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

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

Book V

Laws Formed by the Legislature Should Be Consistent with the Principles of the Government.

V.0

Governments founded on reason, have only to leave nature to act.
Spirit of Laws, Book V.

V.1

The laws given by the legislator, should be analogous to the principles of the government.

V.2

We have said at the commencement of the fourth book, that the laws relative to education, ought to be also analogous to the established principles of government, if it be intended to prevent its downfall; and certainly no one would pretend to assert the contrary: now this truth, so generally admitted, actually comprehends all we contemplate saying in this chapter, for education embraces the whole period of life, while laws are only a part of the education of manhood; there is no law of any kind which does not induce some new sentiment, and resist some other; which does not tend to produce certain actions, or to restrain others of an opposite tendency; whence laws in process of time form our manners, that is to say.... our habits of acting. Our business here will be only to examine, what laws are favorable to one or other form of government, without attempting to prejudge their general effects on society, and consequently without attempting to determine the degree of merit of either form of government, to which they may be applicable: this will be the object of a separate discussion, which we shall not for the present touch.

V.3

Montesquieu throughout this book, forms his reasonings, according to the system or classification of governments which he has himself approved, and on what he calls the principles proper to each of them; he makes the political virtue of his democracy agree so well with the self denial and renunciation of all natural sentiments, that the rules of the monastic orders are presented as models, and particularly those which are the most austere and best calculated to eradicate in individuals every human feeling. To perfect his theory, he approves without restriction, of means the most violent, such as the equal distribution of land, so that one person may not be allowed to possess the portions of two; to render it obligatory on a father to leave his portion to one of his sons only, causing the others to be adopted by citizens destitute of children; to give but a small dowry to his daughters, and when heirs, to oblige them to marry their nearest relation; or even to require that the rich should marry the daughters of poor citizens, &c. To this he annexes the greatest respect for all that is ancient; the most rigid and despotic censorship; paternal authority so unlimited, as to possess the power of life and death over children; and even that every father should posses the right of correcting the children of another: without however explaining by what means.

V.4

In like manner he so earnestly recommends moderation in an aristocracy, as to require that the nobles should avoid offending or humbling the people in their own eyes, that they should not arrogate to themselves any personal, pecuniary, or exclusive privileges; that there should be little or no compensation for the exercise of their public functions; that they should renounce all means of augmenting their fortunes, all lucrative pursuits, such as commerce, imposts, &c. and among themselves to avoid inequality, jealousy, and hatred; they should admit no rights of primogeniture, majority, entails, or adoption, but that all property be equally divided; a regular conduct, great exactness in paying their debts, and a prompt determination of legal process. Nevertheless he recommends in these governments so moderated, a state inquisition the most arbitrary and tyrannical, and the most unlimited use of spies and secret information: he assures us that these violent means are necessary.... we must believe him.

V.5

In conformity with his principles, he recommends in monarchies, that all which tends to perpetuate the lustre of families, an unequal distribution of property, entails, the right of testamentary bequests, the power of redeeming estates, personal proscriptive rights, and even of fiefs: he also approbates the delay of legal processes, the conferring of great power on those to whom the administration of the laws is entrusted, the purchase and sale of public employments, and generally every usage or advantage which can tend to maintain the superiority of the privileged classes.

V.6

Under what he calls despotism, he rather describes the evils which arise out of it, than informs us how the government should be conducted; which undoubtedly would have been impracticable, after he had previously given this definition of despotic government: When the savage of Louisiana is in want of fruit, he cuts down the tree to obtain it: all that could be added to this would be superfluous.*6

V.7

Such are the views which Montesquieu presents to us, on the subject of laws in general, introductory to those books, in which he enters more particularly into the different principles of laws and their various effects: we cannot but say, that many of the ideas which he offers, are unworthy of the sagacity of our illustrious author; and that there are others which are inadmissible; while it must be observed of them generally, that they are neither clearly specified nor accurately defined by the bare use of the terms virtue, moderation, honor, and fear, as significant of so many kinds of government. It would be tedious and difficult to examine them separately, from the base upon which he has placed them, which presents nothing sufficiently solid nor distinct; but we shall be better able to estimate their value, by returning to the distribution of governments into two classes, national and special, and examining them under their different forms.

V.8

Monarchy, or the power of a single person, considered in its cradle, surrounded by ignorance and barbarism (which is what Montesquieu calls despotic governments) employs no system of legislation. With respect to revenue, its resources are pillage, or presents, or confiscations; and its means of administration are the sword or the halter. The person possessing despotic power, ought also to have that of nominating his successor, at least in his own family; the successor should, when seated on the throne, cause all those to be strangled, who might dispute the succession with him; he ought to become either the absolute master, or the subtle slave of the priests, who may possess the highest credit with his ignorant subjects; and, with Montesquieu, we have no other advice to give him, in order to maintain with any security this dangerous existence, but to make use of these miserable resources with address, boldness, and if possible.... with plausibility.

V.9

But if the monarch, like Peter the great, be desirous of changing so abominable and precarious a state of society, or if he be placed among a people already somewhat civilized, and consequently disposed to advance in refinement, then he ought to devise a rational system: First, he should establish the order of succession to the throne in his family; for of all the methods of inheritance, that of lineal succession from male to male, in the order of primogeniture, is the best adapted to perpetuate the race, and the best calculated to prevent internal discord or foreign domination. Peter the great, from circumstances peculiar to himself, could not establish this order of succession in Russia; though eighty years afterwards, the emperor Paul, aided by more favorable circumstances, and sustained by the general custom of European monarchies, accomplished its establishment.

V.10

The succession once fixed in the family of the sovereign, a like stability ought to be given to a great number of families, otherwise that of the reigning family would be insecure. A political inheritance cannot subsist long alone in a state, when every thing round it is changable; when the permanent and perpetual interests of other races do not depend upon its existence for their support, it must be soon overthrown; hence the frequent revolutions in the empires of Asia, and the necessity of a nobility in a monarchy: this is a more certain reason than could be given by the word honor, well or ill understood, well or ill defined: honor is here no more than a cloak; for, in truth, it is no more than the employment of the interests of a great many to secure the obedience of all.

V.11

In the class of special governments, under the monarchical form, the prince should support his particular rights, with a great many other particular but subordinate rights; he should be surrounded by a powerful but pliant and passive nobility, who should hold the nation in the same subjection that he holds them; he should make use of bodies in society considered as honorable, and render them dependent on him; he should establish certain forms, and cause them to be respected, and which should have reference to his will; every thing, in a word, should appear as emanating from him or depending on him; great care should he taken to render them plausible, and as little repugnant to reason as practicable, and without admitting of enquiries into the authority upon which they were established, or having recourse to any investigation of primitive rights.

V.12

All this concurs with what we have said of government in the third and fourth books, and this appears to me entirely to justify Montesquieu in the instruction which he gives the monarch in this book. The venality of office, which is without doubt the most questionable, appears to me sufficiently accounted for by these considerations; for, in the first place, the prince, influenced by his courtiers, would not generally furnish better personages than would be provided by the pleasure which he always reserves to himself of giving or refusing to those who present themselves as purchasers; we might also say, that the want of funds produces a first selection which is necessary, which could not be replaced by any other mode of nomination; for in effect it is essential to this kind of government, that the public should attach a great deal of importance to exterior shew. In appointments to office, more attention should be paid to the condition of those who hold them than to their functions; now venality not only keeps out those destitute of the means of paying, but also those who could not sustain the expence of making a figure suitable to their station, or who would be inclined to encourage a contempt for forms, and make themselves esteemed by qualifications less frivolous. Indeed venality has a powerful tendency to repress and impoverish the third and lower classes of the people, and to enrich the treasury at their expence, and to promote the interests of the privileged class by means of the fortunes of those who are introduced to offices; and this is another advantage to be used in this system, for as it is among the inferior orders of people, that industry, economy, genius, and commerce, and all the useful arts, are exhibited, they only have the power of gaining or accumulating riches; and if they were not fleeced by every means, the inferior orders would soon become the most wealthy and powerful; and being, from the nature of their pursuits, already the most intelligent and prudent, their success, or the possibility of their becoming rivals of the privileged class, ought by all means to be restrained.

V.13

The words of Colbert to Louis XIV. were fraught with sagacity, applied to this case: "Sire—Whenever your majesty creates an office, Providence always creates a fool to purchase it." If Providence did not continually fascinate the eyes of the privileged orders, they would soon unite within themselves every advantage that is to be derived from society. The marriage of rich women, of the class of plebeians, with the poor members of the nobility, is also a powerful remedy against the wealth of the lower class; it should therefore be encouraged, and it is one of the circumstances in which foolish vanity is most useful.

V.14

Montesquieu's instructions to aristocratic governments, in the same book, appear to me equally prudent. I shall only add thereto, that if the aristocratic class interdicts itself from all means of augmenting their fortunes, they should be sedulous that the lower class do not encrease their wealth; and for this end they should as much as possible repress their spirit of enterprize and industry; but if they should not be able to succeed in this mode, they should take measures to incorporate successively into their own body, those who appear most dangerous, from amassing great wealth: this is the only means in their power of preventing a general mistrust, nor would this means be without danger, if recourse were to be had to it too often.

V.15

It is almost superfluous to remark here, as we have already done in regard to education, that the monarchies and aristocracies called national, in as much as they are monarchies and aristocracies, have absolutely the same interests as these, and should all adopt the same course of conduct, but with more management and circumspection, as they profess to exist for the general good alone. It should not then be too evident, that all those regulations, having only the particular interests of government in view, are repugnant to the general good, or the real prosperity of the community at large.... but enough of this subject.

V.16

I shall here take no notice of the simple democracy, because, as I have already said, it is but of short duration, and cannot be used in any considerable extent of territory. I will not then amuse myself with enquiring whether the tyrannical and shocking measures thought necessary for its support are practicable, or if even many of them are not illusory and contradictory; but I will pass to the representative government, which I consider as the democracy of enlightened reason.

V.17

This form of government does not call for nor need the constraint of the human mind, the modification of our natural sentiments, the forcing of our desires, nor the excitement of imaginary passions, rival interests, or seductive illusions; it should, on the contrary, allow a free course to all inclinations which are not depraved, and to every kind of industry which is not incompatible with good order and morals: being conformable to nature, it requires only to be left to act.

V.18

It tends to equality, but does not establish it by violent means, which never has more than a momentary effect, never accomplishes the whole purposes sought, and is besides generally unjust and oppressive; it confines itself to the diminution as far as practicable of the inequality of the mind, by diffusing information, an inequality the most of all others to be dreaded; it encourages talent, by all the members of society possessing an equal and unrestrained right to exercise their faculties; and it opens to all alike the roads to fortune and to honor.

V.19

It should take care that great riches accumulated, be not perpetuated in the same hands, but that wealth be duly distributed, so as to go into the general mass, without any violation of the rights of nature; this must be accomplished without force, and without encouraging profusion or dissipation, which would be in fact corruption instead of oppression. It will be sufficient to prohibit privileges of primogeniture or exclusive birth right, entails, powers of redemption of alienated estates, and all titles or privileges, which are only the inventions of vanity, or of cunning which governs vanity; the practice of demurrer in law, is subversive of right, and incompatible with rational government. An equal distribution of property among children, a regulation interdicting vexatious or unnatural wills, the right of divorce upon rational principles but with rigid precautions; wills and marriages should be prevented from becoming objects of speculation, which though slow in operation, have a sure and certain tendency to subvert industry; and which are too often invited by the vanity of the wealthy and the avidity of the poor.

V.20

It is the interest of this government, that the spirit of industry, order, and economy should prevail in the nation; but it is not necessary, as was the custom in some of the ancient republics, that an account should be taken of the actions and circumstances of every individual, nor to constrain any in the choice of their occupations; nor to incommode them with sumptuary laws, which tend to excite discontent, and lead to outrages upon property and liberty. It is sufficient, that no efforts be made to impede men in their reasonable pursuits or natural inclinations; that no aliment be provided for vanity; that pomp and extravagance, be not encouraged as means of obtaining public favor; that rapid fortunes may not be suffered to be amassed by the administration of the public treasury; that an act of infamous bankruptcy be the same as a decree of civil death. By such precautions as these, domestic virtue will be found in every family, and the public will maintain a corresponding character; for we often find in private, those virtues in full exercise, even when surrounded by external temptations, and in defiance of the advantages which are too often obtained by renouncing virtue.

V.21

For the same reasons, this form of government requires the general diffusion of the most correct and useful knowlege; information should be promulged constantly, and error exposed and dissipated; popular and moral writers should be rewarded, not by engagement, but by such means as may be devised for exciting a general emulation, without rendering the reward of virtue a business of intrigue on one hand, or of patronage on the other; public professors in the departments of useful sciences.... public speakers, exercising representative functions, should be induced to co-operate in this way; and even the drama might be so regulated without violating its freedom, as to render such exhibitions as are repugnant to social virtue, and the manners suitable to a free state, too odious to be admitted, and vice never to be represented but when it should be abhorred: elementary works should be composed, adapted wholly to the promotion of truth and virtue; almanacs and catechisms, moral allegories, and pamphlets accordant with the spirit of public virtue, should be encouraged; periodical journals should be instituted, which by multiplying the means of enquiry, should, through the medium of a bold or free criticism, perform those functions, which under other forms of government, are committed to the inspection of venal censors, or to indefinite restrictions; these would establish new shields for truth, and new incentives to genius and virtue. No one should be placed under any other restraint in the communication of his ideas or opinions, than the contract of moral sentiment, fari quæ sentiat, for it is indisputable, that wherever opinion is left free with reason only to combat it, truth will ultimately predominate, since being founded in natural principles, it requires no support from remote means, being always as ready to submit to the discovery of error, as to sustain the cause of truth.

V.22

The only allowable interference with the exercise of the faculties of the mind, would be such means as would assure the necessary moderation and deliberation in all discussions, but especially in the determinations which may follow.

V.23

The sale of offices should not be suffered under this form of government, which does not require of Providence to create fools, but wise and disinterested citizens; there is no class which it can wish to impoverish, because there is none which it can desire to elevate, and because neither could be of any use to it by its very nature, the greater portion of the public functions, are conferred by the suffrages of the citizens, and the rest by the enlightened choice of those who had been previously elected; almost all the public functions have but a limited duration, and none should have great emoluments nor permanent privileges attached to them; consequently there can be no reason to buy or to sell them.

V.24

Much more might still be said on what these governments, and those we have before spoken of, should or should not do, relative to legislation; but I shall confine myself to the objects, which Montesquieu has thought proper to treat of in this book. I have, however, only left it untouched, that I may more effectually demonstrate, in contradiction of this great man, that the direct and violent means which he approves in the establishment of democracies, are not the most efficacious, and that any government whatever, contrary to nature, must be bad. I shall follow the same method throughout this work.


Notes for this chapter


6.
In these few words are comprehended the whole of the thirteenth chapter; followed, however, by comments sufficiently ample, on the same subject, in the four following chapters.

Book VII

End of Notes


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