Perhaps he was sensible, without perceiving it, of that justice which we dared to do him in the first volume of the Encyclopædia, when nobody as yet ventured to say a word in his defence. He prepared for us an article upon taste, which has been found imperfect among his papers. We shall give it to the public in that condition, and treat it with the same respect that antiquity formerly shewed to the last words of Seneca. Death
prevented him from giving us any farther marks of his beneficence; and, joining our own griefs with those of all Europe, we might write on his tomb,
Finis vitæ ejus nobis luctuosus, patriæ tristis, extraneis etiam ignotisque non sine cura fuit.
TACIT. in Agric.
ENDNOTES
[* ] It was a work in the form of letters, the purpose of which was to prove that the idolatry of most of the pagans did not appear to deserve eternal damnation.
[* ] See vol. iv. p. 115.
[* ] See this encomium in English, as we read it in the paper called the Evening Post.
“On the 10th of this month died at Paris, universally and sincerely regretted, Charles Secondat, baron of Montesquieu, and president à mortier of the parliament of
Bourdeaux. His virtues did honour to human nature, his writings justice. A friend to mankind, he asserted their undoubted and unalienated rights, with freedom, even in his own country, whose prejudices in matters of religion and government (we must http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
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remember it is an Englishman who speaks) he had long lamented, and endeavoured (not without some success) to remove. He well knew and justly admired the happy constitution of this country, where fixed and known laws equally restrain monarchy from tyranny, and liberty from licentiousness. His works will illustrate his name, and survive him, as long as right reason, moral obligation, and the true Spirit of Laws, shall be understood, respected, and maintained.”
[* ] The author of the anonymous and periodical paper, which we mentioned above, pretends to find a manifest contradiction between what we say here and that which we had said before, that M. de Montesquieu’s health was impaired by the slow and almost infallible effect of deep study. But why, when he was comparing the two places, has he suppressed these words, slow and almost infallible, which he had under his eyes? It is evidently because he perceived, that an effect, which is slow, is not a bit less real for not being felt immediately; and than, consequently, these words destroy that
appearance of contradiction which he pretends to point out. Such is the fidelity of this author in trifles, and for a stronger reason in more serious matters.
PREFACE.
IF, amidst the infinite number of subjects contained in this book, there is any thing which, contrary to my expectation, may possibly offend, I can at least assure the public that it was not inserted with an ill intention, for I am not naturally of a captious temper.
Plato thanked Heaven that he was born in the same age with Socrates; and, for my part, I give thanks to God 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 favour 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 labour 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 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 apply naturally to 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 endeavoured to assume the spirit of the ancients, lest I should consider those things as alike which are really http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
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different, and lest I should miss the difference of those which appear to be like.
I have not drawn my principles from my prejudices, but from the nature of things.
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 characterise the works of the present age. When things are examined with ever 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 any thing 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 into the entire constitution of a state.
It is not a matter of indifference that the minds of people be enlightened. The prejudices of the magistrate have arisen from national prejudice. In a time of ignorance they have committed 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 the reformation. They let the evil continue if they fear a worse; they are content with a lesser good if they doubt of 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 duty, his prince, his country, his laws; new reasons to render him more sensible, in every nation and government, of the blessings 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 knowlege in what they ought to prescribe; and those who obey, to find a new pleasure resulting from their 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 prejudice, I here mean, not that which renders men ignorant of some particular things, but whatever renders them ignorant of themselves.
It is in endeavouring to instruct mankind that we are best able to practise that general http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
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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 knowing 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 undertaking. I have a thousand
*
times given the leaves I have written to the winds; 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 had once
discovered my first principles, every thing I sought for appeared; and, in the course of twenty years, I have seen my work begun, growing up, advancing 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 both in France and Germany have written before me, I have been lost in admiration, but I have not lost my courage; I have said,
*
with Corregio, And I also am a painter.
ENDNOTES
[* ] Ludibria ventis.
[† ] Bis patriæ cecidere manus. —
[* ] Ed io anche son pittore.
THE SPIRIT OF LAWS.
BOOK I. OF LAWS IN GENERAL.
CHAP. I.
Of the Relation of Laws to different Beings.
LAWS, in their most general signification, are the necessary 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 intelligence 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 http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
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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 primitive 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 which 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 relative to his wisdom and power.
Since we observe that the world, though formed by the motion 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, supposeth laws as invariable as those of the fatality of the atheists. It would be absurd to say, that the Creator might govern the world without those rules, since without them it could not subsist.
These rules are a fixed and invariable relation. In bodies moved, the motion is received, increased, diminished, lost, according to the relations of the quantity of matter and velocity: 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 antecedent to the positive law by which they are established: as for instance, that, 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 shew 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 requires them to be free agents. Hence they do not steadily http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
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conform to their primitive laws; and even those of their own instituting 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.
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; positive 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 transgresses 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 ignorance and error: even his imperfect knowledge he loseth; 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 forget 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.
CHAP. II.
Of the Laws 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 Creator, inclines us toward 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 knowledge. Plain it is http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
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that his first ideas would not be of a speculative nature: he would think of the preservation of his being before he would investigate its original. 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 equality, 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.
Hobbes enquires, “For what reason men go armed, and have locks and keys to fasten their doors, if they be not naturally in a state of war?” But is it not obvious, that he attributes to 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 another; 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 attraction arising from the difference of sexes would enhance this pleasure, and the natural inclination they have for each other would form a third law.
Beside the sense or instinct which man possesses in common with brutes, he has the advantage of acquired knowledge; and thence arises a second tie, which brutes have not. Mankind have therefore a new motive of uniting, and a fourth law of nature results from the desire of living in society.
CHAP. III.
Of positive Laws.
AS soon as mankind enter into a state of society, they lose the sense of their weakness; http://oll.libertyfund.org/Texts/Montesquieu0187/CompleteWorks/0171-01_Bk.html
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equality ceases, and then commences the state of war.
Each particular society begins to feel its strength; whence arises a state of war betwixt different nations. The individuals likewise of each society become sensible of their force: hence the principal advantages of this society they endeavour to convert to their own emolument; which constitutes a state of war betwixt individuals.
These two different kinds of states give rise to human laws. Considered as inhabitants of so great a planet, which necessarily contains a variety of nations, they have laws relative to their mutual intercourse, which is what we call the law of nations. As members of a society that must be properly supported, they have laws relative to the governors and the governed; 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 possible, 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 preceding principle all those rules are derived which constitute the law of nations.
All countries have a law of nations, not excepting the Iroquois 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.
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 paternal 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 be relative to a single government, that of brothers after the death of a father, and that of cousin-germans after the decease of brothers, refer to a
government of many. The political 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 humour and disposition of the people in whose favour it is established.
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The strength of individuals cannot be united without a conjunction 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 is a great chance if those of one nation suit another.
They should be relative to the nature and principle of each government; whether they form it, as may be said of political laws; or whether they support it, as in the case of civil institutions.
They should be relative to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen, or shepherds: they should have a 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 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 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; for, 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 have to different objects, it is not so much my business to follow the natural order of laws, as that of these relations and objects.
I shall first examine the relations which laws have to the nature and principle of each government: and, as this principle 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 from thence as from their source. I shall proceed afterwards to other more particular relations.
Endnotes
[* ] “Law,” says Plutarch, “is the king of mortal and immortal beings.” See his treatise, entitled, A Discourse to an unlearned Prince.
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[* ] Witness the savage found in the forests of Hanover, who was carried over to England under the reign of George I.
BOOK II. OF LAWS DIRECTLY DERIVED FROM THE NATURE OF
GOVERNMENT.
CHAP. 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 every thing 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.
CHAP. II.
Of the republican Government, and the Laws relative to Democracy.
WHEN the body of the people is possessed of the supreme power, this is called a democracy. When the supreme power is lodged in the hands of a part of the people, it is then an aristocracy.
In a democracy the people are in some respects the sovereign, and in others the subject.
There can be no exercise of sovereignty but by their suffrages, 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 indeed it is as important to regulate, in a republic, in what manner, 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.
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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 assemblies; 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 to ten thousand. But Rome, designed by Providence to rise from the weakest beginnings 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; 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
every thing within their reach: what exceeds their abilities must be conducted by their ministers.
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 members; 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 tell when a person has fought many battles, and been crowned with success; they are therefore very capable of electing a general. 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 prætor. They are struck with the magnificence or riches of a fellow-citiz