The Eve of the French Revolution

by Edward J. Lowell

Kings, as Montesquieu points out, are less envied than aristocracies; for the king is too far above most of his subjects to excite comparisons, while the nobility is not so placed. Republics, where birth confers no privileges, are, he thinks, happier in this respect than other countries; for the people can envy but little an authority which it grants and withdraws at its pleasure. Montesquieu forgets that every chance to rise which excites in the strong and virtuous a noble emulation, will cause in the weak and sour the corresponding base passion of envy. Complete despotism he believes to be impossible. There is in every nation a general spirit on which all power is founded. Against this, the ruler is powerless. It is wise not to disturb established forms and institutions, for the very causes which have made them last hitherto may maintain them in the future, and these causes are often complicated and unknown. When the system is changed, theoretic difficulties may be overcome, but drawbacks remain which only use can show. It is folly in conquerors to wish to make the conquered adopt new laws and customs, and it is useless; for under any form of government, subjects can obey. Men are never more offended than when their ceremonies and customs are interfered with. Oppression is sometimes a proof of the esteem in which they are held; interference with their customs is always a mark of contempt.[Footnote: Montesq., ii. 181, 315, 316, 266, 174, 209.]

Such are some of the general opinions of Montesquieu, found in the "Greatness and Decadence of the Romans." In the same book occurs the expression of an idea (afterwards repeated and worked out), which was to be perhaps the most fruitful of his teachings. "The laws of Rome," he says, "had wisely divided the public power among a great number of offices, which sustained, arrested, and moderated each other; and as each had but a limited power, every citizen was capable of attaining to any one of them; and the people, seeing several persons pass before it one after the other, became accustomed to none of them."[Footnote: Ibid., ii. 200.]

This idea that the division of power was highly desirable, that a system of checks and balances in government would tend to secure freedom, never took firm root in France. Indeed, Montesquieu, as he himself had partly foreseen, was more praised than read in his own country.[Footnote: Ibid., vii. 157 (Pensées diverses. Portrait de M par lui-même).] But in the distant colonies of America the "Greatness and Decadence of the Romans" and the "Spirit of the Laws" found eager students. The thoughts of Montesquieu were embodied in the constitutions of new states, whose social and economic condition was not far removed from that which he considered the most desirable. In these states the doctrine of the division of powers was consciously and carefully adopted, with the most beneficent results. This division was not a new idea to the American colonists: it was already in a measure a part of their institutions. But there can be little doubt that the idea was enforced in their minds by being clearly stated by one of the writers on political subjects whom they most admired.[Footnote: We have seen that Montesquieu had arrived at this idea from the study of the English Constitution as it existed in his day. In respect to the division of powers, the government of the United States conforms far more nearly to his idea than does the present government of England, in which the system of balanced powers has been superseded by that of government by the Lower Chamber, of which he pointed out the danger. The full results of this change will be known only to future generations.]

Fourteen years had passed from the time of the publication of the "Greatness and Decadence of the Romans," when in 1748 appeared the great work of Montesquieu, the "Spirit of the Laws." The book is announced by its author as something entirely original, "a child without a mother." [Footnote: Prolem sine matre creatam, on the title-page.] Nor is the claim altogether unfounded, although any reader familiar with the "Politics" of Aristotle can hardly fail to observe the resemblance between that great book and the other. Nor is it a detraction from the genius of Montesquieu to say that the comparison will not be altogether in his favor.

Montesquieu's scheme is announced in the title originally given to his book. "Of the Spirit of the Laws, or of the relation which the laws should have to the constitution of every government, manners, climate, religion, commerce, etc. To which the author has added new researches into the Roman laws concerning inheritance, into French laws, and into feudal laws." Thus we see that the principal subject of the book is the relation of laws to the circumstances of the country in which they exist. In this also is its chief value and its claim to originality. The Philosophers of the eighteenth century, following the example of the churches, believed that there was an absolute standard of justice to which all laws could easily be referred, independently of the country in which the laws existed. If the laws of Naples differed from those of Prussia, the laws which governed the phlegmatic Dutchman from those which contained the excitable inhabitant of Marseilles, one or the other set of laws, or both of them, must be wrong. The Civil Law of the Latin races, the Common Law of England, each claimed to be the expression of perfect abstract reason. The church with its canon, the same for all races and climates, confirmed the theory. To all these came Montesquieu with a teaching that would reconcile their claims.

"Law in general is human reason, in so far as it governs all the nations of the earth; and the political and civil laws of each nation should be but the particular cases to which that human reason is applied."

"They should be so adapted to the people for whom they are made, that it is a very great chance if those of one nation will apply to another."

"They must be in relation to the nature and the principle of the government which is established, or about to be established; whether they form it, as do political laws; or maintain it, as do civil laws."

"They must be in relation to the physical nature of the country; to the frozen, burning, or temperate climate; to the quality of the soil, the situation and size of the country; to the style of life of the people, as farmers, hunters, or shepherds; they should be in relation to the amount of liberty which the constitution may allow; to the religion of the inhabitants, their inclinations, their wealth, their numbers, their customs, their morals, and their manners. Finally, they have relations to each other; they have them to their own origin, to the object of the legislator, to the order of things on which they are established. They should be considered from all these points of view."

"This is what I undertake to do in this work. I will examine all these relations. They form together what is called `the Spirit of the Laws.'" [Footnote: Montesq., iii. 99 (liv. i. c. 3).]