Front Page Titles (by Subject) PART II. - Complete Works, vol. 4 Familiar Letters; Miscellaneous Pieces; The Temple of Gnidus; A Defence of the Spirit of Laws
Return to Title Page for Complete Works, vol. 4 Familiar Letters; Miscellaneous Pieces; The Temple of Gnidus; A Defence of the Spirit of Laws
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
PART II. - Charles Louis de Secondat, Baron de Montesquieu, Complete Works, vol. 4 Familiar Letters; Miscellaneous Pieces; The Temple of Gnidus; A Defence of the Spirit of Laws 
The Complete Works of M. de Montesquieu (London: T. Evans, 1777), 4 vols. Vol. 4.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
THE GENERAL IDEA.
I HAVE already cleared the Author of The Spirit of Laws from the two general reproaches that have been cast upon him: but there are still some particular imputations, to which it is necessary for me to reply. But to throw the greater light on what I have said, and on what will be hereafter added, I shall explain what has given room, or served as a pretence for making invectives.
Men of the best sense in the several countries of Europe, men of the greatest learning, and most distinguished for their wisdom, have considered The Spirit of Laws as an useful work: they have thought that the morals, in which it abounds, are pure; that the principles it contains are just, and that it is proper to form worthy members of society; that the Author there destroys pernicious opinions, and encourages those that are good.
On the other hand, here is a man who treats it as a dangerous book, and makes it the subject of the most outrageous invectives. This requires some explications.
So far from having understood the particular passages on which he has spent his criticism, he has not even discovered what is the subject of which the Author treats. Thus vainly beating the air, and fighting against the wind, he has gained triumphs of the same kind: he has wrote a good criticism on the book he had in his head; but has not wrote a critique on that of the Author. But how was it possible for him thus to mistake both the subject and design of a book placed before his eyes? Persons of sense see at the first glance, that the objects of this work are the Laws, the various customs, and manners, of all the nations on earth. It may be said, that the subject is of prodigious extent, as it comprehends all the institutions received among mankind; as these institutions are distinguished by the Author, who examines those that are most agreeable to society in general, and to each society in particular; and as he searches into their origin, discovers their physical and moral causes; examines those which have any intrinsic goodness, and those that have none; of two pernicious practices, he enquires which is most, and which least pernicious; and treats of those that in some respects may have a good effect, and a bad one in others. He has imagined that these researches would be useful, because judgment and good sense consist in knowing the shades of things.
Now in a subject of such extent, it became necessary to treat of religion: for there being but one true religion, and an infinite number of others that are false; one religion sent from heaven, and an infinity of others that had their birth on this globe: he could regard the false religions only as human institutions; and therefore was obliged to examine them, as well as all the other institutions of human origin. But as to the Christian religion, he had nothing to do but to pay it his adorations as being divine. He did not think himself obliged to treat of that religion: because he considered it, as in its own nature not subject to his examination, so that when he has mentioned it, it has never been done to introduce it into the plan of his work, but only to pay it the tribute of respect and love due to it from all Christians; and that in the comparisons he might draw between that religion and the others, he might make it triumph over them all. This is visible throughout the whole work: but the Author has particularly explained himself at the beginning of book xxiv. the first of the two books that treat of religion. He begins thus: “As amidst the several degrees of darkness, we may form a judgment of those which are the least thick, and, among precipices, which are the least deep; so we may search among false religions for those that are most conformable to the welfare of the society; for those which, though they have not the effect of leading men to the felicity of the other life, may contribute most to their happiness in this.
“I shall therefore only examine the several religions in the world, in relation to the good they produce in civil society; whether I speak of that which has its root in heaven, or of those which spring from the earth.”
The Author therefore, regarding human religions only as human institutions, was in the right to treat of them, because they necessarily entered into his plan. He did not go out of his way to seek for them; but they came in search of him. And as to the Christian religion, he has only mentioned it occasionally; because, in its own nature, it could not be modified, mitigated, and corrected, and therefore did not enter into the plan he had proposed.
What has he done then to give so full a scope to declamation, and to open so wide a door to invective? The Author has been considered as if, after the example of M. Abbadie, he had resolved to write a treatise on the Christian religion; he has been attacked, as if his two books on religion were two treatises on Christian divinity. He has been charged, as if speaking of any religion whatsoever that had no relation to the Christian, it had been his business to examine it according to the doctrines and precepts of Christianity. He has been judged, as if he had undertaken, in his two books, to form an establishment in behalf of the Christians, and to preach the doctrines of Christianity to Mahometans and Idolaters. Whenever he has mentioned religion in general, whenever he has used the word religion, it is said, This is the Christian religion. Whenever he has compared the religious rites of any nation whatsoever, and has said, that some of these rites were more conformable to the political government of the country, than others; it is said, You then approve them, and abandon the Christian faith. When he has mentioned any people who have not embraced Christianity, or who lived before the coming of Christ, it is said, You then do not acknowledge the Christian moral. When he has examined, in a political writer, any custom whatsoever, it is said, Was this the doctrine of Christianity you ought to have inculcated? You say, that you are a Civilian; and I will make you a Divine in spite of yourself. You in some places say some very fine things in favour of the Christian religion; but you only say them to conceal yourself: for I know your heart, and read your thoughts. It is true, I do not understand your book; it is of no consequence whether I have penetrated rightly, or not, into the view with which it was written: but I dive to the bottom of your thoughts. I do not know a word you say: but I understand very well what you think. Let us enter now into the subject.
OF THE COUNSELS OF RELIGION.
The Author, in the book on religion, has attacked the errors of Bayle. These are his words* : “Mr. Bayle, after having abused all religions, endeavours to sully Christianity. He boldly asserts, that true Christians cannot form a government of any duration. Why not? Citizens of this profession, being infinitely enlightened with respect to the various duties of life, and having the warmest zeal to fulfil them, must be perfectly sensible of the rights of natural desence. The more they believed themselves indebted to religion, the more they would think due to their country. The principles of Christianity, deeply engraven on the heart, would be infinitely more powerful than the false honour of monarchies, the humane virtues of republics, or the servile fear of despotic states.
“It is astonishing that this great man should not be able to distinguish between the orders for the establishment of Christianity, and Christianity itself: and that he should be liable to be charged with not knowing the spirit of his own religion. When the legislator instead of Laws gave counsels, it was because he knew, that if those counsels were ordained as Laws, they would be contrary to the spirit of the Laws themselves.”
What has the Critic done to deprive the Author of the honour of having thus attacked one of Bayle’s errors? He has taken the following chapter, which has nothing to do with Bayle* . “Human Laws made to direct the will, it is there said, ought to give precepts, and not counsels: religion, which is formed to influence the heart, ought to give many counsels, and few precepts.” Whence it is concluded, that the Author considers all the precepts of the Gospel only as counsels. He in return, might also say, that he who made this criticism considers all the counsels of the gospel as precepts: but this is not his manner of reasoning, and still less is it his manner of acting. Let us come to the point. It will here be proper to lengthen out a little what the Author has represented in a manner extremely concise. Mr. Bayle had maintained, that a society of Christians could not subsist; and alledged as the reason the order of the Gospel, When thou art smote on one cheek, turn the other also; the command to leave the world to retire into desarts, &c. The Author says, that Bayle took for precepts what were only counsels; for general rules what were only particular ones. In this the Author has defended religion. But what has this occasioned? It is laid down as the first article of his creed, that all the books of the Gospel contain only counsels.
Other articles have likewise furnished commodious subjects of declamation. Polygamy afforded an excellent one. The Author has wrote a chapter expresly upon it; in which he has censured it. It is as follows:
“Of Polygamy considered in itself.
“With regard to polygamy in general, independently of the circumstances that may render it tolerated, it is not of the least service to mankind, nor to either of the two sexes, whether it be that which abuses, or that which is abused. Neither is it of service to the children; for one of its greatest inconveniences is, that the father and mother cannot have the same affection for their offspring; a father cannot love twenty children with the same tenderness that a mother can love two. It is much worse when a wife has many husbands; for then paternal love is only held by this opinion, that a father may believe if he will, or that others may believe, that certain children belong to him.
“May I not say that a plurality of wives leads to that passion which nature disallows? for one depravation always draws on another, &c.
“Besides, the possession of many wives does not always prevent their entertaining desires for those of others. It is with lust as with avarice, where the thirst is increased by the acquisition of treasures.
“In the reign of Justinian, many philosophers, displeased with the restraints of Christianity, retired into Persia, What there struck them most, says Agathias, was that polygamy was permitted amongst men who did not even abstain from adultery.”
The Author has then maintained, that polygamy is in its own nature, and considered in itself, pernicious. It was necessary to overlook this chapter; and therefore no notice is taken of it. The Author has, besides, made a philosophical examination, in what country, in what climate, and in what circumstances, its effects are least pernicious; he compares climate with climate, and country with country; and has found those where its effects are less prejudicial than in others: because, according to the accounts that have been published, the number of men and women not being equal in all countries, it is evident that, if there are places where the women are much more numerous than the men, polygamy, though bad in itself, is less so there than in other countries. The Author has discussed this point in the fourth chapter of the same book. But the title of this chapter consisting of these words, That the Law of Polygamy is an affair that depends on calculations, the Critic has seized hold of this title. However, as the title of a chapter relates to the chapter itself, and can say neither more nor less than the chapter, let us see it.
“According to the calculations made in several parts of Europe, there are here born more boys than girls: on the contrary, the accounts we have of Asia inform us, there are born in that part of the world more girls than boys. The Law which in Europe allows only one wife, and that in Asia which permits many, have then a certain relation to the climate.
“In the cold climates in Asia there are born, as in Europe, more males than females; and from hence, say the Lamas, is derived the reason of that Law which, amongst them, permits a woman to have many husbands.
“But it is difficult for me to believe, that there are many countries where the disproportion can be great enough for any exigency to justify the introducing either the Law in favour of many wives, or that of many husbands. This would only imply that a majority of women, or even a majority of men, is more conformable to nature in certain countries, than in others.
“I confess that, if what history tells us be true, that at Bantam there are ten women to one man, this must be a case particularly favourable to polygamy.
“In all this I only give their reasons, but do not justify their customs.”
Let us now return to the title: Polygamy is an affair of calculation. Yes, it is, when we would know if it be more or less pernicious in certain climates, in certain countries, and in certain circumstances, than in others. It is not an affair of calculation, when we are to determine whether it be good or bad in itself.
It is not an affair of calculation, when we reason on its nature; it may be an affair of calculation, when we combine its effects. In short, it is never an affair of calculation, when we examine the end of marriage; and it is much less so, when we consider marriage as established, or confirmed, by Jesus Christ.
I shall here add, that what has happened by mere accident, is of great service to the Author. He doubtless did not foresee, that the Critic would overlook a whole chapter expressed in the plainest terms, in order to give an equivocal sense to another; and yet he had the happiness to conclude this other with these words: “In all this, I only give their reasons; but do not justify their customs.”
The Author had just said, that he did not believe that there could be climates where the number of the women could so greatly exceed that of the men, or the number of the men that of the women, as to justify polygamy in any country; and has added, “This would only imply that a majority of women, or even of men, is more conformable to nature, in certain countries, than in others* .” The Critic has seized the word, is more conformable to nature, in order to charge the Author with approving polygamy. But if I say, that I had rather have a fever than the scurvy, Will that be a declaration that I am fond of a fever; or only that the scurvy is less disagreeable to me than a fever?
Here follows, word for word, a very extraordinary objection.
The polygamy of one woman who has many husbands, is a monstrous disorder, which was never permitted in any case, and which the Author does not at all distinguish from the polygamy of a man who has several wives† . This language, from a sectary of natural religion, needs no comment.
I beg that attention may be paid to the connexion of the Critic’s ideas. According to him it follows that, as the Author is a sectary of the religion of nature, he did not mention what he had no business to mention; or that the Author has not mentioned what he had no business to mention, because he is a follower of natural religion. These two methods of reasoning are of the same kind, and the consequences drawn from them are equally found in the premisses. The usual manner is to criticise upon what a person writes; but here the criticism is bestowed upon what he does not write.
I say this, supposing with the Critic that the Author has not distinguished the polygamy of a woman who has several husbands from that of a husband who has several wives: but if the Author has distinguished them, what will he say? And what will he say, if the Author has shewn, that the abuse in the first case is much the greatest? I desire the reader to peruse the sixth chapter of book xvi. repeated above. The Critic has treated him with invectives for keeping silence with respect to this article; nothing remains but to make them for not keeping silence.
But here is what I cannot comprehend. The Critic says, in the second of his pieces, page 166. The Author has told us, that religion ought to permit polygamy in hot countries, and not in those that are cold. But the Author has no where said this. This is a question that does not turn upon the false reasoning of the Critic against the Author, but on a matter of fact: and as the Author has never said, that religion ought to permit polygamy in hot, and not in cold countries, the imputation is in its own nature both false and cruel; and therefore I desire the Critic to pass judgment on himself.
This is not the only passage of which the Author has had reason to complain: for, in page 163. of the first piece, the Critic says: The fourth chapter has for its title, That the Law of polygamy is an affair of calculation: that is, in places where there are born more boys than girls, as in Europe, we ought to have but one wife; and in those where there are born more girls than boys, polygamy ought to be introduced. Thus when the Author explains customs, or gives the reasons of their being founded, those reasons are turned into maxims, and, what is more barbarous still, into maxims of religion: and as he has mentioned an infinite number of customs and practices, throughout all the countries upon earth, he may, by a parity of reason, be charged with all the errors, and even all the abominations of the universe. The Critic says, at the end of his first piece, that God has given him some zeal; to which I reply, that God has not given him this.
What the Author has said on the effects of different Climates is also another excellent topic of rhetoric. But all effects whatsoever have their causes: the climate and the other physical causes produce an infinite number of effects; and if the Author had said otherwise, he would have been considered as extremely stupid. The question is reduced to this: Whether, in countries placed at a great distance from each other, or whether in different climates, there are the marks of a national spirit. Now that there are such differences, is established by almost the universal consent of writers. As the impressions of this national spirit have a considerable influence on the dispositions of the heart, it cannot be at all questioned that certain dispositions of heart are more frequent in one country than another; and in proof of this, we have also the testimony of an infinite number of writers in all times and places. As these things are merely human, the Author has treated them in that light. He might indeed have added to them many questions debated in the schools, with respect to the humane and christian virtues; but it is not usual to croud these questions into books of natural philosophy, politics, and civil law. In a word, the climate may be the physical cause of producing various dispositions of mind; these dispositions may have an influence on human actions: but how does this give a shock to the throne of him who has created, or to the merits of him who has bought us?
If the Author has inquired what the magistrates of various countries might do, in order to conduct their several nations in a manner most proper, and most suitable to their respective characters, what harm has he done in this?
One may also reason on the local customs of religion. The Author had no business to consider them as either good or bad: he has only said, that there are climates where certain religious customs were more easily received, that is, the people in those climates were more easily accustomed to them, than the people in others. Of this it would be unnecessary to give examples; there are an hundred thousand.
I am very sensible, that religion is, in its own nature, independent of any physical effects whatsoever: that what is good in one country is good in another: and that it cannot be bad in one country, without being bad in all. But, as it is practised by men, and for men, there are places where a particular religion is more easily practised, either in part, or in the whole, in one certain country than in others, and in certain circumstances than in others. And whoever asserts the contrary must divest himself of common sense.
The Author has remarked, that the climate of the Indies has produced there a certain sweetness of manners. But, says the Critic, The women there burn themselves at the death of their husbands. There is but little philosophy in this objection. Is the Critic ignorant of the contradictions of the human mind, and how readily it can separate things the most closely united, and unite those that are the most widely separated. See the Author’s reflexions on this subject in book xiv. chap. 3.
All the Author has said on toleration relates to this proposition in book xxv. chap. 9. “We are here politicians, and not divines: but the divines themselves must allow, that there is a great difference between tolerating, and approving a religion.
When legislators have believed it their duty to permit the exercise of many religions, they are also under the obligation of inforcing a toleration amongst these religions themselves.” The reader is desired to peruse the whole chapter.
A great outcry has been raised against the Author for having added in the next chapter: “This is then a fundamental principle of the political Laws of religion, That when a 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.”
It is here objected to the Author, that he is going to inform idolatrous Princes, that they ought to shut Christianity out of their states. Really it is a secret that it was ever whispered to the King of Cochin-China. As this argument has furnished matter for much declamation, I shall give two answers. The first is, That the Author has excepted it by name in his book on religion. He has said in book xxiv. chap. 1. “The Christian religion, which ordains that men should love each other, would doubtless have every nation blest with the best civil, the best political Laws; because these, next to this religion, are the greatest good that men can give and receive.” If then the Christian religion is the first and principal good, and political and civil Laws the second, there are no political or civil Laws in a state that can or ought to hinder the entrance of the Christian religion.
My second answer is, That the religion sent from heaven is not established by the same methods as the religions of the earth. Read the history of the church, and you will see the wonders of the Christian religion. Has she resolved to enter a country?—she knows how to open its gates, and all instruments are proper for that purpose: sometimes God makes use of a few fishermen; at others, he places an Emperor on the throne, and makes him bend his neck under the yoke of the gospel. Is Christianity concealed in caverns, and subterraneous abodes? stay a moment, and you will see the Imperial Majesty speak in her behalf. She, whenever she pleases, crosses the seas, rivers, and mountains; and no obstacles here below can stop her progress. Place repugnance in the mind; she will make it fly before her: establish customs, form habits, publish edicts, make Laws; she will triumph over the climate, the laws that result from it, and the legislators who made them. God, according to decrees concealed from us, extends or contracts the limits of his religion as he pleases.
We are told: That this is as if you went to the Kings of the East, and told them they ought not to receive the Christian religion among them. How carnal is it to talk in this manner! Is the Messiah a man like Herod? It seems as if Jesus Christ was considered as a King who conceals his stratagems and intelligences. Let us do ourselves justice: Is the manner in which we conduct ourselves in human affairs so pure, as to allow us to think of employing it in the conversion of nations?
We now come to the article of celibacy. All that the Author has said of it relates to this proposition, which is found in book xxv. chap. 4. “I shall not here treat of the consequences of the Law of celibacy: it is evident it may become hurtful, in proportion as the body of the clergy may be too numerous; and, in consequence of this, that of the laity too small.” It is evident, that the Author here speaks only of the greater or less extension that ought to be allowed to celibacy, with respect to the greater or less number of those who embrace it: and, as the Author says in another place, that Law of perfection cannot be made for all mankind. Besides, we know, that the Law of celibacy, as it now subsists, is only a law of discipline. The Spirit of Laws has no where considered the nature of celibacy, or the degree of its goodness; and that is not a subject that ought to enter at all into a book of political and civil Laws. The Critic, however, would never allow the Author to treat his own subject: he is continually for having him treat of his; and because he is always a divine, he will not suffer him, even in a book of Laws, to be a civilian. However we shall soon see that, with respect to celibacy, he is of the same opinion as the divines; that is, that he acknowledges its goodness. It must be observed, that in book xxiii. where he treats of Laws in relation to the number of inhabitants, the Author has given a theory of what the political and civil Laws of different people have done in this respect. He has shewn, by examining the histories of the several nations of the earth, that there have been particular circumstances in which these Laws were more necessary, than others, people who had more need of them, and certain times when these people had still more need of them: and, as it is thought that the Romans were the wisest people upon earth, and that they had more need of these Laws to repair their losses, he has collected with great exactness the Laws they made for that purpose; he has pointed out, with great precision, in what circumstances they were made, and in what other circumstances they were taken away. There is no divinity in all this; and there is no need of any. The Author has however thought proper to add a little. These are his words: “God forbid that I should here speak against celibacy, as adopted by religion: but who can be silent, when this is built on libertinism; when the two sexes corrupting each other even by the natural sensations themselves, fly from an union which ought to render them better, to live in that which always renders them worse.
“It is a rule drawn from nature, that the more the number of marriages is diminished, the more corrupt those are rendered that are entered into that state. The fewer married people there are, the less fidelity is there in marriage; as, when there are more thieves, there are more thefts* .”
The Author has not then disapproved the celibacy practised, on a religous motive; and no complaint can be raised against him for censuring the celibacy introduced by libertinism. He is offended, that a prodigious number of rich and voluptuous men fly the yoke of marriage, that they may the more conveniently pursue the gratification of their licentious appetites. They give themselves up to delight and voluptuous pleasure, and leave trouble and care to the miserable. We cannot, I say, complain that he has censured these. But the Critic, after having cited what the Author has said, pronounces these words: We here perceive the malignity of the Author, who would throw upon the Christian religion the disorders it detests. It might look illnatured, were I to accuse the Critic of not being willing to understand the Author: I shall therefore only say, that he has not understood him; and that he has made him say against religion, what he said against libertinism. He ought to be very sorry for it.
A PARTICULAR ERROR COMMITTED BY THE CRITIC.
One would be ready to believe, that the Critic has sworn never to form a right judgment of the state of the question, and never to understand a single passage he attacks. The whole second chapter of the twenty-fifth book turns upon the motives, more or less powerful, by which manking are attached to the preservation of their religion. Here the Critic finds another chapter which contains the motives that oblige men to change their religion. The first subject implies a passive state; the second a state of action: but applying to one subject what the Author has said on the other, he indulges himself in false reasoning intirely at his ease.
The Author has said, in the second chapter of the twenty-fifth book, “We are extremely addicted to idolatry; and yet have no great inclination to the religion of idolaters. We are not very fond of spiritual ideas; and yet are most attached to those religions that teach us to adore a spiritual being. This proceeds from the satisfaction we find in ourselves at having been so intelligent as to chuse a religion that raises the Deity from that baseness in which he had been placed by others.” The Author had certainly no other motive, than to explain why the Jews and Mahometans are as invincibly attached to their religion as we ourselves, though they have not the advantages with which we are possessed: and that they are, we know from experience: but the Critic understands it otherwise: Mens passing from idolatry to the belief of one God is here, says he, attributed to pride* . But no mention is made, either here, or through the whole chapter, of passing from one religion to another: and if a Christian feels a high satisfaction, arising from the idea of the glory and grandeur of the Divine Majesty, and this is what he calls pride, it is a very good pride.
Here is another uncommon objection. The Author has two chapters in the twenty-third book; one intitled “Of Men and Animals with respect to the Propagation of their Species;” and the other, “Of Marriage.” In the first he has these words: “The females of brutes have an almost constant fecundity; but, in the human species, the manner of thinking, the character, the passions, the humour, the caprice, the idea of preserving beauty, the pain of child-bearing, and the fatigue of a too-numerous family, obstruct propagation a thousand different ways.” And in the other he says, “The natural obligation of the father to provide for his children has established marriage; which makes known the person who ought to fulfil this obligation.”
Upon this the Critic says, A Christian would refer the institution of marriage to God himself, who gave a companion to Adam, and united the first man to the first woman by an indissoluble bond, before they had children to provide for: but the Author avoids whatever is mentioned in the Holy Scriptures. He might reply, that he is a Christian; but not a natural: that he venerates these truths; but did not chuse to insert at random, and without propriety, all the truths that are the objects of his faith. The Emperor Justinian was a Christian, as was also his compilator: yet in their books of Laws, which are still taught to youth in the schools, they define marriage, the union of one man and woman, who form a society of individual life* . It never entered into the head of any person, to reproach them for not having here mentioned revelation.
We are now come to the subject of usury. I am afraid the reader will be tired with hearing me repeat, that the Critic never understands the point in question, and never takes the sense of the passages he censures. He says, that here the Author finds nothing unjust in maritime usury: these are his words. Indeed The Spirit of Laws has a very sad interpreter. The Author has treated of maritime usury in the twentieth chapter of the twenty-second book: he must therefore have said in that chapter, that maritime usury is just. Let us see what he says.
“OF MARITIME USURY.
“The greatness of maritime usury is founded on two things: the danger of the sea, which makes it proper that those who expose their specie, should not do it without considerable advantage; and the ease with which the borrower, by the means of commerce, speedily accomplishes a variety of great affairs. But usury, with respect to landsmen, being founded on neither of these two reasons, is either prohibited by the legislators, or, what is more rational, reduced to proper bounds.”
I ask every sensible man, whether the Author has here determined that maritime usury is just; or whether he has simply said, that the greatness of maritime usury is less repugnant to natural equity, than the greatness of Usury at land. The Critic is acquainted with none but positive and absolute qualities, and does not know the meaning of those terms, more or less. If one was to tell him that a mulatto woman was not so black as a negro, this would signify, according to him, that she is as white as snow: if one was to tell him that she was blacker than an European, he would then think she was as black as a coal. But to proceed.
In the twenty-second book of The Spirit of Laws there are four chapters on usury. In the two first, which are the nineteenth and that the reader has just perused, the Author examines usury* in the relation it bears to the commerce of different nations, and the several governments of the world; and to this these two chapters solely relate. The two following only explain the variations of usury among the Romans. But here the Author is suddenly raised to be a casuist, a canonist, and divine; for no other reason but because the Critic is a casuist, a canonist, and divine, or that he is two of the three, or one of the three, or, perhaps at bottom, none of the three. The Author is sensible, that the consideration of lending at interest, as connected with Christianity, is a subject attended with endless distinctions and limitations. He is sensible that the civilians, and a multitude of courts of justice, do not always agree with the casuists and canonists; that some of these admit certain limitations of the general principle of never asking interest, and others admit still greater. Though all these questions had belonged to his subject, which they do not, how would he have been able to have treated of them? We find it difficult to know thoroughly what we have well studied; but much more difficult is it to know what we have never studied at all. However, those very chapters that are employed against him, sufficiently prove, that he is only an historian and civilian. Let us read chap. 19† .
“Specie is the sign of value. It is evident, that he who has occasion for this sign ought to pay for the use of it, as well as for every thing else that he has occasion for. All the difference is, that other things may be either hired or bought; whilst money, which is the price of things, can only be hired, and not bought.
“To lend money without interest, is certainly an action laudable and extremely good; but this is perhaps only a counsel of religion, and not a civil law.
“In order that trade may be successfully carried on, it is necessary that a price be fixed on the use of specie; but this price should be very inconsiderable. If it be too high, the merchant, who finds that it will cost him more in interest than he can gain by commerce, will undertake nothing. If there is no consideration to be paid for the use of specie, no body will lend it; and here too the merchant will undertake nothing.
“I am mistaken when I say that nobody will lend; the affairs of society must ever make it necessary. Usury will be established, but with all the disorders with which it has been constantly attended.
“The Laws of Mahomet confound usury with lending upon interest. Usury increases in Mahometan countries, in proportion to the severity of the prohibition. The lender indemnifies himself for the danger he undergoes of suffering the penalty.
“In those eastern countries the greatest part of the people are secure of nothing. There is hardly any connexion between the actual possession of a sum, and the hope of receiving it again after having lent it. Usury then must be raised in proportion to the danger of insolvency.”
Afterwards comes the chapter on maritime usury mentioned above; and the twenty-first chapter, which treats of lending by contract, and of usury amongst the Romans, which is as follows:
“Besides the loans made for the advantage of commerce, there is still a kind of lending by a civil contract, from whence results interest or usury.
“As the people of Rome daily increased in power, the magistrates sought to insinuate themselves into their favour by enacting such Laws as were most agreeable to them. They retrenched capitals; first lowered, and at length prohibited interest; and took away the power of confining the debtor’s body. In fine, the abolition of debts was contended for, whenever a tribune was disposed to render himself popular.
“These continual changes, whether made by the Laws, or by the plebiscita, naturalized usury at Rome: for the creditors seeing the people their debtor, their legislator, and their judge, had no longer any confidence in agreements with them. The people, like a debtor who has lost his credit, could only tempt them to lend by allowing an exorbitant interest; for if the Laws did not from time to time remedy the evil, the complaints of the people became continual, and constantly intimidated the creditors. This was the cause that all honest means of borrowing and lending were abolished at Rome, and that the most monstrous usury, constantly blasted by the thunders of the state, and constantly revived, became established in that city.
“Cicero tells us, that in his time interest at Rome was at thirty-four per cent. and in the provinces at forty-eight. This evil was a consequence of the severity of the Laws against usury. Laws excessively good are the source of excessive evil. The borrower found himself under the necessity of paying for the interest of the money, and for the danger the creditor underwent of suffering the penalty of the Law.”
The Author has then treated of interest only in relation to the commerce of various nations, and to the civil Laws of the Romans; and this is so true, that he has distinguished, in the second paragraph of the nineteenth chapter, the establishments of the religious, from those of the political legislators. Had he mentioned by name the Christian religion, he would have treated the subject in other terms, and have pointed out what that religion ordains, and what it counsels; he would, with the divines, have distinguished, the several cases; he would have laid down all the limitations set by the Christian religion to that general Law, sometimes established among the Romans, and always among the Mahometans, That we ought, in no case, and in no circumstance, to receive interest for money. The Author had not this subject to treat of; but that a general, unlimited, indistinct defence of it, without any restrictions, made the Mahometans lose their commerce, and was near destroying the Roman republic: whence it follows, that the Christians, on account of their not living under these rigid Laws, still enjoy their commerce, and there is not found in their states that monstrous usury required by the Mahometans, and that was formerly extorted by the Romans.
The Author has employed the twenty-first and twenty-second chapters* in examining what were the Laws of the Romans on the subject of lending by contracts, in the different times of their republic. But here his Critic quits for a moment the banks of theology, to turn to the side of erudition. But we shall soon see, that he is also deceived in his erudition, and that he cannot even for once understand the state of the question he endeavours to examine. Let us read a passage in the twenty-second chapter* .
“Tacitus says, that the Law of the Twelve Tables fixed the interest at one per cent. per annum. It is evident that he was mistaken, and that he took another Law, of which I am going to speak, for the Law of the Twelve Tables. If this had been regulated in the Law of the Twelve Tables, why did they not make use of its authority in the disputes which afterwards arose between the creditors and debtors? We find not any vestige of this Law upon lending at interest; and, let us have but ever so little knowledge of the history of Rome, we shall see that a Law like this could never be the work of the Decemvirs.” And a little after the Author adds: “In the year of Rome 398, the Tribunes Duellius and Menenius caused a Law to be passed, which reduced interest to one per cent. per annum. It is this Law which Tacitus confounds with the Law of the Twelve Tables; and this was the first ever made by the Romans to fix the rate of interest,” &c.
Here the Author says, that Tacitus is mistaken in saying that the Law of the Twelve Tables had fixed the rate of interest among the Romans. He has said, that Tacitus has taken for the Law of the Twelve Tables, a Law made by Duellius and Menenius about eighty-five years after the Law of the Twelve Tables; and that this Law was the first that fixed the rate of interest at Rome. What does the Critic say to this? He replies, that Tacitus was not mistaken, but spoke of usury at one per cent. per mensem, and not of usury at one cent. per annum. But the question is not here of the rate of usury; it is to know, whether the Law of the Twelve Tables has made any regulation whatsoever in relation to usury. The Author says, that Tacitus is mistaken in saying that the Decemvirs had made a regulation in the Law of the Twelve Tables, to fix the rate of usury; and upon this the Critic says, he was not mistaken, because he spoke of usury at one per cent. by the month, and not at one per cent. for a year. I had reason then for saying that the Critic did not know the state of the question.
It now remains to inquire, whether the Law mentioned by Tacitus, whatever it is, fixes usury, according to the Author, at one per cent. by the year, or, according to the Critic, at one per cent. for the month. Prudence required that he should not enter into a dispute with the Author on the Roman Laws, without knowing them; that he should not deny a fact with which he was unacquainted, and of which he was ignorant of the means of obtaining information. The question is, what Tacitus meant by these words, unciarium fœnus* . He needed but to have opened the dictionaries, and he would have found in that of Calvinus or Kahl† , that it was one per cent. by the year, and not by the month. Had he consulted the learned Salmasius, he would have told him the same thing‡ .
While the Romans had no laws that fixed the rate of usury, the most common custom was for the usurer to take twelve ounces of copper for the loan of an hundred ounces; that is, twelve per cent. per annum: and an as being the value of twelve ounces of copper, the usurer received annually an as for an hundred ounces. It being frequently necessary to reckon usury by the month, the interest for six months was called semis, or the half of the as; the usury for four months was named triens, or the third of the as; the usury for three months was called quadrans, or the fourth of the as; and, in short, the usury for one month was called unciaria, or the twelfth of the as: so that as they raised an ounce every month on every hundred ounces lent, this usury by the ounce, or one per cent. per mensem, was called centesimal usury. The Critic had acquired the knowledge of this signification of the centesimal usury, but has applied it very ill.
We see, that all this was nothing more than a method or form of regulating the accounts between debtor and creditor in relation to usury, on a supposition that it was at twelve per cent. per annum, which was the common and usual rate; but if a person borrowed at eighteen per cent. per annum, they made use of the same method, only increasing one third of the interest for each month; so that the unciarium fænus was then an ounce and a half per month.
When the Romans made Laws on usury, they did not concern themselves about this method, which had been used, and was so still, between the debtors and creditors, for the division of the time, and the convenience of paying their interest. The legislator had a public regulation to make; the business here was not to divide usury by the month, but to fix it; and this was done by the year. They, however, continued to make use of the terms derived from the division of the as, without applying the same ideas to them. Thus the unciarium fænus signified one per cent. per annum; the usury ex quadrante signified three per cent. per annum; the usury ex triente, four per cent. per annum; the usury semis, six per cent. per annum. And if the usury unciaria had signified one per cent. per mensem, the Law which fixed the ex quadrante, ex triente, ex semisse, would have established usury at three per cent. at four per cent. at six per cent. by the month; which would have been absurd, because the Laws made to suppress usury would have been more cruel than the usurers.
The Critic has then confounded the species of things. But I ought here to give his very words, in order that the reader may be fully convinced, that the confidence with which he writes ought not to impose on any one. Tacitus, says he* , is not mistaken; he speaks of interest at one per cent. by the month, and the Author has imagined that he speaks of one per cent. per annum. Every body knows, that the hundredth part was paid to the usurer every month. Ought a man, who has written two quarto volumes on the laws, to be ignorant of this?
Whether this man was, or was not ignorant of the centesimal, is of no consequence: but he was not ignorant of it, since he has mentioned it in three places. But how has he mentioned it, and where has he spoken of it† ? I may defy the Critic to guess, as he cannot find the words and expressions he is acquainted with.
The question here is not, whether the Author is, or is not a man of learning, but to defend his altars‡ . However, it was necessary to shew the public, that the Critic has assumed so decisive a tone on things about which he was intirely ignorant, and had so little doubt that he did not even open a dictionary to confirm his opinion; that, tho’ ignorant himself, he accuses others of not having his own errors, and therefore can no longer merit the least confidence with respect to his other accusations. Would not one have been apt to believe, that the haughty and insolent manner he assumes must have proceeded from his never being in the wrong? that when he chafes and blusters, this is a proof of his not being in an error? that when he anathematizes the Author with his phrases of impious mortal and follower of natural religion, we may still believe that he is not mistaken? Who would have thought that it is necessary to keep a guard over ourselves, to prevent our receiving those impressions that put his spirits in motion, and give impetuosity to his style? that in his two pieces it is highly proper to separate his reasons from his abuse, and that afterwards setting aside those reasons that are bad, nothing will remain.
The Author, in the chapters on lending at interest, and of usury among the Romans; a subject doubtless the most important in their history, since it is so closely connected with the constitution of Rome, that a thousand times it was near subverting it; after treating of the Laws they made from despair; of those dictated by prudence; of such regulations as were only temporary; and of those that were designed to last for ever, says at the end of the twenty-second chapter, “In the year of Rome 398, the tribunes Duellius and Menenius caused a Law to be passed, which reduced interest to one per cent. per annum.—Ten years after this usury was reduced one half, and in the end it was intirely abolished.
“It fared with this Law as with all those in which the legislator carries things to excess; an infinite number of ways were found to elude it. They enacted, therefore, many others to confirm, correct, and temper it. Sometimes they quitted the Laws, to follow the common practice; at others, the common practice to follow the Laws; but in this case custom easily prevailed. When a man wanted to borrow, he found an obstacle in the very Law made in his favour; this Law must be evaded by the person it was made to succour, and by him it was made to condemn. Sempronius Asellus the Prætor, having permitted the debtors to act in conformity to the Laws, was slain by the creditors, for attempting to revive the memory of a severity that could no longer be supported.
“Under Sylla, Lucius Valerius Flaccus made a Law which suffered interest to be at three per cent. per annum. This Law, the most moderate, the most equitable ever made on this account by the Romans, is disapproved by Paterculus. But if this Law was necessary for the advantage of the republic, if it was of service to every individual, if it formed an easy communication between the debtor and creditor, it could not be unjust.
“He pays least, says Ulpian, who pays latest. This decides the question, whether interest be lawful, that is, whether the creditor can sell time, and the debtor buy it.”
Let us see how the Critic reasons on this last passage, which refers only to the Law of Flaccus, and to the political dispositions of the Romans. The Author, says he, on resuming all he had said on usury, maintains that a creditor is permitted to sell time. The Critic here seems to insinuate, that the Author had been writing a treatise on theology, or Canon Law, and that he had at length resumed it; tho’ it is evident that he is only treating of the political regulations of the Romans; of a Law of Flaccus, and the opinion of Paterculus: so that this Law of Flaccus, Paterculus’s opinion, the reflexion of Ulpian, and that of the Author, are closely connected, and cannot be separated from each other.
I have still many things to say; but I chuse rather to refer the reader to the pieces themselves. Believe me, my dear Piso, they have formed a work which, like the dreams of the sick, exhibit nothing but vain phantoms* .
[* ]Book xxiv. chap. 6.
[* ]That is, Book xxiv. Chap. 7.
[* ]Book xvi. chap. 4.
[† ]The piece of October 9, 1749, page 164.
[* ]Book xiii. chap. 21.
[* ]The second piece, p. 166.
[* ]Maris & fœminæ conjunctio, individuam vitæ societatem continens.
[* ]Usury and interest among the Romans signified the same thing.
[† ]Book xxii.
[* ]Book xxii.
[* ]Book xxii.
[* ]Nam prim ò duodecim tabulis sanctum, ne quis unciario fœnore ampliùs exerceret. Annal. lib. vi.
[† ]Usurarum species ex assis partibus denominantur: quod ut intelligatur, illud scire oportet, sortem omnem ad centenarium numerum revocari; summam autem usuram esle, cum pars sortis centesima singulis mensibus persolvitur. Et quoniam istâ ratione summa hæc usura duodecim aureos annuos in centenos efficit, duodenarius numerus jurisconsultos movit, ut assem hunc usurarium appellarent. Quemadmodùm hic as non ex menstrua sed ex annuâ pensione æstimandus est; similiter omnes ejus partes ex anni ratione intelligendœ sunt: ut si unus in centenos annuatim pendatur, unciaria usura; si bini, sextans; si terni, quadrans; si quaterni, triens; si quini, quincunx; si seni, semis; si septeni, septunx; si octoni, bes; si novem, dodrans; si deni, dextrans; si undeni, deunx; si duodeni, as. Lexicon J. Calvini. Coloniæ Allobrogum, anno 1622, apud Petrum Balduinum, in verbo Usura, p. 960.
[‡ ]De modo usurarum, Lugduni Batavorum ex officina Elxeviriorum, anno 1639. p. 269, 270, & 271; particularly these words, Undè verius sit unclarium fœnus eorum, vel uncias usuras, ut eas quoque appellats infrà ostendam, non unciam dare menstruam in centum, sed annum.
[∥ ]Argumentum legis xlvii.
[§ ]Præfectus legionis ff. de administratione & pericule tutoris.
[* ]The piece of the 9th of October, 1749, p. 164.
[† ]The third and last note of Book xxii. chap. 22. and the last of the third note.
[‡ ]Pro aris.