- Familiar Letters. By President De Montesquieu.
- Letter I.: To Father Cerati * of the Congregation of the Orators of Saint Philip At Rome.
- Letter II.: To the Same.
- Letter III.: To Monsieur L’abbé Venuti * , At Clerac.
- Letter IV.: To the Abbé Nicolini * , At Florence.
- Letter V.: To Mr. Cerati, At Pisa.
- Letter VI.: To Abbé Venuti At Clerac.
- Letter VII.: To Abbé De Guasco, At Turin.
- Letter VIII.: To the Count of Guasco, Colonel of Foot.
- Letter IX.: To the Abbé De Guasco.
- Letter X.: To the Same.
- Letter XI.: To the Same.
- Letter XII.: To the Countess De Pontac.
- Letter XIII.: To Mr. Cerati.
- Letter XIV.: To Abbé De Guasco At Clerac.
- Letter XV.: To the Same.
- Letter XVI.: To the Same.
- Letter XVII.: To the Same.
- Letter XVIII.: To the Same.
- Letter XIX.: To the Same Abbé De Guasco.
- Letter XX.: To the Same.
- Letter XXI.: To Mr. Cerati.
- Letter XXII.: To Abbé De Guasco, At Aix.
- Letter XXIII.
- Letter XXIV.: To the Same.
- Letter XXV.: To the Same.
- Letter XXVI.: To the Same.
- Letter XXVII.: To Mr. Cerati.
- Letter XXVIII.: To Prince Charles Edward.
- Letter XXIX.: To the Grand Prior Solar, Ambassador From Malta, At Rome.
- Letter XXX.: To the Abbé and Count De Guasco, At Paris.
- Letter XXXI.: To Mr. Cerati.
- Letter XXXII.: To Abbé Venuti.
- Letter XXXIII.: To the Abbé Count De Guasco.
- Letter XXXIV.: To the Abbé Venuti, At Bourdeaux.
- Letter XXXV.: To Mr. Cerati.
- Letter XXXVI.: To Abbé Venuti.
- Letter XXXVII.: To Abbé Venuti.
- Letter XXXVIII: To the Abbé Count De Guasco.
- Letter XXXIX.: To Abbé De Guasco.
- Letter Xl.: to the Same.
- Letter Xli.: to the Same.
- Letter Xlii.: to the Same, At Bourdeaux.
- Letter Xliii.: to the Same.
- Letter Xliv.: to the Same Abbé De Guasco.
- Letter Xlv.: to the Same At Vienna.
- Letter Xlvi.: to the Same Abbé De Guasco At Vienna.
- Letter Xlvii.: to the Same, At Verona.
- Letter Xlviii.: to the Same.
- Letter Xlix.: to the Same, At Naples.
- Letter L.: to the Same.
- Letter Li.: to Mr. Cerati.
- Letter Lii.: to the Abbé Marquis Nicolini.
- Letter Liii.: to Abbé Count De Guasco.
- Letter Liv.: to the Same.
- Letter Lv.: to the Auditor Bertolini, At Florence.
- Letter Lvi.: to Abbé Count De Guasco.
- Letter Lvii.: a Billet to the Same.
- Letter Lviii.: to the Grand Prior Solar, At Turin.
- Letter Lix.: the Fragment of a Letter From M. De Montesquieu, to the King of Poland, Duke of Lorraine, to Solicit His Majesty For a Place In the Academy of Nantz.
- Letter Lx.: Fragment of the King of Poland’s Answer, to the Foregoing Letter.
- Letter Lxi.: to M. De Solignac, Secretary to the Literary Society At Nantz.
- Letter Lxii.: From M. De Montesquieu. to the Author of a Short View of the Philosophical Works of Lord Bolingbroke.
- Letter Lxiii.: to the Dutchess of Aiguillon.
- Letter Lxiv.: From the Dutchess of Aiguillon, to Abbé De Guasco.
- Letter Lxv.: an Article Taken From a Letter of Baron Secondat De Montesquieu, to the Abbé Count De Guasco.
- Letter Lxvi.: Article of a Letter to the Same.
- Miscellaneous Pieces of M. De Secondat, Baron De Montesquieu.
- An Oration Pronounced the 24th of January, 1728. By President Montesquieu: When He Was Received Into the French Academy, In the Room of the Late M. De Sacy.
- An Essay Upon Taste, In Subjects of Nature, and of Art.
- Of the Pleasures of the Soul.
- Of the Mental Faculties * .
- Of Curiosity.
- Of the Pleasures of Order.
- Of the Pleasures of Variety.
- Of the Pleasures of Symmetry.
- Of Contrasts.
- Of the Pleasures of Surprize.
- Of Different Causes That Produce Sensation.
- Of Sensibility.
- Of Delicacy.
- Of the Je Ne Scais Quoi.
- The Progression of Surprize.
- Of Beauties Which Result From an Embarrassment of the Soul.
- The Temple of Gnidus.
- The Preface.
- Canto I.
- Canto II.
- Canto III.
- Canto IV.
- Canto V.
- Canto VI.
- Canto VII.
- Cupid Distressed.
- The Analysis of the Spirit of Laws. By M. D’alembert.
- A Defence of the Spirit of Laws. to Which Are Added, Some Explanations.
- Part I.
- Part II.
- The General Idea.
- Of the Counsels of Religion.
- Of Polygamy.
- On Climate.
- Of Toleration.
- Of Celibacy.
- A Particular Error Committed By the Critic.
- Of Marriage.
- Of Usury.
- “of Maritime Usury.
- Part III.: Some Explanations of the Spirit of Laws.
THE ANALYSIS OF THE SPIRIT OF LAWS.
By M. D’ALEMBERT.
THE greatest part of men of letters who have mentioned the Spirit of Laws, having rather endeavoured to criticise it than to give a just idea of it; we shall endeavour to supply what they ought to have done, and to explain its plan, its nature, and its object. Those who may think this Analysis too long, will perhaps be of opinion, after having read it, that there was no other method but this alone of making the author’s method properly understood. Besides, it ought to be remembered, that the history of celebrated writers is no more than that of their thoughts and their works; and that this part of their history is the most essential, and most useful.
Men in the state of nature, abstracting from all religion, in those disputes which they may have, knowing no other law but that of all animals, the right of the strongest, the establishment of society ought to be regarded as a kind of treaty against this unjust title; a treaty destined to establish a sort of balance between the different divisions of the human race.
But it happens in the moral, as in the physical equilibrium; it is seldom perfect and durable, and the treaties of mankind are, like treaties among our princes, a perpetual source of disputes. Interest, necessity, and pleasure, made men associate together. The same motives push them continually to want to enjoy the advantages of society without bearing the burdens of it; and it is in this sense that we may say with our author, That men, from the time they enter into society, are in a state of war. For war supposes in those who make it, if not an equality of strength, at least an opinion of this equality; whence arise the mutual desire and hope of conquest. Now, in a state of society, if the balance among men is never perfect, neither is it, on the other hand, too unequal. On the contrary, they would either have nothing to dispute about in the state of nature; or if necessity obliged them to it, nothing would be seen but weakness flying before force, oppressors meeting with no resistance, and those who were oppressed, tamely submitting.
Behold then men, united and armed at the same time, embracing each other on one side, if we may speak so; and endeavouring on the other mutually to wound each other. Laws are the chains, more or less efficacious, which are destined to suspend or to restrain their blows. But the prodigious excent of the globe which we inhabit, the different nature of the regions of the earth, and of the people who are spread over it, not permitting that all mankind should live under one and the same government, the human race was obliged to divide itself into a certain number of states, distinguished by the difference of those laws to which they are subjected. One single government would have made the human kind to have been no more than one extenuated and languishing body, extended without vigour over the surface of the earth. The different governments are so many robust and active bodies, which, by mutually assisting each other, form one whole, and whose reciprocal action maintains and keeps up motion and life every where.
We may distinguish three sorts of governments, the republican, the monarchical, the despotic. In the republican, the people in a body possess the sovereign power. In the monarchical, one single person governs by fundamental laws. In the despotic, no other law is known but the will of a master, or rather of a tyrant. This is not to say, that there are in the universe only these three kinds of government; it is not even to say, that there are states which belong only and strictly to some one of these forms; the greatest part of them are mixed or shaded the one with the other. Here, monarchy inclines to despotism; there, the monarchical government is combined with the republican; elsewhere, it is not the whole people, it is only a part of them, which make the laws. But the preceding division is not on that account the less just and exact. The three kinds of government which it includes, are so distinguished that they have properly nothing in common; and besides, all the governments which we know participate the one of the other. It was then necessary to form particular classes of these three kinds, and afterwards to determine the laws which are proper for each; it will be easy afterwards to adapt those laws to any particular government, according as it may belong more or less to those different forms.
In different states, the laws ought to be relative to their nature, that is to say, to that which constitutes them; and to their principle, that is to say, to that which supports them, and puts them in motion: an important distinction, the key of an infinite number of laws, and from which the author draws many consequences.
The principal laws relative to the nature of democracy are; That the people be in some respects the monarch, and in others the subject; that it elect and judge its magistrates, and that the magistrates on certain occasions decide. The nature of monarchy requires, That there be between the monarch and the people one body to whom the laws are entrusted, and which ought to be a mediator between the subject and the prince. The nature of despotism requires, That the tyrant exercise his authority, either by himself alone, or by one who represents him.
As to the principle of the three governments; that of democracy is the love of the republic, that is, of equality. In monarchies where one single person is the dispenser of distinctions and rewards, and where they are accustomed to confound the state with this single man, the principle is honour, that is, ambition, and the love of esteem. Lastly, under despotism, it is fear. The more vigorous these principles are, the more fixed the government is; the more these are altered and corrupted, the more it tends to its destruction. When the author speaks of equality in democracy, he does not mean an extreme, absolute, and consequently chimerical equality. He means that happy equilibrium which renders all the citizens equally subject to the laws, and equally interested to observe them.
In every government the laws of education ought to be relative to its principle. We understand here by education that which they receive when they are entering upon the world; and not that of parents and of school-masters, which is often contrary to it, especially in some states. In monarchies, education ought to have for its object politeness and reciprocal civilities: in despotic states, terror, and the debasing the spirits of men. In republics they have occasion for all the force of education: it ought to inspire a sentiment which is noble, but hard to be attained, that disregard to our own interest from whence the love of our country arises.
The laws which the legislator makes ought to be conformable to the principle of each government: in a republic, to maintain equality and frugality; in monarchy, to support the nobility without ruining the people; in a despotic government, to silence and equally to keep under subjection those of every condition. M. de Montesquieu ought not to be accused of having pointed out to sovereigns the principles of arbitrary power, the very name of which is so odious to just princes, and still more so to a wise and virtuous citizen. It is to labour to destroy it, to point out what is necessary to maintain it: the perfection of this government is its ruin, and an exact system of the laws of tyranny, such as our author describes it to us, is at the same time a satire upon, and the most formidable scourge of tyrants. With respect to other governments, they have each their advantages: the republican is more proper to small, the monarchical to great states; the republican is more subjected to excesses, the monarchical to abuses; the republican executes the laws after more mature deliberation, the monarchical with more promptitude.
The difference of the principles of the three governments must produce many differences in the number and object of laws, in the forms of judgments, and the nature of punishments. The constitution of monarchies, being invariable and fundamental, requires more civil laws and tribunals, that justice may be administered in the most uniform and least arbitrary manner. In moderate governments, be they monarchical or republican, there cannot be too many formalities in criminal laws. Punishments ought not only to be in proportion to the crime, but also as gentle as possible, especially in a democracy: the opinion attached to punishments will often have more effect than their severity. In republics, judgment must be given according to law, because no individual has the power to alter it. In monarchies, the clemency of the sovereign can sometimes soften the law: but crimes ought never to be judged there but by magistrates expresly intrusted with that office. In a word, ’tis principally in democracies that the laws ought to be severe against luxury, looseness of morals, and debauching of women. Their very softness and weakness render them fit enough to govern in monarchies; and history proves, that they have often wore a crown with glory.
M. de Montesquieu having thus run over each government in particular, afterwards examines them in the relation which they may have with each other, but only in the most general point of view, that is to say, under that which is only relative to their nature and their principle. Viewed in this light, states can have no relations, but that of defending themselves, or of attacking. Republics by their nature, supposing their state to be small, cannot defend themselves without alliances; but it is with republics that they ought to ally themselves. The defensive force of monarchy consists principally in having frontiers secured from insults. States, like men, have a right to attack for their own preservation: from the right of war that of conquest is derived; a right necessary, lawful, calamitous, which always lays an immense debt upon us, if we would discharge what on that account becomes due from us to human nature, and the general law of which is to do as little harm as possible to the conquered. Republics can conquer less than monarchies: immense conquests suppose despotism already in a state, or render its approach certain. One of the great principles of the spirit of conquest ought to be, to render the condition of the conquered as much better as possible: this is to fulfil, at once, the law of nature, and a maxim of state. Nothing is more noble than that treaty of peace which Gelo made with the Carthaginians, by which he forbad them to sacrifice for the future their own children. The Spaniards, when they conquered Peru, ought in the same way to have obliged the inhabitants no more to have sacrificed men to their Gods; but they thought it more advantageous to sacrifice these people themselves. There remained nothing to them as a conquest but a vast desert, they were obliged to depopulate their own country, and for ever weakened it by their own conquest. It may sometimes be necessary to change the laws of the conquered people; it can never be so to deprive them of their manners, or even of their customs, which are often all they have for manners. But the surest way of preserving a conquest, is to put, if it is possible, the conquered on a level with the conquerors, to grant them the same rights and the same privileges: this the Romans often did, and thus especially Cæsar acted with respect to the Gauls.
Hitherto, when considering government, as well in itself as in its relation to others, we have neither taken notice of what ought to be common to them, nor of those particular circumstances which arise either from the nature of the country, or from the genius of the people. It is this which we must now explain.
That political liberty which every citizen ought to enjoy, is the common law of all governments, at least moderate governments, and consequently just ones. This liberty is not an absurd licence of doing every thing we wish to do, but the power of doing every thing that the laws permit. It may be considered either in its relation to the constitution, or in its relation to the citizen. There are in the constitution of every state two sorts of powers, the legislative and the executive; and this last has two objects, the internal police, and its relation to foreign interests. It is from the legitimate distribution and proper subdivision of these different powers, that the greatest perfection of political liberty with relation to the constitution depends. M. de Montesquieu brings as a proof of this the constitution of the Roman republic, and that of England. He finds the principle of the last in that fundamental law of the government of the ancient Germans, that affairs of small importance were determined by the chiefs, and that great affairs were brought before the tribunal of the nation, after they had been first debated by them. M. de Montesquieu does not examine whether the English enjoy actually or not that high political liberty which their constitution gives them; it is enough for him that it is established by their laws. He is still farther from writing a satire upon other states: he believes on the contrary, that an excess even of good is not always desirable; that extreme liberty, like extreme slavery, has its inconveniences; and that in general human nature is most adapted to a middling state of freedom.
Political liberty, considered with relation to a citizen, consists in that security in which he lives under shelter of the laws; or at least in an opinion of this security which makes no one citizen entertain any fear of another. It is principally by the nature and proportion of punishments, that this liberty is established or destroyed. Crimes against religion ought to be punished by a privation of those advantages which religion procures; crimes against morality, by shame; crimes against the public tranquillity, by imprisonment or banishment; crimes against its security, by more grievous punishments. Writings ought to be less punished than actions; simple thoughts ought never to be so. Accusations which are not according to the forms of law, spies, anonymous letters, all those resources of tyranny which are equally disgraceful to such as are the instruments of them, and to those who make use of them, ought to be proscribed in every good monarchical government. No body ought to be permitted to accuse but in face of the law, which always punishes either the accused person or the calumniator. In every other case, those who govern ought to say, with the Emperor Constantius: We cannot suspect a man against whom no accuser appeared, when at the same time he did not want an enemy. It is a very fine institution by which a public officer charges himself, in name of the state, with the prosecution of crimes; as this answers all the good purposes of informers without being exposed to those sordid interests, those inconveniences, and that infamy, which attend them.
The greatness of taxes ought to be in a direct proportion with public liberty. Thus, in democracies they may be greater than elsewhere, without being burdensome; because every citizen looks upon them as a tribute which he pays to himself, and which secures the tranquillity and fortune of every member of it. Besides, in a democratical state, an unjust application of the public revenue is more difficult; because it is easier to find it out, and to punish it, he who is intrusted with it being obliged to give an account of it, so to speak, to the first citizen who requires it of him.
In every government, of whatever sort, the least burdensome kind of tax is that which is laid upon merchandize; because the citizen pays without perceiving it. An excessive number of troops in time of peace is only a pretence to load the people with taxes, a means of enervating the state, and an instrument of slavery.
That administration of the revenues which makes the whole produce of it enter into the public treasury is beyond comparison least chargeable to the people, and consequently more advantageous when it can take place than the farming out of these taxes, which always leaves in the hands of private persons part of the revenue of the state. But above all, every thing is ruined (these are the author’s own words) when the profession of a farmer of the revenues becomes honourable; and it becomes so, when luxury is at a great height. To permit some men to acquire vast fortunes out of what belongs to the public, to plunder them in their turn, as was formerly practised in certain states, is to repair one injustice by another, and to commit two ills instead of one.
Let us now come, with M. de Montesquieu, to those particular circumstances which are independent of the nature of government, and to which laws ought to be adapted. The circumstances which arise from the nature of the country, are of two sorts; the one has a relation to the climate, the other to the soil. No body doubts but that the climate has an influence upon the habitual disposition of the bodies, and consequently upon the characters of men; on which account laws ought to be framed agreeable to the nature of the clime in indifferent things, and, on the contrary, to resist its bad effects. Thus, in countries where the use of wine is hurtful, that law which forbids it is a very good one: in countries where the heat of the climate inclines people to laziness, that law which encourages labour is a very proper one. The government can then correct the effects of the climate; and this is enough to obviate that reproach which has been thrown upon the Spirit of Laws, as if it attributed every thing to cold and heat: for, besides that heat and cold are not the only circumstances by which climates are distinguished, it would be as absurd to deny certain effects of climate, as to attribute every thing to it.
The practice of having slaves, established in the warm countries of Asia and America, and rejected in the temperate climates of Europe, affords our author an opportunity of treating of slavery in a state. Men having no more right over the liberty, than over the lives of each other, it follows that slavery, generally speaking, is against the law of nature. In effect, the right of slavery cannot arise from war, because it could not then be founded on any thing but the redemption of one’s life, and no body has a right over the life of one who no longer attacks him; nor from that sale which a man may make of himself to another, since every citizen, being accountable for his life to the state, is still more so for his liberty, and consequently has no title to sell it. Besides, what could be a proper price for such a sale? It cannot be the money given to the seller, because the moment he sells himself every thing that belongs to him becomes the property of his master: now a sale without a price is as chimerical, as a contract without a condition. There could never be but one just law in favour of slavery; this was that Roman law which made a debtor become the slave of a creditor: and even this law, to be equitable, ought to limit the slavery, both with respect to its degree, and time of duration. Slavery can only be tolerated in despotic states, where freemen, too weak against the government, endeavour to become, by their usefulness, the slaves of those who tyrannise over the state; or in those climates, where heat so enervate the body and weakens the courage, that men cannot be incited to a laborious task but by the fear of punishment. Near to civil slavery may be placed domestic slavery, that is, that in which women are kept in certain countries. This can take place in those countries of Asia where they are in a condition to live with men before they can make use of their reason; marriageable by the law of the climate, children by that of nature. This subjection becomes still more necessary in those countries where polygamy is established: a custom which M. de Montesquieu does not pretend to justify, in so far as it is contrary to religion; but which, in places where it is received, and, only speaking politically, may have a foundation to a certain degree, either from the nature of the climate, or the relation which the number of women bears to that of men. M. de Montesquieu speaks upon this occasion of repudiation and divorce; and he shows, from good reasons, that repudiation once admitted ought to be permitted to women as well as to men.
If the climate has so much influence on domestic and civil slavery, it has no less on political slavery; that is, upon what subjects one nation to another. The people in the north are stronger and more courageous than those of the south: these must then in general be conquered, those conquerors; these slaves, those free. And history confirms this: Asia has been eleven times conquered by the people of the north; Europe has suffered many fewer revolutions.
With respect to laws relative to the nature of the foil, it is plain, that democracy agrees better than monarchy to barren countries, where the earth has occasion for all the industry of men. Liberty, besides, in this case, is a sort of recompence for the difficulty of labour. More laws are necessary for a people which follows agriculture, than for one which tends flocks; for this, than for a hunting people; for a people which makes use of money, than for one that does not: in a word, the particular genius of a nation ought to be attended to. Vanity, which augments objects, is a good spring for government; pride, which undervalues them, is a dangerous one. The legislator ought to respect, to a certain degree, prejudices, passions, abuses. He ought to imitate Solon, who gave the Athenians not those laws which were best in themselves, but the best which they were capable of receiving: the gay character of this people required gentle, the austere character of the Lacedemonians, severe laws. Laws are a bad method of changing the manners and customs; ’tis by rewards and example that we ought to endeavour to bring that about. It is however true at the same time, that the laws of a people, when they do not grossly and directly affect to shock its manners, must insensibly have an influence upon them, either to confirm or change them.
After having in this manner deeply considered the Nature and Spirit of Laws with relation to different kinds of climates and people, our author returns again to consider states in that relation which they bear to each other. At first, when comparing them in a general manner, he could only view them with respect to the prejudice which they can do each other: here he considers them with respect to those mutual succours which they can give. Now these succours are principally founded on commerce. If the spirit of commerce naturally produces a spirit of interest, which is different from the sublimity of moral virtues, it also renders the people naturally just, and averse to idleness and living on plunder. Free people who live under moderate governments, must be more given to it, than enslaved nations. No nation ought ever to exclude from its commerce another nation without great reasons. Besides, liberty in this way is not an absolute privilege granted to merchants to do what they will; a power which would be oft prejudicial to them. It consists in laying no restraints on merchants but for the advantage of commerce. In a monarchy, the nobility ought not to apply to it, and still less the prince. In a word, there are some nations to which commerce is disadvantageous; but they are not such as stand in need of nothing, but such as stand in need of every thing; a paradox which our author renders intelligible by the example of Poland, which wants every thing except corn, and which, by that commerce which it carries on with it, deprives the common people of the necessaries of life, to gratify the luxury of the nobility. M. de Montesquieu takes occasion, when treating of those laws which commerce requires, to give us an history of its different revolutions: and this part of his Book is neither the least interesting, nor the least curious. He compares the impoverishment of Spain by the discovery of America, to the fate of that weak prince in the fable, ready to perish for hunger, because he had asked the Gods that every thing that he touched should be turned into gold. The use of money being one considerable part of the object of commerce, and its principal instrument, he was of opinion that he ought, in consequence of this, to treat of the different operations with respect to money, of exchange, of the payment of public debts, of lending out money for interest, the rules and limits of which he fixes, and which he distinguishes accurately from that excess so justly condemned as usury.
Population and the number of inhabitants have an immediate connexion with commerce; and marriages, having population as their object, under this article de M. Montesquieu goes to the bottom of this important subject. That which favours propagation most is general chastity: experience proves, that illicit amours contribute very little, and even sometimes are prejudicial to it. The consent of fathers has with justice been required in marriages: nevertheless some restrictions ought to be added; for the law ought in general to favour marriage. That law which forbids the marriage of mothers with their sons, is, independently of the precepts of religion, a very good civil law; for, without mentioning several other reasons, the parties being of very different ages, these sort of marriages can rarely have propagation as their object. That law which forbids the marriage of a father with a daughter is founded upon very different reasons. However (only speaking in a political sense) it is not so indispensably necessary to the object of population as the other, because the power of propagating continues much longer in men; and the other custom has, besides, been established among certain nations which the light of christianity had not enlightened. As nature of herself prompts to marriage, that must be a bad government which is obliged to encourage it. Liberty, security, moderate taxes, banishing of luxury, are the true principles and supports of populousness. However laws may, with success, be made to encourage marriage, when, in spite of corruption, there is still something remaining in the people which attaches them to the love of their country. Nothing is finer than the laws of Augustus, to promote the propagation of the species. Unfortunately he made those laws in the decline, or rather after the downfal of the republic; and the dispirited citizens must have foreseen, that they would no longer propagate any thing but slaves: and indeed the execution of those laws was very faint during all the time of the Pagan Emperors. At last Constantine abolished them when he became a Christian; as if christianity had had in view to dispeople the world when it recommended the perfection of celibacy to a small number.
The establishment of hospitals, according to the different spirit of these foundations, may be hurtful or favourable to population. There may, and indeed there ought to be, hospitals in a state where the most part of the citizens are maintained by their industry; because this industry may sometimes be unsuccessful; but that relief which those hospitals give ought to be only temporary, not to encourage beggary and idleness. The people are first to be made rich, and then hospitals to be built for unforeseen and pressing occasions. Unhappy are those countries where the multitude of hospitals and of monasteries, which are only a kind of perpetual hospitals, makes all the world live at ease but those who work!
M. de Montesquieu has hitherto only spoke of human laws; he now proceeds to those of religion, which, in almost all states, compose so essential an object of government. Every where he breaks forth into praises of christianity; he points out its advantages and its grandeur; he endeavours to make it be loved; he maintains that it is not impossible, as Bayle has pretended, that a society of perfect christians should actually form a durable state. But he also thought that he might be permitted to examine what different religions, humanly speaking, might have suitable or unsuitable to the genius and situation of those people which profess them. It is in this point of view that we must read all that he has wrote upon this article, and which has been the subject of so many unjust declamations. It is especially surprising that, in an age which presumes to call so many others barbarous, what he has said of toleration should be objected to him as a crime; as if approving and tolerating a religion were the same; as if the gospel itself did not forbid every other way of propagating it, but that of meekness and persuasion. Those in whose heart superstition has not extinguished every sentiment of compassion and justice, will not be able to read, without being moved, the Remonstrance to the Inquisitors, that odious tribunal, which outrageously affronts religion when it appears to avenge it.
In a word, after having treated in particular of the different kind of laws which men can have, there remains nothing more than to compare them all together, and to examine them in their relation with those things concerning which they prescribe rules.
Men are governed by different kinds of laws; by natural law, common to each individual; by the divine law, which is that of religion; by the ecclesiastical law, which is that of the policy of religion; by the civil law, which is that of the members of the same society; by the political law, which is that of the government of that society; by the law of nations, which is that of societies with respect to each other. These laws have each their distinct objects, which are carefully not to be confounded. That which belongs to the one ought never to be regulated by the other, lest disorder and injustice should be introduced into the principles which govern men. In a word, those principles which prescribe the nature of the laws, and which determine their objects, ought to prevail also in the manner of composing them. A spirit of moderation ought, as much as possible, to dictate all their different dispositions. Laws that are properly made will be conformed to the intention of the legislator, even when they appear to be in opposition to it. Such was the famous law of Solon, by which all who should not take some part in the public tumults were declared infamous. It prevented seditions, or rendered them useful by forcing all the members of the republic to attend to its true interests. Even the ostracism was a good law; for, on one hand it was honourable to the citizen who was the object of it, and prevented on the other, the effects of ambition: besides a great number of suffrages was necessary, and they could only banish every fifth year. Laws, which appear the same, have often neither the same motive, nor the same effect, nor the same equity. The form of government, different conjunctures, and the genius of the people, quite change them. In a word, the style of laws ought to be simple and grave. They may dispense with giving reasons, because the reason is supposed to exist in the mind of the legislator; but when they give reasons, they ought to be built upon evident principles: they ought not to resemble that law which, prohibiting blind people to plead, gives this as a reason, because they cannot see the ornaments of magistracy.
M. de Montesquieu, to point out by examples the application of his principles, has chosen two different people, the most celebrated in the world, and those whose history most interests us; the Romans and the French. He does not dwell but upon one point of the jurisprudence of the first, that which regards succession. With regard to the French, he enters into a greater detail, concerning the origin and revolutions of their civil laws, and the different usages abolished or still subsisting, which have been the consequences of them. He principally enlarges upon the feudal laws, that kind of government unknown to all antiquity, which will perhaps for ever be so to future ages, and which has done so much good and so much ill. He especially considers these laws in the relation which they have with the establishment and revolution of the French monarchy. He proves, against the Abbé du Bos, that the Franks actually entered as conquerors among the Gauls; and that it is not true, as this author pretends, that they had been called by the people to succeed to the rights of the Roman Emperors who oppressed them: a detail profound, exact and curious, but in which it is impossible for us to follow him.
Such is the general analysis, but a very imperfect one, of M. de Montesquieu’s work.