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

Chap. I…. Of the spirit of the legislator.

Chap. II…. Continuation of the same subject.

Book XXIX. On the Manner of Forming Laws.

Observations on the Twenty-Ninth Book of the Spirit of Laws, by M. Condorcet

I do not understand what is contained in this first chapter; but I know that the spirit of a legislator should be justice. A faithful regard to the laws of nature is all that is properly law. In the regulation of the forms of proceeding, or in particular decisions, he should seek the best method of rendering them conformable to the laws and to truth. It is not by the spirit of moderation, but by the spirit of justice, that criminal laws should be mild, that civil laws should tend to equality, and the laws of the municipal administration to liberty and prosperity.

The two examples quoted are ill chosen. The simplicity of forms is not repugnant to security, whether personal or of property, for the preservation of which only all forms are established. M. Montesquieu seems to believe it, but he no where proves it; and the injustice caused by complicated forms, renders the contrary opinion at least probable.

The second example is preposterous: what is it to the science of composing laws, that Cecilius or Aulus Gellius uttered an absurdity?

By the spirit of moderation, does not M. Montesquieu understand that spirit of uncertainty which alters by a hundred little irrelative motives, the principles of justice, which are in themselves invariable. See chap. 18.

Chap. III…. That laws which appear to deviate from the intentions of the legislator, are often conformable thereto.

The first duty of a legislator is to be just and reasonable. It is unjust to punish a man for not having sided with a party, for he may be either ignorant which party is most actuated by justice, or he may think them both culpable. It is contrary to reason to punish with infamy by positive law, since
opinion only can adjudge this punishment; if the laws be in unison with the opinion, it is useless; and if it be contrary to opinion it becomes ridiculous.

Does not Montesquieu mistake the intention of Solon? It would appear to be rather intended to oblige the body of the nation, to take part in the quarrels which might arise between a tyrant, an oppressive senate, or iniquitous magistrates, and the defenders of liberty; in order to secure to these last the support of well disposed citizens, whom fear might have deterred from declaring their sentiments; it was in fact a means by which every particular insurrection would become a civil war; but the motive was consonant with the spirit of the Greek republics.

Chap. IV…. Of laws which clash with the views of the legislator.

A benefice being a public function, conferring a recompense for the discharge of the duties appertaining to it, should be given in the name of the state, and it should be known to whom the state gives it; an action at law for a benefice is therefore ridiculous.

If, on the contrary, a benefice be looked upon as a real estate, and the right of giving it another kind of real estate, then the law quoted is evidently unjust.

Why has not Montesquieu in the Spirit of Laws spoken of the justice or the injustice of the laws he quotes, and the motives which he attributes to the laws? Why has he not laid down some principles which would enable us to discriminate among the laws flowing from a legitimate power, those which are unjust, and those which are conformable to justice? Why in the Spirit of Laws is there no notice taken of the nature of the rights of possession, of their consequences, extent, and limits?

Chap. V…. Continuation of the sane subject.

I do not know why Montesquieu has given the name of a law, to an oath which was equally inconsiderate and barbarous; a law which commanded a town to be destroyed because its inhabitants had destroyed another town, may be very unjust; but it would be no more contrary to the views of the legislator, than the law which determines the punishment of death against assassins, with the intention of preventing murder.

There are so many important laws nearer home, which are contrary to the intentions of the legislator in establishing them, that it is strange the author of the Spirit of Laws should choose these two examples.

This observation often presents itself, and the reason may be assigned. See chap. 16.

Chap. VI…. Laws which appear to be the same have not uniformly the same effect.

The law of Cæsar was unjust and absurd: what, then, would the tyranny of this man have been, though so clement, if he had arrogated to himself the right of searching the houses of citizens, and of taking away their money; and if he did not intend to employ such means, of what use were his laws? Besides, it would only have augmented debts, and could have been useful to the debtor only, by diminishing the interest of money: now the freedom of commerce is the only means of producing this effect; all other laws are only calculated to raise interest above its natural rate. The law of Cæsar was probably a robbery, which for law, is abominable. See Dio. Cassius, book 49.

Chap. VII…. Continuation of the same subject. The necessity of composing laws in a proper manner.

The ostracism was an injustice: we are not criminal for possessing credit, wealth, great talents: it was moreover the means of depriving the republic of its best citizens, who never returned, unless on account of a foreign war or a sedition.

But how is this necessity of composing laws properly, and what would be the consequence, shewn; and how are the principles determined upon which they should be composed, by the example of the two bad laws that had been established in two Greek cities?

It is requisite to give men such laws as are most conformable to justice, to nature, and to reason; and such laws should be composed, so that they may be properly executed and not liable to abuse. The author of the Spirit of Laws extols a law of the Athenians, which was an extremely absurd law.

We no where find an example illustrated, never any discussion, nor any precise principles; but always one or two quotations which generally prove no more than that nothing is more common than bad laws.

Chap. VIII…. Laws which appear the same have not always been established on the same motives.

The principle of the law of entails originates in the Roman laws; as well as in ours, from the assumption that the right of possession extends to the disposal of our goods after our death. This principle is generally established, because in almost every place those in actual possession have made the laws. If the Romans were desirous of perpetuating certain sacrifices, as we are of making certain titles hereditary, it is very probable that vanity was equally the motive: it was in all cases choosing a future representative.

Chap. IX…. The Greek and Roman laws punished suicide from different motives.

In what country of Greece was suicide punished, and what was the punishment? Montesquieu does not inform us. Nor does Plato in his dialogues, speak of any such laws established. He says, for example…. that a slave who should kill a free man in defending himself, should be punished with death. As respects suicide, Plato advises the relations to bury those who die by their own hands, without any ceremony, without any inscription, and finally to consult the priests upon the form of the expiatory sacrifice.

Indeed, the expression
shall be punished, is not to be found in Plato: and this is the manner in which Montesquieu quotes Plato, and shews that suicide was punished in Greece.

In Rome, if a person deprived himself of life, before being condemned, he avoided the confiscation of his goods and a denial of the right of sepulture. The emperors afterwards decreed, that the accused, who should deprive themselves of life to prevent condemnation, should be treated as if they had been condemned. The laws which authorised confiscation after condemnation, were unjust; those which deprived the condemned of burial, might be barbarous, but in all this there was no punishment of suicide.

In England an exception is granted from certain punishments, to those who can read. Suppose that a law had been made to deprive those of this privilege, who had learned to read during the trial: could it be said that in England these punishments were enacted against those who had learned to read?

Chap. X…. Laws which appear contradictory, sometimes originate in the same spirit.

In order that the example should correspond with the title, the intent and effect of the French laws should be to assure a due respect for the asylum of a citizen.

And for the title to correspond with the example, it should be stated, that the consequences of the same principles are more or less understood in different countries. But then, the title would not have been so profound.

Montesquieu might have observed, that from the same principle of respect for the life of a man, may be deduced laws either very mild, or cruelly severe: and he should have concluded thence, that a principle very different from that of justice, may lead to false consequences.

Chap. XI…. How shall we be able to compare and judge between two laws.

For the principle asserted in this chapter to be true, a system of laws must be selected, in which there are some good and some bad; otherwise, it is more natural to judge of every law separately, to examine and discover whether it contains any thing repugnant to justice or to natural rights: if contrary thereto, it should be rejected; and in any case where it might have a local utility, it should be superseded by another law, calculated to produce the same utility, without violating justice.

In the example quoted, we should discover first, false testimony considered in itself as a crime, and false testimony considered only as an attempt against the life and honor of a citizen, and prove that it is only under this point of view that it is a crime: secondly, if I should be shewn that the law of France is not only not necessary, but that it is bad; not that it punishes as a capital crime and with death, the person who by false testimony has caused the death of an innocent person; but because it authorises the prosecution of any one, as a false witness, who, after an examination, should retract that to which, he had sworn, or whose false evidence should be discovered, so that consequently it is only a greater obstacle in the way of justification to an innocent person: thirdly, because it is difficult in England, to cause the death of an innocent person by false testimony; it does not follow, that we should not consider it as a capital crime, when ever it is committed.

So that not only the principle explained in this chapter is very uncertain, but the facts cited as illustrations, do not apply.

We cannot help being a little surprised that the disparity of fortune, the unjust and tyrannical refusal to admit justificatory facts in evidence, and the equivocal and perhaps too rigorous laws against false witnesses, should be held forth by Montesquieu, as forming a system of legislation, of which we should examine the whole: if this be intended as ridicule, it is not sufficiently pointed.

Chap. XII…. Laws which appear the same, are sometimes really different.

This chapter contains nothing but what is right, but the title seems to announce something extraordinary, which the chapter does not contain. The proposition that the receiver of stolen goods, should be punished in the same manner as the thief, is not a law, but a general maxim, true or false; if it be true, the laws of France and the Romans, are equally good or bad; either when they operate against the thief or the receiver; if it be false, both are necessarily bad as respects one of them.

Chap. XIII…. We should not separate the laws from the purposes for which they were established: of the Roman laws against theft.

The distinction between open robbery and robbery that is not open, requires no illustration from a law of Lacedemon. The difference of punishment could have no other motive than the certainty of the one kind of robbery, and the difficulty of proving the other; and as the second was only punished by a fine, this distinction is not unreasonable, because a receiver, an imprudent purchaser, or a person of bad character, may be, without injustice, condemned to this double fine. These are cases in which our tribunals do not take the life of the culprit, but they condemn to the galleys for life an assassin or a poisoner, under the fiction that he is not absolutely convicted but only nearly so. This kind of jurisprudence would be natural enough among a people in a half savage state, who look upon the punishment of crimes rather as an act of vengeance regulated by law, than an act of civil justice.

The distinction between the punishment of those who have reached the age of puberty, and those who have not, does not require to be explained by the laws of Lacedemon, or the reasonings of Plato on the laws of the island of Crete: it is founded on this, that those under the age of puberty are supposed not to possess either the full use of reason, or a proper knowlege of the laws of society.

Chap. XIV…. Laws should not be separated from the circumstances in which they were established.

I must acknowlege that it is impossible to see the least connexion between the title of this chapter and the first article.

It is very evident that Montesquieu had collected a number of notes on the laws of all people, and that to form his work, he ranged them under different titles. This is the method for which he has been so much celebrated, and which exists only in the heads of those who model his book according to their own fancy.

If a physician not belonging to a corporation, should not succeed in curing a patient who has freely granted him his confidence, it does not follow that we should punish him; nor does he merit any punishment, when having an exclusive privilege of attending me as a physician, he has prevented me by virtue of his privilege, from applying to another who might have cured me.

Is it in France that the surgeon and apothecary are not interdicted, or condemned to pay damages when ignorant of their profession? If the physicians are not punished, it is because it would be very difficult to prove them to be in the wrong: whereas, it may be very easy to do so with the surgeons and apothecaries?

What is meant by a physician of a lower condition than another? Is this
lower condition a good reason for condemning the physician to death for the same fault that a physician of a
higher condition is only condemned to transportation. All this is shocking to the spirit of good laws.

Chap. XV…. It is sometimes proper that the law shall correct itself.

Every man, who kills another, is guilty of murder, if not of assassination, unless he has killed him in self-defence, to save his own life or that of another; and to be considered innocent this excuse should at least be probable.

The laws of the twelve tables were bad.

Besides, does Montesquieu imply any thing more than that a law may require some modifications, and the discrimination of certain circumstances? All this is true and common; but he might have said it in a more simple and useful manner.

Chap. XVI…. Matters to be observed in composing laws.

The author begins in this chapter to treat the subject announced by the title of the book. What he says is true in general, but is not sufficiently important nor well explained. See remark in chap. 19.

This sixteenth chapter contains many incongruous things. The testament attributed to Richelieu, employs a vague expression, but that phrase is not a law; and Montesquieu might have found in our laws, or in those of the neighboring people, more remarkable examples. The chancellor de l’Hopital thought it proper to declare Charles IX. of age at fourteen; but neither he nor any other person, ever thought of giving any serious reasons for so doing, or only such as could not be publicly avowed.

Neither the dimensions of the crown nor the Pythagorean numbers are in the laws quoted.

The edict of proscription of Philip II. is not a law.

Although our criminal jurisprudence is fraught with vague laws, which might lead ignorant and ferocious judges to shameful acts of barbarity, yet Montesquieu does not notice them, but seeks examples in laws that no longer exist but in libraries.

He finds fault with the style of the laws of the empire, but this is confounding the preamble with the law itself. When a people enact their own laws, there is no need of explaining the motives, and very often no other but its will can be given; but when a single man dictates laws to a nation, the respect due to human nature imposes upon him the duty of giving reasons for his laws, to shew that he prescribes nothing but what is conformable to justice, to reason, and to the general good. The ministers of the emperor were in the wrong if they wrote the preamble as rhetoricians, but they were right in looking upon them as necessary, and Montesquieu should have made this distinction.

Chap. XVII…. Bad manner of enacting laws.

Laws should be directed to general objects, and not to particular cases; the rescripts of the emperors could only be considered as interpretations given by the legislator; now such interpretations could neither have a retrospective effect, nor the force of law, inasmuch as they are not clothed in the authentic form which characterises law.

A law of Caracalla was a law, and might have been an absurd one: a rescript of Marcus Aurelius, or of Julian, though an oracle of wisdom, should not be considered as a law, before an edict had given it the sanction of one.

Justinian may have been in the wrong, by giving the power of laws to several of the rescripts, if they contained absurdities; but it was not because they were made by those lawyers, who wrote in the name of Caracalla, or Comodus. The emperors no more made their rescripts, than Louis XIV. made the regulations of 1670.

This Nacrinus, who was a gladiator and notary, and afterwards the compiler of the rescripts of Caracalla, who reigned a few months, and lost the empire and his life by his folly, is a singular authority to quote in the Spirit of Laws.

Chap. XVIII…. Of ideas of uniformity.

We have now arrived at one of the most curious chapters of the work; it is one of those which obtained for Montesquieu the indulgence of all the prejudiced people, of all those who detest light, of all the protectors and participators in abuse: we shall examine it in detail.

1st. Ideas of uniformity and regularity, please all minds, and particularly sound minds.

2d. Can the great mind of Charlemagne be quoted in the eighteenth century, on the discussion of a philosophical question? It is undoubtedly a stroke of ridicule against those who might entertain the idea that Montesquieu was desirous of combating.

3d. We do not understand what is meant by
the same weights in policy, the same measures in commerce. Commerce employs both weights and measures; policy meddles with both, but should really do so for no other purpose than to see that they have their proper quantity and value, and to keep them so, and to regulate them by standards established for this end.

4th. Uniformity of weights and measures can only displease those disciples of chicane, who fear to see the number of suits diminished, and those traders who apprehend the decrease of profit, from whatever contributes to render commercial transactions easy and simple. That which has been proposed for this purpose, with the common approbation of all enlightened men, is to determine on a natural, uniform, and unchangeable standard; to employ it in forming measures of length, superfices, capacity, and weight, so that the successive divisions in smaller weights and measures may be expressed by simple and commodious numbers; for these divisions and proportions, afterwards to be established, in a public and legal manner, and those exact means which natural philosophy furnishes; the exact relation of all the measures used in the country with the new ones, and which would forever put an end to law suits…. at least, on subjects depending on measures of every kind. Such new principles of admeasurement, should be exclusively adopted by the government, the assemblies of the state, the communities, &c. Individuals having the liberty of making use of such measures as they may choose. This change, then, would be effected without any restraint or compulsion, and without troubling commerce…. no one has ever proposed another method.

6th. As truth, reason, justice, the rights of man, the interests of property, of liberty, of security, are in all places the same; we cannot discover why all the provinces of a state, or even all states, should not have the same civil and criminal laws, and the same laws relative to commerce. A good law should be good for all men. A true proposition is true every where. Those laws which appear as if it were necessary they should be different in different countries, or exacted on objects which should not be regulated by general laws, consist for the most part of commercial regulations, or are founded on prejudices and habits which should be extinguished, and one of the best means of doing so, is to cease from giving them the countenance of the laws.

7th. Uniformity in laws may be established without trouble, and without producing any evil effects by the change.

This may be admitted for the establishment of a good criminal jurisprudence, but what trouble could a good civil code produce? It would change the order of the distribution of successions, but no succession in expectation is a right of possession, any more than a right to property declared to be bequeathed in a will, can become the property of the legatee, until after the death of the testator. Conventions made before the new law might preserve all their force, unless contrary to natural rights: conventions are of three kinds; their execution is immediate, or a time is fixed, or they are perpetual. In the two first cases, the performance of contracts made before the new law, might be adjudged according to the old jurisprudence without trespassing on the uniformity of laws; in the last case it might be injurious thereto, but the perpetuity of any convention cannot originate from the supposed right of possession, it is altogether founded on the sanction of the law, and consequently the legislator should in the nature of things, possess the right of changing these conventions, by preserving the original and true right of each of the parties or their heirs.

If an uniform and simple jurisprudence were a established, the first consequence would be that the advantage of the knowlege of forms would no longer be confined exclusively to lawyers; that all men, capable of reading, would be equally capable of comprehending, and conversant in the subject; and it is difficult to imagine that this equality should be considered as an evil.

8th. It is not hazarding any thing to assume that the establishment of an uniformity in social institutions, would give to all the inhabitants of a country precise ideas on objects of the first importance…. a more exact acquaintance with their interests…. and would diminish inequality among men in the common conduct of human affairs.

9th. A farmer general also exclaimed in 1775….
Why make changes, are we not very well us we are? Repugnance to change can only be reasonable in these two cases. 1. When the laws of a country approach so near to reason and justice, and the abuses are so trifling, that no sensible advantage could be expected from a change. 2. When it is supposed that there is no certain principle by which we might direct ourselves in security to the establishment of new laws. Now, all the nations that exist, are far from the first point, and we cannot be any longer of the second opinion.

10th. The
greatness of genius is one of those vague expressions which strike little minds and impose upon them…. which please corrupt men, and are adopted by them. Some men, because they see nothing, are fond of believing that light does not exist: others, who fear light, labor under perpetual apprehension lest the people should open their eyes.

11th.
When citizens follow the laws, of what consequence is it whether they follow the same laws? It is of consequence to follow good laws, and as it is difficult for two different laws to be equally good, just, and useful, it is of some consequence to them to follow that which is best; it is of consequence that they should follow the same laws, because it tends to establish equality among men. What relation has the ceremonial of the Tartars and Chinese with laws? This article appears to indicate that Montesquieu looked upon legislation as a game, in which it is indifferent whether this or that path be followed, so that the established rule whatever it may be, is adhered to. But this is not true, even of gaming, where the rules, though apparently arbitrary, are almost all founded on reasons which the gamesters indistinctly perceive, and which mathematicians, accustomed to the calculation of probabilities, can explain.

Chap. XIX…. Of legislators.

Montesquieu here confounds legislators, with political writers who have proposed systems of legislation.

Is it certain that Aristotle had so marked an intention of contradicting Plato? What we know of the Grecian republics gives us reason to believe that their legislation was very imperfect in some respects, and particularly that it was very complicated. The more simple the legislation of a state is, the better it will be governed.

What has Cæsar Borgia to do with legislation? The discourse of Machiavel on Titus Livius, and his history of Florence, contain many political views which announce, when we take into consideration the age in which Machiavel lived, a comprehensive and profound mind; but he certainly never dreamt of Cæsar Borgia in writing them. The book entitled,
The Prince, the life of Castracani, &c. are works in which Machiavel explains how a rascal may conduct himself in order to rob, murder, and so forth, with impunity. Cæsar Borgia was for some time thought to be an adept of this kind; but there is in this no question involving principles of legislation.

Why has not Montesquieu counted Locke among the number of legislators? Is it because he thought the laws of Carolina too simple?

Were it permitted us to offer a few ideas here, on the subjects of this book, we should, in the first place, distinguish the case wherein it was in agitation to give a new legislation to a people; that wherein laws are only passed on a branch more or less extensive of legislation; and where the law has only a particular object.

In the first case, it is a necessary preliminary to fix the object on which the legislator should act…. These objects are: 1. The laws which relate to the defence of the rights of the citizen against violence and fraud: these are the criminal laws. 2. The laws of the police or civil administration; they are divided into two classes; some determine the sacrifices which each citizen may be obliged to make of his liberty for the maintenance of order and public tranquillity. It is a genuine right that man acquires by living in society, and consequently it is not unjust that individuals should make some sacrifices of a part of their liberty to secure it.

The second kind of laws of police, are those which regulate our enjoyments as to things that are public, such as roads, streets, &c.

Thirdly, the civil laws may be divided into five kinds; those which determine what should belong to possessions, as the laws of succession; &c.

Those which regulate the means of acquiring property, as the laws on sales and purchases; those which regulate the exercise of the right of possession in cases where the entrance upon possession was obstructed; those which secure possession, as in cases of mortgages closed, or debts due; those, in short, which affect the condition of individuals.

On all these objects, laws of two kinds are required, the first are such as determine the principles upon which each question should be investigated and decided: the other the forms of decision.

Fourthly, political laws, which regulate…. l. The exercise of the right of legislation. 2. The mode of employing the public force for defence against internal attack. 3. The means of executing the laws internally. 4. The manner of treating with foreigners on behalf of the nation. 5. The public expenditures. 6. Public resources to defray expenditures.

We shall not speak of the laws that relate to commerce, because it should be free, and requires no other laws than those which protect property.

Then, on every subject all the particular questions which present themselves, should be reduced to general and simple propositions, and to as small a number as is consistent with efficacy; then a particular enquiry should be made into each, in order to
determine.

First: if they should be established by a law. Second: whether, according to the principles of justice, reason does not furnish an answer to the proposition.

If reason furnishes a principle, it should be followed; if not, the course most congenial with public utility, should be pursued.

It is not sufficient that the laws thus framed be clear, they should be couched in language the most simple and precise, and in words of a determinate and known signification; and whenever words of questionable construction are used, they should not be suffered to pass without a definite and scrupulous explanation.

As every legislator may be deceived, the motive for instituting the law should accompany it. This course is necessary in order to attach those who are subject to them, to the laws, and for the information of those who execute them; in short, to prevent pernicious changes, and to facilitate changes that are useful. But the explanation of the motive should be detached from the law, as in a mathematical book, the demonstration is separated from the proposition, and even the work containing them. A law is nothing more than this proposition….
it is just or reasonable…. according to the text of the law.

If desirous only of giving a particular branch of legislation, care should be taken to define, with great exactness, the limits beyond which it should not pass; after having regulated it according to reason and justice, to examine whether it contains any thing contrary to any established law, and carefully to discover all such errors, as the roots of those evils which it is the best interest of society to eradicate. However, it would be better to have a good law, in contradiction to a bad one, which could not be destroyed, than to suffer the bad one to remain alone.

When desirous of being convinced that a particular law is good, it should be examined, but not alone; it should be taken in connexion with all the laws that enter into a good system for the branch of legislation to which it belongs and with its actual situation; it may then be discovered either that the laws we are desirous of making, should enter into and make part of a system, or that they are only useful or necessary by being opposed to the injustice which may result from laws already established, and which cannot otherwise be changed.

In the first case, we should conform ourselves to positive justice: in the second, to relative justice; in the first…. the law should be presented as a true law; in the second…. as a modification of the bad law for which it is a remedy. The more particular the object of a law is, the more important it is for the legislator to explain his motives. It is much more easy to understand the general spirit of legislation, or a branch of it, than a particular law.

It would be well to regulate, in a general legislature, the means by which the laws are to be reformed, from which abuses result, without being obliged to wait for the excess of abuses, which usually makes the necessity evident, by the calamity that has been produced.

There are laws which should appear to the legislator as formed for perpetuity: there are others, which should be considered as only temporary. These two descriptions of laws should be classed and distinguished in the compilation of the laws.