Chapter 1: An Idea for This Book

Men are governed by different kinds of laws, by natural law; by divine law, which is that of religion; by ecclesiastical law, otherwise called canonical, which is that of the regime of religion, by the law of nations, which one may consider as the civil law of the universe in the sense that each people is one of its citizens; by general political law, which aims at that human wisdom which has founded all societies; by the law of conquest, based on the fact that one people has wished, has been able, or has been obliged to do violence to another; by the civil law of each society, through which one citizen is able to defend his goods and his life against every other citizen, and finally by the domestic law, which derives from the fact that a society is divided into different families, which need particular governing.

Therefore, there are different arrangements of laws, and the sublimits of human reason consists in knowing well to which of these arrangements the matters over which one must legislate mainly relate, and not to introduce confusion in the principles that ought to govern men.

Chapter 2: About Divine Laws and About Human Laws

One ought not to legislate by divine laws what ought to be by human laws, nor regulate by human laws what ought to be by divine laws.

Those two kinds of laws differ by their origin, by their aim, and by their nature.

Everyone well agrees that human laws are of a nature other than the laws of religion, and that is a great principle. But this principle is itself subject to others that it is necessary to search for.

• 1. The nature of human laws is to be subject to all the accidents that occur, and to vary to the degree the wills of men change. To the contrary, the nature of the laws of religion is never to vary. The human laws legislate about the good; religion about the best. The good may have another aim, since there are several goods. But the best is only one; therefore it cannot change. One can indeed change the laws, because they are not regarded as being good. But the institutions of religion are always assumed to be the best.

Chapter 1: A General Idea

I distinguish laws which form political liberty in its relation to the constitution from those which form political liberty in relation to the citizen. The former will be the subject of the present book. I will deal with the second in the following book.

Chapter 2: Different Meanings Assigned to the Word Liberty

There is no word which has received more different meanings, and which has struck minds in so many ways, than that of liberty. Some have taken it as the facility of disposing of him to whom they had awarded tyrannical power; other as the capacity to elect those whom they owe to obey. Others have taken it as the right to be armed and to be able to practice violence. These have taken it as the privilege of only being governed by a man of their own nation, or by their own laws (aa). A certain people for a long time took liberty as the habit of wearing a long beard (bb).

These have assigned the name to one form of government and excluded all other forms from it. They who had tasted republican government assigned it to this government. They who had enjoyed monarchical government placed it under the monarchy (cc). In sum, each has called liberty the government which was conformed to his customs or his inclinations. And since, in a republic, they do not always have before their eyes, and in so striking a manner, the instruments of the ills about which they complain; and since even the laws appear to speak more while the enforcers of the laws speak less there, one usually places liberty under republics and has excluded it from monarchies. Finally, since in democracies the people seem to do almost what they wish, some have assigned liberty to these kinds of governments, and have confused the people's power with the people's liberty.

Chapter 3: That Which Is Liberty

It is true that, in democracies, the people appear to do whatever they wish, but political liberty does not consist of doing whatever one wishes. In a state—that is, in a society in which there are laws—liberty can only consist in being able to do that which one ought to wish and in not being coerced to do that which one ought not to wish.

How we regard the birth of liberty in North America greatly influences our appreciation of its value today. Scholarship has long and rightly portrayed its origins in traditions antedating the American Revolution. They derive it from the English Common Law and see in the American founding a confirmation of that tradition of English law and custom. The colonists are regarded as having gradually acquired the arts of independent self-government from the historic practices of English indulgence. In that light, they have seen the Revolution as a break from English administration of the colonies, rather than as a decisive advance in theory and principles of self-government. Accordingly, they have systematically discounted the influences of thinkers—English, Scottish, and continental—in originating the Revolution. Rather, they insist, Whiggish activists borrowed the rhetoric of their English cousins to defend their unparalleled exertions on behalf of independence, but with little idea whatsoever of a way of life other than that for which colonial experience had prepared them.

There is considerable truth in this account, inasmuch as the Americans treasured most highly the rights and liberties of Englishmen. They began to defend and articulate their rights to life, liberty, and estates from the earliest date. The 1646 case of Robert Childs et al. testifies powerfully to this history, and not alone. We would be neglectful, however, if we failed to note that these early challenges were generally directed toward colonial exercises of power—as was the rhetoric of Patrick Henry in the Parson's fee case of the late 1750s. In short, it was in the context of seeking out limitations on the colonial exercise of power that Americans so frequently and habitually invoked their ancient rights under the British constitution. This process reached its peak in the use made of the work English Liberties, by Henry Care. It was no accident, to be sure, that Care was probably the most radical of post-settlement Whigs. Yet he did not go far enough for the Americans. In the case of men like Sam Adams, his virulent anti-popery survived far better than his scholarly reliance on English law.

Accordingly, contemporary scholarship is wrong in its central claim—that prior to the Revolution Americans did not meaningfully divide over questions of rights and liberties. They are also wrong to minimize the influence of modern political philosophy in the direction that debate ultimately took.

Book 26 is the summary book. That means that we can use this book as presenting an outline. For Montesquieu returns to everything previously covered in Spirit of the Laws, creating an outline to show the parts in their totality. If we were reading the book from the beginning to the end, we would find in Book 26 a recapitulating outline of the main arguments. They can be placed alongside the developing argument throughout the book, with the only strong exception a total absence of any discussion of climate or material determinism. That question has been put to rest. We observe as much through the discussion of Book 19, where we may observe that, whatever influence climate might have, the potential for human intervention is stronger in terms of producing political coherence.

Climate, thus, is absent, while everything else is included in the outline of Book 26. That enables us to assess how well the argument has been completed. Following Book 26 comes Book 27, the single-chapter book, in which Montesquieu addresses the question of the character and capability that can formulate legislation in conformity with the principles of the outline. What follows the summary, in other words, is the conclusion concerning how the act of legislation is accomplished.

Now, Book 27 is followed by Book 28, which was originally to be the closing book of the entire work. In that book Montesquieu focused on French history, illustrating the development of the principles of analysis and the susceptibility of France to be influenced by these principles. That was originally to be the conclusion, as we see in Book 18 (to which Montesquieu added a chapter 28 echoing Book 28 and providing an indication of how the several parts are coordinated).

Finally, however, he appended three additional books, 29 through 31, which further elaborated the application to and through French history. Thus, the final books, 28 through 31 focus intently on France itself. We may draw two conclusions from this. First, Montesquieu does due justice to France in light of the extended treatment of England. Apart from the discussion of the Salic Laws in Book 18 (which are not exclusive to France) there is little discussion of France throughout the first 27 books. That makes the close of the work appear almost an afterthought. It may also be Montesquieu's way of projecting reform in France.

Chapter 1: About Feudal Laws

I would believe that there were an imperfection in my work, if I silently passed over an event that once occurred in the world, and that will never perhaps reoccur; if I did not speak of those laws that one saw come to sight in a moment in the whole of Europe, without their clinging to what folk until then had known; of those laws that have produced an infinity of goods and evils; that have left some rights upon yielding territory; that, in giving to several persons differing kinds of lordship over the same thing or over the same persons, have diminished the weight of the entire lordship; that have produced regulation with a tendency toward anarchy, and anarchy with a tendency toward order and harmony.

This would demand a dedicated work; but, given the nature of this one, one will rather find here those laws as I have envisaged them than as I have treated them.

It is a beautiful spectacle, that of the feudal laws. An ancient oak grows (a); from far off the eye sees its leaves; one draws near, one sees its branch; but one does not perceive the roots: it is necessary to pierce the earth to discover them.

Chapter 2: About the Sources of Feudal Laws

The peoples that conquered the Roman empire came out of Germany. Although few ancient authors have described their morals for us, we do have two that have very great weight. Caesar, waging war against the Germans, described the Germans’ morals (ab); and it is on the basis of those morals that he based some of his undertakings (bc). A few of Caesar's pages on this subject are volumes.

Tacitus made a work explicitly about the morals of the Germans. It is short, this work; but it is the work of Tacitus, which abridged all because he says all.

These two authors work in such harmony with the barbarian peoples’ law codes that we have, that in reading Caesar and Tacitus one find those codes throughout, and in reading those codes one finds Caesar and Tacitus throughout.

Now, if in researching the feudal laws I see myself in an obscure labyrinth, full of pathways and detours, I believe that I hold the end of the thread, and that I can move ahead.

Chapter 1: About Commerce

The matters which follow demand to be treated with greater extensiveness. But the nature of this work does not permit it. I would wish to float along a tranquil river; I am borne by a torrent.

Commerce cures destructive prejudices. And it is almost a general rule that, everywhere that there are gentle morals, there is commerce, and that, everywhere that there is commerce, there are gentle morals.

Let no one be surprised, therefore, if our morals are less ferocious than they were before. Commerce has produced the result that knowledge of the morals of all nations has penetrated everywhere. Folk have compared them with one another, and from this there have resulted great goods.

One may say that the laws of commerce perfect morals for the same reason that these same laws are fatal to morals. Commerce corrupts pure morals (a). That was the subject of Plato's complaints. It polishes and softens barbarian morals, as we see in our day.

Chapter 2: About the Spirit of Commerce

The natural effect of commerce is to incline to peace. Two nations which trade together make themselves reciprocally dependent. If one has the interest in buying, the other has the interest of selling. And all unions are founded on mutual needs.

But, if the spirit of commerce unites nations, it does not similarly unite individuals. We see that, in countries (ab) where folk are only affected by the spirit of commerce, they traffic in every human action and all the moral virtues. The pettiest matters, those demanded by humanity, there are performed or given for the sake of money.

The spirit of commerce produces in men a certain sentiment of exact justice, opposed on the one hand to banditry and, on the other, all those moral virtues which cause that one does not always discuss his interests with rigidity, and that he may neglect them for the sake of others’ interests.

The complete privation of commerce, to the contrary, produces the banditry which Aristotle ranks in the number of means of acquisitions. Its spirit is not opposed to certain moral virtues. For example, hospitality, most rare in commercial countries, is wonderfully found among bandit peoples.

Chapter 1: About the Laws, in the Relationship They Have with Diverse Beings

The laws, in the broadest meaning, are the necessary relationships which derive from the nature of things. In this sense, all beings have their laws: the divinity (a) has its laws; the material world has its laws; intelligences superior to man have their laws; the beasts have their laws; man has his laws.

They who have said, that “a blind fatality has produced all the effects which we see in the world,” have said a great absurdity: for what greater absurdity [is there] than that a blind fatality could have produced intelligent beings?

There is therefore a primitive reason; and the laws are the relationships which are found between it and the different beings and the relationships of these diverse beings among themselves.

God has some relationship with the universe as creator and preserver. The laws according to which he created are those according to which he preserves. He acts according to these rules because he knows them. He knows them because he has made them. He has made them because they have some relationship with his wisdom and power.

Since we see that the world, formed by the movement of matter, and devoid of intelligence, exists always, it is necessary that its movements would have invariable laws. And if one were able to imagine another world than this one it too would have some constant rules, or it could be destroyed.

Thus the creation, which would appear to be an arbitrary act, supposes some rules as invariable as the fatalism of atheists. It were absurd to maintain that the creator, without these rules, would be able to govern the world since the world could not exist without them.

These rules are a constantly established relationship. Between one moved body and another moved body, it is in accord with the relationships of mass and velocity that all motions are received, increased, diminished, or lost; each diversity is uniformity; each change is constancy.

Individual intelligent beings can have laws that they have made. But they also have some that they have not made. Before there might have been intelligent beings they had to be possible. Thus, they had possible relationships and, in consequence, possible laws. Before any laws might have been made there were possible relationships of justice.

Chapter 1: A General Idea

If it is true that the mind's character and the heart's passions would be extremely different in differing climates, the laws ought to be relative both to the difference of these passions and to the difference of these characters.

Chapter 2: How Much Men Are Different in Differing Climates

Cold air (aa) tightens extremities of the exterior fibers of our body; that increases their energy and encourages the return of blood from the extremities to the heart. It diminishes the length (b)b of those same fibers; therefore it thereby increases their force. Hot air, on the other hand, releases the extremities of the fibers, and lengthens them. Therefore, it diminishes their strength and energy.

Therefore one has greater vigor in cold climates. The heart's activity and the reaction of the fiber's extremities perform better, the fluids are in better equilibrium, the blood is more impelled toward the heart, and reciprocally the heart has greater power. That greater strength ought to produce many effects; for example, more confidence in oneself, which is to say, more courage; more understanding of one's superiority, which is to say, less desire for vengeance; greater opinion of one's safety, which is to say, more candor, and less suspicion, policy and ruse. In sum, this ought to produce quite different characters. Place a man in a hot and closed place, and he will suffer, for the reasons I’m happening to relate, an intense heart failure. If, under that circumstance, one approaches him to propose a bold deed, I believe that one will find him very little open to it. His present weakness will cast discouragement over his soul. He will fear everything, for he will feel that he can do nothing. The peoples from hot countries are timid, as the elderly are. Those from cold countries are courageous, as youths are. If we pay attention to the last (c) wars, which are those which we have most beneath our eyes, and in which we are better able to see certain slight effects, imperceptible from afar, we will well sense that the peoples of the north, transferred into southerly countries (d), have not performed such beautiful actions there as their compatriots who, fighting in their own climate, profited from their entire courage.

The strength of northern people's fibers causes [the effect] that the heaviest nutrients are extracted from the foods.

Book 18 of Montesquieu's Spirit of the Laws consistently defies explication. Its 31 chapters seem to most commentators to constitute a heterogeneous melange, the parts bearing no or little relation to the whole—or, to express it still more precisely, there being no whole at all, there are consequently no parts. (Book 18 is the only book in which the number of chapters equals the number of books in the entire work. Its interpretative history parallels the history of the interpretation of The Spirit of the Laws. It is notable, moreover, that the last chapter added, chapter 28, Montesquieu prepared as he approached his deathbed, which act made the total of 31 chapters.) Thus, each chapter is treated as sui generis or, at most, as related only to a handful of others. The present account highlights the design, both within Book 18 and within Spirit of the Laws as a whole.

The Place of Book 18 in the Order of Spirit of the Laws

Book 18 opens with the Thucydidean declaration that the bounty or stinginess of the terrain determines, respectively, a people's tendency toward, on the one hand, dependence and subjection or, on the other hand, industry and liberty. After illustrating this principle with a few following chapters, Montesquieu declares in his own name (chapter 10) that a people's mode of subsistence determines the number of inhabitants in a land (or what is the same thing, the extent of territory required to support them). But such distinctions eventuate also in differences in the civil and political conditions of peoples (chapters 13–21). Finally, Montesquieu explains the derivation of what is ordinarily called the Salic law from the savage or barbarian circumstances and mode of existence of the Germanic peoples (chapters 22–31).

Most of the difficulty in Book 18 derives from the final 10 chapters, 22–31, which constitute a vigorous and ambitious re-statement of the primitive origins of French monarchy, under the guise of re-stating the origins of Salic laws. Thus, at least, the matter is generally conceived by commentators, who observe correctly that those chapters did not figure in the initial manuscript and, moreover, seem to every appearance to be related to the historical material in Book 28 and Books 30 and 31.

Chapter 1: About the Simplicity of Civil Laws in Different Governments

Monarchical government does not admit of laws as simple as the despotic. Tribunals are required. Those tribunals give judgments. The judgments must be preserved; they must be learned, so that one may judge today as they judged yesterday, and so that citizens’ lives and property may be safe and stable like the state's constitution itself.

The administration of a justice that decides not only of life and property but, in a monarchy, also of honor demands scrupulous inquiries. The judge's meticulousness increases to the extent that he has a larger depository and that he rules on greater interests.

Therefore, one must not be surprised to discover in the laws of these states, so many regulations, restrictions, and extensions which multiply individual cases and seem to make an art of reason itself.

The differences of rank, origin, and status established by monarchical government often lead to distinctions in the nature of property. And laws relative to the constitution of this state can increase the number of these distinctions. Among us, thus, properties are distinguished by titles held as individuals, community property, or from conquest; as dowried, or a wife's goods apart from the dowry; as paternal and maternal. There are several types of movable goods: free or substituted; in the lineage or not; nobles, by free hold, or plebeians; real estate rents, or rents set by the price of money. Each sort of property is subjected to individual rules. To dispose of it one must follow the rules, which further eliminates simplicity.

In our modern governments fiefs have become hereditary. It was required that the nobility have some continuity to the end that the owner of the fief would be in a position to serve the prince. That had to produce much variety. For example, there are some countries in which they have not been able to divide fiefs among brothers. In others cadets have been able to have their subsistence more extensively.

The monarch who knows each of his provinces is able to establish diverse laws or to allow differing customs. But the despot knows nothing and is able to give attention to nothing. A general direction is necessary for him. He governs by a rigid will which is the same throughout. All is leveled beneath his feet.

Chapter 1: Idea of This Book

We see now that laws of education must be relative to the principle of each government. Those which the legislator gives the whole society are in the same case. This relationship of the laws to that principle aligns every spring of the government, and from this that principle receives, in its turn, a new strength. Thus it is, as in physical movements, action is always followed by a reaction.

We are going to examine this relationship in each government, and we will begin with the republican state, which has virtue for principle.

Chapter 2: What Virtue Is in the Political State

Virtue in a republic is a very simple thing: it is the love of the republic; it is a feeling, not a sequence of understandings. The least man of the state may have this feeling, like the first. Once the people possess good maxims, they hold onto them for a longer time than them one calls honest folk. It is rare that corruption originates with the people. Often they derive from the mediocrity of their lights a stronger attachment for what is established.

Love of the fatherland leads to goodness of morals, and goodness of morals leads to love of the fatherland. The less we are able to satisfy our individual passions, the more we give ourselves to the general. Why do monks so much love their order? It is precisely by reason of that which makes it unbearable for them. Their regulation deprives them of everything upon which ordinary passion might alight. There remains, therefore, that passion for the very regulation which afflicts them. That is to say, the more austere it is, the more it undercuts their inclinations, the greater strength it imparts to those inclinations which it permits.

Chapter 3: What Love of the Republic Is in Democracy

The love of the republic in a democracy is love of the democracy; the love of democracy is love of equality.

The love of democracy, further, is love of frugality. Everyone there having to have the same happiness and the same advantages, they must taste the same pleasures and form the same aspirations. This is something one might only expect from a general frugality.

The love of equality in democracy limits ambition to the sole desire, the sole happiness, of offering one's fatherland greater services than the other citizens.

Chapter 1: Changes in the Offices and the Fiefs

In the beginning counts were only sent into their districts for one year; soon they purchased the continuation of their offices. One finds an example of this starting with the reign of Clovis's grandchildren. A certain Peonius was a count in the town of Auxerre (a); he sent his son Mummolus to carry the silver to Gontran in order to be retained in his post; the son gave the silver for himself and obtained his father's place. The kings had already begun to corrupt their own favors.

Though, by the kingdom's law, the fiefs were alienable, they nevertheless were neither given, not taken away in a capricious and arbitrary manner; and it was usually one of the main things that was bargained in the nation's assemblies. One may think that the corruption slipped in at this point, as it had slipped in at the other; and that they retained possession of fiefs for silver, as they retained possession of counties.

I will show, in what remains of this book (b), that independently of the gifts that princes made for a set time, there were others that they made permanently. It occurred that the court wished to revoke the gifts that had been made: that placed a general discontent in the nation, and they soon saw born that famous revolution in the history of France, the first stage of which was the astonishing spectacle of Brunhilda's punishment.

It initially seems extraordinary that this queen, daughter, sister, mother of so many kings, still famous today by some works worthy of a Roman aedile of proconsul, born with an admirable genius for public matters, endowed with qualities that had been respected for a long time, should come to be seen suddenly exposed to such long, shameful, and cruel punishments (c), by a king (d) whose authority was ill enough established in his nation, if she had not fallen, for some particular cause, into that nation's discrage. Clotaire blamed her for the deaths of ten kings (e); but there were two of those that he himself caused to die; death for some others was the crime of chance or the wickedness of another queen; and a nation that had permitted Fredegund to die in her bed, that even had opposed punishment for her frightful crimes (ff ), ought indeed to be cold about those of Brunhilda.

Chapter 1: About the Different Character of the German Peoples's Laws

The Franks having left their country, they caused the Salic laws to be digested by the wise of their nation. (a) The tribe of Ripuarian Franks having joined with that of the Salian Franks, under Clovis (b), it preserved its practices, while Theodoric (c), King of Austrasia, caused them to be placed in writing. He similarly collected the practices of the Bavarians and Germans (d) who were subject to his kingdom. For Germany being weakened by the exit of so many peoples, the Franks, after having conquered ahead of themselves, made a step backwards and carried their domination into the forests of their fathers. There is some appearance that the code of the Thuringians was given by the same Theodoric (e), since the Thuringians were also his subjects. The Frisians having been subdued by Charles Martel and Pepin, their law is not anterior to those princes (ff ). Charlemagne, who first conquered the Saxons, gave them the law that we have. One only has to read those two last codes in order to see that they come from the hands of conquerors. The Visigoths, Burgundians, and Lombards, having founded kingdoms, caused their laws to be written, not in order to make conquered peoples follow their practices but in order to follow them themselves.

In the Salic and Ripuarian laws, in those of the Alemanni, the Bavarians, the Thuringians and Frisians, there is an admirable simplicity. One finds in them an original rusticity, and a spirit which had not been weakened by a different spirit. They changed little, for those peoples (if one excepts the Franks) remained in Germany. The Franks even founded a large part of their empire there; thus were their laws wholly Germanic. It was not the same in this for the laws of the Visigoths, Lombards, and Burgundians. Their laws lost much of their character, because those peoples, who settled in their new dwellings, lost much of their own.

The kingdom of the Burgundians did not endure sufficiently long that the conquering people's laws might be able to receive any great changes. Gundibald and Sigismond, who collected their practices, were almost the last of their kings. The Lombards’ laws received additions rather than changes.

Chapter 1: About Religions in General

Just as one may judge among darknesses those which are least thick and among chasms those which are least profound, thus may one seek among false religions those which are most consistent with the good of the society; those which, though they do not have the result of leading men to the felicity of the next life, are most able to contribute to their happiness in this one.

Therefore I will examine the world's diverse religions only in relation to the good which folk in the civil state derive from them, whether I should speak of that whose roots are in heaven or, indeed, of those whose roots are on the earth.

Since, in this work, I am no theologian, but a political writer, there could be here some things that should be entirely true only in a human way of thinking, not having been considered in relation to more sublime truths.

In regard to true religion, it requires but very little fairness to see that I have never presumed to make its interests yield to political interests, but to unite them. Now, in order to unite them it is required to know them.

The Christian religion, which commands men to love one another, doubtlessly intends that each people would have the best political laws and the best civil laws, for they are, after it, the greatest good which men would be able to give and receive.

Chapter 2: Bayle's Paradox

Mr. Bayle has presumed to prove that it were worth more to be an atheist than an idolater (a); which is to say, in other terms, that it is less dangerous to have no religion at all than to have one of the bad. “I would prefer,” says he, “that one might say about me that I do not exist, rather than if one said that I am a wicked man.” That is only a sophism, based on the idea that it is of no utility to humankind whether one believe that a certain man exists, whereas it is most useful that one believe that god is. From the idea that it is not, the idea of our independence follows; or, if we are unable to hold that idea, that of our revolt.