Montesquieu by Courtenay Ilbert

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A.\%x6>2>4-HENRY FROWDE, M.A.

PUBLISHER TO THE HNIVEESITV OF OXFORDLONDON, EDINBURGH

NEW YORK


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MONTESQUIEUWhen Sainte-Beuve sat down, in the year 1852, to

write a causerie about Montesquieu, he gave as a reasonfor not having dealt with the subject before thatMontesquieu belonged to the class of men whom oneapproaches with apprehension on account of the respectwhich they inspire, and of the kind of religious halowhich has gathered round their names.This was written more than fifty years ago, and thelanguage reflects the glamour which still attached to

Montesquieu's name during the first half of the nine-teenth century. That glamour has now passed away.Not that Montesquieu has died, or is likely to die. Buthe is no longer the oracle of statesmen ; his Spirit ofLaws is no longer treated by framers of constitutionsas a Bible of political philosophy, bearing with it thesame kind of authority as that which Aristotle boreamong the schoolmen. That authority ended whenthe greater part of the civilized world had been endowedwith parliamentary and representative institutionsframed more or less on the model which Montesquieuhad described and had held up for imitation. Theinterest which attaches to him now is . of a differentorder. It is literary and historical. He lives as oneof the greatest of French writers, and his Considerationson the Greatness and Decay of the Romans are stillread as a school classic by French boys and girls,much as the masterpieces of Burke are, or ought to be,

a 2


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4 Montesquieu.read iri English schools. To the student of politicalhistory he is known as the source of ideas whichexercised an influence of incomparable importance inthe framing of constitutions both for the old and forthe new continent. And for the student of politicalscience, his work marks a new departure in methods ofobservation and treatment. The Spirit of Laws hasbeen called the greatest book of the eighteenth century:its publication was certainly one of the greatest eventsof that century.

If it were necessary for me to offer an apologyfor taking Montesquieu as my subject to-day I mightplead, first, that no student of history or of politicalor legal science can afford to disregard one who hasbeen claimed, on strong grounds, as a founder of thecomparative method in its application to the study ofPolitics and of Law; next, that some recent publica-tions 1 have thrown new and interesting light both onhis character and on his methods of work ; and lastlythat one cannot return too often to the consideration ofa really great man. Moreover, it may be suspectedthat, in this country at least, and at the present day,Montesquieu belongs to the numerous class of authorswhom everybody is supposed to know but whom veryfew have read. It will, of course, be impossible for meto do more than touch on a few of the aspects of sucha many-sided man.Let me begin by reminding you of the leading dates

and facts in Montesquieu's life, so far only as isnecessary for the purpose of ' placing ' him historically 2 .

1 The Collection Bordelaise referred to in note 2.a The fullest life of Montesquieu is that by L. Vian, Histoire de

Montesquieu, Paris, 1878. But it is inaccurate and uncritical, and


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Montesquieu. 5Charles Louis de Secondat was born in 1689, a yearafter the Revolution which ended the Stuart dynasty,five years before the birth of Voltaire, 100 years beforethe outbreak of the French Revolution. He died in1755, four years after the publication of the first volumeof the French Encyclopedia, the year before the SevenYears' War, five years before George III came to thethrone, and seven years before Rousseau preached tothe world, in the first chapter of his Social Contract,that man is born free and is everywhere in chains.His birth-place was the Chateau of La Brede, athirteenth-century castle some ten miles from Bor-deaux 1 . Thus he was a countryman of Montaigne,has been severely criticized by M. Brunetiere {Revue des deuxMondes, 1879). The best contemporary appreciation of Montes-quieu is by the Marquis d'Argenson (Me'moires, p. 428, edition ot1825). The standard edition of Montesquieu is that by Laboulayein 7 vols., Paris, 1873-9. This must now be supplemented bythe 'Collection Bordelaise,' which contains further materialssupplied by the Montesquieu family, and which includes Deuxopuscules de Montesquieu, 1891 : Melanges inedits de Montesquieu,1892: Voyages de Montesquieu, 2 vols., 1894: Pensees et fragmentsine'dits, 2 vols., 1899, 1901. The literature on Montesquieu isvery extensive. A list of books, articles, and e'loges relating tohim will be found in an appendix to Vian's Histoire. Amongsubsequent works the first place is taken by M. Sorel's Montesquieuin the series called Les grands ecrivains francais, a little bookof which I can only speak with the most respectful admiration.Reference may also be made to Oncken, Zeitalter Friedrichs desGrossen, i. 80, 457 : Taine, Ancien Regime, pp. 264, 278, 339 : Janet,Histoire de la science politique, vol. ii : Faguet, Dix-huitieme siecleFaguet, La politique compare'e de Montesquieu, Rousseau et VoltaireBrunetiere, Etudes critiques sur Fhistoire de la litte'rature francaise,4me serie : Flint, The Philosophy of History, 262-79 ; Sir LeslieStephen, English Thought in the Eighteenth Century, i. 186 : HenrySidgwick, The Development of European Polity : Sir F. Pollock,History^ oj the Science\ofPolitics.^Sixteen and a half miles by railway.


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6 Montesquieu.with whom he had many affinities. His family wasnoble, and belonged to that more modern branch of thenobility which had acquired its fortunes from theexercise of judicial or financial functions, and whichwas known as the noblesse de la robe. Therefore he wasa member of one of the two privileged classes whichunder the old regime owned between them some two-fifths of the soil of France, and were practically exemptfrom all the burdens of the state.On his mother's death he was sent as a boy of sevento the Oratorian College at Juilly near Meaux, andremained there eleven years. He then studied law,and in 1714, at the age of twenty-five, was made coun-sellor of the Parlement of Bordeaux, that is to saymember of the Supreme Court of the province ofGuienne. In the next year he married a Protestantlady. The following year, 1716, made a great differencein his fortunes. His uncle died, and he succeeded tothe barony of Montesquieu, to a considerable landedproperty, and, above all, to the dignified and lucrativepost of President a Mortier, or Vice-President, of theParlement of Bordeaux, a post which the uncle hadacquired by purchase, and which the nephew retaineduntil he parted with it to another purchaser in 1726.His judicial duties were such as to leave him a gooddeal of leisure. After the fashion of his time hedabbled in physical science. The papers which he readbefore the newly established Academy of Bordeauxwere of no scientific value, but they influenced his sub-sequent political speculations, and supplied a sufficientexcuse for his election during his English visit to afellowship in our Royal Society 1 . His real interests

1 He was elected February 12, 1729 (old style). Proposed by


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Montesquieu, 7lay neither in law nor in physics, but in the study ofhuman nature. His first book, the Persian Letters,appeared in 1721. He resigned his judicial office in1726, and became a member of the Acade'mie franfaiseat the beginning of 1728. The next three years werespent in travel, and his travels ended,with a stay ofnearly two years in England. The Grandeur etdecadence des Romains appeared in 1734, and theEsprit des lots in 1748. He died, as I have said, inI755

:His personal appearance is known to us from theexcellent medallion portrait by Dassier, executed in1752. Aquiline features, an expression, subtle, kindly,humorous. He was always short-sighted, and towardsthe end of his life became almost entirely blind. ' Youtell me that you are blind,' he writes to his old friendMadame du Deffand, in 1752 : ' Don't you see we wereboth once upon a time, you and I, rebellious spirits,now condemned to darkness? Let us console our-Dr. Teissier and recommended by M. Ste-Hyacynthe and thePresident (Sir Hans Sloane). He refers to his reception ina letter to Pere Cerati, dated London, March i, 1730 (new style).Among the documents of the Royal Society is the copy of a letterfrom Montesquieu to Sir Hans Sloane, dated Paris, August 4, 1734,and enclosing copies of his book on the Grandeur et decadence desRomains. The M. Ste-Hyacynthe, who figures as Montesquieu'sbacker, must have been the 'Themiseul de Ste-Hyacinthe, thehalf-starved author of the Chef-d'oeuvre d'un inconnu, who, afterhaving served, if we may believe Voltaire, as a dragoon duringthe persecution of the French Protestants, had crossed over toEngland, there had been converted, had translated Robinson Crusoe,and, though always a destitute wanderer, had been nominateda member of the Royal Society of London ' (Texte, Jean-JacquesRousseau, and the Cosmopolitan Spirit in Literature, translated byJ. W. Matthews, p. 18). The English translation of this bookembodies additions to, and corrections of, the original work.


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8 Montesquieu.Selves by the thought that those who see clearly arenot for that reason luminous 1 .'The three books to which Montesquieu owes hisfame are the Persian Letters, the Considerations on theGreatness and Decay of the Romans, and the Spirit ofLaws. Of these the first appeared during the Regency,that period of mad revel which followed the gloomyclose of Louis XIV's reign. The second was publishedunder the ministry of that aged and suspicious despot,Cardinal Fleury, when it was safer to speculate aboutancient history than about contemporary politics orsociety. The last appeared under the rule of Madamede Pompadour, when the Encyclopaedists had begunthat solvent work of theirs which prepared the wayfor the French Revolution. It should be added thatall the three books were published anonymously, andprinted in foreign countries, the first two at Amsterdam,the last at Geneva.

In order to trace the origin and development ofMontesquieu's conceptions, and the course and ten-dency of his thoughts, the three books must be readconsecutively, and must be supplemented by what we

I know of his studies and experiences during their' preparation. For this knowledge very interestingadditional materials have been supplied by the recent

i

1 The Earl of Chariemont, who, as a young man, made a tourthrough the South of France, either in 1755, or in the latter part of1754 (the dates are not quite clear), has left a delightful descriptionof a visit which he and a friend paid to Montesquieu at La Brede.He found, instead of a ' grave, austere philosopher,' a ' gay, polite,sprightly Frenchman,'who took his visitors for a walk through hisgrounds, and being unable to find the key of a padlocked three-foot bar, solved the difficulty by taking a run and jumping overit.Hardy, Memoirs ofEarl of Chariemont, i. 60-73.


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Montesquieu. 9publication of the manuscripts which had for manyyears been preserved in the family archives of theMontesquieu family. They include the journals of travelwhich Sainte-Beuve said he would sooner have thanthe Spirit of Laws, and the three quarto- volumes ofPensees in which Montesquieu stored materials for his/published works.The Persian Letters supply a clue to the plan of theSpirit of Laws, and contain the germs of many of the

ideas which were subsequently developed in that book.They are the work of a young man. They profess tobe written, and were probably composed or sketched, atdifferent dates between 171 1 and 1720 J , that is to say,

1 The view that the composition of the Letters extended overseveral years is confirmed by internal evidence. The correspon-dence changes in character as it goes on. Compare for instancethe apologue of the Troglodytes in Letters xii to xiv with thespeculations as to the origin of republics in Letter cxxxi, or withthe comparative view of the political development and character-istic features of different European states in Letters cxxxiii tocxxxvii. The Troglodytes are a community that perished throughdisregard of the rules of equity, but was restored to prosperity bytwo wise survivors who preached that justice to others is charityto ourselves. After the lapse of some generations their descen-dants, finding the yoke of republican virtue too hard, ask for a king,and are reproved for doing so. The apologue is interesting becauseit contains phrases which recur and ideas which are developed inthe Spirit of Laws. But it is very youthful and abstract. Betweenthe date of the Troglodyte letters and that of the later letters thewriter had read much, observed much, and reflected much. Orcompare again the story of the travellers and the rabbit with the.later observations on the advantage of having more than onereligion in a state and on the duty of respecting and toleratingeach. The lively personal sketches become more rare: morespace is devoted to the discussion of serious problems such asthe causes and effects of the decrease of population in Europesince the flourishing days of the Roman Empire. The writeris no longer content with noting and criticizing : he begins to draw


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io Montesquieu.during the last four years of Louis XIV's reign, and thefirst five years of the Regency, and they describe theimpressions of three Persians who are supposed to betravelling in Europe at that time. There is an elder,Usbek, who is grave and sedate, a younger, Rica,who is gay and frivolous, and a third, Rhedi, whodoes not appear to have got further westward thanVenice.The device was not new, but it had never been

employed with such brilliancy of style, with such fineirony, with such audacity, with such fertility of sugges-tion, with such subtlety of observation, with suchprofundity of thought. And it was admirably adaptedfor a writer who wished to let his mind play freely onmen and manners, to compare and contrast thereligious, political and social codes of different coun-tries, to look at his manifold subject from differentpoints of view, to suggest inferences and reflections,and to do all this without committing himself to ormaking himself responsible for any definite proposition.Any dangerous comment could be easily qualified bya note which explained that it merely represented theMahommedan or the Persian point of view.\ There were a great many dangerous passages.There was the famous letter about the Two Magicians,conclusions. In short, the feuilletonist is ripening into the philo-sophical historian and the political philosopher. But at this stagehis political philosophy has perhaps not advanced beyond thepoint indicated by a passage in Letter lxxxi. ' I have often setmyself to think which of all the different forms of governmentis the most conformable to reason, and it seems to me that themost perfect government is that which guides men in the mannermost in accordance with their own natural tendencies andinclinations.'


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Montesquieu. iiwhich nearly cost Montesquieu his election to theAcademy.

' The king of France is the most powerful prince in JEurope. He has no gold mines, like his neighbour theking of Spain, but he has greater riches because hedraws them from an inexhaustible minethe vanity ofhis subjects. He has undertaken and carried on greatwars without funds except titles of honour to sell, and,through a prodigy of human pride, his troops havefound themselves feared, his fortresses built, his fleetsequipped. Moreover he is a great magician. Hisempire extends to the minds of his subjects : he makesthem think as he wishes. If he has only one millioncrowns in his treasure chest and he wants two, he hasmerely to tell them that one crown is equal to two, andthey believe it. If he has a difficult war to carry onand has no money, he has merely to put it into theirheads that a piece of paper is money, and they are con-vinced at once. But this is no such marvel, for there isanother still greater magician, who is called the Pope,and the things which he makes people believe are even .more extraordinary.'Then there was the description of the old king, with

his minister of eighteen, and his mistress of eighty 1 ,surrounded by a swarm of invisible enemies, whom, inspite of his confidential dervishes, he could neverdiscover. There were many references to religion, /mostly irreverent, though not with the fierce and bitterirreverence of Voltaire. Usbek finds imperfect andtentative approximations to Mahommedanism in manyof the Christian dogmas and rites, and ascribes to the

1 The references, of course exaggerated, were to Barbezieux andMme de Maintenon.


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12 Montesquieu.finger of Providence the way in which the world isbeing thus prepared for general conversion to the creedof Islam. About diversities of ceremonial belief he hasnaturally much to say. 'The other day I was eatinga rabbit at an inn. Three men who were near me mademe tremble, for they all declared that I had committeda grievous sin, one because the animal was impure, andthe second because it had been strangled, and the thirdbecause it was not a fish. I appealed to a Brahmin,who happened to be there and he said, ' They are allwrong, for doubtless you did not kill the animal your-self.' ' But I did.' ' Then your action is damnable andunpardonable. How did you know that your father's

vsoul has not passed into that poor beast ?Neither the burning question of the Bull Unigenitus 1,nor Law and his scheme, is left untouched.S He pursues a somewhat less dangerous path, thoughstill a path paved with treacherous cinders, when hesketches, after La Bruyere's manner, contemporarysocial types, the 'grand seigneur' with his offensivemanner of taking snuff and caressing his lap-dog, theman ' of good fortunes,' the dogmatist, the director ofconsciences who distinguishes between grades of sin,and whose clients are not ambitious of front seats inParadise, but wish to know how just to squeeze in.There are also national types, such as the Spaniard,whose gravity of character is manifested by hisspectacles and his moustache, and who has little formsof politeness which would appear out of place inFrance. The captain never beats a soldier without

1 Horace Walpole complained once that he found life in Englandso dull that he must go to Paris and try and amuse himself withthe Bull Unigenitus.


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14 Montesquieu.descendant of the Hapsburgs, had recently publishedhis Pragmatic Sanction, was straining every nerve tosecure the succession for his daughter Maria Theresa,and was wrangling with the ' Termagant of Spain ' forthe reversion of the Duchies of Modena and Parma.Frederick William of Prussia was recruiting hisgrenadiers, holding his tobacco parliaments, and nego-tiating his double marriage project. In Italy, thecommercial republics of Venice and Genoa were sinkinginto decay, Piedmont was emerging as a military power,Florence was under the last of the Medici GrandDukes. In England, Walpole had secured the con-fidence of the new king through the influence of hiscapable queen, and was doing his best, with the help ofCardinal Fleury, to maintain the peace of Europe.Montesquieu started from Paris in April in the

company of Lord Waldegrave, Marshal Berwick'snephew, who had recently been appointed ambassadorto the imperial court at Vienna. He travelled throughAustria and Hungary, thence went to Venice \ visitedin turn all the petty states into which Italy was thendivided, spent several months at Florence, where hedevoted himself mainly to art, and made even a longerstay at Rome, to which he returned after Naples. Of

N his last interview with the Pope a story is told, for1 The well-known story, repeated by Vian, of the trick playedby Lord Chesterfield on Montesquieu at Venice seems to be a fable

(see the remarks in the preface to Montesquieu's Voyages in theCollection Bordelaise, i. p. xxiv). It may perhaps be traced to agossipy letter written by Diderot to Mile Voland on Sept. 5, 1762(Diderot, (Euvres, xix. p. 127). We know from the ChesterfieldLetters that when Montesquieu was at Venice (Aug. 16-Sep. 14, 1728)Chesterfield was writing to Mrs. Howard and Lord Townshendfrom the Hague.


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Montesquieu. 15which one could wish there were better evidence 1 .The Pope expressed a wish to do something for hisdistinguished visitor, and at last offered him for himselfand his family a perpetual dispensation from fasting.The next day a papal official called with a bull of dis-pensation made out in due form, and an account of thecustomary fees. But the thrifty Gascon waved awaythe parchment. ' The Pope is an honest man,' he said'his word is enough for me, and I hope it will be,enough for my Maker.'After leaving Itajy he visited Munich arid Augsburg,

travelled by Wurtemberg and the Rhine countries toBonn, the residence of the Elector and Archbishop ofCologne, had an interview with our king George II atHanover, explored the Hartz country (on whose mineshe wrote a paper), and thence went to the Low Countries.At the Hague he met Lord Chesterfield, who was thenBritish Ambassador, and was on the point of takingleave for England, where he hoped to be made Secretaryof State. Montesquieu sailed with him in his yacht onthe last day of October 1729, and remained in Englanduntil some time in 1731.A distinguished German historian 2, who takes arather depreciatory view of Montesquieu, says thathe travelled rather as a tourist than as a student.The journals of travels and copious notes which havebeen recently given to the world by the Montesquieufamily do not bear out this statement. Probably no

1 The story is told by Vian, but is doubted by the Editors of theVoyages (Pref. p.xxviii). Vian is responsible for much apocrypha.But apocryphal stories are of historical value as illustratingMontesquieu's reputation among his contemporaries.2 Oncken, Zeitalter Friedrichs des Grossen, i. 463.


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16 Montesquieu.man ever started on his travels better equipped byreading and observation, or with a more definite notionof what he wanted to see, hear, and know, or hadbetter opportunities for finding out what was mostworth knowing.

Montesquieu had already travelled in imaginationthrough the countries which he was to visit in theflesh. In one of the earlier Persian Letters, writtenlong/before Montesquieu left France, Rhedi describeshis sojourn at Venice. ' My mind is forming itselfevery day. I am instructing myself about the secretsof commerce, the interests of princes, the forms ofgovernment. I do not neglect even European supersti-tions. I apply myself to medicine, physics, astronomy.I am studying the arts. In fact I am emerging fromthe clouds that covered my eyes in the country of mybirth.'That was the programme sketched out in advance,

and he had excellent opportunities for carrying it out.At Vienna he spent ' delightful moments * ' with thatgreat captain, Prifice Eugene of Savoy. At Venice hehad long conversations with two famous adventurers,the Comte de Bonneval, and the Scotchman, Law. AtRome he made the acquaintance of Cardinal Alberoniand the exiled Stuarts. At Modena he conversed withthe great antiquarian, Muratori. In England LordChesterfield's introduction brought him at once intothe best political and social circles. His English jour-nals, if they ever existed, are lost, and for our knowledgeof his English experiences we are mainly dependent onthe scanty but witty Notes on England, which werefirst published in 1818, and on the numerous references

1 Letter to Abbe de Guasco of Oct. 4, 175a.


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Montesquieu. 17to English books, persons and things which are scatteredup and down his recently published Pensdes. But weknow that he attended some exciting debates in Par-liament, and we know also how profoundly his studyof English institutions influenced the Spirit ofLaws.On the preparation for that great work Montesquieu Iwas engaged for the next seventeen years of his life. IIn 1734 appeared the Considerations on the Greatness 1and Decay of the Romans, which might be treated asja first instalment of its contents. Machiavelli hadtreated Roman history from the point of view of a|practical statesman, and had used it as a storehouseof warnings and examples for the guidance of an Italianprince. ' Chance,' he said, ' leaves great room for pru-dence in shaping the course of events.' Bossuet wroteas a theologian, and sought for evidence of ' the secret Jjudgements ofGod on the Roman empire.' Montesquieuwrote as a political philosopher, and tried to find in the'history of a particular state the application of certainbroad general principles. ' It is not fortune that rules,the world. There are general causes, moral or physical,^on which the rise, the stability, the fall of governmentsdepend. If a state is ruined by the chance of a singlebattle, that is to say by a particular event, the possibilityof its being so ruined arises from some general cause,and it is for these causes that the historian should seek.'In this short treatis.e Montesquieu's style perhaps reachesits highest level. He is not distracted by a multiplicityof topics ; the greatness, dignity and unity of his subjectgive force, character, and continuity to his style. Hissentences march like a Roman legion.

' The work of twenty years.' So Montesquieu de- \


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18 Montesquieu.of travel. And he describes also how the scheme ofthe book originated, and how it was developed. ' I beganby observing men, and I believed that in their infinitediversity of laws and manners they were not exclusivelyled by their fancies. I. laid down general principles,and I saw particular cases yield to them naturally.I saw the histories of all nations appear as the con-sequence of these principles, and each particular law

lbound with another law, or proceed from one more

i general. ... I often began and often dropped the workI followed my object without forming a plan. I wasconscious of neither rule nor exceptions : but when

\ I had discovered my principles, everything that f sought1 came to me. In the course of twenty years I saw my1Work begin, grow, advance, and finish.'\ What, then, are the principles which after so longand painful a search, Montesquieu ultimately found?In brief, they are these. The world is governed, notby chance, nor by blind fate, but by reason. Of thisreason, the laws and institutions of different countriesare the particular expressions. Each law, each institu-tion, is conditioned by the form of government underwhich it exists, and which it helps to constitute, and byits relations to such facts as the physical peculiarities ofthe country, its climate, its soil, its situation, its size;the occupations and mode of life of the inhabitants, andthe degree of liberty which the constitution can endurethe religion of the people, their inclinations, number,wealth, trade, manners and customs ; and finally by itsrelations to other laws and institutions, to the object ofthe legislator, to the order of things in which it isestablished. It is the sum total of these relations thatconstitutes the spirit of a law. The relativity of laws


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Montesquieu. 19that is Montesquieu's central doctrine. There is noone best form of state or constitution : no law is goodor bad in the abstract. Every law, civil and political,must be considered in its relations to the environment,and by the adaptation to that environment its excellencemust be judged. If you wish to know and understandthe spirit of a law, its essence, its true and inner mean-ing, that on which its vitality and efficiency depend, you Imust examine it in its relations to all its antecedents Iand to all its surroundings. This is the theme which /Montesquieu tries to develop and illustrate in the course Iof his book.He begins with the relations of laws to differentforms of government. There are three kinds of govern-mentrepublics, with their two varieties of democracyand aristocracy, monarchies, and despotisms. Thethreefold division is, of course, as old as Plato andAristotle, but the mode of distribution is new, and isnot easily to be defended on scientific grounds. Jhitthe historical explanation of the distribution is quitesimple. Montesquieu was thinking of the three maintypes of government with which he was familiar throughstudy or observation. By a republic he meant the citystates of the Greek and Roman world, and also suchmodern city states as Venice and Genoa. Monarchywas the limited monarchy of the West, which stillpreserved traditions of constitutional checks, but whichwas, in most countries, tending to become absolute.Despotism was the unbridled, capricious rule of theeastern world. Each form of government has its peculiar principleor mainspring. The principle or mainspring of de-mocracy is virtue (by which he practically meant 'public

b 2


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20 Montesquieu.spirit'), of aristocracy moderation, of monarchy honour,of despotism fear. These are the principles whichmust be borne in mind in framing laws for each statejHaving exhausted this branch of the subject, he goeson to consider laws in their relation to the militaryforce, political liberty, taxation, church, soil, mannersand customs, commerce, finance, religion. It is underthe heading of political liberty that are to be found thefirst of the two famous chapters on the English constitu-tion, and the famous arguments on the necessity forseparating the three powers, legislative, executive andJudicial.

Nothing is further from my purpose than to enter ona detailed analysis of the Spirit of Laws. Indeed, thereare few books which it is less profitable to analyse.The spirit evaporates in the process. The value of thebook consists, not in the general scheme of arrangementand argument, which is open to much criticism, but inthe subtle observations and suggestions, the profoundand brilliant reflections, with which it abounds. And-the questions which are of most interest to us are, first,What was the cause of the rapid and enormous influencewhich the book exercised on political thought in allparts of the civilized world? and, secondly, Whatwas the nature and what were the main effects of thatinfluence ?

But before passing to these questions I should liketo touch on ^one or two points which must be borne inmind by all who read Montesquieu.

In the first place he was an aristocrat, a member ofa privileged, exclusive, and fastidious class. He wasno upstart of genius like Voltaire, who could be insultedwith impunity by a sprig of nobility. He belonged


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22 Montesquieu.judges and magistrates for France. Not that he wroteas a lawyer. For some fourteen years he was amember of the judicial bench known as the Parlementof Guienne, and in that capacity administered Romanlaw, such of the Royal Ordinances as extended to hisprovince, and no less than ten different local customs.But he did not take much interest in the technical sideof his professional work, and it may be doubtedwhether his judgements, if reported, would have carriedmore weight with his professional brethren than thoseof his distinguished predecessor on the same benchMontaigne. Nor did he take any active part in thescientific work in which the great French lawyers ofthe eighteenth century were engaged. That work Wasdigesting, expressing, and systematically arranging theprinciples of the customary law and the modernizedRoman law, and thus collecting the materials andpreparing the- framework for the codes of the revolu-tionary and Napoleonic eras. The leaders in this workwere the great Chancellor d'Aguesseau and Pothier.But Montesquieu does not, so far as I am aware, makeany reference to Pothier or his school at Orleans, andhis relations to d'Aguesseau were scanty and formal.Indeed, between the lively President and the graveChancellor 1 there was little in common. If Montesquieuhad lived in the latter half of the nineteenth century, hewould not, we may feel sure, have got on with LordCairns. It was Voltaire, and not Montesquieu, thatpreached the duty of unifying French law, and Montes-quieu's personal preference would probably have beenfor diversity rather than for uniformity. But Montesquieu

1 See d'Argenson's sketch of d'Aguesseau : Mimoires (edition of1825), p. 152.


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Montesquieu. 23was a great ' Parliamentarian ' in the French sense ofthe word. He attached great political importance tothe existence of a 'dep6t of law,' entrusted to thecustody of an organized independent body, and hescandalized Voltaire by defending the system of pur-chasing judicial offices as the best practical security forjudicial independence.And lastly Montesquieu wrote with the Censor andthe Index always before his eyes. Hence the allusive

and hypothetical style, which in some of his imitatorsbecame a mannerism. This characteristic is nowherebetter illustrated than in the chapter on the Englishconstitution. It is headed 'Of the constitution ofEngland,' but the text of the chapter consists of anumber of 'ifs' and 'oughts.' Such and such anarrangement ought to exist. If such an arrangementwere made it would lead to political liberty. It is notuntil the concluding paragraphs that the English arespecifically mentioned, and then only in a guardedmanner. ' It is not for me to examine whether theEnglish actually enjoy this liberty or not. It is sufficientto say that it is established by their laws, and I seek nomore.' In Montesquieu's time it was not always safeto dot your 'i's.' And that his nervousness was notunfounded is shown by the fact that, notwithstandinghis precautions, his book found its way on to the Index,and remained for two years under the ban of the civilcensor.And now to come back to the main problem. How

was it that a book with such obvious and glaring defectsexercised an influence so enormous? ^The leadingdefinitions are loose arid vague; the treatment is un-methodical and uncritical; half the statements of fact


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24 Montesquieu.are inaccurate ; half the inferences are mere guesses.And yet it changed the thought of the world. What isthe explanation of this paradox ljMuch, no doubt, was due to charm of style. If you

want to be read, still more if you want to be widelyread, you must be readable. In Montesquieu's time,books on political and legal science were, as a rule,unreadable. But the Spirit of Laws was, and still is,an eminently readable book. No one before Montes-quieu had dealt in so lively and brilliant a manner withthe dry subject of laws and political institutions. Thebook reflects the personality of the writer. His per-sonality is not obtruded in the foreground, like that ofMontaigne, but it is always present in the background,and its presence gives a human interest to an abstracttopic. You see the two sides of the author ; the favour-ite guest of Parisian salons, and the solitary student,the desultory and omnivorous reader. He lived, wemust remember, in an age when conversation wascultivated as a fine art. That untranslatable word' esprit,' which was in the mouth of every eighteenthrcentury Frenchman, meant, in its narrowest and mostspecial sense, the essence of good conversation 1 - Mon-tesquieu had, like other Frenchmen of his time, thoughtmuch about the art of conversation, and had practisedit in the best salonswhere, however, he had the reputa-tion of being more of a listener than a talkerand the

1 ' L'esprit de conversation est ce qu'on appelle de l'esprit parmiles Francais. II consiste a (sic) un dialogue ordinairement gai,dans lequel chacun, sans s'6couter beaucoup, parte et repond, etou tout se traite d'une maniere coupee, prompte et vive. . , . Cequ'on appelle esprit chez les Francais n'est done pas de l'esprit,mais un genre particulier de l'esprit. 'Montesquieu, Pensees (Col-lection Bordelaise), ii. 302, 303.


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Montesquieu. 25rules that he laid down for good writing are practicallythe rules for good conversation. ' To write well/ hesays somewhere, ' you must skip the connecting links,enough not to be a bore, not so much as tp beunintelligible 1 .' Hence his book is not so much adissertation as a causerie. It rambles pleasantly andunmethodicallyfrom point to point,welcomes digressions,and often goes off at a tangent. You feel yourself inthe presence of a learned, witty, and urbane talker, whodoes not wish to monopolize the talk, but desires toelicit that free, responsive play of thought which isessential to good conversation. ' I don't want to ex-haust the subject,' he says, ' for who can say everythingwithout being a deadly bore V And again, ' My objectis not to make you read ; but to make you think VBut Montesquieu is also a man of the closet, a man

who spent long, solitary hours in his library at LaBrede 4, filling note-books with copious extracts, andcondensing his thoughts in maxims and reflections.And he is too often unable to resist the temptation ofutilizing the contents of his note-books without con-sidering sufficiently whether they are relevant to orassist the progress of his argument. Indeed, he isessentially a ' fragmentary ' thinker, sententious ratherthan continuous, and constitutionally reluctant, perhapsunable, to follow out persistently long trains of thought.But these peculiarities, though they detract from thescientific merit of his book, make it more readable. So

1 Pense'es, il. 14.3 Esprit des lots, Preface.8 Ibid., book xi, ch. xx.* A description of the contents of Montesquieu's library is givenby Brunet in the Collection Migne : Troisieme encycloptdie the'o-

logique, tome 24, col. 344.


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26 Montesquieu.also do the little asides by which he takes his readersinto his confidence, as when he reminds himself that ifhe dwells too much on the absence of any need forvirtue in a monarchy, he may be suspected of irony, orwhen he gives expression to the feelings of lassitudeand discouragement which overtake him towards theend of his task.Charm of style, then, counts for much in explainingMontesquieu's influence. Burfreshness and originality

count for much more. The octhodox^vay of dealingwith a subject of ^politkalr or legal science was to startfrom general propositions laid down authoritatively, andderived either from Aristotle, or, more often, from theRoman jurists, and to deduce from them certain generalconclusions. Bodin's great treatise on the Republic, towhich Montesquieu was much indebted, especially forhis theory on the influence of climate, was framed onthese lines. But Montesquieu broke away from the oldlines. ^ His starting-point was different. He began~at-the other-end. He started from the particular institu-tions, not from the general principles.

I have dwelt at length, perhaps at undue length, onthe Persian Letters, not because, as has been inac-curately said, the Spirit ofLaws is merely a continuationof the earlier work, but because the Montesquieu ofthe Spirit of Laws is still the Montesquieu of thePersian Letters, matured and ripened by twenty-sevenyears of study and experience, but in essentials still thesame.He began his literary career with no preoccupiedtheory or object, but as a detached and irresponsiblecritic and observer of man in his infinite diversity, theman ondqyant et divers of Montaigne. And he retained


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Montesquieu. 27much of this irresponsibility and detachment to the last.It is true that after much search he found, or believedthat he found, certain general laws, or principles, towhich his observations could be attached, under whichthey could be grouped. But one often feels, in readinghis opening chapters, that they are a sham facade,giving a deceptive appearance of unity to a complicatedand irregular set of buildings, richly stored with mis-cellaneous objects of interest. His doctrine of therelativity of laws, which is the foundation of enlightenedconservatism, and has been used in defence of muchconservatism which is not enlightened, is not a sufficientfoundation for a constructive system, but was anadmirable starting-point for a man whose primaryinterest lay in observing and comparing differentinstitutions and drawing inferences from their similari-ties and diversities. ' Any one who has eyes to see,' hewrote in his subsequent Defence of the Spirit of Laws,' must see at a glance that the object of the work was thedifferent laws, customs and usage_s of the peoples ofthe world.' A vast, an overwhelming subject, whichthe author failed to succeed in mastering and con-trolling, or bringing within a synthetic grasp. Andowing to this failure the Spirit of Laws has been notunfairly described as being, not a great book, but thefragments of a great book 1 . What he did succeed in

1 Brunetiere, tudes critiques, 4me serie, p. 258. The Marquis' d'Argenson, one of the most sagacious and prescient observersthat the eighteenth century produced, was shown some portionsof the Esprit des lot's before the book was published, and his fore-cast of its character proved to be singularly accurate :' On pretendqu'il (Montesquieu) se prepare enfin a publier son grand ouvragesur les lois. J'en connais deja quelques morceaux, qui, soutenuspar la reputation de l'auteur, ne peuvent que l'augmenter. Mais


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28 Montesquieu.doing was in indicating the path by which aloneeffective and fruitful progress could be made either' injurisprudence or in the science of politics, the paththrough diversity to uniformity, through facts to prin-ciples. He refashioned political science and made ita science of observation, and by so doing he made thesame new departure in political and legal science asBacon had made before him in physical science. Heclosed the period of the schoolmen. He was notcontent to mumble the dry bones of Roman law. Heturned men away from abstract and barren speculationsto the study and comparison of concrete institutions.And it is in this sense that he may be claimed as one ofje crains bien que Pensemble n'y manque, et qu'il n'y ait plus dechapitres agreables a lire, plus d'ides ingenieuses et sgduisantes,que de veritables et utiles instructions sur la facon dont on devraitrediger les lois et les entendre. C'est pourtant la le livre qu'il nousfaudrait, et qui nous manque encore, quoiqu'on ait deja tant ecrit surcette matiere.

' Nous avons de bons instituts de droit civil romain, nous en avonsde passables de droit francais ; mais nous n'en avons absolumentpoint de droit public general et universel. Nous n'avons pointVesprit des lois, et je doute fort que mon ami, le president deMontesquieu, nous en donne un qui puisse servir de guide etde boussole a tous les legislateurs du monde. Je lui connais toutl'esprit possible. II a acquis les connaissances les plus vastes,tant dans ses voyages que dans ses retraites a la campagne. Maisje prfidis encore une fois qu'il ne nous donnera pas le livre qui nousmanque, quoique Ton doive trouver dans celui qu'il prepare beau-coup d'idees profondes, de pensees neuves, d'images frappantes,de saillies d'esprit et de genie, et une multitude de faits curieux,dont Papplication suppose encore' plus de gout que d'etude.'Memoires du Marquis d'Argenson (ed. 1825), pp. 430, 431. It is tobe hoped that this passage has not, like others in the edition of1825, been recast by the editor. As to the defects of this edition,see Sainte-Beuve, Causeries du Lundi, vol. xii. And as to thelater editions of d'Argenson, see Aubertin, L'espritpublic au xviiiSteele, p. 194.


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Montesquieu. 29the founders of the comparative method as applied tothe moral and political sciences.He began at the other end. This may seem a little ,thing. In reality it was a very great thing. The humanmind is intensely conservative. For generations mengo on working at the old subjects in the old ways.Then comes a man who, by some new thought, it maybe by some new phrase, which becomes a catchword,like ' evolution,' takes his fellow men out of the old ruts,and opens up to them new regions of speculation anddiscovery. These are the men that change the world.And Montesquieu was one of these men.He has been claimed on high authority 1 , but withless accuracy, as the founder of the historical method,which is at least as old as Thucydides. That he appre-ciated the importance of this method is true. ' I couldwish,' he says in one of his fragments 2, ' that there werebetter works on the laws of each country. To knowmodern times, one must know antiquity : each law mustbe followed in the spirit of all the ages.' But for itsapplication he had neither the requisite knowledge northe requisite capacity. Like his predecessors, hespeculated about the state of nature. But for anyknowledge of savage or uncivilized man, withoutwhich all speculations and theories as to the origin ofsociety are idle, he was dependent on books of traveland accounts of missionaries, with no means of checkingtheir accuracy. Of the Iroquois, who stood for thetypical savage in the early eighteenth century, he haddoubtless read in Lahortan and in The Relations of theJesuits, but one is sometimes tempted to think that he

1 By Sir Henry Maine, Sir Leslie Stephen, and others.2 Pensies, i. 195.


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3


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Montesquieu. 31reaching and profound. It was felt in the course ofpolitical thought ; it was felt in the methods of politicalscience. It is almost true that Montesquieu inventedthe theory of the British constitution. At all events hewas the chief contributor to what may be called theauthorized version of the British constitution, 'theversion to which currency was given by Blackstone 1and Delolme, which was used by the framers of consti-tutions on the continent of America and on thecontinent of Europe, and which held the field until itwas displaced by the Cabinet theory of Walter Bagehot.The question has often been asked how far Montesquieureally knew and understood the institutions which hedescribed 2. On this there are two things to be said.In the first place the British constitution which grewup out of the Revolution of 1688 was, when Montes-quieu wrote, still in the making. The lines on whichit was developed were not yet fixed ; whether it wouldgive preponderance to the King or to Parliament wasstill uncertain. In the next place Montesquieu wrotewith a purpose. ^ England was to him what Germany

1 M. Sorel goes too far in saying that Blackstone ' procede de 'Montesquieu. But the Spirit ofLaws is expressly quoted in ch. ii,book i of the Commentaries, and its influence is clearly apparentthroughout that chapter. \

2 How much was known in France of English institutions whenMontesquieu published his Esprit des lois ? Rapin's History ofEngland, published at the Hague in 1724, was probably the prin-cipal available authority. 'No book did more to make Europeacquainted with Great Britain ' (Texte, J.-J. Rousseau, &c. (trans,by J. W. Matthews), p. 21). Much knowledge was disseminatedby Huguenot refugees in England, and much could have been learntfrom English political refugees, like Bolingbroke, in France. Butthe amount of information available in a literary form for Frenchreaders was probably not great. Voltaire's Lettres anglaises, basedon his visit of 1726-9, were published in France in 1734.


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32 Montesquieu.had been to Tacitus. It was a neighbouring country inwhich he found, or thought that he found, principlesof liberty which had vanished from his own country,and for the restoration of which he hoped. And hesketched those principles like a great artist, with a boldvand free sweep of the brush. He sought to render thespirit and characteristic features : for minute accuraciesof topographical detail he cared as little as Turner caredin painting a landscape.That a book thus conceived should be read with

delight and admiration by Englishmen was not sur-prising \ Its practical influence was first exercised in

1 Nugent's English translation of the Spirit of Laws appearsto have been published in 1750. See Montesquieu's letter to thetranslator of Oct. 18, 1750. A second edition, of which there isa copy in the British Museum, appeared in 1752, and several othereditions followed.'My delight,' says Gibbon in his autobiography, 'was in the

frequent perusal of Montesquieu, whose energy of style and bold-ness of hypothesis were powerful to awaken and stimulate thegenius of the age.'There is a curious and characteristic rhapsody on Montesquieuin Bentham's Commonplace Book (Works by Bowring, x. p. 143).

' When the truths in a man's book, though many and important,are fewer than the errors ; when his ideas, though the means ofproducing clear ones in other men, are found to be themselvesnot clear, that book must die : Montesquieu must thereforedie : he must die, as his great countryman, Descartes, had diedbefore him : he must wither as the blade withers, when the cornis ripe : he must die, but let tears ofgratitude and admiration bedewhis grave. O Montesquieu the British constitution, whose deaththou prophesiedst, will live longer than thy work, yet not longerthan thy fame. Not even the incense of [the illustrious Catherine]can preserve thee.

' Lockedry, cold, languid, wearisome, will live for ever. Montes-quieurapid, brilliant, glorious, enchantingwill not outlive hiscentury.

' I knowI feelI pityand blush at the enjoyment of a liberty


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34 Montesquieu.and their aims, were all factors of the first importancein the French Revolution. ' Every enlightened French-man,' says M. Sorel, ' had in his library at the end ofthe eighteenth century a Montesquieu, a Voltaire, a

i Rousseau, and a BuffonV The Spirit of Laws wasa storehouse of argument for the publicists of 1789, andFrench writers of repute have maintained that theinfluence of Montesquieu counted for as much in theDeclaration of Rights as the influence of Rousseau.It must be remembered that, though Montesquieu wroteas a monarchist, his heart was in the little republics ofthe Graeco-Roman world, and he is responsible for muchof the pseudo-classicism which characterized politicalthought at the end of the eighteenth century. It istrue that during the interval between 1789 and 1793 theinfluence of Montesquieu waned as that of Rousseauwaxed. He was identified with the aristocrats andAnglophiles 2 : the Girondists were charged withstudying him overmuch, and if Robespierre quotedhim for his purpose, he quoted him with a significantdifference. ' In times of revolution,' said Robespierre,' the principle of popular government is both virtue andterror : virtue without which terror is fatal ; terror with-out which virtue is powerless V Napoleon had studiedthe Spirit of Laws, but a system which aimed at the

1 Sorel, Montesquieu, p. 149.2 Under' the Terror Montesquieu's son was thrown into prison

as a suspect, and his property was sequestrated. He died in 1795.Montesquieu's grandson, who had served under Washington inthe United States, became an tmigre , married an Irish lady,and settled down in Kent, where he died without issue in 1825.He left his MSS. and his 'French property to a cousin, descendedfrom a daughter of the great Montesquieu.

3 Sorel, p. 155,


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Montesquieu. 35preservation of political liberty by the separation ofpolitical powers did not commend itself to his mind l .Dormant under the Consulate and the Empire, theinfluence of Montesquieu arose to renewed and morepowerful life at the Restoration, and was, during thefirst half of the nineteenth century, the inspiration ofall constitutional monarchists, both in France and inother European countries.The influence of Montesquieu on methods of study ,

was as important, though not as immediate 2, as hisinfluence on the course of political thought. Of thehistorical and comparative method, in their applicationto Law and Politics, he was, as has been justly re-marked 3, rather a precursor than a founder. His ap-preciation of the historical method was imperfect, andhis application of it defective. It was not until theexpiration of a century after his death that the importanceand significance of either the historical or the com-parative method was fully realized. But in the mean-time his central doctrine, that the true spirit and meaning

1 See the interesting letter of Sept. 19, 1797, written by Napoleonfrom Italy to Talleyrand, with a request that it might be shown toSieyes. Napoleon, Correspondance, vol. iii. p. 313 (No. 2223).

2 'Un seul ecrivain, Montesquieu, le mieux instruit, le plussagace et le plus gquilibre de tous les esprits du siecle, demelaitces ventes, parce qu'il etait a la fois erudit, observateur, historienet jurisconsulte. Mais il parlait comme un oracle, par sentenceset en 6nigmes : il courait, comme sur des charbons ardents, toutesles fois qu'il touchait aux choses de son pays et de son temps.C'est pourquoi il demeurait respects, mais isole, et sa celebriten'gtait point influence.'Taine, Ancien Regime, p. 278. This state-ment of Taine must be read as applying to Montesquieu's influenceon method, not to his influence on political thought.

s By Sir F. Pollock in his farewell lecture on the ' History ofComparative Jurisprudence' (Journal of the Society 0/ ComparativeLegislation, August, 1903).

C 2


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36 Montesquieu.of a law or constitution cannot be grasped withoutcareful study of all its surroundings and all its ante-cedents) had-stmk deeply into the minds-ofcstudents, andprepared the way for and gave an enormous stimulusto those methods of study which are now recognizedas indispensable to any scientific treatment either ofLaw or of Politics.

Within the last half-century societies for the study ofComparative Law and Comparative Legislation havecome into existence in France, England, Germany andelsewhere \ and have done* and 'are doiqg, work of thegreatest interest and utility. Some of them approachtheir subject mainly from the point of view of the lawyeror the jurist, and devote their attention primarily tothose branches and aspects of the subject which fallwithin the domain either of private or of criminal law.Others look primarily at the constitutional and adminis-trative experiments which are being tried by the legisrlatures of different countries, and thus deal with theirsubject as a branch of political science^ Their areas ofstudy overlap each other, and the point of view is not

. quite the same. Within each area they have collected andcompared a vast quantity of facts which form an indis-pensable preliminary to, and constitute the raw materialfor, a scientific treatment of the studies with which theyare concerned. The task that remains for the scientificjurist and for the political philosopher is to elicit, in thespirit of Montesquieu, but with fuller knowledge, and

1 Soctete de Legislation Comparee, founded 1869 ; GesellschaftfDr vergleichende Rechts- und Staatswissenschaft, founded 1893Internationale Vereinigung fur vergleichende Rechtswissensehaftund Volkswirthschaft, founded 1894 ; (English) Society of Com-parative Legislation, founded 1894.


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Montesquieu. 37with better critical methods, the inner meaning of thelaws and institutions of different countries, and to tracethe general lines on which they have developed in thepast, and may be expected to develop in the future.One might amuse oneself by speculating on the Sdifferences which Montesquieu would have observed,and on the general reflections which he might havemade, if he had been called upon to pass in review thegovernments and legislation of the present day. Hewould have found in almost every part of the civilizedworld governments with representative legislatures andparliamentary institutions, all more or less on the Englishlines which he had admired and described, and allrecognizing, though in greater or less degree, and indifferent forms, his principle of the separation betweenthe three functions of government, legislative, executive,and judicial. And he would have found all these legis-latures actively and continuously engaged in the workof legislation, and producing new laws with prodigiousfertility and in bewildering variety.Besides the legislatures of European and SouthAmerican States, there are within thes British Empirebetween sixty and seventy different legislatures, and inthe United States forty-eight local legislatures, in additionto the central legislature consisting of Senate and Con-gress. And in the year 1901 these forty-eight UnitedStates legislatures enacted no less than 14,190 new laws.When Montesquieu wrote, the British Parliament waspractically the only representative legislature in theworld, and the only legislature which was. continuouslyat work. And its output of legislation was comparativelymodest. Let us take the record of the session of 1730,when Montesquieu was attending debates at St.


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38 Montesquieu.Stephen's. There was no reference to legislation inthe King's Speech. The Acts of the session wereforty-eight, and of these twenty were local and fourfiscal. There was an Act, which gave rise to somedebate, for placing restrictions on loans by Britishsubjects to foreign states, a measure which, as SirRobert Walpole explained, arose out of a projectedloan for the assistance of the Emperor Charles VI,whose diplomatic relations with George the Secondwere strained. The care of Parliament for trade andindustry was minutely paternal. There was an Act forregulating the methods of burning bricks, and anotherfor better regulating the coal trade. There was an Actfor granting liberty to carry rice from His Majesty'sProvince of Carolina in America directly to any part ofEurope southward of Cape Finisterre in ships built inand belonging to Great Britain and navigated accordingto law, and another Act for the importing of salt fromEurope into the colony of New York with the view tothe better curing of fish, 'whereby the trade of GreatBritain and the inhabitants of the said colony wouldreap considerable benefit which would enable the saidinhabitants to purchase more ofthe British manufacturersfor their use than at present they are able.' And therewas one of the numerous ' omnibus ' Acts then allowedby Parliamentary procedure, dealing, within its fourcorners, with the price of bread, the relief of bankrupts,deeds and wills executed by Papists, and the settlementof paupers. And this is nearly all. The eighteenth-century statutes, except so far as they are purely local,consist chiefly of detailed regulations made by land-owners sitting at Westminster for their own guidanceas justices of the peace in the country. And the


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Montesquieu. 39executive functions of the central government wereat that time very limited. ' The Prince,' says Montes-quieu, 'in his exercise of executive functions, makespeace or war, sends or receives embassies, keeps thepeace, prevents invasions.' It was in fact to the main-tenance of the internal peace that, apart from foreignrelations and war, the duties of the central governmentwere mainly confined. There was no Local Govern-ment Board, no Board of Education, no Board ofAgriculture, and the duties of the Board of Trade werealmost nominal. Nor, on the other hand, were therecounty councils, district councils, or parish councils.The municipalities were close, corrupt, irresponsiblecorporations, existing for the benefit of their membersand not of the local public. There were no railways,and no limited companies. Gas and electricity had notbeen utilized. Parliament did not concern itself witheducational or sanitary questions, and factory legisla-tion was a thing of the distant future 1 . Thus almostall the materials for modern Parliamentary legislationwere absent.This then would have been one of the differences

that Montesquieu would have notedthe prodigiousincrease in the extent and variety of legislation.And on investigating the causes of the difference hewould have found the main cause to be thisthatthe world has been since his time absolutely trans-formed by the operation of physical science. Whathas physical science done for the world? It hasdone three things. It has increased the ease and speedof production. It has increased the ease and speed of

1 I have ventured to repeat some expressions used in chapter xof my book on Legislative Methods and Forms.


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40 Montesquieu.locomotion. It has increased the ease and speed ofcommunicating information and opinion 1 . And by sodoing it has made for democracy, it has made forplutocracy, it has made for great states. It has madefor democracy, both by enabling the popular will to actmore speedily and effectively, and by the creation ofwealth which levels distinctions based on social posi-tion. But it has also increased, to an extent un-imaginable even in the days of Law's system andthe South Sea Bubble, that power of great finance,which manufactures through its press what is calledpublic opinion, pulls the strings of political puppets,and is the most subtle, ubiquitous, and potent ofmodern political forces.

Physical science has made great democratic statespossible, and great states, or agglomerations of states,necessary. For Montesquieu, as for Aristotle, ademocracy meant a body of citizens who could meettogether in one place for political discussion. Thebody must not be too large, for as Aristotle says, if itwere, what herald could address them, unless he werea Stentor. But the modern statesman, to say nothingof the modern reporter who heralds a cricket match,can, without being a Stentor, speak to the Antipodes.And science has made great states necessary by in-creasing both the effectiveness and the cost of munitionsof war. States agglomerate both for economy and forself-defence, and small isolated states exist only bysufferance.

Since Montesquieu's time both the area and thepopulation of the civilized world have enormously in-

1 See Faguet's interesting essay, Que sera le *# Steele, inQuestions politiques (Paris, 1899).


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Montesquieu. 41creased. And yet for political purposes it has becomea much smaller world, smaller, more compact, moreaccessible. And this has tended to greater uniformityof legislation and institutions.The greater uniformity has been brought aboutmainly in three ways. First, by direct imitation. Man,as M. Tarde has reminded us, is an imitative animal.He imitates his forefathers : that is custom. He imitateshis neighbours: that is fashion. He imitates himself:that is habit. And direct imitation plays a large partin institutions and legislation. English Parliamentaryprocedure has made the tour of the world. Guizotreminded a Committee of the House of Commons in1848 that Mirabeau had based the rules of the NationalAssembly on a sketch of the proceedings of the Houseof Commons furnished to him by Etienne Dumont 1 ,and that when the Charter was granted by Louis XVIIIin 1814, the same rules were adopted with some changes.Thomas Jefferson, when President of the United States,drew up for the use of Congress a manual consistinglargely of extracts from English Parliamentary pre-cedents, and Jefferson's Manual is still an authoritativework. Every colonial legislature conforms to the rules,forms, usages, and practices of the Commons House ofParliament of Great Britain and Ireland, except so far

1 Evidence before Select Committee on Public Business, Q. 309.Dumont's own account {Souvenirs sur Mirabeau, p. 164) does notquite bear out Guizot's statement. According to Dumont, Romillyhad made a sketch of English Parliamentary procedure, whichDumont translated for Mirabeau. Mirabeau laid this translationon the table by way of a proposal, but the Assembly declinedto consider it : ' Nous ne sommes pas Anglais, et nous n'avons pasbesoin des Anglais.' Romilly's own account of his sketch, andof its fate, is to the same effect. Memoirs, i. 101.


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42 Montesquieu.as they have been locally modified. A very large pro-portion of Colonial enactments are directly copied fromthe English Statute-book, with minor local variations.And the practice of looking for and copying precedentssupplied by other legislatures is steadily on the increase,not only within the British Empire, but in all partsof the civilized world. This, then, is one cause ofuniformity.

In the next place the facility of intercourse, andespecially the closeness of commercial relations be-tween different countries, tends to a general assimila-tion of commercial usages. The diversity of laws whichwas found intolerable in France at the end of theeighteenth century, and in Germany at the end of thenineteenth century, has long made itself felt as a seriousand as a remediable nuisance in matters of commercethroughout the world, and in many parts of the domainof commercial law we have either attained to or arewithin measurable distance of that common code oflaws which is the dream of comparative jurists.And lastly, in a world compacted and refashioned by

science, those causes ofdifference to which Montesquieuattached importance, and in some cases exaggeratedimportance, causes such as climate, race, geographicalconditions, difference in forms and degrees of civiliza-tion, tend to become of less importance. . Not that theyhave disappeared, or can be left out of account. Montes-quieu took much interest in questions of politicaleconomy, and he would certainly have pointed outthat fiscal arrangements which are well adapted toa state whose territories are continuous, are presumablyless well adapted to a state whose component parts aresundered by oceans. The question of race is always


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Montesquieu. 43with us, and the jealousies and antipathies of white,brown, yellow and black races present an insolubleproblem to the legislator in almost every part of theglobe. Nor are the legislative problems which, apartfrom race, arise from the contrast between differentdegrees and stages of civilization, less numerous, lessdifficult, or less interesting. Within the British Em-pire we have to legislate for the hill-tribes of India, forthe fetish-worshippers of Western Africa, and for thesavages of New Guinea, and a museum full of instruc-tion and suggestions to the statesman and the jurist isto be found in the Regulations made by the Governmentof British India for its less advanced regions and in theOrdinances which have been passed for the WestAfrican Protectorates. Thus the causes of differenceremain and are of importance. But on the whole theimportance of the causes which make for differencetends to decrease, and the importance of the causeswhich make for uniformity tends to increase. Take upone of the annual summaries of the world's legislationwhich are published by the French and English Societiesof Comparative Legislation. Your first impression willbe one of bewilderment at the multiplicity and varietyof the subjects dealt with. But if you read on, and stillmore if you extend your studies over a series of years,you will be struck with the large number of importantsubjects which recur with unfailing regularity in thelegislation of each state in each year. Education, factory

laws, mining laws, liquor traffic,everywhere you willfind the same problems being dealt with on lines ofincreasing similarity, though with a due recognition ofthe differences arising from diversities of race, characterand local conditions. In the year 1902 the legislature


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44 Montesquieu.of the Straits Settlements was imposing on little Malaychildren the duty of compulsory attendance at school,and the legislature of Sierra Leone was regulatingMohammedan education on Western lines, whateverthat may mean. It is perhaps in the field of industriallegislation that this similarity of treatment and of trendis most remarkable. A quarter of a century ago theliability of employers for injuries to their workmen wasin every civilized country regulated by rules deriveddirectly or indirectly from the old Roman law. Sincethat time almost every legislature has been altering thoserules, and has been altering them in the same direction.It has been recognized everywhere that the principle ofbasing liability on personal negligence is inadequate tomeet the modern conditions of corporate employment,of employment by great companies, and the universaltendency has been towards placing the employer in theposition of an insurer against accidents to his workmen,and of thus imposing on him a risk which he again meetsby modern methods of insurance. Similar tendenciesmay be observed in other departments of industriallegislation, such as the further recognition of the right ofworkmen to combine, the regulation of the conditions ofemployment, especially in such organized employmentsas mines and factories, the restrictions on the employmentof women and children, the requirement of precautionsagainst risk to health and life, the formation of Govern-ment pension funds against sickness and old age, andthe provisions for the settlement of labour disputes.In all these branches of legislation there is a generalmove in the same direction, though with differencesof detail and at different rates of progress. In short,the whole civilized world appears to be advancing


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Montesquieu. 45towards a common industrial code, as it is advancingtowards a common commercial code.Some hundred years after Montesquieu's deathanother brilliant book was written on the Spirit ofLaw 1 . Savigny had laid down the dogma that thelaw of each nation is the natural and necessary out-growth of the national consciousness. Ihering re-minded his readers that Rome had thrice conqueredthe world, first by arms, secondly by religion, andlastly by law; and that the general reception ofRoman law, of which Savigny was the historian, wasinconsistent with the dogma of the exclusively nationalcharacter of law, of which Savigny was the prophet.As nations live commercially by the free interchange ofcommodities, so they live intellectually by the freeinterchange of ideas, and they are not the worse, butthe better, for borrowing from each other such lawsand institutions as are suitable to their needs. It is true,as Savigny taught, and as Montesquieu had indicatedbefore him, that the laws of a nation can only be under-stood if they are studied as part of the national life andcharacter. But it is also true that the object of thejurist is to discover the general principles whichunderlie different systems of law. Only he has nowrealized that those principles cannot be discoveredexcept by a profound and scientific study of the legalinstitutions and the legal history of different nations, andby comparing with each other the laws of differentcountries and the different stages of legal development.It was in order to discover the true meaning of thelegal rules derived from ancient Rome, as the, main

The first edition of Ihering's Geist des r&mischen Rechts beganto appear in 1852.


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46 Montesquieu.factor of European law, that Ihering undertook hisinquiry into the Spirit of Roman Law. He who wouldmeasure the advance in the breadth and depth of com-parative jurisprudence between the middle of the eigh-teenth and the mjddle of the nineteenth century couldnot do better than compare Montesquieu's Spirit ofLaws with Ihering's Spirit ofRoman Law.

Montesquieu left two great legacies to the world.He formulated the theory of the British constitutionwhich held the field for a century, and was the founda-tion of every constitutional government establishedduring that period ; and he gave a new direction to thestudy of legal and political science.Montesquieu was one of the greatest of the apostles

of liberty in modern times. Socially and politically, hebelongs to the old regime, to the regime which inFrance passed away in 1789, which in England, wherechanges are less catastrophic, began to pass away in1832. Scientifically also he belongs to a bygone age.His new ideas, his new methods, once so fresh, soattractive, so stimulating, have passed into and beenmerged in the common heritage of Western thought.But in his generation he succeeded, with a successbeyond his most sanguine hopes, in doing what hetried to dohe made men think.


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OXFORDPRINTED AT THE CLARENDON PRESSBY HORACE HART, M.A.

PRINTER TO THE UNIVERSITY


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Montesquieu by Courtenay Ilbert