by Will Durant
A democracy should aim at equality, but it can be ruined by a spirit of extreme equality, when each citizen would fain be on a level with those whom he has chosen to command him.… Where this is the case virtue can no longer subsist in the republic. The people are desirous of exercising the functions of the magistrates, who cease to be revered. The deliberations of the senate are slighted; all respect is then laid aside for the senators, and consequently for old age. If there is no more respect for old age, there will be none presently for parents; deference to husbands will be likewise thrown off, and submission to masters. This license will soon become general.… The people fall into this misfortune when those in whom they confided, desirous of concealing their corruption, endeavor to corrupt them.… The people will divide the public money among themselves, and, having added the administration of affairs to their indolence, will be for blending their poverty with the amusement of luxury.91
And so, says the Baron, echoing Plato across two thousand years, democracy falls into chaos, invites dictatorship, and disappears.
There are many passages in Montesquieu that favor an aristocratic republic, but he so feared the despotism that he thought potential in democracy that he was willing to put up with monarchy if it ruled by established laws. The shortest chapter in his book is on despotism, and consists of three lines: “When the savages of Louisiana desire fruit, they cut the tree to the root and gather the fruit. This is a symbol of despotic government”;92 i.e., the despot cuts down the ablest families to safeguard his power. The examples Montesquieu gave were safely Oriental, but he was apparently fearful that the Bourbon monarchy was tending toward despotism, now that Cardinal Richelieu and Louis XIV had destroyed the political power of the aristocracy. He spoke of the Cardinal as “bewitched with the love of despotic power.”93 As a French noble he strongly resented the reduction of his class to mere courtiers of the king. He believed that “intermediate, subordinate, and dependent powers” were necessary to a healthy monarchy; and by these powers he meant the landed nobility and the hereditary magistracy, to both of which he belonged. So he defended feudalism at great length (173 pages), sacrificing the unity and symmetry of his book. Alone among the philosophers of eighteenth-century France he spoke with respect of the Middle Ages, and made Gothic a term of praise. In the conflict that continued throughout the reign of Louis XV between the monarch and the parlements the embattled magistrates found an arsenal of argument in L’Esprit des lois.
Montesquieu’s resentment of absolute monarchy as the vestibule to despotism led him to favor a “mixed government” of monarchy, aristocracy, and democracy—king, nobles, and Parlement or States-General. Hence his most famous and influential proposal: the separation of the legislative, executive, and judicial powers in a government.94 The legislature should make the laws but should not administer them; the executive should administer them but not make them; the judiciary should limit itself to interpreting them. The executive should not appoint or control the judges. Ideally, the legislature would consist of two independent chambers, one representing the upper classes, the other the commonalty. Here again the Baron speaks:
In such a state there are always persons distinguished by their birth, riches, or honors. Were they to be confounded with the common people, and to have only the weight of a single vote like the rest, the common liberty would be their slavery, and they would have no interest in supporting it, as most of the popular resolutions would be against them. The share they have, therefore, ought to be proportioned to their other advantages in the state; which happens only where they form a body that has a right to check the licentiousness of the people, as the people have a right to oppose any encroachment upon their liberty. The legislative power is therefore committed to the body of the nobles, and to that which represents the people, each having its assemblies and deliberations apart, each its separate interest and views.95
Each of the three powers in the government, and each of the two chambers in the legislature, should serve as a check and balance against the others. By this complex way the liberties of the citizen will be reconciled with the wisdom, justice, and vigor of the government.
These ideas on mixed government had come down from Aristotle, but the plan for a separation of powers had developed in Montesquieu’s mind from his study of Harrington, Algernon Sidney, and Locke, and from his experience in England. He thought he had found there, however imperfect, his ideal of a monarchy checked by democracy in the House of Commons, this checked by aristocracy in the House of Lords; and he supposed that the courts of England were an independent check on Parliament and the king. He idealized what he had seen in England under the chaperonage of Chesterfield and other nobles; but like Voltaire he used this idealization as a spur to France. He must have known that the English courts were not quite independent of Parliament, but he thought it good that France should contemplate the right of the accused in England to an early examination or release on bail, to be tried by a jury of his own class, to challenge his accusers, and to be exempt from torture. But also he thought that “the nobility ought not to be cited before the ordinary court of judicature, but before that part of the legislature which is composed of their own body”; they too should have the right of “being judged by their peers.”96
Montesquieu, like nearly all of us, became increasingly conservative with age. Conservatism is a function and obligation of old age, as radicalism is a useful function of youth, and moderation a gift and service of middle age; so we have a mixed constitution of a nation’s mind, with a division and mutual checking of powers. With all his laud of liberty as the true end of government, Montesquieu defined liberty as “a right of doing whatever the laws permit. If a citizen could do what they forbid he would no longer be possessed of liberty, because all his fellow citizens would have the same power.”97 And he agreed with his fellow Gascon, Montaigne, in deprecating revolutions:
When the form of government has been long established, and affairs have reached a fixed condition, it is almost always prudent to leave them there; because the reasons—often complicated or unknown—which have allowed such a state to subsist will still maintain it.98
He rejected the idea of equality in property or power, but he felt like the Gracchi about the concentration of land ownership.
With land sufficient to nourish a nation … the common people have scarcely enough to nourish a family.… The clergy, the prince, the cities, the great men, and some of the principal citizens insensibly become proprietors of all the land which lies uncultivated. The families who are ruined have left their fields, and the laboring man is destitute. In this situation they [the ruling classes] … should distribute land to all the families that are in want, and procure them materials for clearing and cultivating it. This distribution ought to be continued as long as there is a man to receive it.99
He condemned the farming of tax collecting to private financiers. He denounced slavery with moral fervor and bitter irony.100 He acknowledged the occasional necessity of war, and stretched the concept of defense to sanction preemptive war:
With a state the right of natural defense carries along with it sometimes the necessity of attacking; as, for instance, when one sees that a continuance of peace will enable another to destroy her, and that to attack that nation instantly is the only way to prevent her own destruction.101
But he deprecated the competitive amassing of armament:
A new distemper has spread itself over Europe, infecting our princes, and inducing them to keep up an exorbitant number of troops. It has its redoublings, and of necessity becomes contagious. For as soon as one prince augments his forces, the rest, of course, do the same; so that nothing is gained thereby, but the public ruin.102
Though he esteemed patriotism so highly as to identify it with virtue, he had moments in which he dreamed of a larger ethic:
If I knew of something that was useful to myself but injurious to my family, I would cast it from my mind. If I knew of something which was useful to my family b
ut not to my country, I would try to forget it. If I knew of something that was useful to my country but injurious to Europe and the human race, I should regard it as a crime.103
His ultimate ethic and secret religion were those of the ancient Stoics:
Never were any principles more worthy of human nature, and more proper to form the good man.… If I could for a moment cease to think that I am a Christian, I should … rank the destruction of the sect of Zeno among the misfortunes that have befallen the human race.… It was this sect alone that made citizens, this alone that made great men, this alone great emperors. Laying aside for a moment revealed truths, let us search through all nature, and we shall not find a nobler object than the Antonines, not even Julian himself (a commendation thus wrested from me will not render me an accomplice of his apostasy). No, there has not been a prince, since his reign, more worthy to govern mankind.104
Visibly Montesquieu took care, in L’Esprit des lois, to make his peace with Christianity. He acknowledged God—“for what greater absurdity could there be than a blind fatality which had brought forth intelligent beings?”105 But he conceived this Supreme Intelligence as expressed in the laws of nature, and never interfering with them. “For Montesquieu,” said Faguet, “God is the Spirit of Laws.”106 He accepted supernatural beliefs as a necessary support of a moral code uncongenial to the nature of man. “It is proper there should be some sacred books to serve for a rule, as the Koran among the Arabs, the books of Zoroaster among the Persians, the Veda among the Indians, and the classics among the Chinese. The religious code supplements the civil, and fixes [limits] the extent of arbitrary sway.”107 State and Church should act as checks and balances to each other, but should always remain separate; “this great distinction [is] the basis of the tranquillity of nations.”108 Montesquieu defended religion against Bayle,109 but he subjected it, like everything else, to the influence of climate and national character:
A moderate government is most agreeable to the Christian religion, and a despotic government to the Mohammedan.… When a religion adapted to the climate of one country clashes too much with the climate of another, it cannot be there established, and, if introduced, it will be discarded.110 … The Catholic religion is most agreeable to monarchy, and the Protestant to a republic.… When the Christian religion … became unhappily divided into Catholic and Protestant, the people of the north embraced the Protestant, and those of the south still adhered to the Catholic. The reason is plain: the people of the north have, and will forever have, a spirit of liberty and independence, which the people of the south have not; and therefore a religion which has no visible head is more agreeable.111
While conceding the benefits of religion in gross, he berated it in detail. He condemned the wealth of the clergy in France,112 and wrote “a most humble remonstrance to the Inquisitors of Spain and Portugal” to stop roasting heretics; he warned them that “if anyone in times to come shall dare to assert that, in the age in which we live, the people of Europe were civilized, you will be cited to prove that they were barbarians.”113 As a patriotic Gallican he laughed at papal infallibility, and insisted that the Church should be subject to the civil power. As to religious toleration he took a middle view: “When the state is at liberty to receive or reject a new religion, it ought to be rejected; when it is received it ought to be tolerated.”114 With all his obeisance to the censor he remained a rationalist. “Reason is the most perfect, the most noble, the most beautiful of all our faculties [la raison est le plus parfait, le plus noble, et le plus exquis de tous les sens],”115 What better motto could the Age of Reason display?
4. Aftermath
The Spirit of Laws was soon recognized as a major event in French literature, but it met with criticism from both right and left. The Jansenists and the Jesuits, normally at odds, united in condemning the book as a subtle repudiation of Christianity. Said the Jansenist Ecclesiastical News: “The parentheses that the author inserts to inform us that he is a Christian give slight assurance of his Catholicism; the author would laugh at our simplicity if we should take him for what he is not”; and the reviewer ended with an appeal to the secular authorities to take action against the book.116 The Jesuits accused Montesquieu of following the philosophy of Spinoza and Hobbes; in assuming laws in history as in natural science, he left no room for freedom of the will. Father Berthier, in the Jesuit Journal de Trévoux, argued that truth and justice are absolute, not relative to place or time, and that laws should be based on God-given universal principles, rather than on diversities of climate, soil, custom, or national character.117 Montesquieu thought it wise to issue (1750) a Défense de l’Esprit des lois, in which he disclaimed atheism, materialism, and determinism, and reaffirmed his Christianity. The clergy remained unconvinced.
Meanwhile the rising philosophes were also displeased. They considered The Spirit of Laws as almost a manual of conservatism; they resented its occasional piety, the moderation of its proposed reforms, and its halfhearted conception of religious toleration.118 Helvétius wrote to Montesquieu chiding him with laying too much emphasis on the dangers and difficulties of social change.119 Voltaire, who was preparing his own philosophy of history in the Essai sur les moeurs, was not enthusiastic over Montesquieu’s achievement. He had not forgotten that Monsieur le Président had opposed his admission to the Academy with the words, “It would be a disgrace to the Academy if Voltaire were a member, and it will one day be his disgrace that he was not one.”120 Under the circumstances Voltaire’s criticism was restrained, and was dammed with considerable praise. He argued that Montesquieu had exaggerated the influence of climate; he noted that Christianity had originated in hot Judea and was still flourishing in chilly Norway; and he thought it more likely that England had gone Protestant because Anne Boleyn was beautiful than because Henry VIII was cold.121 If, as Montesquieu had suggested, the spirit of liberty rose chiefly in mountain regions, how explain the sturdy Dutch Republic, or the liberum veto of the Polish lords? In his Philosophical Dictionary (1764) Voltaire filled pages with examples indicating that “climate has some influence, government a hundred times more, religion and government combined more still.”122
We might ask those who maintain that climate does everything [Montesquieu had not claimed this], why the Emperor Julian, in his Misopogon, says that what pleased him in the Parisians was the gravity of their character and the severity of their manners; and why these Parisians, without the slightest change of climate, are now like playful children, whom the government punishes and smiles at at the same moment, and who themselves, the moment after, also smile and sing lampoons upon their masters.123
Voltaire found it
melancholy that in so many citations and so many maxims the contrary of what is asserted should be almost always the truth.… “People of warm climates are timid, like old men; those of cold countries are courageous, like young ones”? We should take great care how general propositions escape us. No one has ever been able to make a Laplander or an Eskimo warlike, while the Arabs in fourscore years conquered a territory which exceeded that of the whole Roman Empire.124
And then the praise:
After thus convincing ourselves that errors abound in The Spirit of Laws, … that this work wants method, and possesses neither plan nor order, it is proper to ask what really forms its merit and has led to its great reputation. In the first place, it is written with great wit, whilst the authors of all the other books on this subject are tedious. It was on this account that a lady [Mme. du Deffand], who possessed as much wit as Montesquieu, observed that his book was l’esprit sur les lois[wit about laws]; it can never be more correctly defined. A still stronger reason is that the book exhibits grand views, attacks tyranny, superstition, and grinding taxation.… Montesquieu was almost always in error with the learned, because he was not learned; but he was almost always right against the fanatics and the promoters of slavery. Europe owes him eternal gratitude.125
And he added, elsewhere: “Humanity had lost its title dee
ds [to freedom], and Montesquieu recovered them.”126
Later criticism has largely agreed with Voltaire, while checking his own exaggerations.127 It is true that The Spirit of Laws was poorly constructed, with little logic in the arrangement and sequence of the topics, and frequent forgetting of the unifying theme. In his zeal to be a scientist, to accumulate and interpret facts, Montesquieu ceased at times to be an artist; he lost the whole in the parts instead of co-ordinating the parts into a harmonious whole. He had gathered his data over half a lifetime; he wrote his book during twenty years; its sporadic composition injured its unity. He generalized too readily from a few instances, and did not look about him for contrary instances—e.g., Catholic Ireland in the cold and “therefore” Protestant north. He gave away his method when he said: “I have laid down the first principles, and have found that the particular cases follow naturally from them; that the histories of all nations are only consequences of them”; this is the danger of approaching history with a philosophy to be proved by it. In gathering his data Montesquieu accepted too readily the unverified accounts of travelers, and sometimes he took fables and legends for history. Even his direct observation could be faulty; he thought he saw a separation of powers in the English government, when the legislative was visibly absorbing the executive.
Against these faults there must have been great virtues to give the book its acclaim and influence. Voltaire rightly signalized the style. This too, however, suffered from fragmentation. Montesquieu indulged a liking for short chapters, perhaps as a means of emphasis, as in the “chapter” on despotism; the result is unpleasantly staccato, obstructing the flow of thought. Part of this fragmentation may have been Duc to progressive weakening of his eyes, compelling him to dictate instead of writing. When he let himself go and spoke out, he achieved, with crisp and pithy sentences, some of the brilliance that had brightened the Lettres persanes. Voltaire thought there were more epigrams in L’Esprit des lois than befitted a work on law. (“In Venice,” said Montesquieu, “they are so habituated to parsimony that none but courtesans can make them part with their money.”128) It is nevertheless a magistral style, moderate and calm. It is occasionally obscure, but it repays unraveling.
