In a despotic government the motive principle is fear. The governor of the town must be absolutely responsible to the governor of the province, or the latter cannot be entirely responsible to the sovereign. Thus absolutism extends throughout the state. As there is no law but the will of the prince, and as that law cannot be known in detail to every one, there must be a great number of petty tyrants dependent on those immediately above them.[Footnote: Montesq., ii. 209 (liv. v. c. 16).]
After a not very successful attempt to define liberty, which he decides to be the power to do that which we ought to desire and not to do that which we ought not to desire,[Footnote: Ibid., iv. 2-4 (liv. xi. c. 2, 3).] Montesquieu tells us that political liberty is found only in limited governments, for all men who have power will tend to abuse it, and will go on until they meet with obstacles; as virtue itself needs to be restrained. Various nations, he then says, have various objects: conquest was that of Rome, war of Sparta, commerce of Marseilles; there is a country the direct object of whose constitution is political liberty. That country is England.[Footnote: Montesquieu, here and elsewhere, avoids mentioning England or France by name; a curious affectation. The references, however, are unmistakable.]
There are in every state three kinds of power, the legislative, the executive, and the judicial. Political liberty in a citizen is the tranquillity of mind which comes from the opinion he has of his own security; and to give him this liberty the government must be such that no citizen can be afraid of another. Now this security can exist only where the legislative, executive, and judicial powers are in different hands. In most of the monarchies of Europe the government is limited, because the prince, who has the first two powers, leaves the third to others; he makes laws and executes them, but he appoints other men to act as judges in his place. In the republics of Italy all three powers are united. The same body of magistrates makes the laws, executes them, and judges every citizen according to its pleasure; such a body is as despotic as an eastern prince.[Footnote: This judgment is somewhat softened as to Venice. The most conspicuous example in modern times of the tyranny of a single popular body is that of France under the Convention.] The judicial power, says Montesquieu (with the English jury in his mind), should not be given to a permanent senate, but exercised by persons drawn from the body of the people, forming a tribunal which lasts only as long as necessity may require it. In serious cases the criminal should combine with the law to choose his judges, or at least should have a right of challenge. The legislative and executive powers can with less danger be given to permanent bodies, because they are not exercised against individuals. He then commends representative government and the freedom left to members of Parliament in the English system. He believes the people more capable of choosing representatives wisely than of deciding questions, an opinion on which modern experience may have thrown some doubt. He approves of the existence of a second chamber, composed of persons distinguished by birth, wealth, or honors; for if such were mixed with the people and given only one vote apiece like the others, the common liberty would be their slavery, and they would have no interest in defending it, because it would oftenest be turned against themselves.[Footnote: Montesq., iv. 7 (liv. xi. c. 6).]
The government of France, says Montesquieu, has not, like that of England, liberty for its direct object; it tends only to the glory of the citizen, the state, and the prince. But from this glory comes a spirit of liberty, which in France can do great things, and can contribute as much to happiness as liberty itself. The three powers are not there distributed as in England; but they have a distribution of their own, according to which they approach more or less to political liberty; and if they did not approach it, the monarchy would degenerate into despotism.[Footnote: Montesq., iv. 24. (liv. xi. c. 7).] This sounds somewhat like an empty phrase; yet there undoubtedly were in Montesquieu's time some checks on the absolutism of a French monarch. "If subjects owe obedience to kings, kings on their part owe obedience to the laws," said the Parliament of Paris in 1753. And outside of its own boundaries France had long been considered a limited monarchy. [Footnote: Rocquain, 170. Machiavelli, ii. 140, 215, 322 (Discourses on the first ten books of Livy).] Apart from the limitations imposed by the privileges of the church and of the Parliaments, there appear to have been some acknowledged fundamental laws (the succession of the crown in the male line was one of them) which it would have been beyond the power of the sovereign for the time being to destroy. And public opinion, as Montesquieu has already told us, has power even in the most despotic countries. In a European nation, not broken in spirit by long-continued tyranny, and possessing the printing-press, this power must always be very great.
As for Montesquieu's admiration of the English form of government, it doubtless concurred with other causes to encourage on the Continent the study of English political methods. Those methods have since been adopted by many continental states, with hardly as many modifications to adapt them to local circumstances as might have been desirable. But it is the modern English constitution, in which power lies almost entirely in the House of Commons, and is exercised by its officers, that has been thus copied. In America the principle of the division of powers has been carried farther than it ever was in England; and is, of all parts of their form of government, that from which many intelligent Americans would be most loath to part.
We have seen enough of Montesquieu's attacks on the church. The most violent of them were made in his youth, and in a book avowedly satirical. In mature life, writing in a more philosophical spirit, his language is temperate and wise. "It is bad reasoning against religion," he says, "to bring together in a great work a long enumeration of the evils which she has produced, unless you also recount the good she has done. If I should tell all the harm which civil laws, monarchy, or republican government have done in the world, I should say frightful things."[Footnote: Montesq., v. 117 (liv. xxiv. c. 2).] This idea was far beyond the reach of Voltaire.
Montesquieu goes on to argue about different forms of religion. Mahometanism he holds especially suited to despotism, Christianity to limited governments. Catholicism is adapted to monarchies, Protestantism, and especially Calvinism, to republics. Where fatalism is a religious dogma, the penalties imposed by law must be more severe, and the watch kept on the community more vigilant, so that men may be driven by these motives who otherwise would abandon self-restraint; but if the dogma of liberty be established, the case is otherwise. Climate is not without influence on religion. The ablutions required of a Mahometan are useful in his warm country. The Protestant of Northern Europe has to work harder for a living than the Catholic of the South, and therefore desires fewer religious holidays. If a state can prevent the establishment of a new form of religion within its borders, it will find it well to do so; but if several religions are established, they should not be allowed to interfere with each other. Penal laws in religious matters should be avoided; for each religion has its own spiritual penalties, and to put a man between the fear of temporal punishment, on the one hand, and the fear of spiritual punishment on the other, degrades his soul. The possessions of the clergy should be limited by laws of mortmain.[Footnote: Ibid., v. 124-136 (liv. xxiv. c. 5-14).]
The spirit of moderation should be the spirit of the legislator. This Montesquieu declared to be the great theme of his book. Political good, like moral good, is always found between extremes.[Footnote: Montesq., v. 379 (liv. xxix. c. 1).]
It was this moderation which made the "Spirit of the Laws" distasteful to the more ardent Philosophers. Sharing in many of the feelings of his contemporaries, and especially in their distrust of the church, Montesquieu was yet unwilling to go to the same extremes as they. His chapter on Uniformity and the criticisms made on it by Condorcet, form an admirable instance of this.
"There are certain ideas of uniformity," says Montesquieu, "which sometimes take possession of great minds (for they touched Charlemagne), but which invariably strike small ones. These find in them a kind of perfection which they recognize, because it is impossible not to see it; the same weights in matters of police, the same measures in commerce, the same laws in the state, the same religion in all its parts. But is this always desirable without exceptions? Is the evil of changing always less than the evil of suffering? And would not the greatness of genius rather consist in knowing in what case uniformity is necessary, and in what case difference? In China, the Chinese are governed by the Chinese ceremonies, and the Tartars by Tartar ceremonies; yet this is the nation in all the world which is most devoted to tranquillity. So long as the citizens obey the law, what matters it that they shall all obey the same?"