MONTESQUIEU'S PREFACE IF amidst the infinite number of subjects contained in this book there is anything which, contrary to my expectation, may possibly offend, I can at least assure the pubUc that it was not inserted with an ill intention — for I am not naturally of a captious temper. Plato thanked the gods that he was born in the same age with Socrates; and for my part I give thanks to the Supreme that I was born a subject of that government under which I live, and that it is His pleasure I should obey those whom He has made me love.
I beg one favor of my readers, which I fear will not be granted me; this is, that they will not judge by a few hours' reading of the labor of twenty years; that they will approve or condemn the book entire, and not a few particular phrases. If they would search into the design of the author, they can do it in no other way so completely as by searching into the design of the work.
I have first of all considered mankind, and the result of my thoughts has been, that amidst such an infinite diversity of laws and manners, they were not solely conducted by the caprice of fancy.
I have laid down the first principles, and have found that the particular cases follow naturally from them; that the histories of all nations are only consequences of them; and that every particular law is connected with another law, or depends on some other of a more general extent.
When I have been obliged to look back into antiquity I have endeavored to assume the spirit of the ancients, lest I should consider those things as alike which are really different, and lest I should miss the difference of those which appear to be alike.
I have not drawn my principles from my prejudices, but from the nature of things.
xxxii MONTESQUIEU Here a great many truths will not appear till we have seen the chain which connects them with others. The more we enter into particulars, the more we shall perceive the certainty of the principles on which they are founded. I have not even given all these particulars, for who could mention them all without a most insupportable fatigue?
The reader will not here meet with any of those bold flights which seem to characterize the works of the present age. When things are examined with never so small a degree of extent, the sallies of imagination must vanish; these generally arise from the mind's collecting all its powers to view only one side of the subject, while it leaves the other unobserved.
I write not to censure anything established in any country whatsoever. Every nation will here find the reasons on which its maxims are founded; and this will be the natural inference, that to propose alterations belongs only to those who are so happy as to be born with a genius capable of penetrating the entire constitution of a state.
It is not a matter of indifference that the minds of the people be enlightened. The prejudices of magistrates have arisen from national prejudice. In a time of ignorance they have commit- ted even the greatest evils without the least scruple; but in an enlightened age they even tremble while conferring the greatest blessings. They perceive the ancient abuses; they see how they must be reformed; but they are sensible also of the abuses of a reformation. They let the evil continue, if they fear a worse; they are content with a lesser good, if they doubt a greater. They examine into the parts, to judge of them in connection; and they examine all the causes, to discover their different effects.
Could I but succeed so as to afford new reasons to every man to love his prince, his country, his laws; new reasons to render him more sensible in every nation and government of the bless- ings he enjoys, I^should think myself the most happy of mortals.
Could I but succeed so as to persuade those who command to increase their knowledge in what they ought to prescribe, and those who obey to find a new pleasure resulting from obedience — I should think myself the most happy of mortals.
The most happy of mortals should I think myself could I contribute to make mankind recover from their prejudices. By prejudices I here mean, not that which renders men ignorant PREFACE xxxiii of some particular things, but whatever renders them ignorant of themselves.
It is in endeavoring to instruct mankind that we are best able to practice that general virtue which comprehends the love of all. Man, that flexible being, conforming in society to the thoughts and impressions of others, is equally capable of know- ing his own nature whenever it is laid open to his view, and of losing the very sense of it when this idea is banished from his mind.
Often have I begun, and as often have I laid aside, this un- dertaking. I have a thousand times given the leaves I had written to the winds: a I, every day, felt my paternal hands fall> I have followed my object without any fixed plan — I have known neither rules nor exceptions; I have found the truth, only to lose it again. But when I once discovered my first prin- ciples, everything I sought for appeared; and in the course of twenty years I have seen my work begun, growing up, advanc- ing to maturity, and finished.
If this work meets with success I shall owe it chiefly to the grandeur and majesty of the subject. However, I do not think that I have been totally deficient in point of genius. When I have seen what so many great men, in France, in England, and in Germany, have said before me, I have been lost in admira- tion; but I have not lost my courage: I have said with Cor- reggio, " And I also am a painter.''^ a Ludibria ventis. h Bis patriae cecidere manus.
c Ed io anche son pittore.
AUTHOR'S EXPLANATORY NOTES 1. For the better understanding of the first four books of this work, it is to be observed that what I distinguish by the name of virtue, in a republic, is the love of one's country, that is, the love of equality. It is not a moral, nor a Christian, but a politi- cal virtue; and it is the spring which sets the republican gov- ernment in motion, as honor is the spring which gives motion to monarchy. Hence it is that I have distinguished the love of one's country, and of equaHty, by the appellation of political virtue. My ideas are new, and therefore I have been obliged to find new words, or to give new acceptations to old terms, in order to convey my meaning. They, who are unacquainted with this particular, have made me say most strange absurdities, such as would be shocking in any part of the world, because in all countries and governments morality is requisite.
2. The reader is also to notice that there is a vast difference between saying that a certain quality, modification of the mind, or virtue, is not the spring by which government is actuated, and affirming that it is not to be found in that government. Were I to say such a wheel or such a pinion is not the spring which sets the watch going, can you infer thence that it is not to be found in the watch? So far is it from being true that the moral and Christian virtues are excluded from monarchy, that even political virtue is not excluded. In a word, honor is found in a republic, though its spring be political virtue; and political virtue is found in a monarchical government, though it be actuated by honor.
To conclude, the honest man of whom we treat in the third book, chapter 5, is not the Christian, but the political honest man, who is possessed of the political virtue there mentioned. He is the man who loves the laws of his country, and who is xxxvi MONTESQUIEU actuated by the love of those laws. I have set these matters in a clearer light in the present edition by giving a more precise meaning to my expression: and in most places where I have made use of the word virtue I have taken care to add the term political.
lA/JMUJll A008 lA/JMUJll A008 CHOICE EXAMPLES OF BOOK ILLUMINATION.
Fac-similes from Illuminated Manuscripts and Illustrated Books of Early Date.
DAVID SLAYING GOIJATH, From the Mount Olivet Psalter^ written about i4<)o^ probably at Sienna.
This is an exquisite page from a Psalter written for a patron or superior of the Monks of St. Ohvet. In the Renaissance border, on three of the sides, are set little oval pictures, including a Savior, and a saint in steel armor. In the lower border aa oblong space contains a picture of the death of Goliath, with a charming landscape in the background. The beauty of the decorative design, the harmony of colors, and the effectiveness of the little paintings in the border, all combine to make this; fac-siniile a deliglitful example of Itahan art at the cJose of the fifteenth century.
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uir ini no ibijt tncoiiftbo inipio [^uiii:i inuw pxoni no •iknr: z icatbcwa pcihlc noicdit, cdmlo[jc i^dihuoluntaoctnilo^ Vw^^cditabidic^cw* ? fwitwimtmtcmp iuo. tMiicmonoxvflm. etimtuquctucp faacr ^pfpAbm^l onikim ILLUSTRATIONS FACING PAGE Baron de Montesquieu (Portrait).
Photogravure from a wood engraving Frontispiece io8 David Slaying Goliath P'ac-simile Illumination of the Fifteenth Century A Page from the Monte Santo di Dio Fac- simile example of Printing in the Fifteenth Century Augustus 206 Photo-engraving from a marble statue A Page from the Psalmorum Codex Fac-simile example of Printing in the Fifteenth Century THE SPIRIT OF LAWS BOOK I OF LAWS IN GENERAL I. — Of the Relation of Laws to different Beings LAWS, in their most general signification, are the neces- sary relations arising from the nature of things. In this sense all beings have their laws: the Deity« His laws, the material world its laws, the intelligences superior to man their laws, the beasts their laws, man his laws.
They who assert that a blind fatality produced the various effects we behold in this world talk very absurdly; for can any thing be more unreasonable than to pretend that a blind fatality could be productive of intelligent beings?
There is, then, a prime reason; and laws are the relations subsisting between it and different beings, and the relations of these to one another.
God is related to the universe, as Creator and Preserver; the laws by which He created all things are those by w^hich He preserves them. He acts according to these rules, because He knows them; He knows them, because He made them; and He made them, because they are in relation of His Wisdom and power.
Since we observe that the world, though formed by the mo- tion of matter, and void of understanding, subsists through so long a succession of ages, its motions must certainly be directed by invariable laws; and could we imagine another world, it must also have constant rules, or it would inevitably perish.
Thus the creation, which seems an arbitrary act, supposes laws as invariable as those of the fatality of the Atheists. It a " Law," says Plutarch, " is the king his treatise entitled " A Discourse to atJ of mortal and immortal beings," See unlearned Prince."
Vol. I.— I I 2 MONTESQUIEU would be absurd to say that the Creator might govern the world without those rules, since without thern it could not sub- sist.
These rules are a fixed and invariable relation. In bodies moved, the motion is received, increased, diminished, or lost, according to the relations of the quantity of matter and veloc- ity; each diversity is uniformity, each change is constancy.
Particular intelligent beings may have laws of their own making, but they have some likewise which they never made. Before there were intelligent beings, they were possible; they had therefore possible relations, and consequently possible laws. Before laws were made, there were relations of possible justice. To say that there is nothing just or unjust but what is commanded or forbidden by positive laws, is the same as saying that before the describing of a circle all the radii were not equal.
We must therefore acknowledge relations of justice ante- cedent to the positive law by which they are established: as, for instance, if human societies existed, it would be right to conform to their laws; if there were intelligent beings that had received a benefit of another being, they ought to show their gratitude; if one intelligent being had created another intelligent being, the latter ought to continue in its original state of dependence; if one intelligent being injures another, it deserves a retaliation; and so on.
But the intelligent world is far from being so well governed as the physical. For though the former has also its laws, which of their own nature are invariable, it does not conform to them so exactly as the physical world. This is because, on the one hand, particular intelligent beings are of a finite nature, and consequently liable to error; and on the other, their nature re- quires them to be free agents. Hence they do not steadily con- form to their primitive laws; and even those of their own in- stituting they frequently infringe.
Whether brutes be governed by the general laws of motion, or by a particular movement, we cannot determine. Be that as it may, they have not a more intimate relation to God than the rest of the material world; and sensation is of no other use to them than in the relation they have either to other particular beings or to themselves.
THE SPIRIT OF LAWS 3 By the allurement of pleasure they preserve the individual, and by the same allurement they preserve their species. They have natural laws, because they are united by sensation; posi- tive laws they have none, because they are not connected by knowledge. And yet they do not invariably conform to their natural laws; these are better observed by vegetables, that have neither understanding nor sense.
Brutes are deprived of the high advantages which we have; but they have some which we have not. They have not our hopes, but they are without our fears; they are subject like us to death, but without knowing it; even most of them are more attentive than we to self-preservation, and do not make so bad a use of their passions.
Man, as a physical being, is like other bodies governed by invariable laws. As an intelligent being, he incessantly trans- gresses the laws established by God, and changes those of his own instituting. He is left to his private direction, though a limited being, and subject, like all finite intelligences, to ig- norance and error: even his imperfect knowledge he loses; and as a sensible creature, he is hurried away by a thousand impetuous passions. Such a being might every instant forget his Creator; God has therefore reminded him of his duty by the laws of religion. Such a being is liable every moment to for- get himself; philosophy has provided against this by the laws of morality. Formed to live in society, he might forget his fellow-creatures; legislators have, therefore, by political and civil laws, confined him to his duty.
2. — Of the Lazvs of Nature Antecedent to the above-mentioned laws are those of nature, so called, because they derive their force entirely from our frame and existence. In order to have a perfect knowledge of these laws, we must consider man before the establishment of society: the laws received in such a state would be those of nature.
The law which, impressing on our minds the idea of a Crea- tor, inclines us towards Him, is the first in importance, though not in order, of natural laws. Man in a state of nature would have the faculty of knowing, before he had acquired any knowl- 4 MONTESQUIEU edge. Plain it is that his first ideas would not be of a speculative nature; he would think of the preservation of his being, be- fore he would investigate its origin. Such a man would feel nothing in himself at first but impotency and weakness; his fears and apprehensions would be excessive; as appears from instances (were there any necessity of proving it) of savages found in forests,^ trembling at the motion of a leaf, and flying from every shadow.
In this state every man, instead of being sensible of his equal- ity, would fancy himself inferior. There would, therefore, be no danger of their attacking one another; peace would be the first law of nature.
The natural impulse or desire which Hobbes attributes to mankind of subduing one another is far from being well founded. The idea of empire and dominion is so complex, and depends on so many other notions, that it could never be the first which occurred to the human understanding.
Hobbesc inquires, " For what reason go men armed, and have locks and keys to fasten their doors, if they be not naturally (^' \f in a state of war? " But is it not obvious that he attributes to V" ^ mankind before the establishment of society what can happen but in consequence of this establishment, which furnishes them with motives for hostile attacks and self-defence?
Next to a sense of his weakness man would soon find that of his wants. Hence another law of nature would prompt him to seek for nourishment.
Fear, I have observed, would induce men to shun one an- other; but the marks of this fear being reciprocal, would soon engage them to associate. Besides, this association would quickly follow from the very pleasure one animal feels at the approach of another of the same species. Again, the attrac- tion arising from the difference of sexes would enhance this pleasure, and the natural inclination they have for each other would form a third law.
Besides the sense or instinct which man possesses in com- mon with brutes, he has the advantage of acquired knowledge; and thence arises a second tie, which brutes have not. Manb Witness the savage found in the for- over to England during the reign of ests of Hanover, who was carried George I.
c In pra^fat. lib. " de Give."
V THE SPIRIT OF LAWS 5 kind have, therefore, a new motive of uniting; and a fourth law of nature resuhs from the desire of Hving in society.
3. — Of positive Laws As soon as man enters into a state of society he loses the sense of his weakness; equality ceases, and then commences the state of war.c?
Each particular society begins to feel its strength, whence arises a state of war between different nations. The individuals likewise of each society become sensible of their force; hence the principal advantages of this society they endeavor to con- vert to their own emolument, which constitutes a state of war between individuals.
These two different kinds of states give rise to human laws. Considered as inhabitants of so great a planet, which neces- sarily contains a variety of nations, they have laws relating to their mutual intercourse, which is what we call the law of nations. As members of a society that must be properly sup- ported, they have laws relating to the governors and the gov- erned, and this we distinguish by the name of politic law. They have also another sort of laws, as they stand in relation to each other; by which is understood the civil law.
The law of nations is naturally founded on this principle, that different nations ought in time of peace to do one another all the good they can, and in time of war as little injury as pos- sible, without prejudicing their real interests.
The object of war is victory; that of victory is conquest; and that of conquest preservation. From this and the preced- ing principle all those rules are derived which constitute the law of nations.
All countries have a law of nations, not excepting the Iro- quois themselves, though they devour their prisoners: for they send and receive ambassadors, and understand the rights of war and peace. The mischief is that their law of nations is not founded on true principles.
d Interpreter and admirer of the social Rousseau to celebrate the independence instinct as he was, Montesquieu has not of savage life, gives birth to the whole- hesitated to avow that war takes simul- some necessity of laws which are an taneous rise with society. But the true armistice between states, and a treaty Philosophy of this unhappy truth, which of_ perpetual peace for the citizens lobbes took advantage of in order to vaunt the serenity ol despotism, and [obbes took advantage of in order to (Eloge de Montesquieu).
6 MONTESQUIEU Besides the law of nations relating to all societies, there is a polity or civil constitution for each particularly considered. No society can subsist without a form of government. *' The united strength of individuals," as Gravina^ well observes, " constitutes what we call the body politic."
The general strength may be in the hands of a single person, or of many. Some think that nature having established pater- nal authority, the most natural government was that of a single person. But the example of paternal authority proves nothing. For if the power of a father relates to a single government, that of brothers after the death of a father, and that of cousins-ger- man after the decease of brothers, refer to a government of many. The poHtical power necessarily comprehends the union of several families.
Better is it to say that the government most conformable to nature is that which best agrees with the humor and disposi- tion of the people in whose favor it is established.
The strength of individuals cannot be united without a con- junction of all their wills. " The conjunction of those wills," as Gravina again very justly observes, " is what we call the civil state."
Law in general is human reason, inasmuch as it governs all the inhabitants of the earth: the political and civil laws of each nation ought to be only the particular cases in which human reason is applied.
They should be adapted in such a manner to the people for whom they are framed that it should be a great chance if those of one nation suit another.
They should be in relation to the nature and principle of each government: whether they form it, as may be said of politic laws; or whether they support it, as in the case of civil institu- tions.
They should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the prin- cipal occupation of the natives, whether husbandmen, hunts- men, or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs. In fine, they have relations to each e An Italian poet and jurist, 1664 — 1718.
THE SPIRIT OP LAWS 7 other, as also to their origin, to the intent of the legislator, and to the order of things on which they are established; in all of which different lights they ought to be considered.
This is what I have undertaken to perform in the following work. These relations I shall examine, since all these together constitute what I call the Spirit of Laws.
I have not separated the political from the civil institutions, as I do not pretend to treat of laws, but of their spirit; and as this spirit consists in the various relations which the laws may bear to different objects, it is not so much my business to fol- low the natural order of laws as that of these relations and ob- jects.
I shall first examine the relations which laws bear to the nature and principle of each government; and as this prin- ciple has a strong influence on laws, I shall make it my study to understand it thoroughly: and if I can but once establish it, the laws will soon appear to flow thence as from their source. I shall proceed afterwards to other and more particular relations.
BOOK II OF LAWS DIRECTLY DERIVED FROM THE NATURE OF GOVERNMENT I. — Of the Nature of three different Governments THERE are three species of government: republican, monarchical, and despotic. In order to discover their nature, it is sufficient to recollect the common notion, which supposes three definitions, or rather three facts: that a republican government is that in which the body, or only a part of the people, is possessed of the supreme power; monarchy, that in which a single person governs by fixed and established laws; a despotic government, that in which a single person directs everything by his own will and caprice.
This is what I call the nature of each government; we must now inquire into those laws which directly conform to this nature, and consequently are the fundamental institutions.
2. — Of the Republican Government, and the Laws in relation to Democracy a When the body of the people is possessed of the supreme power, it is called a democracy. When the supreme power is lodged in the hands of a part of the people, it is then an aristoc- racy.
In a democracy the people are in some respects the sover- eign, and in others the subject.
There can be no exercise of sovereignty but by their suf- frages, which are their own will; now, the sovereign's will is the sovereign himself. The laws, therefore, which establish the right of suffrage are fundamental to this government. And a Compare Aristotle's " Polit." lib. fundamental laws of democratic consti- VI. cap. ii., wherein are exposed the tutions. — Ed.
8 THE SPIRIT OF LAWS 9 indeed it is as important to regulate in a republic, in what man- ner, by whom, to whom, and concerning what suffrages are to be given, as it is in a monarchy to know who is the prince, and after what manner he ought to govern.
Libanius& says that at '' Athens a stranger who intermeddled in the assembHes of the people was punished with death." This is because such a man usurped the rights of sovereignty.^^ It is an essential point to fix the number of citizens who are to form the public assembHes; otherwise it would be uncertain whether the whole or only a part of the people had given their votes. At Sparta the number was fixed at ten thousand. But Rome, designed by Providence to rise from the weakest be- ginnings to the highest pitch of grandeur; Rome, doomed to experience all the vicissitudes of fortune; Rome, who had sometimes all her inhabitants without her walls, and sometimes all Italy and a considerable part of the world within them; Rome, I say, never fixed the number;rf and this was one of the principal causes of her ruin.
The people, in whom the supreme power resides, ought to have the management of everything within their reach: that which exceeds their abilities must be conducted by their min- isters.
But they cannot properly be said to have their ministers, without the power of nominating them: it is, therefore, a fundamental maxim in this government, that the people should choose their ministers — that is, their magistrates.
They have occasion, as well as monarchs, and even more so, to be directed by a council or senate. But to have a proper confidence in these, they should have the choosing of the mem- bers; whether the election be made by themselves, as at Athens, or by some magistrate deputed for that purpose, as on certain occasions was customary at Rome.^ The people are extremely well qualified for choosing those whom they are to intrust with part of their authority. They have only to be determined by things to,which they cannot be strangers, and by facts that are obvious to sense. They can b Declam. 17 and 18. d See the " Considerations on the c Libanius himself gives the reason Causes of the Grandeur and Decline of for this law. " It was," he avers, " in the Romans," chap. ix. order to prevent the secrets of the re- e The Roman senators were invariably public from being divulged."— Ed. chosen by magistrates in whom the people had vested the power.— Crevier.
lo MONTESQUIEU tell when a person has fought many battles, and been crowned with success; they are, therefore, capable of electing a gen- eral. They can tell when a judge is assiduous in his office, gives general satisfaction, and has never been charged with bribery: this is sufficient for choosing a praetor. They are struck with the magnificence or riches of a fellow-citizen; no more is requisite for electing an edile. These are facts of which they can have better information in a public forum than a monarch in his palace. But are they capable of conducting an intricate afifair, of seizing and improving the opportunity and critical moment of action? No; this surpasses their abilities.
Should we doubt the people's natural capacity, in respect to the discernment of merit, we need only cast an eye on the series of surprising elections made by the Athenians and Romans; which no one surely will attribute to hazard.
We know that though the people of Rome assumed the right of raising plebeians to public offices, yet they never would ex- ert this power; and though at Athens the magistrates were al- lowed, by the law of Aristides, to be elected from all the different classes of inhabitants, there never was a case, says Xenophon,^ when the common people petitioned for em- ployments which could endanger either their security or their glory.
As most citizens have sufficient ability to choose, though unqualified to be chosen, so the people, though capable of call- ing others to an account for their administration, are incapa- ble of conducting the administration themselves.
The public business must be carried on with a certain mo- tion, neither too quick nor too slow. But the motion of the people is always either too remiss or too violent. Sometimes with a hundred thousand arms they overturn all before them; and sometimes with a hundred thousand feet they creep like insects.
In a popular state the inhabitants are divided into certain classes. It is in the manner of making this division that great legislators have signalized themselves; and it is on this the duration and prosperity of democracy have ever depended.
Servius Tullius followed the spirit of aristocracy in the dis- tribution of his classes. We find in Livy^ and in Dionysius e Pages 691 and 692. Edit. Wechel. Ann. 1596. f Lib. I.
THE SPIRIT OF LAWS ii Halicarnassuss' in what manner he lodged the right of suffrage in the hands of the principal citizens. He had divided the peo- ple of Rome into 193 centuries, which formed six classes; and ranking the rich, who were in smaller numbers, in the first centuries, and those in middling circumstances, who were more numerous, in the next, he flung the indigent multitude into the last; and as each century had but one vote,/^ it was property rather than numbers that decided the election.