Spirit of Laws
by
M. De Secondat
Baron de Montesquieu
Translated from French
by Thomas Nugent. LL.D
The Author’s Advertisement
1. For the better understanding of the first four books of this work, it is to be observed that what I distinguish by the name of virtue, in a republic, is the love of one’s country, that is, the love of equality. It is not a moral, nor a christian, but a political virtue; and it is the spring which sets the republican government in motion, as honour is the spring which gives motion to monarchy. Hence it is that I have distinguished the love of one’s country, and of equality, by the appellation of political virtue. My ideas are new, and, therefore, I have been obliged to find out new words, or to give new acceptations to old terms, in order to convey my meaning. They who are unacquainted with this particular, have made me say most strange absurdities, such as would be shocking in any part of the world, because in all countries and governments morality is requisite.
2. The reader is also to take notice, that there is a vast difference between saying, that a certain quality, modification of the mind, or virtue, is not the spring by which government is actuated, and affirming that it is not to be found in that government. Were I to say, such a wheel, or such a pinion, is not the spring which sets the watch a going, can you infer from thence that they are not to be found in the watch? So far is it from being true that the moral and Christian virtues are excluded from monarchy, that even political virtue is not excluded. In a word, honour is found in a republic, though its spring be political virtue; and political virtue is found in a monarchical government, though it be actuated by honour.
To conclude, the honest man of whom we treat in the third book, chap v, is not the Christian, but the political honest man, who is possessed of the political virtue there mentioned. He is the man who loves the laws of his country, and who is actuated by the love of those laws. I have set these matters in a clearer light in the present edition, by giving a more precise meaning to my expression: and in most places, where I have made use of the word virtue, I have taken care to add the term political.
The Author’s Preface
If amidst the infinite number of subjects contained in this book, there is any thing, which, contrary to my expectation, may possibly offend, I can at least assure the public, that it was not inserted with an ill-intention; for I am not naturally of a captious temper. Plato thanked the Gods, that he was born in the same age with Socrates: and for my part I give thanks to the Supreme, that I was born a subject of that government under which I live; and that it is his pleasure I should obey those whom he has made me love.
I beg one favour of my readers, which I fear will not be granted me; this is, that they will not judge by a few hours reading, of the labour, of twenty years; that they will approve or condemn the book entire, and not a few particular phrases. If they would search into the design of the author, they can do it no other way so completely, as by searching into the design of the work.
I have first of all considered mankind; and the result of my thoughts has been, that amidst such an infinite diversity of laws and manners, they were not solely conducted by the caprice of fancy.
I have laid down the first principles, and have found that the particular cases follow naturally from them; that the histories of all nations are only consequences of them; and that every particular law is connected with another law, or depends on some other of a more general extent.
When I have been obliged to look back into antiquity, I have endeavoured to assume the spirit of the ancients, lest I should consider those things as alike, which are really different; and lest I should miss the difference of those which appear to be alike.
I have not drawn my principles from my prejudices, but from the nature of things.
Here a great many truths will not appear, till we have seen the chain which connects them with others. The more we enter into particulars, the more we shall perceive the certainty of the principles on which they are founded. I have not even given all these particulars, for who could mention them all without a most insupportable fatigue?
The reader will not here meet with any of those bold flights. which seem to characterize the works of the present age. When things are examined with never so small a degree of extent, the sallies of imagination must vanish; these generally arise from the mind’s collecting all its powers to view only one side of the subject, while it leaves the other unobserved.
I write not to censure any thing established in any country whatsoever. Every nation will here find the reasons on which its maxims are founded: and this will be the natural inference, that to propose alterations, belongs only to those who are so happy as to be born with a genius capable of penetrating into the entire constitution of a state.
It is not a matter of indifference, that the minds of the people be enlightened. The prejudices of magistrates have arisen from national prejudice. In a time of ignorance they have committed even the greatest evils without the least scruple; but in an enlightened age they even tremble while conferring the greatest blessings. They perceive the ancient abuses; they see how they must be reformed; but they are sensible also of the abuses of a reformation. They let the evil continue, if they fear a worse; they are content with a lesser good, if they doubt of a greater. They examine into the parts, to judge of them in connection; and they examine all the causes to discover their different effects.
Could I but succeed so as to afford new reasons to every man to love his prince, his country, his laws; new reasons to render him more sensible in every nation and government of the blessings he enjoys, I should think myself the most happy of mortals.
Could I but succeed so as to persuade those who command, to increase their knowledge in what they ought to prescribe; and those who obey, to find a new pleasure resulting from obedience; The most happy of mortals should I think myself.
The most happy of mortals should I think myself, could I contribute to make mankind recover from their prejudices. By prejudices, I here mean, not that which renders men ignorant of some particular things, but whatever renders them ignorant of themselves.
It is in endeavouring to instruct mankind, that we are best able to practise that general virtue, which comprehends the love of all. Man, that flexible being, conforming in society to the thoughts and impressions of others, is equally capable of knowing his own nature, whenever it is laid open to his view; and of losing the very sense of it, when this idea is banished from his mind.
Often have I begun, and as often have I laid aside this undertaking. I have a thousand times given the leaves I had written to the winds: I every day felt my paternal hands fall. I have followed my object without any fixed plan: I have known neither rules nor exceptions; I have found the truth, only to lose it again. But when I once discovered my first principles, every thing I sought for appeared; and in the course of twenty years, I have seen my work begun, growing up, advancing to maturity, and finished.
If this work meets with success, I shall owe it chiefly to the grandeur and majesty of the subject. However, I do not think that I have been totally deficient in point of genius. When I have seen what so many great men both in France, England, and Germany, have said before me, I have been lost in admiration; but I have not lost my courage: I have said with Correggio, “And I also am a painter. ”
Book I
Of Laws in General
Chapter I — Of the Relation of Laws to Different Beings
They who assert, that a blind fatality produced the various effects we behold in this world, talk very absurdly; for, can any thing be more unreasonable than to pretend that a blind fatality could be productive of intelligent beings?
There is, then, a primitive reason; and laws are the relations subsisting between it and different beings, and the relations of these to one another.
God is related to the universe, as Creator and Preserver; the laws by which he created all things, are those by which he preserves them. He acts according to these rules, because he knows them; he knows them, because he made them; and he made them, because they are relative to his wisdom and power.
Since we observe that the world, though formed by the motion of matter, and void of understanding, subsists through so long a succession of ages, its motions must certainly be directed by invariable laws; and could we imagine another world, it must also have constant rules, or it would inevitably perish.
Thus the creation, which seems an arbitrary act, supposes laws as invariable as those of the fatality of the Atheists. It would be absurd to say, that the Creator might govern the world without those rules, since without them it could not subsist.
These rules are a fixed and invariable relation. In bodies moved, the motion is received, increased, diminished, lost, according to the relations of the quantity of matter and velocity; each diversity is uniformity, each change is constancy.
Particular intelligent beings may have laws of their own making, but they have some likewise which they never made. Before there were intelligent beings, they were possible; they had therefore possible relations, and consequently possible laws. Before laws were made, there were relations of possible justice. To say that there is nothing just or unjust but what is commanded or forbidden by positive laws, is the same as saying, that before the describing of a circle, all the radii were not equal.
We must therefore acknowledge relations of justice antecedent to the positive law by which they are established: as for instance, that if human societies existed, it would be right to conform to their laws; if there were intelligent beings that had received a benefit of another being, they ought to show their gratitude; if one intelligent being had created another intelligent being, the latter ought to continue in its original state of dependence; if one intelligent being injures another, it deserves a retaliation; and so on.
But the intelligent world is far from being so well governed as the physical. For though the former has also its laws, which of their own nature are invariable, it does not conform to them so exactly as the physical world. This is, because, on the one hand, particular intelligent beings are of a finite nature, and consequently liable to error; and on the other, their nature requires them to be free agents. Hence they do not steadily conform to their primitive laws; and even those of their own instituting they frequently infringe.
Whether brutes be governed by the general laws of motion, or by a particular movement, we can not determine. Be that as it may, they have not a more intimate relation to God than the rest of the material world; and sensation is of no other use to them, than in the relation they have either to other particular beings or to themselves.
By the allurement of pleasure they preserve the individual, and by the same allurement they preserve their species. They have natural laws, because they are united by sensation; positive laws they have none, because they are not connected by knowledge. And yet they do not invariably conform to their natural laws; these are better observed by vegetables, that have neither understanding nor sense.
Brutes are deprived of the high advantages which we have; but they have some which we have not. They have not our hopes, but they are without our fears; they are subject like us to death, but without knowing it; even most of them are more attentive than we to self-preservation, and do not make so bad a use of their passions.
Man, as a physical being, is like other bodies, governed by invariable laws. As an intelligent being, he incessantly transgresses the laws established by God, and changes those of his own instituting. He is left to his private direction, though a limited being, and subject, like all finite intelligencies, to ignorance and error: even his imperfect knowledge he loses; and as a sensible creature, he is hurried away by a thousand impetuous passions. Such a being might every instant forget his Creator; God has therefore reminded him of his duty by the laws of religion.
Such a being is liable every moment to forget himself; philosophy has provided against this by the laws of morality. Formed to live in society, he might forget his fellow-creatures; legislators have therefore by political and civil laws confined him to his duty.
Chapter II — Of the Laws of Nature
Antecedent to the above-mentioned laws are those of nature, so called, because they derive their force entirely from our frame and existence. In order to have a perfect knowledge of these laws, we must consider man before the establishment of society: the laws received in such a state would be those of nature.
The law which impressing on our minds the idea of a Creator inclines us towards him, is the first in importance, though not in order, of natural laws. Man in a state of nature would have the faculty of knowing, before he had acquired any knowledge. Plain it is that his first ideas would not be of a speculative nature; he would think of the preservation of his being, before he would investigate its original. Such a man would feel nothing in himself at first but impotency and weakness; his fears and apprehensions would be excessive; as appears from instances (were there any necessity of proving it) of savages found in forests, trembling at the motion of a leaf, and flying from every shadow.
In this state every man, instead of being sensible of his equality, would fancy himself inferior. There would therefore be no danger of their attacking one another; peace would be the first law of nature.
The natural impulse or desire which Hobbes attributes to mankind of subduing one another, is far from being well-founded. The idea of empire and dominion is so complex, and depends on so many other notions, that it could never be the first which occurred to the human understanding.
Hobbes inquires, “For what reason men go armed, and have locks and keys to fasten their doors, it they be not naturally in a state of war?” But is it not obvious, that he attributes to mankind before the establishment of society, what can happen but in consequence of this establishment, which furnishes them with motives for hostile attacks and self-defence?
Next to a sense of his weakness man would soon find that of his wants. Hence another law of nature would prompt him to seek for nourishment.
Fear, I have observed, would induce men to shun one another; but the marks of this fear being reciprocal, would soon engage them to associate. Besides, this association would quickly follow from the very pleasure one animal feels at the approach of another of the same species. Again, the attraction arising from the difference of sexes would enhance this pleasure; and the natural inclination they have for each other, would form a third law.
Beside the sense or instinct which man possesses in common with brutes, he has the advantage of acquiring knowledge; and thence arises a second tie, which brutes have not. Mankind have therefore a new motive of uniting; and a fourth law of nature results from the desire of living in society.
Chapter III — Of Positive Laws
As soon as mankind enter into a state of society they lose the sense of their weakness; equality ceases, and then commences the state of war.
Each particular society begins to feel its strength, whence arises a state of war betwixt different nations. The individuals likewise of each society become sensible of their force; hence the principal advantages of this society they endeavour to convert to their own emolument, which constitutes a state of war betwixt individuals.
