Chapter 14

bound by their own rules that they can scarcely move; and compare with them in point of efficiency the small legislatures and boards which manage many important and complicated interests promptly, sitting with closed doors.]

"I have never heard people talk about public law," he says in another letter, "that they did not inquire carefully what was the origin of society; which strikes me as absurd. If men did not form a society, if they separated and fled from each other, we should have to ask the reason of it, and to seek out why they kept apart. But they are created all bound to each other, the son is born near his father and stays there; this is society, and the cause of society."[Footnote: Ibid., i. 301, Letter xciv.]

A satirical book, like the "Persian Letters," could not have been openly published in France under Louis XV. The first edition was in fact printed at Amsterdam, although Cologne appeared on the title-page as the place of publication. The book was anonymous, but Montesquieu was well known to be the author, and speedily acquired a great reputation. After several years, for things did not move fast in Old France, he was proposed for election to the Academy. To be one of the forty members of that body is the legitimate ambition of the literary Frenchman. The Cardinal de Fleury, who was prime minister, is said to have announced that the king would never consent to the election of the author of the "Persian Letters." He added that he had not read the book, but that people in whom he had confidence assured him that it was dangerous. According to Voltaire, Montesquieu thereupon had a garbled edition of the Letters hastily printed, himself took a copy to the Cardinal, induced His Eminence to read a part of it, and, with the help of friends, prevailed on him to alter his decision. Such a trick is more worthy of Voltaire, who continually denied his own works, than of Montesquieu, who, I believe, never did so. D'Alembert tells the story in a way entirely creditable to the latter. He says that Montesquieu saw the minister, told him that for private reasons he did not give his name to the "Persian Letters," but that he was far from disowning a book of which he did not think he had cause to be ashamed. He then insisted that the Letters should be judged after reading them, and not on hearsay. Thereupon the Cardinal read the book, was pleased with it and with its author, and withdrew his opposition to the latter's election to the Academy.[Footnote: _Nouvelle Biographie Universelle. Voltaire (Siècle de Louis XIV. liste des écrivains)_. D'Alembert, vi. 252. The date of Montesquieu's election was Jan. 24, 1728. See a discussion of the whole story in Vian, 100. Montesquieu is there said to have threatened to leave France, and to have declined a pension at this time. Montesquieu tells the story of the pension, but without fixing a date: "Je dis que n'ayant pas fait de bassesse, je n'avais pas besoin d'etre consolé par des graces," vii. 157. Voltaire was always jealous of Montesquieu's reputation; and also, at this time, out of temper with the Academy, to which he was elected only in 1746.]

A little before this time Montesquieu resigned his place as one of the presidents of the Parliament of Bordeaux, selling the life estate in it, but reserving the reversion for his son. Having thus obtained leisure, he set out on a long course of travel, lasting three years. "In France," said he later, "I make friends with everybody; in England with nobody; in Italy I make compliments to every one; in Germany I drink with every one." "When I go into a country, I do not look to see if there are good laws, but whether they execute those they have; for there are good laws everywhere."[Footnote: Vian, 90. Montesq. vii. 186, 189.]

Montesquieu arrived in England in the autumn of 1729, sailing from Holland in the yacht of Lord Chesterfield, whose acquaintance he had made on the Continent. He spent seventeen months in the country, and, in spite of his epigram about making friends with nobody, saw some of the most eminent men, including Swift and Pope, was received by the Royal Society, and presented at Court. At a time when England and the English language were little known in France, he studied them in a way which deeply influenced all his views of government. "In London," he says, "liberty and equality. The liberty of London is the liberty of the best people,[Footnote: _Honnestes gens,_ which cannot be exactly translated. Montesq., vii. 185. Vian, 112.] in which it differs from the liberty of Venice, "which is the liberty of debauchery." The equality of London is also the equality of the best people, in which it differs from the liberty of Holland, which is the liberty of the populace."

"England is at present the most free country in the world; I do not except any republic. I call it free because the prince can do no conceivable harm to anybody; because his power is controlled and limited by a law. But if the lower chamber should become them mistress, its power would be unlimited and dangerous, because it would have executive power also; whereas now unlimited power is in the parliament and the king, and the executive power in the king, whose power is limited. A good Englishman must, therefore, seek to defend liberty equally against the attacks of the crown and those of the chamber."[Footnote: Montesq., vii. 195 (_Notes sur l'Angleterre_).]

Montesquieu brought back from England an admiration of what he had seen there as genuine, and far more discriminating than that of Voltaire. While the studies of Montesquieu were principally directed to the political institutions of the country, those of Voltaire embraced the philosophy and social life of England. Through these two great men, more perhaps than through any others, English ideas were spread in France in the middle of the eighteenth century.[Footnote: Voltaire returned from England a few months before Montesquieu went there in 1729.]

Montesquieu now went on with his studies with an enlarged mind. He would appear, before he started on his travels, to have already formed the project of writing a great work on the Spirit of the Laws. But in 1784 he published a smaller book, the "Greatness and Decadence of the Romans." It is said that this essay was composed of a part of the material collected for the Spirit of the Laws, and was published separately in order not to give the Romans too large a place in the more important work. This has been doubted, but there is nothing either in the subject or in the treatment to make it improbable. Nor is it important, so long as between the two books there is unity of purpose and agreement of method.

The "Greatness and Decadence of the Romans" is a study of philosophic history. In form it is not unlike Machiavelli's Discourses on the first ten books of Livy. That remarkable work would have been most profitable reading for Frenchmen of the eighteenth century, as it must be in all times for students of the science of politics. Of republics Machiavelli had more experience than Montesquieu. Both considered the republican form of government the most desirable; both thought it impossible without the preservation of substantial equality of property among the citizens. Montesquieu, who knew more of monarchy than Machiavelli, had also more faith in it. Both hated the Rule of the Roman Church. [Footnote: Machiavelli, ii. 210. Montesq., ii. 136, 140. Mach., ii. 130.] The Frenchman excels the Italian in practical wisdom; he is also more brilliant. By his brilliancy he may sometimes have been led away, but I think not often. While we feel in reading Voltaire that the sparkling point is often the cause of the saying, with Montesquieu we are generally struck with the weight of thought in what we read.

"The tyranny of a prince," says Montesquieu, "does not bring him nearer to ruin, than indifference to the public good brings a republic. The advantage of a free state is that the revenues are better administered--but how if they are worse? The advantage of a free state is that there are no favorites; but when that is not the case, and when instead of enriching the prince's friends and relations, all the friends and relations of all those who share in the government have to be enriched, all is lost; the laws are evaded more dangerously than they are violated by a prince, who, being always the greatest citizen of a state, has the most interest in its preservation."[Footnote: Montesq., ii. 139.]

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

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

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

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

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

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

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

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

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

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

It will be noticed that Montesquieu by no means denies that there are general principles of justice. On the contrary, he positively asserts it.[Footnote: Ibid., iii. 91 (liv. i. c. 1).] But the great value of his teaching consists in the other lesson. "It is better to say that the government most in conformity with nature is that whose particular disposition is most in relation to the disposition of the people for which it is established." This principle may certainly be deduced from Aristotle; but it was none the less necessary to teach it in the eighteenth century; it is none the less necessary to teach it to-day. [Footnote: Ibid., iii. 99; Aristotle, _Politics_, liv. vii. c. ii.]

The conception was a great one, so simple that it seems impossible that it could ever have been missed; but it was combated with violence on its announcement, and many brilliant and learned men have failed to grasp it.[Footnote: Montesq., iv. 145 _n_] Such are the persons in our own time who praise despotism in France, or who would set up parliamentary government in India. Montesquieu probably carried his theories too far. To the north he assigned energy and valor, as if the most widely conquering nations that Europe had then known had been the Norwegian and the Finn, instead of the Macedonian, the Italian, and the Spaniard. Sterility of soil he considered favorable to republics, fertility to monarchies. It was natural that a man in revolt against the long spiritual tyranny that had oppressed thought in Europe should have attributed excessive importance to material causes. Not the less did the idea contain its share of truth. Nor was his statement of this, which we may call his favorite theory, always excessive. "Several things," he says, "govern man; climate, religion, laws, the maxims of government, the examples of things past, morals, manners; whence comes a general spirit which is their result. Sometimes one of these forces dominates and sometimes another."[Footnote: Montesq., iv. 307 (liv. xix. c. 4).]

It may be noted of Montesquieu, and as often of Voltaire, that each of them is constantly led astray by imperfect knowledge of foreign, and especially of barbarous and savage nations. Since the voyages and conquests of the Renaissance, accounts of strange countries had abounded in Europe, written in many cases by men anything but accurate, if not, in the words of Macaulay, "liars by a double right, as travellers and as Jesuits."[Footnote: _Essay on Machiavelli_.] The writers of a hundred and fifty years ago could use no better material than was to be had. They wished to draw instruction from distant objects, and their spy-glasses distorted shapes and modified colors. Imperfect knowledge of foreign countries sometimes led Montesquieu into curious mistakes; yet these affected his illustrations oftener than his theories.

Having stated his general doctrine, Montesquieu proceeds to apply it. As laws should be adapted to the nature of the government of each country, it is essential to study that nature, and to consider what is the _principle_, or motive force of each form of government. "There is this difference," he says, "between the nature of the government and its principle: that its nature is what makes it such as it is, and its principle what makes it act. One is its especial structure, and the other the human passions which cause it to operate."[Footnote: Montesq., iii, 120 (liv. iii. c. 1).]

Four kinds of government are recognized by Montesquieu: democratic, aristocratic, monarchical, and despotic. The principle of democracy he holds to be _virtue_, without which popular government cannot continue to exist.[Footnote: Montesq., iii. 122 (liv. iii. c. 3).] An aristocratic state needs less virtue, because the people is kept in check by the nobles. But the nobility can with difficulty repress the members of their own order, and do justice for their crimes. In default of great virtue, however, an aristocratic state can exist if the ruling class will practice _moderation_.[Footnote: Ibid., iii. 126 (liv. c. 4).] In monarchies great things can be done with little virtue, for in them there is another moving principle, which is honor.[Footnote: Ibid., iii. 128 (liv. iii. c. 5, 6, and 7).] This sort of government is founded on the prejudice of each person and each sort of men; it rests on ranks, preferences, and distinctions, so that emulation often supplies the place of virtue. In a monarchy there will be many tolerable citizens, but seldom a very good man, who loves the state better than himself. The motive principle of a despotism is _fear_[Footnote: Ibid., iii. 135 (liv. iii. c. 9).]; for in despotic states virtue is unnecessary, and honor would be dangerous. These qualities of virtue, honor, and fear, may not exist in every republic, monarchy, and despotism; but they should do so, if the government is to be perfect of its kind.[Footnote: Ibid., iii. 140 (liv. iii. c. 11).]

It is worth while to remember, when considering the "Spirit of the Laws," that Montesquieu oftenest had in his mind, when speaking of democratic republics, those of Greece; when speaking of aristocratic republics, early Rome and Venice; of monarchies, France and England; of despotisms, the East.[Footnote: But he sometimes refers to England as a country where a republic is hidden under the forms of a monarchy. Montesq, iii. 216 (liv. V. c. 19).]

Under each form of government, education and the laws should work together to strengthen the motive principle belonging to that form. Especially is this necessary in republics, for honor, which sustains monarchies, is favored by the passions; but virtue, on which democracies depend, implies renunciation of self. Virtue, in a republic, is love of the republic itself, which leads to good morals; the public good is set above private gratification. Thus we see that monks love their order the more, the more austere is its rule. The love of the state, in a democracy, becomes the love of equality, and thus limits ambition to the desire to render great services to the republic. The love of equality and frugality are principally excited by equality and frugality themselves, when both are established by law. The laws of a democratic state should encourage equality in every way; as by forbidding last wills, and preventing the acquisition of large landed estates. In a democracy all men contract an enormous debt to the state at their birth, and, do what they may, they can never repay it. There should be no great wealth in the hands of private persons, because such wealth confers power and furnishes delights which are contrary to equality. Domestic frugality should make public expenditure possible. Even talents should be but moderate. But if a democratic republic be founded on commerce, individuals may safely possess great riches; for the spirit of commerce brings with it that of frugality, economy, moderation, labor, wisdom, tranquillity, and order.

It is very important in a democracy to keep old laws and customs; for things tend to degenerate, and a corrupted nation seldom does anything great. To maintain an aristocratic republic, moderation is necessary. The nobles should be simple in their lives and hardly distinguishable from plebeians. Distinctions offensive to pride, such as laws forbidding intermarriage, are to be avoided. Privileges should belong to the senate as a body and simple respect only be paid to the individual senators.[Footnote: Montesq., iii. 151 (liv. iv. c. 5). Ibid., iii. 165-183 (liv. v. c. 2-8).]

As honor is the motive principle of monarchy, the laws should support it, and be adapted to sustain that _nobility_ which is the parent and the child of honor. Nobility must be hereditary; it must have prerogatives and rights; it forms the link between the prince and the nation. Monarchical government has the great advantage over the republican form, that, as affairs are in a single hand, there is the greater promptitude of execution. But there should still be something to moderate the will of the prince. This is best found, not in the nobility itself, but in such bodies as courts of law with constitutional rights, like the French Parliaments.[Footnote: In a despotic government the motive principle is fear. The governor of the town must be absolutely responsible Montesq., iii, 191 (liv, v. c. 10).]

Montesquieu has been much blamed, both in his own age and since, for his partiality to the monarchy as he found it existing in France. While recognizing that a republic was a more just and equal form of government, he thought that monarchy was that best suited to his time and country. Many people who have watched the history of France since his day will be found to agree with him. While defending some practices which are now considered among the flagrant abuses of old France, he recommended some reforms which would have been very salutary. It is often wiser to find excuses for retaining an old custom than reasons for introducing a new one; and Montesquieu was a conservative, made so by his nature, his social position, his wealth, his education as a lawyer, his age and his experience. When he wrote the "Persian Letters" he might possibly have been willing to overthrow the principal institutions of his country for the sake of remedying abuses; but when he had spent twenty years over the "Spirit of the Laws," when he had realized the complication of life, and the interdependence of things, he was more ready to reform than to destroy.

In a despotic government the motive principle is fear. The governor of the town must be absolutely responsible to the governor of the province, or the latter cannot be entirely responsible to the sovereign. Thus absolutism extends throughout the state. As there is no law but the will of the prince, and as that law cannot be known in detail to every one, there must be a great number of petty tyrants dependent on those immediately above them.[Footnote: Montesq., ii. 209 (liv. v. c. 16).]

After a not very successful attempt to define liberty, which he decides to be the power to do that which we ought to desire and not to do that which we ought not to desire,[Footnote: Ibid., iv. 2-4 (liv. xi. c. 2, 3).] Montesquieu tells us that political liberty is found only in limited governments, for all men who have power will tend to abuse it, and will go on until they meet with obstacles; as virtue itself needs to be restrained. Various nations, he then says, have various objects: conquest was that of Rome, war of Sparta, commerce of Marseilles; there is a country the direct object of whose constitution is political liberty. That country is England.[Footnote: Montesquieu, here and elsewhere, avoids mentioning England or France by name; a curious affectation. The references, however, are unmistakable.]

There are in every state three kinds of power, the legislative, the executive, and the judicial. Political liberty in a citizen is the tranquillity of mind which comes from the opinion he has of his own security; and to give him this liberty the government must be such that no citizen can be afraid of another. Now this security can exist only where the legislative, executive, and judicial powers are in different hands. In most of the monarchies of Europe the government is limited, because the prince, who has the first two powers, leaves the third to others; he makes laws and executes them, but he appoints other men to act as judges in his place. In the republics of Italy all three powers are united. The same body of magistrates makes the laws, executes them, and judges every citizen according to its pleasure; such a body is as despotic as an eastern prince.[Footnote: This judgment is somewhat softened as to Venice. The most conspicuous example in modern times of the tyranny of a single popular body is that of France under the Convention.] The judicial power, says Montesquieu (with the English jury in his mind), should not be given to a permanent senate, but exercised by persons drawn from the body of the people, forming a tribunal which lasts only as long as necessity may require it. In serious cases the criminal should combine with the law to choose his judges, or at least should have a right of challenge. The legislative and executive powers can with less danger be given to permanent bodies, because they are not exercised against individuals. He then commends representative government and the freedom left to members of Parliament in the English system. He believes the people more capable of choosing representatives wisely than of deciding questions, an opinion on which modern experience may have thrown some doubt. He approves of the existence of a second chamber, composed of persons distinguished by birth, wealth, or honors; for if such were mixed with the people and given only one vote apiece like the others, the common liberty would be their slavery, and they would have no interest in defending it, because it would oftenest be turned against themselves.[Footnote: Montesq., iv. 7 (liv. xi. c. 6).]

The government of France, says Montesquieu, has not, like that of England, liberty for its direct object; it tends only to the glory of the citizen, the state, and the prince. But from this glory comes a spirit of liberty, which in France can do great things, and can contribute as much to happiness as liberty itself. The three powers are not there distributed as in England; but they have a distribution of their own, according to which they approach more or less to political liberty; and if they did not approach it, the monarchy would degenerate into despotism.[Footnote: Montesq., iv. 24. (liv. xi. c. 7).] This sounds somewhat like an empty phrase; yet there undoubtedly were in Montesquieu's time some checks on the absolutism of a French monarch. "If subjects owe obedience to kings, kings on their part owe obedience to the laws," said the Parliament of Paris in 1753. And outside of its own boundaries France had long been considered a limited monarchy. [Footnote: Rocquain, 170. Machiavelli, ii. 140, 215, 322 (Discourses on the first ten books of Livy).] Apart from the limitations imposed by the privileges of the church and of the Parliaments, there appear to have been some acknowledged fundamental laws (the succession of the crown in the male line was one of them) which it would have been beyond the power of the sovereign for the time being to destroy. And public opinion, as Montesquieu has already told us, has power even in the most despotic countries. In a European nation, not broken in spirit by long-continued tyranny, and possessing the printing-press, this power must always be very great.

As for Montesquieu's admiration of the English form of government, it doubtless concurred with other causes to encourage on the Continent the study of English political methods. Those methods have since been adopted by many continental states, with hardly as many modifications to adapt them to local circumstances as might have been desirable. But it is the modern English constitution, in which power lies almost entirely in the House of Commons, and is exercised by its officers, that has been thus copied. In America the principle of the division of powers has been carried farther than it ever was in England; and is, of all parts of their form of government, that from which many intelligent Americans would be most loath to part.

We have seen enough of Montesquieu's attacks on the church. The most violent of them were made in his youth, and in a book avowedly satirical. In mature life, writing in a more philosophical spirit, his language is temperate and wise. "It is bad reasoning against religion," he says, "to bring together in a great work a long enumeration of the evils which she has produced, unless you also recount the good she has done. If I should tell all the harm which civil laws, monarchy, or republican government have done in the world, I should say frightful things."[Footnote: Montesq., v. 117 (liv. xxiv. c. 2).] This idea was far beyond the reach of Voltaire.

Montesquieu goes on to argue about different forms of religion. Mahometanism he holds especially suited to despotism, Christianity to limited governments. Catholicism is adapted to monarchies, Protestantism, and especially Calvinism, to republics. Where fatalism is a religious dogma, the penalties imposed by law must be more severe, and the watch kept on the community more vigilant, so that men may be driven by these motives who otherwise would abandon self-restraint; but if the dogma of liberty be established, the case is otherwise. Climate is not without influence on religion. The ablutions required of a Mahometan are useful in his warm country. The Protestant of Northern Europe has to work harder for a living than the Catholic of the South, and therefore desires fewer religious holidays. If a state can prevent the establishment of a new form of religion within its borders, it will find it well to do so; but if several religions are established, they should not be allowed to interfere with each other. Penal laws in religious matters should be avoided; for each religion has its own spiritual penalties, and to put a man between the fear of temporal punishment, on the one hand, and the fear of spiritual punishment on the other, degrades his soul. The possessions of the clergy should be limited by laws of mortmain.[Footnote: Ibid., v. 124-136 (liv. xxiv. c. 5-14).]

The spirit of moderation should be the spirit of the legislator. This Montesquieu declared to be the great theme of his book. Political good, like moral good, is always found between extremes.[Footnote: Montesq., v. 379 (liv. xxix. c. 1).]

It was this moderation which made the "Spirit of the Laws" distasteful to the more ardent Philosophers. Sharing in many of the feelings of his contemporaries, and especially in their distrust of the church, Montesquieu was yet unwilling to go to the same extremes as they. His chapter on Uniformity and the criticisms made on it by Condorcet, form an admirable instance of this.

"There are certain ideas of uniformity," says Montesquieu, "which sometimes take possession of great minds (for they touched Charlemagne), but which invariably strike small ones. These find in them a kind of perfection which they recognize, because it is impossible not to see it; the same weights in matters of police, the same measures in commerce, the same laws in the state, the same religion in all its parts. But is this always desirable without exceptions? Is the evil of changing always less than the evil of suffering? And would not the greatness of genius rather consist in knowing in what case uniformity is necessary, and in what case difference? In China, the Chinese are governed by the Chinese ceremonies, and the Tartars by Tartar ceremonies; yet this is the nation in all the world which is most devoted to tranquillity. So long as the citizens obey the law, what matters it that they shall all obey the same?"

This chapter (the whole of it is given above, and it may pass in the "Spirit of the Laws" for one of middling length), is, according to Condorcet, "one of those which have acquired for Montesquieu the indulgence of all prejudiced people, of all who hate intellectual light; of all protectors of abuses, etc." And after going on with his invective for some time, Condorcet states the substance of his argument as follows: "As truth, reason, justice, the rights of men, the interest of property, of liberty, of security, are the same everywhere, we do not see why all the provinces of one state, or even why all states should not have the same criminal laws, the same civil laws, the same laws of commerce, etc. A good law must be good for all men, as a true proposition is true for all. The laws which appear as if they should be different for different countries, either pronounce on objects which should not be regulated by laws, like most commercial regulations, or are founded on prejudices and habits which should be uprooted; and one of the best means of destroying them is to cease to sustain them by laws."[Footnote: Montesq., v. 412 (liv. xxix. c. 18). Condorcet, i. 377. Yet Condorcet speaks elsewhere of Montesquieu as having made a revolution in men's minds on the subject of law. D'Alembert, i. 64 (Condorcet's _Éloge de d'Alembert_). Rousseau also teaches that all laws and institutions are not adapted to all nations, but it is because he considers most nations childish or effete.]

In these two passages we have the issue between Montesquieu and the Philosophic party fairly joined. He alone of the great Frenchmen of his century recognized the enormous complication of human life and human affairs. Not denying that there are fundamental principles of justice, he saw that those principles are hard to formulate truly, harder to apply wisely. For their application he offered many valuable suggestions. These were lost in the rush and hurry of approaching revolution. The superb simplicity of mind which could ignore the diversities of human nature was perhaps necessary for the uprooting of old abuses. But the delicate task of constructing a permanent government cannot succeed unless the differences as well as the resemblances among men be taken into account.