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Chap. XIX…. Of legislators. - Antoine Louis Claude, Comte Destutt de Tracy, A Commentary and Review of Montesquieu’s ’Spirit of Laws’ [1811]

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A Commentary and Review of Montesquieu’s ’Spirit of Laws’: To which are annexed, Observations on the Thirty First Book by the late M. Condorcet; and Two Letters of Helvetius, on the Merits of the same Work, trans. Thomas Jefferson (Philadelphia: William Duane, 1811).

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Chap. XIX.... Of legislators.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For example.... the law which declares that taxes, should always be established in proportion to the clear product of the land, may be considered as a law founded on the nature of things;33 but the law which fixes the manner of estimating the produce, may require to be changed, because it is possible to render the method more perfect.

It is yet more important to distinguish the laws which are only temporary. The chancellor de l'Hopital, in an edict of pacification, condemned to death any one who should break an image. It is very evident, that this too rigorous law, had only for its object, to prevent such irregularities as might tend to rekindle the civil war; yet it was in virtue of this law, interpreted as perpetual against all reason, that the parliament of Paris had the barbarity to condemn the chevalier de Labarre. Even if the law were just, it should have been declared that it was to expire after a certain number of years, unless the continuation of the troubles should require it to be renewed.

What Montesquieu says, chap. 16, on the emission of money, is not sufficient; not only their valuation should be specific, but the intrinsic value also, should be determined; but this real value should be sufficient, whether in metallic value, or in other goods; as for example.... according to the mean price of bread in Europe, and of rice in Asia: because the article forming the principal and habitual nourishment of the people, is the only one of which the value can be considered as constant; but if the manner of living should change, the principle of valuation should also change, and a new measure of valuation be established.

We have said there are things which should be valued in metal; such is the interest of a sum of money lent, which should always be some part of a known weight; such is the interest of the purchase money of a house, or furniture, and the like; while the interest of the purchase money of land, should be valued in produce.

Laws should be composed according to a systematic order, so that it may be easy to comprehend them all, and follow each of the details.

This is the only method by which it can be discovered whether there are not contradictions or omissions, or if the questions which present themselves in the sequel have been proved or not.

This is the only means of clearly discovering when a reform is necessary, or on what part of the old law it should act, and then the reform ought to be so conducted, that without altering the unity of the system of laws, it may substitute the new law for that which is to be made the object of reform.

These reflections are simple; they contain only a small number of the principles which should enter into the composition of a work, on the manner of instituting laws; they are necessary; but Montesquieu has not thought it worth his while to employ his time upon them.

Letters of Helvetius, Addressed to President Montesquieu and M. Saurin, on Perusing the Manuscript of The Spirit of Laws

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[This advertisement and the following letters are extracted from the fifth volume of the works of Helvetius, edited by the abbé de la Roche, and translated for this volume.]

It had been said in several of the public papers, that at the time when the Spirit of Laws acquired great celebrity, Helvetius expressed much surprise at the circumstance, to his intimate friends: the facts, as Helvetius himself has related them, were these:

Helvetius was the friend of president Montesquieu, and whilst he held the station of farmer-general, spent much time at the country residence of Montesquieu at Brede. In the course of their philosophical conversations, the president mentioned to his friend, his work on the Spirit of Laws; and then gave him the manuscript to peruse: before he sent it to the press, Helvetius, who loved the author as much as he loved truth, was alarmed when he read this work, at the danger to which the reputation of Montesquieu was about to be exposed. He repeatedly opposed, both in person and by letter, those opinions which he considered the most dangerous, as they were about to be laid down as political maxims, by one of the finest writers in France, in a work illuminated by genius, and inculcating many important truths. His natural modesty, and his admiration of the author of the Persian Letters, however, combating with his judgment, he requested Montesquieu's permission to shew the manuscript to their common friend, M. Saurin, the author of Spartacus; a man of profound and solid understanding, whom they both regarded as a most faithful man, and impartial judge. Saurin coincided in opinion with Helvetius. When the work appeared, and they witnessed its prodigious success, without changing their opinions, they remained silent from a respect for the judgment of the public, and for the honor of their friend.

This silence it might be well to imitate, so far as the errors of president Montesquieu were confined to theory; but now, that those errors have become the support of great prejudices, acrd that private passions are converting them into practical principles, it becomes important to expose them, and to lay before the public the sentiments which the friends of Montesquieu expressed to himself. Respect for great men after their death, would extend too far, were it to prevent the condemnation of errors, which they would themselves have renounced, if they had observed the dangers attendant upon their dissemination. It is believed, therefore, that the intentions of Helvetius will not be abused, by publishing some of his letters to Montesquieu. They cannot but be useful when the human mind has been awakened to the fatal effects of long established errors.

Letter I.

Letter of Helvetius to President Montesquieu

I have perused, even to the third time, my dear president, the manuscript which you communicated to me. You greatly interested me in this work, whilst I was at Brede. I know nothing that resembles it: indeed I know not whether our French heads are steady enough to enable us to discern all its great beauties. For my own part, I am enraptured with them : I admire the vast genius which created them, and the depth of research which you must have accomplished, in order to collect so much knowledge from the rubbish of those barbarian laws, from which I had believed so little could be derived for the instruction or benefit of mankind. I behold you, like the hero of Milton, after having traversed the immensity of chaos, rising illustrious out of darkness. Thanks to you, we shall now be correctly informed of the spirit of laws of the Greeks, Romans, Vandals, and Visigoths; we shall now know through what intricate labyrinths human genius is compelled to pass, in order to relieve those unfortunate people who are oppressed by tyrants and religious oppressors. You bid us behold the world, how it has been governed, and how it is still ruled: but you too often give the world credit for reason and wisdom, which are in fact your own, and of which it will be much surprised at receiving the honors.

You compromise with prejudice, as a young man entering the world, does with certain females, who, although advanced in years, have still some pretensions, and by whom he wishes to be considered polite and well bred. But have you not flattered them too much? Such a course may propitiate the priests; and in dividing the spoil with those Cerberus's of the church, you silence them with respect to your religion:.... as to the rest, they will not be able to comprehend you. Our lawyers are not able either to read or understand you. As to the aristocrats, and our petty despots of all grades, if they understand you, they cannot praise you too much, and this is the fault I have ever found with the principles of your work. You may recollect, that in our discussions at Brede, I admitted that they might apply to the actual state of things; but I concluded that a writer, anxious to serve mankind, ought rather to lay down just maxims for an improved order of things yet to arise, than to give force or consequence to those which are dangerous, at the moment when prejudice is striving to preserve and perpetuate human ignorance and subjection. To employ philosophy in giving them consequence, is to give human genius a retrograde motion, and to perpetuate those abuses which interest and bad faith, are but too apt to uphold. The idea of perfectibility amuses our contemporaries, offends hypocrites, and men in power; but it instructs our rising generation, and is a light to posterity. If our offspring shall possess common sense, I doubt whether they will accommodate themselves to our principles of government, or adopt in their constitutions, which without doubt will be better than ours, your complicated balances and intermediary powers. Even kings themselves, if they understand their true interests (and why do they not consider them?) would, by dispensing with those pernicious powers, more securely establish their own happiness and the welfare of their subjects.

Instead of this, in Europe, which is now the least oppressed of the four quarters of the globe, where is there a prince, who, when all the streams of public revenue have passed through the hundred thousand channels of feudality, employs them to public advantage? One part of the nation enriches itself by the miseries of the other: the nobility, an insolent cabal: and the monarch, whom it flatters, is himself oppressed without being aware of it. History, well attended to, is a perpetual lesson. A king creates intermediate orders; they soon, become his masters, and the tyrants of the people. How are they to maintain their despotism? They must cherish anarchy for their own sakes; they are jealous of nothing but their privileges, which are at variance with the natural rights of those whom they oppress.

I have told you, and I repeat it, my dear friend, that your combinations of balanced powers only tend to separate and complicate individual interests, rather than to unite them. The example of the English government has seduced you: I am far from thinking that constitution perfect: I shall have much to say to you upon that subject. Let us wait, as Locke said to king William, until some great calamities which must originate in the vices of that constitution, shall have made us acquainted with its danger; until that corruption, already become indispensible, to overcome the force of apathy in their upper chamber, shall be established by the ministers in the commons, and until they shall no longer blush at it: then shall we see the danger of an equilibrium, which must be perpetually broken in order to accelerate or retard the movements of so complicated a machine. In effect, do we not see in our own day, that taxes are necessary to corrupt the very parliament, which gives the king the right to levy imposts upon the people?

The very liberty which the English nation enjoys, does it indeed result from the principles of that constitution, rather than from their good laws, which have no dependance upon it; which the French may have, and which alone, perhaps, would render their government supportable. As yet, we have no pretensions to it. Our priests are too fanatical, and our nobles too ignorant, to become citizens, or to perceive the advantages of becoming and forming a nation. Every one of them knows he is a slave, and lives with the hope of one day or another becoming a petty despot in his turn.

A king is also the mere slave of his mistresses, of his favorites, and his ministers. If he gets in a passion, the kicks which his minions receive, place him on a footing with the lowest blackguard: this, I think, is the only use for intermediaries in a government. In a state, ruled by the fantasies of a monarchy, the intermediaries who surround him, are alternately engaged in deceiving him, and in preventing the complaints of the people against the abuses by which they profit from reaching his ears. Is it the people who complain, that are dangerous? No: but those who are not heard: in such circumstances, the only persons to be dreaded in a nation, are those who hinder others from being heard. When the sovereign, notwithstanding the flatteries of the intermediaries, is forced to have the clamors of the people borne even to himself, the evil is at its height.... if a remedy is not then prompt, the ruin of the empire is at hand; the people may learn, too late, that the chief was imposed upon by his favorites.

You perceive, that by intermediaries, I mean the members of that vast aristocracy of nobles and priests, whose chief resides at Versailles, which usurps almost all the functions of power, and multiplies them at will, by the mere authority of birth.... without right, without talents, without merit; and which keeps even the sovereign in dependence, in order that the ministry may be changed as it shall suit their interests.

I will close, my dear friend, by acknowleging to you, that I have never well understood the subtle distinctions, so incessantly repeated, respecting the various forms of government. I know but two descriptions.... the good and the bad. The good, which is yet to be formed; the bad, the great secret of which is, to draw by a variety of means, the money of the governed into the pockets of the governors. That which the ancient governments acquired by war, our moderns obtain more certainly by financiering: it is only the difference in the means which makes any variety. I believe, notwithstanding, in the possibility of a good government, where the liberty and property of the people being respected, one may see the general good necessarily resulting, without your balances or particular interests. Such would be a simple machine, the springs of which, being easily regulated, would render unnecessary the complicated appendages of wheels and balances, so difficult to be kept in order by those unskilful people who usually meddle with the affairs of government. These people wish to do every thing, and they act upon us as upon an inanimate mass, which they fashion to their fancy, without consulting either our desires or our true interests; a course of conduct, which betrays at once their impertinence and their ignorance: and yet, after all this, they seem surprised, that the excess of their abuses should provoke a desire for reform, and attribute to every thing rather than their own mismanagement, the sudden impulse given to affairs by the diffusion of knowlege and the exercise of public opinion........ I dare to predict, that we approach such an epoch. I am, &c.

Letter II.

Helvetius to A. M. Saurin.

As we had agreed, my dear Saurin, I have written to the president, with regard to the impression which his manuscript made upon you, as well as upon myself. At the same time that I have freely explained my opinions, I have conveyed them in language expressive of interest and friendship. Do not be uneasy, our remarks have not hurt him; he likes to witness in his friends that frankness, which distinguishes him among them; he freely promotes discussion, answers by sallies of wit, and rarely alters his opinion. I never fancied, when delivering our opinions, that they would change his; but we have not been able to say

  • .................... cur ego amicum
  • Offendam in nugis? Hæ nugæ seria ducent
  • In mala derisum semel, exceptum que sinistrè

Whatever it cost him, he should be sincere with his friends. When the light of truth shall shine forth and displace self love, he will find that they cannot be reproached with having been less sincere than the public.

I send you his answer, since you cannot come and join me in the country. You will find it such as I had foreseen. You will perceive that he had need of method to rally his ideas, and that being unwilling to lose all that he has thought, written, or imagined, since his youth, and according to the various dispositions in which he found himself, he has laid hold of that which least conflicts with received opinions. With that sort of spirit which distinguished Montagne, he adhered to the prejudices of the lawyers and noblesse.... this is the source of all his errors. His fine genius had elevated him in his youth, to the production of the Persian Letters; now advanced in years, he seems to repent having given envy that pretext for thwarting his ambition. He is more solicitous to uphold received ideas, than to inculcate others more novel and more useful. His manner is dazzling. It must have required the greatest force of genius to form such a mixture of truths and prejudices. Most of our philosophers may admire it as a chef-d'oeuvre. These things are new to all minds, and the less the number of opponents or good judges of his work, the more I fear that he will for a long time lead us astray.

But what the duce would he have us to understand by his treatise upon fiefs? Is it such an affair as to require an enlightened mind to unravel it? What legislation can result from a chaos of barbarian laws, established by force, reverenced only by ignorance, and which will forever be repugnant to a good order of things? Without the conquerors, who have destroyed every thing, what will be our situation with all these motley institutions? Ought we then to inherit all the errors that have been accumulating since the origin of the human race? They would still govern us; and having become the property of the strongest, or of the basest, it would require a more terrible remedy than conquest to release ourselves from them. It is nevertheless, the only remedy, if the voice of wise men is made to mingle with the interest of the powerful, and aid in erecting unnatural usurpations into legitimate properties. And what sort of property is that possessed by a few, injurious to all, even to those possessing it; and which corrupts by producing arrogance and vanity? In truth, if man is happy only when in the practice of the virtues, and in possession of the intelligence which confirms good principles; what virtues and what talents are we to expect from an order of men who engross every thing, and who claim consequence in society, by no other title than that of their birth? The industry of society is for no other end, but for them; all places of honor and profit devolve upon them; the sovereign governs, but through them, and for them alone draws subsidies from his subjects. Is not this totally overturning all ideas of sense and justice? This is the abominable order which misleads so many men of fine genius, and which totally perverts the principles of public and private morality.

L'Esprit de corps assails us on all sides, under the name of established orders: it is a power erected at the expense of the great mass of society. It is by these hereditary usurpations we are ruled. Under the name of the nation, there exist only corporations of individuals, and not citizens who merit that title. Even philosophers wish to form corporate bodies: but if they flatter private interests at the expense of the general welfare, I predict that their reign will not be long: for the knowlege which they circulate, will sooner or later disperse the darkness in which they wish to conceal prejudices; and our friend Montesquieu, deprived of his titles of wise man and legislator, will become no more than the lawyer, the nobleman, and the fine genius. Therefore am I afflicted for him and for humanity.

END OF THE WORK

[33.]We may perceive that at the time this was written, Condorcet yet adhered to the opinions of the most exclusive economists.