are classed under the denomination of national. In this practical class there are different rights known and avowed, and as it were different powers or sovereignties exercised in the same society. Its organization can only be considered as the result of convention, and formal or tacit stipulations, which cannot be changed without the mutual consent of all the contracting parties. These properties of governments are sufficient to authorise the denomination of special.

II.16

I again repeat, that it is not my purpose to determine, nor even to enquire, at present, whether all these particular and general rights are equally respectable, whether the special can prescribe in perpetuity against the common rights; or whether they can be legitimately opposed to the general will, properly expressed. These questions are too frequently resolved by force, and besides do not come within the scope of my views. All these modes of government exist or may exist. Every existing body has the right of self-preservation. This, with Montesquieu, is the point I set out from; and with him, I will examine which are the laws that tend to the conservation of each of them. I persuade myself that in the course of this enquiry it will be perceived, that the classification which I have made is better adapted for penetrating the depths of the subject than that which he has employed.


Notes for this chapter


1.
This letter, however, in my opinion, appears to contain many excellent things, as well as that to Saurin, and the notes of the same author on the Spirit of Laws. To the abbé de la Roche, we are indebted for having preserved the ideas of so worthy a man, on subjects so important, and for having published them in the edition which he has given the world of Montesquieu's works, printed by P. Didot, Paris. These letters are translated for, and inserted at the end of this work.
2.
We might also say public and private, not only because some are founded in the general interest, and others in particular interests, but because some in all their deliberations affect publicity.... others mystery.

Book III

End of Notes


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