Montesquieu and the Despotic Ideas of Europe: An Interpretation of "The Spirit of the Laws" 9780226483078

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montesquieu and the despotic ideas of europe

montesquieu and the despotic ideas of europe An Interpretation of The Spirit of the Laws

vickie b. sullivan

the university of chicago press chicago and london

The University of Chicago Press, Chicago 60637 The University of Chicago Press, Ltd., London © 2017 by The University of Chicago All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission, except in the case of brief quotations in critical articles and reviews. For more information, contact the University of Chicago Press, 1427 E. 60th St., Chicago, IL 60637. Published 2017 Printed in the United States of America 26 25 24 23 22 21 20 19 18 17 1 2 3 4 5 isbn-13: 978-0-226-48291-0 (cloth) isbn-13: 978-0-226-48307-8 (e-book) doi: 10.7208/chicago/9780226483078.001.0001 Library of Congress Cataloging-in-Publication Data Names: Sullivan, Vickie B., author. Title: Montesquieu and the despotic ideas of Europe : an interpretation of the Spirit of the laws / Vickie B. Sullivan. Description: Chicago ; London : The University of Chicago Press, 2017. | Includes bibliographical references and index. Identifiers: lccn 2016058491 | isbn 9780226482910 (cloth : alk. paper) | isbn 9780226483078 (e-book) Subjects: lcsh: Montesquieu, Charles de Secondat, baron de, 1689–1755. De l’esprit des lois. | Despotism—Europe. | Despotism—Religious aspects—Christianity. | Political science—Philosophy. | Christianity and politics—Europe. | Machiavelli, Niccolò, 1469–1527. | Hobbes, Thomas, 1588–1679. | Plato. | Aristotle. Classification: lcc jc179.m753 s95 2017 | ddc 321.9094—dc23 LC record available at https://lccn.loc.gov/2016058491 ♾ This paper meets the requirements of ansi/niso z39.48-1992 (Permanence of Paper).

To the outstanding undergraduate students of Tufts University with whom I have studied Montesquieu

contents

Acknowledgments A Note on Citations

ix xi

Introduction

1

Part I. The Ideas of Montesquieu’s Modern European Predecessors 1. 2.

The Greatness of Machiavelli and the Despotic Disease of His Politics—Both Princely and Republican

23

Montesquieu’s Attack on the Political Errors of Hobbes

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Part II. Christian Ideas 3. 4.

Religious Ideas and the Force of Christian Ones in Modern Europe The Ideas of Early Christianity, Their Absorption in Roman Law, and Their Abusive Reverberations in Modern Europe

81 111

Part III. The Ideas of the Ancient Legislators 5. 6.

Montesquieu’s Opposition to Plato’s Belles Idées and Their Diffusion

139

Aristotle’s “Manner of Thinking” and the Deleterious Use of His Ideas

169

Conclusion Notes Bibliography Index

205 219 267 281

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he ideas for this book took root and developed over the course of several years in seminars on the political thought of Montesquieu, which I have had the privilege of teaching at Tufts University. I am deeply appreciative of the engagement and acumen of the wonderful undergraduate students who populated these seminars, and it is therefore to them that I have dedicated it. I cannot imagine a more joyful engagement with the power of ideas than that which these students offered me. I thank in particular those students who, after completing my seminar on Montesquieu’s political thought, participated the following semester in an informal reading group on the less studied books of The Spirit of the Laws: Scott Dodds, Nathaniel Gilmore, Lisa Gilson, Vivian Haime, Michael Hawley, Justin Kanter, and Anna Maria Melachrinou. Also deserving of particular mention are the outstanding research assistants who have assisted me in the completion of this book: Nathaniel Gilmore, Michael Hawley, Zachary Shufro, Alexander Trubowitz, and Cody Valdes. When their contributions to my argument surpass what an acknowledgment here alone can convey, I express my particular debts in my notes. Justin Race was a perceptive interlocutor before the idea of the book had taken root. Nathaniel Gilmore and Katherine Balch have gone on to become my collaborators on other projects on Montesquieu. My colleagues in the Department of Political Science at Tufts have also been extremely generous with their time and advice: Robert Devigne, Ioannis Evrigenis, Malik Mufti, and Dennis Rasmussen. Their trenchant criticisms challenged me and improved my argument. Catherine and Michael Zuckert of Notre Dame University were always extremely generous with their time and advice, for which I am grateful. I would also like to express

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ack now ledgments

my gratitude to the anonymous reviewers of the University of Chicago Press and to John Tryneski for his support and sage advice. Researchers could not ask for more enthusiastic and helpful librarians than those at Tisch Library at Tufts. I wish also to acknowledge the Boston Athenæum for providing me access to its Rare Books Collection. History of Political Thought allowed me to reprint material in chapter 1 that originally appeared in an article, and material contained in chapter 3 is reprinted courtesy of University of Notre Dame Press. Finally, my daughters, Joan and Anne, supported me in ways too many to name and always displayed good humor mixed with indulgent bemusement regarding my fascination with this elusive thinker.

a n o t e o n c i t at i o n s

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eferences to The Spirit of the Laws in both English and French will appear in the text. The English translation of Anne M. Cohler, Basia C. Miller, and Harold S. Stone will be cited by book, chapter, and page number. Quotations from the two-volume Pléiade edition will be indicated by OC and followed by volume and page number.

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Le mal est venu de cette idée. —Montesquieu, De l’Esprit des lois

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he prodigious amount of learning that Montesquieu’s The Spirit of the Laws exhibits is almost inhuman. His commentary reveals his knowledge of ancient and modern histories, the accounts of travelers to the Indies, Africa, China, Turkey, Japan, Persia, Mongolia, Russia, and the Americas, digests of laws, religious treatises, Greek tragedy, and ancient geographical records, for example. He remarks on the beliefs among the people of Pegu and the practices of the Garamantes. The first line of his preface refers rather immodestly to this voluminous learning by mentioning in passing “the infinite number of things in this book” (pr., xliii). Although Montesquieu unabashedly announces the vast attainment of knowledge he places on display in the work, he is seemingly modest in his aspirations for its critical impact. Montesquieu declares of his purpose: “I do not write to censure that which is established in any country whatsoever” (pr., xliv). With this declaration, he seems not to want to improve the human world let alone to remake it, but rather to document and to transmit its immense variety.1 Moreover, it must be said that Montesquieu in this work is no crusader; he proceeds not by vociferously deeming some practices and laws unjust and others just. Nor does he provide his readers with the specific criteria by which to judge when their governments are illegitimate and, hence, when citizens have legitimate grounds for resistance. His approach to the political world is different in these regards from both that of the Christian natural law tradition and that of John Locke’s appeal to natural rights, for example.2 Despite Montesquieu’s avowed respect for the folkways of all human beings, there is one aspect of his presentation of the political world that he 1

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depicts with such horrifying brutality that no reader can miss his intense disdain for it, and that is the form of government he terms despotism. On his depiction, it is a hateful form that elevates one alone to govern without any restraints and hence according to the ruler’s arbitrary caprices. The despot of The Spirit of the Laws is an utterly contemptible figure, enthralled by private pleasures, who nevertheless absorbs all of the power in the state, making sure that all government officials and functionaries owe their authority to no other source than his will alone. This type of government beats down the spirits of those whom it rules so as to terrify all who might oppose it. It is violently oppressive, often murderously so.3 Moreover, Montesquieu is famous for overtly associating despotism with Asia and the Middle East— Turkey, China, Persia, and Japan, for example—and not with Europe. A contemporary scholar on this basis might be inclined to term Montesquieu an Orientalist, one who gazes at exotic foreign cultures in order to exert control over these distant peoples both in thought and in reality. On such an understanding, Montesquieu turns his gaze to the East in order to glean its pathologies, to stigmatize them, and to assert the superiority of the far more mild politics of Christian Europe.4 Viewed from this perspective, his work offers a sharp divide between the violent and despotic East and the moderate and free West, and he himself is neither quite as neutral nor as culturally sensitive as he is sometimes depicted. Thus, a deep contradiction exists in the literature on Montesquieu, a contradiction that has a legitimate and perplexing basis in his great work, The Spirit of the Laws. On the one hand, it is possible to understand him, as many readers have, as dispassionately neutral and objective and thus reticent to cast disparaging judgments on the peoples of the world and their laws and mores. Faced with the vast diversity of human laws, institutions, manners, and mores, he offers no universal standard for right action and just laws. On the other hand, it is possible to understand his work’s horrifying depiction of despotism, which he forcefully associates with the retrograde East and not the enlightened West, as anything but impartial. Stated in these terms, he would appear to write to applaud the West and to condemn the East. Both assessments of Montesquieu contain important but incomplete insights into his purposes in his masterwork. He does, in fact, appreciate the diversity of the particular institutions, laws, mores, and manners of the various peoples of the world, many of which, he observes, seem absurd to outsiders who have not been so acculturated. For example, the king of Pegu laughed himself to incapacity when he discovered from his Venetian

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visitor that there was no king in his homeland, Montesquieu reports without so laughing (19.2, 309). The Spanish justified their enslavement of the natives of the Americas based on their scorn for these people’s habits of smoking tobacco, not trimming their beards, and considering crabs, snails, crickets, and grasshoppers as produce fit for human consumption (15.3, 248– 49). Montesquieu does not so scorn the natives, although ultimately he does scorn the Spanish for their inhumanity, as we shall see. Despite his respect and appreciation for the diversity of cultures, Montesquieu does engage in a critical project with the hope of ameliorating some of the extremely cruel practices of political and religious authorities. It should be noted that in his preface to the work, immediately after he declares that he does “not write to censure that which is established in any country whatsoever,” he concludes that “changes can be proposed only by those who are born fortunate enough to fathom by a stroke of genius the whole of a state’s constitution” (pr., xliv). That is a very high standard, indeed, but nevertheless Montesquieu envisions the possibility of change and improvement, however careful and circumspect.5

CRITICAL ENGAGEMENT WITH THE EAST AND THE WEST As one commentator notes, “The Spirit of the Laws is less a joyful celebration of human cultural creativity than it is a melancholy commentary on man’s remarkably creative inhumanity to man.”6 Indeed, Montesquieu presents, throughout the work, a vast multitude of perpetrators of violent inhumanity. The high court of ancient Athens sent a child to death for putting out the eyes of a bird (5.19, 71). The Bactrians had their elders eaten by dogs and the Carthaginians sacrificed their children (10.5, 142). Medieval kings of England tortured the Jews of their realm in order to appropriate their wealth (21.20, 388). Emperor Tiberius had the executioner rape young girls so as to evade the law that declared that girls who were not nubile could not be put to death (12.14, 200). Japanese officials sought to punish a young woman who participated in a romantic intrigue as well as another who did not reveal the other’s involvement by shutting them both “in a box studded with nails until they died” (12.17, 202). Magistrates “in the East” “exposed women to elephants trained for an abominable kind of punishment” (12.14, 200). French officials break highway robbers on the wheel (6.12, 84–85).7 The Portuguese Inquisition in Montesquieu’s own time burned a young Jewish woman for heresy (25.13). Montesquieu draws these examples of cruel acts, most vengeful acts of punishment, from modern as well as ancient times, from the West as well as the East.

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In cataloguing these atrocities, Montesquieu rarely denounces or condemns. Most of these instances of extreme inhumanity he presents in dry reportage, without comment and without feeling, and in them those readers who are struck by his stalwart objectivity find striking textual support for his apparent lack of a critical project. But in a few noteworthy instances, Montesquieu allows his own assessment and his own distress to burst through his generally neutral approach, thus allowing his readers to catch a glimpse of his own mourning for the victims of human cruelty. In these instances, he is not neutral and surely means to instruct his readers on the proper stance toward such atrocities. For example, he terms the extermination of the Mexicans at the hands of the Spanish “one of the greatest wounds [plaies] mankind [le genre humain] has yet received” (4.6, 37; OC 2: 269; see also 10.4, 142). “In order to hold America, [Spain] did what despotism itself does not do; it destroyed the inhabitants” (8.18, 125).8 Having gazed so long and so widely at cruelty, he has familiarized himself with the greatest wounds to humanity that can be known, and he stigmatizes the Spanish as having committed one of the greatest. When recounting how Japanese magistrates, in punishing crimes, compelled mothers and sons to engage in an activity he declares he cannot name, his narration breaks off as he admits that he “cannot go on,” as the unnamed punishment “made even nature tremble” (12.14, 201). He thus allows his reader to perceive his anguish. In addition, he writes in opposition to torture, claiming that these cruel techniques are unnecessary for criminal investigations. He corroborates his claims by noting that a state that eschews torture meets with no “drawbacks.” Turning then to the practices of the ancient republics, he glimpses the agonies of their slaves: “I was going to say that slaves among the Greeks and Romans. . . . But I hear the voice of nature crying out against me” (6.17, 93).9 He raises the topic only to curtail his discussion. Nature cries out against these practices, and his ensuing silence on the matter makes a dramatic point regarding his own need to obey nature’s voice even if the torturers of the slaves did not.10 When reflecting on such extreme examples of humanity’s inhumanity—in modern times as well as in ancient, in Europe as well as in Asia—he intently displays a level of emotion that reveals him to be sharply critical of the perpetrators.11

THE MOST IMPORTANT KNOWLEDGE When depicting humanity’s inhumanity, in all times and in all parts of the globe, Montesquieu focuses primarily on the acts of political entities on their populaces. Excessively cruel punishments are a particular interest of

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his, therefore, and his treatment of them extends far beyond books 6 and 12, his two books explicitly devoted to criminal judgments and penalties. Indeed, he touches on accusations, judgments, penalties, and punishments in every one of the thirty-one books of the work other than book 9, devoted to defensive force. The topic of taxes, for example, occasions his reflection that tax fraud should not be punished with “extravagant penalties like those inflicted for the greatest crimes.” Too harsh a response to a minor infraction, he explains, “removes all proportion in penalties,” and as a result, people “whom one could not consider wicked are punished like scoundrels, which is the thing in the world most contrary to the spirit of moderate government” (13.8, 218). His concern with governments’ inhumane treatment of citizens permeates almost all the recesses of this massive work containing an “infinite number of things.” Montesquieu’s interest in criminal judgments and penalties surely derives from the immense significance that he ascribes to them—a significance that he insists cannot be overestimated. In the second chapter of book 12, entitled “On the liberty of the citizen,” he declares: “The knowledge already acquired in some countries and yet to be acquired in others, concerning the surest rules one can observe in criminal judgments, is of more concern to mankind than anything else in the world” (12.2, 188). This statement is strikingly significant on several different levels. First, Montesquieu declares that criminal procedure is the most important knowledge for human beings to acquire. As Aurelian Craiutu, who highlights the Frenchman’s moderation, points out, his “use of the superlative” “is striking because Montesquieu was notoriously reluctant to make bold generalizations.”12 Second, he gives this particular superlative a vast range by failing to limit its application. He does not say, for example, that this is the most important knowledge related to politics or to political philosophy; he says it is the most important knowledge simply.13 Third, he declares that there is specific knowledge regarding criminal judgments to be had. Because he posits a specific knowledge, he is far from affirming, in this particular regard, the multiplicities of approaches revealed by the infinite variety of cultures as all equally valid. He posits something that appears far less flexible and far less particular: a correct way and an incorrect way of proceeding in criminal matters. From this recognition directly follows another—namely, his statement assumes a potential ranking among states on the basis of their attainment of this knowledge. Some have attained it, others have not, and still others have attained it imperfectly. His treatment of the use of witnesses during trials offers examples of specific nations in the second and third categories. Unidentified states have laws that “send a

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man to his death on the deposition of a single witness,” and that, therefore, “are fatal to liberty.” The ancient Romans and Greeks improved on this approach by adding the requirement of another witness for a conviction. The French, however, add the requirement of “two” additional voices. The French have improved on the practice of the ancients on the basis of this most important knowledge. “The Greeks claimed that their usage had been established by the gods, but ours was,” he declares (12.3, 189). Human ingenuity can supply the answers to this most important of issues, and he ranks nations according to their attainment of them. The laws of the Greeks, he judges, do not deserve the status this ancient people accorded them. Only the best laws earn the designation divine in Montesquieu’s view. Therefore, Montesquieu acknowledges the possibility of improvement and reform on the basis of this knowledge. Indeed, he explicitly identifies an improvement in the use of witnesses in criminal trials that occurred in Europe from the time of the ancients to his own. But, of course, that is very gradual change. In addition, he holds out no hope for the success of the sudden imposition of new practices on a society, even if based on such benign knowledge. He himself points out how hateful the criminal procedure of the Romans was to the Germans, his barbarian forebears, who had utterly no experience with courts and the pleadings of lawyers (19.2, 308–9). These invaders from the north were a people far down in his ranking of the attainment of the most important knowledge and their conquerors far more advanced. As important as the knowledge that the Romans had attained was, the imposition of the Roman methods on the Germans could be described as a form a tyranny, a tyranny “of opinion, which is felt when those who govern establish things that run counter to a nation’s way of thinking” (19.3, 309).14 Therefore, he is most circumspect in suggesting change. In a different context, he speaks of “the dangers of great change” and suggests that “the drawbacks that one foresees” “are often less dangerous than those one cannot foresee” (21.23, 397). Nevertheless, Montesquieu does not for these compelling considerations give up on the promise of the transmission of knowledge and the countering of prejudices. He affirms at the beginning of the work how important it is that “the people be enlightened” and continues that “the prejudices of magistrates began as the prejudices of the nation” (pr., xliv). Shortly thereafter he proclaims his personal ambition to initiate a change of sorts in the current state of things. He declares: “I would consider myself the happiest of mortals if I could make it so that men were able to cure themselves of their prejudices,”15 noting that he terms “prejudices not what makes one unaware of certain things but what makes one unaware of oneself.” Human

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beings are so “flexible” and so quick to adapt themselves “in society to the thoughts and impressions of others” that they are “capable of” “losing even the feeling” of their “own nature” “when it is concealed” from them (pr., xliv–xlv). Thus, in the face of “the infinite diversity of laws and mores” and the extreme flexibility of human beings (pr., xliii), Montesquieu identifies the most important knowledge available to human beings, and his Spirit of the Laws transmits it. Although he uses European countries as examples of the progress that can be made with respect to this most important knowledge, he also shows Europe’s regress, as various European countries, as we have already seen in the catalog of cruelties above, have in the past committed cruelties—even atrocities—and continue to do so in his own time.16 Indeed, immediately after recounting the ridiculous justification given by the Spanish for enslaving the natives of America, he declares: “Knowledge makes men gentle, and reason inclines toward humanity; only prejudices cause these to be renounced” (15.3, 249). His dispersion of knowledge in these matters could have a beneficial effect.

DESPOTISM, EAST AND WEST Despotism is a constant threat to the implementation of Montesquieu’s most important knowledge. Consequently the unmasking of despotism, wherever it lurks, is a central focus of Montesquieu’s political project.17 He needs to unmask it because it is a vastly more expansive and insidious phenomenon than a brief consideration of his treatment of the regimes of the East would suggest. Sharon Krause remarks that in Montesquieu’s view, “despotism permeates, or threatens to permeate, the West as well as the East.”18 Not only are there despotic governments in the political world his work describes, Montesquieu also shows how the alternative forms of government can manifest despotic tendencies. He frequently applies the terms “tyranny” and “tyrant” to designate those who overthrow a republic, particularly a democracy,19 but the author also frequently uses the term “tyranny” to denote a government’s violent actions against its own subjects (19.3, 309). Despotism, in particular, produces just such tyrannical actions, and he notes in one place that “tyranny” is “never a new thing in those sorts of states” (25.11, 488). Nevertheless, other types of governments are vulnerable to just those sorts of violent actions. In fact, he warns that republics can be susceptible to a particular type of violent tyranny, as we shall see in the first chapter (12.18, 202–3; OC 2: 447). In addition, a “senate” might

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make “tyrannical laws” in order to “execute them tyrannically” (11.6, 157). Similarly, he discerns arbitrary and absolute power within regimes that are not designated as despotisms. He warns that if the legislative and the judicial power are joined in any regime whatsoever, then “the power [le pouvoir] over the life and liberty of the citizens would be arbitrary [arbitraire]” (11.6, 157; OC 2: 397). As to absolute power, he identifies it, as we shall also see, in the republics that Plato described: “Plato’s law was formed along the lines of the institutions of the Lacedaemonians, where the orders of the magistrate were completely absolute [totalement absolus]” (29.9, 606; OC 2: 870). He issues a warning, in fact, that he clearly means to resonate in Europe of the dangers of such tendencies in all monarchies: “Thus princes who have wanted to make themselves despotic [despotiques] have always begun by uniting in their person all the magistracies, and many kings of Europe have begun by uniting all the great posts of their state” (11.6, 158; OC 2: 398). Therefore, he shows that various forms of government can share some of the salient and lamentable characteristics of despotism: violent tyranny, arbitrariness, and absolutism. Despotic practices, Montesquieu shows, infiltrate institutions, religions, and cultures that are not themselves, by definition, fully formed despotisms.20 These practices work to centralize power; they inflict vengeful retaliation; they deny people the right to self-defense; they counter the life-affirming effects of commerce; they terrorize people, making souls atrocious; and they kill guilty and innocents alike. Thus, they constantly contravene the tenets of what he terms the most important knowledge. Despotism, in fact, lurks in Europe where few seek it, a careful reading of his master work suggests. The despotic practices may not always produce fully formed despotisms, but wherever such practices are accepted and implemented they produce unfortunate and unnecessary victims. Behind the despotic practices of Europe are the various philosophical and religious ideas, emanating from the lands of Europe, that are themselves “despotic.” When put into practice these ideas leave cruel, even bloody, consequences in their wake. Indeed, when he uses the formulation idées despotiques in the work, he refers to the deplorable punishments that such ideas inspire (OC 2: 330; 6.20, 94).21 These cruel ideas are embedded in the very mindset of Europe, a careful reading of his masterwork shows. In some cases, hoary philosophical authorities articulate and advocate for such ideas. Remaining ensconced in revered sources, they can wait for centuries to be rediscovered and revived. In other cases, religious doctrines and teachers have promulgated ideas that induce human beings to commit earthly outrages for the sake of heavenly salvation. In still other cases, Mon-

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tesquieu’s more recent predecessors, thinking that they could correct such abuses, introduced their own abuses in the form of despotic ideas that advocated for a superlatively powerful and terrifying political response. Thus, in some cases even the European ideas that ostensibly oppose despotic ideas are themselves despotic. Montesquieu warns of just such a result: “One feels the old abuses and sees their correction, but one also sees the abuses of the correction itself” (pr., xliv). In this manner, the despotic ideas of Europe possess both longevity and geographical range, and therefore remain a constant threat.22 At one point, Montesquieu even considers the possibility that Europe could be subjected not only to despotic practices that emanate from despotic ideas but to despotism itself: “But if, by a long abuse of power or by a great conquest, despotism became established at a certain time, neither mores nor climate would hold firm, and in this fine part of the world, human nature would suffer, at least for a while, the insults heaped upon it in the other three” (8.8, 118). Alain Grosrichard argues that of the two possibilities, “only the first was in earnest at the time when Montesquieu was writing, since he was thinking of the ‘lengthy abuse of power’ of Louis XIV and the corruption of the constitutive principles of the French monarchy which was exacerbated after his death.”23 But the second possibility—that of “a great conquest”—was not so very distant a possibility. The same king’s territorial ambitions had presented Europe in the early part of the eighteenth century with the possibility of just such a despotic conquest, but one that emanated not from the East.24 Montesquieu thus indicates that despotism itself is a threat not merely on Europe’s eastern flank but also resides at its very heart. As events unfolded after his death, Montesquieu’s assessment of Europe’s continuing susceptibility to despotism proved to be remarkably and regrettably prescient. From 1789 to 1989, despotism wound its way through Europe, emerging with particularly virulent intensity at salient points: with the Terror perpetrated by the Committee of Public Safety and with the concentration and extermination camps of the Nazis as well as with the Ministry for State Security in East Germany. One could descry it also in the twentieth century in the Spain of Francisco Franco and in the Italy of Benito Mussolini. No one who merely glances at this history can deny the enduring need for the lesson that Montesquieu endeavored to teach in The Spirit of the Laws—that the West, as well as the East, is susceptible to despotism. An examination of Montesquieu’s critical scrutiny of despotic practices embedded in the European mindset can only serve to make all people more alive to the ever-present threat of despotism in the political condition.25

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Montesquieu’s attention to the various manifestations of European despotism certainly undermines the characterization of Montesquieu as an Orientalist. Montesquieu may have both understood that some of his European readers harbored a fearful fascination with foreign peoples and played on their fascination by explicitly associating the East with despotism. He could then use that depiction of Eastern despotism as a means to criticize Western institutions such as the Catholic Church and the French monarchy, for example.26 He bridges these two parts of the globe by suggesting more commonalities between the two regions than many of his contemporaries would have readily acknowledged. In his private notebook, in fact, he links the East and the West together on the very basis of their mutual susceptibility to despotism: “The world no longer has that cheerful air that it had in Greek and Roman times. Religion was mild and always in accord with nature. Great gaiety in the ritual was joined to complete independence in the doctrine. . . . Today, Mohammedanism and Christianity, made solely for the afterlife, are annihilating all that. And while religion is afflicting us, despotism—spread out everywhere—is overwhelming us.”27 Thus whereas Edward Said posits that Europeans with their Orientalizing gaze discern a gulf between Europe and the Orient, Christianity and Islam, Montesquieu sees them as unified.28 A careful scrutiny of Montesquieu’s masterwork shows that he subjects European teachings and practices to a subtle, but nevertheless scathing, scrutiny. If he associates the East with despotism, so too does he ultimately associate it with the West. His scrutiny of despotism, in all its permutations, results in an exposé of the human condition simply.29 Montesquieu’s critical approach that links the West and the East together is nowhere more evident in The Spirit of the Laws than in his withering criticism of the Portuguese Inquisition. Even when writing about such an egregious case of cruelty he reveals his reticence to engage European condemnable practices directly as he does not speak in his own voice but instead uses the literary device of merely conveying the letter of a Jewish man outraged by the Inquisition’s burning of a young Jewish woman for heresy. Montesquieu has his Jewish character charge that when these apparent paragons of pious Christianity undertake to avenge their God through such merciless flames, they are no different from the Muslims who force belief at the point of a sword. Therefore, these particular practices of the Christians are one means by which despotic practices, informed by despotic ideas, emerge in Europe, Montesquieu suggests. Indeed, the Jewish letter writer points out that the Christians employ both the sword and fire against their perceived enemies: “‘you have afflicted with iron and fire those who are in

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the quite pardonable error of believing that god still loves that which he loved’” (25.13, 490). As his examination of the diversity of laws and peoples unfolds, he demonstrates that not only is the East subjected to despotism but so too is the West. We are they and they are we, and all are victims or potential victims of the despotic tendencies inherent in political thought and practice.

THE IMPORTANCE OF THINKERS AND THEIR IDEAS Some of the despotic ideas of Europe emerge from the continent’s great thinkers, Montesquieu contends. He indicates that he regards writers on politics as important political actors, and possibly the most important actors. In the chapter he entitles “On legislators,” he names five such rarified beings—none of them founders of cities or states, but rather all of them authors: Plato, Aristotle, Thomas More, Niccolò Machiavelli, and James Harrington. The inclusion of Thomas More and James Harrington in Montesquieu’s group of “legislators” suggests that one of his intentions in this chapter is to reflect on those writers who explicitly offer ideal regimes or imaginary states (29.19, 618). More wrote Utopia and Harrington Oceana, and these authors can be said, therefore, to have offered legislation in a literary form. A reading of Plato’s Laws and Republic and books 7 and 8 of Aristotle’s Politics as imaginary republics would further corroborate such a conclusion. On an initial consideration, Machiavelli’s explicit rejection of “imaginary republics and principalities” in The Prince might suggest that he rests uneasily in this group, but the Florentine’s avowed reason for rejecting such states actually establishes the appropriateness of Montesquieu’s inclusion of him in a group of writers who endeavored to influence the practice of politics. The Florentine explains that to take one’s guidance from “how one should live” rather than from how one does live is to find one’s “ruin rather than” one’s “preservation.” By speaking of the deleterious consequences of imaginary regimes on politics—that is, of the effusions of the pens of thinkers—Machiavelli indicates that they have a very real impact on the world; the works of imagination of the classical and Christian traditions have produced real political—and problematic—effects. By going “to the effectual truth of the thing” rather than to the “imagination of it,” Machiavelli too endeavors to have an effect on politics—specifically, to correct the politics of his predecessors.30 Like Machiavelli, Montesquieu does not take the written word as proffering only airy and inconsequential ideas. For example, Montesquieu re-

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peatedly treats Plato the philosopher as a founder in The Spirit of the Laws and associates him with the practices and aspirations of the ancient republics: “The laws of Crete were the originals for the laws of Lacedaemonia, and Plato’s laws were their correction” (4.6, 36); “[t]he laws of Minos, Lycurgus, and Plato” all start from the same assumption (4.7, 38); and the “institutions” of “Plato” “are only the perfection of the laws of Lycurgus” (7.16, 111). Montesquieu thus treats in an indistinguishable manner two mythological founders of cities and one philosophical writer in their shared purpose of founding the very regimes that exemplify in his estimation the distinctive approach to politics of antiquity. In his Pensées, he corroborates his distinctive understanding of Plato’s intention: “I am not among those who regard Plato’s Republic as an ideal and purely imaginary thing, whose execution would be impossible. My reason is that Lycurgus’s Republic seems to be [just] as difficult of execution as Plato’s, and yet it was so well executed that it lasted as long as any republic we know of in its force and splendor.”31 Political writers can themselves offer a key form of legislation.32 Although Montesquieu indicates that he regards these writers as particularly influential when he designates them legislators, his peculiar treatment of them does not flatter them. Indeed, he is sharply critical, impugning both their motives and their objectivity. Their laws derive from very personal and questionable sources; their laws derive, he accuses, from their “prejudices” and “passions.” Montesquieu attributes, for instance, the character of Aristotle’s thought to his “jealousy” of Plato and his “passion” for Alexander; that of Plato’s to his indignation “at the tyranny of the people of Athens”; and that of Machiavelli’s to his too fulsome regard for “his idol, Duke Valentino”—that is, for the impetuous ruthlessness of the ambitious murderer Cesare Borgia whom he lauds in The Prince (29.19, 618). By way of explanation of how their partiality fundamentally affected their work, Montesquieu declares that “the laws always encounter the passions and the prejudices of the legislator.” In speaking of legislators, he continues rather cryptically that “sometimes they [elles] pass through and are colored [teignent]; sometimes they [elles] remain there and are incorporated.” The feminine plural pronoun refers to the laws, and he gives two alternative outcomes to what can happen to them in their encounter with the passions and the prejudices of the legislator. One possibility is that like light passing through stained glass, the laws emerge with the tint of the legislator’s passions and prejudices.33 The other possibility is that the laws do not emerge at all but rather are completely subsumed by this encounter so that they “are incorporated”—they become themselves expressions of the legislator’s passions and prejudices (29.19, 618).

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Although Montesquieu appears to agree with Machiavelli on the harmfulness of the ideas of previous thinkers, he is in the historical position to include Machiavelli in that group of previous writers—both significant and harmful—and he does.34 As legislators, these thinkers are responsible for producing real effects on human life. Machiavelli may not offer an ideal state—an imaginary state—but he has, nevertheless, promulgated despotic ideas. Because Montesquieu fails to treat More at all and Harrington at any length in the remainder of the work, these two writers will not enter into my analysis of the book. He does, however, engage with Plato, Aristotle, and Machiavelli at some length elsewhere in The Spirit of the Laws, and this book devotes a chapter to his treatment of each of them. This book also devotes a chapter to his assessment of the political thought of Hobbes, whom Montesquieu fails to name in this chapter but with whom he engages in the work, both directly and indirectly. Not only philosophers are responsible for propounding ideas, but also religious thinkers. In one place, he notes that “religious ideas” have led human beings into “errors” (26.14, 508). Christianity is the European religion, and he treats it extensively throughout the work. He examines the effect it exerts on the Europeans of his own times, as well as on its first converts over a millennium earlier. He traces how some of the religion’s first laws continue to affect the lives of Christians in his own century. Specifically, this book will examine Montesquieu’s scrutiny of the despotic ideas of Machiavelli, Hobbes, Aristotle, and Plato, as well as of Christianity. He finds such deleterious consequences, for example, in brutal Machiavellianism; in despotic justifications for the rule of one alone in Hobbes’s political thought; in the Christian teachings that inform the Inquisition and that equate heresy with treason; in Plato’s thought that denies slaves the right of natural defense; and in Aristotle’s thought that harms commerce by proclaiming the unnaturalness of loans taken at interest. These are simply some examples of Montesquieu’s findings; his treatment in his masterwork of each of these sources is elaborate and nuanced. Montesquieu illustrates quite powerfully both that ideas have consequences and that some European ideas have had particularly disastrous consequences for humanity when he points to Europe’s apparent redemption from a most lamentable condition in the chapter entitled “How commerce in Europe penetrated barbarism” (21.20, 387). The barbarism in Europe to which he here refers is the result not of the conquest of the Roman Empire in the fourth and fifth century of the Common Era, but rather of the bloody aftermath of certain ideas in more recent times: specifically, the Scholastics’

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rediscovery in the thirteenth century of the ideas of Aristotle, which denounce the taking of interest and thus helped to justify attacks on Jews for usury; and the French monarchy’s implementation in the sixteenth of Machiavellianism that resulted in the massacres of Huguenots in its territory. Montesquieu places together, as purveyors of despotic ideas, thinkers and traditions that commentators frequently regard as opposed. Machiavelli and Hobbes had political projects that explicitly opposed the traditions that came before them, both religious and philosophical. Montesquieu, though, maintains that ideas both of the moderns and of the ancients need to be categorized as despotic. Therefore, where others see differences, he sees a fundamental continuity in the Western tradition as it relates to its promulgation of despotism.

NEGATIVE AND POSITIVE PROJECTS In examining Montesquieu’s critical engagement with Plato, Aristotle, Machiavelli, Hobbes, and aspects of Christianity as purveyors of despotic ideas that inform despotic practices, this book takes a significantly different approach to elucidating Montesquieu’s The Spirit of the Laws from those of other commentators. Nevertheless, it both takes its impetus from important insights of some recent scholarship and complements much of the other literature. Other scholars have pointed, briefly but intriguingly, to the tremendous power over the political world that Montesquieu assigns to ideas and the thinkers who promulgate them. Michael Mosher, for instance, acknowledges the Frenchman’s recognition of a despotic impulse to dominate others in those who formulate the doctrines that guide human communities: “Montesquieu was only too aware, before Foucault, before Nietzsche, before Rousseau, how the theoretical impulse itself may mask despotic desire.”35 The authors responsible for the reigning doctrines of a given age are rulers who subjugate humanity to their own passion for preeminence, according to Mosher’s reading of Montesquieu. Diana Schaub, in her interpretation of The Persian Letters, posits that “Montesquieu finds the source of the political problem not in rulers, but in ruling doctrines.”36 Schaub perceives, just as this book argues, that Montesquieu identifies doctrines or ideas as the fundamental problem. Because political doctrines or ideas are the sources of despotic practices, the work of engaging with them, unmasking them, criticizing them, and stigmatizing them must be of the utmost importance. Many other commentators have offered important explications of key facets of Montesquieu’s positive teachings in The Spirit of the Laws. Among

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them are the promotion of commerce, which would soften the mores and foster peace among nations;37 the separation of powers, which would limit encroaching political power, thereby protecting the liberty of citizens;38 and his humane approach to criminal judgments, which would protect the possessions, liberty, and life of the innocent and provide the guilty with punishments that were not horrifying expressions of vengeful cruelty.39 These are his own doctrines—his idées nouvelles that he announces in the Avertissement de l’auteur (OC 2: 227). They are not despotic ideas, in his estimation, because unlike the philosophic legislators he enumerates in book 29, he “did not draw [his] principles from [his] prejudices but from the nature of things” (pr., xliii).40 As his emotional outbursts at atrocious punishments concede, he succumbs to his passions—his empathetic emotions—but he insists on his own behalf that he does not so succumb to prejudices. This study will endeavor to elucidate aspects of his teachings on these subjects as it studies Montesquieu’s critique of Europe’s despotic ideas. It complements, therefore, the work of other scholars who have concentrated on these well-known and important themes. But these positive teachings will never have a solid foothold in European life, Montesquieu suggests, while the despotic ideas remain embedded in the European mind. Moreover, because those despotic ideas will linger in dusty books for future generations to rediscover, he must help neutralize their potential deleterious effects by fostering a repugnance for them so that people will be less susceptible to embracing them unreflectively when they encounter them anew. By revealing them and criticizing them, he clears the ground for the promotion of gentleness and humanity, the overcoming of prejudice, and the more general dissemination of the most important knowledge. His confrontation with the obstacles to gentleness and humanity—the negative side of his teachings—is a necessary component of his positive project. Another commentator perceptively points to moderation as the key to understanding Montesquieu’s Spirit of the Laws. Craiutu declares that it is in this work that “Montesquieu’s critique of despotic governments is developed into a full-fledged normative agenda in praise of political moderation and institutional complexity.”41 Montesquieu is moderate himself, and he teaches moderation. As he begins book 29 of the work, he announces: “I say it, and it seems to me that I have written this work only to prove it: the spirit of moderation should be that of the legislator” (29.1, 602). But moderation too is supported by the intrepid revelation of the immoderate elements contained in Europe’s despotic ideas. Indeed, moderation can flourish only when the immoderate elements of the tradition that preceded him are tempered.

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THE CHAIN OF THE WORK In interpreting Montesquieu’s The Spirit of the Laws, each of the chapters that follow will attempt to piece together all of the relevant discussions, some of which are far separated from each other in Montesquieu’s massive work, on the specific political or religious ideas that a given chapter examines. Thus, this book proceeds not by considering the development of The Spirit of the Laws as a whole but instead by following certain threads through a labyrinth, drawing from passages scattered throughout the work, including those rarely brought forth for study by scholars. In so doing, this book attempts to act on Montesquieu’s own indications on how he would like his work to be read and understood. He warns that his work demands long reflection when he asks the indulgence of the reader: “I ask a favor that I fear will not be granted; it is that one not judge by a moment’s reading the work of twenty years, that one approve or condemn the book as a whole and not some few sentences. If one wants to seek the design of the author, one can find it only in the design of the work” (pr., xliii).42 Part of that design, he indicates, is the chain of truths that winds its way through the work. Montesquieu insists that his massive work, which has always drawn the criticism that it is disordered, contains a coherent plan that undergirds its initial disheveled appearance.43 He declares in the preface, for example, that “many of the truths will make themselves felt here only when one sees the chain connecting them with others” (pr., xliv). Two years after the work’s publication he responded to the comments of a reader by conceding that aspects of it are “obscure and ambiguous” because he has intentionally separated important portions of his arguments: “the links of the chain . . . are very often removed, the one from the other.”44 In his Defense of “The Spirit of the Laws” he chastises his critics for their failure to grasp his work: “In books made for amusement, three or four pages give the idea of the style or of the taste of the work; in books of reasoning, one takes nothing if one does not take the whole chain” (OC 2: 1161). By no means does this book immodestly claim to reveal the entire chain to which he refers. It does, however, highlight some very important links that connect to what I claim is the most important link of all, despotism. In attempting to respect the integrity of the work and the chain of reasoning he indicates that he endeavored to embed in it, this commentary will concentrate largely on evidence drawn from The Spirit of the Laws but will frequently adduce supporting evidence from other of Montesquieu’s works in the notes. At one point in the work, Montesquieu suggests an educative purpose for his having written in so obscure a manner: “But one must not always

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so exhaust a subject that one leaves nothing for the reader to do. It is not a question of making him read but of making him think” (11.20, 186). The historical record suggests, though, that his writing style may also have grown out of a concern with not offending reigning political and religious authorities. Indeed, he took special precautions in having it published anonymously in Geneva and displayed worry and annoyance when he thought that those overseeing its printing were not properly protecting his identity.45 Moreover, significant evidence exists that he was particularly cautious in treating the French monarchy under which he lived. The grandson of Jacob Vernet, the man who oversaw the printing of the first edition in Geneva, relayed an account that claimed Montesquieu suppressed a chapter on lettres de cachet with the thought that neither the public nor the ministers of the French king were ready to hear the truth on this matter.46 Because French kings used these notorious warrants in the seventeenth and eighteenth centuries to imprison any subject without trial and without appeal for an unlimited time, such a chapter, which has not been found, would have undoubtedly had to touch on the arbitrary and unlimited judicial powers of the French monarchy. The inclusion of such reflections, therefore, would have necessarily undermined the ready and unproblematic inclusion of France in the author’s assurance that “[i]n most kingdoms in Europe, the government is moderate because the prince, who has the first two powers” of making and executing the laws, “leaves the exercise of the third”—that is, the power of judging crimes—“to his subjects” (11.6, 157). In addition, he made last-minute changes—indeed, some even after the first printing for which cancels had to be placed in the text and new leaves had to be added—that considerably softened his treatment of the French monarchy.47 For example, one set of changes occurred in his most prominent discussion of monarchy, his initial treatment of its nature in book 2. His biographer notes that the first sentence of this important chapter originally read: “Intermediate powers constitute the nature of monarchial government, that is to say where the sole ruler governs by the fundamental laws.”48 This general depiction of monarchy, which would no doubt be read as Montesquieu’s assessment of the proper status and power of the French crown in particular, would show him attempting to circumscribe the power of his king. For prudential reasons, according to Robert Shackleton, he successively added two adjectives, “subordinate” and “dependent,” that would forestall such a reading by forcefully declaring the subservience of intermediate powers to the monarch (cf. 2.4, 17).49 Considerable reasons existed for Montesquieu to be circumspect in his treatment of the despotic ideas of Europe in The Spirit of the Laws. His ob-

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scure writing style, in fact, did not prevent his masterwork from offending various religious critics and the powers of the Catholic Church. The abbé de La Roche, for example, accused him in print of various impieties,50 and the author responded with his Defense against La Roche’s criticisms. The Sorbonne voted to censure the work, and the Papacy placed it on its Index of Prohibited Works.51 The censors in Rome, in fact, demanded that he remove an entire chapter—that devoted to an examination of the “tribunal of the Inquisition”—from the book (26.11, 504).52 Religious sensibilities would also seem to have dictated that he treat Aristotle and Plato with a due measure of respect, as Christian Scholastics and Neoplatonists owed much to the ideas of these most enlightened of the pagans; their ancient writings, therefore, remained most revered sources. Such caution would seem not to have been required on Montesquieu’s part in treating the despotic ideas of Machiavelli and Hobbes, however. Conservative forces throughout Europe had long denounced both thinkers as atheists and their teachings as immoral. Montesquieu should have had no compunctions, therefore, about adding his voice to this chorus of criticism, and, in some respects, he does in a full-throated fashion. Nevertheless, his engagement with these two thinkers moves well beyond such ready denunciations because he proceeds to explore how the teachings of both of his predecessors inspired French monarchs at various points to perpetrate despotic actions in his homeland. Perhaps the reigning French monarch would overlook the flagrant insults to majesty contained, for example, in rebukes cast overtly and stridently at his predecessors in the sixteenth century because their murderous actions were worthy of Machiavelli’s teachings in The Prince. Such criticism of the French royal government, whether declared or implied, certainly contradicts Montesquieu’s statement in his preface that he does “not write to censure that which is established in any country whatsoever” (pr., xliv) and thus reveals a piece of his critical project with regard to his homeland. Whether for education or for protection, or more probably for both, Montesquieu’s terse prose, often bordering on the cryptic, certainly often implies more than it declares.53 This book will attempt to explicate both his statements and his implications regarding the despotic ideas of Europe.

pa r t i

The Ideas of Montesquieu’s Modern European Predecessors

T

his book begins by considering Montesquieu’s evaluation of the ideas that have given rise to the political and social situation that confronts him in Europe: first, in part 1, the modern political ideas of his predecessors, Machiavelli and Hobbes; and then, in part 2, the Christian ideas that affect him and his contemporaries. Machiavelli appears in Montesquieu’s chapter in The Spirit of the Laws devoted to philosophical legislators (29.19), and elsewhere in the work Montesquieu bestows on him the apparent honorific “great man” (6.5, 77). Hobbes, by contrast, makes no such named appearance in that chapter, nor does Montesquieu commit to deeming him “great” in the work. Nevertheless, Hobbes receives Montesquieu’s early attention when Montesquieu names him twice in his second chapter in order to dispute Hobbes’s depiction of the state of nature. These explicit references establish that Montesquieu thought these two modern European predecessors warranted his attention. His attention to their thought and influence is much more extensive than these few explicit appeals to their names would suggest and than scholars note. Indeed, one aim of the following chapters, the first on Montesquieu’s response to Machiavelli and the second on his response to Hobbes, is to demonstrate that Montesquieu also engages extensively with their ideas even when he does not name them. In so engaging with the thought of Machiavelli and Hobbes, Montesquieu simultaneously reveals, as some other scholars have emphasized, his intellectual debt to each. For instance, Montesquieu adopts without acknowledgment Machiavelli’s adage that a lawgiver should assume that all human beings are bad and will therefore vent the malignity of their spirit when political laws and institutions afford them an opportunity. Similarly, Montesquieu agrees with Hobbes, and without acknowledgment, that some people in society will endeavor to dominate others.

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Although Montesquieu accepts some of his European predecessors’ premises regarding the far from tractable character of the human material, he refuses to embrace their political teachings regarding how to govern it. Each of these prior thinkers offers his respective political teaching to some extent as a response to what each perceived as the deficiencies of the political life of his times—“the weakness” of “the world” and its “ambitious idleness” in Machiavelli’s case or “Discord and Civill Warre” in Hobbes’s.1 Montesquieu notes that a “legislator who wants to correct an ill often thinks only of that correction; his eye is on that object and not on its defects.” His predecessors, then, could be said to have been consumed with the good they hoped to accomplish. Montesquieu also notes, however, that too narrow a focus on the desired corrections reveals in retrospect something fundamentally deficient about the legislator: “Once the ill has been corrected, only the harshness of the legislator is seen” (6.12, 85). Montesquieu surely highlights the harshness of the political proposals of Machiavelli and Hobbes alike. For Montesquieu, the political teachings of both, in fact, regard fear in the ruled as salutary. By contrast, Montesquieu regards fear as the very principle of despotism. Moreover, both thinkers, he emphasizes, promote the power of “one alone.” Even Machiavelli in his republican moments is too enamored of the quickness, the decisiveness, the arbitrariness, and the harshness of despotism, Montesquieu suggests. Montesquieu warns specifically about the despotic consequences of such harshness: “but a vice produced by the harshness remains in the state; spirits are corrupted; they have become accustomed to despotism” (6.12, 85). The following two chapters will highlight Montesquieu’s analysis of how the teachings of Machiavelli and Hobbes promote despotism. Montesquieu’s response to both of these predecessors can be encapsulated by his attempt to overcome the despotic practices that the ideas of these two thinkers have engendered. In responding to both of his modern predecessors, Montesquieu can be seen as counseling against a government that is willing to go to extremes: “One is not always obliged to take extreme courses” (5.7, 49). He also teaches that harmful extremes must be rejected, and he embraces the very alternative that Machiavelli shuns—that is, the “middle way” (6.18, 93).2 But Montesquieu’s response to each has distinctive features as the teachings of Machiavelli and Hobbes are far from united. Machiavelli sought to cure the weakness of the world with a call to arms and the promotion of war. Hobbes, by contrast, in attempting to overcome civil war and produce civil concord, highlighted the arts of peace, promoting the industriousness that produces “commodious living.”3 Montesquieu, who himself eschews

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military adventures of the type Machiavelli lauds, also warns that too narrow a focus on commerce and industriousness can itself promote despotism. These cautions certainly apply to the Leviathan; after all, Hobbes justifies so unified a state on the basis of its purported claim to produce the conditions in which commodious living thrives. Montesquieu responds that such claims are fraudulent as the concentration of power ultimately leads to its abuse. In so responding to his European predecessors, Montesquieu justifies his great work. As he surveys what European writers—what so “many great men in France, England, and Germany,” and also Italy—“have written before” him, he is filled with wonder at their achievements. Nevertheless, he has “not lost courage,” and he displays his resolve as he declares: “I do not believe that I have totally lacked genius” (pr., xlv). An important part of his genius is surely revealed in his response to the despotic ideas of Machiavelli and Hobbes.

chapter one

The Greatness of Machiavelli and the Despotic Disease of His Politics—Both Princely and Republican

I

n the preface of The Spirit of the Laws Montesquieu declares: “When I have seen what so many great men [tant de grands hommes] in France, England, and Germany have written before me, I have been filled with wonder, but I have not lost courage. ‘And I too am a painter,’ have I said with Correggio” (pr., xlv; OC 2: 231). Giving only their nationalities, Montesquieu does not here name the predecessors who have written the works among which he judges his own can stand. It takes him only two chapters to take pointed issue with a writer from England, but Montesquieu does not call this man—Thomas Hobbes—great (1.2, 6). Although Montesquieu fails in his preface to mention the Italian peninsula as the home of any of his great predecessors, his image of political writers as painters reprises Machiavelli’s appeal in the epistle dedicatory of The Prince to the landscape painter who takes to the heights to understand the nature of peoples and to the lowlands to understand that of princes.1 And, indeed, the first whom Montesquieu deems great in the work is Machiavelli (6.5, 77).2 This reservation of the appellation for Machiavelli, which certainly appears to be—and is often read as—a compliment, suggests that the Italian is among those whom Montesquieu believes he can stand with, and perhaps even surpass. Machiavelli’s legacy is somehow important to the definition of Montesquieu’s own. Of course, in book 29 of The Spirit of the Laws, Montesquieu also furnishes Machiavelli as one of five examples of thinkers who have legislated through their writings. In thus affirming Machiavelli’s monumental status, Montesquieu simultaneously castigates the Florentine for allowing his passions and prejudices to induce him to be too enamored of the ruthless Duke Valentino, a prominent character of The Prince.3 In addition, in book 21, Montesquieu uses the Florentine’s name to identify and stigmatize an approach to politics that is so noxious that he characterizes it as a disease 23

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requiring a cure. “One has begun to be cured of Machiavellianism, and one will continue to be cured of it” (21.20, 389). Montesquieu’s references to the slaughter of the French wars of religion, as we shall see, illustrate the spread of this particular contagion in his own country. Machiavelli’s The Prince has encouraged monarchs to engage in Machiavellianism—that is, to treat their subjects despotically. Montesquieu thus highlights the fact that the ideas of a writer have had a quite real and quite negative impact on the practice of politics and hence on human life. Montesquieu’s engagement with Machiavelli’s teachings extends beyond the immorality and ruthlessness of The Prince and its apparent hero, Cesare Borgia, son of Pope Alexander VI, because Montesquieu also examines Machiavelli’s recommendations for a republic in the Discourses on Livy. Montesquieu begins to engage with Machiavelli’s republicanism in book 6 of The Spirit of the Laws, which offers his first consideration of “criminal laws, the form of judgments, and the establishment of penalties” (p. 72). Montesquieu’s criticism of Machiavelli’s republicanism focuses on the extreme and sometimes arbitrary punishments that the Florentine recommends for the governance of republics. This criticism blossoms to much greater significance later in the work, when Montesquieu defines liberty as a feeling of security in the citizen and declares that the correct way to proceed in criminal judgments is the most important knowledge available to human beings. Moreover, both Machiavelli’s exhortation to embrace the extremes by avoiding the middle way and Montesquieu’s substitution of the middle for the extremes relate particularly to their divergent views of punishments. When articulating his response to Machiavelli on these issues, Montesquieu recalls to his reader’s attention his preface to The Spirit of the Laws, where he indicates that one of his intentions in the work is to assist people in curing themselves of their prejudices. In this manner, Montesquieu suggests that one particular intention of his work is to heal the despotic and ugly implications of Machiavelli’s political thought—both princely and republican. Indeed, Montesquieu’s treatment of Machiavelli’s republicanism mirrors his criticism of Machiavelli’s form of principality—that is, it blurs the distinction between despotic and nondespotic regimes. Therefore, it is not merely the cunning advisor to tyrannical majesty of The Prince who elicits Montesquieu’s objections, but also the republican citizen of the Discourses. Montesquieu judges that his Italian predecessor fails to make critical distinctions between republics and despotisms; or, in other words, his republicanism is too despotic.4 The fact that Montesquieu engages so extensively with Machiavelli’s republicanism corroborates some of the conclusions of commentators who

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have long pointed out that Montesquieu manifests a deep interest in and understanding of Machiavelli’s writings. Many of these commentators maintain that the learned Montesquieu is far removed from conventional anti-Machiavellians who offer hackneyed denunciations of the immoral or amoral “devil Machiavel,” so prevalent before and after Montesquieu’s time in France and elsewhere in Europe.5 Although he may be much more familiar with the range of Machiavelli’s writings and much more sophisticated than many of Machiavelli’s unreflective condemners, Montesquieu does, nevertheless, voice his own warnings against the effects of Machiavelli’s teachings—even his republican teachings.6 Contrary to the claims of some of these commentators, Montesquieu manifests his own anti-Machiavellian sentiments, and can even be said to draw on and perpetuate aspects of the anti-Machiavellianism that grew out of the French wars of religion in the sixteenth century. As awestruck as Montesquieu is before the power and grandeur of Machiavelli’s words, therefore, he opposes their meaning and ramifications. Specifically, he may call Machiavelli a “great man,” but he simultaneously evaluates those who repudiate Machiavellianism as both “great and generous”—a formulation that he, in fact, appropriates from Machiavelli’s Italian, inverting its meaning as he applies it in his French (6.5, 77 and 4.2, 33). The adjective great can convey praiseworthiness but also extensive importance or influence in ways that exclude the first sense. For example, it is necessary to note that in French, as in English, plagues, famines, and fires too can be grands. Montesquieu, as we shall see, takes advantage of both senses of the term. The great man Machiavelli had a great—that is, a large and far-reaching—effect on politics by recommending too great punishments. Montesquieu—as writer—can participate in the cure to Machiavellianism, the disease that his predecessor helped to transmit. Such restorative actions are the ones that Montesquieu proffers as great—in the sense of praiseworthy—and generous. Montesquieu’s renunciation of Machiavelli’s republicanism is of particular importance because of the vast influence Machiavelli’s depiction of the Roman republic had and continues to have on those who comment on politics. For example, before Montesquieu’s birth, those with republican sympathies in England appealed explicitly to the Florentine’s depiction of a republic, including its harshest aspects, which Montesquieu would later criticize.7 During his lifetime, such admiration continued, and again English thinkers, who lived under the Hanoverian monarchy, appealed in particularly laudatory terms to the Florentine’s depiction of a republic that took vengeance on those who threaten the public.8

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The admiration of Machiavelli’s republicanism continues to this day; prominent scholars invoke it as a salient example of a particular notion of freedom or liberty that belongs to the republican tradition.9 They regard this tradition as having important contemporary relevance, as its leading participants, such as Cicero, Machiavelli, and the English commentators during and after the English Civil War, offer a vigorously political notion of liberty that stands as an attractive alternative to modern liberal notions of freedom as noninterference.10 Moreover, a scholar who does not fully endorse this republican interpretation of Machiavelli still finds cause to regard Machiavelli’s presentation of Rome, with its aggressive punishments in particular, as a model for contemporary practice.11 Therefore, although Machiavelli’s depiction of princely government may have gone out of fashion in our time, as Montesquieu notes it has in his, the Florentine’s republicanism certainly has not. By contrast, Montesquieu suggests that Machiavelli’s republic is itself despotic. In the Frenchman’s view, Machiavelli’s form of republican justice is too harsh, too arbitrary, and too immoderate; hence, Machiavelli’s republicanism is despotic. Therefore, before today’s friends of liberty too eagerly embrace the model of Machiavelli’s republic, it is necessary to hear out what this other friend of liberty has to say.

MACHIAVELLIAN COUPS D’ÉTAT AND PRINCELY RULE Montesquieu uses Machiavelli’s name only three times in the entirety of the final version of the body of the work.12 The last two occurrences, in books 21 and 29, together with what would have been the first mention in book 3 that he excised before publication, constitute Montesquieu’s charges that Machiavelli endeavored to teach despotism to monarchs. Machiavelli, he claims, was far too enamored of the brutal tactics of his hero, Cesare Borgia. Those very tactics, highlighted and promulgated by Machiavelli’s work, had an important but destructive impact on the French monarchy in the sixteenth century, Montesquieu suggests. Montesquieu casts a fleeting but significant glance at Machiavelli’s influence on European governance in book 21, “On laws in their relation to commerce, considered in the revolutions it has had in the world.” The particular chapter in which he refers to that influence is entitled “How commerce in Europe penetrated barbarism” and offers a sweeping view of European history. After treating the disastrous effects that the “speculations of the schoolmen,” who denounced the practice of lending at interest, had on both commerce and the businessmen who in the twelfth and thirteenth

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centuries were victims of rapacious kings, Montesquieu offers a consoling reflection: “Since that time princes have had to govern themselves more wisely than they themselves would have thought, for it turned out that great acts of authority [les grands coups d’autorité] were so clumsy that experience itself has made known that only goodness of government brings prosperity” (21.20, 389; OC 2: 641).13 Montesquieu’s further reflections reveal that such harsh governmental actions, which he so decries, belong not only to the European Middle Ages, however, but also to more recent times. Without benefit of a transition, he observes that after the influence of the speculations of the schoolmen waned with the advent of letters of exchange, a new form of thought arose, and, as different as it was, it produced similar crimes against citizens.14 Montesquieu notes of this more recent threat to the security of individuals: One has begun to be cured of Machiavellianism [On a commencé à se guérir du machiavélisme], and one will continue to be cured of it [on s’en guérira tous les jours]. There must be more moderation in councils. What were formally called coups d’état would at present, apart from their horror, be only imprudences. (21.20, 389; OC 2: 641)

His use of the term machiavélisme acknowledges that Machiavelli’s thought has had such influence that he gave his name to a particular approach to political action. His statement suggests in addition that he regards that influence as a malady, a malady whose influence has decreased but has not been entirely eradicated. In so speaking of cures, Montesquieu recalls one of his very purposes in writing the work. He declares in his preface: “I would consider myself the happiest of mortals if I could make it so that men were able to cure themselves of [se guérir de] their prejudices. Here I call prejudices not what makes one unaware of certain things but what makes one unaware of oneself” (pr., xliv; OC 2: 230). It would seem that Montesquieu regards Machiavellianism as a type of prejudice that hides the human character from those infected with it. Moreover, the curing of humanity is one of the central purposes of this text. Although humanity needs to cure itself, Montesquieu, at least in some instances, can serve as a catalyst for this healing. His consideration of Machiavelli’s thought and its consequences may very well be one such catalyst. When Montesquieu asserts that a philosopher can serve as a type of legislator, he also exposes the character of the particular “passions and prejudices” that fundamentally shape the products of each of the thinkers

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whom he names. As we know, Montesquieu regards Machiavelli as having been “full of his idol, Duke Valentino” (29.19, 618). Montesquieu’s reflection here refers to Cesare Borgia, whom Machiavelli features in The Prince. In identifying Borgia as Machiavelli’s hero, Montesquieu exposes the character of the disease he terms Machiavellianism. Borgia used both “force” and “fraud,” a combination that Machiavelli praises, in attempting to found a state for himself in northern Italy at the beginning of the sixteenth century.15 Among the crimes that Machiavelli relates approvingly is Borgia’s use of Remirro de Orco as an agent to pacify the Romagna. Machiavelli reports that when Borgia perceived both that his man’s success had given Borgia himself “the very greatest reputation for himself” and that his harsh measures “might become hateful,” he had him killed in spectacular fashion: “And having seized this opportunity, he had him placed one morning in the piazza at Cesena in two pieces, with a piece of wood and a bloody knife beside him.” Machiavelli reports that the execution had the desired effect: “The ferocity of this spectacle left the people at once satisfied and stupefied.”16 Machiavelli also reports, with significant resonance for subsequent French history, that Borgia was able to overcome the threat that two noble families, the Orsini and Vitelli, posed to him by duplicitously inviting their leaders to a dinner party at Sinigaglia and then killing them. Machiavelli reports that this method yielded good results because, “when these heads had been eliminated, and their partisans had been turned into his friends, the duke had laid very good foundations for his power.”17 In this way, Machiavelli does hold up Borgia as a historical figure worth studying and emulating, at least to a degree.18 Montesquieu responds by castigating Machiavelli for his choice of hero. A cure for Machiavellianism would appear to necessitate that the passions and prejudices that gripped Machiavelli not be transmitted to others but rather be repudiated. But for the disease to be so particularly insidious as to make a political cure necessary, it would have to be the case that actual rulers took Machiavelli’s maxims to heart and used them as a guide. Montesquieu fails to name the rulers who manifested the Machiavellianism to which he refers in book 21, chapter 20. Nevertheless, the French rulers who lived after Machiavelli’s time, who were believed to be so imbued with Machiavelli’s thought that they performed coups d’état that resulted in horror, are well known.19 All of these elements coalesce in the deeds of Catherine de’ Medici, queen of France, and her royal progeny. The association of Catherine with Machiavelli is direct; the Lorenzo to whom Machiavelli dedicated The Prince was Catherine’s father, who died soon after her birth and before she was married to the son of François I of France, who would go on

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to rule as Henri II. Widowed as a young woman, she lived to see three of her sons become kings of France, all of whom ruled during the French wars of religion. She herself ruled as regent when her son Charles IX came to the throne at the age of ten. Even after he came to majority, she still exercised considerable influence on him as an advisor. It was said of Catherine that she herself read Machiavelli, as did her advisors, and that she raised her sons on his treatises. The Protestant literature after the horrors of the Saint Bartholomew’s Day Massacre in 1574 made much of the connection between the French royal family and Machiavelli, vilifying mother and son alike as imbued with the wicked tenets of Machiavelli.20 Historians have long debated where ultimate responsibility lies for the mass violence that erupted against thousands of Protestants first in Paris and then in various French towns.21 Nevertheless, responsibility for the assassination of the Protestant nobility in Paris, which served as the precipitating event for the mass violence that followed, rests directly with Charles IX and his advisors, including his mother. Their attack against the nobility clearly constituted a great coup d’état, worthy of Machiavelli. Indeed, this attack on the nobility who had gathered to celebrate a wedding recalls Machiavelli’s recounting in The Prince of Borgia’s duplicitous action at Sinigaglia. Moreover, Machiavelli warns specifically of the jealousy that the nobles have for one who rules over them, and notes that a vigorous prince “can make and unmake [the great] every day.”22 Of course, Borgia’s murderous action, which Machiavelli selects to highlight, illustrates this very ability of a prince.23 The French royal government justified its attack on the Huguenot nobility as an extrajudicial action necessitated by the nobles’ act of lèse-majesté in suggesting that they themselves, independent of the royal government, would seek revenge for the immediately prior attack on their leader Admiral Gaspar de Coligny.24 Charles concluded that the seditious nobility needed to be punished for treason, and that the ordinary criminal procedures were simply too dangerous given that so many armed men had converged on Paris. He had recourse, therefore, to the extraordinary judicial means of a surreptitious and deadly attack.25 Many judged the attack to be a Machiavellian coup d’état. Much earlier in The Spirit of the Laws, Montesquieu shows that he is familiar with the Protestant literature that both proclaims the guilt of the French monarchy in the massacres and identifies the nefarious influence of Machiavelli’s thought on the perpetrators’ brutal machinations. In referring to the attacks on Protestant citizens in the provinces after the horror in Paris, he, in fact, quotes from Agrippa d’Aubigné’s Histoire universelle. A

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Huguenot poet and soldier, d’Aubigné considers the French religious wars in the context of European history in this massive work. Montesquieu makes use of his book when, in clarifying the type of honor that a monarchy’s nobles must exemplify, he adduces the refusal of a provincial governor to murder Protestant citizens as an example of an honorable deed. Montesquieu relates that “[a]fter Saint Bartholomew’s Day, when Charles IX had sent orders to all the governors to have the Huguenots massacred, the viscount of Orte, who was in command at Bayonne, wrote to the king.” In providing the nobleman’s response to his king, Montesquieu uses a direct quotation from the work of d’Aubigné that he names in his note: “‘Sire, I have found among the inhabitants and the warriors only good citizens, brave soldiers, and not one executioner; thus, they and I together beg Your Majesty to use our arms and our lives for things that can be done.’”26 Montesquieu comments that the nobleman displayed “great and generous courage [that] regarded a cowardly action as an impossible thing” (4.2, 33). In so commenting, he teaches that the nobleman’s refusal to carry out such murderous royal commands highlights the principle of monarchy. Montesquieu thus presents the very spirit of monarchy as fundamentally opposed to the despotic atrocities that Charles IX ordered.27 In revealing his knowledge of d’Aubigné’s book in this way, Montesquieu simultaneously reveals his familiarity with the Huguenot author’s assessment of the Machiavellian character of the French monarchy. In the same volume of Histoire universelle that Montesquieu here cites, d’Aubigné lists the warnings that the admiral received regarding the dangerously duplicitous character of the Queen Mother and the king. In speaking of the “‘education of the King,’” one such warning related that “‘his Bible is Machiavel.’”28 Charles IX, who presided over the atrocities of Bartholomew’s Day in Paris and the subsequent massacres in the French provinces, was schooled in the thought of Machiavelli, according to d’Aubigné. Clearly, then, Montesquieu is aware of the possibility that the assassinations and atrocities that were perpetrated by the French governments took their inspiration from the text of Machiavelli. Indeed, Montesquieu conveys in book 21 that “Machiavellianism” for a time captured the very spirit of government, and in book 4 he deems a forthright refusal to employ Machiavellian methods “great and generous.” The great acts of authority so opposed to the true character of monarchy that Montesquieu describes certainly continued through the reign of Henri III, the last of Catherine’s sons to rule. Montesquieu points to one of this later king’s commands as being opposed to the character of monarchy, noting that “Crillon refused to assassinate the Duke of Guise, but he pro-

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posed to Henri III that he engage the duke in battle” (4.2, 33).29 The writings of an Italian thinker, informed by his passions and prejudices, helped to shape the subsequent atrocious actions of the French monarchy, Montesquieu suggests. Writers have a real effect on the practice of politics and hence on the individuals so ruled, their property, their liberty, and their very lives. Quite in keeping with Montesquieu’s indication that Machiavelli taught the French monarchy to take despotic actions, Montesquieu explicitly states that the Florentine confused monarchy with despotism in an earlier version of the manuscript of The Spirit of the Laws. In the chapter entitled “On the principle of despotic government,” Montesquieu asserts that fear is the guiding spirit of despotism. This despotic fear is induced by the simple but terrifying fact that a despotic government acts suddenly against its own citizens, spilling their “blood” without due process or even law (3.9, 28). At this chapter’s conclusion he at one time inserted the statement: “But it is the delusion of Machiavelli to have given to princes for the maintenance of their grandeur some principles that are necessary only in a despotic government and are unhelpful, dangerous, and even impractical in a monarchy. This comes from the fact that he did not know well their nature and distinctions; this is not worthy of his great spirit.”30According to Montesquieu’s declaration, Machiavelli errs by infusing monarchy with the spirit and techniques of despotism. Machiavelli’s mind, according to Montesquieu, was far too blunt and forceful an instrument to discern the distinction between the two governments. Although Montesquieu discerns this fundamental defect in Machiavelli’s ideas, surely not all of Machiavelli’s readers did, including his royal readers in the sixteenth century. Whatever the reason that induced Montesquieu to remove this particular passage from his manuscript, it cannot be that Montesquieu changed his mind regarding this evaluation of Machiavelli’s thought because the excised passage corresponds with what remains. For example, as we have just seen, Montesquieu’s praise of the viscount of Orte in book 4 corroborates that a Machiavellian understanding of the deeds princes should commit cannot be the correct one as it blurs the critical distinction between monarchy and despotism. In addition, Montesquieu applies to the Florentine writer the same adjective, grand, in the excised passage and in book 6. Thus, Montesquieu remains consistent in describing Machiavelli, and the very repetition of the adjective is instructive. His application of it to Machiavelli need not be complimentary as he applies the same adjective to the earlier royal crimes against the Jews, referring to them as “grands coups d’autorité” in the same chapter in which he refers to machiavélisme and “des coups

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d’état” (OC 2: 641). In these very passages, then, Montesquieu takes full advantage of the range of meanings of the term, which can refer not only to praiseworthiness but also to significant intensity or impact. Montesquieu’s application of the adjective grand to Machiavelli’s spirit suggests that Machiavelli, in instructing rulers to commit such despotic deeds, had a large, but not necessarily positive, effect on politics.31 Indeed, Montesquieu’s invocation of Machiavelli’s name in Book 21 proclaims at once Machiavelli’s great influence on politics and the present waning of that influence: “And, happily, men are in a situation such that, though their passions inspire in them the thought of being wicked [méchants], they nevertheless have an interest in not being so” (21.20, 389–90; OC 2: 641).32 As a result, the immoderation that Machiavelli inspired among monarchs has been mitigated, Montesquieu suggests. This appears to be a most optimistic statement on Montesquieu’s part.33 Nevertheless, even if European monarchs no longer utilize Machiavellian coups d’état on their subjects as they did in the sixteenth century, Montesquieu teaches that there are other despotic ideas and practices that remain rampant in Europe. Moreover, Machiavelli has additional despotic teachings of his own regarding republics that Montesquieu addresses and endeavors to counteract.

MONTESQUIEU’S EVALUATION OF JUDGING AND ACCUSATIONS IN MACHIAVELLI’S REPUBLIC With the removal of the passage that refers to Machiavelli in book 3, Montesquieu first names Machiavelli in book 6, where he appears to speak with more respect, declaring at one point in the passage: “I would gladly adopt this great man’s [ce grand homme] maxim” (6.5, 77; OC 2: 313). Whereas in the excised passage, Montesquieu indicates only where Machiavelli’s greatness does not reside—it resides not in ascertaining the critical distinction between despotism and monarchy—in the reference in book 6, Montesquieu takes a broader view that renders a more sweeping and apparently more positive judgment: Machiavelli is a great man. Perhaps this judgment refers not merely to his fortitude or to the magnitude of his impact; perhaps it is a positive assessment of his overall character and intention. In apparent support of such a conclusion, Montesquieu even envisions in this discussion the possibility that he could make one of the Florentine’s maxims his own. Because a wholesale decrier of the devil Machiavel would not entertain such an outcome, Montesquieu seems to distinguish himself from all the anti-Machiavels who unreflectively reject the propagator of immoral

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politics tout court. Nevertheless, Montesquieu registers particular objections to Machiavelli in this passage, and he ultimately rejects the Italian’s maxim. This result cannot be surprising given that Montesquieu uses the conditional voice when treating his own relation to the Italian’s maxim. In this particular instance, Montesquieu finds that Machiavelli’s treatment of judgments and accusations in republics is too harsh and thus too despotic, finding that Machiavelli fails to consider the “security of individuals” (6.5, 77–78).34 Thus, Montesquieu provides no foundation here for interpreting his application of the term great to Machiavelli as fulsome praise as opposed to a gauge of his impact. Montesquieu’s discussion of the great man Machiavelli and of his maxim occurs in the book devoted to the principles of the various governments as they relate to civil and criminal laws and punishments. The topic of the specific chapter in which this discussion occurs is “In which governments the sovereign can be the judge,” where Montesquieu delineates the degree to which the ruling authority—be it the people, the monarch, or the despot—renders decisions in criminal cases (6.5, 77). The principle of despotisms is fear (3.9, 28), and fear is engendered in such states in part by the role the despot plays in judging: “In despotic states the prince himself can judge.” This role of the despot contrasts sharply with that of the monarch: “[The monarch] cannot judge in monarchies: the constitution would be destroyed and the intermediate dependent powers reduced to nothing.” In describing the results of a monarch’s assumption of the role of judge, Montesquieu actually proceeds to describe despotism: “fear would invade all spirits; one would see pallor on every face; there would be no more trust, honor, love, security, or monarchy” (6.5, 78). Therefore, when a monarch undertakes to judge, that monarchy becomes despotic. Montesquieu also examines republics in this chapter. In fact, he treats them first, and it is here that he invokes Machiavelli’s authority. Indeed, Machiavelli’s name is the first word of the chapter: “Machiavelli attributes the loss of liberty in Florence to the fact that the people as a body did not judge the crimes of high treason committed against them, as was done in Rome.” Before Florence lost its liberty, it was, of course, a republic. According to Montesquieu, Machiavelli claims that Florence would have maintained its liberty had it been more like Rome in having the people judge. Although Florence established eight judges for the purpose, such a small number does not satisfy the Florentine thinker, a point that the Frenchman corroborates by adducing a maxim of Machiavelli that he draws from the seventh chapter of the first book of the Discourses: “But, states Machiavelli, few are corrupted by few” (6.5, 77; emphasis in original).

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It is at this point that Montesquieu calls Machiavelli a great man, declaring that he “would gladly adopt” his “maxim.” Nevertheless, Montesquieu in fact rejects the very maxim that he declares he “would gladly adopt.” Explaining his ultimate refusal, Montesquieu continues: “but, as in these cases of treason, political interest forces civil interest, so to speak (for it is always a drawback if the people themselves judge their offenses), the laws must provide, as much as they can, for the security of individuals in order to remedy this drawback” (6.5, 77–78). This is a rather ambiguous statement to say the least. Montesquieu specifies neither the political nor the civil interest in question. Presumably, because treason is the crime that Montesquieu has identified in this instance—a crime that is a threat to the very existence of the state—the political interest is the state’s survival. In the continuation of the passage, Montesquieu helps to clarify what he means by the civil interest and how it may be protected in circumstances where there is so pressing a political interest, offering practices from ancient Rome: “Using this idea [the notion that the laws must try to provide for the security of individuals], the Roman legislators did two things: they permitted accused men to exile themselves before the judgment and they wanted the goods of condemned men to be made sacred so that the people could not confiscate them” (6.5, 78). Both measures of the Romans were means of protecting the accused. The civil interest, then, is the security of the individuals accused, which must be protected to the extent possible given the priority of the highest political interest, the preservation of the regime. In particular, Rome’s prevention of the confiscation of the property of the condemned was a way to protect against wrongful conviction. This provision acknowledges a particular manner in which the body of the people as judges might act to the detriment of the security of the accused. Specifically, if the people are likely to receive the property of those whom they condemn, the people may be all the more disposed to vote for a conviction, perhaps even in cases in which the evidence is not especially compelling. Thus, the people in their capacity as judges, according to Montesquieu, can sometimes act also against the civil interest. Accused citizens who are innocent could lose their liberty or their lives as a result of this venal motive for a guilty verdict on the part of the judges.35 This suggestion on Montesquieu’s part that the people’s judgment could be corrupted by the prospect of lucre is completely absent from Machiavelli’s maxim, as Montesquieu presents it here.36 Indeed, that seems to be the Frenchman’s very point; Machiavelli’s maxim is entirely devoid of concern for the security of individuals—a concern that Montesquieu himself manifests.

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Consideration of the broader discussion from which Montesquieu extracts Machiavelli’s maxim further highlights the difference between their respective views of judging in republics. Machiavelli’s discussion appears in chapter 7 of book 1 of the Discourses entitled “How Far Accusations May Be Necessary in a Republic to Maintain It in Freedom” where he asserts that “one cannot give a more useful and necessary authority than that of being able to accuse citizens to the people, or to some magistrate or council, when they sin in anything against the free state.” The Italian further explains that such an “order produces two very useful effects for a republic.” First, as a result of fearing that such an accusation may be lodged against them, “citizens do not attempt things against the state.” Second, even if citizens do make such attempts, “they are crushed instantly and without respect.” Machiavelli admires the ability of a republic to act quickly and decisively against such threats emanating from the republic’s own citizens. He continues that a third consideration in favor of accusations is that “an outlet is given by which to vent, in some mode against some citizen, those humors that grow up in cities; and when these humors do not have an outlet by which they may be vented ordinarily, they have recourse to extraordinary modes that bring a whole republic to ruin.”37 The people, he explains, must be appeased by the ability to accuse the prominent men in a republic. Machiavelli applies this general concern to the specific example of the downfall of the republic of Florence, which he served as secretary. He observes that there should have been a mechanism by which the people could have accused Piero Soderini, the gonfalonier of the Florentine republic, whom Machiavelli served during his own time as a political official. In Machiavelli’s view, Florence’s republic was defective because it lacked a “mode of accusation against the ambition of powerful citizens.” By way of explanation, Machiavelli offers: “For to accuse one powerful individual before eight judges in a republic is not enough; the judges need to be very many because the few always behave in the mode of the few.”38 This is the very passage from which Montesquieu draws the Machiavellian maxim.39 Machiavelli suggests here that whereas the many might well have convicted Soderini, the few would not have. Therefore, it seems that in Machiavelli’s judgment, Florence’s defect was that it lacked an effective method of accusation and failed to earn the people’s confidence as a result. If an effective method had existed in the republic, “either the citizens would have accused him, if he were living badly, and by such means they would have vented their animus without having the Spanish army come; or, if he were not living badly, they would not have dared to work against him for fear of being accused themselves.”40 Machiavelli’s concern is that citizens of the

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republic not call in a foreign power to satisfy their animus against their leaders; his concern is with the survival of the republic. With this end in view, Machiavelli promotes accusations as an alternative method. To use Montesquieu’s terms in 6.5, this is very much a political—as opposed to a civil—interest. It may not protect the security of the accused, but, to Machiavelli’s mind, it may very well preserve the republic. When, later in book 6, Montesquieu devotes his own chapter to Machiavelli’s topic, he points to Rome as a state in which accusations were particularly prevalent, but highly condemnable. Unlike Machiavelli, he shows a marked interest in limiting accusations for the sake of the accused. Montesquieu’s chapter begins with his observation that “[i]n Rome citizens were permitted to accuse another. This was established in the spirit of the republic, where each citizen should have boundless zeal for the public good, where it is assumed that each citizen has all the rights of the homeland in his hands.” Of course, “boundless zeal for the public good” in the general citizenry seems to be a rare and laudable thing, but as the short chapter continues, Montesquieu shows how this zeal can be perverted in such a way as to become inimical to the safety and security of the accused. These ill effects of such citizen-accusers were especially visible later when the “maxims of the republic were followed under the emperors, and one saw a dreadful kind of man, a band of informers, immediately appear.” Here, Montesquieu equates an element of the civil procedure—but perhaps not the spirit—of the Roman republic with the despotism of the emperors when he claims that the emperors followed the “maxims of the republic” (6.8, 81). The Roman republic and the empire were similar in that each was rife with potential accusers. Montesquieu unequivocally condemns the informers under the emperors, who, in order to advance themselves and to slake their “ambitious spirit, would seek out a criminal whose condemnation might please the prince.” He notes here that modernity does not see this phenomenon of informers accusing criminals for their own advancement: a body of informers is “a thing that we never see among ourselves.” Indeed, modern princes appoint “an officer in each tribunal who will pursue all crimes in his name.” Montesquieu calls this an “admirable law” (6.8, 81). This admirable law replaces not only the informers under the emperors, but also the civic enthusiasm of the citizenry of the republic; the officer, not every citizen, is an accuser. Montesquieu, in contrast to Machiavelli, praises the limitation of accusations. Montesquieu here stands with the practice of modernity against Machiavelli’s atavistic recommendations that offend the security of individuals.

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DIVERGENT EVALUATIONS OF THE ROMAN REPUBLIC’S VIOLENT ACTIONS IN PUNISHING It is not only in book 6 that Montesquieu treats the topic of judicial accusations. He announces in the very chapter in which he uses Machiavelli’s name for the first time that he will return to the topic later: “Other limitations placed on the people’s power to judge will be seen in Book 11” (6.5, 78). Montesquieu’s discussion of those limitations in this later book, in fact, entails limitations on the people’s power both to judge and to accuse, limitations that occur in a modern regime, not in the ancient Roman republic. In that book he will point to England as the state that best protects liberty. His discussions of liberty, which define liberty as a feeling of security, point to the notion of progress. Although Montesquieu notes that some progress on this score occurred in the Roman republic, he shows how Rome’s improvements are eclipsed by the example of England. England has discovered and applied the most important knowledge, according to Montesquieu— the knowledge of how to safeguard the security of individuals. 41 By contrast, Machiavelli offers for praise and emulation the harshest actions of the unreformed Roman republic. Thus, where Montesquieu holds up England as an improvement on the ancient Roman republic even after it instituted reforms for protecting the security of individuals, Machiavelli holds up for emulation his own depiction of a Roman republic at its harshest and most fearsome. Famous book 11 of The Spirit of the Laws is devoted to “the laws that form political liberty in its relation with the constitution.” Montesquieu defines “[p]olitical liberty in a citizen” as “that tranquility of spirit which comes from the opinion each one has of his security,” and claims that “in order for him to have this liberty the government must be such that one citizen cannot fear another citizen” (11.6, 157). He identifies England here as the “one nation in the world whose constitution has political liberty for its direct purpose” (11.5, 156).42 When Montesquieu repeats in book 12 the definition of political liberty that he provides in book 11, he adds the following consideration: “This security is never more attacked than by public or private accusations. Therefore, the citizen’s liberty depends principally on the goodness of the criminal laws.” “The knowledge” “concerning the surest rules one can observe in criminal judgments,” as we know, is what Montesquieu considers to be the most important knowledge available to human beings (12.2, 188; emphasis in original).43 Therefore, Montesquieu regards Machiavelli’s discussion of punishment as having great significance. Although some modern regimes have made noteworthy progress on this

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score, a modicum of progress is evident even in the regimes of antiquity, according to Montesquieu’s investigation of them. Ancient Greece serves as his primary example: “Among the Greeks in heroic times,” “[i]t had not yet been discovered that the prince’s true function was to establish judges and not to judge” (11.11, 169). At this time, the ancients’ political knowledge was rudimentary. Owing to this ill-conceived role in judging, these kings possessed excessive power, like the despot Montesquieu describes in book 6, chapter 5. Their subjects eventually drove out those overly powerful kings; the Greeks then made improvements in their politics. Still, the republics that replaced these kings lacked important knowledge about political arrangements that the moderns were to attain. He notes, for instance, that “[a] great vice in most ancient republics was that the people had the right to make resolutions for action, resolutions which required some execution, which altogether exceeds the people’s capacity” (11.6, 160). Moreover, within his extensive examination of the distribution of the three powers of government in ancient Rome, Montesquieu highlights progressive improvements. One such improvement occurred when the Romans eventually put limits on the power of the consuls to judge crimes of high treason. Montesquieu observes that the Roman “kings kept for themselves the judgment of criminal suits, and the consuls succeeded them in this.” This power of the earliest consuls of the Roman republic, Montesquieu notes, “was related to the Greek kings of heroic times” (11.18, 180–81). Such a relation to heroic times is far from complimentary to the Roman republicans because, as he has already explained, the Greeks of that period had not yet discovered that “the prince’s true function was to establish judges and not to judge” (11.11, 169). The Roman consuls in the earliest times of the republic utilized precisely this type of extensive power. “As a consequence of this authority the consul Brutus had his children put to death as well as all who had conspired on behalf of the Tarquins.” When employed, this power of each of the Roman consuls—of a single man to decide whether another citizen lives or dies—draws Montesquieu’s censure: “This power was exorbitant,” and when it was used “even” in “the public business of the town,” the “proceedings, devoid of the forms of justice, were violent actions rather than judgments” (11.18, 180). Montesquieu thus offers a dry, but incisive, condemnation of the early Roman republic. The Roman republic, though, improved itself quite quickly by enacting the Valerian law, “which permitted an appeal to the people of all the ordinances of the consuls that might imperil the life of a citizen.” The early republic, still threatened by conspirators who wished to bring back the kings, instituted a safeguard for individual security: “One sees in the first con-

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spiracy to reinstate the Tarquins that the consul Brutus judges the guilty; in the second, the senate and the comitia are convened to judge” (11.18, 180). Rome improved itself, in Montesquieu’s assessment, by instituting limits on the power of one man to judge and punish the accused. It formalized the procedures for criminal prosecution in such a way as to minimize the capriciousness of a single all-powerful ruler rendering judgment. Even after this turn away from the exorbitant and despotic power that originated among the Greek kings, the ancient republic of Rome, it turns out, was hardly a bastion of individual security. Indeed, from the vantage point of books 11 and 12, and hence in light of the precautions taken by England, these improvements in the Roman republic were not only primitive but also ultimately woefully inadequate to protect the liberty of citizens. Indeed, notwithstanding these improvements, the Roman people remained both judges and accusers. Montesquieu’s reference to the comitia, the assemblies of the people of Rome, points to the people’s power in judging—a power that was introduced very early in the republic and persisted through its various constitutional changes. Montesquieu specifies, for example, that “[t]he people themselves judged public crimes” in Rome (11.18, 181). In discussing the distribution of powers in the republic, he says that “the people had . . . part of the power of judging” (11.18, 182; see 11.18, 179 and 6.4, 76).44 Not only were the people judges but they were also accusers; Montesquieu notes that in Rome, “citizens were permitted to accuse one another” (6.8, 81). Because everyone was an accuser, a citizen had to fear every other citizen. This state of affairs contravenes his very definition of liberty as he presents it in book 11: “one citizen cannot fear another citizen.” Fear of another citizen, which undermines that opinion of security, arises in particular from “the power of judging,” which Montesquieu says is “so terrible among men.” This contrasts sharply with his depiction of England, where the power of judging is “null” because it is unattached “to a certain state” or “to a certain profession” (11.6, 157–58).45 Montesquieu delineates a particular “advantage” of England “over most of the ancient republics, where there was the abuse that the people were judge and accuser at the same time” (11.6, 164). Montesquieu’s analysis shows therefore that even in its improvements, Rome persisted in violating its citizens’ liberty.46 By contrast, Machiavelli highlights and recommends the practices of the Roman republic at its most extreme. Thus, where Montesquieu condemns, Machiavelli lauds. Indeed, Machiavelli concentrates much attention in the Discourses on the early Roman republic when the consuls held the exclusive power to judge, which in Montesquieu’s assessment is akin to the rule of the fearsome and despotic early Greek kings. Specifically, Ma-

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chiavelli adduces the resolute actions of Brutus, the founder of the Roman republic. Far from condemning Brutus’s power as “exorbitant” or “violent” and displaying relief when the power of the consuls became less absolute, Machiavelli recommends not only to new republics but to all states at all times the example of Brutus’s judgment that he rendered as consul against his own sons precisely because of its exorbitant and violent character. Indeed, the Florentine enjoins political leaders to “kill the sons of Brutus.” For Machiavelli, Brutus is a model to be followed. Machiavelli begins to build his case in favor of his republican exemplar, Brutus, in the first book of his Discourses, when he considers the difficult position of a fledgling republic that has recently thrown off kingship. Because a republic tends to reward only those who deserve the recognition, its beneficiaries do not feel particularly obligated to their government. As a result, republics in general do not win “partisan friends.” Machiavelli finds, however, that new republics do have particularly troublesome “partisan enemies”—specifically, those who were favored by the prior kingship and who are not going to receive such undeserved windfalls from the new republic. Machiavelli offers a solution to this persistent problem for republics: “If one wishes to remedy these inconveniences and the disorders that the difficulties . . . might bring with them, there is no remedy more powerful, nor more valid, more secure, and more necessary, than to kill the sons of Brutus.”47 This injunction is one of Machiavelli’s maxims for republics—a maxim to be applied in all times and in all places. Machiavelli goes so far as to specify that this bloody expedient should be applied not only in fledgling states, but in well-established ones as well. Later in the Discourses, he observes that older states engender complacency among the citizens because a well-established state has made them feel too secure. Such complacency is dangerous because it makes the state vulnerable to enemies—both internal and external. To counteract this complacency, Machiavelli advises that states be brought back to their “beginning” (principio). When he refers to the beginning of a republic, he has in mind “that terror and that fear” that people felt before and immediately after the state was founded. Without such recourse to the “beginnings,” people “dare to try new things and to say evil.” As the remedy for this alarmingly dangerous vulnerability, he prescribes particularly violent “executions.” He offers “the death of the sons of Brutus” as an instructive example.48 Machiavelli recommends this stern approach to punishing because, in his view, “in a republic that is not corrupt [punishments] are the cause of great goods and make it live free, since men are kept better and less ambitious longer through fear of punishment.”49 In antiquity as well as in modernity, new

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states as well as old are in need of such violence—of deeds that, according to Machiavelli himself, instill fear. Of course, Montesquieu associates such fear with despotism. The contrast between the thought of Machiavelli and of Montesquieu on this score is quite striking.50 Machiavelli recommends the unreformed, the unalloyed Roman republic—the republic at its most violent. The Florentine neglects the improvements in Rome that helped to provide for the security of the individual that Montesquieu praises. But the reformed Rome, which Machiavelli ignores, is a far cry, indeed, from the security and liberty that modern England affords its citizens, according to Montesquieu. In The Spirit of the Laws, Montesquieu presents his readers with a Machiavelli who wishes the Florentine republic to imitate the Roman one by allowing the people the widest possible scope for participation in judgments. But this Rome, as Montesquieu instructs, is far removed from the early republic where the consuls, such as Brutus, held this extreme power. An examination of the Discourses actually reveals Machiavelli’s enthusiasm for precisely that unalloyed power.51 Thus, whereas Montesquieu allows the modern regime of England to eclipse even the reformed Rome in his approbation, Machiavelli lauds the unreformed Rome and goes so far as to recommend its atavistic reappearance in contemporary times. Of these three possibilities, the most negligent of the individuals’ security—indeed, the most despotic—is the old, unreformed Roman republic, the one that Machiavelli so praises in his Discourses.52

MONTESQUIEU’S RECOMMENDATION OF THE MILIEU AND CHALLENGE TO MACHIAVELLI’S EXTREMES After his reference to Machiavelli’s maxim in chapter 5, Montesquieu does not mention the Florentine’s name again in the remainder of book 6,53 but he does clearly evoke the Florentine’s manner of thinking in chapter 18 of that book when he pronounces the general rule that “[a] good legislator takes a middle way [un juste milieu]” (6.18, 93; OC 2: 330). Machiavelli is famous for instructing precisely the opposite—for teaching the necessity of avoiding the “middle way” (la via del mezzo) by “turn[ing] to extremes [estremi].”54 The specific extreme that he recommends entails the harshest action possible—capital punishment. More than once in the Discourses Machiavelli applies the adjectives “great” (grande) and “generous” (generoso) to just such an extreme course.55 For Machiavelli, the harshest punishment is so significant that he attributes the moderns’ inability to carry it out to the weakness of modern education, a weakness he endeavors to overcome.

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For his part, Montesquieu’s embrace of the middle way and his resulting avoidance of extremes allow him to reject the extreme of Machiavellian coups d’état. Indeed, the Frenchman gainsays Machiavelli’s purpose when he explicitly deems their very rejection great and generous. In addition, in discussing extreme punishments in the context of the liberty of citizens, Montesquieu explicitly treats the possibility that such harshness in a republic can result in tyranny, which he defines elsewhere in the work as “the violence of the government” (19.3, 309). Because Machiavelli recommends periodic recourse to such punishment in a republic—indeed, he insists that frequent recourse to such punishment is necessary for a republic’s longevity—Montesquieu suggests that tyranny resides at the heart of a Machiavellian republic. Machiavelli praises the Roman eschewal of the middle way in a chapter of the Discourses (2.23) entitled “How Much the Romans, in Judging Subjects for Some Accidents That Necessitated Such Judgment, Fled from the Middle Way.” By way of explaining the necessity of the Romans’ approach there, Machiavelli explains that one must understand the nature of government, which is “nothing other than holding subjects in such a mode that they cannot or ought not offend you.” This can be achieved “by securing oneself against them altogether, taking from them every way of hurting you, or by benefiting them in such a mode that it would not be reasonable for them to desire to change fortune.”56 Thus, the extremes that eschew the middle way are, on the one hand, extreme leniency that benefits the governed so that they have no desire whatsoever for a change in government and, on the other, the strongest measures possible—measures that eventuate in severe punishment that at once eliminates the rebellious and produces incapacitating fear in those who remain. At this point, Machiavelli posits either of these two extremes as the necessary alternative to the middle way. He illustrates the route of extreme leniency in this chapter with the example of Rome’s decisions to accept for citizenship the people of the Italian cities it had subdued.57 The truly shocking aspect of Machiavelli’s chapter is his description of the extreme of punishment. Simply put, Machiavelli teaches here that rebellious or insolent subjects “cannot . . . offend you” when you have killed them.58 This latter alternative is extreme, indeed, and Machiavelli recommends it vigorously—much more vigorously than the extreme of leniency— elsewhere in the Discourses. In this particular chapter, however, he discusses the case of the Florentine republic when it attempted to hold the city of Arezzo subject to its rule. When its subject city rebelled, the Florentines chose a “middle way that is very harmful in judging men: they exiled

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part of the Aretines, fined part of them, took away from all of them their honors and former ranks in the city, and left the city intact.” Machiavelli recommends strongly against this approach: “Honor consists in being able and knowing how to punish [the city], not in being able to hold it with a thousand dangers, for the prince who does not punish whoever errs in such a mode that he can err no more is held to be either ignorant or cowardly.” The only remedy to Arezzo’s rebellions, he counsels, was “to eliminate it.”59 Thus, Machiavelli here recommends the harshest possible extreme. In a closely related discussion, which occurs in Discourses 3.27, Machiavelli adduces the manner in which the Florentine republic dealt with another subject city, Pistoia.60 The challenge in this case for Florence’s rule was that Pistoia was divided into two warring factions. He discerns three possible methods of dealing with such a problem: “to kill the heads of the tumults,” the method used by “the Roman consuls” in ancient times; “to remove them from the city; or to make them make peace together under obligations not to offend one another.” These three alternatives offer an extreme of punishment, a middle way, and an extreme of leniency. By contrast to the ancient Romans, the Florentines, in dealing with divided Pistoia, “always used that third mode with them; and always greater tumults and greater scandals arose from it.” Eventually, when this method failed them, the Florentines had recourse to the second method of removing the leaders from the city. This was the compromise between the two extremes; it was the middle way, but this method also failed. In light of these results, Machiavelli vigorously recommends the harshest method: “But without doubt the first [mode] would have been most secure.” In recommending this extreme, Machiavelli points to the success of the Roman consuls “who reconciled the Ardeans together” by “kill[ing] the heads of the tumults.”61 In this way, Machiavelli recommends the harshest, most extreme punishment. In making this recommendation here, Machiavelli seems to make reference to a benefit to the ruled: “Because such executions have in them something of the great and the generous [il grande ed il generoso], however, a weak republic does not know how to do them and is so distant from them that it is led to the second remedy only with trouble.”62 Machiavelli’s choice of these terms in describing such executions is striking in its peculiarity. Executions are usually described as neither generous nor great. Reflection on these terms suggests that his claim that the killing of the factions’ leaders partakes of generosity means that these killings could benefit the other residents of the town, who, as a result of the extreme action, would no longer suffer from the adverse effects of the city’s internecine division. The action appears to be “great” in Machiavelli’s assessment precisely because

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it requires unusual firmness and strength to benefit others in so harsh a manner. Machiavelli laments, for example, in his consideration of the Florentines’ failure at Pistoia: “But the weakness of men at present, caused by their weak education and their slight knowledge of things, makes them judge ancient judgments in part inhuman, in part impossible.”63 Modern education, he here asserts, is the cause of the political weakness he discerns. No more arresting example of Machiavelli’s discernment of the failure of modern education exists in the Discourses than chapter 27 of book 1 entitled “Very Rarely Do Men Know How to Be Altogether Wicked or Altogether Good.” Predictably, Machiavelli advocates the extremes—either wickedness or goodness—and again the particular extreme he explicitly advocates entails execution. This particular discussion is important as a means of further illustrating not merely the type of extreme harshness that Machiavelli recommends, but also the type of abuses that induce such vehemence—indeed, such vengeance—in the writer-legislator. The single example of the failure to be either completely wicked or completely good in Discourses 1.27 is that of Giovampagolo Baglioni, “tyrant of Perugia,” and in criticizing this tyrant’s failure, Machiavelli again describes the harshest action as both great and generous. Baglioni, although he lived an immoral life, having committed incest with his sister and having “killed his cousins and nephews so as to reign,” was unable to kill Pope Julius II, who had come to his city to remove him from power. In his “rashness,” Julius could not have presented Baglioni with a better opportunity to slay him, entering Perugia without his army. Machiavelli regrets Baglioni’s failure in such terms that he brazenly advocates the slaughter of churchmen: Baglioni “did not dare, when he had just the opportunity for it,” “to engage in an enterprise in which everyone would have admired his spirit and that would have left an eternal memory of himself as being the first who had demonstrated to the prelates how little is to be esteemed whoever lives and reigns as they do; and he would have done a thing whose greatness would have surpassed all infamy.” To so rid the world of such prelates would be a supreme good—one that would redound not in condemnation but rather in accolades for its perpetrator, Machiavelli teaches. The churchmen’s form of rule is so contemptible that they deserve death. Indeed, Machiavelli here uses the same terminology he used in speaking of killing the leaders of divisions within a subject city. Baglioni’s failure to kill the pope and cardinals illustrates that “when malice has greatness [grandezza] in itself or is generous [generosa] in some part, [human beings] do not know how to enter into it.” Machiavelli desires to rouse men’s spirits for the extreme acts he deems great and generous. Indeed, Machiavelli laments in his consideration of the

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Florentines’ failure at Pistoia, “the weakness of men at present, caused by their weak education and their slight knowledge of things, makes them judge ancient judgments in part inhuman, in part impossible.”64 Machiavelli takes it upon himself to attempt to overcome the education that informs such infirm reactions to political events. How central to Machiavelli’s own purposes is this particular desire can be seen in the continuation of his discussion in Discourses 3.27 of how to deal with divided cities that one’s state has captured. Machiavelli declares that the inability of rulers to kill in order to produce such great and generous results is of the utmost significance for him, announcing that his very purpose in writing is to attempt to promote the resoluteness that can produce—to his mind—such favorable results. He explains: “These are among the errors I told of at the beginning that the princes of our times make who have to judge great things, for they ought to wish to hear how those who have had to judge such cases in antiquity governed themselves.”65 The beginning to which Machiavelli here refers is his preface to the first book of the Discourses where he explains his intention in commenting on Livy’s history. He announces there his desire to overcome, by means of his commentary on the pagan Romans, the pervasive view that “imitation” of antiquity “is not only difficult but impossible.” He points to the moderns’ failure to model themselves on the ancients: “in ordering republics, maintaining states, governing kingdoms, ordering the military and administering war, judging subjects, and increasing empire, neither prince nor republic may be found that has recourse to the example of the ancients.” Montesquieu’s predecessor looks for the cause of this neglect: “This arises, I believe, not so much from the weakness into which the present religion has led the world, or from the evil that an ambitious idleness has done to many Christian provinces and cities, as from not having a true knowledge of histories.”66 In identifying the cause for this neglect of the instructive examples of the ancients, the Italian forthrightly impugns Christianity for fostering weakness and ambitious idleness but does not so very directly blame the religion for causing the neglect of ancient examples. But, of course, the Christian dispensation and its education have made the ancients unfit models of conduct.67 In The Art of War, Machiavelli is more direct in blaming Christianity for undermining the utility of the ancient examples: the Christian religion . . . does not impose that necessity to defend oneself that there was in antiquity. For then, men conquered in war were either killed or remained in perpetual slavery, where they led their lives miserably. Their conquered towns were either dissolved or, their goods

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taken, the inhabitants driven out and sent dispersed throughout the world.68

Machiavelli makes it his explicit purpose in the Discourses on Livy to attempt to overcome the very education that informs such infirm reactions to political events by encouraging his contemporaries to imitate the harshness of the ancient Romans. The lesson that Montesquieu teaches regarding the proper approach to punishment could not be more different from Machiavelli’s recommendations on the subject.69 In his short chapter entitled “On pecuniary penalties and corporal penalties,” the Frenchman begins by appearing to recommend against capital punishment entirely: “Our fathers the Germans admitted almost none but pecuniary penalties. These men, who were both warriors and free, considered that their blood should be spilled only when they were armed.” After reporting the objection of the Japanese to fines, which maintains that the rich thereby escape punishment, he counters such an objection, lending further support to these softer penalties. Having spoken only in favor of pecuniary penalties, not at all in favor of corporal ones, he embraces the middle way: “A good legislator takes a middle way; he does not always order pecuniary penalties; he does not always inflict corporal penalties” (6.18, 93). The contrast to Machiavelli’s view of punishment is indeed quite sharp. Whereas Montesquieu recommends a middle way, Machiavelli demands it be avoided by embracing either of the two extremes. Although Machiavelli seemingly recommends either extreme, either the soft or the harsh, he focuses his instructional efforts on inducing his readers to see both the grandeur and the benefits of the harsh—of the one that demands executions.70 Machiavelli requires such resolute actions that even an inveterate tyrant shrank from them. Montesquieu, for his part, offers further reflections on Machiavelli’s recommendations for extreme punishments when he returns to the topic of “crimes of high treason,” which is, in fact, a return to the topic in which he first mentions Machiavelli’s name (6.5, 77). This later discussion occurs in book 12, where Montesquieu’s purpose is to examine “political liberty in relation to the citizen.” In chapter 18 of book 12, Montesquieu continues his themes of the security of the individual and of moderation in punishing when he emphasizes not the danger that the treasonous pose to a republic, but rather the danger to a republic of punishing those convicted of this crime too harshly and extensively. Entitled “How dangerous it is in republics to punish excessively the crime of high treason,” the chapter begins with the thought that “[w]hen a republic has destroyed those who want to

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upset it, one must hasten to put an end to vengeances, penalties, and even rewards.” Montesquieu here acknowledges the necessity for harshness in such circumstances; the republic may very well destroy those who endeavor “to upset it.” Nevertheless, Montesquieu does not relish this necessity. Instead, he issues a warning: “One cannot inflict great [grandes] punishments, and consequently, make great changes, without putting a great power into the hands of a few citizens. . . . On the pretext of avenging the republic, one would establish the tyranny [la tyrannie] of the avengers” (12.18, 202–3; OC 2: 447). Montesquieu sometimes refers to the violence of a government as a tyranny. For example, in the chapter he entitles “On tyranny,” he notes that “tyranny” arises from the “the violence of the government” (19.3, 309).71 Montesquieu explicitly claims that a republic can be tyrannical, particularly when it undertakes to punish great crimes with great violence. This is a return to the very topic that induces Montesquieu to cite Machiavelli by name in 6.5; indeed, it is in the context of a discussion of “crimes of high treason” that Montesquieu rejects Machiavelli’s maxim. Montesquieu associates Machiavelli with the despotic punishment of the treasonous. The topic of the punishment of the treasonous is also one that induces Machiavelli in the Discourses to be his most extreme. Machiavelli recommends in 3.1 of the Discourses that such extreme punishment occur periodically so that the citizens of the republic do not forget the fear and terror that they felt at the “beginning.” Machiavelli here provides the example of the death of Brutus’s sons, but he offers additional examples of salutary executions of those who, in Montesquieu’s terminology, attempted “crimes of high treason” against the republic: “Maelius the grain dealer,” Capitolinus, and the members of the decemvirate, for example. Machiavelli explains that these “excessive and notable” “executions” induce “terror” and “fear” in the spectators, so that people will hesitate “to dare to try new things and to say evil.” Indeed, he holds up as an example for a republic the execution of “the son of Manlius Torquatus,” whose high crime against the Roman republic consisted merely in skirmishing—and victoriously— with the enemy contrary to military orders. In recommending frequent “excessive and notable” executions, Machiavelli encourages the placement of such great power to punish in the hands of a few citizens.72 Therefore, in rejecting what he sees as the enfeebling education of his own time that produces leaders who cannot muster the requisite resolve to take the harsh measures that political life requires, the Florentine undertakes to provide an alternative education that professes the salutary effects—the greatness and the generosity—of harsh punishments. Where Machiavelli recommends enthusiastically, Montesquieu warns

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direly. At precisely this moment Montesquieu worries about the possibility of “the tyranny of the avengers” (12.18, 203).Machiavelli’s prescription of spectacular executions not only against the treasonous but also against the outstanding youth of a city in order to reinvigorate a republic could not be further from Montesquieu’s approach to politics, with its concerns for the security of individuals and for the gentlest possible approach to punishments. A continual renewal of fear, which in Machiavelli’s assessment counteracts complacency, cannot be the way of Montesquieu’s republic, because fear, after all, is the principle of despotism, according to Montesquieu. Montesquieu’s recommendations regarding judgments and penalties in the context of his invocation of Machiavelli’s name and his challenges to Machiavelli’s dictates serve to emphasize the harshness, the arbitrariness, and the violence of Machiavelli’s principalities and republics. After all, Montesquieu’s responses to Machiavelli in book 6 of The Spirit of the Laws and the renewed discussion of the same topic in book 12 all point to the tyrannical and despotic character of Machiavelli’s recommendations for politics. In his initial discussion of punishments, Montesquieu suggests that it is with regard to punishments that a legislator’s harshness is particularly evident. In a chapter entitled “On the power of penalties,” he declares: “A legislator who wants to correct an ill often thinks only of that correction; his eye is on that object and not on its defects. Once the ill has been corrected, only the harshness of the legislator is seen; but a vice produced by the harshness remains in the state; spirits are corrupted; they have become accustomed to despotism” (6.12, 85). Thus, in a chapter devoted to the power of penalties, Montesquieu announces his concern that a legislator’s harshness in correcting a defect itself corrupts human beings. In Montesquieu’s estimation, Machiavelli is certainly one such legislator. The harshness Machiavelli recommends is itself despotism. Precisely because of this power of penalties, Montesquieu suggests six chapters later that a legislator—such as Machiavelli—should always take the middle way. Therefore, the Italian offers a correction to what he regards as the fundamental problem of his time, but Montesquieu responds that his predecessor’s correction is, in fact, a further abuse. Montesquieu warns of precisely this pitfall at the outset of his work: “One feels the old abuses and sees their correction, but one also sees the abuses of the correction itself” (pr., xliv).73 Montesquieu not only documents the abuses of Machiavelli’s correction but also points the way to amelioration of them. He thereby assists in that cure of Machiavellianism already under way. Montesquieu shows not only that Machiavelli’s impact on Europe has been great but also that he can surpass this great man of Italy by correcting him.

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CONCLUSION Although Montesquieu calls Machiavelli a “great man,” the Frenchman undertakes to subvert the type of harshness that the Florentine himself deems great and generous. Montesquieu finds that later French monarchs took such Machiavellian advice very much to heart. In reaction, he lauds the “great and generous courage” of a nobleman who resisted the order of his monarch for just such a Machiavellian coup d’état. In the process, Montesquieu recommends the notion that such coups—that such executions— represent not praiseworthy resoluteness but rather “cowardly” actions (4.2, 33). In this manner, Montesquieu corrects the correction that Machiavelli undertakes and thus perpetuates the cure to Machiavellianism that he discerns. Moreover, Montesquieu objects to the resoluteness recommended not only in The Prince but also in the Discourses; not only Machiavelli’s principalities but also his republics are too despotic. Thus, Montesquieu regards Machiavelli as great for the immense impact he had on European politics, but not for the character of that impact. For Montesquieu, true greatness and generosity require the rejection of Machiavelli’s harsh teachings.

c h a p t e r t wo

Montesquieu’s Attack on the Political Errors of Hobbes

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ontesquieu announces his opposition to the thought of Thomas Hobbes at the beginning of The Spirit of the Laws. In the second chapter of a work of over six hundred chapters, Montesquieu names him twice in objecting to the Englishman’s particular depiction of the state of nature. After this early, concentrated attack on Hobbes, Montesquieu never again mentions his name in the work. Despite this silence, Montesquieu himself attests, in a later work intended to defend The Spirit of the Laws against charges of its religious unorthodoxy, that to a large degree his endeavors in his masterwork were aimed specifically against this English adversary—a disreputable adversary, widely decried as an atheist. He insists that he “had in view to attack [attaquer] the system of Hobbes, a terrible system which [makes] all virtues and all vices depend on the establishment of laws that men make for themselves” and concludes forcefully that “always” “the author [of The Spirit of the Laws] attacked [a attaqué] the errors of Hobbes.”1 It is quite plausible that his ecclesiastical critics’ attacks on his great work induced him to exaggerate the degree and specificity of his vindication of a notion of justice that transcends the laws of any given regime. For example, he notes in the Defense that the work under attack has “demonstrated,” quoting its first chapter, “that [there] are relations of justice [justice] and fairness [équité] prior to all the positive laws” (OC 2: 1122). The word “justice,” however, does not appear in the particular sentence he claims to quote (cf. 1.1, 4; OC 2: 33). Thus, when his goal later is to distance himself from disreputable thinkers with whom his critics wish to associate him, he makes his differences with Hobbes starker. Although Montesquieu may be said to have been caught exaggerating this particular difference with Hobbes at this point in his Defense, there is 50

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evidence from his manuscript that his English predecessor was, in fact, on his mind when he was drafting his first chapter of The Spirit of the Laws, even though Hobbes’s name does not appear until the succeeding chapter in the final version.2 The sentence he quotes inaccurately in the Defense follows directly from his statement: “To say that there is nothing just or unjust but what positive laws ordain or prohibit is to say that before a circle was drawn, all its radii were not equal” (1.1, 4). For the printed version of The Spirit of the Laws Montesquieu struck the phrase “avec Hobes” after the infinitive “To say” from the beginning of this ambiguous sentence.3 It is far from clear why Montesquieu removed Hobbes’s name from this passage, but the words in the manuscript help establish that before, just as after, the publication of The Spirit of the Laws, Hobbes’s claims regarding the relation of justice to positive law were very much on his mind. Although Montesquieu speaks as the work opens of “relations of fairness prior to the positive law that establishes them” and of the “just” and “unjust” apart from “positive laws,” The Spirit of the Laws as a whole certainly does not reveal Montesquieu attacking the errors of Hobbes by launching a crusade against positive laws that the Frenchmen deems unjust. Although Montesquieu notes the existence of “civil laws that are contrary to natural law” (26.3, 496), he himself does not denounce any law, among any people, as “unjust” in the entirety of the work.4 He does, however, put that precise formulation in the mouth of “Saint Augustine”: “‘There never was,’” he quotes the Christian thinker as pronouncing, “‘a more unjust law’” (26.6, 498). Christian thinkers are more apt to issue such denunciations than is he, Montesquieu thus indicates. Therefore, as much as Montesquieu can be said to have opposed Hobbes’s positivism in book 1, that particular aspect of his opposition to his predecessor largely recedes from view as the work progresses. If Montesquieu highlights to the extent of exaggerating his antipathy toward Hobbes’s positivism, then perhaps in his assessment Hobbes’s thought contains something more than errors, and after all, it is only the errors that Montesquieu specifies are the target of his attacks. In fact, Stanley Rosen discerns a fundamental kinship between Hobbes and Montesquieu: “on balance, Montesquieu can be described as a follower of Hobbes . . . in the pursuit of comfortable self preservation.”5 In the note explicating the basis for his equation of these two thinkers, Rosen refers to Hobbes’s statement that “desire and hope for ‘commodious’ living leads to peace.”6 The statement to which Rosen here refers runs: “The Passions that encline men to Peace, are Feare of Death; Desire of such things as are necessary to commodious living; and a Hope by their Industry to obtain them.”7 As Rosen

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suggests and this chapter will elaborate, there is much in this particular passage of Hobbes’s Leviathan and its related teachings with which Montesquieu agrees. Like Hobbes, Montesquieu endeavors to incline human beings to a type of peace; he teaches that the chaos of the state of war induces them to seek the haven of positive law; he reveals that human beings in society possess the most dreadful capacity to harm others. In addition, he certainly supports a gentler and more pleasing way of life for humanity, which could be characterized as commodious living, as well as the human industry that makes it possible. Despite these key areas of agreement, there is a still fundamental political disagreement between the two thinkers. Hobbes’s Leviathan contains the most powerfully elaborated case for a type of sovereignty that has become known as absolute.8 Montesquieu’s own homeland also produced, in the generations that immediately preceded his, formidable theorists of absolutism. During the reigns of Louis XIII and Louis XIV, Cardin Le Bret, Cardinal Richelieu, and Jacques Bénigne Bossuet wrote to abet the cause of absolute monarchy in France. Montesquieu does not directly engage in these particular controversies regarding the character of the contemporary French monarchy in The Spirit of the Laws, although he does offer particularly harsh but isolated criticisms of Richelieu, which explicitly link the aims of this minister and author to despotism. Despite Montesquieu’s general restraint on these issues that relate directly to his homeland, scholars have scrutinized his treatment there of monarchy and despotism in light of these French controversies and drawn differing conclusions regarding his ultimate position on them.9 Although he largely refrains from engaging with such controversies in this work, he indicates in his private notebook that Hobbes’s thought exercises a lingering ill effect on the French monarchy under which he lived as an adult: “It is the abbé Dubois who had spoiled the [regent] Duke of Orleans and had him reading Hobbes and other books of this type.”10 Thus, Montesquieu himself acknowledges privately that Hobbes’s writings can have an adverse effect on politics in general and on the monarchy of his homeland in particular. To attack the aspects of Hobbes’s thought that the French monarchy and its ministers have embraced in the service of an absolute monarchy, then, would be tantamount to a criticism of the French government. Therefore, Montesquieu’s understanding that Hobbes’s teaching was still associated with the monarchy of his own time would make the Englishman’s positivism and his depiction of the state of nature fitter aspects for explicit attack than his depiction of allpowerful rule. Montesquieu does note, after all, that “in extremely absolute

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monarchies, historians betray the truth because they do not have the liberty to tell it” (19.27, 333).11 Whatever the reason for Montesquieu’s reticence in naming Hobbes’s politics as a particular object of attack, it is certainly the case that several specific aspects of The Spirit of the Laws oppose Hobbes’s political teaching. Montesquieu will not accept Hobbes’s construction of an all-powerful prince as the solution for the ravages of the state of war and the human passions that give rise to it. He both renounces the fearful threats of despotism and rejects its blandishments. Indeed, Montesquieu’s very definition of political liberty rejects Hobbes’s emphasis on fear. Just as Montesquieu finds timid and fearful human beings at peace among themselves in nature before the establishment of societies, so he demands that governments, which are formed in order to quell the state of war, not make war on their citizens. As a result, Montesquieu asks for the gentlest methods possible in ruling. Fear is not for Montesquieu the guiding principle of all political life, but rather exclusively the principle of despotism; despotism for Montesquieu is one form of government, not the essential truth of all government, as Hobbes declares. Thus, there are, as other scholars have recognized, additional grounds for Montesquieu’s claim for himself that he has “always” “attacked the errors of Hobbes.”12 This rejection on Montesquieu’s part of the fearful character of the rule of Hobbes’s Leviathan points to their fundamental difference on the matter of security and tranquility, concepts that are central to the purposes of each. Hobbes promises that an all-powerful and fearsome sovereign will remedy the insecurity of the state of nature, thus offering security and, hence, tranquility on the level of society. In order to achieve that tranquility, Hobbes declares that fear is the passion on which to rely.13 By contrast, Montesquieu focuses on the tranquility and feelings of security of individuals. The individual’s tranquility of spirit, he announces, arises from the opinion that each has of his security, and is ultimately the very definition of “political liberty in a citizen” (11.6, 157). By magnifying the fearsomeness of government in the name of societal security and tranquility, Hobbes sacrifices the tranquility of spirit of individual citizens and hence their political liberty, according to Montesquieu’s understanding. In Hobbes’s thought the private realm engrosses the political realm as his sovereign controls all and is beyond reproach. By contrast, Montesquieu points to a monarch who is constrained by the fundamental laws of the state. A vigorous political realm, one filled with contestation, in which citizens are vigilant to the possible encroachments of their governors, is essential to the protection of political liberty. A monarchy should not bring all

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the powers in the state into the same hands. As Judith Shklar notes, Montesquieu shows that “monarchies” are particularly susceptible to a condition in which their “institutionalized power” becomes “too concentrated,” thus “moving structurally towards” despotism, with “Asiatic despotism as their ultimate end.”14 A regime that can offer political liberty is an institutional arrangement in which power is divided and balanced. Montesquieu teaches that such a vigorous political realm must be nurtured. Thus, although he promotes commerce, he does not completely forsake the political realm in promoting it. The Frenchmen specifically warns that the purveyors of despotism have perennially made promises relating to comfortable living, attempting to entice citizens to embrace the absolute rule of one. Thus, where Hobbes notes that, in addition to fear, the desire for commodious living draws human beings to seek shelter under the arms of an all-powerful ruler, Montesquieu warns that such appeals to the hope “des commodités de la vie” can induce citizens to subjugate themselves to a too-powerful ruler who promises tranquility and the prospect of the earthly delights of prosperity at the price of political liberty (OC 2: 301). Political liberty is security, and security cannot be had under such a government. He teaches that the elevation of a fear-inducing sovereign and the eschewal of institutional barriers to its amassing of power, even if intended to provide for the security of the individual and of society, cannot ultimately provide the protection from arbitrary and harsh governmental action that true commodious living in the long term requires. He holds up England as a state that resists such allurements even while maintaining a life dedicated to commerce and thus that paradoxically sacrifices its security when necessary to protect its political liberty, which, on Montesquieu’s definition, is understood as “the opinion one has of one’s security” (12.2, 188). Montesquieu’s attacks on the political errors of Hobbes underscore his general teaching both that there is more despotism in Europe than might initially appear and that an important aspect of that despotism derives from the ideas of one of his philosophic predecessors. In responding to Hobbes’s harsh promotion of despotism by teaching a soothing gentleness, Montesquieu acts the part of a “wise legislator” who endeavors to restore a people’s ability to respond to gentleness (6.13, 87).15 In arguing that Montesquieu regards Hobbes as a political thinker who is responsible for deleterious ideas about politics, ideas with which Montesquieu repeatedly contends in his Spirit of the Laws, a commentator should acknowledge that Montesquieu fails even to mention Hobbes by name when treating philosophic legislators in 29.19. Nevertheless, in discussing Harrington’s blindness in seeing “only the republic of England,” Mon-

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tesquieu almost certainly gestures to Hobbes’s unnamed presence in the “crowd of writers” in England during the English Civil Wars who “found disorder wherever they did not see a crown” (29.19, 618).16 Just as in the case of this chapter on legislators, so in the remainder of the work: Hobbes is an unnamed presence in much of it.

MONTESQUIEU’S STATES OF NATURE AND WAR AND HIS EARLY ASSAULT ON HOBBES In the second chapter of The Spirit of the Laws, Montesquieu discusses human beings before the advent of government. In this place, Montesquieu explicitly and pointedly takes issue with Hobbes’s conception of human nature in a manner that challenges his predecessor’s depiction of the fearfulness of the state of nature. Where Hobbes finds an aggressive being in the state of nature, Montesquieu descries a timid and therefore pacific one. For Montesquieu, “peace” is “the first natural law,” and, according to his stipulation, “the laws of nature” “derive uniquely from the constitution of our being” (1.2, 6). Despite this dispute, there are fundamental areas of agreement. In the very next chapter, Montesquieu no longer appeals to Hobbes by name, but he certainly appeals to his thought as he here uses the notion that human society without enforceable law ineluctably becomes the state of war. Isolated individuals in the state of nature may be timid and thus pacific, as he maintains in the earlier chapter, but when they form groups, they become belligerent, seeking to dominate others. Moreover, nations exist in a state of war with each other. Government, according to Montesquieu, quells the state of war within society. These are Hobbesian notions, indeed. Nevertheless, as fierce as human beings become in society and under government, he keeps those gentle creatures in mind as he seeks for a government that can as far as possible reintroduce the favorable aspects of the state of nature. Whereas Hobbes seeks peace in society under government, Montesquieu seeks peace as well as gentleness both under and from government. Montesquieu begins the second chapter of the work by following Hobbes into the state of nature in order to derive fundamental principles about political life. He opens the chapter proclaiming that “[p]rior to all these laws”—presumably all the laws he delineates in the first chapter, including the laws of religion, of morality, and of political and civil society— “are the laws of nature, so named because they derive uniquely from the constitution of our being.” He proceeds to assert that in order to know these laws of nature “well,” “one must consider a man before the establishment

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of societies.” In considering what that natural being would be like, Montesquieu surmises that “his first ideas [ses premières idées] would not be speculative [spéculative] ones” (1.2, 6; OC 2: 235). For Montesquieu, ideas can both liberate and enchain human beings. But the ideas of the individual he here examines are neither as exalted nor as degraded as those possibilities. He specifies that because of their preoccupation with their own “preservation,” these beings would seek neither the truths of religion nor those of philosophy.17 On this basis, Montesquieu finds a gentle being and, as a result, peace in the state of nature: “Such a man would at first feel only his weakness; his timidity would be extreme.” With this finding, Montesquieu draws an implicit contrast to Hobbes’s state of nature: “In this state, each feels himself inferior; he scarcely feels himself an equal. Such men would not seek to attack one another, and peace would be the first natural law” (1.2, 6). The extreme timidity of human beings before the advent of society keeps any latent aggressiveness at bay. Therefore, Montesquieu follows Hobbes in looking to the state of nature to derive political truths, but where Hobbes finds war, Montesquieu identifies peace.18 Montesquieu then makes the dispute manifest; in the only chapter in the entire published work in which he mentions Hobbes’s name, he does so twice in quick succession. Montesquieu begins each of the next two paragraphs with the name of his antagonist and a summary of one of his positions on the state of nature, which he then counters with his own objection. Montesquieu’s initial foray declares: “Hobbes gives men first the desire to subjugate one another, but this is not reasonable.” Then, Montesquieu proceeds to explain that “[t]he idea [idée] of empire and domination is so complex and depends on so many other ideas [idées], that it would not be the one they first have” (1.2, 6; OC 2: 235). Montesquieu has already noted that individuals in the state of nature would not have speculative ideas; now he says that they would not even have the ideas that would permit them to entertain notions of vaunting pride or even of hierarchy. Against Hobbes’s claim, for example in chapter 13 of the Leviathan, that for the sake of “Glory” or “Reputation” one would attack another for “trifles, as a word, a smile, a different opinion, and any other signe of undervalue,” Montesquieu maintains that human beings in the state of nature would lack the very understanding necessary to attack others for such abstract reasons.19 Montesquieu follows up on this dispute immediately by providing Hobbes’s text as a target for his next attack: “Hobbes asks, If men are not naturally in a state of war, why do they always carry arms and why do they have keys to lock their doors?” Montesquieu’s quotation refers to

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Hobbes’s response to the anticipated objection of his readers, who may think it “strange” “that Nature should thus dissociate, and render men apt to invade, and destroy one another.” Hobbes then directs such an objecting reader to “consider with himself, when taking a journey, he armes himself, and seeks to go well accompanied; when going to sleep, he locks his dores.”20 Hobbes’s response serves only to provoke another objection from Montesquieu: “But one feels that what can happen to men only after the establishment of societies, which induced them to find motives for attacking others and for defending themselves, is attributed to them before that establishment” (1.2, 6). Of course, Hobbes himself recognizes that he speaks here of individuals familiar with society; after all, the individuals whom he portrays here possess arms and dwellings outfitted with doors with locks. Therefore, Montesquieu endeavors to undermine Hobbes’s position by claiming that human beings’ later aggressive defensive tactics do not establish that they were always necessary against their fellows. The Frenchmen claims that Hobbes, in so imagining the state of nature, has mistakenly imported human beings formed by society into his primal state. In Montesquieu’s analysis, the first state of human beings would be pacific because its occupants would be timid and ignorant. Because human beings when isolated and vulnerable are not bellicose, their nature is not one that would elicit fear in others. In this manner, Montesquieu maintains against Hobbes that human beings once lived in peace. Montesquieu goes on to offer in this chapter three other laws of nature in addition to this “first natural law,” which is “peace.” He identifies the pursuit of “nourishment” as the second. In explaining the third, he begins with a type of sociability that overcomes that initial and isolating fear that he stresses up to this point: “I have said that fear would lead men to flee one another, but the marks of mutual fear would soon persuade them to approach one another. They would also be so inclined by the pleasure one animal feels at the approach of an animal of its own kind.”21 Even before sexual attraction, then, he discerns the appeal of companionship, but sex soon enters the picture in his view: “In addition, the charm that the two sexes inspire in each other by their difference would increase this pleasure.” Here he finds his next natural law: “the natural entreaty they always make to one another would be a third law.” In addition, that nascent desire for company becomes “the desire to live in society,” when human beings “succeed in gaining knowledge,” and this law becomes “a fourth natural law” (1.2, 6–7). These then are the “laws of nature” that “derive uniquely from the constitution of our being” and are therefore operative “before the establishment of societies” (1.2, 6). In agreeing with Hobbes about the im-

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portance of examining the “state of nature,” Montesquieu diverges significantly from him in his depiction of this peaceful state. Having taken such an aggressively dismissive attitude toward Hobbes in the second chapter of the work, Montesquieu begins the succeeding chapter with a declaration that serves to erase some of the distance that he has just taken care to establish between his own depiction of human nature and the one that Hobbes offers. Montesquieu announces: “As soon as [Sitôt] men are in society, they lose their feeling of weakness; the equality that was among them ceases, and the state of war begins.” Here human beings are not isolated; they live in groups, and Montesquieu specifies that the advent of the state of war and the advent of human society are contemporaneous. Montesquieu continues that this state of war has a dual character: there exists “a state of war among nations” when “[e]ach particular society comes to feel its strength”; and one among “individuals within each society” who “begin to feel their strength” and “seek to turn [to] their favor the principal advantages of this society” (1.3, 7).22 Of course, the mere mention of “the state of war” recalls Hobbes’s thought. In this manner, Montesquieu indicates that even when he does not use his name in the work, he can refer to his ideas. Montesquieu and Hobbes agree, then, that government is necessary in order for human beings to escape the very grave inconveniences of the state of war in society.23 Much later in the work, Montesquieu identifies an instance in which that state of war existed within a society. He finds from his reading of Germania that during “the time of Tacitus” the German tribes had society, but not a fully developed and effective political state, and as a result were in a “state of nature.” Their state of nature was sometimes equivalent to the state of war when feuds between families were extensive and bloody, but Montesquieu does not use the latter term in this context. When one individual inflicted harm on another, it was not the government that resolved the dispute but rather the relatives of the parties. The law of the Frisians, he specifies, “left the people in a situation in which each enemy family was in the state of nature, so to speak, and in which, without the restraint of any political or civil law, it could exact its vengeance according to its fancy until it was satisfied.” Eventually, “wise men of the various barbarian nations thought they themselves should do what was too slow and too dangerous to be expected from a reciprocal agreement of both parties” and established settlements for various wrongs that both parties would accept (30.19, 646– 48). The Germans in the state of nature, having discerned the dangerous cycles of attack and counterattack and of aggression and vengeance, undertook to subvert them.

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Therefore, Montesquieu posits three different conditions of human beings: the peaceful state of nature where they exist in relative isolation; the state of society, to which their sociable nature drives them, but which collapses into the state of war; and the political state that serves to quell this state of war within society. Montesquieu identifies human beings as social beings, but notes too that their very sociability serves to dissociate them in a most destructive way. Thus, Montesquieu shows that although the beings in the state of nature are peaceful rather than aggressive, the beings in society are not. Indeed, when confronted with an established society without adequate civil and political laws, Montesquieu’s discussion of the state of nature sounds very much like Hobbes’s. As a result, Montesquieu, like Hobbes, posits that the political state offers the requisite cessation of hostilities arising from the state of war in society: “A society could not continue to exist without a government” (1.3, 8). In addition, Montesquieu identifies characteristics of human nature in society that sound remarkably Hobbesian, declaring at one point: “The soul takes such delight in dominating other souls” (28.41, 595). This comment elaborates on his declaration in the early chapter that the state of war arises when some in society begin to feel their strength and endeavor to use it to gain for themselves the advantages of society (1.3, 7).24 Some people not only want more, they also want to dominate others. Once human beings are in society, it is positive law that can keep the peace and can render to human beings a new sort of equality under it. Indeed, the human beings whom Montesquieu treats throughout the work, in all those multiplicities of cultures, are the ones ensconced in society. As creators of society, they have rejected the equality of the isolated beings in nature and have embraced the laws of their society as their saviors. “In the state of nature, men are born in equality, but they cannot remain so. Society makes them lose their equality, and they become equal again only through the laws” (8.3, 114). Here, Montesquieu points to the civil and political laws as the pathway—however imperfect—back to the equality and the peace that reigned in the state of nature before individuals lived in groups. Human beings cannot exist in groups peacefully and in equality without the rule of law. Thus, after the emergence of the state of war, only human ingenuity and its creation, the political state, hold out the possibility of a reintroduction of certain desirable conditions that the state of nature originally offered to its human residents. But herein lies a great paradox and problem for Montesquieu. That very ingenuity, which creates “the infinite diversity of laws and mores” among human beings, obscures “even the feeling” of man’s “nature” (pr.,

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xliii and xlv). With human nature so obscured, peace does not always reign under the very government that subverts the state of war. Indeed, under government—and with the authority of government—many forget about the conservation of their being and that of their fellows. Many become the perpetrators of cruelty, whose lamentable exploits Montesquieu documents throughout the work, as I noted in the introduction. Thus, under many governments, not only do people forget their nature but they also have not yet attained the most important knowledge—the life-preserving knowledge regarding criminal punishments. As we know, some governments are more advanced than others in attaining and acting on that knowledge. Nevertheless, he does not himself forget what he identifies as the human core—a human core that is markedly different from the one Hobbes depicts. It is important to recall that he proclaims his wish—a wish that if fulfilled would make him “the happiest of mortals”—that he “could make it so that men were able to cure themselves of their prejudices,” and prejudices are, according to his definition, that which “makes one unaware of oneself” (pr., xliv). Thus, although constantly confronted in his investigations by examples of human beings—ancient and modern, European and non-European—who seek to dominate and to punish their fellows, Montesquieu continues to seek for methods of rule that are gentle rather than harsh. In this endeavor, those timid creatures in a condition where peace reigned are not fully expunged from his line of sight even as their existence in society fundamentally transforms them. Therefore, in chapters 2 and 3 of the first book of The Spirit of the Laws, Montesquieu explicitly engages with Hobbes to correct his understanding of the state of nature, and hence of his understanding of the beings who inhabit it. Through this dispute with Hobbes, Montesquieu establishes that there was once an arrangement in which human beings lived in peace. Montesquieu’s early engagement with Hobbes is also important because it establishes that the French thinker is familiar with Hobbes’s work and goes on record as opposed to this thinker. Although he never again uses Hobbes’s name, he embeds in The Spirit of the Laws criticisms of other aspects of his teachings that serve to highlight his differences with Hobbes’s understanding of politics and its purposes.

HOBBESIAN FEAR AND THE TRANQUILITY OF MONTESQUIEU’S CONCEPTION OF POLITICAL LIBERTY Nowhere are the opposing views of Montesquieu and Hobbes on government more evident than in their divergent treatments of fear. In order to

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combat the state of war among individuals, government must be endowed with an immense and fearsome power, Montesquieu, like Hobbes, recognizes. Montesquieu, however, teaches emphatically that when the state wields that power domestically, as necessary as it is, it must be narrowly focused. Even when states do the necessary work of prosecuting and punishing criminals, Montesquieu pleads for the gentlest possible punishments. He seeks remediation, not a vengeful and terrorizing retaliation that will display the state’s mighty capacity to all as a warning to any who would endeavor to undermine the stability it imposes. If not so controlled and so tamed, this immense power of government will cause fear to reign in the citizenry. It is not merely that such fear in citizens is unpleasant and hence undesirable, but rather that its presence in such cowering citizens undermines the very possibility of political liberty according to his definition. Political liberty for Montesquieu is the individual’s feeling of security. By contrast, Hobbes focuses intently on the state’s provision of general security, which, in his analysis, cannot be supplied unless the subjects whom it rules do not at every moment fear its wrathful punishment for prideful digressions against its authority—the authority that is the very bulwark against societal chaos. Hobbes’s portrait of the Leviathan with sword held aloft is very much akin to Montesquieu’s depiction of despotism in The Spirit of the Laws in certain salient respects. As Bertrand Binoche declares, Montesquieu’s critique of fear as a political principle shows that despotism is the truth of Leviathan.25 Hobbes declares that all rule correctly understood is despotic. Montesquieu’s relegation of this form of government to one among several—the most repugnant because the most capricious and repressive, at that—serves as a sharp, but unnamed, rejection of Hobbes’s teaching on the need for fear under government. Because Montesquieu shares with Hobbes the understanding that individuals in society without effective law are subject to the frightening conditions of the state of war, the Frenchman certainly upholds the importance of government and its laws as a defense against criminal activity and unlawful violence, all of which threaten the security of individuals. He declares at one point that the “force of human laws comes from their being feared” (26.2, 495). Here he underscores the point that in order to protect citizens from the very real threat of criminal acts, those who would break the laws must hesitate to do so as a result of the fear of the consequences. In fact, Montesquieu affirms the legitimacy of a state’s taking the strongest possible measures against a criminal, when he explains that “[a] citizen deserves death when he has violated security [sûreté] so far as to take or to attempt to take a life” (12.4, 191; OC 2: 435). He elaborates: “What makes the death

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of a criminal lawful is that the law punishing him was made in his favor. A murderer, for example, has enjoyed the law that condemns him; it has preserved his life at every moment; therefore, he cannot make a claim against it” (15.2, 248). He takes no delight in the prospect of capital punishment, however: “The death penalty is the remedy, as it were, for a sick society” (12.4, 191). Without the proper respect for the laws, which derives in part from the fear of the consequences of breaking them, law-abiding individuals are really no better off than they would be in the state of nature. Nevertheless, Montesquieu is quite adamant that fear of arbitrary state actions and of the manner in which governments discover and prosecute the accused can contaminate the spirit of the citizens.26 If such fear seeps into their spirit, then the very possibility of political liberty is undermined: “Political liberty in a citizen is that tranquillity of spirit which comes from the opinion each one has of his security.”27 Here Montesquieu maintains that political liberty demands that fear be expunged as far as possible from the political realm. Political liberty resides in the tranquil spirit of the individual, but that tranquility is a result of proper ordering of the government, since “in order for him to have this liberty the government must be such that one citizen cannot fear another citizen” (11.6, 157). The government is ultimately responsible for this relative absence of fear, and it is clear that he focuses largely on the fear-inducing actions of individuals not in their private capacity but rather in their public ones—of citizens who wield governmental power. His very next sentence proclaims: “When legislative power is united with executive power in a single person or in a single body of the magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically.” He also specifies: “All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals” (11.6, 157). According to Montesquieu, the feeling of security, which he equates with liberty, must arise in large part from the restraints placed on the powers of government.28 In the subsequent book of The Spirit of the Laws, Montesquieu reiterates his equation of political liberty with a feeling of security, declaring that such “liberty consists in security or, at least, in the opinion one has of one’s security.” He continues that this feeling of security, which has for him such an important political function, “is never more attacked than by public or private accusations.”29 It is for this reason, as we have seen, that “the citizen’s liberty depends principally on the goodness of the criminal laws.” Given Montesquieu’s assertion that the “knowledge” of “the surest

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rules” of criminal procedure “is of more concern to mankind than anything else in the world,” he clearly accords them, and thus his definition of liberty as the opinion of security, his highest possible priority (12.2, 188).30 Accusations that can result in the severest penalties—penalties that deprive an individual of life, liberty, or property—call down the collective and awesome power of the state in order to punish prior actions that are alleged to have threatened the security of citizens in both their collective and individual capacities. In the face of this immense state power, Montesquieu’s persistent concern to quell fear whenever possible is quite evident in his treatment of criminal penalties, which he pleads should be as gentle as possible. “Men must not be led to extremes,” he advises and then exhorts: “Let us follow nature, which has given men shame for their scourge, and let the greatest part of the penalty be the infamy of suffering it” (6.12, 85). In endeavoring to follow nature in pursuing gentleness, Montesquieu provides an instance of his drawing his “principles” not from his “prejudices but from the nature of things” (pr., xliii). The same concern is visible also in his attempt to support methods that mitigate the terrors of “the power of judging,” which, he notes, is “so terrible among men.” He remarks that “most kingdoms in Europe” are “moderate because the prince . . . leaves the exercise . . . to his subjects” of “judging the crimes or the disputes of individuals.”31 In order to lessen its fearsomeness, he notes that the “power of judging should . . . be exercised by persons drawn from the body of the people,” so that the role is unattached to a particular class or profession in the state. Thus, he explains that because the citizens do not have their potential “judges” “continually in view,” this state power becomes, in effect, “invisible and null.” Of course, that power is still present in the state, but the focus of the fear is transformed: “one fears the magistracy, not the magistrates,” just as one fears the laws, not those who govern according to them (11.6, 157–58; cf. 26.2, 495). Whereas Montesquieu teaches that fear should be quelled, Hobbes teaches that it must be perpetually aroused. Whereas Montesquieu directs residual fear at the inanimate features of the state, Hobbes gives newly intensified fear the object of a human face and a most memorable image—the image of the mighty Leviathan with sword held aloft. For Hobbes, subjects of the Leviathan must perpetually feel the grip of fear in order for government to fulfill its purposes. It is fear of the Leviathan’s sword, that is, of the state’s ability to punish wayward subjects, that assures that the state fulfills its function of peace and stability. Hobbes explains the necessity and efficacy of that fear:

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The force of Words, being . . . too weak to hold men to the performance of their Covenants; there are in mans nature, but two imaginable helps to strengthen it. And those are either a Feare of the consequence of breaking their word, or a Glory, or Pride in appearing not to need to breake it. This later is a Generosity too rarely found to be presumed on, especially in the pursuers of Wealth, command, or sensuall Pleasure; which are the greatest part of Mankind. The Passion to be reckoned upon, is Fear; whereof there be two very generall Objects: one, The Power of Spirits Invisible; the other, The Power of those men they shall therein Offend. Of these two, though the former be the greater Power, yet the feare of the later is commonly the greater Feare.32

The covenants of which Hobbes here speaks are not merely civil contracts among citizens, but also the original contract that furnishes the very basis of political life. Human beings, according to Hobbes, agree among themselves to obey a sovereign who remains outside of that political contract and wields the combined force of all, “that by terror thereof, he is inabled to conforme the wills of them all, to Peace at home, and mutuall ayd against their enemies abroad.”33 In furnishing the unity of wills necessary for security against other states abroad and against one’s fellows at home, terror is at the very core of Hobbes’s political teaching. At home, people would be more likely to prey upon their neighbors without a fearsome sovereign “to keep them in awe, and tye them by feare of punishment to the performance of their Covenants.” This sovereign wields the sword, as the frontispiece of The Leviathan makes clear, because “Covenants, without the Sword, are but Words, and of no strength to secure a man at all.”34 So fearful is this political entity, a product of human ingenuity, that Hobbes speaks “reverently” of its power, terming it a “Mortall God,” to which we “owe” “our peace and defence” thereby seeming to imbue it with the fear deriving from spirits invisible.35 Thus, Hobbes identifies fear as the critical passion that should suffuse all political life, and he does so for the purpose of stability, of providing people relief from the terrorizing anarchy of the state of nature. But the prospect of just such a well-intended but disastrous result is what motivates Montesquieu to intone: “One feels the old abuses and sees their correction, but one also sees the abuses of the correction itself” (pr., xliv). Indeed, in the very chapter in which he treats “the power of penalties” and directs human beings to gentleness by following nature, he elaborates on the legislator whose correction is so extreme that it fosters its own abuses in turn: “A legislator who wants to correct an ill often thinks only of that correction; his eye is

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on that object and not on its defects. Once the ill has been corrected, only the harshness of the legislator is seen; but a vice produced by the harshness remains in the state; spirits are corrupted; they have become accustomed to despotism” (6.12, 85). The harsh correction that Hobbes offers—just as does Machiavelli—can be said to prepare people for despotism. Montesquieu’s treatment of despotism in The Spirit of the Laws serves to undermine the very premises of Hobbes’s Leviathan. Montesquieu emphatically and memorably associates fear not with political life generally but with despotism exclusively. Delineating three primary forms of government, republic, monarchy, and despotism, he examines the principle— that is, the particular human passion—that infuses each and sets “it in motion” (3.1, 21). “Fear in despotic governments,” he explains, “arises of itself from threats and chastisements” (4.5, 35). He maintains that “there must be FEAR in a despotic government” in such a way that “fear must beat down everyone’s courage and extinguish even the slightest feeling of ambition” (3.9, 28). The role of fear, which Montesquieu here describes, is surely the very one Hobbes envisions. The threat of punishment is what maintains order, the Englishman declares, and he is concerned that ambition in subjects fosters not only contention among themselves, thus disrupting the civil peace, but also a restive dissatisfaction directed at governing powers. Government should beat down ambition because, after all, Hobbes terms the Leviathan “King of the Proud.”36 But whereas Hobbes presents this regime of fear as simply necessary to the exercise of effective government— any government—Montesquieu presents it as unnecessary, an excess of cruelty. Indeed, the Frenchman provides as examples of such fear-inducing regimes the ones that spilled rivers of blood, the Persia of his own time and the Rome of Emperor Domitian (3.9, 28–29). Montesquieu’s very use of the term despotism for this reviled form of government, based on fear, appears, as scholars have noted, to be a pointed response to Hobbes’s presentation of the Leviathan, which depicts all governments properly understood and properly instituted as despotic and fear inducing.37 During the seventeenth and eighteenth centuries, French aristocrats and Huguenots, opposed to the absolutism of Cardinal Mazarin and then of Louis XIV, compared the French monarchy to the despotique rule of the East and referred to the despotisme of the Sun King’s regime.38 But Hobbes’s writing also brought the Greek term “despot” and its adjectival form “despotical” to broad currency in a modern language, forms that were not as commonly used in Latin, French, or English before he wrote as they would be after.39 Hobbes explains that “Despoticall” rule comes “from Δεσπότηϛ, which signifieth a Lord, or Master; and is the Dominion of

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the Master over his Servant.”40 He continues that such rule originates from conquest in war because the vanquished, in order to save their lives, submit entirely to the authority of the victor. Of course, that same form of submission is necessary for the elevation of the sovereign by institution, and, indeed, Hobbes forthrightly acknowledges this strict identity between the two: “In summe, the Rights and Consequences of . . . Despoticall Dominion, [are] the very same with those of a Soveraign by Institution.”41 Thus, Hobbes takes a term that was primarily associated with rule in the household to connote all political rule; the rule of a despot is government simply. Montesquieu, by limiting this type of rule to one type of regime, denies Hobbes’s conclusions about politics, whether or not the Frenchman used the term specifically as a sharp rebuke of Hobbes.42 Montesquieu’s teachings regarding political liberty suggest that Hobbes’s too forceful attempt to provide for the stability and tranquility of the state, for the sake of the security of the individual, sacrifices the tranquility of the citizen and thereby undermines the very possibility of the realization of political liberty.43 Hobbes’s ideas, which place fear at the center of political life, prepares the way for despotism, Montesquieu instructs.

MONTESQUIEU’S TREATMENT OF SOLE RULE AND THE BALLASTS TO POWER IN THE POLITICAL REALM Whereas for Hobbes immense power is the solution to the political problem, for Montesquieu it is the fundamental political problem, and he treats the possibility that united powers will produce despotic results throughout The Spirit of the Laws. In particular, his treatment of the rule of one alone— whether as a monarch or as a despot—touches on essential disagreements with Hobbes. According to his well-known schema, the despot rules according to whim without law and through officials whose authority derives solely from the despot, whereas the monarch rules according to fundamental law with intermediate institutions, most prominently a class of nobility who have their own inherited status (2.4). Montesquieu’s depiction of monarchy clearly reflects salient aspects of his homeland. Despite the manner in which these aspects of the French regime shine through his discussions, it is notoriously difficult to determine whether his presentation of France—or of most of the nations he examines, for that matter—is descriptive or prescriptive.44 Even in the face of such difficulties, scholars have examined his treatment of the French monarchy, whose monarchs and their ministers in the seventeenth and eighteenth centuries strove for absolute rule, as a means of assessing his own stance toward this type of monarchy, and have reached

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divergent conclusions.45 Such scholarly disagreements aside, it is certainly the case that monarchy in the work differs significantly from the absolute rule of Hobbes’s Leviathan in certain elements. Significantly, Montesquieu praises the pursuit of honor that undergirds a noble’s defiance of royal command. His overt praise diverges from his normal descriptive approach and offers an important contrast to Hobbes’s depiction of the need for government to quell prideful self-assertion. In addition, further examination of Montesquieu’s treatment of monarchy reveals a movement away from mere description to explicit commentary when he shows how monarchy can flirt with despotism and condemns in this context the absolute French monarchy under Louis XIV and Richelieu. At these points, Montesquieu offers condemnation not neutrality. Finally, Montesquieu makes forceful and general recommendations for governments to resist the concentration of power in a single monarch and instead to use constitutional arrangements that channel power among various orders, thus bringing many into rule and constraining the exercise of the rule of one alone in a manner completely absent from Hobbes’s thought. Therefore, Montesquieu’s occasional but forceful warnings against the concentration of power serve to resist the sole, all-powerful ruler that Hobbes so endorses. The most salient aspect of Montesquieu’s presentation of monarchy, and the one that most clearly marks it out as a portrait of the French regime, is his focus on nobility and its concern with honor, which he makes the very principle of this government. He asks, “is it not impressive that one can oblige men to do all the difficult actions and which require force, with no reward other than the renown of these actions?” (3.7, 27). Honor seeks distinction and thus rejects equality, consequently rankling at subjection to authority. Indeed, the prideful actions of the noble class can arrest the tyrannical intentions of a king, which he illustrates with the example of the honorable viscount of Orte, a French nobleman, who, as we saw in the previous chapter, refused to obey his king’s order to have the Huguenots in his own territory massacred after the Saint Bartholomew’s Day massacre in Paris. In displaying what Montesquieu distinctly calls a “great and generous courage” in his disobedience, the nobleman does not invoke conceptions of justice and injustice. He refers not to a principle beyond his regime, but rather to his own status and that of his men: he declares that neither he nor his men are executioners (4.2, 33).46 In approving of such honorable resistance to a sovereign, Montesquieu implicitly disagrees with Hobbes on two different scores. First, the Frenchman here boldly sanctions the defiance of royal command. Hobbes, on the contrary, refuses to countenance such principled disobedience because the

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sovereign is the source of all law and command.47 Second, whereas Montesquieu displays the beauty of defiant actions on the part of the nobility, Hobbes deplores the pursuit of vainglorious distinction as the cause of “quarrel,” and hence of the dissension that is the mortal disease of the commonwealth. People so motivated by honor disrupt the tranquility of the state as they will fight “for trifles, as a word, a smile, a different opinion, and any other signe of undervalue.”48 Hobbes’s commonwealth is directed at subduing the troublesome character of those who think themselves superior by nature and who continue to seek for distinction. Accordingly, he terms “the great power of Leviathan” “King of all the children of pride” and makes “Pride” the refusal to recognize all others as one’s “Equall by Nature.”49 Montesquieu, though, has shown with this example that such lovers of honor, in resisting tyrannical acts of sovereigns, can be the preservers of the peace of the realm rather than its disturbers. Elsewhere when speaking of constitutional arrangements generally, Montesquieu repudiates Hobbes’s contention that a most powerful centralized government is the salvation of the citizens. Although Hobbes refuses to challenge the legitimacy of any type of government whatsoever, he does not recommend mixed government. Hobbes warns that “few perceive that” “mixt Monarchy” “is not government, but division of the Common-wealth into three Factions.” He worries that these “three independent Factions” can weaken and ultimately destroy a government that attempts to employ this “division.”50 By contrast, Montesquieu explicitly teaches that power must not be concentrated, declaring that “it has eternally been observed that any man who has power is led to abuse it” as “he continues until he finds limits” (11.4, 155). If such a one does not find limits, the result is a full-fledged despotism, in Montesquieu’s view. The creation of a “moderate government” is the solution to this most fundamental political problem, but that solution requires “a masterpiece of legislation,” in which “one must combine powers, regulate them, temper them, make them act.” Importantly, he says in such a government power must be channeled: “one must give one power a ballast, so to speak, to put it in a position to resist another” (5.14, 63).51 This is a most significant statement as Montesquieu here is not undertaking to describe a particular political arrangement that belongs to a particular people at a particular time but rather offering his own political prescription. Power in a state, he declares, must be established to “resist” another power. His endorsement of such resistance to concentrated political power is tantamount to a repudiation of Hobbes’s all-powerful sovereign.

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In other discussions, Montesquieu touches on arguments for centralization in the French monarchy during the seventeenth century and reveals his disapproval of it. Specifically, he treats with contempt Cardinal Richelieu who advocated for absolutism in the French monarchy, associating this French minister explicitly with despotism. Montesquieu notes, for example, that Richelieu opposed “the intricacies of corporations,” which slow down the execution of the monarch. Montesquieu then comments that even “if this man’s heart was not filled with despotism, his head was” (5.10, 56).52 He notes elsewhere that Cardinal Richelieu, “thinking perhaps that he had degraded the orders of the state too much, has recourse to the virtues of the prince and his ministers to sustain it.” By undermining the other orders of the state, Richelieu undermines the ballasts to the monarch’s power. In such a circumstance, an appeal to virtue is the only recourse. But such an appeal is to no avail, according to Montesquieu. The virtue required to provide good government in such a circumstance cannot be found, as “only an angel could have so much care, so much enlightenment, so much firmness, so much knowledge” (5.11, 58).53 He then moves in this same passage to reaffirm the necessity of constraints on the exercise of monarchical power. He does so, though, with a reference to the state of nature: “as the peoples who live under a good police are happier than those who run about in the forest, without rule and without leaders, so monarchs who live under the fundamental laws of their state are happier than despotic princes, who have nothing to rule their people’s hearts or their own” (5.11, 58).54 He here echoes an aspect of his definition of monarchy (cf. 2.4, 170), but he also underscores aspects of his agreement and disagreement with Hobbes. Like Hobbes, Montesquieu again affirms the insufficiency of the state of nature. Enforceable law is a necessity for society. But there his agreement ends. As law is necessary for society, so is it for a ruler; both peoples and princes benefit from the constraints of law. He speaks not descriptively but prescriptively, and he asserts precisely what Hobbes denies—that is, that the sovereign should be subject to a state’s fundamental laws. On this matter, Hobbes declares pointedly: “For he that deserteth the Means, deserteth the Ends; and he deserteth the Means, that being the Soveraign, acknowledgeth himself subject to the Civill Lawes.”55 Whether termed civil or fundamental, all positive law, in Hobbes’s view, is at the ultimate discretion of the sovereign, who, therefore, cannot be subject to any such law. Thus, in this passage, Montesquieu disagrees both with this particular French absolutist and the English Leviathan. Much later in the work Montesquieu forthrightly offers an explicit pre-

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scription for monarchies in general that supports the dispersion of power and does so in the context of a discussion that implicates a distinctive aspect of Hobbes’s teaching. In a discussion of the “pontificate,” Montesquieu notes that when “a religion has many ministers, it is natural for them to have a leader and for the pontificate to be established in it.” He points out that in despotic countries, the chief priest is the despot, because such a government “unite[s] all powers in the same person,” and notes, for example, that “the emperor of China is the sovereign pontiff” (25.8, 487). Of course, because the pontiff of Roman Catholicism is a transpolitical phenomenon in claiming spiritual preeminence over the subjects of many rulers, this situation may appear foreign to Europe’s monarchies, but it is, in fact, not entirely so. France had a strong streak of Gallicanism that claimed for the French Church as well as the monarchy certain privileges from the Papacy. Louis XIV attempted to assert himself against the Pope with the Four Gallican Articles of 1682, an attempt that was ultimately unsuccessful, and even aspired at times to preeminence over doctrine.56 But if the situation Montesquieu ascribes to China was at any point an aspiration of the Sun King, it can be said to have become a reality for England’s King Henry VIII after he broke away from the Church of Rome and made himself the head of the Church of England. Montesquieu explicitly recommends against such a centralization of political and spiritual authority: “In monarchy, where one cannot too much separate the orders of the state and where one should not bring together all the powers in the same head, it is good for the pontificate to be separated from the empire” (25.8, 487). This is a most significant statement regarding monarchy on several levels. First, it must be noted that the author here speaks in a manner that is unequivocally and forcefully prescriptive. He describes what is advisable in a monarchy in general terms, not what is done in a particular regime at a given time, and his advice could not be rendered in stronger terms; one cannot too much separate its orders, he asserts.57 Second, whereas he states this principle in the context of whether a king should also assume the role of head priest, his statement encompasses more than the religious realm. All the orders of monarchy cannot be too separated and all the powers should not be given to the monarch. Third, in considering Montesquieu’s specific recommendation regarding the head priest within a state, one sees that he denies explicitly what Hobbes so famously affirms with respect to the sovereign’s dominance over the religious realm and to the orders of the state more generally. On Hobbes’s understanding of the necessity of an aggregation of power within a state,

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the sovereign must have the final say on matters of religious doctrine. The Englishman declares that “annexed to the Soveraignty” is the power “to be Judge of what Opinions and Doctrines are averse . . . and what men are to be trusted withal, in speaking to Multitudes of people.”58 Hobbes makes this declaration precisely because the ability to pronounce on matters of religion and morality serves to foster among the populace either obedience or resistance to political authority. Like Montesquieu, Hobbes understands the power of ideas in supporting a particular way of political life. In the Englishman’s view, a properly powerful sovereign will assume under his direct control the approval of all doctrines to be taught; an effective sovereign must simultaneously be the supreme pontiff. Indeed, in treating this principle, Hobbes notes at one place in the Leviathan that England’s “Henry the eighth” undertook to vindicate “the Power of the Common-wealth” against “the Power of the Pope.”59 Henry’s vindication is, in fact, an anachronistic vindication of Hobbes’s own principle. Far from saying that the powers in a monarchy should not be concentrated in the same head, as does Montesquieu, Hobbes declares that they must be. Of course, in understanding that a government requires the resistance that ballasts provide, Montesquieu necessarily envisions a political realm in which various actors with various powers interact. By contrast, Hobbes depicts the amelioration of the political realm as its constriction, and, perhaps, its very obliteration.60Again, their respective depictions of despotic rule illustrate the contrast. As we have seen, whereas Hobbes claims that all rule is despotic, thus unabashedly reviving a Greek term that describes the rule in a household of masters over slaves, Montesquieu uses the term despotism to convey a similar notion regarding the essentially apolitical character of such a realm, but applies it only to this single regime that he condemns. As Sharon Krause comments, in Montesquieu’s depiction of despotism, the “prince’s personal privatization of the public sphere not only simplifies the civil laws but actually depoliticizes the state.”61 At one point, Montesquieu suggests that a monarchy can corrupt itself so that it completely engrosses the political realm just like a despotism: “A monarchy is ruined when the prince, referring everything to himself exclusively, reduces the state to its capital, the capital to the court, and the court to his person alone” (8.6, 117).62 In this manner, the state collapses into the person of the prince. The phrase L’état c’est moi, taken to be emblematic of the reign of Louis XIV, encapsulates such ruin of monarchy. Where the ruler is all, citizens possess a claim neither to participate in nor to check the designs of their government.

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COMMODIOUS LIVING, POLITICAL COMPLACENCY, AND THE MAINTENANCE OF LIBERTY Whereas Hobbes envisions the constriction of the political realm, Montesquieu points to its indispensability in the maintenance of political liberty. This key difference between the two thinkers has an important effect on the evaluation each provides of the pursuit of commodious living. Montesquieu sees that its blind pursuit can promote a political complacency that would accept stability and the promise of the comforts of life in exchange for political liberty and its attendant security. Such complacent acquiescence is precisely what Hobbes intends as he announces that not only does the aversion to violent death lead people to embrace the mighty Leviathan, but so too does the “[d]esire of such things as are necessary to commodious living.”63 Although Montesquieu embraces the gentleness that commerce introduces, he simultaneously warns that the promise of the commodities of life can also serve as a deceptive lure to despotism—the very type of despotism that Hobbes proffers. Long before commerce blossomed in Europe, aspirants for sole rule promised security and material prosperity. Specifically, Montesquieu admonishes that in pursuing their prosperity, people must not forget their homeland and its liberty. Such forgetfulness serves to allow the government to amass power, a power that promises individual comfort and security but that will ultimately result in the very annihilation of the political realm. Montesquieu teaches, as we have seen, that the principle of despotism is cowering fear, which arises primarily from the threat that governmental authority will violate without warrant and without warning one’s security or that of one’s friends and family. The Frenchman finds, however, that despotism operates not exclusively on revulsion but also on attraction—the attraction to material comfort. Montesquieu brings to light despotism’s carrot, as opposed to its stick, when he considers the topic of “presents.” He begins by declaring that gifts do not move the subjects of a monarch because honor is a stronger motive there than the allure of such lucre and that the citizens of a republic find presents “odious” “because virtue has no need of them.” He then draws a contrast to a despotic state: “in the despotic state, where there is neither honor nor virtue, one can decide to act only in anticipation of the comforts of life [par l’espérance des commodités de la vie]” (5.17, 67; OC 2: 301). Having introduced this notion of a positive attraction that can motivate the actions of subjects in a despotism, Montesquieu affirms its importance by reiterating this new aspect of despotism at the very outset of the subsequent chapter, which he opens with the declaration: “In

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despotic governments, where, as we have said, one decides to act only in anticipation of the comforts of life [l’espérance des commodités de la vie], the prince who gives rewards has only silver to give.”64 Therefore, despotism does, in fact, offer attraction to a good rather than simply repulsion to an evil, according to Montesquieu.65 In expressing this positive motivation that exists in a despotism, Montesquieu borrows not only Hobbes’s idea, but also his means of expression, as Montesquieu transforms into French Hobbes’s famous formulation “commodious living”: “The Passions that encline men to Peace, are Feare of Death; Desire of such things as are necessary to commodious living.”66 In using Hobbes’s terms, Montesquieu affirms the existence of the phenomenon by which Hobbes endeavors to entice people into submission to the Leviathan. Hobbes’s philosophy may have offered the prospect of commodious living at the price of a dominating ruler, but Montesquieu also understands that historical examples corroborate this same propensity on the part of people to accept material comfort and stability in exchange for the contraction of the political realm, a propensity that nourishes the growth of despotism. He identifies, for example, how the desire for stability sought by those who are consumed by their desire for prosperity undermined the Roman republic during the civil wars by failing to muster resistance to tyranny. He quotes Cicero as asking rhetorically his correspondent Atticus: “‘Who is it that forms the good party?’” “‘Is it the people in commerce and in the countryside?’” By the good party, Cicero means in this instance those who will stand against Sulla’s threat to the viability of the republic. Montesquieu proceeds to quote Cicero’s response to this rhetorical question. “‘Not unless we imagine that the people for whom all governments are equal provided they are tranquil oppose monarchy.’” Here Montesquieu broaches the fact that some who seek commodious living will readily accept a government that promises tranquility as it simultaneously reduces all citizens to servile submission.67 Some Romans would not stand against the imposition of a despotism as long as it promised the stability that furnished them their livelihoods. The lesson that Montesquieu derives from Rome’s history is that the prospect of such creature comforts can all too readily become the inducement to accept political despotism. Montesquieu here endorses Cicero’s identification of the political dangers of prosperity, when he himself announces that people who “are too busy and too full of their individual matters of business” “are not very careful of their liberty” (18.1, 285). Therefore, as much as Montesquieu supports the material comfort that commerce calls forth, he warns that its blind or ill-considered pur-

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suit can subvert one’s dedication to maintaining the countervailing forces that protect liberty in the political realm.68 Montesquieu instructs that political liberty, which in his understanding reduces to the feeling of security, is jeopardized when one forgets the political realm that sustains that liberty.69 He notes, for example, that “servitude always begins with drowsiness” and that the restless character of the English prevents them from such torpor. But, of course, it is in that very realm—the political realm—that one might face insecurity. In order to protect and foster political liberty, defined as security, citizens must be willing and able to sacrifice their individual security. Montesquieu finds just such a paradoxical situation in the England of his time. It is the “one nation in the world,” in Montesquieu’s assessment, “whose constitution has political liberty for its direct purpose” (11.5, 156), and in examining its constitution, Montesquieu is moved to define “[p]olitical liberty in a citizen” as “that tranquility of spirit which comes from the opinion each one has of his security” (11.6, 157). Of England for which political liberty is so central, Montesquieu declares: “This nation would love its liberty prodigiously because this liberty would be true; and it could happen that, in order to defend that liberty, the nation might sacrifice its goods, its ease, and its interests, and might burden itself with harsher imposts than even the most absolute prince would dare make his subjects bear” (19.27, 327).70 In order to preserve their liberty against threats, English citizens are willing to sacrifice the very comfort and security that their political system makes possible. This is decidedly not a Hobbesian sentiment. Elsewhere, when Montesquieu first introduces England as a peculiar mix of republic and monarchy, he discusses the citizens’ jealousy of their liberties and their service to their homeland. “In a nation where the republic hides under the form of monarchy, observe how a particular estate for fighting men is feared and how the warrior still remains a citizen or even a magistrate, so that these titles serve as a pledge to the homeland [la patrie] so that it is never forgotten” (5.19, 70; OC 2: 304). This brief comment broaches the topic of military service, which could readily be understood as requiring a virtuous dedication to the homeland or as making possible an honorable service in which one distinguishes oneself from others; the former implies the principle of republics, the latter that of monarchies. In either regime, such dedication and service imply the overcoming of fear. In this oblique reference to England, which in his analysis is neither a pure monarchy nor a pure republic, the only fear he mentions is the fear that arises from a threat to the regime. The citizens “fear” “a particular estate for fighting men”—that is, they fear a standing army as a sign of the amass-

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ing of power in the executive. As in the discussion in book 19, Montesquieu finds that the English are motivated by a fearful vigilance to protect their laws and their regime, and in this passage he specifies that it occurs in their capacities as citizens, magistrates, and soldiers.71 Of course, Montesquieu here concedes that a type of fear is operative in this regime that functions to protect the liberty of subjects and hence to circumscribe the power of the prince. In order to forestall the despotic tendency of a monarch who commands such an army, Englishmen serve in their nation’s army not as subjects but rather as citizens and magistrates. As they can serve as magistrates, they are not themselves entirely subjects. As a result, they do not forget their “homeland,” as they serve it and even participate in ruling it. Montesquieu expresses a particular concern for the citizens’ regard for the homeland as a defense against the corruption of monarchy that can give rise to despotism. He notes, for instance, that “[t]he principle of monarchy has been corrupted when some singularly cowardly souls grow vain from the greatness of their servitude and when they believe that what makes them owe everything to the prince makes them owe nothing to their homeland” (8.7, 118). Cowardly people, and cowardly principles, elevate a prince over the homeland for the sake of a mistaken notion of security. Montesquieu teaches that the opposite of cowardice—bravery—is needed to protect the homeland against capitulation to such despotic subservience. By contrast, Hobbes is not one to uphold the virtue of bravery, as he palliates cowardice, noting, for instance, that one must make “allowance” “for natural timorousnesse.” He makes just such an allowance when he notes that when “Armies fight, there is on one side, or both, a running away,” and when soldiers do so “not out of treachery, but fear, they are not esteemed to do it unjustly, but dishonourably.”72 Such timorousness, which Hobbes certainly promotes through the proffer of forgiveness, facilitates the germination of the fearsome Leviathan who thrives in such soil. By contrast, Montesquieu’s conception of political liberty, understood as an opinion of one’s security, demands a willingness to sacrifice not only one’s interests but also one’s very security to the laws of the homeland. England provides one such example of such paradoxical dedication. To preach its opposite is to subvert the very possibility of political liberty, Montesquieu teaches in response to Hobbes’s numbing offer of commodious living. Thus, whereas Montesquieu finds timid and gentle creatures in the state of nature but demands some resolute and assertive individuals in a state dedicated to liberty, Hobbes finds aggressive beings in nature and promotes timorousness under government. Nevertheless, Montesquieu’s teachings are to protect human nature against the terrorizing depredations of a fearsome government.

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CONCLUSION Montesquieu explicitly assaults Hobbes’s depiction of the state of nature, but the Englishman’s portrayal of the political realm is no less the object of his critical engagement throughout The Spirit of the Laws, although he never again refers to his adversary by name. Montesquieu opposes Hobbes’s political ideas precisely because he consistently argues that the feeling of security cannot be had when political power is not divided and balanced. For the individual to enjoy that liberty, which is in Montesquieu’s understanding a feeling of security, the power of one alone cannot engross the political realm. Montesquieu endeavors to protect human nature from the punishing fear of despots. To that end, Montesquieu teaches that both the political and the religious realm must check the ruler’s authority, a checking that requires vigilance, resoluteness, and courage. Thus, citizens must be vigilant against the blandishments of creature comforts with which the absolute authority of one so often entices. Montesquieu’s equation of liberty with security demands at times the sacrifice of the citizen’s very security in the political realm. He declares in his Defense that he endeavors to attack the errors of Hobbes; in attacking those errors, Montesquieu fights against despotism precisely because some of Hobbes’s erroneous ideas are despotic. Montesquieu thus shows again that despotism is not a threat relegated to Eastern governments, but is very much a specter for Europe itself, in this instance, because an English writer promulgates the very ideas that endeavor to entice modern Europeans to embrace just such a government.

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Christian Ideas

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ot all the ideas that Montesquieu discerns guiding the conduct of his European contemporaries spring from the pens of his modern philosophical predecessors, of course. Montesquieu discusses “religious ideas” (idées religieuses) generally as affecting human behavior (26.14, 508; OC 2: 765), and he specifically refers to “ideas [idées] related to the establishment of Christianity” and “ideas [idées] drawn from its perfection” (23.21, 448; OC 2: 705). Thus, he identifies certain ideas that he deems distinctively Christian—whether they relate to the religion’s establishment or to its perfection. As the next two chapters highlight, Montesquieu reveals that he is intensely aware in The Spirit of the Laws of the fundamental changes that Christianity wrought in the lands that would become modern Europe. The first of these chapters takes as its starting point his observations of the effects of the modern religion on his fellow Christians and on the European politics of his times and the second his examination of Christianity’s earliest history and teachings. In surveying in this work the changes that Christianity has brought to Europe, Montesquieu pays homage to the salutary effects that it has had. The religion teaches the fundamental equality of all souls, and thus redeemed human nature by banishing the practice of slavery from Europe. That idea of the equality of all human beings has not fully permeated all aspects of the European conscience, of course, but he stands by its importance as an idea with powerfully beneficial implications. In addition, he credits Christian ideas as being responsible for a gentler right of nations because victors in war no longer destroy and enslave the inhabitants of conquered towns as did the commanders of pagan times. In lauding the right of nations that the “religion of the present day” has inaugurated (10.3, 139), Montesquieu

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simultaneously confirms the effect, which Machiavelli decries, of the religion’s pacification of human beings. Therefore, as it considers Christian ideas broadly, this part will not be exclusively focused on despotic ideas, because Montesquieu teaches that the modern religion has been a powerful inspiration in liberating human beings. Nevertheless, for all the good Montesquieu discerns in Christianity’s transformation of European politics and society, he does not fail to consider how its interpreters have perpetrated atrocities, guided by despotic ideas woven into the Christian understanding. In fact, despite their differing historical starting points, both of the following chapters culminate in his condemnations of Christian ideas perpetrating despotic practices in contemporary Europe. He unveils the conduit by which old ideas can be revived; they remain ensconced in extant digests of Roman law. Montesquieu traces both how the Christian emperors imbued their laws with the ideas of the earliest Christians such that “Christianity gave its character to jurisprudence” (23.21, 448), and how the nations that succeeded the Romans in Europe ultimately discovered and embraced them. In treating the way of thinking of these early Christians, Montesquieu determines that they were more prepared to deal with the demands of the next life than with those of their earthly lives. These ideas promoting the Christian notion of perfection continue to hold sway because old Roman law can be revived to support tyrannical and violent abuses, he shows. Because the reigning religious authorities in both Rome and Paris undertook to censure several of Montesquieu’s discussions of early Church doctrine and history, his treatment of them should not be considered merely of arcane scholarly interest. The most pernicious of those Christian ideas, he indicates, are those that inform the Portuguese and Spanish Inquisitions of Montesquieu’s own enlightened age. He forthrightly condemns the Portuguese Inquisition in a manner that is at once poignant and pointedly sarcastic, attempting to shame if not its inveterately violent perpetrators then its silently complicit bystanders. He points to a multitude of other such cases from earlier Christian centuries of unfortunates being tried and punished, most often with burning, for heresy. Montesquieu intones that this “ill [mal] came from the idea [idée] that divinity must avenged” (12.4, 190; OC 2: 434). This very idea can foster in devout Christians a seething vengeance to vindicate God; God’s avengers use purportedly godlike powers to read the hearts and minds of the accused. In this manner, some Christian ideas give rise to despotic practices. Both of the chapters of this part treat Montesquieu’s persistent concern that accusations of lèse-majesté, both divine and human, are responsible

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for the gravest violations of individual security. He elaborates on the very grave consequences to individuals when powerful and vengeful rulers and ministers lodge this serious accusation against subjects, whether to avenge earthly or heavenly rulers. The previous chapter saw Hobbes endeavoring to endow the political realm—that “Mortall God”—with the power and resiliency of the divine realm.1 Montesquieu condemns any such endeavor; it is an abuse, he teaches, to endow human rulers with such inviolable majesty. Moderate government results when power stops power, not when power is so enshrouded in and thus magnified with divine associations. Therefore, Montesquieu shows how Christians have used their religious ideas both as a liberating and as an oppressive force. He points out what is to be celebrated and what is to be shunned in the Christian dispensation. If his evaluations of Christian ideas, in which he bestows both praise and blame, were to inform practice, then the salutary effects of Christianity already operative would be magnified.

chapter three

Religious Ideas and the Force of Christian Ones in Modern Europe

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n examination of The Spirit of the Laws shows that Montesquieu believes that religion can serve as a fount for ideas that guide political life. Before cautioning against the application of some religious ideas to society as a whole, he notes that religious laws and civil laws have different, and sometimes contradictory, purposes: “The laws of perfection, drawn from religion, have for their object the goodness of the man who observes them, more than that of the society in which they are observed,” whereas “civil laws” “have for their purpose the moral goodness of men in general, more than that of individuals.” As a result of these differing purposes, he notes that one should be circumspect about using religious ideas to inform civil laws: “however respectable may be the ideas [les idées] which spring immediately from religion, they should not always serve as principles [principes] for civil laws, because civil laws have another principle, which is the general good of society” (26.9, 502; OC 2: 759). Therefore, at least some religious ideas—even respectable religious ideas—are not suited to guide society, he counsels. Montesquieu discusses how some religious ideas, which are themselves far from respectable, induced human beings to institute marriage practices that promote incest. He notes that the Assyrians married their mothers “out of a religious respect for Semiramis” and the Persians “because the religion of Zoroaster gave preference to these marriages,” while the Egyptians married their sisters owing to a “frenzy of the Egyptian religion, which consecrated these marriages in honor of Isis.” He indicates the force of religious ideas when he exclaims: “Who would say it! some religious ideas [des idées religieuses] have often made men fall into these errors!” (26.14, 508; OC 2: 765; I have corrected the translation). Montesquieu does, in fact, say it and with these examples; he reveals the power that religious ideas can 81

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wield over the human mind and over human conduct.1 These religious ideas overcame the repugnance with which such incestuous unions are almost universally regarded.2 Christianity too has its own religious ideas, of course, and Montesquieu studies their effect on Europe. He refers, for instance, to its “monastic ideas” (des idées monastiques) (26.12, 505; OC 2: 761), and in speaking of the laws of Constantine, the first Roman emperor of the Christian faith, he notes that the changes that this ruler made to the Roman law were no doubt based on Christian ideas—either “on ideas [idées] related to the establishment of Christianity, or on ideas [idées] drawn from its perfection” (23.21, 448; OC 2: 705). Given both the force that religious ideas can have and the pervasiveness of Christianity in Europe, it is not at all surprising that Montesquieu studies the effect that Christian ideas have had on civil and political institutions in Europe as well as on the individuals who inhabit these lands. This chapter will examine Montesquieu’s assessment of the effect Christian ideas have had on the Europeans of his times. Montesquieu attributes noteworthy positive outcomes to Christianity’s influence. He credits the religion for eradicating slavery in Europe. Its influence has also resulted in a more humane right of nations, he observes. Owing to Christianity’s effect on the thinking of the continent’s leaders, it is considered illegitimate to kill and enslave the European peoples whom one has conquered. Moreover, by shaming or frightening princes from behaving as despotically as they otherwise might, Christianity has also produced a milder approach to domestic politics. Montesquieu’s encomium to Christianity for mitigating the harshness of the ancients in both the international and the domestic realms must stand as a further rebuke to Machiavelli’s teachings. Chapter 1 of this book shows Montesquieu correcting the harshness of the politics that Machiavelli recommends. The Florentine declares that modern education—which, in fact, is Christian education—undermines the resoluteness necessary to take the effective but extreme courses in politics. Machiavelli provides an alternative education as he comments on the pagan Romans. Thus, where Machiavelli condemns, Montesquieu endorses. In the Frenchman’s view, Machiavelli’s endeavor to overcome the softening character of Christianity is an abuse, and, thus, on this issue, Montesquieu stands with Christian teachings. Montesquieu notes also how Christianity relieved women from exclusive confinement in the household, bringing them into the congregations of the faithful and insisting on their contact with the religion’s priests through their participation in Christianity’s various sacraments. These Christian

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practices, he suggests, prepared the way for the prominence of women in French society, a result that he warmly embraces. Despite the fact that Christianity has tamed the ferocity of the ancients, it continues to perpetrate the most flagrant atrocities, which Montesquieu highlights in his pungent chapter devoted to the Inquisitions of Spain and Portugal.3 His plea against the inquisitors’ cruelties, which he casts in the voice of a Jewish remonstrator, points to the hypocrisy of their perpetrators—ostensible Christians who kill to vindicate their belief in the Christ of the Gospels. But behind Montesquieu’s satire, as smirk-inducing as it is when its barbs strike at the Inquisition’s contradictions, lurks the most heart-wrenching matter of life and death, which he depicts in the starkest possible relief by focusing on the inquisitors’ burning of a young Jewish woman. Although Christian ideas have remediated barbarities, they have also introduced their own form of barbarism to Europe. Montesquieu also depicts the ideas that individual Christians have of their God as both a loving and a punishing being. In his most profound and personal discussion of Christian doctrine in the work, Montesquieu describes God as a judge and believers as criminals, whose minds and hearts the divine judge examines to discern true repentance for sin. Although Montesquieu uses these terms related to human judicial proceedings, he notes that this religion “leaves human injustice behind to begin another justice.” Thus, in describing the pursuits of this religion and of this religion’s God, he draws a distinction, so important for his thought, between divine and human justice. God’s pursuit of divine justice “makes [believers] feel sufficiently that if there is no crime that is inexpiable by its nature, yet a whole life can be so.” Because God might find an entire life condemnable, even after a Christian has received from this divine judge expiation for prior sins, Montesquieu warns that “we should fear contracting new [debts],” so that we do not reach “the point at which paternal goodness ends” (24.13, 467–68). Additional ideas—particularly, but not exclusively, the cruel “maxims,” “principles,” and “views” of the Inquisition (28.1, 534)—have led Christian ministers to believe that they, like their divine exemplar, can plumb the consciences of the accused to find either sincere repentance or obstinate repudiation of the Christian God. When they find the latter, the ideas of some Christians lead them to believe that they have not only the right but also the duty to avenge on earth insults to their divine ruler with the most barbaric punishments. Indeed, when identifying this problem, Montesquieu points to a particular idea as its source: “The ill came from the

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idea [cette idée] that the divinity must be avenged” (12.4, 190; OC 2: 434). Just as Montesquieu opposes Hobbes’s appropriation for an earthly sovereign—a “mortal God”—of the fear that the immortal God instills, so he opposes the appropriation by earthly ministers of the judicial methods of the Christian God. The inquisitions of the Catholics are not his only targets, however. His vehement denunciations of trials for heresy and for witchcraft serve to condemn both Protestant and Catholic practices. In this way, Montesquieu reveals that Christian ideas in the Europe of his own time and in its recent past result in despotic practices in flagrant violation of the most important knowledge (cf. 12.2). Christian ideas can and do result in despotic practices, according to Montesquieu’s analysis.4 These considerations will not broach the question of the character and depth of Montesquieu’s personal religious beliefs as they could be said to be revealed in the course of his reflections in The Spirit of the Laws.5 Such inquiries, of course, must be by their very nature purely speculative. The difficulty of reaching a definitive determination of the character of Montesquieu’s faith, or lack thereof, from his public writings did not stop some of his very first readers from engaging in just such speculation, however. A first step for these readers was noticing that his writings departed from orthodoxy. As a result of his earlier Persian Letters, his work was under censor when he published The Spirit of the Laws, which first appeared anonymously owing to this stricture. Within a year of its publication in 1748, Père Pierre-Joseph Plesse, a Jesuit, and Abbé Jacques de La Roche, editor of the Jansenist journal Nouvelles Ecclésiastiques, published condemnations of the work for its dangerous ideas that undermined religion as well as the French monarchy. The abbé pointed out that the author of this new work was, in fact, Montesquieu, who had penned the notorious Persian Letters, and characterized the author’s beliefs as both deistic and Spinozistic.6 Apparently, the abbé’s evaluation carried significant influence in Paris—if not also in Rome.7 Montesquieu rushed into print his own Défense de l’esprit des lois after he learned that his great work had been denounced before the Congregation of the Index in January 1750. At the end of 1751, the Congregation of the Index determined that the work should be listed on the Index of Prohibited Books, and its decree was published early in 1752.8 The Faculty of Theology of the University of Paris also selected several passages to censor, but after some delay, elected not to publish its denunciation.9 Even aside from the unlikelihood that such speculation regarding the character of Montesquieu’s personal faith will indisputably reach the core of his religious beliefs, a more considerable objection remains. Montesquieu himself

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posits vehemently the principle that searching the conscience of an individual is illegitimate; mere mortals should not endeavor to mimic their God by attempting to read hearts and minds (26.12, 505). As we shall see, in his Defense, he depicts the religious critics of The Spirit of the Laws as attempting to do to him as author what those who persecute heretics attempt to do to the accused: they attempt to read the secrets contained in his heart. Both in his masterwork and in its Defense, he repudiates all such attempts as illegitimate. Therefore, in accord with Montesquieu’s own principles, this examination of Montesquieu’s treatment of Christian ideas will eschew the attempt to inquire into the depths of his conscience. Although Montesquieu’s conscience remains closed to examination on this score, he does reveal at least a portion of his intentions with respect to his tome’s relation to Christianity. As Montesquieu opens the first of his two books explicitly devoted to religion, he announces: “With regard to the true religion, the slightest fairness will show that I have never claimed to make its interests cede to political interests, but to unite them both” (24.1, 459). Any European reader would naturally assume that he refers here to Christianity.10 He does not elaborate in this place what this unification of the interests of Christianity and of politics would entail, but with this statement he offers two important revelations: first, that he has a purpose with respect to religion; and second, that his purpose will serve politics. Examination of this immense work shows that he intersperses throughout it his elaboration on how Christianity can serve a nondespotic politics; in his books on religion and in his myriad other discussions, he examines Christian ideas, both the benefits that they have brought as well as the abuses that they have engendered. In exposing and denouncing those abuses, he teaches that abhorrence is a necessary step to their correction.

THE POSITIVE FORCE OF CHRISTIAN IDEAS When Montesquieu places the current condition of Europe within the context of the broad sweep of its history, he discerns the positive effects that Christianity has had on its politics and mores. He explicitly praises Christianity for these effects, crediting it specifically for eradicating slavery in Europe, for producing a gentler right of war from that of the ancients, for curbing the bloodthirstiness of Christian rulers, and for making women a vital part of Christian communities, and hence of society more generally.11 Montesquieu observes that Christianity posits the fundamental equality of all human beings. Every person, whether a king, noble, or serf, possesses an immortal soul, is an object of God’s love, and is capable of attain-

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ing salvation. This religion that emerged on the eastern edge of the Roman Empire challenged the hierarchical notions ingrained in classical civilization, whether Roman or Greek.12 The religion that preached these notions gathered as adherents in its earliest days women, freedmen, and slaves, but eventually attracted to its revelation individuals from the highest reaches of Roman society, including Roman senators and emperors. Montesquieu acknowledges the continuing force of Christianity’s notion of fundamental equality in his discussion of slavery. After contesting Aristotle’s claim that nature, having fashioned both masters and slaves, is responsible for fundamental human inequality, Montesquieu declares: “as all men are born equal, one must say that slavery is against nature.” He follows up his challenge to Aristotle with the comment that “Plutarch tells” “that there was neither master nor slave in the age of Saturn.” For Plutarch, as for the ancients generally, only the long-lost Golden Age, when the earth produced in abundance without toil, held out the possibility of the absence of masters and slaves.13 When Montesquieu adds that “[i]n our climates, Christianity has brought back that age” (15.7, 252), he reveals that he understands that Christianity, with its ideas regarding the fundamental equality of all human beings, is the agent that has eradicated the deeply ingrained slavery of classical antiquity. In the succeeding chapter, Montesquieu confirms just such an assessment of Christianity’s agency in the eradication of slavery and the ideas that sustained it when he refers rather offhandedly to the state of affairs “before Christianity had abolished civil servitude in Europe” (15.8, 252). Montesquieu’s specification “in Europe” is an important recognition of the limited character of Christianity’s liberating force on this particular score; he reveals elsewhere his understanding that European nations enslave non-European peoples. He shows how the missionary zeal of some Christians provided the impetus for the French government’s support of the enslavement of Africans when he notes that Louis XIII of France “was extremely pained by the law making slaves of the Negroes in his colonies.” The king’s pain was allayed and his consent won, however, “when it had been brought fully to his mind that [enslavement] was the surest way to convert them” (15.4, 249).14 In addition to being a liberating force, then, Christianity can also be an enslaving force. He shows, for example, that the reasoning that permits Europeans to enslave Africans results in contradictions, and thus reflects a perversion of Christianity’s teaching. In speaking of “the slavery of Negroes,” he asserts wryly in the voice of some of his French compatriots: “It is impossible for us to assume that these people are men because if we assumed they were men one would begin to believe that we ourselves

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were not Christians” (15.5, 250). But, of course, the enslaved, whatever the color of their skin, are human beings. Given this truism, his facetious declaration implies that the European enslavers are not true Christians.15 Montesquieu shows that another teaching of Christianity has had a salutary impact on political practice. The religion teaches that as Christ loves all, so should Christians love all others. In Europe the Christian way of love served to replace the Roman way of force. He points to this fundamental change that Christian teachings brought to Europe and lauds its results, particularly with respect to the manner in which wars are fought and resolved. The change is fundamental and stark. He notes, for example, that the ancient “Romans conquered all in order to destroy all” (10.14, 150) and that “war” was the “purpose” “of Lacedaemonia” (11.5, 156).16 Similarly, he notes: “Among the Greeks, the inhabitants of a captured town lost their civil liberty and were sold as slaves; the capture of a town brought about its entire destruction.” He then examines the consequences of this harshness, finding that “this is the origin not only of these unyielding defenses and unnatural actions, but also of the atrocious laws that were sometimes made” (29.14, 611).17 Here again, Montesquieu relaxes his generally neutral approach as he explicitly criticizes as unnatural and atrocious the purposes, mores, and laws that reigned in Europe in antiquity. By contrast to these harsh practices of the ancients, the “Christian religion” “orders men to love one another” (24.1, 459). Armed crusades to the Holy Land and bloody wars between Protestants and Catholics aside, Montesquieu perceives that this Christian injunction has changed the conduct of some European wars. In discussing how a state proceeds after it has conquered another, he provides several alternatives: the gentlest occurs when the conquering state “continues to govern its conquest according to its own laws and takes for itself only the exercise of the political and civil government”; the harshest occurs when the conquering state “exterminates all the citizens” of the vanquished state. He explains that the first “conforms to the right of nations we follow at present” and the last “is more in conformity with the right of nations among the Romans.” Although he announces that he leaves “others to judge how much better we have become,” he proceeds to render his own judgment in the form of praise: “Here homage must be paid to our modern times, to contemporary reasoning, to the religion of the present day [à la religion d’aujourd’hui], to our philosophy, and to our mores.” Among the influences he praises for the gentleness of the right of war is the religion that currently reigns, but he does not name it. Later, in the first of his two books dedicated to religion, not only does he name Christianity itself as an influence in this regard but he also de-

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picts it as the primary agent in this welcome epochal change. “Let us envisage,” he enjoins, “the continual massacres of the kings and leaders of the Greeks and Romans” as well as “the destruction of peoples and towns by Tamerlane and Genghis Khan, the very leaders who ravaged Asia, and we shall see that we owe to Christianity both a certain political right in government and a certain right of nations in war, for which human nature can never be sufficiently grateful” (24.3, 461–62).18 Christianity, then, has had a moderating effect on the conduct of wars and their aftermath. In elaborating on the “right of nations,” he notes that “among ourselves,” “victory leaves to the vanquished these great things: life, liberty, laws, goods, and always religion.” Although he includes the “always” with respect to religion, he reveals that he understands that this result is not, in fact, the current pervasive practice, as he immediately offers the condition “when one does not blind oneself” (24.3, 462). Therefore, he acknowledges that Christian conquests do not always leave the conquered with their religion, as he initially asserts. Indeed, he shows that some Christians may be blind to the proper application of their religious principles.19 For example, “among ourselves,” when Protestants conquer Catholics or Catholics Protestants, some Christians fail to grasp that the conquerors should leave the conquered with their religious convictions. Moreover, as chapter 1 above illustrates, Montesquieu reveals his awareness of the massacres that Catholic Christians perpetrated—and attempted to perpetrate—on Protestants in France. The zeal of any Christian sect to spread its own version of Christianity at the point of a sword undermines this benevolence and thereby detracts from the application of Christianity’s gentle and, hence, life-preserving qualities. Despite such divergences from Christianity’s teaching, the progress toward humanity from the stark inhumanity of ancient times is manifest, he asserts. The contrast between Machiavelli and Montesquieu on this particular point is sharp. Whereas Machiavelli appeals from the weakness that he finds in his Christian times to the strength and fortitude that he identifies among the ancients, Montesquieu uses that very characteristic of modern Christianity, which Machiavelli so despises, as a platform from which to condemn the ancients. In the chapter following the one in which Montesquieu pays “homage” to “the religion of the present day” for its method of handling conquests, he reveals that he finds deplorable the conduct of Europeans on this score in other parts of the globe, just as he has pointed to slavery’s abolition in Europe but its spread elsewhere (cf. 10.3, 139). He targets the Spanish in Mexico, asking: “What good could the Spanish not have done the Mexicans?” He responds that “the Spanish had a gentle religion to give them” (10.4, 142).

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If the Spanish had given them that gentle religion, these Europeans would have violated the maxim that “victory leaves to the vanquished” their religion (cf. 24.3, 461–62).20 But, in any case, the Spanish brought them not that gentle form of Christianity but rather “a raging superstition.” In the grip of this superstition, these Spanish Christians committed abuses rather than correct the ones they encountered. “They could have set the slaves free, and they made freemen slaves. They could have made clear to them that human sacrifice was an abuse; instead they exterminated them” (10.4, 142).21 Montesquieu illustrates how Christianity interacted with the mores of the warlike Franks, whom it eventually converted and then tamed. For example, when recounting how Pepin’s army of Franks returned from its campaign in Aquitaine burdened “with an infinite number of spoils and serfs,” Montesquieu highlights how the empathy of the early Christian clergy acted in favor of those burdened by fate. Because their “tender charity was stirred by these misfortunes,” “a number of holy bishops, seeing the captives shackled two by two, used the silver of the churches and even sold the sacred vessels to buy back those whom they could.” He notes also that the “holy monks” too “threw themselves into this task” (30.11, 629). The pity of these Churchmen moved them to freedom-preserving acts of charity, providing a compelling example of how Christians should behave toward the unfortunate victims of war. When expressing gratitude for Christianity’s effect on politics, Montesquieu touches on the changes Christianity wrought not only in the international realm but also in the domestic one when he mentions, as we have seen, “a certain political right in government,” meaning the manner in which the governors act on the governed.22 In commenting further on this “political right” that Christianity has brought, he notes that “the gentleness so recommended in the gospel stands opposed to the despotic fury with which a prince would mete out his own justice and exercise his cruelties.” In this manner, he suggests that Christianity has curbed the bloodthirstiness of Christian rulers. Surveying in this chapter the effect Christianity has had on the conduct of princes, he exclaims: “Remarkably, the Christian religion, which seems to have no other object than the felicity of the other life, is also our happiness in this one!” (24.3, 461).23 Montesquieu offers yet another salutary purpose that Christianity has served. He explains that by making women members of the congregation and thus bringing them out of their former confinement within the household, Christianity gave them more freedom than they had had in Roman society.24 Montesquieu relates, for example, that in the Roman republic if women were not “under the authority of a husband,” then they were “under

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perpetual guardianship” of the “closest male relative.” Montesquieu’s research reveals to him “that the women were very hemmed in by” these Roman laws (7.12, 107). He also comments that in the Roman republic the laws concerning adultery “intimidated the women and also intimidated those who kept watch over them” (5.7, 50). The laws concerning guardianship relaxed under the Roman emperors, not only with the change in mores that followed from the transition from an austere republic to a luxurious monarchy, but also with Augustus’s civil legislation that sought to encourage women to motherhood, one facet of which freed a mother of three or more children from the supervision of a guardian (7.12, 107n29; see also 23.21, 441–46 and 27.1, 529–30).25 At the origin of Christianity, then, the confinement of Roman women had already been lessened to a degree, but Christianity liberated them much more by embracing them as members of the society of believers. He points to women’s inclusion and importance in Christian society when he speaks of “the assembly of women in churches” and “their necessary communication with the ministers of religion” in matters pertaining to “auricular confession” and “extreme unction.” Christianity’s manner of uniting the sexes in worship in these ways militates against the religion’s acceptance, he laments, in societies in which men and women are rigorously separated, such as China (19.18, 319). A society that relegates women exclusively to a life in the household entirely separate from men could not readily accept the worship and rites of Christianity that serve in these ways to unite the sexes, he argues. In the same book, Montesquieu points to the pleasant effect that women’s presence has had on a contemporary society noted for a “sociable humor, an openness of heart” and “a joy in life.” This particular society is marked also by its taste and the “ease” its members show in “communicating” their “thoughts.” The presence of women has helped to render this society so vivacious and tasteful that people take particular pleasure in the refined company of their family members, friends, and acquaintances. He comments that it would be possible to “constrain” the “women” of this society, “but who knows whether one would not lose a certain taste that would be the source of the nation’s wealth and a politeness that attracts foreigners to it?” (19.5, 310). In the following chapter, he makes the same point in the imperative rather than in the interrogative mood when he notes that a certain “gentleman,” belonging to a nation “closely resembling the one” that he has just described, requests that “we be left as we are.” This gentleman supports his request by pointing out that any improprieties this people’s vivacity might permit are themselves remedied by the politeness that springs also from that same vivacity, which works “by inspiring us

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with a taste for the world and above all for commerce with women” (19.6, 311). The French nation, which Montesquieu is so clearly describing and whose identity he confirms with his use of the first person plural, is transformed and enlivened by the presence of women in its society.26 Christianity long ago provided the impetus for the inclusion of women in society, an inclusion that eventuated in a society that fosters une joie dans la vie—a manifest joy in this world (OC 2: 558). Of course, Christian teachings themselves would sternly condemn the integration of men and women in such a frivolous society, one that exalts temporal goods and tolerates—if not outright encourages—romantic liaisons.27 With regard to slavery, the conduct of war, political rule, and the place of women in society, then, the teachings of Christianity have served to soften the mores of human beings from what they were in ancient times. Montesquieu celebrates these effects, as they carry great significance for him. He comments that “it is much more evident to us that a religion should soften the mores of men than it is that a religion is true” (24.4, 462). His statement strongly suggests that human beings do not have sure access to the truth of religious questions. They do, however, have the ability to assess religion from the standpoint of its salutary effects on society. Throughout the course of his masterwork, Montesquieu therefore points out the ways in which Christianity has served that earthly purpose.

MONTESQUIEU’S DEPICTION OF THE INQUISITIONS OF PORTUGAL AND SPAIN For all the gentleness that Montesquieu attributes to the Christian dispensation, he nevertheless underscores the atrocious crimes of certain variants of the religion that ostensibly serve the Prince of Peace. For example, under the thrall of “a raging superstition,” Spain, as we have seen, perpetrated what he regards as “one of the greatest wounds mankind has yet received” when, in the sixteenth century, it exterminated the natives of Mexico (10.4, 142 and 4.6, 37). Similarly, the most poignant chapter in the entire work focuses on the Portuguese Inquisition’s public burning in Lisbon of a female Jewish adolescent for heresy. Therefore, Europe—the Europe of his own day—remains the venue for the most flagrant and heartrending violations of the security of individuals, indeed, of a mere child. His choices in depicting this particular stark brutality can cause a reader of The Spirit of the Laws to wonder if the author means to suggest that some aspects of the mores of Europe have not, in fact, changed in appreciable ways from antiquity. After all, he mentions that one is surprised (“on est surpris”) that the jurists of

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ancient and pagan Athens condemned a child to die for putting out the eyes of a bird (5.19, OC 2: 306). Europeans should also be surprised—indeed, horrified—that the inquisitors of Lisbon condemned a child to death for heresy, Montesquieu suggests. If they were not so moved before, his work teaches them to be, as he himself expresses disdain for the contemporary Spanish and Portuguese Inquisitions.28 By definition the Christian pursuit of heresy did not normally encompass those of other faiths, but the Iberian Peninsula was a special case. Spain and Portugal, originally home to large populations of Jews, expelled them in 1492 and 1496, respectively. Any former Jews who remained had converted to Christianity. But with these conversions came the suspicion that these new Christians were, in fact, crypto-Jews. It was feared that they were committing heresy by practicing their former faith secretly in their homes or in their hearts. As lapsed Christians, their purported heresies were subject to the Inquisition. In both kingdoms, the crowns ordered the inquisitions and were closely associated with their proceeding.29 Chapter 13 of book 25 contains a bitter denunciation of the Inquisition, a chapter that Shackleton deems Montesquieu’s “most impassioned piece of writing.”30 In offering this sharp rebuke, Montesquieu assumes a new guise, offering his analysis not in his own voice but rather in that of a Jewish man who addresses a “humble remonstrance to the inquisitors of Spain and Portugal,” which he claims was written by a Jewish man on the occasion of an “eighteen-year-old Jewess” being “burned in Lisbon at the last auto-da-fe” (25.13, 490). By speaking through his Jewish character, Montesquieu affords himself the ability to assess the behavior of some European Christians from the outside, in the voice of the Other, as it were, and to speak truth to European “men” (hommes) of “authority” (autorité) and to all the other Europeans who stand passively by (25.13, 491; OC 2: 748).31 Although no reader can doubt that Montesquieu is the ultimate author of the letter, the literary device seems also to offer him some measure of distance from the very hard truths he articulates.32 In Montesquieu’s fiction, the spectacle of a young woman being burned moves the letter’s author to note that as cruel as the inquisitors are to the adults among the Jewish population, they are even crueler to the Jewish “‘children,’” whom you have “‘burned,’” his character accuses, “‘because they follow the suggestions instilled in them by’” their parents—“‘those whom the natural law and the laws of all the peoples teach them to respect like gods.’” “‘You want us to be Christians, and you do not want to be Christian yourselves,’” he charges (25.13, 490–91). He means by this that the inquisitors do not follow the example of Christ—of “‘the Christ that

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you tell us took on the human condition in order to give you examples you could follow’” (25.13, 491). Here, Montesquieu’s character makes the point that this particular expression of Christianity is not itself Christian. Montesquieu’s letter writer also broaches the subject of the divergence of the actions of these religious persecutors from the morality of Christian teachings later in the chapter, and he does so with language and ideas strikingly similar to Montesquieu’s own. Montesquieu’s Jewish character writes: “‘You live in a century when natural enlightenment is more alive than it has ever been, when philosophy has enlightened spirits, when the morality of your gospel has been better known, when the respective rights of men over each other, the empire that one conscience has over another conscience, are better established’” (25.13, 491). Like Montesquieu, his character has discerned positive aspects of Christianity’s reign. And like Montesquieu, he underscores that “[i]t is not a matter of indifference that the people be enlightened” (pr., xliv). But in the face of this general knowledge and enlightenment, the crimes of the Inquisition persist. The Jewish man then proceeds to assert that the crimes of the inquisitors in prosecuting religious crimes will serve to indict them: “‘Therefore, if you do not give up your old prejudices, which, if you do not take care, are your passions, it must be admitted that you are incorrigible, incapable of all enlightenment and of all instruction; and a nation is very unhappy that gives authority to men like you’” (25.13, 491). Montesquieu’s character asserts here that these inquisitors perpetrate abuses to satisfy their personal passions and predilections; in this, they are remarkably akin to the philosophical legislators of book 29, whom Montesquieu describes as being driven by such passions as “jealousy” and indignation, and whose “laws always meet [their] passions and prejudices” (29.19, 618). Horrible suffering results from such despotic practices of the inquisitors. Montesquieu concludes the chapter with the Jewish man reiterating the immorality and senseless cruelty of the Inquisition: “‘We must warn you of one thing; it is that, if someone in the future ever dares to say that the peoples of Europe had a police in the century in which we live, you will be cited to prove that they were barbarians, and the idea [l’idée] one will have about you will be such that it will stigmatize your century and bring hatred on all your contemporaries’” (25.13, 491–92; OC 2: 748–49). Some Europeans of Montesquieu’s own time may appear to be quite sophisticated, but they are, in truth, barbarians, Montesquieu judges in the voice of the Jewish man. These barbaric practices of the Christians, in fact, bring despotism to Europe, Montesquieu implies. The chapter also suggests that by taking this tactic of violent imposi-

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tion of religious belief, the Catholic inquisitors and their abettors are no different from the Muslims, who enforce belief with violence and whom the Christians decry. “‘You deprive yourselves of the advantage over the Mohammedans given you by the manner in which their religion was established,’” the Jewish man declares, referring to early Christianity’s method of converting others peacefully through preaching. He continues that when the Muslims “‘flaunt the number of their faithful, you say to them that only force has acquired that number for them and that they have extended their religion by iron.’” The letter writer concludes his examination of this comparison between Christianity and Islam with the pointed question: “‘therefore, why establish yours by fire?’” (25.13, 490). Montesquieu suggests that by so violently enforcing religious purity, Christianity loses its moral authority. Montesquieu, through his Jewish character, now charges that when Christians undertake to kill in the name of their God, they are no different from the Muslims who force belief through the point of a sword. This is a most significant comparison. Through it, Christian Europe appears in a new light. It is not merely the case that some of its laws and practices are deficient; rather, its own despotic practices make it comparable to the East that it regards as barbaric and un-Christian. In this manner, Montesquieu collapses the difference between the East and the West. Indeed, the Jew points out that the Christians employ both the sword and fire against their perceived enemies: “‘you have afflicted with iron and fire those who are in the quite pardonable error of believing that god still loves that which he loved’” (25.13, 490). The peaceful Christians are nowhere evident as despotism overwhelms the scene that the author here depicts. Montesquieu speaks in his own name only when he introduces the letter of the Jewish man. In these brief remarks, he writes an apparently disparaging comment about the remonstrance: “I believe it is the most useless that has ever been written.” The next sentence, however, explicates this disparagement in terms that suggest not its uselessness but rather its extreme needfulness: “When it is a question of proving such clear things, one is sure not to convince” (25.13, 490). In other words, the Jew’s comments are obvious. By being obvious, his comments should be unnecessary; an unnecessary comment would not have a use, of course. But his comments are necessary, and hence are useful, precisely because they bring to light the continuing atrocities of the Inquisition. In addition, because the Inquisition persists in committing such inhumanely cruel acts, the reasoned arguments of the Jew are surely unlikely to change the minds of the persecutors. Thus, in addition to its obviousness, the Jew’s remonstrance can be deemed useless on another score—that of its ineffectualness. In order to repudiate more

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fully the “authority” of the Inquisition—in order to make this letter’s condemnation “useful”—one needs to examine in greater depth both Christian ideas and the manner in which some Christians apply them to the temporal realm of vengeful punishment. Montesquieu pursues these ideas and practices elsewhere in the work.

THE CHRISTIAN NOTION OF GOD AS A SEEKER AFTER DIVINE JUSTICE Montesquieu delves into the notions that contemporary Christians have of their God in a chapter of book 24, which considers “the religion established in each country,” the first of two books devoted to religion in the work. Montesquieu offers his deepest treatment of Christian teachings in The Spirit of the Laws in a chapter whose announced topic is “inexpiable crimes.” He treats the religion as a type of criminal procedure, specifically referring to the Christian God as a “judge” and to the believer as a “criminal.” It is no ordinary criminal procedure that he here describes, however, as he notes that the religion “leaves human injustice behind to begin another justice.” He offers that this religion’s judicial procedure pursues “love” and “repentance.” He also describes the methods by which it attains these purposes. In pursuing love and repentance, its deity “is no more jealous of acts than of desires and thoughts” (24.13, 467). He depicts God as a pursuer of justice—a divine justice, that is, to be rendered in the next world, not in this one. As a seeker of repentance for sins, this divine judge uses suprahuman capacities to look behind the deeds and the explicit words of human beings to discern their true motives and to search their consciences. Montesquieu shows that this depiction of a vengeful God can be a most frightening prospect for the Christian who is aware of his or her guilt. There is no obvious sign that chapter 13 of book 24 treats Montesquieu’s understanding of the Christian religion, as it initially presents itself as a discussion of paganism as practiced by the Romans. Indeed, neither the word “Christianity” nor the word “Christian” appears in the chapter. Nevertheless, the fact that this chapter contains Montesquieu’s reflections on the teachings of Christianity has not escaped prior commentators. Robert Shackleton, in fact, recognizes the significance and profundity of this particular passage, claiming that it establishes Montesquieu’s “sympathetic comprehension of the Christian religion.” Shackleton also notes that the index of a posthumous edition declares that the chapter contains “‘a beau tableau of the Christian religion.’”33 A more recent commentator declares that Montesquieu’s “attitude towards the Redemption,” which he displays

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in this chapter, suggests that it would “not seem wrong to call him a Christian.”34 Finally, Montesquieu himself later acknowledges that he speaks of Christianity in this passage. In disputing in his Defense the charge of his ecclesiastical critics that the “author does not acknowledge the revealed religion,” he cites a series of passages from book 24 of The Spirit of the Laws in which he refers to Christianity specifically, and within this series, he quotes the entirety of this chapter’s second paragraph (OC 2: 1125–27; my translation). Montesquieu begins the chapter by stating that “among the Romans there were inexpiable crimes.” In order to corroborate this point, Montesquieu refers by name to two sources, Sozomen, a Christian historian of the Church, and Julian, the pagan emperor known to Christians as an apostate who attempted to roll back the Christian advance since the reign of Constantine, both of whom discuss the motives for, in Montesquieu’s words, “Constantine’s conversion” (24.13, 467). With regard to Sozomen’s account, Montesquieu notes that it “so nicely poisons the motives [si propre à envenimer les motifs] of Constantine’s conversion” (24.13, 467; OC 2: 723). Montesquieu’s terseness requires that the reader consult his source in order to discover the precise nature of that poisoning. Sozomen’s account reports that the pagans understand that Constantine converted to Christianity in order to receive forgiveness for his prior crimes. Having been told by a pagan philosopher that his assent to the murder of his son was so grave a “moral defilement [that it] could admit of no purification,” Constantine determines to convert to Christianity. Sozomen turns to address the veracity of this explanation with this statement: “It appears to me that this story was the invention of persons who desired to vilify the Christian religion.”35 Although Sozomen discounts this explanation, his reporting of it “poisons the motives” for this most famous of Christian conversions, in Montesquieu view. Julian, the other source whom Montesquieu mentions in this discussion, does not merely report what others say to vilify Christianity, like Sozomen, but rather undertakes to vilify it quite forcefully in his own name. Indeed, Montesquieu here describes Julian’s account as a “bitter mockery of that conversion” (24.13, 467). In consulting this source, the reader finds that Julian presents Jesus as crying “aloud to all comers: ‘He that is a seducer, he that is a murderer . . . let him approach without fear! For with this water will I wash him and will straightway make him clean.’” With this promise, “[t]o him Constantine came gladly,” Julian reports.36 On the basis of expiable crimes, then, a Christian historian poisons and an apostate bitterly mocks Christianity’s appeal to the convert. After making these vague references to these sources, Montesquieu

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draws his conclusion about paganism. Because it “prohibited only some glaring crimes” and it “checked the hand and abandoned the heart,” paganism “could have inexpiable crimes.” He then turns to “a religion” that serves as his foil to paganism and offers what amounts to his account of the fundamental teaching of Christianity: but a religion that envelops all the passions, that is no more jealous of acts than of desires and thoughts, that attaches us not by some few chains, but by innumerable threads, that leaves human injustice behind to begin another justice, that is made in order to lead constantly from repentance to love and from love to repentance, that puts a great mediator between the judge and the criminal, a great judge between the just man and the mediator: such a religion should not have inexpiable crimes.

The Christian apparently seeks repentance after having committed some error. Love follows this repentance, but that love leads back to repentance, apparently after the believer commits another error. In pursuing love and repentance, the divinity is “jealous” of “desires and thoughts” so that the religion “envelops all the passions” (24.13, 467–68). God not only witnesses the actions but also hears the prayers, uttered and unuttered alike, as well as the most inward and ineffable thoughts. This loving God offers forgiveness but scrutinizes the heart of the believer, ascertaining whether that devotion is faithful, true, and complete.37 Importantly, Montesquieu places this scrutiny in a judicial context, speaking here of justice, of a judge and a criminal, and of a just man and a great judge. Christianity seeks justice, in his estimation, but not human justice. Indeed, he specifies that this religion “leaves human injustice behind to begin another justice” (24.13, 467). In Montesquieu’s description, Christianity attaches the believer not by merely prohibiting a few particularly serious crimes, which would produce the few chains of this metaphor, but rather by prohibiting innumerable crimes, as innumerable as the types of thoughts, desires, and passions that individuals themselves are capable of entertaining, which produces the innumerable threads of the metaphor. Montesquieu describes Christianity as weaving a web from which there is no escape, not even within the solitude of the believer’s mind. Being privy to all, Christianity’s God judges all. Indeed, every thought is subject to divine judgment—every thought is actionable. Montesquieu continues in this chapter to describe the character of Christianity’s judging as he specifies, for example, that this religion “puts a great mediator between the judge and the criminal.” The criminal is clearly

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the believer, God the judge, and, as Shackleton’s commentary suggests, Jesus Christ is the “great mediator.”38 Christian teaching, indeed, presents Christ in these very terms: “For there is one God, and there is one mediator between God and men, the man Christ Jesus, who gave himself as a ransom for all, the testimony to which was borne at the proper time.”39 Montesquieu then returns to the characteristic of the religion that his sources, Sozomen and Julian, highlight—forgiveness: “such a religion,” he declares, “should not have inexpiable crimes” (24.13, 467–68). The mediator and the judge extend forgiveness for crimes that would be inexpiable in paganism. Montesquieu’s analysis in the remainder of the chapter actually undermines, however, the characterization of the religion offered by its pagan critic. Whereas Julian declares that Christianity offers easy forgiveness even to those who have committed the most heinous of crimes, Montesquieu instead highlights the burden for the Christian believer of continual judgment and of the lack of assurance of ultimate forgiveness.40 His discussion continues: “But, though it gives fears and expectations to all, it makes them feel sufficiently that if there is no crime that is inexpiable by its nature, yet a whole life can be so; that it would be very dangerous to harry mercy constantly with new crimes and new expiations.” Thus, according to Montesquieu’s analysis of Christianity, whereas every individual crime, no matter how terrible, can be expiable, the entire life of an individual can be inexpiable. The individual soul on trial is in jeopardy, Montesquieu here specifies; there lurks the possibility that an individual life will be judged irredeemable and will be punished in the afterlife. Montesquieu puts the final clause into the first person and more clearly identifies the great judge as Our Lord: “that, troubled over old debts, never settled with the lord [le Seigneur], we [nous] should fear contracting new ones, overfilling the cup and reaching the point at which paternal goodness ends” (24.13, 468; OC 2: 723). The Lord’s paternal goodness can end. Love is quite prominent in the first portion of this passage but is no longer the focus by its end. Now, the focus is on the individual’s fear of God’s retribution in the afterlife.41 Montesquieu and his fellow Christians live with the constant fear that their sins will overwhelm the mercy of “le Seigneur.”42 All their crimes and sins are subject to weighing and evaluation. Seen in this light, Constantine’s gambit for easy and perpetual forgiveness, contrary to Julian’s assessment, seems to have been ill conceived because the convert misunderstood the enormous burden of guilt he would take on in return for the expiation of his crime. Montesquieu illustrates the weight of the fear that can arise from the knowledge that God punishes in this way when speaking of the kings of the Franks. He notes that these Frankish kings “were no less” “ferocious

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and barbarous” than the nation itself, and continues that “[i]f Christianity sometimes seemed to soften [the kings], it was only through the terror that Christianity gives the guilty” (31.2, 673). It is the prospect of the fury of the Divine Judge, who dispenses “another justice” (24.13, 467), that stays the hand of an earthly despot. Christianity softened these “princes [who] were murderous, unjust, and cruel,” Montesquieu suggests, because it gave them the knowledge that God held them accountable for their misdeeds (31.2, 673). On Montesquieu’s rendition, however, the clergy at this time and place were most interested in ending the kingly pilfering of their churches, and were largely successful as a result of “the miracles and prodigies of their saints.” He explains that these “kings were not sacrilegious because they dreaded the penalties for sacrilege, but, in other areas, they committed, both in anger and in cold blood, all sorts of crimes and injustices because they did not see the hand of the divinity so present in these crimes and these injustices.” Christianity’s teaching of God’s justice terrorizes those who are conscious of their faults, sins, and crimes and who have an idea of an active deity who will render ultimate justice. In this manner, Montesquieu illustrates how the “gospel” might stand “opposed to the despotic fury with which a prince would mete out his own justice and exercise his cruelties” (24.3, 461). By terrorizing the formerly unrepentant plundering princes, Christian teachings made them decide not to test God’s mercy any more than was necessary.

THE ILLEGITIMATE IDEAS OF THE INQUISITIONS Montesquieu thus shows that Christians, both rulers and subjects, understand their God as a judge of their crimes. He further shows that Christians, most prominently inquisitors, frequently pervert that understanding by imitating God and assuming for themselves God’s vengeance and His method of reading hearts and minds. Montesquieu explicitly opposes the earthly tyrannies and despotic practices that result from the appropriation on the part of human judges of this divine purpose and method. As Jean Ehrard notes, the chapter that contains the humble remonstrance to the Spanish and Portuguese Inquisitions is not an isolated bit of bravery in The Spirit of the Laws, as its author reflects on the methods and purposes of inquisitions in other places in the work as well.43 Montesquieu examines the purposes of the “tribunal of the Inquisition,” for example, in his own name in chapters 11 and 12 of book 26, which share the title “That human tribunals must not be ruled by the maxims of the tribunals that regard the next life.” In these chapters, Montesquieu explicitly propounds

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his principle of the distinction between the two types of tribunals—human and divine. The first of these chapters was condemned by the Congregation of the Index, which demanded that it be removed in its entirety from the work.44 Montesquieu’s first sentence of this condemned chapter condemns the Inquisition specifically: “The tribunal of the Inquisition, formed by Christian monks along the idea [idée] of the tribunal of penance, is contrary to all good police” (26.11, 504; OC 2: 761). Thus, in keeping with the Jew’s point in 25.13 that the continued longevity of the Inquisition is evidence that the people of the eighteenth century are bereft of the most basic provision of any civilized society—that is, of “a police”—and hence should be deemed “barbarians,” Montesquieu declares here in his own undisguised voice that the Inquisition is contrary to “all good police” (25.13, 491–92 and 26.11, 504). Montesquieu’s “tribunal of penance,” which the Inquisition imitates, is a reference to the Catholic sacrament of penance where a priest, as a representative of Christ, offers forgiveness of sins and thereby remits the torments of the next life when the Christian sincerely confesses and seeks absolution (26.11, 504). This religious tribunal, like the Christian God whom Montesquieu describes in 24.13, investigates the repentance of an individual; the rewards and punishments it bestows occur not in this life but rather in the next. Thus, it may be said to seek not “justice humaine,” but rather “une autre justice”—divine justice (cf. 24.13, 467; OC 2: 723). In this regard a human being—a priest—bestows a divine judgment, but the individual under examination in the tribunal of penance is not punished corporally as a result of its findings.45 In the second of these chapters, Montesquieu exposes “one of the abuses of this tribunal”—that is, of the “tribunal of the Inquisition.” He specifies that the Inquisition also examines consciences, as it is guided by “monastic ideas” that regard “the one who denies” as “unrepentant and damned” and “the one who confesses” as “repentant and saved.” With these monastic ideas, the concern is focused exclusively on the fate of the soul—whether it is saved or damned in the next world. Although the tribunal of penance may rest satisfied with the imposition of such divine punishments—that is, with otherworldly punishments—“the tribunal of the Inquisition” does not (26.11, 504); rather, as a human tribunal it “condemn[s] to death” the one whom it regards as damned while the one it deems “repentant” “avoids punishment” (26.12, 505).46 Therefore, although the Inquisition uses the methods of divine justice, it seeks human justice—that is, it sentences the convict to punishment in this world rather than in the next. Montesquieu’s next sentence explicates his declaration in the title of these chapters that

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human tribunals cannot be guided by the maxims of tribunals that regard the next life: “But such a distinction cannot be the concern of human tribunals; human justice, which sees only acts, has only one pact with men, that of innocence; divine justice, which sees thoughts, has two pacts, that of innocence and that of repentance” (26.12, 505). But the inquisitors of this human tribunal were specifically trained to attempt to penetrate the subterfuges of the accused so as to read the very soul.47 On this basis, Montesquieu renders the Inquisition illegitimate. God examines thoughts to discern repentance; priests do the same to remit punishments in the next life. By contrast, inquisitors, who punish in this life, cannot imitate their God in attempting to discern repentance in this manner, Montesquieu insists.48 Despite this fundamental distinction between divine and human justice, which Montesquieu depicts so clearly, the Inquisition persists in its illegitimate appropriation of the very purpose of God and of the tribunal of penance—“repentance” (25.12, 505; cf. 24.13, 467). In his book devoted to criminal judgments, where Montesquieu declares that “knowledge” of “the surest rules one can observe in criminal judgments” “is of more concern to mankind than anything else in the world” (12.2, 188), Montesquieu further examines the all too common attempt of some Christians to use criminal proceedings to avenge their God. He notes that with regard to “hidden actions” “that wound the divinity [blessent la Divinité], where there is no public action, there is no criminal matter; it is all between the man and god [Dieu] who knows the measure and the time of his vengeance.” God is a seeker after vengeance, he declares, but human beings should not arrogate to themselves God’s purpose of pursuing “vengeance” in this world. He continues with the clear and forceful declaration that the “ill [mal] came from the idea [idée] that the divinity must be avenged. But one must . . . never avenge it.” Here Montesquieu lays bare a mistaken Christian idea that he believes should be remediated. He then continues with a gesture toward the earthly wreckage that this idea fosters: “Indeed, if one were guided by the latter idea [idée], where would punishments end?” (12.4, 190; OC 2: 433–34).49 Montesquieu notes that horrible atrocities occur “if the magistrate, confusing things”—that is, confusing the strict separation between human and divine justice—“even searches out hidden sacrilege.” The result, Montesquieu says, is that “he brings an inquisition [il porte une inquisition] to a kind of action where it is not necessary” (12.4, 190; OC 2: 433).50 Obviously, the term “inquisition” in this context is quite provocative given the fact that magistrates did carry papal and episcopal inquisitions into their territory in order to search out hidden sacrilege—hidden away in the

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homes and the hearts of the suspects. In asking the rhetorical question as to “where” such “punishments end,” he indicates that the magistrate’s unnecessary—on the basis of Montesquieu’s principles—pursuit of certain actions can issue in extreme and widely disbursed punishments (12.4, 190). Montesquieu follows up this blunt statement with an arresting incident that took place in “Provence.” A Jewish man, he reports, was “condemned to be flayed,” being “accused of having blasphemed the Holy Virgin,” but in this instance “the executioner” could not carry out the sentence because “[m]asked knights with knives in their hands mounted the scaffold” “to avenge the honor of the Holy Virgin themselves” (12.4, 190). The desire for vengeance of these knights was so intense that they could not leave the punishment of this convicted blasphemer to the executioner but felt compelled to carry it out themselves. He warns of “what this idea of avenging the divinity [cette idée de venger la Divinité] can produce in weak spirits” (12.4, 190; OC 2: 434).51 He has powerfully stigmatized the practices of his own country, which was, in fact, the site of the origin of the papal inquisition half a millennium before he wrote.52 In opposition to the ideas that justified such actions, Montesquieu teaches that God’s vengeance must be left to God. His teachings, if embraced, could cure this lingering disease. That Montesquieu’s teaching regarding the distinct spheres of religious and criminal matters challenged the teachings of his time is evidenced by the ecclesiastical criticism of the principles he expounds in 12.4. Montesquieu’s declaration that one must never avenge “la Divinité” was, in fact, selected for censure by the Faculty of Theology of the University of Paris in 1752, which noted that this passage was “scandalous, impious, erroneous, and heretical.”53 Père Plesse also singled out this passage in his criticisms of The Spirit of the Laws. The father writes: “one is never able to undertake to avenge the Divinity perfectly and totally, but there are circumstances where it is appropriate to punish the sacrilegious enterprises against God, because that is what serves to repair his supreme worship and to intimidate the wicked.”54 Montesquieu’s principles regarding the most important knowledge opposed the authoritative thinking and practices of Europe.

WITCHCRAFT, SACRILEGE, TREASON, AND THE FURTHER ABUSES OF CATHOLICS AND PROTESTANTS Montesquieu offers further reflections on the ills deriving from the idea that human beings should avenge their God when he considers the punishments that are exacted when the laws equate sacrilege with treason. In the late twelfth and early thirteenth centuries the Papacy was engaged in countering

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first the Waldensian and then the Albigensian heresies in Europe.55 In this context, Pope Innocent III propounded the canon law that explicitly drew on old Roman law that equates sacrilege and treason. Innocent’s equation of the two crimes informed the various papal and episcopal inquisitions that were to follow. But it was not only the Catholic Church that used these formulations to avenge apparent rebellions against God. After the Reformation, Europe was seized with the fearful heresy that entailed defection to Satan in order to attain magical powers. Both Protestants and Catholics, both religious and secular authorities, prosecuted the crime of witchcraft, sending thousands to their deaths by burning in the sixteenth and seventeenth centuries.56 In his examination of criminal penalties and the liberty of the citizen in book 12, Montesquieu links heresy not only to witchcraft but also to homosexuality, hidden crimes that in Europe have frequently carried the extreme and cruel punishment of burning (12.5 and 12.6). He advises caution in the pursuit of such crimes—including religious apostasy, but not only religious apostasy—because their prosecution can eventuate in “infinite tyrannies” (12.5, 192).57 Moreover, he identifies an idea in a very old book—indeed, in the Old Testament—that enjoins people to avenge insults to their God. Here is the scriptural articulation of the idée that results in the mal that occurs when believers pursue that vengeance (cf. OC 2: 434; 12.4). This biblical idea of the necessity of avenging God, after it combined with both canon and civil laws equating sacrilege and treason, had an immense impact on both Catholic and Protestant Europe, Montesquieu shows. In the fourth chapter of book 12, Montesquieu defines four general categories of crimes: first, those against “religion”; second, those against “mores”; third, those against “tranquility”; and fourth, those against “the security of the citizens.” Montesquieu insists that the “penalties inflicted should derive from the nature of each.” On his understanding, only the fourth category of crimes would call for the application of the strongest punishments including the death penalty, which he calls punishments (supplices), as opposed to the softer penalties (peines), which he would impose for the other three categories (12.4, 189–91; OC 2: 435). He specifies that “simple sacrilege” should be punished only by “the deprivation of all the advantages given by religion,” such as “expulsion from the temples; deprivation of the society of the faithful for a time or forever; flight from their presence; execrations, detestations, and conjurations” (12.4, 189–90; OC 2: 433).58 Of course, although he speaks of religion in general terms, his words have a particular application to Christian Europe. Affliction “‘with iron and fire” (cf. 25.13, 490) is nowhere to be found among the penalties Montesquieu here prescribes for such infractions, as his are considerably more mild

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than those applied in France and elsewhere in Europe before and during his lifetime.59 Indeed, his prescriptions would give religious authorities latitude to correct and to punish adherents, but the character of their response would be quite circumscribed.60 Montesquieu’s principles would simply eradicate the capital punishments pronounced by the various papal and episcopal inquisitions, as well as by the secular authorities who also undertook to punish religious crimes apart from these inquisitions.61 Simply put, everywhere his strictures were implemented, religious crimes would no longer incur corporal punishments. In the next chapter, Montesquieu examines the crime of heresy and links it to the crime of magic, noting that the “[a]ccusation of these two crimes can offend liberty in the extreme and be the source of infinite tyrannies [une infinité de tyrannies] if the legislator does not know how to limit it” (12.5, 192; OC 2: 435). Although trials for witchcraft were rampant in both Protestant and Catholic Europe in the sixteenth and seventeenth centuries, his chapter does not reference any of these more contemporary outbreaks of prosecutions for magic, adducing instead examples from the Byzantine Empire and medieval France. His discussion of the combination of heresy and magic here emphasizes the fear and indignation that can arise both in a community as a whole and in the prosecutors as a result of these fearful accusations; horrendous punishments result. In relating an incident from the Byzantine Empire in the twelfth century, he notes that “by supposing a power in magic that can arm hell and by starting from this, he whom one calls a magician is considered the man in the world most likely to disturb and overthrow society, and one is drawn to punish him immeasurably.” To punish immeasurably is to punish severely, indeed. Here again, Montesquieu illustrates how religious ideas can lead human beings astray on matters related to the most important knowledge; in this instance, the Byzantines supposed that magic could render hell a physical threat to a Christian society. He continues: “Indignation grows when one includes in magic the power to destroy religion” (12.5, 192). Here human beings conceive an even more frightening notion—one that threatens not only society but the religion itself. Severe punishments follow in this case as well. In responding to such a terrifying threat, human judges, driven by fear and indignation, inflict the most severe penalties. After three examples involving magic from the Byzantine Empire, Montesquieu provides one from fourteenth-century France, pointing to the fact that under Philippe V the Jews were exiled from the country after having been accused of using lepers with their potions to poison the wells.62 He comments that the “absurd accusation certainly should cast doubt on all

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accusations founded on public hatred” (12.5, 193). Human beings, when driven by hate, can concoct preposterous crimes by which to accuse their foes and subject them to horrible punishments. Accusations of magic and heresy are ready mechanisms by which society can punish any despised population. Montesquieu expresses particular concern that such accusations do “not bear directly on the actions of a citizen, but rather on the idea [l’idée] one has of his character.” Because the accusation derives not from a specific action, Montesquieu explains that “a citizen is always in danger because the best conduct in the world, the purest morality, and the practice of all one’s duties do not guarantee one from being suspected of these crimes” (12.5, 192; OC 2: 435). Therefore, the innocence of the citizen is not assured, and “[w]hen the innocence of the citizens is not secure, neither is liberty” (12.2, 188). After having counted his French ancestors among the perpetrators of such frivolous but virulent accusations, he ends on a note seemingly intended to limit the ramifications of his discussion: “I have not said here that heresy must not be punished; I say that one must be very circumspect in punishing it” (12.5, 193). True to his declaration, he does not “here” say that heresy must not be punished, but elsewhere he both specifies that crimes that “attack [religion] directly” can be punished only with penalties deriving from religion itself (12.4, 189) and declares that “[p]enal laws must be avoided in the matter of religion,” as “history teaches us well enough that the penal laws have never had any effect other than destruction.”63 Indeed, with the fear of human penal laws added to the ones that “religion also has,” “which inspire fear,” “souls become atrocious” (25.12, 489).64 In the following chapter of book 12, Montesquieu continues his discussion of heresy and magic while he considers yet another crime, “the crime against nature.” He notes that “[i]t is singular that among ourselves three crimes, magic, heresy, and the crime against nature” “were all three punished by the penalty of burning.” His use of the first person in this remark underscores that this extreme penalty has been inflicted in the countries of Europe. Moreover, his further comment suggests that so extreme a penalty for such nonexistent or petty crimes numbers among those “infinite tyrannies” to which he referred in the previous chapter: “it can be proved that the first does not exist, that the second is susceptible to infinite distinctions, interpretations and limitations, and that the third is often hidden” (12.6, 193; cf. 12.5, 192). Not only does the crime of sacrilege preoccupy Montesquieu throughout book 12, but so too does that of high treason, and at several points in the book he, in fact, refers to sacrilege and high treason interchangeably.

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Accusations of both crimes can arouse indignation, disgust, and fear in accusers and avengers. Montesquieu’s collapsing of these two crimes becomes evident when one chapter entitled “On the crime of high treason” (“Du crime de lèse-majesté”) is followed by three devoted to the subject “On the wrong application of the name of crime of sacrilege and high treason [lèsemajesté]” (12.7–10; OC 2: 438). Montesquieu’s equation of sacrilege and high treason was in no way original to him. As we shall see in more detail in the next chapter, the equation of the two crimes in law derives from the Romans. That equation, though, was revived by the Papacy at the very origins of the inquisition. Pope Innocent III appealed to this formulation in Roman law when promulgating in 1199 the canon law by which heretics were to be prosecuted: For while according to legitimate laws, the penalty for offending majesty is capital punishment, [the offender’s] goods are confiscated, and the life only of his children is preserved out of compassion: how much more one who, straying from the faith of the Lord God, offends Jesus Christ ought to be severed by Church strictness from our head, which is Jesus Christ, and ought to be despoiled of his temporal goods, since it is by far graver to offend the eternal majesty than the temporal [sit gravius aeternam quam temporalem laedere maiestatem]?65

Here is the decisive legal equation in Christian Europe of heresy with laesa majestatis or high treason. The heretic offends the majesty of God, a far greater crime than offending the majesty of a ruler in the secular realm.66 It was on this basis that the Church justified all the inquisitions that were to follow; it was on this basis that the inquisitors were dispatched to plumb the hearts and minds of the accused; it was on this basis that inquisitors turned the convicted over to secular authorities for punishment. Perhaps the most striking instance in which Montesquieu’s own analysis collapses these two types of crimes occurs in the chapter entitled “On revealing conspiracies” (“De la révélation des conspirations”) (12.17, 202; OC 2: 446). Given the content of the chapter—namely, the extreme earthly punishment that the Old Testament commands that human beings inflict on those who defect from God—an alternative title could read “Revelation on conspiracies.”67 Montesquieu begins this chapter not with an example of a turn against an earthly ruler but rather with a turn against a heavenly one by speaking of the punishment of stoning that the thirteenth chapter of Deuteronomy declares family members should themselves inflict on

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their kin who “‘entice [them] secretly’” to abandon the one true God for other gods. Thus, Montesquieu’s treatment of the revelation of conspiracies encompasses Revelation itself, and he includes in his note the specific reference to chapter and verses. He here condemns this biblical approach to thwarting conspiracy, pronouncing that “[t]his law of Deuteronomy cannot be a civil law among most of the peoples that we know because it would open the door to all crimes” (12.17, 202). But in a manner of speaking it has, in fact, become a civil law among Montesquieu’s fellow Europeans. The scriptural injunction to punish treason against the divine came to be instantiated in Roman law and then in canon law. Although there appears to be no connection between the scriptural injunction and the original equation of the two crimes in Roman law, canon law certainly had every opportunity to be informed both by Revelation and by the law of the Romans.68 Of course, according to Montesquieu’s principles, civil laws cannot prescribe punishment for religious infractions (12.4). His conclusion here that such punishment would “open the door to all crimes” suggests that by pursuing with criminal penalties the crime of apostasy, such a civil law brings in a multitude of other crimes; the punishments such a law exacts would themselves be crimes (12.17, 202). Having declared earlier that “the ill [mal] came from the idea [idée] that the divinity must be avenged,” he here identifies the origin of that idea among Christians that proceeded to inform their law (12.4, 190; OC 2: 434). Although Montesquieu does not mention the fact here, this particular chapter of Deuteronomy was notorious for justifying the prosecution of heresy and hence of executions in Europe. For example, Robert Bellarmine, Jesuit archbishop and cardinal inquisitor, who sentenced Giordano Bruno to execution as a heretic, cited it: “We, then, will briefly show that incorrigible heretics, and especially recidivists, can and should be expelled by the Church and be punished by the secular powers with temporal punishments and even by death itself. The first proof is from Scripture: The Scripture of the Old Testament (in Deuteronomy XIII, 12) commands most severely that false prophets who encourage the worship of false gods be put to death.”69 John Calvin also made use of the passage when he justified the execution for heresy of Michael Servetus in Geneva in 1553. Calvin writes: “But, now let us hear something of the law God instituted in his church.” “He ordered that a prophet and dreamer of dreams be put to death, who attempted to lead the people away from the right worship of piety.” Now, “we contend to preserve the law set forth by God, so that the stricture of ascertained truth of punishments of the peoples should succeed.” Calvin cites Deuteronomy 13

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in support of his resolution.70 Calvin understands God as commanding earthly punishment for religious crimes. By contrast, as we know, Montesquieu teaches that religious crimes cannot result in such punishments. Moreover, in order to vindicate liberty, Montesquieu propounds the principle throughout book 12 that only actions—not thoughts, desires, vague and inconclusive writing or speech, or dreams—can furnish evidence for criminal conviction. He propounds these principles with respect not only to heresy but also to treason, crimes that the Roman laws and the Papacy, and hence Montesquieu himself, treat interchangeably. Montesquieu specifically objects to the use of thoughts as evidence in a case involving an attempt on a secular ruler. In the process, he offers his principle that only actions can provide the grounds for prosecutions of these crimes. This discussion occurs in a very brief chapter in book 12 entitled “On thoughts,” in which he recounts a story from Plutarch that tells of a man who dreamed that he had cut the throat of the despot. As a result of a mere dream, the despot, in reality, put the man to death. This punishment, declares Montesquieu, “was a great tyranny,” and he explains that “even if [the man] had thought it, he had not attempted it” (12.11, 197). The story may derive from antiquity, but Montesquieu’s conclusion surely has implications for modern times. Inquisitions and prosecutions for heresy investigate the same crime and also use thoughts illegitimately as evidence. Montesquieu concludes this chapter on thoughts with a forthright pronouncement against the use of thoughts as evidence in trials: “Laws are charged with punishing only external actions” (12.11, 197).71 The conscience is free, Montesquieu declares. In the immediately subsequent chapters, Montesquieu offers dictates that serve to circumscribe the use of speech and writings in human tribunals. He notes in the chapter “Des paroles indiscrètes,” for example, that “[s]peech [les paroles] does not form a corpus delicti: it remains only an idea [l’idée].”72 Referring to how “equivocal” the meaning of speech can be, he says: “Silence sometimes expresses more than any speech [tous les discours].” He then proceeds to delineate his own rules of evidence: Actionable acts are not an everyday occurrence; they may be observed by many people: a false accusation over facts can easily be clarified. The words [Les paroles] that are joined to an act take on the nature of that action. Thus a man who goes into the public square to exhort the subjects to revolt becomes guilty of high treason [lèse-majesté], because the speech [les paroles] is joined to the act and participates in it. It is not speech [les paroles] that is punished but an act committed in which speech [les paroles] is used. They [Elles] become criminal only when

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they prepare, when they accompany, or when they follow a criminal act. (12.12, 198–99; OC 2: 442–43; I have corrected the translation.)

In the following chapter on writings, he notes that they “contain something more permanent than speech [les paroles], but when they do not prepare the way for the crime of high treason [lèse-majesté], they are not material to the crime of high treason [lèse-majesté]” (12.13, 199; OC 2: 443).73 When the ecclesiastical authorities viewed Montesquieu’s written words in The Spirit of the Laws as actionable, his critics used the very methods that he deemed impermissible in human tribunals. He writes in his Defense that although his accuser must admit that in some places the author of The Spirit of the Laws says some “‘very fine things about the Christian religion,’” his accuser would assert that the author does so only to “‘conceal [him]self.’” Montesquieu attributes to his accuser the assertions that “‘I know your heart, and I read your thoughts’”; ‘“I plumb the depths of all your thoughts’”; and “‘I hear very well what you do not say’” (OC 2: 1139; my translation).74 His accuser, Montesquieu charges, succumbs to the temptation to assume the powers of his divine exemplar and to read thoughts. But thoughts and desires and consciences are not the province of human tribunals, Montesquieu teaches. Certain religious ideas, which have led believers astray, would permit such despotic practices. Montesquieu undertakes to correct those ideas and hence to stimulate others to remedy those very practices.

CONCLUSION In surveying European society of his day, Montesquieu discerns the influences of Christianity that transcend the realm of religion. He takes a broad view of history, comparing the proud and ferocious vanquisher so often found in ancient history to the milder and more forgiving ruler of his day. He discerns the impact not only of benign Christian ideas, but also of virulent ones. The most virulent one, the one that results in burning of heretics, is the notion that human beings are responsible for avenging their God. The pursuit of such vengeance is surely fueled by righteous indignation. Montesquieu undertakes to quell that violence by teaching various principles regarding religious belief and criminal procedure. Most important among them are the principles that “one must make divinity honored, and one must never avenge it” and that religious infractions cannot be punished with criminal penalties (12.4, 190). He counters raging indignation with a soothing, but transformative, teaching. His purpose, he says, is to unite the

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purposes of religion with those of society. He serves society by protecting the liberty and security of individuals; he serves Christianity by attempting to cure its hypocrisy so that its critics can no longer say that its authorities are “barbarians” who are “corrupted by gross ignorance” (25.13, 491–92). In this manner, he fulfills his announced intention to unite religious and political interests and in the process to help rid Europe of some despotic ideas (cf. 24.1).

chapter four

The Ideas of Early Christianity, Their Absorption in Roman Law, and Their Abusive Reverberations in Modern Europe

T

he previous chapter takes as its point of departure Montesquieu’s explicit assessment of the impact of Christian ideas on modern Europe; this one takes as its starting point his treatment of early Christian ideas. After all, as the previous chapter shows, for Montesquieu old ideas matter, as his examination of criminal punishments inflicted for religious belief leads him from the mistaken “idea that the divinity must be avenged” (12.4, 190) back to the injunction in Deuteronomy to stone those—even one’s closest relatives—who abandon the one true God for “other gods,” which he condemns as a notion that would “open the door to all crimes” if it were made a “civil law” (12.17, 202). Despotic ideas can linger in old volumes, scriptures, and digests, seemingly forgotten but, in fact, only dormant, ready to be revived to justify despotic practices anew. Montesquieu’s consideration of Emperor Constantine’s motivation for converting to Christianity, on which chapter 3 briefly touched, is just one instance of many in which the author examines the history and doctrines of early Christianity. He displays remarkable erudition as he takes a particular interest in the manner in which Christianity spread, established its doctrines, and asserted itself not only against paganism but also against various Christian heresies within the formerly pagan Roman Empire. His references trace how the religion was first opposed by and then combined with the laws of the Roman Empire. Indeed, he puts particular emphasis, as this chapter will show, on the laws that the Christian emperors promulgated to promote their religion and to bolster their own power. Two of these emperors, Theodosius II and Justinian, compiled the digests of Roman law— “les constitutions des empereurs” (23.21; OC 2: 706). As a result of their efforts at jurisprudence, Roman law, filtered through the legislation of early Christian rulers, persists in Europe and continues to emerge in various ways 111

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in the seventeenth and eighteenth centuries—Montesquieu’s own age—to provide the justification for abuses and despotic acts, Montesquieu shows. In examining and critiquing the Christian approach to and effect on Roman law, Montesquieu treats not merely the political rulers, who had become Christians, but the thinkers and leaders of the Church, who themselves formulated Christian ideas—ideas that the rulers then codified in the laws. Although the starting point of this chapter is Montesquieu’s treatment not of his own age but rather of distant ones, he remains focused on the effect such ideas can continue to have on the European situation. This chapter, in analyzing Montesquieu’s consideration of Christianity’s early effects on Roman law in The Spirit of the Laws, focuses on two particular facets: the Christian rulers’ revival of the association of treason with sacrilege, which Rome’s first emperor, Augustus, inaugurated; and the Christians’ pursuit of perfection that culminated in laws regarding marriage that endeavored to encourage celibacy. Montesquieu condemns both. With regard to the former facet, he finds gross violations in the Christian emperors’ criminal legislation linking treason and sacrilege, which he terms “a violent abuse” (12.8, 195). Moreover, it is in the legislation of these Christian emperors that he finds the precedent and hence the legal justification for the barbaric punishment of religious crimes in the Europe of his time and in earlier centuries. In this manner, the injunction of Deuteronomy to punish defectors from God most violently—what Montesquieu says “cannot be a civil law among most of the peoples that we know because it would open the door to all crimes” (12.17, 202)—was introduced into canon law. When Pope Innocent III deemed heresy high treason, thereby formulating one of the justifications for the inquisitions, he drew on these very Roman laws contained in the constitutions of the Christian emperors. Herein one finds the legal precedents for the perpetuation of those particularly ugly despotic practices regarding heresy that Montesquieu depicts in 25.13 and 12.4. But these despotic facets of criminal law concerning treason, which the Christian emperors transmitted in Roman law, also serve the purposes of monarchs by deeming their person sacred. As we have seen in the previous chapter, Montesquieu displays the “mal” that arises from the “idée” that human beings should attempt to vindicate perceived insults to God (12.4; OC 2: 434). Those ills multiply, however, when rulers associate themselves and even their ministers, whether religious or secular, with the divine, and thus punish slights to human rulers with the same vengeful ire that lèse majesté divine inspires. Thus, Montesquieu shows that the abusive decrees of these emperors contained in these codes can be applied at the discretion of rulers in modern Europe who wish to appeal to them, and, in-

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deed, accusations of treason followed by executions marked both the theory and the practice of France’s absolute monarchy in the seventeenth century.1 Montesquieu explicitly condemns the actions of Richelieu in such a case. Abuses, both religious and secular, linger in the precedents of Roman law to be recalled and applied anew. With respect to the latter facet of Christianity’s early effect on Roman law, Montesquieu traces the early Christians’ attempts at legislating perfection. These attempts, he suggests, undermined human flourishing in this world, which he associates with populousness. This particular endeavor of the Christians aims at perfection, but “succeeds only in giving victims . . . not a sacrifice to god” (26.9, 504). In seeking such perfection, Constantine, Theodosius, and Justinian repealed Augustus’s legislation that encouraged a devastated Roman population to marry and to raise children. Some traces of the laws of the Christian emperors, Montesquieu indicates, still persist in certain provisos in French law that discourage widows to remarry. Montesquieu condemns the Christian legislators for abrogating the finest part of the civil provisions of the Roman law—those which concern marriage—and for reviving the harshest aspects of its criminal laws. Therefore, the digests of Roman law serve as a depositary of despotic ideas from which authorities can continue to draw. These seemingly distant ideas and laws, Montesquieu shows, continue to exert their influence on current thinking and practice. The fact that Montesquieu found himself having to defend many of his passages that treat these laws against condemnation by Church authorities underscores the continuing relevance for Montesquieu’s time of what might appear to a contemporary reader of The Spirit of the Laws as arcane details of long-forgotten controversies.

THE DEVELOPMENT OF THE CHRISTIAN RELIGION IN OPPOSITION TO AND IN COOPERATION WITH THE ROMAN EMPIRE Although the development of Christianity and its effect upon law in Europe can in no way be said to dominate The Spirit of the Laws, Montesquieu provides a wealth of information as well as commentary on this particular topic. He comments not only on Constantine, but also on Julian, the emperor who attempted to roll back the epochal change his predecessor had made. He also refers to Christianity’s various heresies, recounting the effect of Arianism in the Roman Empire. He reports the decisions of its early Church councils, referring in passing, for instance, to the Ecumenical Council of Ephesus in 431 CE that “decided that one could call the Virgin

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the Mother of God” (25.2, 480; emphasis in original). He displays particular interest in the laws of Theodosius II and Justinian, whose compilations of Roman law influence the subsequent development of law on the European continent, an influence that continues even in Montesquieu’s time. In a few discussions Montesquieu touches on the mutual hostility between pagan philosophy and the Christian religion. For example, one of Christianity’s greatest apparent setbacks in its conversion of the peoples of the Roman Empire was the reign of the pagan emperor Julian, nephew of Constantine. He was born a Christian but had studied pagan philosophy and religion beginning in his youth.2 Upon becoming emperor, he announced that, unbeknownst to his supporters, he was, in fact, a pagan. Thereafter known to Christians as Julian the Apostate, he furthered the cause of paganism and attempted to hinder Christianity’s advance during his brief reign. In addition to providing Julian’s “bitter mockery” of Constantine’s conversion in 24.13, Montesquieu in the context of lauding Stoicism and the political men who adhered to its tenets pauses to lavish particular and emotional praise on this pagan: “Let us momentarily lay aside the revealed truths; seek in all of nature and you will find no greater object than the Antonines; Julian even, Julian (a vote thus wrenched from me will not make me an accomplice to his apostasy); no, since him there has been no prince more worthy of governing men” (24.10, 466). To claim that Julian the Apostate surpasses all other princes in worthiness Montesquieu suppresses the fact that Julian was the bitterest enemy of Christianity. But Montesquieu, before delivering his panegyric, enjoins his readers to lay aside their adherence to Christianity’s revealed truths. Montesquieu’s admiration for this pagan prince, adherent of ancient philosophy and foe of Christianity, reveals both his interest in the historical details of Christianity’s ascension in the Roman Empire and his own attachment to the forces that tried to conserve the pagan past against the inexorable tide of Christianity.3 His particular attachment to a sect of pagan philosophy and its conflict with Christianity is underscored in this same context when he declares that “if I could for a moment cease to think that I am a Christian, I would not be able to keep myself from numbering the destruction of Zeno’s sect among the misfortunes of human kind,” as “it alone made great emperors” (24.10, 466). His pronouncements disparage both the Christian emperors and Christianity’s effect on them.4 Montesquieu also refers to the conflict between Christianity and paganism when, after the fall of the Western Empire, Emperor Justinian was transforming the Byzantine Empire with great feats in war, architecture, governmental organization, and jurisprudence. When speaking of the form

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of polygamy to be found in Persia, Montesquieu makes a causal reference to Justinian, noting that “[i]n the time of Justinian many philosophers who had been hampered by Christianity withdrew to the court of Chosroes in Persia” (16.6, 268). He refers in the body of his text to Agathias’s commentary, and his note provides the title of the work he cites, Of the Life and Actions of Justinian, and even a specific page number of the edition he consulted. Montesquieu’s source notes that one prominent reason the philosophers became intrigued with Persia was that they had been “forbidden by law to take part in public life with impunity owing to the fact that they did not conform to the established religion.”5 The law to which Agathias refers is Justinian’s edict in 529 that made it illegal for adherents of paganism to teach, which “resulted in the closure of the Academy in Athens” and the departure of the philosophers for the East.6 In addition to referencing in The Spirit of the Laws the hostility between Christianity and paganism at this time, Montesquieu acknowledges the controversies raging within Christianity itself. For example, one major controversy was the contention between the doctrine of Catholic Christianity established at Constantine’s Council of Nicaea in 325 CE and that of the Arians.7 The Arians denied the mystery of Christ’s equal status with God the Father. They maintained that having been created later, the Son could not partake of the divine nature from all eternity. The Christian emperors who succeeded Constantine did not always strictly adhere to the doctrine articulated by his Council of Nicaea. As a result, some of the earliest barbarian invaders of the Christianized Roman Empire became Arians and so remained for the succeeding generations.8 The Franks, who entered the empire later, embraced the Nicene creed, which formed the basis of Catholic doctrine and which had prevailed by that time. Indeed, Clovis, the first of the Frankish kings to accept the Christian faith, became a Catholic. Montesquieu acknowledges this contest between Arianism and Catholicism in The Spirit of the Laws when he refers to the fact that the Catholic bishops welcomed the conversion of the Franks to their creed as a means of undermining the Arian rulers: “If some Catholic bishops wanted to use the Franks to destroy the Arian kings, does it follow that they desired to live under barbarian peoples?” (28.3, 537). The bishops’ promotion of the rule of the Franks, Montesquieu suggests, was merely instrumental to the bishops’ goal of making the Catholic creed predominant. Such discussions and references on Montesquieu’s part establish his alertness to the character of Christianity’s earliest ideas and hence to the character of the changes it wrought in the lands of Europe. Of particular interest to Montesquieu are the changes in the laws that came with Chris-

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tianity’s ascendancy in the Roman Empire. These changes are contained in what he refers to as “les constitutions des empereurs” (23.21; OC 2: 706; see also 12.8; OC 2: 439). One such constitution is the Theodosian Code, which was commissioned by Emperor Theodosius II and promulgated in 438 CE in both the East and the West under Theodosius’s name as well as that of his colleague in the West, Emperor Valentinian III. Because the Theodosian Code contains only the imperial laws issued from Constantine’s reign until the time of its publication, this compilation contains exclusively the laws of the Christian emperors, and thereby serves Montesquieu as a frequent source of Christian laws, particularly of Constantine’s. At one place, he describes its character and its significance: “Christianity gave its character to jurisprudence, for empire always has some relation to priesthood. This can be seen in the Theodosian code, which is but a compilation of the ordinances of the Christian emperors” (23.21, 448). For Montesquieu, then, the Theodosian Code contains early Christian jurisprudence. The other “constitution” belongs to Justinian, who ruled the Byzantine Empire from 527 to 565. Justinian’s achievement is the Corpus Juris Civilis, which contains the Code, all the valid Roman laws from the origins of Rome to Justinian’s time; the Digest, a collection of legal commentary; the Institutes, extracts of the other two works to serve as a textbook for students of the law; and the Novellae, Justinian’s laws promulgated after the publication of the Code. In his Considerations on the Causes of the Greatness of the Romans and Their Decline, Montesquieu refers to the Corpus Juris Civilis as a “monument that still exists among us.”9 At one place in The Spirit of the Laws, Montesquieu explains how this legal monument came to exist among his contemporary Europeans. It had been lost with the collapse of the Western Empire, but when “the Digest of Justinian was discovered around the year 1137, Roman right appeared to be reborn.” He explains that as a result of the recovery of this work, “[s]chools were established in Italy to teach it; the Code of Justinian and the Novellae had already been found.” He further explains that Italian “docteurs” brought the “right of Justinian into France” and that Saint Louis “sought to give it a standing by having translations made of the works of Justinian, which we still have in manuscript in our libraries” (28.42, 596; OC 2: 858).10 From this point on, the territories that had been conquered by the barbarians guided themselves by Roman law that had been modified by the Christian emperors.11 Justinian’s accomplishment of compiling Roman law would appear to be a benefit for society. Montesquieu, however, is quite critical of this legislator as he uses in The Spirit of the Laws Procopius’s condemnatory depic-

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tion of Justinian and his reign to conclude on the basis of this history that “[e]veryone knows how judgments, and even laws, were sold” at his court (6.5, 80).12 In this manner, Montesquieu certainly questions the goodness of at least some of the laws contained within Justinian’s masterwork. Nevertheless, as Justinian’s Code contains the entirety of the valid Roman laws from the early kings, the republic, and the empire, it is a constant resource for Montesquieu as he details the history of Rome; his citations to it appear throughout the entire work. He also cites the constitutions of both emperors, Theodosius II and Justinian, to show the effects that Christianity had on Roman law.

THE EARLY CHRISTIAN EMPERORS AND THE OLD JULIAN LAWS CONCERNING TREASON AND SACRILEGE Montesquieu manifests an extreme concern for the crime of high treason in The Spirit of the Laws. He issues his stern warnings about this crime not from the standpoint of the security of the state, but rather from that of the individual. “Vagueness in the crime of high treason [lèse majesté] is enough to make government degenerate into despotism [despotisme],” he cautions (12.7, 194; OC 2: 438).13 Within his broad concern with arbitrary charges of this grave crime (12.9 and 12.12), he lingers over and repeatedly returns to a particular abuse of European criminal law relating to treason—that of its association of treason with sacrilege. A consideration of his treatment of treason and sacrilege as it comes to view in his presentation of the transition from pagan to Christian Rome reveals his keen awareness that this problematic association in the civil law—as opposed to Scripture—originates in the pagan Roman Empire and that it was promulgated anew by later Christian emperors. The Roman law—both pagan and Christian—equates treason and sacrilege, and these abusive precedents guide contemporary European practice, Montesquieu shows. Montesquieu broaches in book 7 on “sumptuary laws, luxury, and the condition of women” this decidedly dark side of the Julian laws, noting that their criminal provisions pronounce on “women’s debaucheries” (7.13, 107 and 96). Having observed that the Romans’ mores changed in the transition from a republic, where stricter mores generally prevail, to a monarchy, where less restrictive mores are common, Montesquieu explains that “dreadful excesses of the mores obliged the emperors to make laws to check immodesty at some point.” Accordingly, Augustus and Tiberius rendered “rigid judgments,” he notes, and then he offers this analysis: “Augustus and Tiberius thought principally of punishing the debauchery of their female

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relatives. They did not punish dissolute mores but a certain crime of impiety or of high treason [un certain crime d’impiété or de lèse-majesté] that they had invented, which was useful both for instilling respect and for taking revenge” (7.13, 107–8; OC 2: 345–46). These emperors intended to instill fearful respect in the objects of their vengeance. His comment reveals how in their laws the two crimes are already so interchangeable; Augustus and Tiberius “invented” their equation, Montesquieu explains. The origin of this equation in the law, which persists in Europe, derives, then, not from an accusation of a crime against God, but rather from one against a Roman emperor, who holds simultaneously the highest religious office—that of pontifex maximus—and who would be deified after death. The equation derived not from an effort to stigmatize the one accused of unorthodox religious beliefs with a charge of undermining the supreme ruler of all, but rather from a desire to condemn with a criminal charge of the highest possible magnitude those who committed a decidedly secular and relatively mild infraction relating to fidelity in marriage. In the pagan empire, to demean the emperor, the ruler who would be deified, was a crime of both treason and impiety, Augustus and Tiberius decreed. This was a harsh and overly broad way to control the profligacy of their female relatives, Montesquieu observes. Montesquieu’s commentary on this law of adultery illustrates how a legislator can be driven by a spiteful passion directed at particular individuals and blinded by too exclusive a focus on the object of his correction (cf. 6.12). In a note to this passage, he furnishes Tacitus’s reproving commentary that Augustus “‘overstepped the clemency of our ancestors and that of his own laws,’” when the emperor called “‘a common fault between men and women by the serious names of sacrilege and treason’” (7.13, 108n32).14 Montesquieu elaborates on the purpose of these severe laws, explaining that in these times “[o]ne wanted pretexts for accusing the important men, and women’s misconduct provided innumerable ones” (7.13, 109). These emperors failed to consider how the pursuit of vengeance against their relatives as well as their enemies would result in confusion in the laws, bestowing grave punishments for those convicted of relatively minor infractions in the generations to follow. Indeed, although Montesquieu condemns these pagan emperors in harsh terms, he finds the precedents that their laws on high treason and heresy established, when applied in the Christian dispensation, particularly significant.15 In the series of three chapters in book 12 entitled “On the wrong application of the name of crime of sacrilege and high treason [de crime de sacrilège et de lèse-majesté],” Montesquieu attacks specific laws contained

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in the Code of Theodosius and the Code of Justinian but first propounded by earlier Christian emperors (12.8, 195; OC 2: 438). Referring to his statement in the previous chapter that “[v]agueness in the crime of high treason” can cause a government to “degenerate into despotism” (12.7, 194),16 he opens the first chapter of this series with the declaration of his principle: “It is also a violent abuse to give the name of crime of high treason to an action which is not one” (12.8, 195). As we know, abuses are precisely what Montesquieu endeavors to reveal, to analyze, and to display in order to teach people to revile and to recoil from—so as to correct—them. Remediation is, in fact, needed for this particular violent abuse, which he proceeds to examine, because Montesquieu shows how, although they were promulgated long ago in the constitutions of the Christian emperors, their precedents still claim victims in modern times. Montesquieu broaches the specific connection between treason and sacrilege that the chapter title announces when he notes: “A law of the emperors pursued as sacrilegious those who called the prince’s judgment into question and doubted the merit of those he had chosen for certain employments” (12.8, 195). Those who in any way challenged the majesty—nay, the inviolability—of the emperor were seen as having committed sacrilege. In order to make such a charge, the law assumes that the emperor himself is a divine entity. Given this emphasis on the divinity of the emperor, a reader might too readily assume that this particular violent abuse belongs to the time of the pagan emperors, to the divine Augustus, for example, whom Montesquieu shows in book 7 making this same type of equation between treason and impiety. The first of the two notes Montesquieu appends to this particular sentence rectifies any faulty assumption that might be drawn in this regard, however, as he specifies in it that the perpetrators of this particular abuse are the emperors “Gratian, Valentinian, and Theodosius,” whom he names only in the note (12.8, 195 and n. 16). These emperors, though, are Christians rather than pagans, and Theodosius I is of particular importance in the history of Christianity in the empire as he put an end to the Arian controversy and criminalized heresy.17 Therefore, these particular emperors are responsible not merely for reiterating a capacious definition of treason, but also for criminalizing heresy and equating it with the gravest political crime, treason. The violence that Theodosius’s actions unleash on heretics illustrates the propensity, which Montesquieu identifies, of “every religion which is repressed” to repress in turn; “for as soon as, by some chance, it can shake off oppression, it attacks the religion which repressed it” (25.9, 487).18 Montesquieu also condemns a similar law belonging to the sons of The-

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odosius I, Arcadius and Honorius, who were the emperors of the East and the West, that declared that those who made an attempt on the prince’s ministers and officers were guilty of the crime of treason, as if they had made an attempt on the prince himself. These laws on treason that Montesquieu finds so condemnable continue to affect him as well as other Frenchmen in the recent past, he shows.19 He facetiously speaks in the first person of a debt that unites both him and his readers to these imperial rulers as a consequence of these most regrettable ramifications: “We owe this law [Nous devons cette loi] to two princes.” He justifies his suggestion of this significant and continuing impact when he reports that, in France in the century prior to his own, those who prosecuted “M. de Cinq-Mars,” Henri Coiffier de Ruzé, for treason because he attempted to remove “Cardinal Richelieu from matters of public business” appealed to this very old law. Montesquieu quotes the prosecutor: “‘By the constitutions of the emperors the crime touching the person of the prince’s ministers is counted of the same weight [poids] as one affecting the prince’s person. A minister serves both his prince and his state; if he is removed, it is as if the former were deprived of an arm and the latter of a part of its power’” (12.8, 195; OC 2: 439). At the word “arm,” Montesquieu inserts a note in the text quoting the Latin of the law, which reads, “For they themselves are a part of our body,” to corroborate the connection between this seventeenth-century prosecution and the Justinian Code that contains this law of Arcadius and Honorarius.20 Richelieu at the time of the conviction and execution of Cinq-Mars was prime minister of Louis XIII of France and also, of course, a minister of the Catholic faith, who played the primary role in identifying and revealing the conspiracy of Cinq-Mars and overseeing the fate of the accused. Such ministers, by their close proximity to rule, bask in the luster of the emperor or king, receiving the fearsome protection that comes from being seen as an extension of the very body of the ruler. Montesquieu comments scathingly of this reasoning that identifies the minister with the ruler and prosecutes attempts on both as high treason: “If servitude herself arrived on earth, she would not speak otherwise” (12.8, 195). In this manner, he shows how the condemnable ideas of the Christian Roman emperors and their ministers, by being codified into Roman law, linger so as to be revived and reapplied by the untimely appeal to their precedent. Thus restored by such an appeal, these old laws create new abuses, setting the standard by which servitude itself is measured.21 Montesquieu teaches that because anyone with “power is led to abuse it” until that person finds limites, power must arrest power (11.4, 155; OC 2: 395 and 5.14). If power is not to be abused, then those actors who challenge political

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authority—those who endeavor to set the very limits Montesquieu sees as critical to the maintenance of a moderate government—cannot be subject to such arbitrary accusations and extreme punishments. Just as Montesquieu disapproves of avenging slights against divine entities, so too does he condemn those who with the same degree of ire seek to avenge slights against, questioning of, and challenges to human authority. Montesquieu shows, however, that there was a historical alternative such that Roman law need not have taken this extreme course, an alternative that he illustrates fulsomely in the middle chapter of this series. After Augustus and Tiberius promulgated their laws on tyranny and before the Christian emperors made their additions to them, some admirable pagan emperors undertook to moderate the harshness of the Julian laws that equated high treason with sacrilege. These successors offered explanations in pointed and poignant terms for their clemency, and Montesquieu quotes their statements. For example, he relates that under Alexander’s rule in 223 CE, a minister intended to prosecute as a traitor, under the Julian laws of treason, a judge who had ruled against the emperor’s orders. Rather than furthering such a prosecution in order to vindicate his inviolability and majesty, Emperor Alexander quashed it with the notice that “‘in a century like this, indirect crimes of high treason [les crimes de lèse-majesté indirects] had no place.’” In the note to this passage, Montesquieu provides the Latin of the Justinian Code, noting that it derives from the section “ad legem Juliam maiestatis” (12.9, 196 and n. 23; OC 2: 440 n. a). Alexander, therefore, is amending the criminal ordinances of the Julian law that Augustus and Tiberius legislated. Similarly, Montesquieu provides another example of the same emperor’s clemency evident in his response to a subject who had sworn on the emperor’s life that he would never pardon his slave for a particularly galling infraction. By having so sworn on the emperor’s life, this Roman master needed to refuse pardon to this slave even after his anger had subsided, so as not to be guilty of “the crime of high treason.” Relieving the subject’s concern for committing so grave a crime in an act of forgiveness, Alexander responds that “‘Your terror has been empty and you do not know my maxims.’” Again, Montesquieu furnishes in the note the reference to the same section heading of the Julian law of the Justinian Code and provides the law in Latin (12.9, 196 and n. 24; OC 2: 440 n. b). Alexander’s response, which Montesquieu provides, reveals the emperor’s magnanimity; in this instance it is informed by his general maxims. These two laws of Alexander are the first and second laws under the same heading of the Justinian Code under which the law of Arcadius and Honorius that offers such wide-ranging immunity to ministers is the fifth. Thus, Theodosius’s

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sons are specifically rejecting the laws of Alexander and their ameliorating tendencies. Alexander sought to calm fears rather than to heighten them by contracting rather than expanding the laws of treason. The Christian emperors whom Montesquieu condemns chose not to follow this moderate precedent that had been established and was thus available to them. Thus, in their own turn, French rulers have chosen the harsher rather than the milder precedent. As we have seen, Montesquieu believes that European lands have promoted arbitrary power through their embrace of execrable laws on sacrilege and high treason.

SPECULATION, CONTEMPLATION, AND THE CHRISTIAN “IDEA” OF PERFECTION Montesquieu disparages the beliefs and practices of various cultures that distract people from engaging in what he regards as the necessary work of human life. “The cultivation of land is the greatest labor of men,” and, in his view, “religion and laws should rouse them to it” rather than divert them from it (14.6, 236). In order to rouse human beings to these mundane but nevertheless fundamental matters, he expresses concern with speculation, contemplation and the pursuit of perfection. Agricultural work is much more difficult in some climates than in others, and he finds that in hot climates a general malaise supports monasticism and speculation. He finds such outcomes not only in faraway Asia but also in nearby southern Europe. With the establishment of monasticism, speculation, and contemplation also comes the unproductive focus on perfection, which seeks to flee entirely the attributes of the human, a tendency that he finds particularly harmful. He is initially more forthcoming about identifying the ideas of perfection among distant peoples, but ultimately, as his analysis continues, he makes it clear that Christian teachings too display this same impulse toward perfection that he finds undermines the proper focus on earthly pursuits.22 Montesquieu proves to be a quite vocal critic of monasticism, which he finds supportive of a general laziness. The monks form a type of aristocracy who live surrounded by “immense wealth” and are themselves idle. Even when they are generous with their goods, they undermine human flourishing, as such generosity fosters an idleness among the common people who thereby learn to “love their very poverty.” He declares that monasticism “was born in the hot eastern countries where one is given to action less than to speculation.” Hot climates foster thought—and unproductive thought—rather than productive action. He finds them not only in “Asia,”

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where “the number of dervishes, or monks, seems to increase with the heat of the climate,” and “the Indies,” “where it is extremely hot” and therefore “full of them,” but also in “southern Europe,” where “the laws” “give to those who want to be idle places proper for the speculative life” (14.7, 237). Here Montesquieu explicitly associates Europe—albeit southern Europe— with this sterile religious practice. In such places human beings allow themselves to be subjugated to the climate in a manner that allows an unproductive priestly class to predominate. In this manner, climate and despotic ideas join forces to rule, assuring the penury of the masses. Not only does Montesquieu associate speculation with religious pursuits, he also later associates it with philosophical ones. In a chapter that treats the transition from pagan to Christian Rome, he mentions the fact that “[s]ects of philosophy” introduced into Rome “a spirit of distance from public business.” “From it came an idea of perfection [une idée de perfection] attached to all that leads to a speculative life” (23.21, 447–48; OC 2: 705). In this manner, he associates speculation with an idea of perfection. Montesquieu first broaches the topic of the pursuit of perfection in The Spirit of the Laws in the context of his discussion of a religion of the Indies and the general enervation that a hot climate produces in people subjected to it. He notes in this context the necessity of a good legislator who overcomes the vices that derive from such a harsh physical environment. In a note to this discussion, Montesquieu points to a legislator—a religious legislator—who rather than countering the climate’s effects succumbed to them: “Foë wants to reduce the heart to pure emptiness.” To corroborate his understanding of Foë’s intention, Montesquieu quotes this “legislator of the Indies” as proclaiming: “‘We have eyes and ears, but perfection consists in not seeing or hearing; perfection, for those members, the mouth, hands, etc., is to be inactive’” (14.5, 236).23 Montesquieu thus describes Foë’s notion of perfection as a type of nothingness, and in this way, Montesquieu’s first use of the word “perfection” in The Spirit of the Laws associates it with the teachings of a religion. Montesquieu also takes up the topic of perfection in a chapter entitled simply “On contemplation” in his first book devoted to religion. Here again Montesquieu emphasizes the necessity to focus on the earthly rather than on the transcendent, the mundane rather than the exalted: “Men, being made to preserve, feed and clothe themselves, and to do all the things done in society, religion should not give them an overly contemplative life.” He warns against what he discerns as the vice of excessive contemplation—a vice to which religious teachings can give rise. Human life requires concerted endeavor—both reflection on and activity in this world, according

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to Montesquieu. His note to this passage specifies that the positing of an overly contemplative life “is the defect in the doctrine of Foë and of Laockium” (24.11, 466 and n. 7).24 These are the religious legislators who encouraged the pursuit of perfection. Montesquieu does not broach Christianity’s relation to contemplation and its own pursuit of perfection in this chapter, but he does move from Buddhism and Taoism here to an Abrahamic religion when he proceeds to note that the “Mohammedans become speculative by habit; they pray five times a day, and each time they must do something that makes them turn their backs on all that belongs to this world: this forms them for speculation” (24.11, 466).25 Thus, Montesquieu links speculation, contemplation, and the pursuit of perfection to such religious practices. Montesquieu warns against too deep an engagement with divine matters; he discourages all forms of contemplation of an alternative world, a perfect world by whose light ordinary and pressing human needs are minimized or disparaged. In the context of his consideration of the pursuit of such perfection, Montesquieu differentiates religious ideas from those that should inform the law that guides society, concluding: “Thus, however respectable may be the ideas [idées] which spring immediately from religion, they should not always serve as principles for civil laws, because civil laws have another principle, which is the general good of society” (26.9, 502; OC 2: 759). The pursuit of the perfection of the individual, he suggests, entails a disregard for the concerns of society. He notes here that one religion in particular furthers the purposes of society and therefore must be designated as an exemplary civil religion. “The religion of the Ghebers formerly caused the kingdom of Persia to flourish,” he notes, and adds that “it corrected the bad effects of despotism: today the Mohammedan religion destroys that same empire” (24.11, 467).26 In these particular discussions Montesquieu does not explicitly link Christianity to the destructive pursuit of perfection, but rather insinuates such a link by way of his treatment of an Abrahamic religion.

CHRISTIAN PERFECTION AND THE LAWS OF MARRIAGE Montesquieu finds that one particularly salient way in which the early Christians pursued the perfection of the individual was through their intense and persistent promotion of celibacy. Their pursuit put them in direct opposition to the laws of pagan Rome, particularly the laws that Emperor Augustus promulgated, the Lex Papia and Poppaea and Lex Julia, which, in Montesquieu’s analysis, “became a code of laws and a systematic body of

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all the regulations that could be made on this subject” of marriage (23.21, 443). Seeking to increase the population after the devastations of Rome’s wars, both foreign and domestic, Augustus offered this legislation as a remedy “from which nothing was omitted that could encourage the citizens to marry and have children” (27.1, 529). Later the “fathers” of the Church “censored them, doubtless with a commendable zeal for things of the next life, but with very little knowledge of the business of this one,” Montesquieu comments quite critically (23.21, 443). In this manner, these early Christians placed themselves in opposition to the laws of the Roman Empire, and Montesquieu himself places himself in opposition to this Christian endeavor, as he declares his admiration of these particular laws of Augustus; they “form the finest part of the Roman civil laws,” he affirms (23.21, 443). Therefore, the Julian laws receive both his great praise and his great blame, as Augustus also propounded under the title Lex Julia those notorious laws concerning the behavior of women that collapsed the distinction between crimes of treason and sacrilege. Montesquieu examines the long effort of the Christians to overturn the Roman laws regarding the family, tracing their initial efforts, describing the actions and determinations of the Christian emperors, and recounting the harried actions of a Church father who attempted to enforce such strictures. The Frenchman’s treatment of their changes to the Roman laws concerning marriage depicts these Christians as promulgating laws that interfere with human flourishing. He displays his own form of persistence in opposing these noxious ideas of the Christians on perfection and celibacy as he examines and criticizes them in five successive books, 23–27, of The Spirit of the Laws. At his most pointed, he claims that the provisions of these Christian emperors gave victims to God. He does not speculate on whether God benefits from such sacrifices, but he is clear that neither the individual nor society benefits from the Christians’ adamant pursuit of this form of perfection for the individual. The Christian idea of perfection persists in Montesquieu’s own time not only in the rules of celibacy for those individuals consecrated to the Church, but also in contemporary legal formulations deriving from Roman law that give preference to inheritors who remain unmarried. The Christian notion of perfection, which infuses the Roman law, still exerts its harmful influence on contemporary Europeans, he shows. In a chapter in book 26 entitled “The things that should be ruled by the principles of civil right can rarely be ruled by principles of the laws of religion,” Montesquieu recounts in some detail how the Christian emperors, impelled by their devotion to Christianity, dismantled the Papian laws as they relate to divorce (26.9, 502). As the laws of the Christian emperors

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serve as his only topic in the chapter and he criticizes them unremittingly, it is clear that their attempts to legislate in favor of their religion are no exception to the general rule that his chapter title provides. Montesquieu explains in this chapter that laws regulating the mores of women can be “political institutions,” such as the stern laws of the Roman republic, or civil laws, such as were introduced when Rome became subject to the emperors (26.9, 502; cf. 7.9–12). Elsewhere in the same book he maintains that “of all human acts [actions] marriage is the one that is of the most interest to society.” Here the thinker uses a superlative. Marriage is vital to the health of society as this institution provides for future generations. He understands that “in all countries and all times” “religion has occupied itself with marriages,” deeming some legitimate and others illegitimate, but he insists, given its vital importance to society, that marriage also be “ruled by civil laws.” The manner in which religion and the civil laws interact in various societies has an important effect on this most important of human “actions” (26.13, 505; OC 2: 762). He suggests how these orders of laws can be rendered compatible: “As one of the great objects of marriage is to remove all the uncertainties of illegitimate unions, religion impresses its character on it, and the civil laws join theirs to it so that it will have all the authenticity possible.” Religion can bring force to the demands of civil law. Ultimately though, he looks to the civil law as the decisive authority: “beyond the conditions demanded by religion for the marriage to be valid, civil laws can exact still others” (26.13, 505–6).27 Montesquieu indicates at the outset of chapter 9 that the Christians’ disdain for the old Roman laws on marriage arose from their pursuit of celibacy and that this practice, in turn, arose from their notion of perfection. He here introduces his detailed history of the emperors’ efforts with respect to the laws of divorce with the declaration: “The laws of perfection, drawn from religion, have for their object the goodness of the man who observes them, more than that of the society in which they are observed; civil laws, on the other hand, have for their purpose the moral goodness of men in general, more than that of individuals” (26.9, 502). The religious “laws of perfection” in question are the Christian that relate to celibacy; the “civil laws” are the Roman laws on marriage. This characterization on Montesquieu’s part of Christianity’s pursuit of celibacy as a form of perfection finds genuine support in Scripture. Christ, for example, enjoins his followers to perfection: “‘You, therefore, must be perfect, as your heavenly Father is perfect’”; and “‘If you would be perfect, go, sell what you possess and give to the poor, and you will have treasure in heaven; and come, follow me’”28 When the disciples ask Christ about

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remaining unmarried, he replies: “‘Not all men can receive this saying, but only those to whom it is given. For there are eunuchs . . . who have made themselves eunuchs for the sake of the kingdom of heaven. He who is able to receive this, let him receive it.’”29 Christianity taught celibacy as an ideal, but as a second best encouraged marriage.30 Montesquieu observes that when “the Christian religion arose,” it had a significant impact on the laws of marriage. Its “new laws” “had less relation to the general goodness of the mores than to the sanctity of marriage; there was less regard for the union of the two sexes in the civil state than in a spiritual state” (26.9, 503). In recommending marriage in this qualified sense, it thought of marriage less as a political and civil institution and more as a religious one, he concludes. In order to illustrate this aspect of Christianity’s effect on law, Montesquieu examines in this chapter the Roman laws concerning divorce. Montesquieu recounts how before the advent of Christian Rome, a woman whose husband was far away serving in war could easily divorce, “because the power to divorce was in her hands.” As a result of this power, her childbearing years would not have to be barren if her husband was long absent owing to his military service or even his unknown death in a faraway land. Constantine, however, limited the ability of an apparently desolate wife to remarry, demanding that she wait four years. Justinian made this law even stricter, refusing remarriage to a woman, however long her husband had been absent, if she did not first prove that her husband was, in fact, deceased. In establishing such a high standard for the possibility of remarriage, Justinian was assuming “a crime, that is, the desertion of the husband, when it was very natural to assume his death,” Montesquieu comments. The author then expresses his unalloyed disapproval: Justinian “had in view the indissolubility of marriage, but one could say that he had it too much in view.” Justinian’s concern with the indissolubility of marriage meant that his “law ran counter to public good by leaving a woman unmarried; it ran counter to particular interest by exposing her to a thousand dangers” (26.9, 503). By allowing his legislation to be guided by these Christian principles, Justinian undermined the very purposes of the civil laws concerning divorce, Montesquieu alleges. Although critical of this provision that prevented an army widow from remarrying, Montesquieu reserves his harshest criticism in the chapter for Justinian’s law that permitted married couples to divorce if both the husband and the wife consented to enter a monastery, which Montesquieu declares “was entirely removed from the principles of the civil laws.” Montesquieu specifies that “the fundamental principle of divorce . . . suffers the dissolution of one marriage only in the expectation of another.” Be-

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cause Justinian’s legislation enabled the spouses to dissolve their marriage and to reject the very possibility of any future ones in their mutual “desire to remain chaste,” this Christian emperor displayed a singular disregard for offspring. In comparing Justinian’s laws—the one that offered obstacles to the woman whose husband was lost in the Roman wars and the one that proffered a ready divorce for spouses who rendered themselves chaste oblates—one discerns Justinian’s purpose; Justinian’s legislation attempted to remake this world in light of the world to come. Montesquieu comments devastatingly of Justinian’s legislation: it “succeeds only in giving victims, but not a sacrifice to god” (26.9, 503–4).31 These intensifying efforts of these Christians illustrate the conclusion that he offers early in this chapter before he turns to the specifics of their undertakings: “Thus, however respectable may be the ideas [idées] which spring immediately from religion, they should not always serve as principles for civil laws, because civil laws have another principle, which is the general good of society.” Christianity’s “laws of perfection” in such matters of marriage and divorce derogate from the flourishing of society (26.9, 502; OC 2: 759). Montesquieu regards the Christians’ attempts to remake the marriage laws in their pursuit of perfection on earth as so significant that in each of the prior three books he examines this history from differing perspectives. In the immediately prior book, his second on religion, Montesquieu focuses on the current state of Christian ministers in Europe. His chapter “On the ministers of religion” begins with a general survey of how various religions across history and cultures treat their leaders. He notes that because the “worship of the gods required continual attention, most peoples were inclined to make the clergy a separate body.” Other peoples went even further: “There were even religions in which one thought not merely of withdrawing ecclesiastics from business, but even of relieving them of the encumbrance of a family, and this is the practice of the principal branch of Christian law [loi chrétienne].” By putting the Catholic religious laws dictating celibacy for the clergy and other consecrated orders on this continuum of universal religious practices, he ends by locating the Christian religion at an extreme. He proceeds to broach the effect on population of a law prohibiting classes of people from marriage, noting that “in countries that have few inhabitants, it has been admitted; in those that have many, one has rejected it.” He elaborates, drawing a distinction between the laws of Catholics and Protestants: “In the countries of southern Europe, where by the nature of the climate the law of celibacy is the most difficult to observe, it has been retained; in those of the north, where the passions are less lively, it has been proscribed.” He explains this apparent paradox with the

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reflection that “[b]y the nature of human understanding, we love in religion everything that presumes an effort, just as on the subject of morality, we love in theory all that has the character of severity. Celibacy has been more pleasing to the peoples whom it seemed to suit the least and for whom it could have the most grievous results.” He points directly to the possibility that such strictures could have a negative impact on society. As we know, he regards marriage as the human action in which society has the most interest (26.13). He concludes with a statement clearly designed to protect him against charges that he disapproves of the “Christian law” as it applies to the Catholic clergy: “One senses that all these reflections are only about the too great extension of celibacy and not about celibacy itself” (25.4, 483– 84). That may be the case, but he has more than broached the fact that this law of celibacy can have adverse effects on society.32 His concluding mollifying protestations cannot neutralize the venom of his preceding analysis. In book 24, his first book on religion, he also treats celibacy and its effect on individuals and society in a brief chapter entitled “On the laws [lois] of perfection in religion” (24.7, 464; OC 2: 719). He declares that when religion “gives rules, not for the good but for the better, not for what is good but for what is perfect, it is suitable for these to be counsels and not laws, for perfection does not concern men or things universally.” He warns that because “perfection does not concern men or things universally,” rules concerning “what is perfect” should be rendered as “counsels and not laws.”33 In other words, provisions that point toward perfection should be rendered only as recommendations that are in no way sustained by sanctions.34 Montesquieu cautions in this chapter not only against making religion’s pursuit of perfection a law for society more broadly, but even against applying such a law to a more rarified population such as those who are consecrated to the Church.35 If a law promoting perfection is applied even to such a subset of the population, then “there will have to be an infinity” of other laws “so that the first ones will be observed.” He adduces Christianity’s efforts on behalf of celibacy as an illustration of this point. He declares that “[c]elibacy was a counsel of Christianity.” But when it became “a law for a certain order of people, new laws had to be made every day in order to bring men to observe the first one.” By a “certain order of people” he means those who take religious vows. Through this constant need for additional legislation for this group of people to whom the law of celibacy applied, the “legislator tired himself” and, in turn, “tired the society.” Montesquieu fails to provide in either the body of the chapter or its notes the identity of the legislator who worked so continuously, but certainly not tirelessly, on behalf of celibacy for the clergy. He does, however, instruct his reader in his

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note to “see” the fifth volume of Dupin’s Bibliothèque des auteurs ecclésiastiques (24.7, 464 and n. 4). This volume is devoted to the Church’s leaders of the sixth century and tells of the efforts of Pope Gregory, who would be canonized as a saint and deemed a father of the Church, as he attempted to enforce the “laws” of celibacy on those in religious orders. Montesquieu’s source relates that Gregory had to apply the law to his subdeacons in Sicily when they had wives whom they had wed before they had taken their religious orders. Dupin comments that Saint Gregory found this particular law “hard and unreasonable.” This saint’s other efforts found him encouraging the bishop of Tarentum to resign because he kept a concubine; refusing to ordain a deacon bishop who had an infant daughter; and soliciting the civil authority against clergymen who kept women in their lodgings.36 Here are the details of the legislation that tired the legislator and the society, although Montesquieu’s source depicts Gregory as not so much a legislator as an implementer of the law. Montesquieu’s examination of the antagonism of the early Christian rulers for the Roman laws on marriage begins, in fact, in book 23 when the topic of the book, “laws in their relation to the number of inhabitants,” gives him occasion to examine in detail the changes that the new Christian dispensation brought. “Christianity,” he declares, “gave its character to jurisprudence.” The process began when the ruler of the Roman Empire, Constantine, embraced the teachings of Christ. “It is certain,” Montesquieu avers, “that Constantine’s changes were based either on ideas [idées] related to the establishment of Christianity, or on ideas [idées] drawn from its perfection” (23.21, 448; OC 2: 705). Ideas relating to its establishment would seem to entail notions of how Christianity is to become the dominant or exclusive religion, whereas the ideas relating to its perfection would seem to eschew these more practical concerns and relate only to its fundamental truths and purposes. These ideas deriving from Christianity, whether from its establishment or from its perfection, overturned many of the Roman laws, including those Montesquieu regards as the best of Rome’s civil laws—Augustus’s laws on marriage. Montesquieu furnishes as examples of Constantine’s legislation regarding “this first purpose,” which is the establishment of Christianity, the “laws that gave such authority to the bishops that they were the foundation of ecclesiastical jurisdiction” as well as those “laws that weakened paternal authority, by removing from the father the ownership of the children’s goods.” In order to propagate Christianity, Constantine gave to the Christian bishops an authority to judge controversies among individual Christians, thereby establishing canon law as a jurisdiction separate from the

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civil and criminal law of the state.37 Constantine also furthered the religion’s establishment by changing the ownership of property because “[i]n order to spread a new religion, one must take away the extreme dependence of children, who are always less concerned with what is established” (23.21, 448). Whereas parents are attached to the old ways, the young, not yet so established in society, are freer to embrace the new. Constantine took advantage of this fact to promote Christianity. By removing the property of the young from the oversight of their elders, Constantine gave the young much more freedom to act contrary to the wishes of their parents. One benefit to the Church of such youthful independence is these new owners of property could use their newfound independence to contribute to its coffers.38 These measures of Constantine promoted the establishment of Christianity. Montesquieu proceeds to consider “[t]he laws made with Christian perfection as their object” by reviewing some of the legislation of Constantine, Theodosius II, and Justinian. He summarizes that their laws “chiefly . . . removed the penalties of the Papian laws” for men without children “and exempted from [penalties] both those who were not married and those who, being married, had no children.” Theodosius, he notes, repealed the old Roman laws that allowed husbands and wives to give gifts to each other “in proportion to the number of their children.” Justinian, in his turn, “granted advantages to those who would not remarry” (23.21, 448–49). The Christians disparaged the old Roman laws of Augustus, those very laws which Montesquieu so admires. Montesquieu quotes the fifth-century historian of the Church, Sozomen, as displaying a particular contempt for them because they were promulgated in the mistaken belief that “‘the multiplication of mankind could be a result of our cares, instead of seeing that this number grows larger or smaller according to the order of providence’” (23.21, 448). Although Sozomen upholds the primacy of providence in such matters, the chapter of his history from which Montesquieu quotes actually displays the particular care that Constantine took to benefit through his legislation those who had taken vows of celibacy. From that history, one learns of, for example, Constantine’s dismay when he apprehends that the Papian and Poppaean laws “militated against the interests of those who continued in a state of celibacy and remained childless for the sake of God.”39 In a comment quite pointedly opposed to Sozomen’s claim that God’s will alone takes care of human population, Montesquieu declares that among various cultures the “principles of religion have greatly influenced the propagation of the human species.” Sometimes they encourage the growth of the population and “sometimes they have run counter to it, as they did among Romans who became Christians” (23.21, 448–49). Montesquieu here

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declares that the Christian ideas that inform Christian jurisprudence run counter to human fecundity.40 The pervasiveness of Christian teachings served to reinforce their effect on the laws. Montesquieu observes: “One continued to preach continence everywhere, that is, that virtue which is more perfect, because, by its nature, it must be practiced by very few people” (23.21, 449). The individual pursued perfection as a means to his or her own individual salvation and thereby undermined the cause of society. The Christian thinkers and rulers, however, either did not perceive or were not concerned with this threat to society, seeking instead a universal community of earthly saints who practiced the Christian virtue of celibacy. In pursuing this perfection, the Christianized Roman Empire celebrated celibacy over parenthood: “The same reason of spirituality that permitted celibacy soon imposed the necessity of that celibacy.” He adds a cautionary pronouncement regarding the implications of his analysis: “God forbid that I should speak here against the celibacy that religion has adopted,” but he has already so spoken in considerable detail and at considerable length. Montesquieu then proceeds to condemn a form of celibacy “formed by libertinage” in which both sexes eschew marriage but partake in its delights. Despite his concern that he not condemn Christian celibacy, he proceeds to add another charge against celibacy in general, namely, that celibacy can promote infidelity in marriage. Without distinguishing between these two types of celibacy, he concludes: “It is a rule drawn from nature that the more one decreases the number of marriages that can be made, the more one corrupts those that are made; the fewer married people there are, the less fidelity there is in marriages, just as when there are more robbers, there are more robberies” (23.21, 448–50; OC 2: 705). The more celibate individuals there are in a society, the fewer marriages; with a surfeit of unattached individuals, there will be fewer faithful marriages. By not explicitly excluding the sanctified celibates from this concern, he seems to imply that Christian individuals who pursue the religion’s idea of perfection frequently fail in such a way as to undermine the conjugal fidelity of others.41 In this manner, he points to another way in which the Christian pursuit of perfection conflicts with the health of the society. By so changing the laws, the Christian emperors, first Constantine, then Theodosius II, and then Justinian, encouraged those individuals who sought the life of a celibate. Montesquieu consults the Novellae to show that “Justinian granted advantages to those who would not remarry” (23.21, 449 and n. 109). By contrast, the old Roman laws assured that one could not alienate one’s “natural faculty [la faculté naturelle] . . . to marry and have children”

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(23.21, 449; OC 2: 706). For example, these older laws refused to regard as valid a condition that demanded that a legatee not marry. In addition, they would not enforce a freedman’s oath to his patron that the former slave would not marry and not have children. Christian laws, though, uphold both such conditions and oaths. Indeed, Montesquieu here points out that he finds remnants of these Christian purposes in the laws of his own time and place that would uphold rather than annul such conditions: “Therefore, the provisos, upon remaining widowed, that we have established contradict the old right and descend from the constitutions of the emperors, which were based on ideas of perfection” (23.21, 449; emphasis in original). He therefore finds that the effects of the early Christians’ pursuit of perfection persist in some of the legal formulations of his own time. Roman law, as amended by the Christians, remains in effect, working against human propagation in the France of Montesquieu’s own day. The first of these two chapters examining Montesquieu’s evaluation of Christian ideas began with Montesquieu’s favorable treatment of Christianity’s life-preserving effects in altering the Roman right of war. By teaching the way of peace rather than of war, Christianity could be said to have undermined Rome’s martial purposes, which had resulted in the destruction of other peoples as well as of themselves. In his book on population he reiterates the destructiveness of the pagan Romans: “The Romans, by destroying all the peoples, destroyed themselves; constantly active, striving, and violent, they wore themselves out, just as a weapon that is always in use wears out” (23.20, 440). In endeavoring to heal this destruction, Augustus passed the laws to encourage the Romans to reproduce, the laws that the Christians opposed in the name of celibacy. The Christians, however, produced their own type of destruction and continue to do so with their ideas regarding celibacy. They continue to regard celibacy as a form of virtue and of perfection, thus encouraging it. In addition, the legislation of the early Christian emperors continues to affect those in modern times who are subject to such provisions regarding inheritance. Thus, the Christian ideas regarding perfection continue to produce harmful and despotic effects on society.

CONCLUSION Montesquieu examines the early ideas of the Christians and their manner of thinking. He points out that in some instances their thinking was confused and in others that it was harmful to life, in both discouraging the birth of children and condemning others to death in a manner that represents an

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abuse of power in criminal procedure. He warns that these confused and harmful ideas persist in Roman law. They can induce Christians to prosecute heresy as a high crime of the state; they can provide far too broad a scope to other aspects of the laws of treason; they can induce believers to pursue perfection on earth and thereby eschew marriage. He warns against these notions that can inform not only unproductive practices but despotic ones as well.

pa r t i i i

The Ideas of the Ancient Legislators

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lthough the great ancient philosophers, Plato and Aristotle, arose in times and conditions long distant, Montesquieu’s treatment of their teachings in The Spirit of the Laws displays the continuing influence of their antique ideas in Christian Europe. Despite the authority of Plato and Aristotle and the beguiling character of their thinking that continues to exert its charms from the pages of their works, Montesquieu reveals what he regards in some instances as the deficiencies and in others as the despotic implications, with real-world consequences, of their ideas. Both ancient thinkers appear in Montesquieu’s chapter on legislators, where, as we know, he unmasks what he deems the hidden passions and prejudices of these philosophical legislators, asserting that Plato was “indignant at the tyranny of the people of Athens” and that Aristotle “sometimes wanted to satisfy his jealousy of Plato, sometimes his passion for Alexander” (29.19, 618). Quite in keeping with his presentation of philosophers in that chapter, he treats both Plato and Aristotle elsewhere in The Spirit of the Laws as Greek political men who endeavored to legislate through their writings. Montesquieu’s propensity to regard philosophers as legislators who are captive to their passions and prejudices is particularly salient in the case of Plato, who, he maintains, attempted both to correct and to perfect the laws that derived from the founders of the actual cities Crete and Sparta—Minos and Lycurgus respectively. In associating Plato in particular with these two founders, Montesquieu suggests that this august ancient philosopher is the exemplar of those whom he terms “les politiques Grecs” (23.26; OC 2: 710). He underscores throughout the work how wondrously extreme are the laws of Lycurgus—the laws that so attracted Plato. He accuses these three founders in particular, Minos, Lycurgus, and Plato, of constructing

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their extraordinary and extreme laws so as to display their wisdom to the world. Here Montesquieu lays bare another passion of legislators, the passion for distinction, which does not scruple to mold the human material as legislative monuments intended to attest to their greatness and their capacity to dominate other human beings. In attempting to build on the laws of Sparta, Plato associates himself with what turned out to be an enduring legislative legacy. Indeed, Montesquieu uncovers provisions that originated in Sparta, were carried to Rome early in its history, were ensconced in “les constitutions des empereurs” (23.21; OC 2: 706), were recovered with the reemergence of Roman law in medieval Europe, and were then incorporated into French law where they remain in Montesquieu’s time. Sparta’s laws have surprising longevity, and Plato persists not only as the corrector of this regime’s singular laws but also as their explicator and justifier. Indeed, with Plato as their spokesperson, the Spartan laws have the possibility of interminable endurance because they also persist as resources for any future legislator in Plato’s “laws” contained in both The Republic and The Laws. Although he proclaims Aristotle’s “jealousy” of Plato, Montesquieu’s treatment of Plato’s student suggests that as much as Aristotle endeavored to extricate himself from his teacher’s influence, he remained entwined in it on some points that Montesquieu finds fundamental. Aristotle’s ideas, such as his instruction to limit human reproduction for political reasons, his opposition to commerce in the name of virtue, and his promotion of slavery as a buttress to citizenship, are entirely in keeping with the legislative tradition that Plato’s thought represents. In these respects, then, Aristotle’s thought is akin to that of the other Greek political men, in Montesquieu’s estimation. Sometimes the ideas of Plato and Aristotle work with the grain of the Christian age and sometimes against it, Montesquieu reveals. For example, in pointing to how “Plato’s law” based on “the institutions of the Lacedaemonians” made “the orders of the magistrate” “completely absolute” (totalement absolus), the Frenchman reveals that the concern with making government so unrestrained derives not only from such modern writers as Hobbes or Richelieu (29.9, 606; OC 2: 870). Ancient ideas can make common cause with modern ones. Moreover, although the reasons for Plato’s and Aristotle’s opposition to commerce and their restraints on reproduction may have differed from those of the Christians, their judgments on these matters serve to connect philosophical ideas to subsequent religious ones. Indeed, Montesquieu’s treatment of Aristotle, in particular, shows how Christianity made common cause with ancient philosophy in such a way as to have a most deleterious effect on commerce and a tortuous one on those

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who engaged in it most successfully during medieval times. By contrast, on the issue of slavery Christian ideas effected a fundamental change from ancient thought and practice. Although often in a halfhearted and incomplete manner, modern Europe, on Montesquieu’s depiction as we saw in part 2, resists the notion of slavery. In proclaiming the benefits of commerce and of increasing human populations against the hesitations and denunciations both of the Christians and of the ancient philosophers and legislators, Montesquieu reveals himself as a modern political man—one of those “politiques d’aujourd’hui” (23.26; OC 2: 710). As a partisan of contemporary times, Montesquieu shows how an alternative interpretation of Christianity—one freed from the influence of Aristotle so as to emphasize Christian charity—can come to the aid of the redemptive and pacifying power of commerce, ameliorating the persistent presence of these ancients’ despotic ideas.

chapter five

Montesquieu’s Opposition to Plato’s Belles Idées and Their Diffusion

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ontesquieu’s approach to Plato in The Spirit of the Laws illustrates the degree to which Montesquieu understands writers as legislators, as it is not only in the last chapter of book 29 that Montesquieu suggests that Plato is a legislator; rather, he declares it quite forthrightly and consistently throughout the entirety of the work. Montesquieu associates Plato specifically with the laws of the ancient republics—republics that made virtue their principle and used singular institutions to inculcate it in their citizens. He refers frequently to the laws of Plato, by which he means not merely Plato’s dialogue entitled The Laws, but also the various provisions contained in that dialogue as well is in The Republic. Simply put, Montesquieu treats Plato’s great political works, The Republic and The Laws, not as imaginary republics incapable of realization, but rather as proposals for actual laws that the ancient philosopher believes can and should be implemented. Therefore, Montesquieu finds Plato’s legacy not in the philosophical eschewal of politics, but rather in the political impulse to perfect actual cities. Not only is Plato a legislator, in Montesquieu’s view, but he is also the heir and corrector of two other ancient legislators: Minos and Lycurgus.1 The laws of these three legislators, Montesquieu declares, are fundamentally related in representing the achievements and aspirations of the ancient republics. The Frenchman marvels at the astounding accomplishments of these cities and of the legislators who forged their singular institutions. The legislators of these ancient cities fashioned citizens of large souls, who, in turn, performed almost inhuman feats of heroism and of self-renunciation in patriotic service to their homeland. Between the preface and the forceful presentation of his own notions of liberty as security, images of the power—the transformative power—of the antique republics dominate The Spirit of the 139

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Laws, fostering a sort of nostalgia for long-lost virtue and testifying to the malleability of human beings. Only the ancient legislators knew how to educate true citizens, Montesquieu shows. Other scholars have examined with care and acuity Montesquieu’s depiction of the ancient city. Some conclude that however astonishing he finds the feats of its citizens, ultimately Montesquieu rejects these cities as oppressive to their own citizens, to the slaves who made their citizens’ exalted dedication to virtue possible, and to the other peoples whom their bellicose orders would subdue.2 Although acknowledging and building on the conclusions of these scholars, this chapter intends to offer something rather different. It provides an extended examination of what Thomas Pangle refers to as Montesquieu’s “very curious discussion of the ‘laws of Plato.’” Whereas Pangle’s comment refers specifically to Montesquieu’s treatment of Plato in book 4—“the book devoted to education”—this chapter examines Montesquieu’s peculiar treatment of Plato’s writings in the entirety of The Spirit of the Laws.3 In offering such an examination, this chapter finds a more thoroughgoing and concerted attack on Plato as the representative of the legislators of ancient republics of singular institutions than other commentators have noted.4 According to Montesquieu in The Spirit of the Laws, Plato’s impact as a thinker is to be found in his legislative project. Indeed, Montesquieu numbers Plato among “les politiques Grecs,” and, moreover, according to Montesquieu’s depiction of the thinker in The Spirit of the Laws, Plato’s legacy is entirely as a political man. When Montesquieu makes his association of Plato with the Greek political men explicit, he simultaneously reveals that he himself is on the side of the political men of today arrayed against those “politiques Grecs” (23.17, 438; OC 2: 694). Plato’s singular institutions endeavored to create a community isolated from strangers, to punish citizens who attempted to engage in commerce, and to turn the city into a single family. Montesquieu, the modern political man, advises the opposite of these practices. Indeed, Montesquieu denounces aspects of Plato’s legislation as inhumane and even as despotic. For example, Montesquieu takes the part of the slaves, to whom he claims Plato denied the right of self-defense. Montesquieu also indicates that in his estimation Plato’s “belles idées” supported the absolute power of the magistrates; Plato’s promotion of political power unchecked sustains despotism. Montesquieu’s critical depiction of Plato renders the philosopher a particular partisan of Sparta, and the Frenchman suggests that Plato’s alliance with this city derives from his passions and prejudices that impel him to reject Athens. Montesquieu certainly highlights Plato’s turn from Athens

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when, for instance, he contrasts Athens’s provision for its slaves’ security with Sparta’s and Plato’s neglect of such provision. In addition, Montesquieu contrasts the militaristic character of the republics of Plato and of Sparta with Athens’s commercial character. In these ways Montesquieu suggests that Plato might have found in his own city laws and practices that served more humane purposes than those he posited in his writings had he not been blinded by his prejudices and passions. As we know, the Frenchman characterizes the Athenian philosopher as being “indignant at the tyranny of the people of Athens” (29.19, 618). Presumably, an expression of the tyranny to which Montesquieu refers is the jurors’ verdict of guilty in the trial of Socrates and their decision to sentence Plato’s teacher to death. Indeed, in the very preface of the work, Montesquieu remarks on Plato’s particular attachment to Socrates: “Plato thanked heaven that he was born in Socrates’ time” (pr., xliii). Perhaps Montesquieu views Plato’s indignation at the people of Athens for their treatment of Socrates as the Athenian philosopher’s motivation for turning away from his own city and toward Sparta; it seems that Montesquieu identifies the death of Socrates as decisive in giving rise to the specific passions and prejudices that so color Plato’s laws (cf. 29.19).5 The striking manner in which Montesquieu likens Plato, who hides himself behind the characters of his dialogues, to a founder suggests that Montesquieu regards the ideas Plato attributes to his characters as exerting a powerful political influence. Indeed, Montesquieu’s presentation suggests that Plato’s ideas may have an even more powerful effect than those of Lycurgus, which were embodied in the laws of a real regime—Sparta. Plato speaks for his laws, perhaps in a way that real founders cannot, and conveys to all of his readers—past, present, and future—the ideas that inform them. Plato’s ideas are alive for us today even more powerfully than the vestiges of Lycurgus’s legislation that Montesquieu identifies as surviving still in the Europe of his time.

PLATO AND THE SINGULAR INSTITUTIONS OF THE ANCIENT REPUBLICS Although Montesquieu cites Plato’s Laws more frequently than he does his Republic, he, in fact, refers to both Platonic dialogues on politics as if they were repositories of actual laws that exemplify the ancient republic of singular institutions. On Montesquieu’s presentation, the regimes Plato offers in these two dialogues share significant features with the ancient republics of Crete and Sparta. For example, he states at one point that the “laws of

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Minos, Lycurgus, and Plato assume that all citizens pay a singular attention to each other” (4.7, 38). These three legislators—his trinity of ancient legislators—created singular institutions, according to his analysis, that placed extreme impositions on human nature in order to create citizens wholly dedicated to their homeland. Montesquieu links Plato particularly with Sparta by asserting that the ancient philosopher both corrected and perfected its laws. In discussing Plato’s laws and those of Sparta, Montesquieu contrasts them with those of another sort of republic—the commercial republic that has representatives in both ancient and modern times. The first time that Montesquieu treats Plato as a type of founder in the work, the Frenchman simultaneously links Plato’s legislation to those republics that sought to inculcate virtue in their citizenry: “The ancient Greeks, persuaded that peoples who lived in a popular government must of necessity be brought up to be virtuous, made singular institutions to inspire virtue” (4.6, 36).6 As is well known, Montesquieu describes virtue as the principle of republics; he remarks on this particular principle that “[o]ne can define this virtue as love of the laws and the homeland” and that this “love, requiring a continuous preference of the public interest over one’s own, produces all the individual virtues.” “This love is singularly connected with democracies.” So onerous is this “political virtue” that it actually requires “a renunciation of oneself, which is always a very painful thing” (4.5, 35– 36). He elaborates on the virtue of these republics when he turns to examine the intentions of their founders, noting, for instance, that when “you see, in the Life of Lycurgus, the laws [Lycurgus] gave the Lacedaemonians, you believe you are reading the history of the Sevarambes.” He here refers to Denis Vairasse’s The History of the Sevarambians, a fictional account of a European captain’s adventures among the indigenous people of Australia published in 1677. In this manner, Montesquieu suggests that Lycurgus’s laws for the Spartans might be mistaken for a fictional flight of fancy. His reference to this fictional account also serves to begin to blur the distinction between actual regimes and their legislators on the one hand, and regimes in speech and their authors on the other, in a manner that anticipates his chapter on legislators in book 29. Although his remark in the earlier book suggests the possibility that one might mistake a description of Sparta as a regime in speech only, Montesquieu underscores there its historical existence: “The laws of Crete were the originals for the laws of Lacedaemonia.” He thus links Sparta’s regime to an older one, but one with a historical existence. He then proceeds to insist that Plato’s fictional works too have a political reality of a sort when he adds that “those [laws] of Plato were their correction” (4.6, 36; OC 2: 267; I have corrected the translation).7 In this

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manner, he asserts that Plato offered a form of legislation in his dialogues. In his Pensées he explicates his approach to Plato’s political works: “I am not among those who regard Plato’s Republic as an ideal and purely imaginary thing, whose execution would be impossible. My reason is that Lycurgus’s Republic seems to be [just] as difficult of execution as Plato’s, and yet it was so well executed that it lasted as long as any republic we know of in its force and splendor.”8 He applies this understanding of Plato’s philosophical work throughout The Spirit of the Laws. Three books later in the work, Montesquieu elaborates on his association of Plato with the Spartan regime. This elaboration occurs when he adduces “a fine custom of the Samnites,” an ancient people on the Italian peninsula, who, he claims, “were descendants of the Lacedaemonians.” What Montesquieu praises in particular is the Samnites’ practice of assembling all the young people of the city, males and females alike, to be judged and paired for marriage. The young man who was judged the “best took for his wife the girl he wanted,” and then each of the other young men followed in turn according to their respective worthiness. “It would be difficult to imagine a reward [for virtue],” he explains, “that was nobler, greater, less burdensome to a small state, or more able to have an effect on both sexes.” After noting that the Samnites were descendants of the Lacedaemonians, he then associates Plato with this custom and with Sparta more generally: “Plato, whose institutions are only the perfection of the laws of Lycurgus, gave almost the same law” (7.16, 110–11).9 Here Montesquieu declares that Plato perfected Lycurgus’s laws. Therefore, in books 4 and 7 Montesquieu asserts that Plato intended his institutions as a correction to Lycurgus’s legislation for Sparta’s, just as Lycurgus intended his as a correction of Minos’s for Crete.10 Plato’s correction of Sparta would perfect the form of government known as a republic based on virtue. Because Montesquieu fails to provide specific references to either The Laws or The Republic in these two passages in which he discusses Plato’s correction and perfection of Sparta, it is not entirely clear whether Montesquieu is referring specifically to the regime in speech that the Athenian Stranger outlines in The Laws, or to the one Socrates outlines in The Republic, or perhaps to both. The Laws appears to have a particular relevance to Montesquieu’s attempt to link Plato’s thought to Crete and Sparta, because in that dialogue the Athenian Stranger holds an extended conversation with two elderly men, one from Sparta and the other from Crete. As these three men walk to a cave holy to Zeus, they “construct a city in speech” for a colony that the Cretan city of Knossos is intending to found. It so happens that Kleinias, the Cretan, has been named a member of the commission

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responsible for establishing the colony’s laws.11 The laws that these three companions devise for this new city during their conversation bear some resemblance to those of their native cities, Crete and Sparta, but their new laws could also be said to offer improvements on them. In this manner, The Laws readily lends itself to the type of interpretation Montesquieu posits. But then, as we shall see, Montesquieu maintains that the regime in The Republic also resembles Sparta in critical respects. In fact, Montesquieu refers both to The Laws and The Republic when treating Plato, as if the ancient philosopher were an actual legislator. In Montesquieu’s estimation, then, both works contain Plato’s legislation.12 In his references to these Platonic works, whether it is the Athenian Stranger or Socrates who speaks, Montesquieu refers to Plato’s main characters as Plato. According to Montesquieu’s presentation, then, these characters of Plato are his spokesmen just as Plato himself is a spokesman for the ancient republics. Montesquieu’s use of Plato’s Republic as a representation of Plato’s prescriptions for a republic is particularly salient in the continuation of his chapter devoted to “some Greek institutions.” Indeed, as this chapter comes to a close, Montesquieu makes Plato’s Republic the very touchstone for singular institutions, announcing that “[t]hose who want to make similar institutions will establish the community of goods of Plato’s Republic [la République de Platon], the respect he required for the gods, the separation from strangers in order to preserve the mores, and commerce done by the city, not by the citizens; they will produce our arts without our luxury and our needs without our desires” (4.6, 36 and 38; OC 2: 269). Montesquieu’s capitalization in the French strongly suggests that he refers here not to Plato’s generic recommendations for politics in his corpus, but rather to his specific work entitled Politeia in the Greek. Montesquieu thus suggests that Plato’s legislation in his Republic surpasses that of Sparta and of Crete in exemplifying singular institutions. Plato’s corrected and perfected laws reside there to be embraced by any subsequent legislator captivated by singular institutions. In the passage quoted above, Montesquieu highlights those aspects of Plato’s city in The Republic that signal its intense dedication to virtue. Three of these four aspects, which Montesquieu understands must be established by one who wishes to make singular institutions, relate to the prohibition of commerce. Plato’s citizens were prohibited from holding property of their own, from communicating with foreigners, and from engaging in commerce. Although he refers to the existence of “those who want to make similar institutions,” Montesquieu, as a partisan of commerce, is almost certainly not among their number (4.6, 38). Indeed, as we will see later in

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this chapter, the Greeks’ proscription of commerce is one of the key factors that induce Montesquieu to oppose himself to them. For the moment, however, it is enough to note that Montesquieu’s focus on the economic here appears to distract him from mentioning other remarkable features of Plato’s Republic, specifically, the community of women and children and the rule of the philosopher-kings. Although he never mentions in the work the latter feature of The Republic, he appears to refer in passing to the former in the following chapter.13 Montesquieu entitles that next chapter “In what case these singular institutions can be good,” and by so entitling it, he announces that only in some cases can these singular institutions be considered good. In this chapter, he refers again to his now familiar triumvirate of founders of singular institutions: “The laws of Minos, Lycurgus, and Plato assume that all citizens pay a singular attention to each other.” The attention that citizens are required to pay to each other “cannot be promised in the confusion, oversights, and extensive business [l’étendue des affaires] of a numerous people” (4.7, 38; OC 2: 270). He here focuses on the same feature he does in the prior chapter, the ancient city’s proscription of commerce, but here he also describes an alternative to that type of regime—the alternative of the large, commercial, and hence chaotic city. This other type of city would appear to belong to modernity, but it need not exclusively, as he points out in other contexts that there were ancient cities that, in fact, promoted commerce: Athens (5.6, 48), Tyre, Carthage, and Marseilles (20.4, 340 and 11.5, 156). These were bustling cosmopolitan cities, not insular republics of singular institutions. Elsewhere, referring to a passage from The Laws, he describes the distinctive character of a city of singular institutions and notes Plato’s particular expertise on the subject: “Plato says that, in a town where there is no maritime commerce, half the number of civil laws are needed, and this is very true.” “Commerce brings into a country,” Montesquieu continues, “different sorts of peoples, a great number of agreements, kinds of goods, and ways of acquisition” (20.18, 349 and n. 16). By contrast, Montesquieu notes in book 4 that singular institutions “can have a place only in a small state, where one can educate the general populace and raise a whole people like a family” (4.7, 38). In this manner, he compares the city of singular institutions to a family, and indeed, Plato’s Socrates attempted to turn a city into a family. Thus, in this chapter he seems to broach—without naming it explicitly—the community of women and children of The Republic, which Socrates maintains will “bind [the city] together,” making it one rather than many.14 The remainder of chapter 7 of book 4 focuses on the ancient city’s oppo-

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sition to commerce. Having noted in the previous chapter that these cities “will proscribe silver,” in this chapter he reiterates the point: “[a]s has been said, silver must be banished from these institutions” (4.7, 38; cf. 4.6, 38). Plutarch notes that Lycurgus, in fact, “commanded that all gold and silver coin should be called in, and that only a sort of money made of iron should be current, a great weight and quantity of which was very little worth; so that to lay up twenty or thirty pounds there was required a pretty large closet, and, to remove it, nothing less than a yoke of oxen.”15 Having emphasized the ancient republics’ proscription of silver, Montesquieu proceeds to offer a portrait of a very different world, which serves as a foil for the one devoted to virtue, when he explains that alternative world’s need for silver: “But in large societies, the number, the variety, the press and the importance of business, the ease of purchases, and the slowness of exchanges, all these require a common measure.” He ends the chapter rather incongruously when he describes this alternative world and its pursuit of silver as bringing forth a power that the one bound by singular institutions could not possibly possess: “In order to carry one’s power everywhere or defend it everywhere, one must have that to which men everywhere have attached power” (4.7, 39). The city of singular institutions, by proscribing silver, does not extend its power into the world in this fashion. The city with silver, however, can carry its “power everywhere.” In the following chapter, Montesquieu goes on to note that “in the Greek towns,” “whose principal aim [objet] was war, all work and all professions that could lead to earning silver were regarded as unworthy of a free man.”16 In these warlike republics, the citizens were soldiers and nothing else. The profession of a craftsman or of a farmer was beneath the dignity of a citizen-soldier, and Montesquieu notes specifically that “all common commerce was disgraceful to the Greeks.” In order to explicate the reason for the Greeks’ disdain for commerce, he adduces Plato’s Laws: “A citizen would have had to provide services for a slave, a tenant, or a foreigner; this idea ran counter to the spirit of Greek liberty; thus Plato in his Laws wants any citizen who engages in commerce to be punished” (4.8, 39–40; OC 2: 271).17 Montesquieu brings Plato forward to speak for the practices of these republics. So antithetical to the dignity of the ancient republican citizen of singular institutions and so corrupting of those institutions is commerce that Plato prescribes punishment for a citizen who endeavors to engage in it. Montesquieu notes that having proscribed all those professions “in commerce, agriculture, or the arts,” but still not wanting the citizens “to be idle,” the legislators of singular institutions found themselves “in a very

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awkward position.” These legislators resorted to giving the citizens “an occupation in the exercises derived from gymnastics and those related to war.” These “institutions,” he emphasizes, “gave them no others.” But the very solution to the original awkwardness put the legislators in another— but different—awkward position. By taking an already warlike people and giving them “an occupation in the exercises derived from gymnastics and those related to war,” they created a “society of athletes and fighters” whose “exercises” made the citizens “harsh and savage.” Their occupation “aroused in them only one type of passion: roughness, anger, and cruelty” (4.8, 40–41). Thus, in being dedicated wholly to virtue so that they loved their homeland more than any other human attachment, the citizens who were formed by singular institutions became harsh, savage, rough, angry, and cruel. The citizens of these republics could have been even crueler, however, had the legislators of their cities not included music in their education, Montesquieu notes, pointing to the “inhabitants of Kynaithes,” a city on the Peloponnese, who “neglected music” and thus “surpassed all the other Greeks in cruelty” (4.8, 39). Montesquieu notes that the legislators themselves recognized the ill consequences of their actions, conceding the extreme fierceness of their peoples when they turned to music to “soften the mores.” Montesquieu identifies Plato as a spokesman for the profound effect that music has on the soul and thereby on the state: “Plato is not afraid to say that no change can be made in music which is not a change in the constitution of the state” (4.8, 39 and 41). These ancients, therefore, understood the power of music, and used it to soften the savage people whom they created; nevertheless, their cities remained harsh and savage as they fostered warlike virtue in their citizens. Indeed, later in the work Montesquieu underscores the harshness of Sparta when he says that “Lycurgus, whose institutions were harsh, did not have civility as an object when he formed manners; he had in view the bellicose spirit he wanted to give his people” (19.16, 317–18). In book 5, Montesquieu acknowledges that not all the ancient Greek cities pursued the path of singular institutions. He notes that whereas Athens was a “commercial republic,” in which “one sought to instill a love for work,” Sparta was a “military” one, in which “one wanted the citizen to be idle” (5.6, 48).18 Here Montesquieu provides a perspective on the occupation of ancient citizens dedicated to virtue different from the one he offers in the previous book. In the earlier discussion, their legislators gave them “an occupation in the exercises derived from gymnastics and those related to war” (4.8, 40). Now, Montesquieu deems these very activities a form

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of idleness. On this score Montesquieu shows how very different Athens’s legislator, Solon, is from Minos, Lycurgus, and Plato, noting that “Solon made idleness a crime and wanted each citizen to account for the way he earned his living” (5.6, 48). In attempting to ensure that all had an occupation, Solon did not regard the arts, agriculture, and trade as occupations beneath the dignity of his citizens. Accordingly, he did not banish silver from his institutions (cf. 4.7). The legislators of the ancient warlike republics—of these republics of singular institutions—might have considered the exercises of an athlete and fighter to be an “occupation.” Solon, however, did not. To avoid such idleness, Solon insisted that his citizens have an occupation so as to earn their own living (cf. 4.8, 40). Having thus established Plato as a legislator of a republic of singular institutions in book 4, Montesquieu continues to adduce provisions from both Plato’s Laws and The Republic elsewhere in the work as he elaborates on the features of this type of ancient republic. For instance, in book 5, on “the laws given by the legislator,” he notes that gifts for superiors “are an odious thing in a republic because virtue has no need of them.” To corroborate this point, Montesquieu quotes from Plato’s Laws: “One must not accept them, he states, either for good things or for bad,” and comments that in “accordance with his ideas about the republic,” Plato “wanted those who received presents for doing their duty to be punished by death” (5.17, 67 and n. 54). Moreover, in the last chapter of the same book, Montesquieu treats “[n]ew consequences of the principles of the three governments” and refers to specific passages in both The Republic and The Laws as examples of the laws of the ancient republics. He brings forward Plato to respond on behalf of a republic to the question whether “the laws” “should” “force a citizen to accept public employments.” Montesquieu finds that a republican citizen, unlike a subject in a monarchy, must be forced to accept such assignments: “Plato, in his Republic, bk. 8, puts such refusals among the marks of corruption of the republic. In his Laws, bk. 6, he wants to punish them by a fine” (5.19, 68–69n57). In addition, he has Plato, on behalf of a “republic founded on virtue,” respond to the question whether it is “suitable for posts to be sold.” Montesquieu notes that “Plato cannot endure such venality” and then quotes a passage of The Republic, which he identifies in a note as being from book 8: “‘It is,’ [Plato] says, ‘as if, on a ship, one made someone a pilot or a sailor for his silver. Is it possible that the rule is good only for guiding a republic and bad in all other life employments?’” (5.19, 70 and n. 65). Repeatedly, Montesquieu calls on Plato, by referring to his Republic and Laws, to explicate the paradigmatic laws of the ancient republic dedicated to virtue.

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THE LEGISLATIVE GENIUS OF LYCURGUS AND PLATO To this point, we have seen that Montesquieu links Plato to Sparta. In order to fathom the degree to which Montesquieu regards Plato’s political ambitions as built on Lycurgus’s, it is necessary to follow Montesquieu’s specific directive to consider Sparta as Plutarch elucidates it in “the Life of Lycurgus” (4.6, 36). Reflection on Montesquieu’s terse summary of what the reader will discover in Plutarch’s work not only helps to reveal his understanding of the Spartan regime but also serves to highlight that which is harsh and even blood-chilling in Lycurgus’s legislation. As a result, his insistence on associating Plato with Lycurgus casts an unfavorable light on the philosopher, as we will see in this section and in subsequent ones. Immediately before Montesquieu first associates Plato with Sparta and with Crete, declaring that Crete provided the “originals for the laws of Lacedaemonia” and that “Plato’s laws were their correction,” he speaks directly to the reader regarding the founder of Sparta. The Frenchman claims that the reader can “see, in the Life of Lycurgus, the laws he gave the Lacedaemonians.”19 He thus declares that the laws of Sparta are still available for inspection by modern people. Having associated Plato with Minos and Lycurgus and having issued an invitation to his reader to survey Sparta’s laws, Montesquieu then makes a forthright request of that reader: “I pray that one pay a little attention to the breadth of genius of those legislators” (4.6, 36). His appeal appears intended to slow the reader down; the genius of these men—Minos, Lycurgus, and Plato—takes time and effort to grasp. Genius of their magnitude is surely remarkable and awe inspiring. Having admonished the reader to consider the character of their genius, Montesquieu continues his sentence with a surprising revelation of these geniuses’ intentions and their use of virtue in service to those intentions given his prior discussions of virtue in the ancient republics. Indeed, he had begun this chapter by declaring that these legislators made virtue instrumental to popular government: “The ancient Greeks, persuaded that peoples who lived in a popular government must of necessity be brought up to be virtuous, made singular institutions to inspire virtue” (4.6, 36; see also 3.3, 22). On this basis, commentators point out that Montesquieu’s peculiar rendition of ancient thought and practice makes their virtue not an end in itself, but rather a means for the preservation of popular government.20 Now, however, he gives them a different purpose for their intense focus on virtue. He declares that these legislators “saw that by running counter to all received usages and by confusing all virtues, they would show their wisdom to the universe.” What the investigator of their genius is to find, according

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to Montesquieu’s specific directive here, is that their extreme laws—their singular institutions—which ostensibly served to inculcate and to enforce virtue, were ultimately intended to call the world’s attention to their own genius. To promote this self-serving goal, they opposed received usages and confused all the virtues. It goes without saying that such confusion in the very principle of their regimes can stand only as a rebuke of the products of their genius. On this basis one might say that these legislators were apparently immoderate in the pursuit of their goal (4.6, 36; cf. 29.1).21 Immediately after speaking of the aspirations and intentions of these ancient legislators, Montesquieu turns to elaborate on their singular institutions with particular reference to the laws of Sparta’s legislator: “Lycurgus, mixing larceny with the spirit of justice, the harshest slavery with extreme liberty, the most atrocious feelings [les sentiments les plus atroces] with the greatest moderation, gave stability to his town” (4.6, 36; OC 2: 267–68; I have corrected the translation). In following Montesquieu’s instruction to consult Plutarch’s Life of Lycurgus, one finds that this work provides the details that Montesquieu’s cursory discussion withholds. These details show that Montesquieu’s terse comments refer to the most extreme aspects of this legislator’s institutions. But such a consideration does more than simply reveal the character of Lycurgus’s institutions and hence his aspirations; Montesquieu suggests in this passage that he takes Lycurgus and his singular institutions as illustrative of these “legislators” who displayed their genius through “singular institutions.” Lycurgus’s laws are the very ones Plato chose to correct in his pursuit of the perfection of republican laws. To understand “Plato’s laws,” therefore, Montesquieu suggests that one must understand Lycurgus’s Sparta (cf. 4.6, 36). Montesquieu’s comment regarding larceny surely refers to the fact that the Spartan boys, who from the age of seven were no longer raised by their parents in their households but rather by the city in troops, were taught how to steal in order to augment their intentionally meager rations of food. Plutarch explains that the boys were taught “to help themselves” and “forced to exercise their energy and address.” As a result of these lessons, they would be more resourceful guardians of the city when they came of age. In this manner, the crime of larceny was in service to the well-being of the city and hence to the city’s notion of justice; in this manner, Lycurgus mixed “larceny with the spirit of justice.” Given the significance of these lessons, to be an unsuccessful thief was considered a great dishonor among the Spartan boys. In describing the education of the boys, Plutarch recounts a story of a youth who stole a fox and hid it under his coat to keep it from being seen. The boy, he says, “suffered [the fox] to tear out his very

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bowels with its teeth and claws and died upon the place, rather than let it be seen.”22 Elsewhere in The Spirit of the Laws, Montesquieu speaks of Lycurgus’s intention, explaining that “Lycurgus, with a view to endowing his citizens with cunning, trickery, and quickness, wanted the children to be trained in petty theft and be severely whipped if they were caught” (29.13, 610). In this context, Montesquieu links such Spartan laws to Crete and makes Plato a commentator on them: “The Lacedaemonians had drawn these usages from the Cretans, and Plato, who wants to prove that the Cretan institutions were made for war, cites this one: ‘The faculty of bearing pain in individual combats and in petty thefts that have to be concealed’” (29.13, 610). Montesquieu cites book 1 of Plato’s Laws in his note. In speaking of Lycurgus’s mixture of the “harshest slavery” and “extreme liberty,” Montesquieu paraphrases Plutarch’s reporting of the comment that “in Sparta he who was free was most so, and he that was a slave there, the greatest slave in the world” (4.6, 36).23 Plutarch conveys this saying in the context of the Spartans’ treatment of the Helots, the captive people who farmed their land and who thus allowed them to be, according to Montesquieu, “idle” (5.6, 48) so that they could undergo their rigorous physical training. In speaking of the Helots, Plutarch reports both that the Spartans had an ordinance called the Cryptia and that there is some controversy as to whether it belonged to Lycurgus’s legislation or was a later addition. If the Cryptia were a part of his legislation, it would impugn this lawgiver’s justice, Plutarch acknowledges, because it prescribed that periodically some of the city’s ablest young men be enlisted to go out into the countryside to hunt down and to murder as many Helots as they could. Plutarch reports that Aristotle attributed this provision to Lycurgus’s legislation, and that both Aristotle and Plato concluded that this founder’s legislation was defective in point of justice because the Cryptia derived from Lycurgus’s hand.24 Here we see powerfully illustrated Montesquieu’s comment that the physical training of the Greeks inculcated cruelty (cf. 4.8, 41). What Montesquieu means specifically by “the most atrocious feelings” (les sentiments les plus atroces) mixed with the greatest moderation is not immediately clear, but given the fact that the prior two pairs of seemingly contradictory terms can be described much more precisely, the atrocious feelings surely relate in part—if not exclusively—to the provisions he has just mentioned (4.6, 36; OC 2: 268).25 Their moderation refers to the effectiveness of this training. Citizens subordinated their own desires to the good of the commonwealth. Nevertheless, in addition to moderation, their training gave rise to the most atrocious feelings—feelings that permitted, in Montesquieu’s estimation, a Spartan youth to choose to endure deadly

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mutilation in silence rather than to expose his incapacity for stealthy thievery and generally to terrorize and murder other human beings as a means of training and sport. Plutarch links the Spartans’ virtue to Lycurgus’s laws: “He filled Lacedaemon all through with proofs and examples of good conduct.”26 The citizens were surely virtuous according to Lycurgus’s definition, but their virtue came at a high human cost in Montesquieu’s estimation. Montesquieu immediately provides additional paradoxes: “one had ambition there without the expectation of bettering oneself; one had natural feelings but was neither child, husband, nor father; modesty itself was removed from chastity” (4.6, 36–37). When speaking of ambition without any possibility of bettering oneself, he seems to refer to the facts both that the lives of the Spartans were so rigorously controlled that great transformations in one’s circumstances were impossible and also that one’s ambitions were focused intently on the city rather than on oneself. Plutarch explains: “No one was allowed to live after his own fancy; but the city was a sort of camp, in which every man had his share of provisions and business set out, and looked upon himself not so much born to serve his own ends as the interest of his country.”27 Any ambition for individual distinction was subsumed in the concern for the flourishing of the city. According to Montesquieu, Lycurgus’s provisions were intended to transform the entire city into a single family as he comments that a Spartan possessed natural familial feelings but was bereft of the common familial roles. As we have seen, the city, in Plutarch’s account, assumed the responsibility of child rearing after the boys reached the age of seven. In addition, the bridegroom did not live with his wife but rather continued to live with his comrades. Newlyweds met briefly and clandestinely under cover of night so that couples sometimes had children before the husbands “saw their [wives’] faces by daylight.” Moreover, the Spartans shared their wives because, as Plutarch explains, “Lycurgus was of a persuasion that children were not so much the property of their parents as of the whole commonwealth, and, therefore, would not have his citizens begot by the first-comers, but by the best men that could be found.”28 A child born of such a union would inherit the good qualities of the man so selected, but would be recognized as the offspring of the husband. In Montesquieu’s estimation, therefore, Lycurgus’s institutions had expunged the roles of husband, father, and child, but had not succeeded in extinguishing the natural feelings that accompany these roles (cf. 4.6, 36). Finally, in referring to modesty and chastity, Montesquieu points to the

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many references Plutarch makes to those who criticize the Spartans for the immodesty of their women. Plutarch reports that the practice of lending their wives to others occasioned some aspersions on the virtue of their women and responds that “so far from that scandalous liberty which was afterwards charged upon their women, . . . they knew not what adultery meant.”29 Because the very definition of a proper Spartan marriage provided for what those from other cultures would call adultery, the Spartans cannot properly be called adulterous, Plutarch maintains. Also, the Spartan laws provided for the young women to dance naked in public processions, sometimes with the young men as observers.30 In Sparta, Montesquieu finds that “modesty itself was removed from chastity.” Against Plutarch’s profession, Montesquieu suggests that the practices of the Spartans, although chaste, were immodest (4.6, 36–37).31 Despite the paradoxes it contained, Sparta’s legislation was vastly successful. “In these ways,” Montesquieu continues, “Sparta was led to greatness and glory, with such an infallibility in its institutions that nothing was gained by winning battles against it, until its police was taken away.” The note that Montesquieu appends to this statement points out that Sparta’s conqueror, Philopoemen, took away the Spartans’ “way of raising children, knowing that if he did not, the Lacedaemonians would always have great souls and lofty hearts” (4.6, 37 and n. 4). Despite the clear success of Spartan education in shaping the human material, Montesquieu’s treatment also points to aspects of Lycurgus’s legislation that are shocking to others and that are, in fact, blood chilling in their murderous inhumanity. One might respond to such charges by noting in the legislator’s defense that the end of his singular institutions was virtue; he led human beings to these extremes for the sake of virtue. But Montesquieu identifies the paradoxical nature of virtue: “Who would think it! Even virtue has need of limits” (11.4, 155; OC 2: 395). Moreover, as we have seen, Montesquieu’s criticism of Lycurgus extends beyond a critique of virtue—or of Sparta’s form of virtue. Montesquieu charges that Lycurgus’s legislation served an entirely self-serving purpose. His sharpest charge is this: Lycurgus created singular institutions—murderous institutions, in some cases—in order to make a display of his wisdom to the world. Sparta, according to Montesquieu, is the regime that serves as the foundation for Plato. Surely, Plato does not endorse the Cryptia as Plutarch depicts it.32 Nevertheless, Montesquieu’s analysis charges that Plato too made virtue instrumental to the demonstration of his genius when he created singular institutions that took Sparta’s as their point of departure.

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PLATO AS A POLITIQUE GREC AND MONTESQUIEU AS A MODERN POLITICAL MAN Early in The Spirit of the Laws, when Montesquieu sets out the principles of the various regimes, he contrasts the “politiques grecs,” who recognized only virtue as the means to sustain popular government, with those “d’aujourd’hui,” who “speak to us only of manufacturing, commerce, finance, wealth, and even luxury” (3.3, 22–23; OC 2: 252). He contrasts the ancients with the moderns and ascribes no particular identities to either set of men. He does not indicate here whether the political men of these two different eras are legislators, political rulers, or political commentators. Of course, he has an obvious affinity with the modern ones, as he speaks at length of commerce and finance, and certainly mentions wealth and luxury frequently. Indeed, when later in the work he brings forward commerce as a transformative force, he pointedly notes Plato’s opposition to commerce in the name of pure mores. Still later in the work, Montesquieu resumes his discussion of the Greek political men, and in this particular discussion he makes it quite clear that he includes Plato among their number. Montesquieu so identifies Plato when discussing the mechanisms that the Greek political men employed to regulate the family and to restrict human reproduction. In so regulating the family, Plato in fact intensified Sparta’s methods. Moreover, there he offers Plato’s specific reasoning as an example of the Greek political men’s reasoning generally. Montesquieu’s consistent treatment of Plato as a legislator has prepared his reader for this treatment of the ancient philosopher as the exemplar of the Greek political men. 33 Montesquieu, like other modern political men, opposes Plato’s pronouncements on this topic. In fact, Montesquieu is a modern political man who opposes Plato in particular.34 When Montesquieu sets out the principles of the various regimes, he compares the moderns with the ancients with the declaration that “[t]he political men of Greece [les politiques grecs] who lived under popular government recognized no other force to sustain it than virtue,” whereas “[t]hose of today [d’aujourd’hui] speak to us only of manufacturing, commerce, finance, wealth, and even luxury” (3.3, 22–23; OC 2: 252).35 Surely, the matters that occupy the unnamed contemporary political men seem paltry by comparison with those of their ancient counterparts who focused exclusively on the far more exalted topic of virtue. He provides his reader no indication as to whom he here intends to magnify and to minimize because he fails to name the political men either of antiquity or of today. By his use of the first person plural, Montesquieu serves to include himself among

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those to whom the political men of today address themselves. But clearly, one can rightly associate him with the speakers as well. After all, Montesquieu too speaks of the very topics that suffer in the comparison with the exalted ones of the ancients. He speaks of many, many things—an “infinite number of things,” as he informs us in the preface (xliii)—but he speaks at length not only about virtue but also about commerce and finance, explicitly devoting books 20, 21, and 22 to the topics with which modern men concern themselves. Moreover, these three books, together with book 23 on the laws and the number of inhabitants, constitute the entirety of the fourth part of the work.36 A state’s population is fundamentally related to commerce, as its effective practice requires a large population.37 Therefore, Montesquieu himself has a kinship with the contemporary political men with whom he contrasts the Greek political men, but he takes the association no further at this point. Montesquieu’s gradual revelation of the identities of the Greek and modern political men begins in the chapter entitled “On commerce” as he praises its effect fulsomely: “Commerce cures destructive prejudices, and it is an almost general rule that everywhere there are gentle mores, there is commerce and that everywhere there is commerce, there are gentle mores” (20.1, 338). He mentions in the preface that he would consider himself “the happiest of mortals” if he “could make it so that men were able to cure themselves of their prejudices” (pr., xliv). This reflection on commerce brings to light a method by which Montesquieu might realize his goal of making it so that human beings can cure themselves of their prejudices—of their destructive prejudices. As a result of this almost general rule, he says, “one should not be surprised if our mores are less fierce than they were formerly.” Some of the fierceness of the human species has been ameliorated, and the resulting character of contemporary human beings contrasts with the “bellicose spirit” Lycurgus endeavored to inculcate in his citizens (19.16, 317–18 and 20.2, 338). In the context of this monumental statement on commerce and its effects, Montesquieu again brings forward Plato as a representative of the ancient legislators, noting the ancient’s specific opposition to commerce. As we have seen in book 4, Montesquieu repeatedly notes the opposition of the legislators of singular institutions to commerce and underscores their proscription of silver (4.6–8). Now, however, he singles out Plato as commerce’s particular opponent: “One can say that the laws of commerce perfect mores for the same reason that these same laws ruin mores. Commerce corrupts pure mores, and this was the subject of Plato’s complaints; it polishes and softens barbarous mores, as we see every day” (20.1, 338). Montesquieu pro-

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motes an activity that softens the mores of human beings, rendering them less fierce. The mores Plato taught may have been “pure,” but they formed citizens who were fierce and who regarded trade, agriculture, and the arts as beneath the status of a citizen (4.8).38 In this manner, Montesquieu reveals Plato as opposing that which could cure human beings of their destructive prejudices. In book 23, dedicated to the topic of “laws in their relation to the number of inhabitants,” Montesquieu elaborates further on his reasons for his opposition to Plato and the other Greek political men. He presents in this book a sweeping account of the history of Europe, from Crete and Lacedaemonia to the Roman republic, to the empire, then to the Christian emperors, the barbarians and the origins of medieval Europe, and finally to Henry VIII of England and Louis XIV of France in light of the problem of the decline in population, a problem with its origins in the past but with ramifications clearly for Montesquieu’s own times. In an early chapter of book 23, Montesquieu reveals the specific manner in which the ancient legislators, Plato included, regulated family life so as to maintain their “small state, where one can educate the general populace and raise a whole people like a family,” a topic he introduced much earlier in the work (4.7, 38). Fathers typically consent to the marriages of their children, he notes in the later discussion. This prerogative of fathers derives, he explains, from their power, their love, their reason, and the uncertainty of their children’s reason, “whose passions keep them in a state of drunkenness.” This right of fathers is usurped in “the small republics or in the singular institutions of which we have spoken,” where the “love of the public good can be such that it equals or surpasses any other love.” In these circumstances the republic— rather than parents—sanctions the selection of spouses. He draws his examples from Sparta and from Plato, explaining that “in the small republics or in the singular institutions of which we have spoken, there can be laws assigning magistrates to inspect marriages between the children of citizens, a thing nature had already assigned to fathers.” He continues that for these reasons “Plato wanted magistrates to regulate marriages,” and “the Lacedaemonian magistrates directed them” (23.7, 431–32). Montesquieu provides no reference here to a specific work of Plato but makes the blanket assertion that for both Sparta and Plato, the magistrates assume the power of fathers. The ancient republics regulated other aspects of family life including the rate at which children should be born. This issue was particularly pressing for them because overpopulation could destroy their political institutions. A chapter entitled “On Greece and the number of its inhabitants,” Mon-

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tesquieu notes that owing to their “small territory and . . . great felicity, it was easy for the number of citizens to increase and become a burden.” He pinpoints the type of republic for which a burgeoning population was a particular problem when he notes that “[t]here were among them republics whose constitution was singular” (23.17, 437–38). In so mentioning their “singular” character, he points back to his analysis in book 4. He notes in that earlier discussion, as we know, that the legislators of these singular institutions would not permit their citizens to be occupied with menial activities, and in consequence they were athletes and fighters exclusively for whom agriculture “was a servile profession.” As a result, “it was ordinarily some conquered people who followed it: the Helots farmed for the Lacedaemonians” and “the Perioikoi for the Cretans” (4.8, 40). He brings forward these slaves again here in book 23, specifying that “[s]ubject peoples were obliged to supply sustenance to the citizens,” and he includes the “Lacedaemonians [who] were fed by the Helots” and “the Cretans by the Perioikoi.” He turns next to focus particularly on Sparta: “Lacedaemonia was an army kept up by peasants; therefore, this army had to be limited; if not, the free men who had all the advantages of the society would have multiplied without number, and the plowmen would have been overwhelmed” (23.17, 438). Montesquieu suggests in this way that their subjugated farmers could not have produced enough food to sustain a large population. Singular institutions, he reiterates, demanded a small population of citizens and a significant population of slaves (cf. 4.7 and 4.8). As a result of this pressure from a growing population, the Greek cities “constantly made colonies” and “nothing was neglected that could prevent the excessive multiplication of children.” At this point he declares: “The Greek political men [Les politiques Grecs] were thus particularly attached to regulating the number of citizens.” His next sentence identifies Plato as one of these politiques Grecs: “Plato fixes [the number of citizens] at five thousand forty, and he wants propagation to be checked or encouraged according to need, by honors, by shame, and by the warnings of the old men; he even wants the number of marriages to be regulated in such a way that the people replace themselves without overburdening the republic.” He appends two notes to this statement: one to book 5 of The Laws, as there the Athenian Stranger divides the city’s territory into 5,040 separate allotments; and the other to book 5 of The Republic (23.17, 438 and nn. 25 and 26; OC 2: 694). Montesquieu here reveals his assessment that Plato’s two great political dialogues display the thinking of the “politiques Grecs.” Not only is Plato a politique Grec, he is their particular spokesperson. In addition, Montesquieu observes Plato’s concern with sustaining the same number of

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allotments earlier in the work: “In order to maintain this division of lands in a democracy, it was a good law that wanted the father of several children to choose one to inherit his portion and have his other children adopted by someone who was childless, so that the number of citizens might always be maintained equal to the number of shares.” He inserts a note in this discussion pointing out that “Plato makes a similar law” in “liv. V des Lois” (5.5, 46 and n. 9; OC 2: 278).39 Montesquieu’s particular reference to book 5 of Plato’s Republic in book 5 points his readers to that portion of the dialogue where Socrates explains the precise manner in which marriages will be regulated. In this city in speech there will be a community of women and children such that children will not know their natural parents and parents will not know their natural children. In addition, the rulers will arrange temporary marriages so that the best females and males mate with each other with the expectation that marriages will produce the best possible children for the regime. The rulers will regulate the number of such marriages so that the city will preserve the same number of citizens.40 In pointing to this portion of The Republic in particular, Montesquieu underscores his view that Socrates’s description of the city in speech not only draws on but also intensifies some distinctive Spartan ordinances for the family. Here again, Plutarch’s Life of Lycurgus provides the basis for his understanding of Sparta. Whereas Lycurgus demanded that the Spartan girls receive a rigorous physical education and dance naked in public so as to be seen by the boys, Socrates demands in book 5 that boys and girls of the guardian class be educated together and participate nude in the same gymnastic exercises; whereas Lycurgus wanted the city to raise the children in common, Socrates maintains in book 5 that citizens will not even know the identity of their near relations but instead regard all citizens as their direct kin. Both cities practice a type of eugenics by breeding the best with the best. Whereas Lycurgus’s legislation allows husbands to select their own wives but encourages the husbands to allow other men whom they regard as having superior characteristics to mate with their wives, Socrates in book 5 has the rulers select all the pairings and then fabricate “certain subtle lots” “so that the ordinary man will blame chance rather than the rulers for each union.”41 The manner in which the Socrates of Plato’s Republic intensifies this aspect of Lycurgus’s legislation suggests that, in Montesquieu’s view, the work’s community of women and children is among Plato’s corrections of the laws of Sparta. He has prepared his readers for this conclusion, however. Indeed, as we have seen, as Montesquieu’s chapter on “some Greek institutions”—namely, on those singular institutions—comes to a close,

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Montesquieu declares that legislators “who want to make similar institutions will establish the community of goods [de biens] of Plato’s Republic” (4.6, 36 and 38; OC 2: 269). He speaks here in the present tense apparently with the assumption that such a model is still an available option for a legislator despite the fact that human beings are less fierce than they were formerly. Whereas the ancient political men, such as Lycurgus and Plato, endeavored to restrict the growth of population, Montesquieu maintains that modern political men must promote its growth, noting that “Europe today” “is an instance of the case in which laws are needed to favor the propagation of the human species” (23.26, 453). Having pointed out the problem facing Europe with regard to declining population, Montesquieu declares that “just as the Greek political men [les politiques Grecs] always tell us that the republic is tormented by having a large number of citizens, today political men [les politiques d’aujourd’hui] tell us only of the means proper for increasing it” (23.26, 453; OC 2: 710). Again, when he uses the first person plural to refer to those to whom these modern political men speak, he puts himself not on the rostrum but rather in the audience (cf. 3.3, 22–23). But book 23 serves, in fact, as his particular forum for the issue in The Spirit of the Laws; he speaks not only knowledgeably but also movingly of the problem and instructs his readers on the proper means of increasing population. This book reveals him to be a modern political man by virtue of his concerns and his knowledge. By this assertion here, he clearly aligns himself with the “political men” of “today” and against the politiques Grecs (cf. 3.3); Montesquieu is a political man of today who opposes the thinking of Plato, the spokesman of those Greek political men.

MONTESQUIEU’S OPPOSITION TO PLATO’S LAWS ON SLAVERY IN THE NAME OF NATURAL DEFENSE We have seen Montesquieu, when speaking of the ancient republics of singular institutions, refer to their slave populations that afforded the citizens the luxury of dedicating themselves to their republics’ conception of virtue (e.g., 4.8, 40 and 23.17). In other discussions, he focuses more intently on how these republics treated their slaves with particular reference to Plato’s teaching, extracting from Plato’s Laws what he regards as Plato’s recommendations—or laws—regarding the treatment of slaves. Montesquieu declares that Plato’s legislation denies slaves their right to natural defense—a fundamental right of human beings. Again, Montesquieu finds himself in opposition to Plato’s pronouncements. The topic of the cruel treatment of

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slaves, though, particularly moves him. Indeed, as we have already seen, mere reflection on the torture inflicted on Greek and Roman slaves momentarily halts Montesquieu’s pen (6.17, 93). Nevertheless, his pen regains its momentum elsewhere in the work when he undertakes to defend the rights of slaves against the harsh treatment that Plato’s laws dispense. In the book devoted to the topic of “How the laws of civil slavery are related with the nature of the climate,” Montesquieu begins to register his particular opposition to Plato’s treatment of the subject. By way of a preface to “[l]es lois de Platon,” he declares that “[w]hen a citizen mistreats the slave of another, the latter must be able to go before a judge.” When one damages or destroys the property of another, the owner can sue for restitution. But in the case of a slave, of course, the property in question is not inanimate but rather a human being who is held captive by the provisions of civil law. Montesquieu acknowledges the humanity of the particular property at issue when he refers to “liv. IX” of Plato’s Laws: “The laws of Plato and of most peoples take natural defense away from slaves” (15.17, 260; OC 2: 505). Like all human beings, slaves possess natural defense, a fact that civil laws frequently refuse to recognize. Montesquieu does not explain here, as he will later, precisely how Plato’s laws take natural defense away from slaves. On this score, however, Plato’s laws are no different from those “of most peoples,” he notes. Although he acknowledges that such laws are common, he highlights here Plato’s authority in speaking for, and hence promoting, such laws that deny natural defense. Montesquieu neglects to provide the specific passage from book 9 of The Laws to which he refers, but in two discrete discussions in that book, the Athenian Stranger declares that a man who kills the slave of another should pay in restitution twice the value of the slave.42 Montesquieu brings civil laws to the fore in this discussion when he continues that because the “laws of Plato and of most peoples take natural defense away from slaves,” “it is necessary therefore to give to them civil defense” (il faut donc leur donner la defense civile) (15.17, 260; OC 2: 505; I have altered the translation). The provision for an aggrieved master to go to court for restitution when his property has been lost or damaged serves the interest of the master, of course. Indeed, Montesquieu proceeds to note that the Roman law took the perspective of the aggrieved master when proffering just such a provision: “In Rome one considered only the interest of the master in the harm done to a slave,” as one of that city’s laws “confounded” “a wound inflicted on a beast and one inflicted on a slave” so that “attention was paid only to the reduction in their price.” One can well imagine, however, that such civil laws would also afford slaves some measure of protection

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because individuals would be less likely to abuse the slaves of others if they knew that the aggrieved master could bring the perpetrator to court for restitution. This consideration appears to be the type of “civil defense” to which Montesquieu refers in this chapter. In fact, this seems to be the very basis on which Montesquieu explicates these pervasive civil laws. In fact, Montesquieu himself focuses on such laws not as a means of defending the property rights of the masters, but rather as a mechanism by which to afford the slaves some measure of protection when civil law has taken away other defenses. It seems clear, however, that the legislators behind these civil laws of “most peoples” did not view their laws from the perspective Montesquieu selects—that is, from the perspective of the slaves who need some form of defense (15.17, 260). As chapter 17 of book 15 concludes, Montesquieu identifies an exception to the “laws of Plato and of most peoples,” when he finds in Athens a law that provides more protection for the slave: “In Athens he who had mistreated the slave of another was punished severely, sometimes even by death.” Clearly, this Athenian law considers the murdered slave not as mere property. Because the murderer of a slave in Athens goes on trial for his life as would the murderer of any other person, the city treats the murdered slave as a human being rather than as mere chattel.43 Montesquieu explicitly endorses this law: “The Athenian law, with reason [avec raison], did not want to add the loss of security [la sûreté] to that of liberty [la liberté].” He finds that behind Athens’s law is “reason” (15.17, 260; OC 2: 505). Of course, Montesquieu himself defines political liberty “in a citizen” as “that tranquility of spirit which comes from the opinion each one has of his security” (11.6, 157 and 12.2, 188). But these slaves are not citizens, so the liberty that the slaves have lost is of a more limited kind; their loss of liberty refers solely to their enslavement. Even with the loss of that liberty, however, the Athenian law endeavored to give to slaves the same measure of security against being murdered as that city’s citizens enjoyed. Athenian slaves and citizens are both protected by the city’s laws that punish murderers. It is in Sparta, though, that Montesquieu finds the slaves receiving particularly cruel treatment. “In Lacedaemonia, slaves could expect no justice for either insults or injuries,” he notes, adding that the “extremity of their unhappiness was that they were the slaves not only of a citizen but also of the public; they belonged to everyone and to one alone” (15.17, 260). In this manner, Montesquieu underscores again how the city of Sparta did away with the private realm. Slaves belonged neither to one master nor to one household. They belonged to the city as a whole and thus had all the

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citizens as masters. According to Montesquieu’s analysis here, Plato could have found in his own city of Athens a more humane law, one that accords more with natural defense in treating the slave as a human being, but Plato instead focused on perfecting the laws of Sparta. Like book 15, book 26 offers a consideration of the dire threats to the lives of slaves, but the later book focuses on a new source of these threats— threats that emanate from their masters. In this later consideration, Montesquieu again declares that Plato’s provisions take natural defense away from slaves and again refers to Plato’s Laws. In this later discussion, however, he makes clear how Plato’s laws go about taking natural defense away from slaves. He begins the chapter entitled “On civil laws that are contrary to natural law” with a quotation from what he identifies as book 9 of The Laws: “‘If a slave,’ says Plato, ‘defends himself and kills a free man, he should be treated as a parricide.’”44 Parricides in the city of The Laws are subject to the death penalty.45 Montesquieu comments that this law of Plato “is a civil law that punishes natural defense” (26.3, 496). It punishes natural defense precisely because if a slave does not defend himself against a murderous master, then the defenseless slave dies at his master’s hands; if, instead, the slave attempts to defend himself and kills his assailant in the process, then the state condemns him to death as if he were a parricide. Such a law deprives the slave of any defense. According to Montesquieu, human beings should not be asked to forgo the defense of their lives in this manner. “Men,” he says, “have the right to kill in the case of natural defense. . . . In the case of natural defense, I have the right to kill, because my life is mine, as the life of the one who attacks me is his” (10.2, 138).46 Therefore, in light of this earlier discussion and according to this chapter and its title, Plato’s civil law is “contrary to natural law” (26.3, 496). Montesquieu stands opposed to the laws he sees Plato as promulgating.

THE DIFFUSION OF SPARTAN AND PLATONIC IDEAS Montesquieu opposes the laws of Sparta and of Plato. His opposition is so very important because he shows that these laws belong not simply to the past, but also to the present, and potentially to the future. In The Spirit of the Laws he traces the extensive influence of Spartan ideas. As we have seen above, Montesquieu reports in book 7 that Spartan ideas traveled to the Italian peninsula with the Samnites, who were colonists of the Spartans. Montesquieu explains elsewhere that when the Decemvirs embarked on the project of codifying Roman law, they specifically sought out the laws that existed in these Greek towns on the Italian peninsula. As a result of this

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research on the part of the Romans, some of the laws that the Decemvirs included in the Twelve Tables were originally Spartan laws. Montesquieu also explains that in some instances, Rome ultimately rejected the notions of the Spartans, and in others this conquering city not only embraced them but also transmitted them in turn. Indeed, when Roman law was revived during the Middle Ages, so too were laws of Spartan provenance that the Romans had embraced. So deep and wide does Montesquieu find this influence that he identifies a contemporary French law that owes its origin to a Spartan law. Remnants of Lycurgus’s legislation persist, Montesquieu therefore points out. This recognition brings us to another: Plato’s ideas, which persist in his writings and which correct and perfect Sparta’s laws, are even more pervasive, and hence potentially more influential, than those extant fragments of Lycurgus’s ancient laws. Montesquieu notes that the laws of the Roman Empire, of Sparta, and of Plato all sought to punish the act of suicide. Despite this similarity, his closer inspection reveals to him that Spartan and Platonic law did not, in fact, inform this particular Roman law. The motivations of the ancient Greek republics in outlawing suicide are different from those of the Roman emperors, he finds. This examination allows him the opportunity to underscore that Plato speaks for the laws of Sparta and to examine their conjoined motivations for this particular aspect of their legislation in a discussion that provides further insight into Montesquieu’s stance toward Platonic ideas. He notes that originally the Romans had no law against suicide, but eventually one was introduced under the emperors. The introduction of such a law into Rome was motivated by simple greed, he explains. The “avaricious” emperors saw that their victims were protecting their heirs by committing suicide before the conclusion of the legal proceedings that could result in their convictions and the subsequent confiscation of their property. In order to acquire the property that suicide was denying them, the emperors declared it a crime “to take one’s life out of remorse for another crime” and thus confiscated the property of those so convicted. To buttress his claim regarding the purpose of this law in the Roman Empire, Montesquieu declares: “What I say of the motive of the emperors is so true that they agreed that the goods of those who killed themselves should not be confiscated when the crime for which they killed themselves was not subject to confiscation” (29.9, 606–7). The motive behind Sparta’s and Plato’s laws against suicide is entirely different from that of the emperors’ laws, Montesquieu finds. In order to explicate the difference in purpose between the Spartan law and the later Roman one, he has recourse to the authority of Plato. Indeed, he begins this

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entire discussion not with a treatment of the Spartan law but rather with a quotation from a passage of Plato, which he identifies in his note as being from book 9 of The Laws: “‘A man,’ says Plato, ‘who killed the one with whom he is most closely linked, that is, himself, not by order of the magistrate, or to avoid ignominy, but from weakness, will be punished.’” Montesquieu goes on to explain that the intention of the Spartan law, for which Plato speaks, is entirely different from that of the Roman emperors. “Plato’s law was formed along the lines of the institutions of the Lacedaemonians, where the orders of the magistrate were completely absolute [totalement absolus], where ignominy was the greatest misfortune, and weakness the greatest crime. Roman law abandoned all these beautiful ideas [toutes ces belles idées]; it was a fiscal law only” (29.9, 606; OC 2: 870; I have corrected the translation). Here again Montesquieu notes that link between Plato’s laws and Sparta’s. In providing this explanation, Montesquieu also notes that Plato supports the absolute power of the magistrate. Thus, in this context Montesquieu does not describe the Roman emperors, notorious for their absolute and arbitrary power, in such terms. Indeed, they did not apply the penalty against suicide universally, but rather only in cases where the original crime had been subject to the penalty of confiscation. In pinpointing total absolute authority in this context, Montesquieu looks not to the Roman emperors but rather to Spartan law and to Plato’s correction of it. What guided such absolute authority, in Montesquieu’s view, were ideas—beautiful ideas—by which, in this particular case, the Roman emperors were not influenced. Montesquieu’s application of the adjective beautiful to these particular ideas appears to be an endorsement of them. Despite their beguiling appearance, however, Montesquieu will not, in fact, endorse them.47 In the chapter entitled “Things to observe in the composition of laws,” seven chapters after first mentioning Plato’s law regarding suicide, which was informed by such “beautiful ideas,” Montesquieu explicitly criticizes Plato’s law. He explains: “The law of Plato, as I have said, wanted one to punish the one who killed himself not to avoid ignominy, but from weakness.” In propounding his law that needed to ascertain the motive of the accused, Plato failed to see that the motive could not be determined: “This law was defective because in the only case where one could not draw from the criminal the admission of the motive that made him act, it wanted the judge to base his determination on these motives” (29.16, 615). Plato may have had “beautiful ideas,” but the law he propounds is defective. Montesquieu here exposes Plato as offering an ill-considered law. According to Montesquieu’s analysis, Plato’s laws were based on the absolute power of the magistrates, but Montesquieu has just shown that magistrates are not

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omniscient—that they cannot determine the motive of a dead man, which Plato’s particular law on suicide required. Plato the legislator made the most elementary of mistakes, Montesquieu reveals.48 With this realization, Montesquieu’s application of such an adjective to Plato’s ideas has the distinct ring of ironic sarcasm. Although both the Roman republic and the empire failed to embrace the Spartan and Platonic idea that suicide constituted a crime, Rome did accept and transmit other Spartan laws. Indeed, he characterizes the Romans themselves as being partially from Spartan stock when he observes that the “Romans, who came for the most part from the Latin towns, which were Lacedaemonian colonies, . . . had, like the Lacedaemonians, the respect for old age that gives it all honors and all precedence.” He also notes in this context that Rome “had even drawn a part of their laws from” these colonies when the “Roman deputies who were sent in search of the Greek laws went to Athens and into the towns of Italy” (23.20, 443n57). Montesquieu does not elaborate here, but presumably he means the deputies of the Decemvirs who were elected to codify the Roman laws and who produced the Twelve Tables.49 In a different context Montesquieu discerns a Spartan law embedded in a Roman one on marriage, for instance. The Roman law permitted “the husband” “to lend his wife to another.” He asserts that this law “is manifestly a Lacedaemonian institution, established to give the republic children of a certain breeding [espèce], if I dare use this term [si j’ose me server de ce terme]” (26.18, 513; OC 2: 771). Here again, he refers to the singular institution of the Spartans with respect to marriage. By using the term dare, he conveys the suggestion that there is something improper in this manner of speaking of the generation of human children. He thus appears to be referring to Plutarch’s report that Lycurgus compared the formation of citizens to the breeding of dogs and horses. According to Plutarch, “the laws of other nations seemed to [Lycurgus] very absurd and inconsistent, where people would be so solicitous for their dogs and horses as to exert interest and to pay money to procure fine breeding, and yet kept their wives shut up, to be made mothers only by themselves, who might be foolish, infirm or diseased; as if it were not apparent that children of a bad breed would prove their bad qualities first upon those who kept and were rearing them, and well-born children, in like manner, their good qualities.”50 Plato’s Socrates uses the very comparison in explaining the practice of eugenics in the good city.51 Montesquieu again points to the extreme character of the laws of the republics of singular institutions. Montesquieu also finds a Spartan origin in the distinction in punish-

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ment that the Roman “law of the Twelve Tables” makes between manifest robbery, in which “the robber was caught with stolen goods before he had put them where he had decided to hide them,” and nonmanifest robbery, in which the thief secreted the stolen items before being discovered (29.13, 609). He notes that the Roman law of the Twelve Tables prescribed whipping and servitude for an adult who was found guilty of manifest robbery, while one guilty of nonmanifest robbery suffered only a fine that was equivalent to double the value of the stolen item. The subsequent Porcian law softened the penalty for manifest robbery, replacing a whipping and servitude with a fine, but still retained a heavier fine for this crime than for nonmanifest robbery (29.13, 610). He acknowledges that it “seems odd that the laws put such a difference in the status of these two crimes and in the penalty they inflicted for them,” for after all “whether the robber was caught before or after carrying the stolen goods to the place of destination was a circumstance which did not change the nature of the crime.” By way of explanation he comments: “I cannot doubt that the whole theory of the Roman laws on robbery was drawn from Lacedaemonian institutions.” In explaining the reason for the distinction, he refers to the intention of Sparta’s founder, who, as we have seen, “with a view to endowing his citizens with cunning, trickery, and quickness, wanted the children to be trained in petty theft and be severely whipped if they were caught; among the Greeks and later among the Romans, this established a great difference between manifest robbery and non-manifest robbery” (29.13, 610). As a result of its incorporation of some Spartan laws into its own, Rome gave them an extremely wide and long influence. Just as he points to Plutarch’s Life of Lycurgus to fill out his terse comments in book 4, so in this book he instructs his reader to compare Plutarch’s Life of Lycurgus with specific “laws in [Justinian’s] Digest” and “Institutes.” Therefore, some of the Roman laws that the Christian Emperor Justinian compiled owe their origin to the genius of Lycurgus and, as Montesquieu says, “a more distant past” (29.13, 610 and n. 19). The singular regime from which these laws were drawn made them unsuited for use in Rome, in Montesquieu’s view: when these laws “were carried from Lacedaemonia to Rome, as they did not find the same constitution, they were always foreign to it and had no link with the other civil laws of the Romans” (29.13, 611). In contrast to his treatment of the law against suicide, Montesquieu does not claim that this law, which punishes manifest more severely than nonmanifest robbery, belongs both to Plato and to Lycurgus. Nevertheless, even in this context he refers to Plato as an authority on the laws of Sparta, when he undertakes to explain the law’s provenance. “The Lacedaemonians

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had drawn these usages from the Cretans, and Plato, who wants to prove that the Cretan institutions were made for war, cites this one: ‘The faculty of bearing pain in individual combats and in petty thefts that have to be concealed.’” His note refers the reader to book 1 of Plato’s Laws (29.13, 610 and n. 20). In this manner, Montesquieu renders Plato the expounder of this particular law of Lycurgus. Again, he associates Plato with Sparta because Plato’s writings explicate and justify the intentions of Sparta’s legislator. Thus, Montesquieu finds that Rome embraced aspects of Spartan law, and Rome’s embrace kept Lycurgus’s legislation alive. Indeed, Spartan laws from so distant a past still exert an influence in his own times, Montesquieu testifies, when he turns to another law regarding theft and the concealment of the stolen goods. He finds that “Greek and Roman laws punished the receiver of stolen goods as they did the robber.” These laws were incorporated into Justinian’s Digest. Moreover, he finds in his own time that “French law does the same.” He comments that while the ancient laws were “reasonable,” the modern one “is not.” The ancients used a pecuniary penalty for robbery, but the moderns use a “capital” one. “But as among us the penalty for robbery is capital, it has not been possible to punish the receiver like the robber without carrying things to excess” (29.12, 609). The Spartan influence has created confusion in French law and pushed a contemporary law to an extreme. In this manner, Montesquieu establishes that the old laws, deriving from antique and singular ideas, still exert an influence and can mix uncomfortably with modern laws. In this instance, they condemn to death those convicted of receiving stolen goods. If portions of Lycurgus’s laws were incorporated into Roman law, surviving to be codified in the constitutions of the Roman emperors such that pieces still remain in the laws of the successor states, then Plato’s legislation remains even more intact. Plato’s laws, as contained in his writings, continue to transmit a form of Spartan legislation—one that the ancient philosopher has corrected and perfected.52 The ideas contained within his writings continue to instruct regarding the laws of a republic devoted to virtue. Plato’s belles idées thus persist. Therefore, according to Montesquieu’s analysis, Plato’s laws remain even more pervasive and potentially influential than the long-surviving Spartan laws that they correct and perfect.

CONCLUSION The influence of Plato’s correction and perfection of Spartan law attests to Plato’s continuing influence as a legislator. But Montesquieu opposes that influence. For instance, he repeatedly shows Plato punishing to excess. He

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shows how Plato would punish with death magistrates in a republic who receive gifts (5.17, 67) and citizens of a republic who engage in commerce (4.8, 40). Similarly, he displays how Plato endeavors to punish those who commit suicide (29.9, 606 and 29.16, 615).53 Moreover, he notes how Plato prescribes the death penalty for a slave who exercises his right to natural defense (26.3, 496). In another instance, he states that in “Plato’s Laws, those who neglect to alert or aid magistrates are to be punished” and then observes that Plato’s law “would not be suitable today” as modern states have a partie publique, or a prosecutor, so that the citizens can remain “tranquil” (6.8, 82; OC 2: 317). Certainly, a prominent aspect of Montesquieu’s opposition to Plato can be said to arise from the fact that the ancient legislates an abundance of punishments, which are often excessive. Montesquieu also comments in the very chapter that succeeds this one that “[i]n [moderate states] a good legislator will insist less on punishing crimes than on preventing them; he will apply himself more to giving mores than to inflicting punishments” (6.9, 82). One might be inclined to say that, in Montesquieu’s view, Plato is not a good legislator on this particular score as he offers a panoply of punishments. It should be noted, however, that Montesquieu here specifies that he speaks particularly of legislators in moderate states. As we know, however, Plato is a legislator not of a moderate state but rather of singular institutions.

chapter six

Aristotle’s “Manner of Thinking” and the Deleterious Use of His Ideas

B

oth Aristotle and Montesquieu are great aficionados of the events of the political world, and their works, in which they document the foundings, the laws, and the revolutions of the regimes known to them, reflect their learnedness. One commentator notes that The Spirit of the Laws, upon its publication, “was hailed as the first systematic treatise on politics since Aristotle.”1 Montesquieu lets us see in The Spirit of the Laws that he learned a significant portion of his knowledge of the ancient world from Aristotle.2 He draws on Aristotle, for example, when he speaks of Phoenicia, of Crete, of the corruption of the Athenians after their victory at Salamis, of Philolaus of Corinth, and of Phaleas of Chalcedon. The resulting political philosophies of Aristotle and Montesquieu share some important commonalities. For instance, although both recognize the existence of opportunities to improve political practice, they are also keenly aware of the drawbacks—the dangers even—of sudden innovations.3 Similarly, both encourage moderation in rulers and ruled alike.4 As we know, Montesquieu proclaims: “I say it, and it seems to me that I have written this work only to prove it: the spirit of moderation should be that of the legislator” (29.1, 602).5 He also declares that “men almost always accommodate themselves better to middles than to extremities” (11.6, 166).6 Moderation is particularly important for the leaders of an aristocratic republic, he advises (3.4). Aristotle, of course, highlights in the Nicomachean Ethics the desirability of moderation by depicting the virtues as means between two extremes, one of excess and the other of deficiency,7 and underscores the importance of moderation in the Politics, for example, when he prescribes moderation for the problem of people’s desire to acquire beyond the necessary things.8 In addition, both speak of the formative character of climate on human populations. Aristotle links the cold north with spiritedness and 169

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political freedom, and the warm south with art and thought but a lack of spiritedness and, thus, a concomitant lack of political freedom.9 Montesquieu buttresses a very similar argument with his findings from modern experimental science.10 A careful consideration of Montesquieu’s treatment of Aristotle’s thought and of its implications within The Spirit of the Laws reveals another, rather surprising, commonality. It arises from the manner in which Montesquieu begins his chapter “On legislators,” where he describes what he understands as the two opposed foci of Aristotle’s passions. The philosopher, he claims, “sometimes wanted to satisfy his jealousy [jalousie] of Plato, sometimes his passion for Alexander [the Great]” (29.19, 618; OC 2: 882). Montesquieu selects for the focus of Aristotle’s passions an exemplary representative of the philosophical and of the political life respectively, the two types of lives that the ancient regards as the best for human beings. But by pointing to these two individuals specifically, Montesquieu offers not merely an exposition of Aristotle’s thought, but also a critical assessment of it. According to Montesquieu, Aristotle’s thought reveals his envy of his teacher and his attraction to his student.11 What Montesquieu identifies as Aristotle’s stance toward these two individuals replicates to some extent his own because Montesquieu himself often treats Plato as his particular opponent, as we have already seen in the previous chapter, and displays a marked partiality toward Alexander, as we will see in this one. Of course, Montesquieu lacked the personal contact with these two figures that he sees fueling the ancient’s particular passions with respect to them. Even apart from this distinction between their respective historical situations, however, Montesquieu’s reasons for his own eschewal of Plato and exaltation of Alexander are very different from those of Aristotle. Indeed, Montesquieu’s reasons for both reveal his very substantial objections to aspects of Aristotle’s teachings. Montesquieu shows that he can oppose Plato and embrace Alexander without succumbing to the same pernicious prejudices regarding the inherent inferiority of various people that, in his estimation, marred Aristotle’s thought. Moreover, by revealing and criticizing these prejudices of Aristotle, Montesquieu undertakes both to cure similar prejudices in others who have embraced Aristotle’s teachings and to inoculate those in future generations who will be exposed to them. Just as a dispute over slavery provides important grounds for Montesquieu’s opposition to Plato, so too does the issue foment his opposition to Aristotle. Montesquieu hails Alexander for having rejected Aristotle’s advice on how to rule his conquests and having adopted instead an approach that exemplifies Montesquieu’s own recommendations. Montesquieu

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sees the conqueror as rejecting Aristotle’s opinion of the inferiority of foreign peoples that would justify the Greeks’ enslavement of them. Moreover, Montesquieu depicts Alexander as endeavoring to unite humanity in comity. Montesquieu goes on to challenge Aristotle directly on the issue of slavery. Montesquieu explicitly denies Aristotle’s assertions that some slavery exists by nature and that this type benefits both master and slave. Montesquieu unequivocally states that slavery is harmful to the slave as well as to the master. Moreover, Montesquieu finds slavery at the very foundation of the ancient republic, and this finding, in his assessment, renders that republican enterprise fundamentally despotic. The principle of the ancient republics was virtue, but the despotism that the republican citizen exercised over slaves undermined that virtue, and hence the very principle of the regime. According to Montesquieu’s analysis, the ancient republics need not have founded themselves on slavery. He blames their laws, and, thus, their legislators, who stand responsible for these defective laws. Aristotle is one such legislator and akin to the other legislators of Greece because in the best regime of his own devising he consigns the farmers to slavery. On this very issue, Montesquieu highlights a poignant contradiction in Aristotle’s thought. He points out that Aristotle himself recognized that the corruption of the former aristocratic republics into democratic ones, in which the farmers who were formerly enslaved became free, produced the best form of government then known. This recognition, however, did not induce Aristotle to repudiate his best regime in thought, which contained slavery, for this good regime in practice, which did not. In this manner, Montesquieu reveals that Aristotle did not build on the recognition that the corruption of an actual regime could produce most favorable political results. By contrast, the Frenchman underscores that his thought does not manifest a similar prejudice against corruption; unlike Aristotle, Montesquieu is capable of descrying good political practice even if it does arise from corruption. In his discussions of the “gouvernement gothique,” he declares that he identifies the great good to which “corruption” can give rise, finding that this type of monarchy is “the best kind of government men have been able to imagine [imaginer]” (11.8, 167–68; OC 2: 409).12 Indeed, it is on the topic of monarchy that Montesquieu issues another rebuke of Aristotle’s political acumen. Aristotle, like all the other ancients, lacked the critical idea of monarchy that historical circumstances aided Montesquieu in formulating. Therefore, an examination of Montesquieu’s treatment of Aristotle shows that he criticizes not only Aristotle’s conception of a republic, but also the ancient’s understanding of monarchy. In the

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process, Montesquieu gives a more positive cast to his own critical thought: he shows how correct ideas might keep despotism at bay. Montesquieu identifies other ways in which Aristotle’s thought is fundamentally similar to that of the other ancient legislators. For example, Montesquieu highlights how Aristotle, even when attempting to offer a rebuke of his teacher, succeeds only in intensifying his teachings. Specifically, Montesquieu shows Aristotle lashing out at Plato when noting that the regime of The Laws does not sufficiently take care to maintain curbs on human reproduction. In response to Plato’s lapse, Aristotle recommends even stricter controls. In addition to linking Aristotle’s ideas on slavery, monarchy, and population to those of other ancient political men, Montesquieu shows that Aristotle shares their hesitations regarding the use of silver. In fact, Montesquieu’s treatment of Aristotle on the topic of lending capital at interest not only links the student to his teacher but also highlights the very long lifespan that harmful ideas can have. The Frenchman argues that the Scholastics’ embrace and promulgation of Aristotle’s condemnation of lending at interest as unnatural harmed the spread of commerce and resulted in human atrocities in Europe during the thirteenth century. In contrast to Aristotle’s arguments, Montesquieu asserts that interest on loans is either naturally permitted or necessary. In order to nurture commerce, Montesquieu argues that states should not proscribe loans at interest. This is no arcane academic disagreement over inconsequential distinctions; Christian Aristotelianism produced barbarism in Europe, Montesquieu charges. Therefore, Montesquieu’s treatment of the ancient in The Spirit of the Laws suggests both that Aristotle is the purveyor of noxious ideas and that his ideas were put to a most harmful—indeed, barbarous— purpose. Montesquieu depicts Aristotle as an overt critic of Plato. Aristotle does, in fact, offer a pointed criticism of Plato’s Republic and its attempt to unify a city by doing away with property and the family, elements of the singular institutions that Montesquieu associates with Plato, Lycurgus, and Minos. Because Aristotle criticizes these salient singular institutions, he cannot be categorized neatly as a Greek political man, and, indeed, Montesquieu nowhere links his name explicitly to that triad of Greeks. Nevertheless, Montesquieu’s treatment of Aristotle serves to equate him with these ancient political men on other grounds: their mutual concern to limit population growth, their unified support of slavery, their failure to understand the proper form of monarchy, and their disdain for commerce.

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ARISTOTLE’S AND MONTESQUIEU’S OPPOSITION TO PLATO In presenting Aristotle’s treatment of Plato, Montesquieu highlights what he sees as Aristotle’s opposition to his teacher. Aristotle does, in fact, subject Plato’s works to criticism in the Politics, and Aristotle’s critical approach to Plato is similar in some respects to Montesquieu’s own. Specifically, both Aristotle and Montesquieu treat Plato’s imaginary cities—The Laws and The Republic—as if they were blueprints for actual cities. This tendency is most evident with respect to The Republic because Aristotle and Montesquieu ignore Socrates’s institution of the philosopher-kings when discussing this work, an oversight that greatly enhances the ability of each commentator to depict the regime of The Republic as an attempt at legislation for an actual city. Thus, not only does Montesquieu regard Plato as a legislator, but Montesquieu’s examination of Aristotle points to the fact that Aristotle did as well. In addition, in presenting Aristotle’s treatment of The Laws specifically, Montesquieu shows that although Aristotle treats it in a spirit of opposition, that very opposition ties him all the closer to Plato’s aspirations. Montesquieu links Aristotle to Plato because both recommend severe restraints on human reproduction. According to Montesquieu’s assessment, Aristotle may have flailed in jealousy against Plato, but the student did not successfully break from the orbit of his teacher. In this important respect, then, Aristotle is akin to all the other Greek political men of antiquity in Montesquieu’s estimation. When Montesquieu declares in book 29 that Aristotle was jealous of Plato, he is, in fact, reiterating a point that he makes early in the work. In examining the character of education in the ancient republics, Montesquieu declares that Aristotle “seems to have written his Politics only in order to oppose his feelings [sentiments] to Plato’s” (4.8, 39; OC 2: 271). In Montesquieu’s view, then, Aristotle’s great work on politics is an expression of his desire to oppose Plato. Quite in keeping with his treatment of the philosophic legislators in book 29, in which Montesquieu reduces the political philosophy of previous thinkers to what he apprehends as their particular passions and prejudices, he speaks here in book 4 not of the reason of Aristotle, but rather of his sentiments. When one reads Montesquieu’s statement in book 4 regarding the feelings of Aristotle in light of his discussion of Aristotle’s specific passions in book 29, one concludes that, in Montesquieu’s estimation, Aristotle’s opposition to Plato arises from his jealousy of his teacher; Aristotle opposes Plato because he wishes to surpass him. Not

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only does Montesquieu declare that he fathoms the passions that motivated Aristotle to write, but he also goes on to suggest that he is capable of assessing the success of Aristotle’s intentions. Aristotle may have wanted to dispute Plato’s politics so as to surpass him, but Montesquieu here adduces an issue on which Aristotle could not complete that break: “nevertheless [Aristotle] agrees with [Plato] about the power of music over mores” (4.8, 39). Moreover, as his analysis in the work develops, Montesquieu discovers many other such fundamental agreements between the student and the teacher. Therefore, although Montesquieu asserts that Aristotle’s intention was to dispute Plato’s teachings, Montesquieu discerns and documents Aristotle’s failures on this score. Montesquieu’s statement about the motivation behind the composition of the Politics draws his reader’s attention to Aristotle’s actual treatment of Plato in the work in order to evaluate whether it can be concluded that Aristotle so challenges his former teacher that he wrote the Politics “only in order to oppose his feelings to Plato’s” (4.8, 39). Although Aristotle’s particular motivations for the various arguments of the work are ultimately unknowable, if Montesquieu’s point is that the work displays the student’s criticism of his teacher, then it is well founded. Indeed, Aristotle begins the Politics by claiming that those who believe that “the qualifications of a statesman, king, householder, and master are the same” but “differ” only in the number of individuals over whom they rule are fundamentally mistaken. They are mistaken because they fail to recognize that the “political community” “aims at . . . the highest good,” which makes political rule not only quantitatively but also qualitatively different from rule in the household or over slaves.13 Although Aristotle withholds the identity of those whom he opposes on this point, the mistaken claim can be found in Plato’s corpus, as the Stranger in The Statesman names these very same four rulers and asserts that their rule is united by a single science that differs only in its application to different numbers of subjects.14 In addition, Aristotle offers extended and trenchant criticism of the cities his teacher offers in The Republic and The Laws, when in book 2 of the Politics he considers claimants to the best regimes in reality as well as in speculation. Aristotle introduces the topic by noting that citizens are partners in the political relationship and then proceeds to consider how far the proper political partnership should dictate the citizens’ other partnerships in matters such as child rearing, marriage, and holding property. Aristotle turns to examine these regimes reputed to be best through this lens of partnership, noting that “citizens might conceivably have wives and children and property in common, as Socrates proposes in the Republic of

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Plato.”15 In this work, Plato’s Socrates makes the political partnership encompass all other partnerships, and Aristotle spends the next four chapters examining the details of the regime of The Republic. These four successive chapters of the Politics repeatedly refer to the reasonings and the various laws of Socrates, not of Plato. In maintaining that the Politics manifests Aristotle’s opposition to Plato, Montesquieu clearly understands Aristotle’s critical references to Socrates, Plato’s leading character in the dialogue, to be veiled criticisms of Plato. All of Aristotle’s criticisms of communal property and family contribute to a most formidable challenge to the principle of unity that guides the city of The Republic. Aristotle concludes that “it is evident that a city is not by nature one in that sense which some persons affirm; and that what is said to be the greatest good of cities is in reality their destruction.”16 Aristotle charges that Socrates’s constructive intentions would be entirely ruinous for the city; no greater condemnation could be lodged against a legislator. The means that Aristotle and Montesquieu use to attack Plato’s legislation are quite similar; both writers criticize Plato’s cities in speech as if they were intended as actual models. Indeed, neither mentions the comments of Plato’s Socrates that suggest that the good city in The Republic is unlikely ever to be realized. Although many aspects of the city would be difficult to implement or to sustain once established, there is one institution in particular that makes the city seem impossible to establish as Socrates and his interlocutors have imagined it—that is, the rule of the philosopher-kings. Plato’s Socrates acknowledges how very paradoxical this requirement for the curing of the ills of cities is by calling it the third and “biggest wave,” which threatens to overwhelm him “in laughter and ill repute.” By admitting that such a demand would bring laughter and contempt upon the founders of the city were they ever to make its requirements known more broadly, Socrates—Plato’s character—reveals that it may very well be impossible of realization, that it may not even be intended to be realizable.17 Both Aristotle and Montesquieu fail to make any reference whatsoever to the institution of the philosopher-kings when they undertake their respective critical examinations of Plato’s Republic.18 In considering Plato’s city of The Republic as a proposal for legislation, they both overlook that which most clearly calls into question just such an intention on the part of the author. Thus, Montesquieu enlists Aristotle as a compatriot in his assessment that Plato is a legislator. Perhaps Aristotle taught Montesquieu certain tactics in how to oppose Plato’s legislation; perhaps Montesquieu learned from Aristotle to regard philosophers as legislators—that tendency that Montesquieu reveals so strikingly in his chapters on legislators in book 29.

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Aristotle, though, has his own legislative ambitions, which he reveals most clearly in his provision for “the best regime” in books 7 and 8 of the Politics, and Montesquieu, in fact, engages a facet of Aristotle’s recommendations there that bears on Aristotle’s relation to Plato. As we know, Montesquieu contemns the Greek political men for putting severe constraints on the populations of their cities. In the very place in which Montesquieu discusses the manner in which the “Greek political men” were “particularly attached to regulating the number of citizens,” he cites Aristotle’s own recommendation for controlling the population: “If the law of the country, says Aristotle, prohibits the exposing of infants, the number of children each man is to beget has to be limited. To someone who has more children than the number specified by the law, he counsels causing the woman to miscarry before the fetus has life” (23.17, 438). Montesquieu’s note refers the reader to “Polit., liv. VII, ch. xvi,” where Aristotle does make just such a recommendation for his best regime (OC 2: 694). Moreover, this abiding concern of Aristotle for limiting population motivates one of his criticisms of Plato when engaging with The Laws in book 2 of the Politics, where Aristotle comments that “[t]here is an absurdity, too,” in this regime, “in equalizing the property and not regulating the number of citizens.” Aristotle here claims that the population of the regime outlined in Plato’s dialogue will outgrow the allotments of land, creating impoverished individuals. Such individuals are a dangerous element in the regime because, disenfranchised as they are, they have a powerful motivation to engage in factional conflict. Aristotle offers an alternative approach that would find it “even more necessary to limit populations than property.”19 Ultimately, Aristotle agrees with his teacher on the fundamental point and disagrees only in that his teacher’s provisions were not extensive enough. Montesquieu, for his part, rejects the ancients’ attempts to limit populations in any way whatsoever. Therefore, the opposition that both Aristotle and Montesquieu manifest to Plato does not serve to bring the critics together in a united front.

ARISTOTLE’S AND MONTESQUIEU’S PASSION FOR ALEXANDER THE GREAT Not only does Montesquieu share with Aristotle an attempt to oppose the thought of Plato, but they also share an attempt to associate themselves with Alexander the Great. Montesquieu himself displays in The Spirit of the Laws both a fascination with Alexander and a keen regard for this conqueror’s accomplishments. He entitles two chapters with the name of Alexander, the first in book 10, dealing with conquests, and the second in

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book 21, dealing with the revolutions that commerce has brought to the world. To the title of the second he appends after Alexander’s name the words “His conquest” (21.8, 364). Although Montesquieu shares with Aristotle a high regard for Alexander, part of Montesquieu’s embrace of the conqueror derives from the fact that Alexander rejected Aristotle’s advice. Therefore, Montesquieu and Aristotle descry very different possibilities arising from Alexander’s ambition. Whereas Montesquieu depicts Aristotle’s passion for Alexander as deriving from Alexander’s opportunity to subject the barbarians to the mastery of the superior Greeks, Montesquieu’s own passion derives from the fact that Alexander treated the peoples he subjugated as equals. For Montesquieu, Alexander’s achievement exemplifies the rejection of the enslavement of foreign peoples, and hence of Aristotle’s advice and teachings. Montesquieu’s regard for Alexander appears quite paradoxical upon an initial consideration because the Frenchman is no partisan of wars of conquest. Indeed, he establishes strict rules for the waging of offensive war, maintaining that the only justification for an attack is self-defense. Nevertheless, he acknowledges that self-defense “sometimes carries with it a necessity to attack, because a nation can undermine its own survival by postponing attack.” Although on this basis he recognizes some wars as necessary, he will not countenance war for the sake of glory: “Above all, let one not speak of the prince’s glory; his glory is his arrogance; it is a passion and not a legitimate right” (10.2, 138–39). He announces his position, therefore, as one who sees war and its sometimes attendant conquest as an unfortunate and lamentable aspect of the human condition. He chastises princes and republics that deviate from this position of wary self-restraint. He himself deviates from this very position, however, when in this same book, he praises those offensive wars that destroy destructive prejudices among the conquered. Alexander waged just such a war, Montesquieu points out, because after his conquest, he “forbade” the Bactrians to feed their elders to large dogs. In Montesquieu’s estimation, Alexander thereby gained “a triumph” “over superstition” (10.5, 142). Montesquieu’s effusive treatment of Alexander is an instance of a striking deviation from his declared policy of condemning wars of aggrandizement.20 Montesquieu also notes that Alexander rejected Aristotle’s advice as to how to administer his conquests. Montesquieu declares that Alexander “resisted those who wanted him to treat the Greeks as masters and the Persians as slaves.” Montesquieu’s own note to this declaration states, “This was Aristotle’s counsel,” and refers to Plutarch’s “De la fortune d’Alexandre” (10.14, 149; OC 2: 389).21 Here Montesquieu reveals what he regards as a

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key aspect of his assessment of Aristotle’s thought: it promotes slavery and hence despotism. Montesquieu turns immediately to showing how, in his estimation, Alexander rejected Aristotle’s advice: Alexander “thought only of uniting the two nations and wiping out the distinctions between the conquerors and the vanquished.” Montesquieu concedes that there were “prejudices that had served him in making it,” but insists that after the conquest he abandoned those prejudices. Montesquieu finds that Alexander’s abandonment of prejudice is revealed by his assumption of “the mores of the Persians” (10.14, 149). Montesquieu’s Alexander does even more to counter prejudice, however. His Alexander “left to the vanquished peoples not only their mores but also their civil laws and often even the kings and governors he had found there.” “He respected the old traditions and everything that recorded the glory or the vanity of these peoples,” and “there were few nations at whose altars he did not sacrifice.” Alexander can in some sense be termed a “conqueror” and “usurper,” but the effects of his conquest and usurpation do not condemn him; rather, those very effects exonerate him to such an extent that they actually serve to exalt this extraordinary unifier of humanity (10.14, 149–50). Montesquieu’s treatment of Alexander seems to concede that the conqueror’s motives were not necessarily as pure as the desirable effects of his conquest might suggest. Montesquieu observes that Alexander himself took wives from the vanquished nations and encouraged his own commanders to do the same, but also notes that “[n]othing strengthens a conquest more than unions by marriage between two peoples.” Because he preferred to risk “unfaithfulness” of a few isolated individuals than to risk a general rebellion among the conquered people, he placed “at the head of the government” “people from the invaded country.” Therefore, Alexander’s embrace of the mores, the religious practices, and the leaders of the Asian peoples are not ends in themselves but rather means by which to solidify his conquest. Nevertheless, the results are vastly different from those of other conquerors, Montesquieu notes: “The Romans conquered all in order to destroy all; [Alexander] wanted to conquer all in order to preserve all, and in every country he entered, his first ideas [ses premières idées], his first designs, were always to do something to increase its prosperity and power” (10.14, 149–51; OC 2: 391). Such ideas are far from the despotic ideas that this examination of The Spirit of the Laws has been highlighting. In fact, as Alexander’s treatment of the Bactrians shows, the conqueror did a better job of preserving the lives of some of their number than did the Bactrians themselves. Here Montesquieu also reveals his stern disapproval of the Roman conquests. A different kind of conquest, however, wins his approval.

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In the later of the two chapters entitled with the name of Alexander, Montesquieu assigns a new purpose to the conqueror. Montesquieu declares that “one cannot doubt that his design was to engage in commerce with the Indies through Babylon and the Persian Gulf” (21.8, 367).22 In order to encourage this commerce, Alexander had to overcome the religious compunctions of the Persians, whose “religion itself barred them from any idea [idée] of maritime commerce” (21.8, 365; OC 2: 614). Therefore, Montesquieu’s version of Alexander is not only that of a conqueror whose rule paradoxically asserts the equality of the people whom he unites in conquest, but also that of a warrior who conquers in order to promote commerce. Had Alexander’s final purpose been accomplished and sustained, it would have served to unite humanity further by continuing to spread commerce’s gentle mores among the world’s various peoples. Perhaps passion mixes with Montesquieu’s reasons for his fascination with Alexander. Although Montesquieu explicitly exempts his principles from his prejudices, as we saw in the introduction, he does not do the same for his passions, as he, in fact, makes a point of showing that he is overcome by empathetic and humane emotions as he writes of the horrors that some human beings inflict on others. If passion motivates Montesquieu’s regard for Alexander, it is his humane passions that so grip him, because the Frenchman emphasizes this great conqueror’s ability to unite humanity and to rid some cultures of their destructive prejudices and superstitions. Alexander overcame the destructive prejudices of the Bactrians and the superstitions of the Persians. What Montesquieu sees as Alexander’s achievement is similar to his hope for his own endeavor. “I would consider myself the happiest of mortals if I could make it so that men were able to cure themselves of their prejudices” (pr. xliv). Alexander’s accomplishment may in some way represent Montesquieu’s hope for himself. Perhaps, conjoined with any humane passions that Montesquieu may harbor for Alexander is a form of self-love, because the accomplishment of Montesquieu’s philosophical enterprise would render the thinker a metaphorical Alexander in establishing a humane empire.23

DESPOTISM AND ARISTOTLE’S TREATMENT OF SLAVERY Despotism, according to Montesquieu, is political slavery, and in order to explicate it, he asserts that the subjects of a despotism are akin to those held in civil slavery. Thus, in order to understand education for political slavery, he examines education for civil slavery, consulting in this matter the work of Aristotle specifically, who elaborates a theory of civil slavery according to nature. When later in the work Montesquieu devotes an entire

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book to a consideration of civil slavery, he turns again to Aristotle. In this subsequent discussion of Aristotle’s treatment of civil slavery, Montesquieu denounces the ancient’s theory of slavery according to nature. In this place, Montesquieu directly challenges Aristotle’s claim that the rule of a master over a slave can be the result of nature rather than of convention. Just as Montesquieu’s examination of civil slavery illuminates his understanding of political slavery, so his treatment of political slavery serves to explicate his understanding of the political ramifications of civil slavery. For Montesquieu, the rule of a free person over a slave is a form of despotism. On this basis, in the context of his treatment of civil slavery, he associates the ancient Greek republics, which held populations captive, with political despotism. Their citizens were also masters, and masters are despots. Despots do not practice moral virtue, and Montesquieu thus finds slavery undermining the very principle of republics—virtue. In this manner, Montesquieu uses Aristotle’s own concern for virtue against him. Montesquieu even reminds his readers that Aristotle’s best regime would use slaves as farmers, like Sparta. Not only Sparta, then, but even the city for which Aristotle would pray contains this despotism that contaminates its political life. Because they were masters of slaves, the citizens of the ancient republics—those in reality and those in thought—acquired the characteristics of political despots. In this manner, Montesquieu treats slavery through the lens of education: in his view, slavery takes from slaves the possibility of learning any type of virtue and teaches republican citizens how to be despots. If Aristotle were as interested in virtue as he claims, Montesquieu suggests, his teachings would renounce rather than embrace slavery. Montesquieu’s first reference to Aristotle in The Spirit of the Laws occurs in the context of the type of education appropriate in despotism. In this reviled regime, “education must bring about servility,” he notes, and he continues that so servile must these subjects be that even those who hold power should have been educated to be a slave: “It will be a good, even for the commander, to have had such an education, since no one is a tyrant there without at the same time being a slave” (4.3, 34). The denizens of despotism are slaves, Montesquieu thus maintains, and even the heads of households and commanders who rule others authoritatively in such a regime are themselves slaves of the despot. Montesquieu next shows how little interaction the denizens of a despotism have with each other, which severely constricts their knowledge. In a despotism “each household is a separate empire.” This separation of the population into isolated households has a decisively detrimental effect on education because “education, which comes mainly from living with

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others, is quite limited there.”24 He continues that “[k]nowledge will be dangerous, [and] rivalry deadly” (4.3, 34). Anyone who appears elevated over the many thereby poses a threat to the commander, who deals with such threats summarily. In this government, knowledge that elevates is dangerous; it leads to extermination. Knowledge of servility, which diminishes the status of that population, nevertheless preserves unenlightened people. An education that quashes the spirit in order to teach servility is not an education properly understood, and at the end of the chapter Montesquieu makes this very point: “Therefore, education is, in a way, null” in a despotism (4.3, 35). In reaching this conclusion, he appeals to the authority of Aristotle. Because Aristotle teaches about slavery, he aids our understanding of despotism, Montesquieu suggests. Therefore, in his first reference to this thinker in The Spirit of the Laws he proceeds to render the Greek a theorist of slavery. Having determined that all those who are subjects in a despotism are slaves, Montesquieu turns to Aristotle to discover what type of education the theorist of slavery recommends: “as for the virtues, Aristotle cannot believe that any are proper to slaves; this would indeed limit education in this government” (4.3, 34). Therefore, with this appeal to Aristotle’s authority, Montesquieu reaches the following specific conclusion: Because those who populate a despotism are slaves, and slaves do not need virtue, there is no need for extensive education there; knowledge of subservience is the only knowledge required. Montesquieu’s own note cites book 1 of the Politics, and in the specific passage to which he seems to refer, Aristotle states not that no virtues are proper to slaves but rather that a slave “will obviously require only so much excellence [ἀρετῆς] as will prevent him from failing in his function through cowardice or lack of self-control.”25 Montesquieu renders the small amount of virtue that Aristotle says is appropriate to slaves as its complete absence. For Montesquieu, this very denial of the cultivation of any virtues to human beings otherwise capable of them attests to slavery’s harmful character.26 Montesquieu reveals his own teaching on slavery in book 15 devoted to civil slavery.27 In this context he is not nearly as respectful to his predecessor as he is in the earlier book where he treats Aristotle as an authority— albeit an authority on slavery. In the later discussion, Montesquieu again takes Aristotle as the particular spokesman for slavery only to dispute explicitly his predecessor’s teachings by pointing out the insufficiency of his argument in favor of slavery by nature. Montesquieu displays his dissatisfaction with the ancient’s teachings when he pronounces that “Aristotle wants to prove that there are slaves by nature, and what he says scarcely proves it.”28 Having challenged the quality of his argument, Montesquieu

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provides no details from Aristotle’s text other than his reference to the first chapter of the first book of the Politics. Nevertheless, Montesquieu’s continuation suggests that his fundamental dispute with Aristotle arises from the fact that whereas the ancient posits fundamental human inequality, he himself posits fundamental equality. “But, as all men are born equal, one must say that slavery is against nature,” declares Montesquieu (15.7, 252).29 Against Montesquieu’s affirmation of human equality, which holds that no human being is determined by nature to rule over others, Aristotle deems that some are naturally fit for mastery and others for slavery. Therefore, what he sees as Aristotle’s desire to establish the existence of slavery by nature provokes Montesquieu to offer one of his most forthright pronouncements against slavery in his treatment of the topic in book 15.30 The continuation of Montesquieu’s statement seems to moderate this categorical rejection of slavery by nature, but does not at all see him inclining closer to Aristotle’s teaching. He elaborates: “although in certain countries it may be founded on a natural reason, and these countries must be distinguished from those in which even natural reasons reject it.” In some locations, it is so hot that it can be extremely difficult to induce free human beings to work at particularly arduous tasks. In such places, then, slavery is particularly suited to the climate. Montesquieu’s “natural reason” for slavery and “natural slavery” (15.7 and 15.8, 252) derive not from the nature of human beings such that some are natural slaves and others natural masters by virtue of their innate attributes, but rather from the demands of a particularly harsh natural environment. By contrast, Aristotle’s “slave by nature” derives precisely from a claim to human inequality. Montesquieu’s concession that a natural reason exists for slavery in very hot climates, therefore, still allows him to uphold the equality of all human beings. On the basis of equality, Montesquieu continues to dispute Aristotle’s claim that there are slaves by nature. Moreover, in chapter 8 Montesquieu reveals a possibility that would make even this concession to the natural environment’s support of slavery unnecessary. Before proffering it, he acknowledges that he does not know whether his “spirit” or his “heart dictates this point,” but then he persists: “Perhaps there is no climate on earth where one could not engage freemen to work.” Again, he concedes that his teaching may derive from his humane passions. He turns next to blame the laws for not taking adequate precautions in such a difficult environment: “Because the laws were badly made, lazy men appeared; because these men were lazy, they were enslaved” (15.8, 252–53). Even in an inhospitable environment, human beings can be induced to work by the correct laws, Montesquieu asserts. Behind such de-

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fective laws, then, stands an unworthy legislator. Montesquieu’s argument has progressed in the following manner: having rejected vast inequalities in the human material as a justification of slavery, he proceeds to blame the natural environment; and then, having considered that environment, he turns to blame the legislator’s lack of acumen and foresight for the existence of slavery—that lamentable institution that denies human equality and undermines the moral virtue of individuals. Precisely because the climate pushes toward slavery, “peoples of these climates have greater need of a wise legislator” who creates institutions and laws so that inhabitants are “impressed in a suitable manner, to accept no prejudices, and to be led by reason” (14.3, 235). Legislators could have taken steps to assure that lazy men did not appear in their realms.31 In order to come to a thorough understanding of Montesquieu’s criticism of Aristotle’s stance on slavery, one must turn to Aristotle’s Politics, where one finds that the ancient thinker embeds slavery in the household. The city, Aristotle teaches, is made up of households, and within each household he identifies three constituent relationships: master and slave; husband and wife; and parents and children. At this point he recognizes that some challenge the naturalness of the first relationship by arguing that “it is by law that one person is slave and another free, there being no difference [between them] by nature.” Although he gives voice to this argument, Aristotle does not himself embrace it. Instead, he upholds the naturalness of slavery. For instance, Aristotle’s first mention of slavery in the Politics declares: “For that which can foresee by the exercise of mind is by nature lord and master, and that which can with its body give effect to such foresight is a subject, and by nature a slave; hence master and slave have the same interest.”32 The slave is to body as the master is to the mind. The mind naturally rules the body as the master naturally rules the slave. Aristotle posits a very high standard for natural slavery: the slave should be as different from the master as the body is from the soul. He specifies: “Where then there is such a difference as that between soul and body, or between men and animals (as in the case of those whose business is to use their body, and who can do nothing better), the lower sort are by nature slaves, and it is better for them as for all inferiors that they should be under the rule of a master.”33 Aristotle recognizes that the slavery practiced in actual cities does not necessarily meet this standard. Those who are enslaved by law are not necessarily slaves by nature, and he notes that “no one would ever say that he is a slave who is unworthy to be a slave.”34 Nevertheless, when those who are enslaved merit it on the basis of their attributes because they participate “in reason enough to apprehend” but do not themselves have it,

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they are “slave[s] by nature.”35 Slavery, when it satisfies the requirements of nature, is beneficial both to the master and to the slave: “where the relation of master and slave between them is natural they are friends and have a common interest.”36 The consequences of Aristotle’s claim for the existence of slaves by nature become most evident in his discussion of natural acquisition: “And so, from one point of view, the art of war is a natural art of acquisition, for the art of acquisition includes hunting, an art which we ought to practice against wild beasts, and against men [ανθρώπων] who, though intended by nature to be governed, will not submit; for war of such a kind is naturally just.”37 The hunting of natural slaves is a form of just war, for Aristotle. Montesquieu, by contrast, declares in his opening chapter in the book devoted to the subject that slavery “is not good by its nature.” Having made this pronouncement—a pronouncement that contradicts Aristotle’s— Montesquieu elaborates: “it is useful neither to the master nor to the slave: not to the slave, because he can do nothing from virtue; not to the master, because he contracts all sorts of bad habits from his slaves, because he imperceptibly grows accustomed to failing in all the moral virtues, because he grows proud, curt, harsh, angry, voluptuous, and cruel” (15.1, 246). Far from benefiting the master and the slave, it harms both, Montesquieu asserts. He charges that their condition keeps slaves from practicing the virtue of which they would otherwise be capable; not being able to act from choice, slaves are denied the possibility of acting from virtue. With this conclusion, Montesquieu reproduces the content of his very first engagement with Aristotle in the work. As we saw above, Montesquieu reports in book 4 that Aristotle denies all virtue to slaves, when in fact Aristotle declares that slaves need possess only a small part of virtue. Now, in decrying the harmful effect of slavery, Montesquieu declares in his own name that they cannot practice any virtue at all. Montesquieu shows that on the basis of Aristotle’s own principle that virtue arises from choice, slaves cannot act from virtue.38 This denial of the possibility of virtue harms the slave, but according to Montesquieu, the master too is harmed, as he acquires “all sorts of bad habits from his slaves” and “grows accustomed to failing in all the moral virtues” (15.1, 246). Precisely because they are masters over others, those who hold slaves are not virtuous. To this point, the harm of slavery that Montesquieu depicts resides with individuals—with their practice of the virtues. But having citizens who as masters learn to be “proud, curt, harsh, angry, voluptuous, and cruel” and who fail at the practice of the virtues cannot help but have a harmful effect on the state as well. The qualities Montesquieu attributes to the master

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are the qualities of a despot, not those of a subject in a monarchy or of a citizen in a republic. He turns next to this very topic, the relation of slavery to the government, when he introduces the topic of its compatibility with the various governments. He finds, not surprisingly, that slavery is most at home in a despotism, “where one is already in political slavery.” He here rejects the notion that civil slavery can be compatible with the constitution of a republic—either a democratic or an aristocratic republic.39 He explains: “In democracy, where everyone is equal, and in aristocracy, where the laws should put their effort into making everyone as equal as the nature of the government can permit, slaves are contrary to the spirit of the constitution.” He continues that slaves “serve only to give citizens a power and a luxury they should not have” (15.1, 246). This is quite an accusation. All of the ancient republics had slaves, but Montesquieu here declares that slavery is incompatible with both types of republics. In addition, Aristotle’s best state and the regime of Plato’s Laws contain them. The labor of slaves afforded the citizens of the ancient republic the leisure for politics, for athletics, for war, and, as Aristotle specifies, for “philosophy.”40 According to Montesquieu, the very principle of the regime was virtue, but now he charges that slavery undermined the citizens’ virtue. He here uncovers a fundamental contradiction at the core of these republics. An institution of these republics undermined their very principle—virtue. Their republican pursuit of equality among the citizens was undermined because the slavery that supported their existence gave the citizens too much power. These slaveholding republics taught their citizens to be despots. Moreover, the charge of luxury, which he here lodges against the ancient republics, is quite surprising as he tends to associate luxury not with the ancient political men but rather with the modern ones (cf. 3.3). Elsewhere in his book on civil slavery, however, he pursues that charge. He distinguishes between two types of slavery, “real and personal,” and explains that the “real one” “attaches the slave to the land” and makes the slave responsible for providing the master with a certain amount of crops, livestock, or cloth. Personal slavery, by contrast, brings the slave into the home to perform “service in the household, and it relates more to the person of the master.” “Voluptuous peoples have personal slavery,” he specifies, “because luxury requires the service of slaves in the house.” Having made this distinction, he explains that the Spartans ignored the distinction, making their slaves serve them both in the fields and in the household. He says that “[e]xtreme abuses of slavery occur when it is personal and real at the same time” and points out that “[s]uch was the servitude of the Helots among the Lacedaemonians” who “were subjected to all the work outside

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the household and to all sorts of insults within the household.” Sparta’s practice of slavery was particularly noxious, then: “helotism unites in the same persons the slavery established among voluptuous peoples and the one established among simple peoples” and “this helotism is contrary to the nature of things” (15.10, 254; emphasis in original). Montesquieu explicitly associates Sparta with voluptuousness. His comments here serve to equate Sparta with Eastern despotism. In fact, he seems to adumbrate this very point early in the work when he points out that despite the rigorous training that Sparta provided its citizens in support of its singular institutions, in his estimation, “one wanted the citizen to be idle” in a “military” republic such as “Lacedaemonia” (5.6, 48; cf. 4.8, 40). It was Sparta’s particular use of slaves that allowed its citizens to be so very idle.41 Sparta’s practice of slavery engendered the “extreme abuses” that occur when states ignore the distinction between personal and real slavery (cf. 15.11). Not only do Montesquieu’s comments directly impugn Sparta, but they also indirectly challenge Aristotle’s own conception of the best regime. To this point, we have seen how Montesquieu has emphatically associated Sparta with Plato’s Republic and Laws on the basis of their shared singular institutions, of which Aristotle is a critic. With respect to the use of slaves in the regime, however, Montesquieu proceeds to draw a kinship between Aristotle’s thinking and Sparta’s practice. Although Aristotle criticizes Sparta’s manner of ruling its slaves,42 Aristotle’s recommended treatment of slaves is quite similar to how Montesquieu here depicts Sparta’s. First, Aristotle embeds slavery in the household, as it is in an Eastern despotism. Thus, Aristotle’s thought endorses the same incongruous voluptuousness that could be found in Sparta. Second, Aristotle himself ignores the distinction, which Montesquieu says must be maintained, between real and personal slavery. Montesquieu points out that the ancient philosopher also wants slaves to farm in his best regime, and, in fact, refers to the relevant passage of Aristotle’s Politics when examining at length education in the ancient republics in book 4 of The Spirit of the Laws. In his chapter, “Explanation of a paradox of the ancients in relation to mores,” one of his notes observes that both “Plato and Aristotle want slaves to cultivate the land.” Aristotle may have wanted to oppose his ideas to those of Plato, but again Montesquieu discerns that Aristotle’s thought is closely tied to that of Plato. Here, on the issue of slavery, Aristotle aligns himself with Plato and his singular institutions. In support of this point with regard to Aristotle, Montesquieu directs his reader to “Pol., bk. 7, chap. 10” (4.8, 40n17). As we know, in books 7 and 8 of the Politics Aristotle presents his recommendations for the best regime. In the context of his discussion of the best regime,

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Aristotle suggests that those who farm for the regime should be a certain type of slave: “The very best thing of all would be that the farmers should be slaves taken from among men who are not all of the same race and not spirited, for if they have no spirit they will be better suited for their work, and there will be no danger of their making a revolution.” He continues that the “next best thing would be that they should be barbarian country people, and of a like inferior nature.”43 Here we see Aristotle’s willingness to subject foreign peoples to enslavement, which Montesquieu claims was the very advice which he proffered to Alexander (cf. 10.14, 149). Aristotle endeavors to ensure that citizens will not be distracted with so mean an occupation as farming and that those who are so occupied are slaves who are unlikely to rebel. Whereas Montesquieu declares that slavery is incompatible with republicanism, Aristotle bases his best regime on this institution. At the very place that Montesquieu points out that Aristotle calls for farmer-slaves to feed the citizens in his best regime, he also alludes to the fact that Aristotle perceived that some actual regimes had freed their slaves and incorporated them as citizens with good political results. Indeed, Montesquieu reports Aristotle’s assessment of these actual regimes: “It is true that agriculture was not everywhere the work of slaves; on the contrary, as Aristotle says, the best republics were those in which it was undertaken by the citizens, but this happened only through the corruption of the ancient governments, which had become democratic, for in the earliest times, the towns of Greece lived as aristocracies” (4.8, 40n17). When one examines the implications of Montesquieu’s comment here, one sees that he is pointing out what he finds to be a flaw in Aristotle’s thought. Montesquieu here characterizes Aristotle as proclaiming that these democratic republics were “the best republics.” Therefore, on the one hand, according to Montesquieu’s analysis, Aristotle teaches that the best sort of republic that was then known to exist had citizens who were farmers.44 When discussing these democracies, Aristotle comments that because they are poor, “they have no leisure, and therefore do not often attend the assembly.” This keeps the government moderate, Aristotle concedes, because the people, rather than using political offices as a means of appropriating the goods of others, spend their time working and amassing their own wealth.45 The spirit of work produced moderate and stable governments. On the other hand, according to Montesquieu’s analysis, Aristotle clings to his conception of an ideal regime that uses slaves, even though he acknowledges the political good that arises from the “corruption of the ancient governments.” Aristotle, while acknowledging these positive results, nevertheless maintains that the highest expression of poli-

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tics requires leisure, and hence slavery, “for no man can practice excellence [ἀρετήν] who is living the life of a mechanic or labourer.”46 For this reason, the “best form of state will not admit [the artisan class] to citizenship.”47 What Aristotle deems leisure, Montesquieu deems voluptuousness that characterizes societies founded on slavery and despotic states. On this basis, Montesquieu shows that the ancient republicanism harbored a contradiction that undermined its very principle, and charges that Aristotle, as the legislator of his best regime, perpetuates rather than resolves that contradiction.

THE IDEA OF MONARCHY AND “ARISTOTLE’S MANNER OF THINKING” Just as Aristotle’s republic contains despotism, so his monarchy harbors it as well, Montesquieu indicates.48 According to the Frenchman, Aristotle did not understand how to limit the power of one alone, and thereby unwittingly fostered despotism rather than monarchy. A key element of Aristotle’s mistaken conception of monarchy relates to his excessive regard for virtue, according to the Frenchman. Thus, Montesquieu tallies another mistake of the ancient with respect to virtue: in addition to being too negligent with respect to the virtue of slaves and of masters in the domestic realm, Aristotle is too reliant on the virtue of rulers in the political realm. Moreover, Aristotle lacked the “idea” of monarchy, proclaims Montesquieu—the very “idea” that Montesquieu himself possesses and conveys. None of the ancients, in fact, had “une idée bien claire de la monarchie” (11.8, OC 2: 408). They failed to apply the principle of representation, which Montesquieu claims the ancients understood, to monarchy. In addition, Aristotle, like the other ancients, did not apply “the true distribution of the three powers” to “the government of one alone” (11.11, 169). In this manner, Montesquieu again suggests that in certain respects Aristotle’s manner of thinking is in unfortunate accord with the other political men of ancient Greece. In book 11, devoted to the subject of political liberty and the constitution, Montesquieu entitles a chapter “Aristotle’s manner of thinking” (chapter 9). The chapter, whose title entices with the prospect of so capacious a topic, proceeds to limit its discussion to what Montesquieu identifies as “awkwardness” in “Aristotle’s treatment of monarchy.” Montesquieu points to book 3, chapter 14, of the Politics where Aristotle enumerates five different kinds of kingships and distinguishes among them by pointing to variations in responsibility and in the manner by which individuals come

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to assume that position. Exasperation punctuates Montesquieu’s brief discursus on Aristotle’s chapter. After noting, for example, that Aristotle’s list includes “both the empire of the Persians and the kingdom of Lacedaemonia,” he asks: “But who does not see that the one was a despotic state and the other a republic?” Aristotle mischaracterizes both Persia and Sparta, Montesquieu’s favored representatives of two of his paradigmatic regimes. This recognition points to Montesquieu’s specific dispute with Aristotle: Aristotle “does not distinguish among them by the form of the constitution” (11.9, 168). The ancient, on the modern’s reckoning, does not discern that the form of the state’s constitution determines the essential character of any given state. As a result, neither Sparta nor Persia can be understood as a kingship. After this complaint, Montesquieu lodges another, and with it he offers a criticism whose ramifications are deeper and more extensive than the charge of mere awkwardness in Aristotle’s presentation of monarchy. Because Aristotle fails to comprehend the determinative character of any state’s constitution, he distinguishes among regimes “by accidental things” and “by extrinsic things.” Montesquieu proceeds to identify the extrinsic things as being, for example, “the usurpation of the tyranny or succession to it” (11.9, 168). Clearly, the question of how a ruler comes to power is a constitutional issue, but, for Montesquieu, this particular focus distracts from the fundamental question of the character of the regime. Accordingly, he dismisses these considerations as extrinsic and Aristotle’s focus on them as revelatory of the ancient’s superficiality. Montesquieu’s meaning with regard to accidental things is not so immediately apparent, however. He identifies these accidental things as being, for example, “the virtues or the vices of the prince.” Thus, Montesquieu here has the temerity to relegate Aristotle’s virtues and vices to the category of merely accidental things.49 Although it is manifest that Montesquieu is challenging Aristotle here, his precise meaning is not. When one turns to the specific chapter to which Montesquieu refers, chapter 14 of book 3 of the Politics, one finds that in addition to failing to use the words virtue and vice, Aristotle does not so much as even discuss a specific attribute of a king that could be termed either a virtue or a vice there. Montesquieu’s reference to this chapter to support his particular criticism of Aristotle might be puzzling were it not for the fact that there is, in fact, another distinction behind those he enumerates in this chapter. Elsewhere in the Politics, Aristotle designates regimes by whether each is a good or a deviant regime and then further by whether they are ruled by one, few, or many, thus offering six different regime types.50 The three good regimes aim at the common advantage, whereas the three devi-

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ant regimes pursue the advantage of the ruler or rulers. Kingship is one of the good regimes, according to Aristotle’s analysis. The very chapter that Montesquieu selects for criticism rests on this key Aristotelian distinction, and Aristotle, indeed, reminds his reader as this chapter opens that kingship is “one of the true forms of government.”51 Montesquieu’s own designation of the prototypical regimes does not entirely dispense with Aristotle’s categories. After all, Montesquieu retains the good and deviant regimes founded on the rule of one—monarchy and despotism. Behind Montesquieu’s reference to these “accidental things” is his ultimate point regarding the essential character of the constitution of any given state. In Montesquieu’s view, kingship and despotism should be distinguished not by whether the sole ruler pursues his own advantage or that of his subjects, but rather by the power that various kingly constitutions make available to one alone. According to Montesquieu’s schema, despotic regimes do not limit the power of one alone, whereas monarchies limit aspects of it effectively.52 Montesquieu’s criticism of Aristotle here maintains that the ancient’s concern with the moral character of individual kings induces him to neglect the importance of the constitution in the kingships he examines. What Montesquieu does not mention in his consideration of this chapter is that Aristotle repeatedly considers there whether or not a given kingship rules in accordance with law. It would appear, however, that the ancient’s attention to this question does not quell Montesquieu’s concerns. The observation of law, when a ruler holds so powerful a position, relies on the virtuous nature of the king. By contrast, Montesquieu looks to see whether the fundamental law of a nation, its constitution, constrains a sole ruler by opposing his or her power with that of others. He emphasizes the critical importance of constraining rulers in this way in an earlier chapter of book 11 that informs this particular dispute with Aristotle. In this additional discussion he declares that liberty is present in a state “only when power is not abused, but it has eternally been observed that any man who has power is led to abuse it; he continues until he finds limits” (11.4, 155). Any man, even an apparently virtuous one, is led to abuse power when he has it. Reliance on virtue, then, cannot be effective in producing good government. Montesquieu then exclaims, with particular resonance with his dispute with Aristotle: “Who would think it! Even virtue has need of limits” (11.4, 155). It would appear that Aristotle, who relies too much on accidental things such as virtue and not enough on constitutional restraints, does not think it, but clearly Montesquieu does think about the limits that even virtue requires. Therefore, Montesquieu suggests that a

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well-constructed constitution should hinder any ruler—whether apparently virtuous or vicious—from taking control of all powers in a government. Moreover, in this reliance on virtue for the constraint of the sole ruler, Montesquieu associates Aristotle with Richelieu, who similarly relies on virtue to limit the powers of a monarch (5.11), and, as we saw in his treatment of Hobbes’s thought above, of whom Montesquieu says: “Even if this man’s heart was not filled with despotism, his head was” (5.10, 56). However different his definition of virtue was from that of Aristotle, Machiavelli too, of course, called on the virtù of a prince to redeem political life. A reliance on virtue in rulers, however defined, fosters undesirable political outcomes— despotic outcomes. Not only did Machiavelli, Hobbes, and Richelieu take this mistaken political path, but so too did Aristotle. But, of course, Aristotle could be said to have blazed this mistaken trail for these moderns, who Montesquieu seems to imply are the ancient’s successors on this issue. As we saw above in chapter 2, Montesquieu treats in book 5 of The Spirit of the Laws a particularly daunting task for a legislator: restraining the power of one.53 Turning there to despotism, he emphasizes how very difficult it is to expel it from a state and laments that for this very reason “most peoples are subjected to this type of government”; a well-constructed constitution is a very difficult undertaking. “In order to form a moderate government, one must combine powers, regulate them, temper them, make them act.” In addition, “one must give one power a ballast, so to speak, to put it in a position to resist another.” Power must be able to resist power. He continues that this “is a masterpiece of legislation that chance rarely produces and prudence is rarely allowed to produce” (5.14, 63). Because Aristotle did not conceive of such a well-constructed kingship, he continued to foster despotism, in Montesquieu’s view. Therefore, although Montesquieu retains Aristotle’s distinction between good and bad regimes in which one alone rules, the basis of the distinction in the thought of each is fundamentally different; whereas Aristotle ultimately looks to the character of the ruler, Montesquieu looks to that of the constitution. After all, when confronted with the possibility of a ruler, “pre-eminent in virtue [αρετήν],” Aristotle declares that there is no other alternative than “that all should happily obey such a ruler, according to what seems to be the order of nature, and that men like him should be kings in their state for life.”54 Aristotle’s fundamental reliance on virtue is thus apparent. Therefore, the capacious title of chapter 9 of book 11, which makes reference to Aristotle’s way of thinking generally, is a suitable heading after all for these particular reflections. For Montesquieu, Aristotle’s treatment of kingship is emblematic of Aristotle’s thinking more generally.

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Aristotle’s treatment of kingship, according to Montesquieu, is illustrative not only of this deficiency of Aristotle’s “manner of thinking” but also of the political thinking of the ancients generally. The core of the problem, Montesquieu indicates, is that because Aristotle, as well as the other “ancients,” “did not know of the distribution of the three powers in the government of one alone, [they] could not achieve a correct idea [idée juste] of monarchy” (11.9, 168; OC 2: 410). The three powers to which he here refers, of course, are those of the executive, legislative, and judicial (11.6, 157). So critical is the separate exercise of these powers in a constitution that Montesquieu declares: “All would be lost if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals” (11.6, 157). He points to the specific features of a monarchy with divided powers that can prevent a despotic amassing of powers: deliberative and representative bodies that together exercise the power of legislating and the people who exercise the power of judging. These are the specific provisions of a monarchy that eluded Aristotle and the other political men of Greece when they contemplated kingship. In a chapter of book 11 entitled “Why the ancients had no clear idea of monarchy,” Montesquieu further explains that the “ancients did not at all know the government founded on a body of nobility and even less the government founded on a legislative body formed of the representatives of a nation.” He acknowledges that some of the ancient Greek towns did, in fact, form federal republics, and therefore sent deputies to a joint deliberative body. The existence of such assemblies establishes that the ancients did understand the principle of representation, but he emphasizes that they did not apply this general understanding to kingship, as “there was no monarchy on this model” (11.8, 167; cf. 9.3). Thus, the ancients did not apprehend how a representative body could moderate monarchy. He explains that the notion of sending representatives to an assembly to advise a kingly ruler originates with the Germans who conquered the Roman empire. Specifically, in this same chapter, Montesquieu describes how “corruption” of a state can produce not just a good government but “the best kind of government men have been able to imagine [aient pu imaginer]” (11.8, 167–68; OC 2: 409). Presumably, the corruption of which he here speaks relates at least in part to the fact that this type of government “was at first a mixture of aristocracy and monarchy,” and “the common people were slaves,” but it transformed when “[g]iving letters of emancipation became

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the custom.” He embraces such corruption, and he highlights his embrace with a remarkable superlative that he embeds in his normally restrained prose: he terms it “the best kind of government.” His elaboration points back in time to France’s feudal past, when “among us” “the civil liberty of the people, the prerogatives of the nobility and of the clergy, and the power of the kings” worked in “concert” so that no other “government on earth” was “as well tempered” when it “continued to exist.”55 This government, the best that human beings have been able to create, is a form of monarchy, and Montesquieu says that the ancients, even Aristotle, lacked the idea of monarchy properly understood (11.8, 167–68). Montesquieu’s use of the word “imagine” in this context seems to include in the comparison group both actual and imagined governments. (Again, he blurs the distinction between the legislators of actual regimes and those of imagined ones.) This type of tempered monarchy should not be set aside for another regime of one’s own devising, Montesquieu teaches. In theory and in practice, this is the best known government, he determines. Therefore, Montesquieu has no compunctions about embracing actuality and deriving far-ranging ramifications from it, even when it emanates from corruption, if the result is a masterpiece of legislation—that is, a moderate government in which power is balanced against power.56 It must be said that Montesquieu’s place in history aids him in identifying a greater array of political possibilities, and thus, of course, he has an advantage simply unavailable to the ancients. Nevertheless, Montesquieu indicates that it is not simply a greater range of possibilities that distinguishes his thought from that of Aristotle; rather, unlike Aristotle, he has a disposition that is willing to accept the political good that arises from practice, even corrupt political practice, rather than from theory. As we know, Montesquieu notes that although Aristotle saw that corruption, which transformed aristocracies into democracies where the people farmed, had produced the “best” actual “republics” then known, Aristotle persisted in attempting to imagine a better republic, an attempt that produced a republic in which slaves farmed in order to afford leisure to a small population of citizens (4.8, 40n17). Thus, unlike Aristotle, who failed to promote the political good that arose from the corruption of ancient republics, clinging instead to his ideal regime, Montesquieu embraces the example that arose from “corruption” during the Middle Ages. Because Montesquieu acts on his recognition, embracing good government even when it arises from corruption, he suggests that his political acumen is keener than Aristotle’s. When Montesquieu turns to a consideration of the judicial power in

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the Greek monarchies in “heroic times” in chapter 11 of book 11, he refers to book 3, chapter 14, of the Politics where Aristotle, Montesquieu points out, delineates “five kinds of monarchy,” including this archaic one. Montesquieu determines that the kingship from heroic times is “the only one that might arouse the idea of the monarchical constitution.” Using details that Plutarch and Thucydides provide, Montesquieu determines that this kingship from “heroic times” relinquished the legislative power to the people as a body (as opposed to its representatives). Despite such a promising relinquishment of power, the king still retained the power of judging. Therefore, “the plan of this constitution is the opposite of that of our monarchies today.” What he means here is that whereas most of the monarchies of Europe retain the executive and legislative functions but leave that of the judicial to their “subjects,” the kings of heroic times retained that power and served as judges (11.11, 169). It is the European kings’ surrender of this power that renders their monarchies “moderate” (11.6, 157). Montesquieu comments: “It had not yet been discovered that the prince’s true function was to establish judges and not to judge” (11.11, 169). Here again, the moderns have made a discovery that eluded the ancients. That discovery is embedded even in the less-than-best monarchies of Europe. Without the implementation of this discovery, a kingship is not a moderate government because the king exercises a fearsome and exorbitant power. Montesquieu’s treatment of “Aristotle’s manner of thinking” and the “manner of thinking of other political men” among the Greeks suggests that their understanding of how to restrict the power of monarchy was severely limited (11.9 and 10). He notes, for example, that the only way a king of Epirus knew how “to temper the government of one alone” was to make a republic. In order to limit the power of one, this ancient ruler transformed the very nature of the government. He also notes that Aristotle documents an unsuccessful attempt to moderate the force of kingship by dividing the power of one into that of two kings (11.10, 168). Despite these failures of imagination on the part of the ancients, he concedes that the “Greeks,” namely, Aristotle, did “imagine” “the true distribution of the three powers” “in the government of many,” and he refers specifically to Aristotle’s discussion of polity, the correct form of rule by the many, in “liv. IV, chap. viii” in the Politics (11.11, 169–70; OC 2: 411 and n. b). This is quite a concession to Aristotle’s acumen. Nevertheless, Montesquieu maintains that Aristotle, like the other Greek political men, did not have “une idée juste de la monarchie” (11.9, OC 2: 410). Therefore, Aristotle’s understanding of kingly regimes propagates despotism. By contrast, Montesquieu entertains ideas regarding monarchy that keep despotism at bay.

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USURY AND THE DESTRUCTIVE USE OF ARISTOTLE’S PHILOSOPHY In Montesquieu’s analysis, Aristotle’s own qualms regarding the consequences of the use of silver in a virtuous city serve to associate him with Minos, Lycurgus, and Plato—those ancient political men. Although Aristotle, unlike Plato in The Republic, would allow citizens private property, Aristotle nevertheless seeks to limit their ability to acquire personal property so that such acquisition does not pass beyond the natural limit of selfsufficiency. When Montesquieu turns to examine the influence of Aristotle’s ideas on commerce in chapter 20 of book 21, he focuses on whether governments will permit the taking of interest on loans. Montesquieu pointedly maintains that when Aristotle’s writings, which condemn the taking of interest on loans as unnatural, made common cause with Christian thought, which condemns it as ungodly, the result was that rulers became ever more aggressive in prohibiting usury. This prohibition had disastrous consequences for commerce in Europe: “to the speculations [spéculations] of the schoolmen [scolastiques] we owe all the misfortunes that accompanied the destruction of commerce” (21.20, 389; OC 2: 641). On his presentation, the resulting speculations of the Scholastics powerfully undermined commerce and set the stage for the travesties of justice that were visited upon the Jews, which he recounts in this chapter. Montesquieu’s discussion here highlights most saliently his understanding that ideas have consequences—that ideas can induce people to act unjustly, despotically, and murderously. Despite Montesquieu’s pointed accusations, the Aristotelian arguments of the Scholastics almost certainly were not the cause of all the misfortunes he relates in this chapter. Even before the recovery of Aristotle’s writings in the West, the Church condemned usury and Christian rulers and Crusaders persecuted the Jews. Apart from the specific causal argument for all of these particular events, Montesquieu’s broader point is that Aristotle’s thought certainly made common cause with Christianity, forming a virulent combination against commerce. Without the addition of Aristotelian thought, which is based not on revelation but on a particular understanding of nature, Montesquieu suggests that an alternative understanding of Christian teaching, which properly emphasizes Christian charity, could support commerce and the benefits it brings. A first step in this important amalgamation is for Montesquieu to blame Aristotelianism and not Church teachings for the ravages he recounts in this chapter. He does precisely that quite forcefully in this chapter. Montesquieu displays his strong support of commerce as a civilizing

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force in chapter 20 of book 21, “How commerce in Europe penetrated barbarism.” Part of the European barbarism to which his title refers is surely the massacres of the religious wars in France, which chapter 1 above on Montesquieu’s assessment of Machiavelli’s thought treats, but a portion of this chapter focuses on the particular barbarism that occurred in medieval England and France when royal power confiscated Jewish property and inflicted torture, death, and expulsion on this population.57 The rapacious brutality inflicted on the Jews in both England and France to which Montesquieu here refers is quite chilling even when briefly summarized. Edward I expelled the Jews from England in 1290, and Philippe IV expelled them from France in 1306. Both kings profited from the property that the Jewish community left behind in their respective realms. In addition, Edward and Philippe were able to satisfy both the papal authorities, who had been increasingly displeased with the persistence of the sin of usury in Christendom, and the people who resented the infidels in their midst to whom they were frequently in debt. These expulsions were the culmination of many decades of exploitation and hardship for the Jewish communities in these lands. As a result of these continual depredations of their property, these populations could no longer furnish the great amounts of revenue that they had once provided their respective crowns. The tax revenues from the Jews’ lucrative profession had given rich returns to earlier kings, but Jewish wealth increasingly became subject to arbitrary assessments, tallages, and even outright confiscations.58 Even earlier, Philippe-Auguste expelled the Jews from the royal domain in France in 1182. The debts owed to them enriched his own treasury, and the property he confiscated was given to the Church. Church doctrine during the twelfth and thirteenth centuries increasingly emphasized that usury, understood broadly as the taking of any interest at all when capital was lent, was a sin against justice, and many secular rulers were willing and sometimes eager to enforce restrictions on the practice of lending money with interest. In the middle of the twelfth century, Pope Alexander III declared that usury was a sin against justice.59 Having been prohibited to Christians, the profession of moneylending became the particular occupation of Jews. Because Christians shunned moneylending, capital was scarce and its price was high. Some Jews became very wealthy moneylenders as a result. Some Christians still practiced it during this period, particularly Italians, but with increased risk; the increased risk increased the rate of interest.60 Montesquieu begins this chapter, so replete with horrors, with the introduction of Aristotle’s thought into Christian Europe from Byzantium:

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“When the philosophy of Aristotle was brought to the West, the shrewd minds [esprits subtils], who are the great minds in times of ignorance, found it very agreeable.” He signals his clear disapproval of these events by finding that the particular use of Aristotle that resulted was a product of a time of ignorance; the great minds of this time were not, in fact, great but rather cunning. He continues that the “schoolmen [scolastiques] were infatuated with it and took from this philosopher many explanations on lending at interest” (21.20, 387; OC 2: 639). He depicts the Scholastics here as consumed with passion, not enlightened by reason or inspired by faith. The manner in which he begins this tale serves to suggest that the use to which the Scholastics put Aristotle’s recently recovered writings is the efficient cause of all that follows.61 Montesquieu’s note instructs his reader “to see” Aristotle’s Politics, book 1, chapters 9 and 10. These two chapters of book 1 of the Politics contain the reasoning that helped foster “barbarism” in Europe, according to Montesquieu.62 In them, Aristotle condemns the pursuit of money for its own sake, rather than for its true purpose, which Aristotle teaches is the provision of self-sufficiency for a city such that the political partnership can pursue the good life. Money came into existence in order to facilitate the exchange of items so as to provide individuals and communities with selfsufficiency. Exchange and barter are “not contrary to nature,” if they satisfy “natural wants.”63 But the type of exchange that money facilitates can lead away from mere self-sufficiency and hence away from nature. Indeed, Aristotle notes that “coined money” can appear to be “a mere sham” “because it is not useful as a means to any of the necessities of life,” such that “a man may have a great abundance and yet perish with hunger, like Midas in the fable.” Aristotle therefore condemns the “art of wealth-getting,” which seeks increase without limit.64 Those who say that household management should pursue money without limit “are intent upon living only, and not upon living well,” he declares.65 On this basis, Aristotle announces in one of the two chapters to which Montesquieu directs his reader: The most hated sort [of wealth-getting], and with the greatest reason, is usury, which makes a gain out of money itself, and not from the natural object of it. For money was intended to be used in exchange, but not to increase at interest. And this term interest, which means the birth of money from money, is applied to the breeding of money because the offspring resembles the parent. That is why of all modes of getting wealth this is the most unnatural.

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For Aristotle, the pursuit of income from the lending of money is contrary to nature; the pursuit of money, in the view of this ancient thinker, must be a means and not an end.66 Under the influence of their infatuation with Aristotle’s arguments, the Scholastics “condemned [interest] without distinction and in every case,” Montesquieu declares. As a result of these prohibitions on the Christians, he notes: “Thus, commerce, which was the profession only of mean people, also became that of dishonest people.” He continues that “[c]ommerce passed to a nation then covered with infamy, and soon it was no longer distinguished from the most horrible usuries, from monopolies, from the levy of subsidies, and from all the dishonest means of acquiring silver.” Life-sustaining commerce became viewed as sinful and criminal through its now iniquitous associations. Of course, given the contempt in which lending was held and the attendant inconveniences and dangers, interest rates became exorbitant. Montesquieu observes: “The Jews, who were made wealthy by their exactions, were pillaged with the same tyranny by the princes, a thing that consoled the people and did not relieve them.” The Jews, he says, made “exactions” through their high rates of interests. The princes, in order to increase their treasuries, extracted not high rates of interest on loans but rather teeth. He recounts, for example, that when “King John imprisoned the Jews in order to have their goods, there were few who did not have at least an eye put out” and follows with the bitingly ironic observation that “thus did this king conduct his chamber of justice.” He also reports that a Jew had one tooth pulled out each day for seven days, and “gave ten thousand silver marks on the eighth.” During this very king’s reign, the English nation was establishing constitutional protections ensconced in the Magna Carta for its citizens against the despotic power of one, but England’s Jews were not so protected against such despotism. As a result, the English kings turned their predatory greed toward this unprotected population: “As the kings were not able to search into the pockets of their subjects because of their privileges, they tortured the Jews, who were not regarded as citizens.” These examples, he says, “will give an idea of what was done in other countries.” The Christian subjects of these cruel Christian kings might have taken pleasure in the spectacle of the torture of this rich but despised people, but they could not find true relief. Because commerce was so harassed, the remainder of the population did not have the means to improve their condition (21.20, 387–89).67 Montesquieu describes the continued persecution of the Jews, some of which occurred in France. He notes that eventually “the custom was introduced of confiscating the goods of the Jews who embraced Christi-

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anity,” and corroborates this observation with evidence from France. He comments wryly of the Jews that their “goods were confiscated when they wanted to be Christians, and soon afterwards they were burned when they did not want to be Christians.” He makes reference in his notes to French kings Philippe-Auguste, who expelled the Jews from the royal domain, and Philippe le Long, who, in fact, expelled the Jews from France (21.20, 388–89nn139–41).68 Thus, Montesquieu finds barbarism not in the hordes of pagan barbarians that overwhelmed the Roman Empire centuries earlier, but rather in thirteenth-century Christian Europe—the age of pious and crusading kings. On his account of these particular events, this barbarism arose because the Scholastics argued that taking any interest at all on loans was usury. This barbarism was finally quashed, according to Montesquieu, when the Jews invented “letters of exchange,” after having been expelled from France and having taken refuge in Lombardy, which allowed them to carry on business using “invisible” stores of gold.69 By this ability to make their money invisible, the Jews protected themselves from the violent avarice of kings. Immediately after discussing these letters of exchange, Montesquieu declares that the “[t]heologians were obliged to curb their principles, and commerce, which had been violently linked to bad faith, returned, so to speak, to the bosom of integrity” (21.20, 389). The invention of the letter of exchange was the critical event in rolling back this barbarism.70 This portion of Montesquieu’s chapter unfolds as if to suggest that Aristotle’s thought is the catalyst behind all these events. He suggests that the ancient’s thought inspired the Scholastics to redouble Christianity’s efforts at condemning loans at interest. With usury so despised, the Jews became wealthy but hated. The kings took their money with impunity, and commerce was severely hampered. Later in the chapter he affirms his specific causal argument: “Thus, to the speculations of the schoolmen we owe all the misfortunes that accompanied the destruction of commerce” (21.20, 389). To say that the Scholastics’ reasoning is the single cause of the disasters that follow is certainly tendentious. Aspects, however, of his claims are simply implausible because the Scholastic arguments against usury appeared after some of the specific reigns to which he refers. He names four kings in this chapter, two English and two French.71 The reigns of one English and one French king see the dawning of the thirteenth century: John in England, who ruled from 1199 to 1216, and Philippe-Auguste in France, who ruled from 1180 to 1223. The Scholastic argument against usury had not yet been formulated at this point. Albert the Great and his student, Thomas Aquinas, introduced Aristotle’s arguments regarding usury to

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Western Europe.72Albert was born around 1206 and Aquinas in 1225.73 As a result, their writings could not have inspired the vituperation of usury, and hence of the Jews, that allowed these two particular kings to move against the property, and in Philippe-Auguste’s case, against the very presence of this population in his domains.74 Moreover, before and during these kings’ reigns, the Church acted to condemn usury without appeal to the authority of Aristotle, which was rediscovered, translated, and transmitted in the decades immediately following this period. Christianity’s hostility to usury is evidenced by the fact that the early Church had taken various actions against usury.75 For instance, at the close of the prior century during the reigns of John and PhilippeAuguste, Pope Innocent III condemned usury to the French bishops not on the basis of Aristotle’s authority but rather on that of the Old and New Testaments: We believe that you know how pernicious the vice of usury is, since, in addition to the ecclesiastical laws which have been issued against it, the prophet says that those who put their money out at interest are to be excluded from the tabernacle of the Lord [Psalms 15:5]. And the New Testament, as well as the Old, forbids the taking of interest, since the Truth [Christ] himself says: “Lend, hoping for nothing again” [Luke 6:35]. . . . We command you all by this apostolic writing not to permit those who are known as usurers to clear themselves by any subterfuge or trick when they are charged with the crime.76

Although Christianity did not need to appeal to Aristotle’s authority to make lending a crime, Montesquieu aims his ire not at Christianity, but rather at Christianity combined with Aristotelianism. Of course, Montesquieu’s tactic of criticizing so august a tradition and such esteemed and even saintly teachers within Christianity can be seen as impugning Church doctrine.77 These implications seem to have been the motivation behind the Sorbonne’s censuring of two passages from this particular chapter.78 He responds to the censure of the Faculty of Theology by highlighting the rigidity of the Scholastics and by focusing on Christian charity. Indeed, at one point in his response he explains that “the explications drawn from Christian charity are otherwise as strong as one is able to draw from Aristotle, and that finally, in this matter it is better to walk with the torch of theology than with that of philosophy.”79 Thus, Montesquieu maintains that his chapter merely supports Christian teaching and criticizes pagan philosophy. Of course, this must be read as an attempt at

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palliation when the integrity of his work was in question, but his response transcends mere defensiveness and speaks also to the true purport of this chapter. The chapter itself suggests that the torch of Christian theology can be fueled by Montesquieu’s own understanding of Christian charity combined with his understanding of humanity that embraces commerce and the lending of capital so necessary to it.80 Finding the influence of Aristotle’s reflections on interest so deleterious, Montesquieu laments that the Scholastics had recourse to Aristotle, noting that “the schoolmen . . . took from this philosopher many explanations on lending at interest, whereas its very natural source was the gospel.” Interestingly, Montesquieu refers here not to the Bible generally but rather to “l’Évangile” (21.20, 387; OC 2: 639). The Old Testament contains several condemnations of interest and usury, particularly when one Jew requests it from another.81 Use of the New Testament alone, which Montesquieu recommends as a “very natural source,” would have restricted the Scholastics to a few ambiguous references. Pope Innocent III, as we saw above, made use of the passage in Luke in his letter to the French bishops. Even though the pope so wielded this passage, it and the other references from the Gospel are certainly not as forthrightly condemnatory as Aristotle’s argument regarding the unnaturalness of interest.82 Montesquieu’s argument is that the New Testament—even that important passage from Luke—emphasizes the injunction to universal benevolence more than the sinfulness of usury.83 To have limited the Scholastics to the authority of the Gospels, as Montesquieu suggests, would have limited the force and specificity of their arguments against the taking of interest. In speaking of interest on loans, Montesquieu explains that “whenever one prohibits a thing that is naturally permitted or necessary, one only makes dishonest the people who do it” (21.20, 388). Unlike Aristotle and unlike the Scholastics, Montesquieu will not condemn the practice of collecting interest as unnatural. Indeed, in sharp contrast to the Scholastics’ use of Aristotle, he points to its naturalness by suggesting that it is either permitted or necessary by nature. Human flourishing, according to Montesquieu, requires commerce and, hence, the lending at interest that sustains and encourages such commerce. In addition to limiting the force of the arguments against interest, the restriction to the Gospel would have permitted an accentuation of its general preaching of benevolence. Montesquieu makes this very point when he offers his own teaching on “lending at interest” in the following book of The Spirit of the Laws. His lesson here is that for the good of society, loans must be made with interest. He admits that “[t]o lend one’s silver without

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interest is a very good act.” He continues, though, that “one senses that this can be only a religious counsel and not a civil law.” Such a rule applied universally would produce great harm to society. He explains that in order for “commerce to proceed well, silver must have a price,” but its price “must be small.” If the price is too high, the trader sees that he can gain no profit by his endeavors and as a result “undertakes nothing.” If there is no price for borrowing, “no one lends it, and the trader still undertakes nothing.” After he makes this statement, he immediately corrects himself, explaining that some will always lend when others will not, but only at a very high rate. He notes that with these exorbitant rates usury is thus established. For Montesquieu, lending money for a profit is not in itself usury. Condemning all interest as usury serves only to harass commerce, and such harassment can produce barbarism in Europe. He goes on to note that a religious teaching can induce believers to make precisely this mistake and to forbid any interest on loans. He specifies that the “law of Mohammed confuses usury with the loan at interest” and that in Muslim lands usury increases “in proportion to the severity of the prohibition” because “the lender indemnifies himself for his peril in infringing the law” (22.19, 420). When religious beliefs, therefore, condemn all lending as usury, they turn what would be normal lending rates into rapacious usury because of the greater risk involved in lending. According to Montesquieu, to conflate interest with usury is confusion—a confusion that harms commerce by bringing about usurious rates. Although in book 22 Montesquieu limits such confusion about the taking of interest to the lands of the Muslims, he shows in book 21 that it occurs also in the Christian lands of Europe, as we have seen. On his presentation, Aquinas, with the authority of Aristotle behind him, made lending without interest a religious precept. A counsel would not make it mandatory and would still underscore the generosity of the act of lending without hope of profit; however, when the injunction becomes a precept, great ills follow. In this way, Montesquieu underscores the benefit of obliging theologians “to curb their principles” (21.20, 389). Montesquieu’s precise argument for the harmful character of so dogmatic a position on lending comes to light in another aspect of chapter 21.20. When Montesquieu declares that the “speculations of the schoolmen” are responsible for “all the misfortunes that accompanied the destruction of commerce,” he appends to this sentence a note that refers to the fact that Emperor Leo, who reigned in Byzantium from 886 to 912, revoked a law of his father, Emperor Basil, that prohibited the taking of interest without distinction.84 The particular corroboration he proffers for this tendentious

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claim regarding the events in thirteenth-century Europe refers neither to Scholasticism nor even to the West. Montesquieu’s purpose in offering this particular documentation appears to be to show that Emperor Leo saw the harm that his father’s law had caused in the Eastern Empire. As the sentence to which it is affixed is one of the two passages censured, Montesquieu expends some effort explicating this note in his response to the Sorbonne. He says there that in the revocation of his father’s law, Leo “exalts the beauty and the sublimity” of the prohibition on interest, but the son also notes the fact that it is “the cause of the greatest ills.” Because the empire suffers as a result, Leo acknowledges the necessity of moderating this sublime but harmful law.85 Because Montesquieu refers favorably to a secular ruler’s revocation of a law on usury in Byzantium, where Aristotle’s writings were then known and taught, he suggests that a perceptive and humane ruler can moderate the effects of such harmful ideas in one’s realm. In other words, the presence of Aristotle’s ideas in a realm need not be determinative, and thus the harm caused in Europe when the Scholastics allied their cause with Aristotelian philosophy is not a necessary result. Montesquieu’s humanity cannot tolerate such suffering, and neither should Christian charity, he suggests. Because human flourishing requires the taking of interest, its permission would be natural, as Montesquieu maintains in this very chapter. He also maintains elsewhere that Aristotle’s manner of thinking emphasizes virtues and vices too much. In this manner, Montesquieu suggests that Aristotle’s teleological understanding of nature, which makes the highest purposes of human beings its touchstone, must be regarded as both irrelevant and noxious.86 So construed, Montesquieu is right; the Gospels would have been a “very natural source” for discussions of interest and certainly much better than Aristotle’s teaching that is founded on the ancient’s understanding of nature. In mustering their arguments against usury, however, the schoolmen were not restricted merely to the Gospels, of course. As a result, their use of Aristotle’s ideas was harmful to commerce and to the flourishing of human beings, Montesquieu maintains. From a historical perspective, Aristotle’s ideas may not have initiated all the specific tragedies that Montesquieu recounts in this chapter. Nevertheless, the authority of “the philosopher” certainly did inspire the Scholastics to ever more trenchant and thoroughgoing criticisms of the taking of interest during the latter part of the violent thirteenth century. Montesquieu turns this fact to his own purposes. It allows him to point out the atrocities of this European century, when lending was condemned without distinction, and to blame not Christianity itself but rather its embrace of a philosophy that was foreign to it. To that end,

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he maintains that the ideas of Aristotle, when in the hands of the Scholastics, fomented the human tragedies that he recounts in this chapter: “to the speculations of the schoolmen we owe all the misfortunes that accompanied the destruction of commerce.” In blaming Aristotle’s influence, he can make common cause with Christian charity. Just as Alexander’s plan in the East had to counter the superstitions of the Persians, which prevented “them from any idea of maritime commerce,” so the flourishing of commerce in the West had to vanquish a notion, which Montesquieu claims derived from Aristotle, that harmed commerce (21.8, 365). Ideas have consequences, and destructive ideas have destructive consequences. Thus, Montesquieu offers the ideas of Aristotle as the intellectual force behind some of the destruction and despotism—nay, the barbarism—this chapter of The Spirit of the Laws recounts.

CONCLUSION Aristotle’s jealousy of Plato impelled him to attempt to oppose his ideas to those of his teacher, according to Montesquieu. The Frenchman shows that because of Aristotle’s lack of understanding of monarchy, of his endorsement of slavery, of his concerns regarding the taking of interest, and of his conclusion that republics must control the populations of their citizens, Aristotle did not succeed in fulfilling his passion, as all of these positions link his ideas to those of Plato. Aristotle may fail in his opposition to Plato, but Montesquieu himself opposes both Plato and Aristotle on the grounds of the deleterious effect of their ideas on the lands of Europe through the Middle Ages up to his own times. Montesquieu finds despotism infecting Aristotle’s treatment of both monarchies and republics. Thus, this study of Montesquieu’s examination of the ideas of his predecessors begins where it ends, in a manner of speaking, as Montesquieu reaches the same conclusion with respect to Machiavelli’s depiction of principalities and republics. On this basis of a penchant for despotism, Montesquieu links Aristotle and Machiavelli, ancient and modern.

Conclusion

Il faut rendre ici hommage à nos temps modernes, à la raison présent, à la religion d’aujourd’hui, à notre philosophie, à nos mœurs. Un conquérant, dis-je, peut dérouter tout. —Montesquieu, De l’Esprit des lois

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ontesquieu scatters throughout The Spirit of the Laws, in its most prominent and frequently perused chapters as well as in its deepest recesses, his critical engagement with the despotic practices and ideas of Europe. He notes, for instance, in that famous chapter on the constitution of England that “princes who have wanted to make themselves despotic [despotiques] have always begun by uniting in their person all the magistracies, and many kings of Europe have begun by uniting all the great posts of their state” (11.6, 158; OC 2: 398). Elsewhere he shows how ancient and modern thinkers alike have promulgated ideas that support violent tyranny, arbitrariness, and absolutism—the defining characteristics of despotism. In still other places he shows how Christian ideas have produced not only sterility but also barbarity. His carefully dispersed criticisms of his homeland, of his continent, of Christendom must surely constitute significant links of “the chain” of reasoning that he declares he has embedded in the work (pr., xliv).1 His scattered but persistent examination of the despotic ideas of Europe may not be the full and final lesson that he endeavors to have his readers grasp, but it must surely be a piece of it. That some of the ideas and practices of Europe are imbued with despotism is surely a hard truth for its denizens as well as a potentially dangerous one for those who convey it. He continues to teach his lessons, though, because as he says, “[i]t is not a question of making” the members of his audience “read” but of making them “think” (11.20, 186). 205

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In so displaying the despotic characteristics of Europe, Montesquieu simultaneously demonstrates that ideas can persist through generations, millennia even. Once committed to writing, ideas take on a life of their own. Although written in one historical context, they can survive so that readers can adopt and apply them in another. Thus, when the Scholastics rediscovered the writings of Aristotle, which revealed to them additional arguments against loans taken at interest, these Christians greedily used the ideas of a pagan to buttress their Christian ones. Machiavelli’s ideas regarding the utility for princes of dispatching the nobility linger in his treatise to instruct others long after the author’s lifetime. Indeed, Montesquieu suggests that these very ideas informed the French monarchy and helped to bring about the deaths of French nobles in a Machiavellian coup d’état, a murderous deed that led to numerous deaths of those from other classes throughout the realm. Ideas are frequently matters of life and of death. Ideas persist—they rest on dusty bookshelves, waiting to be revived—and ideas matter. Ideas, of course, also stand behind written laws. These ideas can be conveyed both in the laws themselves and in philosophical and historical works that explicate or justify them. With the phrase, in the present tense, “[w]hen you see [Quand vous voyez], in the Life of Lycurgus, the laws he gave the Lacedaemonians,” Montesquieu invites his readers to inspect the Spartan laws of so very long ago, indicating that Plutarch’s account makes those antique laws available as a resource for his readers’ own time, whatever time that is (4.6, 36; OC 2: 267). Thus, Plato’s notions that magistrates should be absolute and that they should deploy harsh punishments linger in The Laws and The Republic to be deployed by rulers of the future. Thus, Hobbes’s Leviathan, more recently, offers new ideas in support of both propositions. European ideas throughout the centuries are united in transmitting despotism. The “constitutions of the emperors,” Theodosius and Justinian, serve as the conduit for the transmission of pagan and Christian ideas to the Europe of Montesquieu’s own times. Thus, when the French magistrates apply legal provisos that disqualify those who marry from an inheritance, they are applying the laws of the early Christian emperors who were infected with the Christian ideas that cherish chastity over fertility. Thus, when European rulers and magistrates equate treason with heresy, they are drawing from ideas that originated with Augustus and were later embraced by the same Christian emperors and then by the medieval popes. Thus, when French magistrates apply a law that demands the death penalty for hiding stolen goods, they are applying a Roman law that derives from Spartan settlers on

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the Italian peninsula who were imbued, long, long ago, with the singular ideas that ancient political men, such as Minos and Lycurgus, promulgated. As laws persist beyond a millennium, they carry with them the ideas that informed them. Montesquieu posits the pressing and persistent need for discriminating, well-informed interpreters who can sift the salutary from the noxious ideas.2

PROGRESS, POLITICAL, CHRISTIAN, AND COMMERCIAL This brief summary of Montesquieu’s account of the dangers of noxious ideas needs to be augmented by a recognition of his acknowledgment of the presence and effects of positive ideas. The presence and force of these ideas have important ramifications for the Frenchman’s notion of history and hence for his evaluation of Europe’s current and possible future conditions as well as for his understanding of the role of reason in human affairs and thus the ability of human beings to control their own destinies apart from sweeping impersonal factors relating to culture and history. He points to the progress that Europe has made in his time on several scores, and behind that progress is the presence of ideas. On Montesquieu’s depiction, Christianity and commerce have had similar effects, a softening of mores and a relative quieting of the violence within and among nations. He also credits Christianity with eradicating slavery in Europe (15.7, 252). From Montesquieu’s perspective this is indeed progress. Apart from the expansion of the Roman Empire, the introduction of Christianity and the blossoming of commerce are the two major transformative events in recorded history. Believing in the possibility of remediation, he pays appropriate “homage” to “modern times” (10.2, 139). Montesquieu believes that individual peoples and states anywhere on the globe can improve their practices in various respects. He recognizes, for example, that genuine progress can be made in judicial procedure and in the mechanisms of government. As we know, he acknowledges that some “countries” have “acquired” more “knowledge” than others “concerning the surest rules one can observe in criminal judgments” (12.2, 188). Of course, this advance, although not as broad as the transmission of commerce or of Christianity, should not be minimized as he identifies such knowledge as being “of more concern to mankind than anything else in the world” (12.2, 188). The increase in the number of witnesses necessary for a conviction is one respect in which modern European practice is a distinct improvement over that of the ancient (12.3, 189). In addition, modern governments have learned to rely on the office of a public prosecutor for accu-

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sations of criminal violations, which carry such dangers for the accused, as opposed to relying on the general population, in which some individuals can have nefarious motives, with noxious results for other individuals (6.7, 81). The moderns too have made significant discoveries concerning the mechanisms of government in Montesquieu’s assessment. “The ancients,” unlike the moderns, “did not at all know,” for example, “the government founded on a body of nobility and even less the government founded on a legislative body formed of the representatives of a nation” (11.8, 167). Importantly, although Aristotle did “imagine” “the true distribution of the three powers” “in the government of many” (11.11, 169–70), none of the ancients had “une idée bien claire de la monarchie” (11.8; OC 2: 408). Similarly, although the ancients understood the principle of representation in “federal republics” in which “many towns sent deputies to an assembly,” they did not apply this idea of representation to the governance of a single republic. As a result, in ancient times “there was no example either of deputies from towns or of assemblies of the estates” (11.8, 167). Montesquieu certainly acknowledges that social, moral, economic, and physical factors can have an important impact on politics and hence that these factors help define the very possibilities for the citizens who inhabit any given state. He makes corruption the specific focus of book 8, and his other work, Considerations on the Causes of the Greatness of the Romans and Their Decline, considers how such a powerful and apparently resilient state succumbed to such large impersonal factors that appear far beyond the ability of any leader or leaders to control or to forestall. But he nowhere surrenders the fate of humanity to such factors. Instead, he poses the continuing need for human acumen to recognize, to imagine, and to implement new devices and discoveries. Indeed, as this study has shown, he points to the possibility of great benefit from corruption—from such large, impersonal tendencies. In speaking of limited and balanced monarchy he comments that “it is remarkable that the corruption of the government of a conquering people should have formed the best kind of government men have been able to imagine [imaginer]” (11.8, 167–68; OC 2: 409). He emphasizes, however, that such progress is not inevitable, even in countries that seem most hospitable to good government, and he makes a point of declaring that even England will lose its liberty (11.6, 166). It is incumbent on legislators to recognize when the impersonal factor of corruption presents humanity with the possibility of a positive outcome. Whereas Montesquieu succeeds in recognizing the important good that might arise from corruption—and thus in teaching that good—Aristotle failed, in Montesquieu’s view, in just such a task when he was confronted with the good that came from the corruption

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of aristocracies, as we saw in the previous chapter (4.8, 40n17). Other such results will no doubt come to pass without human intention, but legislators will need to be perceptive enough to recognize them. Similarly, he refuses to relegate “the peoples of [hot] climates” to inferior regimes devoid of liberty, noting that they “have greater need of a wise legislator” who creates institutions and laws so that inhabitants are “impressed in a suitable manner, to accept no prejudices, and to be led by reason” (14.3, 235). Montesquieu depicts, in addition, agents of progress that have the potential to embrace the globe. One such agent is Christianity, which had global aspirations for its ideas and which introduced a historical understanding of its own to Europeans by positing unique historical stages: the creation of the world, revelation of God’s word in the Old Testament, the instantiation of logos with the birth of Christ, and the ultimate redemption of the world. Human knowledge and possibility, on this Christian understanding, are necessarily and decisively determined by the stage in which individuals are born and die. For Christians, of course, it is God’s will that drives this historical progression. Individual human beings may serve critical, transformative roles in the unfolding of this history, but ultimately even these remarkable individuals are merely the agents of God’s will. Montesquieu’s own analysis credits the spread of Christianity with introducing several key innovations that have ameliorated the harshness of the atrocious practices of the pagans. It gave Europeans a gentler right of nations; it taught the fundamental equality of all human beings and thus undermined the claims that supported slavery in Europe; and it promoted the notion that women should be included in society. With these ideas came tangible progress, in Montesquieu’s estimation, in the condition of Europe in comparison with pagan times. Despite Montesquieu’s clear embrace of various results of Christianity’s rule in Europe, his depiction of the progress he discerns in Europe varies from the Christian one. For instance, nowhere does he point to God’s will as the driver of human history.3 Ultimately, his view of history’s unfolding is neither as deterministic nor as hopeful as that of the Christians. Another global agent of progress in Montesquieu’s estimation is the spread of commerce. He depicts its effects as very similar to those of Christianity.4 Like Christianity, commerce softens the mores of human beings: “Commerce cures destructive prejudices, and it is an almost general rule that everywhere there are gentle mores, there is commerce and that everywhere there is commerce, there are gentle mores” (20.1, 338). It brings different—and sometimes hostile—peoples and nations into peaceful contact. “The natural effect of commerce is to lead to peace” (20.2, 338). Like

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Christianity, it promotes equality: “Commerce is the profession of equal people” (5.8, 53). One might imagine that under Montesquieu’s dispensation Christians would mark Christmas, the anniversary of the birth of a most remarkable baby—a baby who brings the promise of peace to the world—by engaging in commerce. In so celebrating a most holy day of the Christian religion, Christianity would relinquish its narrow focus on the pursuit of perfection, particularly its focus on chastity, and exult in the prospect of a peaceful and prosperous earthly realm. Whereas Christianity offers its adherents numerous ideas that motivate action (e.g., 24.13 and 25.12), people engage in commerce to further their economic interests. For example, in a commercial society, people are driven not by the idea of charity but rather by their self-interests, so that “the smallest things, those required by humanity, are done or given for money” (20.2, 338–39).5 Such interests, though, have had a tremendously positive effect in Europe, Montesquieu underscores, when speaking of the violent depredations of medieval kings on the property of wealthy Jews, noting that the Jews “invented letters of exchange, and in this way commerce was able to avoid violence and maintain itself everywhere and leave no trace anywhere.” As a result of this protective device—one that was originally intended to protect the property of the Jews—“princes have had to govern themselves more wisely than they themselves would have thought, for it turned out that great acts of authority were so clumsy that experience itself has made known that only goodness of government brings prosperity” (21.20, 389). Commercial self-interest has quite unintentionally produced good government. This highly favorable result might appear to be a strictly historical and hence inevitable outcome as he depicts it as having happened quite unintentionally.6 It appears, on his depiction at this place, to be a result of the cunning of history, to speak anachronistically of Montesquieu’s thought.

COMMERCE, REASON, AND ALEXANDER AS CONQUEROR Montesquieu acknowledges that history plays a large role in his ability to descry his conclusion as vividly as he does, but he also indicates in several different ways that his specific historical position is not strictly necessary for a perceptive individual to grasp the full implications of commerce. He indicates that such individuals, in any historical epoch where commerce exists, can discern the same salutary effects that he emphasizes. Montesquieu explicitly states that ancient men— philosophers and political rulers—grasped quite adequately the effects of commerce. When

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crediting commerce with softening the mores of peoples generally, he immediately follows this declaration with a glance to Plato: “Commerce corrupts pure mores, and this was the subject of Plato’s complaints” (20.1, 338). Plato knew perfectly well, he declares in this prominent place, that commerce would destroy his singular institutions. Plato, of course, could see the effects of commerce in Athens (cf. 5.6). Montesquieu’s note at this place indicates that Caesar too possessed the same knowledge; the Roman conqueror perceived what he regarded as commerce’s ill effects radiating from commercial Marseilles: “Caesar says of the Gauls that the proximity and commerce of Marseilles had spoiled them so that they, who had formerly always vanquished the Germans, had become inferior to them” (20.1, 338n2). Caesar and Plato, before the advent of the Christian dispensation and its condemnation of commerce, understood precisely what Montesquieu understands: commerce “polishes and softens barbarous mores, as we see every day” (20.1, 338). It was on this basis that the martial men of antiquity rejected commerce and denounced its effects. It would appear that the benevolent teachings of the Gospels softened human beings so that they were particularly receptive to the softening effects—the effects that the ancients deemed corruption—of commerce. It is far from clear, however, that Montesquieu regards Christianity’s preparation as essential. No doubt, he understands that the coming of Christ, who was to unite nations in comity, to the Roman Empire was a unique event. Nevertheless, it is reasonable to ask of Montesquieu whether commerce could have gotten a foothold in the world if it were not for Christianity’s preparatory work. There is evidence in The Spirit of the Laws that not only does Montesquieu consider this question but also that he regards the flourishing of commerce without the birth of Christ as having been a viable historical possibility. On Montesquieu’s rendition, not all the men of antiquity were hostile to commerce. Indeed, his depiction of Alexander the Great suggests that he was something of a wise ancient prophet of commerce.7 Montesquieu’s Alexander “formed the design [dessein] of uniting the Indies with the west by a maritime commerce” (21.8, 365; OC 2: 614). Montesquieu does fault him, however, for not understanding that Alexandria, the city he founded, could facilitate trade between Europe and Asia by serving as the key maritime port for sending goods to and from Asia. Of course, dying young, without a successor, Alexander was unable to bring to fruition his plans for the development of a global commerce between Asia and Europe—East and West. Nevertheless, Montesquieu speaks of the Macedonian’s conquest in

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moving and evocative terms; his was a most remarkable conquest, the Frenchmen emphasizes in the two chapters he dedicates to this conqueror. Whereas the “Romans conquered all in order to destroy all,” Alexander “wanted to conquer all in order to preserve all.” Alexander “left to the vanquished peoples not only their mores but also their civil laws.” Behind this approach to his conquest was, on Montesquieu’s understanding, an intentional plan: “in every country he entered, his first ideas [idées], his first designs [desseins], were always to do something to increase its prosperity and power” (10.14, 150; OC 2: 391). Montesquieu thus explicitly credits Alexander with being guided not by despotic ideas but rather by beneficial ones. For example, he was able to overcome the inhumane practices of a conquered people while still being admired for his respect for these foreign people’s mores and laws. Montesquieu notes on this score that the “Bactrians had their elders eaten by large dogs; Alexander forbade them to do this, and this was a triumph he gained over superstition” (10.5, 142). He halted a culture’s violent inhumanity without incurring the reputation for—to use current parlance—cultural imperialism. It is just such a remarkably humane result, one that does not unsettle the native people so that these new practices do not feel like a tyranny (19.2–3),8 that induces the Frenchmen to conclude, against all of his principles regarding offensive war: “A conquest can destroy harmful prejudices, and, if I dare [si j’ose] speak in this way, can put a nation under a better presiding genius” (10.4, 142; OC 2: 381; cf. 10.13, 148).9 Alexander is one such genius. In speaking of Alexander’s deeds specifically and of the love that he garnered from the peoples whom he conquered, Montesquieu asks: “Who is this usurper whose death is mourned by all the peoples he subjected?” (10.14, 149). Montesquieu explicitly indicates that he knows of the medieval literary genre known as Alexandrian romance that depicts Alexander’s conquest as a harbinger of Christianity and Alexander himself “as an agent of God” and a precursor to Christ.10 He pointedly disputes its Christian appropriation of Alexander, however, on the basis of his understanding of the reasonableness of the ancient conqueror’s plan: “even in the heat of his passions, [he] was led by a vein of reason [saillie de raison], if I dare [si j’ose] use the term” and “those who have wanted to make a romance of his story, those whose spirit was more spoiled than his, have been unable to hide it from us” (10.13, 148; OC 2: 387–88). Here Montesquieu declares that he is able to wrest Alexander from his Christian appropriators to determine his true significance. According to the Frenchman, Alexander was driven not by the spirit that would bring Christ to the world, but by his own acumen, an acumen that did not see itself as a tool of a higher power and that foresaw the

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humane results of a world united by commerce, even if war was the means that brought about that peaceful result. In Montesquieu’s estimation, “not only was the project wise [sage], but it was wisely [sagement] executed” (10.13, 148; OC 2: 387). His treatment of Alexander offers a counterfactual example: what might have occurred in the world had Alexander been able to complete and consolidate his plans, his plans based on his own genius. Just as he wrests Alexander away from the ill effects of Aristotle’s tutelage, he saves the conqueror also from the Christian plan of a providential historical development. It would have been quite possible, Montesquieu indicates through his depiction of Alexander, to build a global empire based on commerce before the advent of Christianity. Human acumen, not the intervention of God, would have been this empire’s driving force.

MONTESQUIEU’S UNDERSTANDING OF HIS OWN GENIUS AND AGENCY IN HISTORY Montesquieu, as he says himself, did not believe that he “totally lacked genius” (pr., xlv). As much as he depicts history as progressive and the “modern religion” as being commensurate with gentleness and concord, The Spirit of the Laws reveals both the continuing ill effects of despotic ideas and his own efforts at countering them. His understanding that ideas transcend the historical epoch in which they were conceived presents him with both challenges and opportunities. Thus, because the world, left to its own devices, has not healed itself and will not heal itself, a writer—a legislator—such as he has the potential to assist in some of its cures. Montesquieu declares a most happy result and one that would appear to support a notion of progress: “And, happily, men are in a situation such that, though their passions inspire in them the thought of being wicked, they nevertheless have an interest in not being so” (21.20, 389–90). This study reveals, however, that on Montesquieu’s own understanding Europe is not in so sanguine a position. Given the blood that has been spilled in his century and in the one preceding it, on his own depiction Europe remains a sanguinary place. A consideration even of the chapter in which he issues so hopeful a pronouncement shows that there is reason to believe that European politics cannot so easily be redeemed. Even after the Jews invented letters of exchange, the French monarchy slaughtered its Protestant subjects. “One has begun to be cured of Machiavellianism,” but one has to “continue to be cured of it.”11 The cure must continue to be applied, and Montesquieu’s announcement of his fond hope to “make it so that men were able to cure themselves of their prejudices”—that is, the disease of being “unaware

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of oneself”—shows his desire to be a key participant in the amelioration of the despotic ideas of Europe (pr., xliv). Montesquieu’s optimistic teachings, when interrogated, actually highlight the work that remains to be done, the work that his thought undertakes in The Spirit of the Laws. In his important chapter entitled “That liberty is favored by the nature of penalties, and by their proportion,” he describes not what is the relation between the type of crime and its penalties in France, in Europe, or, for that matter, in any state in the world, past or present, but what should be that relation (12.4, 189). As we have seen, for his European compatriots, the embrace of his teaching would mean that heretics would no longer be killed—by burning or any other method—nor would they be imprisoned. In this instance, Montesquieu, like Alexander among the Bactrians, would not be a mere observer of a national or cultural practice but rather a teacher of humanity to humanity who would thereby win a triumph over superstition (cf. 10.5, 142). Of course, some of his discussions of Christian ideas constitute a new, salutary interpretation of the religion.12 Although Christianity has brought good things to the world such as its preaching of universal peace, its love of humanity, its promotion of equality, it does not consistently act on these benevolent ideas. In addition, the religion’s leaders and teachings remain hostile to the embrace of the selfish interests inherent in commercial enterprise as a flagrant repudiation of Christian charity. He works very hard, as we saw in the previous chapter, to depict Christianity’s purpose as complementary to the effects of commerce. To this end, he maintains—contrary to the historical evidence—that Aristotelian teleology and not Christian charity is the true impediment to Europe’s enthusiastic embrace of interest on loans that could buttress commerce. In the notes to the chapter in which Montesquieu discusses “[h]ow commerce in Europe penetrated barbarism,”13 he treats Emperor Leo, who reigned in Byzantium in the late ninth and early tenth centuries. Leo perceived the harm that his father, Emperor Basil, had done to the empire by prohibiting the taking of any interest at all on loans. Accordingly, the son repealed the law of the father. A ruler in the Christian dispensation, just like Plato, Alexander, and Caesar before its advent, can understand the true effects of commerce. But the political and religious context is not always receptive to such a view. In Montesquieu’s Europe—even in his own enlightened century—the actions that Leo took may not be as easy as Montesquieu suggests. Indeed, the fact that the Church moved to censure Montesquieu’s support for the taking of interest indicates that forces in the eighteenth century still worked to undermine his teachings on the subject.

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Montesquieu’s insistence that the taking of interest is an expression of Christian charity because of the life-promoting effects that commerce brings to peoples is just one element of his “progressively” humane interpretation of Christianity.14 There are other key elements as well, of course: his insistence, for example, that the persecutors of the Inquisition are not true Christians, and that true Christians would not enslave other human beings—even if such enslavement would promote their conversion and hence the global spread of their religion (25.13, 5.5, 5.4). By emphasizing some aspects of Christianity and stigmatizing others, he offers a particular interpretation of Christianity, one that is not entirely new, but that serves to counter versions that contain despotic ideas and thus foster despotic practices. For Montesquieu, ideas both harm and cure. His is no naïve notion of progress, as his is mixed with the ever-present possibility of regress.15 As sobering as this possibility must be, his assessment that ideas, both noxious and salutary, persist is, in a sense, a vindication of reason. Rather than being circumscribed by the historical context in which they were conceived, ideas can have innumerable lives, serving to guide the thinking and the political endeavors of peoples in future ages. He discerns all around him the continuing effects of old ideas. Because ideas matter, thinkers matters. Writings can attain a type of immortality for their authors. Despite the force that he ascribes to ideas and thereby to thinkers, Montesquieu will not concede to human thought the power to encounter the eternal, as his conception of thought limits its scope exclusively to the earthly realm. He judges thought strictly by its worldly impact. Rather than discussing Plato’s philosopher-kings, he renders Plato himself a philosopher-king, a legislator whose ideas influenced political practice, in the same way that he renders Aristotle, More, Machiavelli, and Harrington legislators. Just as having many devoted Christian monks, who for the sake of their personal salvation flee the demands of their earthly city, so it must be that having many followers of Socrates would have an adverse effect on the state. Montesquieu insists that “the speculative sciences” can “render” human beings “savage” (4.8, 41): “Sects of philosophy” in Rome “introduced into the empire a spirit of distance from public business” (23.21, 447–48). Hobbes’s thought, Montesquieu finds, also produces such a neglect of public business in its attempt to quell the disruptive contestations of the political realm with the enticing but ultimately despotic allure of commodious living. As much as Montesquieu nurtures the private realm, he teaches that the fight against despotism requires that it not entirely engross the public realm.

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Like Plato, Aristotle, More, Machiavelli, and Harrington before him, Montesquieu is a legislator—a founder—in thought.16 Such great legislators have the power to affect the general, faceless, and imposing forces of history. In such legislators, Montesquieu finds human liberty.17 But he also seeks to moderate their liberty, making it less disruptive and hence more salutary for society. Just as he teaches the need to circumscribe the power of any prince within a political state, so he teaches the need for legislator-philosophers to circumscribe for themselves their field of action. With his declaration that “any man who has power is led to abuse it” and his repeated warnings of the dangers of prosecuting affronts to the majesty of a ruler, he debunks pretenses of earthly rulers in actual regimes to claim the dignity, infallibility, and power of a divinity. Similarly, he warns legislators of the harm that they can do with their power even when they attempt to do good: “By a misfortune attached to the human condition, great men who are moderate are rare; and, as it is always easier to follow one’s strength than to check it, perhaps in the class of superior people, it is easier to find extremely virtuous people than extremely wise men” (28.41, 595). As a result, despotic abuses result from their mistaken attempts at correction: A legislator who wants to correct an ill often thinks only of that correction; his eye is on that object and not on its defects. Once the ill has been corrected, only the harshness of the legislator is seen; but a vice produced by the harshness remains in the state; spirits are corrupted; they have become accustomed to despotism. (6.12, 85)

Montesquieu instructs that to change manners and mores too abruptly is a tyranny (19.2–3). Therefore, “the spirit of moderation should be that of the legislator” (29.1, 602). Legislators should not formulate their laws with a particular view to making a gaudy and self-congratulatory display of “their wisdom to the universe” (cf. 4.6, 36). Montesquieu claims for himself as legislator an additional attribute, though—one that makes his legislation particularly salutary. Unlike the prior writer-legislators whom he names, Montesquieu derives his “principles” from not from his “prejudices” but “from the nature of things”; he therefore retains, rather than forgets, the knowledge of human nature and its needs (29.19, pr., xliii and xliv).18 He thereby acts on the “knowledge” that he regards as being “of more concern to mankind than anything else in the world” (12.2, 188), countering the atrocities that can occur when peoples succumb to noxious prejudices.19 Everywhere his ideas travel, they will fight against prejudice, teaching gentleness in government and in pen-

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alties, much to the salvation of human nature. Only then will the “wise legislator” (législateur sage) be said to offer the possibility of “the enjoyment of a constant happiness and a sweet tranquility” (la jouissance d’un bonheur constant et d’une douce tranquillité) (12.13, 87; OC 2: 323). “Everything bows before my principles,” he announces late in the work (28.6, 541). Montesquieu’s own ideas could make him a new Alexander, one who understands commerce in a new way, whose “new ideas” (idées nouvelles) could help to inform the unification of different peoples, different cultures, in comity (cf. author’s foreword, xli; OC 2: 227); “good things” could “result” (cf. 20.1, 338). The spread of his “new ideas” in The Spirit of the Laws will represent his conquest. Unlike Alexander’s, but very much like Christ’s, his will be entirely peaceful. Here is a “conquest” of which it can be truly said that it would “destroy harmful prejudices” and “put a nation under a better presiding genius” (10.4, 142; cf. pr., xliii–xliv). Even so efficacious and soothing a reign for such a genius as Montesquieu cannot eradicate despotic ideas, however. Such ideas will linger and thereby surely continue to inspire despotic practices. His masterwork will, however, offer future generations the intellectual and spiritual resources by which to counter them when they reemerge. Montesquieu would thereby illustrate the creative and humane power of an individual thinker. In his words: “a conqueror, I say, can change the course of everything” (10.4, 141).

notes

INTRODUCTION 1. Montesquieu’s thought has been praised recently for its eschewal of dogmatic universalism and its embrace of pragmatism and particularism. See Rasmussen, Pragmatic Enlightenment, and Callanan, “Liberal Constitutionalism and Political Particularism.” The characteristics that now win Montesquieu admirers earned him stern critics at the time of the work’s publication. The failure of this French Catholic to advocate for the universal applicability of Christian teachings or to condemn such unchristian practices as, for example, polygamy was shocking. See, for example, Plesse, “Lettre au P.B.J.,” 105–7, 111, and La Roche, “Examen critique de l’Esprit des Lois,” 117, 121, 126. Montesquieu’s temperate approach also induces some commentators to ascribe the origins of objective social science to him. Commentators who, following Auguste Comte, regard Montesquieu as a relativist also regard him as a forerunner of social science who seeks primarily to document the rich diversity of cultures. See Durkheim, Montesquieu and Rousseau, 61, 51, and 15–18, but cf. 19–20, 22–23, 53; Althusser, Politics and History, 17, 19, 22, 29, but cf. 37, 39–42; Aron, Montesquieu, Comte, Marx, de Tocqueville, 13–14, 25, but cf. 47–49. See also Manent, City of Man, 11–85. 2. Some scholars see Montesquieu as ultimately participating in the natural law or natural right tradition. See, for example, Waddicor, Montesquieu and the Philosophy of Natural Law; Courtney, “Montesquieu and Natural Law”; Carrese, “Montesquieu’s Complex Natural Right.” Waddicor gives an informative summary of the long-standing controversy as to whether Montesquieu accepted or rejected the tenets of natural law (Montesquieu and the Philosophy of Natural Law, 16–21). Zuckert focuses on Montesquieu’s appeal to natural rights in the work, and hence his kinship to John Locke (“Natural Law, Natural Rights, and Classical Liberalism,” 239–43); see also Zuckert, “Natural Rights and Modern Constitutionalism,” 43–46. 3. Krause offers an excellent analysis of Montesquieu’s treatment of this concept (“Despotism in The Spirit of Laws”). See also Young, “Montesquieu’s View of Despotism,” and Boesche, “Fearing Monarchs and Merchants.” Montesquieu’s “absolute evil was despotism” (Craiutu, Virtue for Courageous Minds, 64).

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notes to pages 2– 4

4. Said, Orientalism. For the manner in which scholars have assessed Montesquieu’s participation in this discourse, see for example: Pucci, “Orientalism and Representations of Exteriority,” 263–79; Lowe, “Rereadings in Orientalism,” 115–43; Richter, “Montesquieu’s Comparative Analysis of Europe and Asia,” 332; Rubiés, “Oriental despotism and European Orientalism,” 109–15 and 168–70; Wolff, “Discovering Cultural Perspective,” 9; and Curtis, Orientalism and Islam, 72–102. Curtis indicates that when Pope Pius II called for another Crusade in 1464, he “helped make the word Europe interchangeable with Christendom” (30). 5. Courtney argues that Montesquieu supports “gradual” reform that “acknowledge[s] the existence of all the relevant circumstances. This has led to the misunderstanding that he is not really a reformer, but rather a relativist, who always finds arguments to justify existing institutions” (“Montesquieu and Natural Law,” 58). On his acknowledgment of the possibility of reform here, see also Pangle, Montesquieu’s Philosophy of Liberalism, 21–22. 6. Kautz, Liberalism and Community, 95–96. 7. Montesquieu does not name France here, referring only to “some states,” but his homeland was one European nation that used this form of torture. See Andrews, System of Criminal Justice, 385. 8. See also chapter 6 of Considerations on the Causes of the Greatness of the Romans and Their Decline where he says that had the Spanish followed “the system” of the Romans in making themselves “the head of a body formed by all the peoples of the world,” “they would not have been forced to destroy everything in order to preserve everything” (75). 9. See Levin, Political Doctrine, 229–30, for a discussion, with references to ancient sources, of the use of torture among the Greeks and Romans. See also chapter 15 of Considerations on the Causes of the Greatness of the Romans and Their Decline: “Since the Romans were accustomed to making sport of human nature in the person of their children and their slaves, they could scarcely know the virtue we call humanity.” He continues by asking: “When we are cruel in the civil state [l’état civil], what can we expect from natural gentleness and justice?” (136; OC 2: 148). See Waddicor, Montesquieu and the Philosophy of Natural Law, 141. 10. Larrère, “Montesquieu and Liberalism,” 290. 11. For a useful discussion of Montesquieu’s work that identifies him not as a relativist but as a liberal pluralist, who understood that various alternatives answered to the conception of the political good but who disapproved of the denial of basic rights, see Larrère, “Montesquieu and Liberalism.” Manin’s formulation is that Montesquieu offers a “libéralisme de la pluralité.” Although on Manin’s interpretation of Montesquieu there is no single path to the pursuit of the political good, he is surprised nevertheless at the interpreters who remain blind to the massive fact that in The Spirit of the Laws Montesquieu not merely decries but judges and chooses (“Montesquieu et la politique moderne,” 213 and 159). Klosko characterizes Montesquieu’s thought as that of both a moral relativist and a moral absolutist, but argues that the latter furnishes the basis for his political science, which “is no less a system of prescriptive political theory than those of Hobbes or Locke” (“Montesquieu’s Science of Politics,” 176, 154–55). See also

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Richter, Political Theory of Montesquieu, 20, 26, and 71, and Curtis, Orientalism and Islam, 76. 12. Craiutu, Virtue for Courageous Minds, 37. Craiutu offers this assessment in the context of commenting on Montesquieu’s remarks on the Gothic government. 13. Cf. Pangle’s comment that the “theme of Book XII is for Montesquieu the most important theme of political philosophy” (Montesquieu’s Philosophy of Liberalism, 139). See also Carrithers, “Montesquieu’s Philosophy of Punishment,” 221–22, and “Montesquieu and the Liberal Philosophy of Jurisprudence,” 293–94. 14. Callanan, “Liberal Constitutionalism and Political Particularism,” 593–99, and Schaub, Erotic Liberalism, 139. 15. Immediately before this statement, he offers two other possibilities that would induce him to consider himself the “happiest of mortals.” First, if he “could make it so that everyone had new reasons for loving his duties, his prince, his homeland and his laws and that each could better feel his happiness in his own country, government, and position”; and second, if he “could make it so that those who command increased their knowledge of what they should prescribe and that those who obey found a new pleasure in obeying” (pr., xliv). 16. Montesquieu recognizes the possibility of progress, but does not regard it as inevitable. For an instructive consideration of his approach to history in several of his works, see Carrithers, “Montesquieu’s Philosophy of History.” Carrithers, in fact, rejects the notion that Montesquieu possessed a teleological view of history (see particularly 79–80). On this point, see also Shklar, Montesquieu, 50. In the conclusion of this book, I offer some additional reflections on Montesquieu’s approach to history as it comes to light in The Spirit of the Laws. 17. Indeed, some scholars see his aversion to despotism as unifying the corpus of his writings. See Krause, “Despotism in The Spirit of Laws,” 231; Levi-Malvano, Montesquieu e Machiavelli, 99; Schaub, Erotic Liberalism, 19; Shklar, Montesquieu, 31. Binoche (Introduction, 199–241) and Barrera (Les lois du monde, 46–60) emphasize his desire to remedy this pervasive political malady in The Spirit of the Laws. 18. Krause, “Despotism in The Spirit of Laws,” 253. See also Grosrichard, Sultan’s Court, 49; Schaub, “Montesquieu’s Legislator,” 153; and Spector, Montesquieu, 105–6. 19. For his explanation of this use of the term, see 14.13, 243 and n. 25. See also Considerations on the Causes of the Greatness of the Romans and Their Decline, 123 and n. 7 (chap. 13). 20. Shklar comments that for Montesquieu “despotism is a passion of the soul, a political tendency, and a system of government” (Montesquieu, 75). 21. In this place, Montesquieu mentions that fathers in China and in Peru are punished for the crimes of their children and then comments: “It is another punishment derived from despotic ideas.” He fails to elaborate in this place on the other punishments and the other despotic ideas he has in mind. In a related discussion, he says that it is a “despotic rage” (fureur despotique) that has children and wives punished for “the father’s disgrace” (12.30, 212; OC 2: 457). Here he gives no example of such a law or teaching that declares that the mistakes of the fathers must fall on their children, leaving it entirely to the reflection of the reader. See Shklar, Montesquieu, 89.

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22. Pangle, by contrast, offers an interpretation of Montesquieu’s thought that presents him as much more optimistic regarding Europe’s current and future condition (Theological Basis of Liberal Modernity, 108 and 132). Cf. Mosher, “What Montesquieu Taught,” 11. 23. Grosrichard, Sultan’s Court, 48. 24. For an argument that Louis’s plan for subjugating Europe was a particular concern of Montesquieu, see Rahe, “The Book That Never Was” and Montesquieu and the Logic of Liberty, 16–26. Grosrichard notes, “The Turk continued to be a matter for concern [for Europe] up until the end of the eighteenth century” (Sultan’s Court, 202n69). 25. Mosher notes that Hannah Arendt “freely adapted into her theory of totalitarianism” Montesquieu’s “understanding of political things,” including despotism, and that she wrote Origins of Totalitarianism “after an intensive examination of The Laws” (What Montesquieu Taught,” 8 and 27 n. 2). Cf. Barrera, Les lois du monde, 356. 26. Lowe (Rereadings in Orientalism,” 123 and 128) and Schaub (Erotic Liberalism) in their interpretations of the Persian Letters argue that the despot and his seraglio can be understood as stand-ins for European institutions that Montesquieu could not criticize so directly. Krause notes that in The Spirit of the Laws, “Oriental despotism serves as a device for carefully introducing a criticism of France” (“Despotism in The Spirit of Laws,” 252). Grosrichard identifies such veiled criticisms of the French monarchy not only in Montesquieu’s writings, but also in the very travel literature on which Montesquieu draws (Sultan’s Court, 23–24, 29, 31, 48, 55–56, 68). 27. Montesquieu, My Thoughts, 459 (pensée 1606). 28. E.g., Said, Orientalism, 40 and 59–60. 29. Krause, “Despotism in The Spirit of Laws,” 255. 30. Machiavelli, The Prince, 61 (chap. 15). 31. Montesquieu, My Thoughts, 322 (pensée 1208). 32. For a historical treatment of Montesquieu as a teacher of European rulers in the eighteenth century, see Volpilhac-Auger, “L’Esprit des lois, une lecture ad usum delphini?” 33. When speaking of how the passions affect our judgments he uses the image of colored glass: “Hatred, jealousy, fear, hope, are all the glasses of distinct colors, through which we see an object that appears always equally red, or green, etc., and differs only in shade” (Montesquieu, “Essay on Causes Affecting Minds and Characters,” 438). 34. Cf. Radasanu, “Montesquieu on Moderation, Monarchy, and Reform,” 287. 35. Mosher, “Judgmental Gaze of European Women,” 28. 36. Schaub, Erotic Liberalism, 23. 37. Larrère comments on Montesquieu’s treatment of the subject: “Commerce is portrayed as an activity that brings peace to the whole of humanity, fulfilling the ends of sociability” (“Montesquieu on Economics and Commerce,” 347). See also Larrère, “Montesquieu économiste?”; Pangle, Montesquieu’s Philosophy of Liberalism, 200–248; Rahe, Montesquieu and the Logic of Liberty, 170–85; Spector, Montesquieu et l’émergence de l’économie politique; Bibby, Montesquieu’s Political Economy; and Howse, “Montesquieu on Commerce, Conquest, War, and Peace,” 693. 38. Vile, Constitutionalism and the Separation of Powers, 76–97; Shackleton, “Montesquieu, Bolingbroke and the Separation of Powers”; Krause, “Spirit of Separate Powers in Montesquieu,” 231–65.

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39. Montesquieu’s positive teaching on criminal penalties quickly found a particularly enthusiastic acolyte in Cesare Beccaria, who published On Crimes and Punishments in 1764. Montesquieu’s ideas suffuse the work, and Beccaria acknowledges his debt: “The immortal President de Montesquieu touched hastily on this matter. Indivisible truth has compelled me to follow the shining footsteps of the great man” (6). See Carrithers, “Montesquieu’s Philosophy of Punishment,” 213–40; Carrithers, “Montesquieu and the Liberal Philosophy of Jurisprudence”; Carrese, Cloaking of Power, 11–51; and Kingston, Montesquieu and the Parlement of Bordeaux, 232–71. 40. Rahe, Montesquieu and the Logic of Liberty, 198. See also Schaub’s informative discussion in “Montesquieu’s Legislator,” 152–53, of the two different senses in which Montesquieu uses the word “principle” in the work. 41. Craiutu, Virtue for Courageous Minds, 33. 42. In his Pensées, he details his own approach to studying the works of others: “When reading a book, we should be disposed to believe that the author has seen the contradictions that we imagine we are encountering there on first glance.” After considering at some length how to avoid confusing only apparent contradictions, which arise from “our own manner of thinking,” with true ones, he continues: “This is not all, however. When a work is systematic, we should still be sure we grasp the whole system” (My Thoughts, 640 [pensée 2092]). Manin, “Montesquieu et la politique moderne,” 162. 43. Shklar (Montesquieu, 114) and Binoche (Introduction, 12) note that Voltaire likened reading The Spirit of the Laws to being in a labyrinth without a thread. 44. My translation from “Réponse à des observations de Grosley sur L’esprit des lois,” OC 2: 1197. Ehrard, “La ‘chaîne’ de L’Esprit des lois.” See also Binoche, Introduction, 8–13; Pangle, Montesquieu’s Philosophy of Liberalism, 11–19; Pangle, Theological Basis of Liberal Modernity, 9–10; Rahe, Montesquieu and the Logic of Liberty, 86–88. Spector offers a judicious account of Montesquieu’s indications of his artfulness and caution in writing and the reasons for them as well as the pitfalls that they present for a commentator (Montesquieu, 15–22). For Montesquieu’s imagery of the chain as it relates to the interpretation of the Persian Letters, see Kra, “Invisible Chain of the Lettres Persanes.” Schaub addresses it with respect to both The Spirit of the Laws and the Persian Letters (Erotic Liberalism, 13–17). Richter cautions against “assuming that because he claimed unity for his thought, he in fact achieved it” (Political Theory of Montesquieu, 64). 45. Gargett, Jacob Vernet, Geneva, and the “philosophes,” 78. 46. Ibid., 86. 47. Shackleton, Montesquieu, 242 and n. 1. 48. I have translated this from the French provided in Shackleton, Montesquieu, 279. 49. Ibid., 279. See also Ehrard, “‘Subordonnés et dépendans.’” Ehrard considers these additions at some length and concludes both that Montesquieu’s final version of the sentence may have arisen from caution and that the final version coheres better with Montesquieu’s overall teaching on monarchy in the work. See also Rahe, Montesquieu and the Logic of Liberty, 195. 50. La Roche, “Examen critique de l’Esprit des Lois” (1749). 51. Shackleton, “Censure and Censorship,” 405–20; Shackleton, Montesquieu, 356– 77; and Lynch, “Montesquieu and the Ecclesiastical Critics of ‘L’Esprit des lois,’” 487–500.

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52. Shackleton, Montesquieu, 376. 53. Richter notes that “Malesherbes later held up Montesquieu as an example to Voltaire of how a writer could, by subterfuge and evasion, manage to say substantially whatever he wished” (Political Theory of Montesquieu, 16). Of course, Montesquieu did not succeed in entirely evading the censors.

PART I 1. Machiavelli, Discourses, 6 (1 pr.); Hobbes, Leviathan, 125 (2.18). 2. For Machiavelli’s rejection of the “middle way,” see, for example, Discourses, 182 (2.23), 66 (1.29), and 300 (3.40). 3. Hobbes, Leviathan, 90 (1.13).

CHAPTER ONE 1. Schaub relates this passage directly to Machiavelli: “The line ‘And I too am a painter’ is an apocryphal one, attributed to Correggio on seeing Raphael’s painting of the martyrdom of St. Cecilia (Roman virgin and patroness of music). Raphael, it should be remembered, was a contemporary of Machiavelli. In other words, Montesquieu has looked upon the great mural of modernity, begun by a Renaissance Italian, extended by the European Enlightenment, and is yet undaunted” (Erotic Liberalism, ix–x). 2. Montesquieu says of Machiavelli in this place: “I would gladly adopt this great man’s [ce grand homme] maxim” (OC 2: 313). That this is Montesquieu’s first reference to a great man since his preface is confirmed through a search on FRANTEXT Database. This chapter is an expansion of the article Sullivan, “Against the Despotism of a Republic.” 3. Bertière, who emphasizes Montesquieu’s sympathy for Machiavelli, finds significance in the fact that Montesquieu includes Machiavelli with these other philosophers (“Montesquieu, lecteur de Machiavel,” 144). 4. Levi-Malvano maintains that Montesquieu both had a deep knowledge of Machiavelli and relied heavily on his predecessor’s thought particularly with respect to his evaluation of the Roman republic. Of course, the content of Montesquieu’s Considerations on the Causes of the Greatness of the Romans and Their Decline covers the same history as Machiavelli’s Discourses. Nevertheless, Levi-Malvano argues that Montesquieu manifests some “antimachiavellismo,” which he links to Montesquieu’s opposition to the maxims of The Prince (Levi-Malvano, Montesquieu e Machiavelli, 112–23). Indeed, he discerns two different Machiavellis: one is the profound analyst of republics and the other the advisor to tyrants. According to Levi-Malvano, Montesquieu approves of the former and disapproves of the latter (126). My argument ultimately differs from such a conclusion in finding that Montesquieu also disapproves of Machiavelli’s form of republicanism. My findings, however, do accord with those of Krause, who in a brief discussion maintains that Montesquieu’s disapproval of Machiavelli’s “great acts of terror” extends not only to The Prince but to the Discourses as well (“Politics of Distinction and Disobedience,” 480–81 and 484). 5. One of Montesquieu’s earliest writings is Dissertation sur la politique des romains dans la religion, which shares important similarities with Machiavelli’s Discourses. In

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addition, he had a work, which he never completed and of which only traces remain in his other works, which he referred to as Le Prince or Les Princes (Shackleton, Montesquieu, 146). Bertière notes that Machiavelli’s name appears nine times in Montesquieu’s corpus and the term Machiavellianism twice (“Montesquieu, lecteur de Machiavel,” 143). Bertière maintains that Montesquieu’s views of Machiavelli were shaped by Louis Machon’s Apologie pour Machiavel (156). Shackleton finds Montesquieu’s final assessment of Machiavelli different from the typical hostile view. See “Montesquieu and Machiavelli,” 5ff.; and Shackleton, Montesquieu, 142–43. Shackleton concludes that it is “on the republic that Montesquieu thought Machiavelli a greater authority, and it was his pronouncements of the republic, contained in the Discorsi, which he mainly utilized” (“Montesquieu and Machiavelli,” 11). 6. For the view that Montesquieu follows Machiavelli by taking the effectual truth as his guide, see Mansfield, Taming the Prince, 215, 223, 232; Rahe, “Forms of Government,” 70; and Zuckert, “Natural Law, Natural Rights, and Classical Liberalism,” 239. Rahe offers a more extended examination of the relationship in “Montesquieu’s AntiMachiavellian Machiavellianism.” See also Carrese, who links Montesquieu’s theory of the separation of powers with Machiavelli’s advocacy of factional politics in a republic (“Machiavellian Spirit of Montesquieu’s Liberal Republic”). Although Carrese documents Montesquieu’s respect for and reliance on Machiavelli, he notes the Frenchman’s divergence from Machiavelli on issues relating to humane judging and administration of justice for individuals (126, 135–40); see also Carrese, Cloaking of Power, 39–40; Wood, “Value of Asocial Sociability”; and Cotta, “L’idée de parti.” Rahe draws a distinction between Montesquieu’s and Machiavelli’s evaluation of Rome’s expansionist foreign policy (“Book That Never Was,” 73–80). I concur with Rahe’s conclusion on this score that “Montesquieu’s aim is Machiavelli’s defeat” (Montesquieu and the Logic of Liberty, 74; see also 36). For Hulliung’s depiction of Montesquieu’s attack on Machiavellianism, see particularly Montesquieu and the Old Regime, 46, 148–67, 181, and 185–88. Hulliung defines Machiavellianism both as a despotic form of princely rule and as war waged for conquest. The French monarchy, Hulliung argues, embraced both facets. He describes Montesquieu’s intent as to subvert the French ancien régime by using Machiavellian “power politics” to install the anti-Machiavellian program of a liberal society. He characterizes Montesquieu as “plying his sometime trade of packaging anti-absolutist ideas in the protective covering of Machiavellian semblance” (186 and 198). My analysis of Montesquieu’s anti-Machiavellianism focuses on different concerns from that of Hulliung, but is, nevertheless, compatible with it. 7. Marchamont Nedham (1620–78) both denounces and appeals to Machiavelli’s thought. See, for example, his praise of the first Brutus in Excellencie of a Free State, 136– 37. See Sullivan, Machiavelli, Hobbes, and the Formation of a Liberal Republicanism, 140–43, and Rahe, “Machiavelli in the English Revolution,” 15. Algernon Sidney (1623– 83) also finds aspects of Machiavelli’s harsh republicanism attractive. See, for example, Sidney, Discourses concerning Government, 302 (2.30) and 219 (1.13); Sullivan, Machiavelli, Hobbes, and the Formation of a Liberal Republicanism, 213–18; and Sullivan, “Muted and Manifest English Machiavellianism,” 71–72. Montesquieu refers to Sidney’s Discourses in The Spirit of the Laws 11.6. 8. John Trenchard and Thomas Gordon, writing as Cato in the 1720s, appeal to

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Machiavelli’s depiction of the Roman republic: “Machiavel tells us, that no government can long subsist, but by recurring often to its first principles.” “The great authority just quoted informs us what measures and expedients are necessary to save a state under such exigencies. He tells us that . . . free government is not to be preserved but by destroying Brutus’s sons.” Cato’s Letters 2: 121, letter 16. See Sullivan, Machiavelli, Hobbes, and the Formation of a Liberal Republicanism, 245, and Sullivan, “Muted and Manifest English Machiavellianism,” 75–81. 9. Skinner, Liberty before Liberalism, includes Machiavelli in the neo-Roman conception of liberty that demands that free persons be defined by their capacity for self government (10 and 26). 10. See particularly Pettit, Republicanism. Pettit describes his variant of a republican theory of freedom as one that emphasizes non-domination and includes both Machiavelli and Montesquieu as participants (e.g., 5 and 19). Skinner notes his particular debt to the work of Pettit (Liberty before Liberalism, xi). Pettit does broach at one point the important difference between Machiavelli and Montesquieu, whom he otherwise equates: “The association of freedom with subjective and often intersubjective status—the association of freedom with a feeling of independence and immunity—goes back a long way in the republican tradition. . . . It is even there in Machiavelli, who is more tolerant of coercion and terror than most writers.” He continues: “Montesquieu . . . seems to offer a gloss on Machiavelli when he writes, over two centuries later: ‘Political liberty in a citizen is that tranquility of spirit which comes from the opinion each one has of his security, and in order for him to have this liberty the government must be such that one citizen cannot fear another citizen’” (Republicanism, 71). Thus, Pettit here suggests that Montesquieu feels compelled to respond to Machiavelli’s tolerance for coercion of and terror in the citizenry, suggesting that such tactics are incompatible with his understanding of liberty. This chapter elaborates on the significance of Pettit’s identification of this difference between the two thinkers. 11. See McCormick, Machiavellian Democracy, where he argues that the “antagonistic political culture” exemplified in Machiavelli’s depiction of ancient Rome can instruct contemporary democratic theory (297). See also, McCormick, “Machiavellian Democracy,” 297–313, and “Subdue the Senate,” 714–35. 12. In addition to these passages, Montesquieu uses Machiavelli’s Florentine Histories as a source in a note to book 28 (28.6, 541). 13. Here, for instance, Montesquieu uses the term “grand” to convey the notion of extensive impact as opposed to praiseworthiness. Chapter 6 below will treat at more length Montesquieu’s analysis of the events of the Middle Ages. 14. Cf. Bibby, Montesquieu’s Political Economy, 89–90. 15. Machiavelli, The Prince, 32 (chap. 7). 16. Ibid., 29–30 (chap. 7). 17. Ibid., 29 (chap. 7); for these murderous events at Sinigaglia, see also The Prince, 37 (chap. 8). 18. Machiavelli ultimately is critical of the man whom Montesquieu terms his idol, not, however, for his bloodthirstiness, but rather for his making an incorrect judgment regarding the election of a successor pope: “One could only accuse him in the creation of Julius as pontiff, in which he made a bad choice; for, as was said, though he could not

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make a pope to suit himself, he could have kept anyone from being pope” (The Prince, 33 [chap. 7]). For a fuller exploration of Machiavelli’s treatment of Borgia, see Scott and Sullivan, “Patricide and the Plot of The Prince.” 19. The term coup d’état was well established in France as a Machiavellian term. Gabriel Naudé, a French writer and librarian to Cardinal Mazarin, associated the term specifically with Machiavelli’s political thought in Considerations politiques sur les coups d’état, published in the first half of the seventeenth century. See Donaldson, Machiavelli and Mystery of State, 141–42 and 154–60. On Naudé, see also Rahe, Montesquieu and the Logic of Liberty, 35–36. Cf. Rahe’s interpretation of 20.21 in Montesquieu and the Logic of Liberty, 182 and 184. 20. See, for example, Kelley, “Murd’rous Machiavel in France,” and Knecht, French Wars of Religion, 59. A mid-twentieth-century biography of Catherine, quite sympathetic to her, declares of her relationship to Machiavelli’s thought: Catherine “was the incarnation of statesmanship. From this, as soon as she read him, sprang her dominating interest in Machiavelli” (Héritier, Catherine de Medici, 26). See also Heller, Anti-Italianism in Sixteenth-Century France: “In the eyes of Huguenots, Catherine de’ Medici and her Italian entourage were responsible for the mass murder of Protestants. Moreover, the slaughter was not the outcome of an unpremeditated attack, but the result of a calculated Italian plot. Notions of political expediency found in Machiavelli’s writings played an important role in confirming the idea of a conspiracy. As a consequence, what had been Machiavelli’s rather positive initial reputation in France was transformed” (9). For a recent and informative survey of the intertwined history of Machiavellianism and antiMachiavellianism, see Evrigenis and Somos, “Wrestling with Machiavelli.” 21. Recent scholarship has emphasized popular responsibility for the killings that followed the attack on the Protestant nobility in Paris. According to this understanding, the royal court did not control events, but rather lost control of them. For an influential example of this approach, see Bourgeon, L’assassinat de Coligny. 22. Machiavelli, The Prince, 40 (chap. 8). 23. Indeed, the resonances to Machiavelli’s thought extend beyond The Prince to the Discourses. A modern scholar estimates that a list of the proscribed nobility, if the rumors were correct and one had indeed been prepared, would contain around fifty names (Jouanna, Saint Bartholomew’s Day Massacre, 109). In the Discourses, Machiavelli notes that “in all republics, ordered in whatever mode, never do even forty or fifty citizens reach the ranks of command,” and thus because “this is a small number, it is an easy thing to secure oneself against them . . . by getting rid of them” (46 [1.16]). 24. Jouanna, Saint Bartholomew’s Day Massacre, 101–3. See also Knecht, French Wars of Religion, 51. 25. Jouanna, Saint Bartholomew’s Day Massacre, 104–6. 26. Montesquieu draws this passage from book 6, chapter 5, of d’Aubigné, Histoire universelle. It can be found in the modern edition edited by Thierry (3: 364). 27. The next chapter will examine Montesquieu’s understanding of monarchy as it comes to view in this incident. 28. My translation from book 6, chapter 3, of d’Aubigné, Histoire universelle, 3: 313. 29. A modern historian writes that the murder of the duke of Guise was viewed “as the ultimate expression of the Machiavellianism” of Henri III and reports that “Henri III

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apparently felt no compunction about continuing to read [Machiavelli]. Davila reports that Henri III would regularly retire from the dinner table to his study . . . to read Polybius, Tacitus, and especially the Discourses and Prince of Machiavelli” (Heller, AntiItalianism in Sixteenth-Century France, 180). Enrico Caterina Davila’s Dell’istoria delle guerre civili di Francia is a source for Montesquieu. See 29.16, 615, where Montesquieu cites his work when referring to the coming of age of Charles IX. 30. My translation from “Dossier de l’Esprit des lois,” OC 2: 996. This paragraph also appears in De l’esprit des lois, Manuscrits, 3: 37. 31. In commenting on this deletion, Barckhausen emphasizes Montesquieu’s respect for Machiavelli (Montesquieu, l’Esprit des Lois et les Archives de La Brède, 28–29). It is far from clear why Montesquieu excised this passage because this particular criticism accords with Montesquieu’s evaluation of Machiavelli’s approach to politics generally—as this chapter argues. But perhaps Montesquieu removed it for that very reason. By providing an assessment so dispositive, the passage in question could be said to violate his own approach to writing by which he wishes to prompt his readers to think for themselves (11.20, 186). See my introduction above. 32. The term wicked recalls Montesquieu’s statement in 6.17: “Because men are wicked [méchants], the law is obliged to assume them to be better than they are” (92; OC 2: 329). Cf. Machiavelli’s statements in The Prince, chap. 18: “because” “all men” “are wicked” (69) and Discourses 1.3: “it is necessary to whoever disposes a republic and orders laws in it to presuppose that all men are bad, and that they always have to use the malignity of their spirit whenever they have a free opportunity for it” (15). Thus, although Montesquieu acknowledges the character of human beings that Machiavelli discerns, the Frenchman ascertains an alternative way of treating their wickedness. Both Montesquieu’s assessment of the wickedness of human beings and his prescriptions for this condition are particular themes of Barrera’s commentary; see for example Les lois du monde, 457, 461, and 469. Carrese notes this reliance of Montesquieu on Machiavelli, pointing out that Montesquieu “quietly teaches a lesson of lowered expectations for politics and man learned from Machiavelli, while defusing any moral qualms by invoking the typical reader’s condemnation of Machiavellianism” (“Machiavellian Spirit of Montesquieu’s Liberal Republic,” 132–33). 33. Pangle, Theological Basis of Liberal Modernity, 132–22. 34. As do many commentators who are ready to associate Montesquieu with Machiavelli, Levi-Malvano concentrates on the apparent endorsement that the statement “great man” implies here (Montesquieu e Machiavelli, 26). Although Levi-Malvano is certainly right to claim that this appellation signifies that Montesquieu is not a conventional antiMachiavel, he fails to examine the reasons for Montesquieu’s refusal to adopt this great man’s maxim. Montesquieu may be, in fact, a rather unconventional anti-Machiavel. Lowenthal makes passing reference to the possibility of Montesquieu’s fundamental reliance on Machiavelli’s thought and points to his terming Machiavelli “this great man” (“Book I of Montesquieu’s The Spirit of the Laws,” 49n18; see also Lowenthal, “Montesquieu and the Classics,” 282). 35. The parenthetical statement (“for it is always a drawback if the people themselves judge their offenses”) seems to refer to a different inconvenience altogether. Here Montesquieu treats the possibility that the people might judge themselves, or alterna-

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tively, might judge some of their number or others whom they believe represent their interests. Thus, when the people judge cases of treason, the possibility also lurks that the people as judges might be reluctant to convict even when the guilt of the accused is manifest. A political interest—the punishment of the treasonous—might be threatened in such cases. Montesquieu suggests in this glancing way another drawback to Machiavelli’s demand that the many serve as judges: the people may not convict when their interests are in accord with those of the accused. Whereas this inconvenience works against the political interest, the other inconvenience and actual focus of the broader discussion, the possibility of an ill-considered conviction at the hands of the people, works against the civil interest. Both contrary inconveniences suggest the same deficiency on the part of the people as judges: the possibility of a lack of impartiality. Cf. Pangle, Montesquieu’s Philosophy of Liberalism, 94. 36. See also Carrese’s treatment of this chapter in “Machiavellian Spirit of Montesquieu’s Liberal Republic,” 138–39. 37. Machiavelli, Discourses, 23–24 (1.7). 38. Ibid., 25 (1.7). This is a reference to the Otto di Guardia, as Mansfield and Tarcov observe, n. 5. This particular passage of the Discourses figures prominently in McCormick, “Machiavellian Democracy,” 305–6. Specifically, McCormick regards Machiavelli’s recommendation of broadly based public accusations as a means of rendering “all citizens, but especially, elites, accountable.” 39. Montesquieu replaces Machiavelli’s “behave in the mode of the few” (fanno a modo de’pochi) (Discourses, 25 (1.7); Discorsi, 88) with “are corrupted by few” (sont corrompus par peu) (6.5, 77; OC 2: 313). Montesquieu’s change in wording emphasizes the possibility that so small a number of judges could easily be bought off. 40. Machiavelli, Discourses, 25 (1.7). 41. In the assessment of Manent, “the end of the political institution,” for Montesquieu, “is to ensure the security of persons and goods” (Intellectual History of Liberalism, 53; emphasis in original). For a contemporary assessment of the importance of criminal procedure see Shklar, “Liberalism of Fear,” 37. 42. See Zuckert, “Natural Rights and Modern Constitutionalism,” for the argument that Montesquieu was a natural rights thinker and that the security he has “in mind” when treating the British Constitution “is assurance that one will not be accosted by the ruling authorities or other citizens in one’s person or possessions, i.e., in the objects of one’s rights” (49); cf. Carrithers, “Introduction: Montesquieu and the Spirit of Modernity,” 25–26. Rahe questions the extent to which the English, on Montesquieu’s account, are indeed free, because of the inquiétude they feel, which is very much akin to fear (Rahe, “Forms of Government,” 80–90). 43. See my introduction above. 44. Montesquieu’s concern with the danger that arises if the people as a body perform the task of judging is implicit in his earlier discussion in book 6. It will be recalled that in chapter 5 Montesquieu deems despotism terrible because the sovereign judges. In monarchy, the sovereign—that is, the monarch—cannot judge and remain a monarch; where the monarch judges, despotism resides. The question implicit in Montesquieu’s chapter is whether this is the case in a republic where the people judge. The people in a republic, of course, is the sovereign (2.2, 10). Machiavelli, for his part, voices in Discourses 1.7 the

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claim for the people’s broadest possible participation in judging. Therefore, by Montesquieu’s own criterion in the chapter, this participation on the part of the people would be despotic in endowing the sovereign with the power of judging. 45. He is apparently speaking of English juries, but he does not use the term here; Mansfield, Taming the Prince, 235. Montesquieu does, however, refer to the English jury system in an earlier discussion (see 6.3, 76). On Montesquieu on the judicial power in England, see Carrese, Cloaking of Power, 47–53, and Manent, Intellectual History of Liberalism, 56. 46. Shklar, Montesquieu, 64. 47. Machiavelli, Discourses, 45 (1.16). 48. Ibid., 210–11 (3.1); Discorsi, 195. Although conceding that Machiavelli’s use of the term principio in Discourses 3.1 and Montesquieu’s use of the term principe, which he delineates for each of the three governments, have “significantly different literal meanings,” Levi-Malvano proceeds to find similarities in the way the two thinkers discuss the importance of virtue and goodness to republics. In doing so, the commentator abstracts from the fearful character of Machiavelli’s depiction of the beginnings. On this basis, Levi-Malvano concludes that an “idea of Machiavelli exercised a real and direct effect on the thought of Montesquieu” (Montesquieu e Machiavelli, 50–54; my translation from Levi-Malvano’s Italian). Shackleton, Montesquieu, 268–69, also draws this connection. 49. Machiavelli, Discourses, 66 (1.29). 50. Carrese, “Machiavellian Spirit of Montesquieu’s Liberal Republic,” 136. 51. This examination of the contrast between the two thinkers on the subject of criminal procedure in republics points to an apparent contradiction in Machiavelli’s Discourses. In 1.7 of the Discourses, Machiavelli praises Rome for the people’s extensive role in judging treason and laments Florence’s lack of it, but in 3.1 as well as 1.16, he recommends Brutus’s supreme power in rendering judgments in such cases. As Montesquieu points out, the absolute power of the Roman consuls was circumscribed when the people’s role in judging was enlarged. Thus, at different points in the Discourses, Machiavelli seems to embrace each of these mutually exclusive provisions. Nevertheless, Machiavelli manifests some consistency in his emphasis on the need for fearful accusations and the salutary fear they induce in different historical situations and under different forms of regimes. What is important for my analysis is that Montesquieu ultimately rejects both: Rome’s original provision and its so-called reform. 52. Mansfield notes that Montesquieu is somewhat ambivalent toward the ancient Roman republic particularly in book 6: “[Montesquieu] says, ‘I am strong in my maxims when I have the Romans for me,’ when he claims that their punishments were mild in accordance with the natural spirit of a republic (VI.15). But this contradicts his earlier statement that the republican spirit in Rome produced . . . zealous accusations” (Taming the Prince, 228). Pangle also notes the apparent contradiction between Montesquieu’s praise of the Romans for being humane and mild in punishing on the one hand and his noting their “terrible punishments” on the other (Montesquieu’s Philosophy of Liberalism, 96– 97). My reading of book 6, emphasizing the degree to which Montesquieu is contrasting his notions of punishment with those of Machiavelli, perhaps throws additional light on Montesquieu’s perplexing contradictions regarding the manner the Romans punished.

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Because Machiavelli is so much the focus of book 6, even when his name is not explicitly invoked (as the next section will argue), perhaps the Romans—the Romans of the historical Roman republic—give Montesquieu strength in opposing the harshness of Machiavelli’s republicanism that comes to light in his commentary on the Roman republic. The actions of historical Rome are, indeed, more mild than Machiavelli’s recommendations for a republic. This contrast between Machiavelli’s maxims and actual Roman practice could very well give Montesquieu strength in his endeavor to articulate an even milder approach to punishments. 53. Montesquieu next refers to Machiavelli much later in the work. He places his name in a footnote when referring to his Florentine Histories (28.6, 541n48). 54. Discourses, 182 (2.23); Discorsi, 179.To my knowledge, the scholarship on Montesquieu’s relationship to the thought of Machiavelli neglects this aspect of Montesquieu’s response. See also, for example, Discourses, 66 (1.29) and 300 (3.40). Cf. Manin who comments that “Montesquieu is a thinker of moderation, but not of the juste milieu” (“Montesquieu et la politique moderne,” 189; my translation). 55. See Discourses, 274 (3.27), where Machiavelli uses the terms “il grande ed il generoso” (Discorsi, 233). In Discourses, 63 (1.27); Discorsi, 110, he speaks of “grandezza” and “generoso.” 56. Machiavelli, Discourses, 182 (2.23). 57. Elsewhere he describes Rome’s method with respect to its Italian “partners” as a “deception” on Rome’s part by which these cities “came to subjugate themselves by their own labors and blood without perceiving it” (Discourses, 136 [2.4]). This seeming leniency, then, may indeed come with a heavy price for those who receive the ostensible benefit. This possible result should not come as a surprise, for as we have just seen, Machiavelli defines government in Discourses 2.23 entirely from the perspective of the governor, whose purpose he understands to be exclusively that of holding the governed subject. 58. Machiavelli, Discourses, 182 (2.23). 59. Ibid., 182–83 (2.23). 60. In addition to the general subject matter, the two chapters are related also by the fact that Machiavelli uses the example of Arezzo in both. 61. Machiavelli, Discourses, 274 (3.27). Thus, Machiavelli highlights the fact that the Roman consuls retained that absolute power over the life and death of noncitizens that Montesquieu notes they relinquished over citizens early in the history of the republic. See also The Prince: “The Romans, in order to hold Capua, Carthage, and Numantia, destroyed them and did not lose them” (20 [chap. 5]). 62. Machiavelli, Discourses, 274 (3.27); Discorsi, 233; my emphasis. 63. Ibid., 275 (3.27). 64. Ibid., 275 (3.27). For a more extensive treatment of Machiavelli’s view of this education and its effect on Baglioni, see Sullivan, Machiavelli’s Three Romes, 45–49. 65. Machiavelli, Discourses, 274–75 (3.27). 66. Ibid., 6 (1 pr.). 67. Sullivan, Machiavelli’s Three Romes, 37. 68. Machiavelli, Art of War, 60. Cf. Montesquieu, My Thoughts, 226 (pensée 761). Rahe uses the same passage to offer instructive commentary on their divergent views on

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the exercise of warfare; see Rahe, Montesquieu and the Logic of Liberty, 22–23, and Rahe, “Montesquieu’s Anti-Machiavellian Machiavellianism,” 134. 69. Chapter 3 below will treat Montesquieu’s much more favorable evaluation of this aspect of Christian education. 70. In commenting on book 6 generally, Pangle notes Montesquieu’s peculiar approach to penalties: “Nothing reveals Montesquieu’s own interest, in contrast to that of a good republican, more clearly than this emphasis on the penalties. Montesquieu is almost completely uninterested in the moral effect of criminal law. In fact, he seems more interested in the danger to the individual from criminal penalties than he is in moral education altogether” (Pangle, Montesquieu’s Philosophy of Liberalism, 95). Mansfield draws the implications of Montesquieu’s teaching regarding the separation of powers for his view of punishment and distinguishes it from that of Montesquieu’s modern predecessors: “Montesquieu subtracts the power of punishment from the emergency and foreign policy powers of the executive. He thereby separates punishment from politics, and so prevents or constrains the political use of punishment devised by Machiavelli and extended (in more legal fashion) by Hobbes and Locke” (Taming the Prince, 216; see also 241–43). 71. Montesquieu’s use of the word in 6.12 is instructive in this regard. After pleading for “infamy” as “the greatest part of the penalty,” he notes the conditions under which such a mild approach to punishments might be ineffectual: “If there are countries in which shame is not an effect of punishment, it is a result of tyranny, which has inflicted the same penalties on scoundrels as on good people” (85). 72. Machiavelli, Discourses, 210–11 (3.1). For the crimes of the decemvirate, see Discourses 1.40–45 and Livy, Ab urbe condita 3.32–58. Of all the punishments Machiavelli describes in 3.1, his version of this one differs most from the historical account. According to Livy, the Ten were not executed; rather, some went into exile and others killed themselves in prison, cf. Discourses 1.45.1. For Maelius the grain dealer, see Discourses 3.28 and Livy 4.13–16. For Capitolinus, see Discourses 1.8, 1.24, 1.58, and 3.8 and Livy 6.11–20. See also Sullivan, Machiavelli’s Three Romes, 153–57, and Sullivan, Machiavelli, Hobbes, and the Formation of a Liberal Republicanism, 66–78. 73. Cf. Mansfield, Taming the Prince, 217–18, who links Montesquieu’s correction to his decision not to oppose classical virtue openly, as did his modern predecessors.

CHAPTER TWO 1. Défense, OC 2: 1123; my translation. Hobbes also figures significantly in three of Montesquieu’s entries in My Thoughts, 93–94 (pensée 224); 119 (pensée 288); and 342–44 (pensée 1266). In all three, Montesquieu disputes with Hobbes, and in the last he calls him “much more dangerous” than Spinoza and notes that “he tells me that justice is nothing in itself, that it is nothing more than what the laws of empires ordain or prohibit” (342). Schaub, Erotic Liberalism, 165n15. 2. See also Zuckert, “Natural Law, Natural Rights, and Classical Liberalism,” 233–39, for an argument that the first chapter contains what amounts to his first, but unnamed, critique of Hobbes. Courtney, “Montesquieu and Natural Law,” 50. 3. Montesquieu, De l’esprit des lois, Manuscrits, 3: 7.

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4. This is one characteristic of the work that has led so many readers over the centuries to regard him as opposed to the universalism of natural law or natural rights theories and even as a relativist. See my introduction, above. 5. Rosen, Elusiveness of the Ordinary, 35; see also Krause, “Spirit of Separate Powers in Montesquieu,” 250–51. Pangle too maintains that there is a kinship between the two thinkers in the Spirit of the Laws and that Montesquieu “overemphasizes his differences with Hobbes” “partly for the sake of personal prudence and partly because he felt that Hobbes, like Spinoza and Bayle, had been recklessly bold in revealing the low and unsightly first principles of human nature” (Montesquieu’s Philosophy of Liberalism, 35). Some of his earliest readers expressed this view (Waddicor, Montesquieu and the Philosophy of Natural Law, 65). 6. Rosen, Elusiveness of the Ordinary, 307n16. 7. Leviathan, 90 (1.13). 8. Although scholars dispute whether absolutism ever actually existed in reality, they point to Hobbes’s Leviathan as the “most extreme expression” “of political power.” See Cuttica and Burgess, “Introduction: Monarchism and Absolutism in Early Modern Europe,” 6. See also Coleman, “Culture of Political Counsel,” 19–20: “By the seventeenth century” “Hobbes’s Leviathan would sketch a sovereign power so absolute that dependence either on counsel or on the requirement that subjects deliberate on or consent to specific sovereign laws was completely eliminated.” 9. Hulliung in particular depicts Montesquieu’s central purpose as opposing the arguments for the absolutism regnant in the France and Europe of his times. Hulliung links this absolutist thought directly to Hobbes and terms its various manifestations in France “Leviathan.” Hulliung explains Montesquieu’s unwillingness to engage more explicitly in this controversy as follows: “Formidable impediments to thinking radical thoughts did indeed exist in the ancien régime. That much must be granted to those who have identified Montesquieu with conservatism” (Montesquieu and the Old Regime, 1). See also Radasanu, “Montesquieu on Moderation, Monarchy, and Reform,” 294, and Robin, Reflections on Fear, 51–55. By contrast, Mosher takes seriously the possibility that Montesquieu means “what he says” and that, therefore, he understood that “pouvoir absolu in France” might “somehow or another” “satisfy the standards of a liberty that gestures toward citizenship and a constitution that is well tempered” (“Monarchy’s Paradox,” 172). Ultimately, Mosher reads Montesquieu as supporting a French monarchy that is “absolute” in the manner that Jean Bodin—but not Bossuet—delineates (217 and 222n32). See also Mosher, “Free Trade, Free Speech, and Free Love,” 104–6. Annelien de Dijn (“Montesquieu’s Controversial Context”) follows Mosher’s interpretation by placing Montesquieu in the context of the contention regarding the character of the French monarchy in the first half of the eighteenth century and locating The Spirit of the Laws on the side of the defenders of the French monarchy, such as Gilbert-Charles Le Gendre, who supported royal absolutism. See also Spector, Montesquieu, 92–142. Scholars have long debated Montesquieu’s view of the French monarchy and hence his view of the role of the nobility, of both the sword and the robe, in the regime. Ford (Robe and Sword) characterizes him as sharing the preferences and prejudices of his class, whereas Carcassonne (Montesquieu et le problème de la constitution française) depicts him as advocating for liberal reform. Note also Richter, Political Theory of Montesquieu, 98.

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10. My translation from Spicilège, OC 2: 1350. See Schaub, Erotic Liberalism, 165n9. 11. Montesquieu also notes: “Absolute [absolu] government produces idleness, and idleness gives birth to politeness” (19.27, 331; OC 2: 582). He also notes that the French are polite (19.6, 311). 12. Défense, OC 2: 1123. In the analysis of Simone Goyard-Fabre, Montesquieu is thoroughly hostile to Hobbes’s thought, an attitude that she understands as deriving in large part from what she regards as the Frenchman’s Aristotelianism. See Montesquieu adversaire de Hobbes. Richter writes: “No part of his thought reveals more about Montesquieu’s orientation than his attacks upon those theorists who had justified absolutism. Of these, Hobbes was the single most important” (Political Theory of Montesquieu, 62; see also 60 and 65). For additional commentaries that emphasize Montesquieu’s antipathy to Hobbes’s teaching, see Manin, “Montesquieu et la politique moderne,” 172 and 207– 18; Schaub, Erotic Liberalism, 21–33; and Waddicor, Montesquieu and the Philosophy of Natural Law, 37, 48–49, 61–62, 65–79. In pointing to Montesquieu’s antipathy to Hobbes, Robin focuses largely on The Persian Letters (Fear, 51–72). 13. Hobbes, Leviathan, 99 (1.14). 14. Shklar, Montesquieu, 75. 15. Craiutu is another scholar who sees Montesquieu in a particular sense as following in the footsteps of Hobbes, pointing out that Montesquieu’s “pluralist perspective” shares commonalities with Hobbes’s own refusal to point to a highest good. Craiutu notes that both point to a summum malum and that Montesquieu’s “absolute evil is despotism” (Virtue for Courageous Minds, 64). Described in this way, an aspect of Montesquieu’s summum malum can be said to be directed at the effects of Hobbes’s political teaching. 16. I owe this formulation to Nathaniel Gilmore, who made this very point in his final paper in an undergraduate seminar at Tufts University. 17. This statement aroused the ire of Montesquieu’s theological critics. See the “sixième objection” in Montesquieu’s Défense, OC 2:1130. Montesquieu’s formulation actually contradicts that of Hobbes, who places a concern for divine entities firmly in the state of nature: “The Feare of the former [power of spirits invisible] is in every man, his own Religion: which hath place in the nature of man before Civill Society” (Leviathan, 99 [1.14]). 18. See Pangle, Montesquieu’s Philosophy of Liberalism, 37–39, on the consequent problem of why human beings would initially be fearful of each other if they were not naturally aggressive. In his Pensées, Montesquieu focuses on the inhospitability of the natural environment to account for the fear early human beings feel: The ancient myths are explained very well by the situation the earliest men found themselves in before they had discovered offensive and defensive arms. They were weak and timid, prey to ferocious beasts, and their condition must have been uncertain or at least perilous until the invention of iron, or at least equivalent materials. That’s why those who killed monsters were heroes. Occupied with ferocious beasts, men did not dream of attacking each other. They were too timid and too few. (My Thoughts, 251 [pensée 871])

Poorly equipped and vulnerable, these early human beings put all their acumen and physical resources toward mere self-preservation. The frightened individuals of the wilds,

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devoid of society, occupied with threats from their environment, and thus with the pressing need of self-preservation constantly before them as their guiding principle, were not so foolhardy as to try their strength or their wiles in an effort to dominate their fellows. 19. Hobbes, Leviathan, 88 (1.13); Carrese, Cloaking of Power, 20; Carrese, “Montesquieu’s Complex Natural Right,” 245; Goyard-Fabre, Montesquieu adversaire de Hobbes, 13; Rahe, Soft Despotism, 102–3; Shklar, Montesquieu, 72; Zuckert, “Natural Law, Natural Rights, and Classical Liberalism,” 241. Waddicor claims that among Montesquieu’s aims in the second chapter are “to refute Hobbes” and “to introduce the idea of self-preservation which recurs so frequently in the rest of the work” (Montesquieu and the Philosophy of Natural Law, 64). 20. Leviathan, 89 (1.13). The editors and translators of the Cambridge University edition of The Spirit of the Laws assume that Montesquieu here cites chapter 13 of Leviathan, and the translation’s bibliography cites the Leviathan in English (see 6 and 727). There is, however, a passage parallel to this one in De Cive, but the actions are reversed: “On going to bed, men lock their doors; when going on a journey, they arm themselves because they are afraid of robbers” (Hobbes, On the Citizen, 25). Montesquieu’s particular source has not been identified, as the available evidence does not establish that he owned such an English edition. His personal library at La Brède contained a Latin version of Hobbes’s works published in Amsterdam in 1668 and two French translations of De Cive, one published in 1651 and the other in 1660. Hobbes’s name does not appear in the short list of books from his personal library in Paris (Desgraves, Volpilhac-Auger, and Weil, Catalogue de la bibliothèque de Montesquieu à La Brède, 194, 296–97, 421–25). Although editions of the Leviathan in the English original have not been identified in Montesquieu’s personal libraries, he certainly had almost unlimited opportunities to own or to peruse the English version. Available to him in Paris were the resources of the Bibliothèque du Roi, which he, in fact, consulted (Encyclopædia Britannica Online, s.v. “Montesquieu”). The Bibliothèque du Roi acquired before 1725 an English version of Hobbes’s Leviathan published by A. Crooke in London in 1651. Even more important, Montesquieu lived in England for two years, read English, uses English in his Spicilège, and was elected to the Royal Society in 1729/30 (Shackleton, Montesquieu, 119–20 and 136). 21. See Rasmussen, Pragmatic Enlightenment, 253–54, for a discussion of the human sociability implicit in Montesquieu’s discussion here. 22. Cf. Sara MacDonald (“Problems with Principles”), who ascribes the motivation for such attacks in the state of war solely to the pursuit of honor, although Montesquieu does not specify the reason for the attacks. One could surmise that the perception of inequality could also lead to attacks deriving from the desire for gain and also from fear— that is, fear of a future attack under less favorable conditions, which would recommend a preemptive attack. 23. As a result of these areas of agreement, those scholars who point to the fundamental similarity between the two thinkers find Montesquieu’s explicit critique so unsatisfying that they maintain that it gives additional weight to their claims. See Pangle, Montesquieu’s Philosophy of Liberalism, 33 and 30, and Zuckert, “Natural Law, Natural Rights, and Classical Liberalism,” 240–41. The similarity between the two thinkers on this point is also noted by Rasmussen, who otherwise emphasizes Montesquieu’s depiction of human sociability in the state of nature (Pragmatic Enlightenment, 255). This

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passage aroused considerable controversy as it was so close to Hobbes’s formulation. See, for example, Michael Sonenscher’s account of the controversy at the time when Montesquieu was composing his Défense (Before the Deluge, 226–27). 24. Grosrichard, Sultan’s Court, 48–49. 25. Binoche goes on to say that it is also the truth of the type of Catholic absolutism that Bossuet posited (Introduction, 131–31). 26. Craiutu, Virtue for Courageous Minds, 40. 27. For an interpretation of Montesquieu that emphasizes his concern with individual tranquility, see Carrese, “Montesquieu’s Complex Natural Right,” 227–50. 28. In demanding that governmental powers be circumscribed, Montesquieu’s position is similar to that of John Locke, who says, “It cannot be supposed that they should intend, had they a power so to do, to give to any one, or more, an absolute Arbitrary Power over their Persons and Estates, and put a force into the Magistrates hand to execute his unlimited Will arbitrarily upon them” (Second Treatise of Government, 359–60). Montesquieu extends Locke’s argument taken from the perspective of the citizen, however, by rejecting the type of peace that Hobbes offers because he has an additional concern, one that for the Frenchman is paramount—that of the subjective experience of the individual citizen. In his view, political liberty itself demands that the individual feel secure; he terms that subjective experience—that very feeling—liberty. For elaborations of this distinction, see Spector, “Was Montesquieu Liberal?,” 4–5; Zuckert, “Natural Law, Natural Rights, and Classical Liberalism,” 248–50; and Zuckert, “Natural Rights and Modern Constitutionalism,” 49–50. 29. The republican provision of citizen accusations is an obvious source of such fear and one that Machiavelli emphasizes. For the significance of this approach to crime in the context of Machiavelli’s thought, see chapter 1 above. 30. See my introduction above. 31. In speaking of the tyranny of the Roman emperors, in Consideration on the Causes of the Greatness of the Romans and Their Decline, Montesquieu contrasts their power with that of contemporary European monarchs: “But the kings of Europe, who are legislators and not executors of the law, princes and not judges, have divested themselves of the part of authority that can be odious. And while granting favors themselves, they have committed to special magistrates the meting out of punishments” (147 [chap. 16]). 32. Hobbes, Leviathan, 99 (1.14). 33. Ibid., 120–21 (2.17). 34. Ibid., 117 (2.17). Ioannis Evrigenis comments on the significance of this frontispiece with an allusion to chapter 13: by “assuming the posture and appearance of a gladiator, the sovereign makes it possible for his subjects to live commodiously” (Images of Anarchy, 126). 35. Hobbes, Leviathan, 120 (2.17). 36. Ibid., 221 (2.28). The following section expands on Hobbes’s and Montesquieu’s contrasting treatments of pride in a monarchy. 37. Krause, “Despotism in The Spirit of Laws,” 233–35; Richter, “Despotism,” 9; Schaub, Erotic Liberalism, 21–22. 38. See Koebner, “Despot and Despotism,” for a particularly erudite review of the uses of the terms despotic and despotism in Latin, English, and French. Koebner credits

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Pierre Bayle with first using the term despotisme in a political sense in 1704 (300); Rubiés, “Oriental Despotism and European Orientalism,” 122–23; Grosrichard, Sultan’s Court, 4–5; Richter, “Despotism, 1, 7–8; Venturi “Oriental Despotism,” 133–34; Krause, “Despotism,” 234. See also Boesche, “Fearing Monarchs and Merchants,” 381–82. Montesquieu explicitly makes the connection between the French monarchy and a despotism in The Persian Letters when he has his character Usbek write of Louis XIV: “He has often been heard to say that of all the types of government in the world, he would most favour either that of the Turks, or that of the [Persian] Sultan, such is his esteem for oriental policies” (91 [letter 37]). 39. The Greek term for despot was not imported into the Latin vocabulary until the Middle Ages and did not gain wide acceptance when it was. See Koebner, “Despot and Despotism,” 278–88; Richter, “Despotism,” 3–5; Venturi, “Oriental Despotism,” 133. Although early writers had coined the Latin equivalent for the Greek term, the modern languages tended to follow Latin’s earlier rejection of the term. For example, French generally drew on its feudal past for seigneur or seigneurial to signify Aristotle’s definition of rule by a master, and English rendered that same concept with terms of the same derivation such as “lordly” or “seignoral” (Koebner, “Despot and Despotism,” 287–88 and 284; Richter, “Despotism,” 4–5). 40. Hobbes, Leviathan, 141 (2.20). In using the Greek form of the word, Hobbes seems to be referring to Aristotle’s definition of the word. In the Politics Aristotle’s uses the term to connote a type of rule that was beneath politics, that of a master over a slave, which is primarily contained in the household. The authority of a despot over slaves is not the same as political rule, Aristotle avers (Politics 1.7, 1255b16–20). Chapter 6 below will touch on Aristotle’s treatment of slavery. Elsewhere in the Politics, Aristotle links this nonpolitical form of rule with certain types of states when he notes, for instance, that certain kings among the barbarians and ancient Greeks were in some respects akin to tyrants because, although they ruled willing subjects, they ruled despotically (δεσποτικῶς) according to their own will (Aristotle, Politics 4.10, 1295a15–18; Loeb Classical edition, 324). See Koebner, “Despot and Despotism,” 276–77, and Grosrichard, Sultan’s Court, 6–18. 41. Hobbes, Leviathan, 142 (2.20); Koebner, “Despot and Despotism,” 288–92; Krause, “Despotism,” 233–34; Richter, “Despotism,” 6; and Schaub, Erotic Liberalism, 21. 42. Schaub maintains that Montesquieu intentionally appropriated Hobbes’s terminology: “Hobbes had retrieved the adjective despotic, thinking to render it value-neutral; but Montesquieu appropriated it, and by capitalizing on its transformation into the noun despotism, forged a powerful weapon against absolute monarchy” (Erotic Liberalism, 22). 43. Rahe offers a similar formulation in comparing China and England: “Where the ‘despotic state’ in China takes as its object ‘public tranquility,’” “England’s government pursues the individual citizen’s ‘tranquillity of mind’” (Montesquieu and the Logic of Liberty, 99). 44. Craiutu describes this challenge quite well, noting the difficulty of determining whether a given passage in Montesquieu’s work is intended to be “a normative” claim or “a factual” statement, “since the line that separates them is difficult to draw” (Virtue for Courageous Minds, 35). Montesquieu’s comments on Japan as well as on Spain are strikingly negative and thus challenge this general tendency.

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45. As noted above, Hulliung and Mosher offer stark contrasts in assessing his standpoint on the French monarchy. 46. Krause offers an insightful analysis of how honor in Montesquieu’s depiction of monarchy can inspire “principled disobedience to encroaching political power.” See Krause, Liberalism with Honor, 32–66; for her commentary on Montesquieu’s treatment of the viscount, see 44–47. 47. Leviathan, 184 (2.26). 48. Ibid., 88 (1.13). Krause too notes the critical distinction between Montesquieu and Hobbes on the pride of the nobility (Liberalism with Honor, 59–60). 49. Leviathan, 221 (2.28) and 107 (1.15); emphasis in original. 50. Ibid., 228 (2.29). 51. See Shklar, Montesquieu, 85: “Because political power offers every opportunity and temptation to cast off one’s inhibitions, moderation can be instilled only by rules and constraints.” See also Manin’s discussion of how Montesquieu intends for power to stop power in government (“Montesquieu et la politique moderne,” 251). 52. Shackleton notes that one of the last changes Montesquieu made to the text with respect to his treatment of monarchy was to soften his treatment of Richelieu (Montesquieu, 242). In his Pensées Montesquieu calls him one of the “two most wicked citizens that France has had” (My Thoughts, 385 [pensée 1302]). 53. Radasanu, “Montesquieu on Moderation, Monarchy, and Reform,” 295. Chapter 6 below, dedicated to his examination of Aristotle’s thought, will examine Montesquieu’s additional criticisms of virtue as a means of restraining monarchical rulers. 54. Ehrard, “La notion de ‘loi(s) fondamentale(s),’” 268. 55. Leviathan, 231 (2.30). Spector makes a similar contrast between the two thinkers (Montesquieu, 187). On the role of “lois fondamentales” in The Spirit of the Laws as a counter to absolutism in France, see Spector, Montesquieu, 93–94. Not all French absolutists went as far as Hobbes on this point, underscoring the importance of “governing in accordance with established law, and respecting les lois fondamentales” (Keohane, Philosophy and the State in France, 406). 56. See Judge, “Church and State under Louis XIV.” Gallicanism did not become a movement of that name until the nineteenth century, but the term is still used to describe a key movement in French politics (219). The Four Gallican Articles of 1682 are a prime statement of the movement’s position, which both Bossuet and Louis supported. Indeed, the king decreed them doctrine to be taught in the university. Pope Innocent XI and Louis tangled over them for years, but ultimately Louis surrendered to the authority of the Papacy, declaring in 1693 that these articles would not be enforced in France (222–27). See also Campbell, Louis XIV, 79–80. The Catholic Encyclopedia offers a succinct case that Louis saw himself as the final arbiter of religious teachings (Goyau, “Louis XIV”). 57. Commentators note that Montesquieu does not use the formulation “separation of powers” in famous book 11. See, for example, Vile, “Montesquieu,” 429–30, 434–38; Mosher, “Monarchy’s Paradox,” 163; Krause, “Spirit of Separate Powers in Montesquieu,” 231n1; and Craiutu, Virtue for Courageous Minds, 49. This formulation from book 25, however, comes closer as it demands both that orders be separated (séparer) and that all

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the powers (puissances) not come under the same head (OC 2: 743). Compare 11.6, OC 2: 397: “Il n’y a point encore de liberté si la puissance de juger n’est pas séparée de la puissance législative et de l’exécutrice.” 58. Hobbes, Leviathan, 124 (2.18). Montesquieu, of course, propounds the desirability of separating powers in a state, and on this basis, he seems to have no principled objection to the moral authority of religious ministers censuring the misdeeds and abuses of political rulers. At points, Montesquieu’s position appears to be that the moral lessons of priests and ministers may not always stop the crimes of rulers, but their lessons do no harm. Despite this important concession to religious ministers and hence his acceptance of religion’s role in politics, Montesquieu objects decisively to penal penalties for religious offenses. This aspect of his teaching is discussed in more detail in chapter 3 below. 59. Hobbes, Leviathan, 237 (2.30). 60. On the manner in which Hobbes seeks to constrict the political realm, see Sullivan, Machiavelli, Hobbes, and the Formation of a Liberal Republicanism, 201–5, and Rahe, Republics Ancient and Modern, 389. Rahe’s description of Hobbes’s notion of politics is evocative of Montesquieu’s depiction of despotism: “In practice, [Hobbes] aimed at reducing the pólis to an oîkos, and he therefore tried to silence the orators and to replace them with cabinet ministers, civil servants, and technocrats—suppliants waiting in line to whisper into the sovereign’s ear like the eunuchs of the ancient Persian court” (389). 61. Krause, “Despotism,” 240. 62. Shackleton (Montesquieu, 271–72), Grosrichard (Sultan’s Court, 51), and Krause (“Despotism,” 252), for example, all assume that this statement was a veiled attack on Louis XIV. 63. Hobbes, Leviathan, 90 (1.13). 64. Chapters 17 and 18 of book 5 offer the only occurrences of the phrase “l’espérance des commodités de la vie” in the work as confirmed through a search of the database FRANTEXT. Montesquieu uses the term commodité for the first time in the work in these two chapters (5.17 and 5.18). Boesche draws attention to these passages in making the claim that “Montesquieu was pointing toward a new [form of] despotism,” but, in commenting on them, he does not link their terminology to Hobbes’s thought (“Fearing Monarchs and Merchants,” 399). To the extent that Boesche depicts Montesquieu as concerned that the thoughtless pursuit of lucre can lead to the acceptance of despotism, my interpretation accords with his. Nevertheless, his depiction of Montesquieu as an “aristocrat” who had “contempt for the merchant” (395) and who “felt ambivalent about the English political system and English commerce” (754), claims that Boesche attempts to substantiate with passages from Montesquieu’s works, including the subtle Persian Letters, removed from their contexts, differs significantly from my own. 65. Krause, “Despotism,” 240. 66. Leviathan, 90 (1.13). In commenting on this passage of Montesquieu, Krause perceptively notes: “One who operates on the basis of material self-interest does not scorn death but the reverse, and so can be made to fear political authorities and consequently to obey their commands reliably.” She continues that “there is an important connection between material self-interest, fear, and obedience, a connection famously exploited by Hobbes in the name of security” (“Spirit of Separate Powers in Montesquieu,” 250–51).

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She does not, however, note the striking similarity in terms between Hobbes and Montesquieu, nor does she pursue the possibility that Montesquieu’s description of despotism here is specifically directed at Hobbes’s philosophy. 67. Binoche uses this same passage to draw a similar conclusion, noting that Montesquieu anticipated the warnings of Ferguson about political complacency in prosperous states (Introduction, 334–35). Cf. Rahe, Montesquieu and the Logic of Liberty, 173. 68. Krause, “Despotism,” 244. 69. “Montesquieu’s criticism of the inanimate, apolitical quality of life under despotic government does not rest on a glorification of political participation, however. It is true that the principle of divided power requires participation by different groups within society, but for Montesquieu participation is only a means to liberty, not the definition of liberty or an end in itself” (Krause, “Despotism,” 241). 70. In a letter, contained in his Pensées, to William Domville, who helped arrange the translation of The Spirit of the Laws into English, Montesquieu notes that Cicero’s warning of the complacency of the middle class “is not at all applicable to England’s government,” even though “the natural spirit of these professions inclines by its nature toward tranquillity.” England, he writes, is distinguished by the fact that its “middling sort still love their laws and their liberty” (My Thoughts, 594–95 [pensée 1960]). On Montesquieu’s view of England’s liberty as expressed in this passage, see Rahe, Montesquieu and the Logic of Liberty, 136–41; Rahe, Soft Despotism, 52–58; and Sonenscher, Before the Deluge, 47–49. See also Hulliung, who, citing the Pensées, concludes: “Refuting Cicero by name, and the classical tradition by implication, Montesquieu cites England as living proof that the economic ethos and civic concerns are not incompatible” (Montesquieu and the Old Regime, 219). For an alternative interpretation of the English citizens’ attachment to their liberty, see Krause, “Despotism,” 244, and “Spirit of Separate Powers in Montesquieu,” 250–51; cf. Rahe, Montesquieu and the Logic of Liberty, 302n36. 71. On vigilance in England, see Rahe, Montesquieu and the Logic of Liberty, 116–17 and 142–43. 72. Hobbes, Leviathan, 151–52 (2.21).

PART II 1. Hobbes, Leviathan, 120 (2.17).

CHAPTER THREE 1. Barrera’s examination of the role of religion in The Spirit of the Laws emphasizes the importance of idées spirituelles for Montesquieu (Les lois du monde, 17, 174–79). This chapter offers an elaboration on the interpretation first articulated in Sullivan, “Criminal Procedure as the Most Important Knowledge.” 2. “There’s an author who has written a treatise on diseases of the arts; I would like to write one on diseases of religion,” Montesquieu writes in My Thoughts (31 [pensée 89]). In the Persian Letters, he tells of a happy and faithful marriage between a brother and sister (letter 67). See Schaub’s analysis of Montesquieu’s quite positive depiction of this otherwise shocking relationship (Erotic Liberalism, 106–8). In Schaub’s view, “a large

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part of the reason for portraying the erotic love of a brother and a sister is to stress the fundamental equality of the partners” (Erotic Liberalism, 107). 3. Montesquieu exclaims in My Thoughts: “How far does the orgy of prejudice go! Haven’t men managed to make men love the Inquisition!” (637 [pensée 2079]). 4. Schaub too examines the relation of despotism to the monotheistic God of revelation in Montesquieu’s thought. She concludes that for Montesquieu, “[t]he love of the heavenly father masks the fear of the heavenly father. The relation between man and God is despotic” (Erotic Liberalism, 140; see also Schaub, “Of Believers and Barbarians,” 228–29). Aspects of my interpretation point to a conclusion similar to hers, particularly Montesquieu’s depiction of God as a judge of sinners. Despite such an implication for Christian doctrine, Montesquieu underscores throughout his masterwork that human beings should not assume for themselves the purposes and the methods of their conception of the Christian God. If human beings avoid these practices, then the harmful practical and political consequences that might otherwise derive from their notions of their God and his punishments would be ameliorated. Pangle also finds a particular relation between monotheistic religion and despotism in Montesquieu’s thought, emphasizing that for the Frenchman the “political pathology” of extreme despotism induces human beings to create a God of extreme powers who is capable of redeeming his people and delivering them from bondage. This occurred in Judaism and was transferred into Christianity and Islam when conditions were ripe. See, for example, Theological Basis of Liberal Modernity, 5, 33, 34–38, 43, 45–46, 47, and 65–66. Cf. Curtis, Orientalism and Islam, 87. Montesquieu’s position with respect to Christianity is the focus of Orwin’s essay “‘For Which Human Nature Can Never Be Too Grateful.’” 5. His twentieth-century biographer, Shackleton, making use of additional materials, deems him a deist in a section entitled “Montesquieu’s Personal Faith”: “It is in deism that is to be found the real religious belief of Montesquieu” (Montesquieu, 352; see also Shklar, Montesquieu, 71). Kingston argues that Montesquieu differs from traditional deists; see “Montesquieu on Religion,” 380 and 377, and n. 4, 399–400. 6. La Roche, “Examen critique de l’Esprit des Lois,” 117. 7. Shackleton, Montesquieu, 368, and Lynch, “Montesquieu and the Ecclesiastical Critics,” 492. 8. See Shackleton, Montesquieu, 370–77, for a description of the events in Rome. 9. Shackleton, Montesquieu, 370. 10. Caillois notes that the phrase “A l’égard de la vraie religion” was missing from the earliest editions. See OC 2: 1523n1 and Pangle, Theological Basis of Liberal Modernity, 129 and 175n36. 11. My presentation in this section of Montesquieu’s positive evaluation of the effects of Christianity as they appeared during his lifetime is quite similar to the one that Pangle offers in Theological Basis of Liberal Modernity, 103–8. Pangle concludes from these developments that Montesquieu’s concern about despotism in Europe is fundamentally allayed: “The conditions of human life are in the process of being so purged of the worst features of despotic terror, are being made so basically secure—primarily among the Europeans, but perhaps to some extent in other parts of the world, even under certain forms of despotic rule—as to make the belief in and experience of supra- and contrarational divine consolations and commandments steadily evaporate” (108). Our broader

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interpretations differ, therefore, on the degree to which Montesquieu regards despotism as a continuing threat to humanity, including European humanity. 12. The ancient republics, of course, nurtured an egalitarian environment for citizens. As chapter 5 will show, however, Montesquieu is very much aware that republican egalitarianism rested decisively on the deeply entrenched inequality of slave societies. 13. See Plutarch, “Comparison of Numa with Lycurgus,” where he notes that Rome’s provisions for slavery were milder than those of Sparta. He points to the fact that Numa’s laws granted “even to actual slaves a licence to sit at meat with their masters at the feast of Saturn.” Plutarch speculates that Numa’s introduction of this custom might have been “in remembrance of the age of Saturn, when there was no distinction between master and slave, but all lived as brothers and as equals in a condition of equality” (quoted from Lives, 1: 102). 14. In the Persian Letters, Montesquieu has his character Usbek comment: “A long time ago the Christian kings freed all the serfs in their states because, they said, Christianity makes all men equal. It is true that this act of religion was extremely useful to them: it was a means of diminishing the power of the nobles, by removing the lower classes from their control. Subsequently they made conquests in countries where they realized it was advantageous to have slaves. They gave permission for them to be bought and sold, forgetting the religious principle which had affected them so deeply” (152 [letter 75]). 15. Schaub, “Of Believers and Barbarians,” 235 and n. 52. 16. Montesquieu contrasts the purpose of Rome’s conquests with that of Alexander the Great, who “wanted to conquer all in order to preserve all” (150 [10.14]). Montesquieu’s depiction of Alexander will be a subject for consideration in chapter 6 and the conclusion below. For now, it will suffice to say that in this context Alexander serves as a pagan who satisfies some of Christianity’s purported purposes. 17. Montesquieu’s consideration in My Thoughts regarding the dire consequences for those whose city lost a battle is again informative: “in the past a defeat or your city’s capture was linked to destruction—it was a question of being sold into slavery, of losing one’s city, one’s gods, one’s wife and one’s children” (226 [pensée 761]). For the contrast with Machiavelli on this point, see chapter 1 above. 18. Levin, Political Doctrine, views 24.3 and Montesquieu’s other positive remarks throughout the work as merely tactical. Montesquieu’s “rather unctuous eulogy of Christianity” should be viewed as his attempt “to ward off possible attacks” (197). Although they surely serve that function, to maintain that they serve only that function is to ignore a key element of Montesquieu thought—that is, he finds some of Christianity’s principles, if properly interpreted and genuinely and consistently applied, most salutary. 19. Laboulaye speculates that this reference to blindness that undermines these humane principles may be an allusion to the expulsion of the Jews and Moors from Spain (OC 5: 120). 20. La Roche took exception to Montesquieu’s comments in 24.24 regarding Montezuma’s suggestion that the religion of Spain was good for the Spaniards and the religion of Mexico was good for his people (“Examen critique de l’Esprit des Lois,” 133). See Orwin, “‘For Which Human Nature Can Never Be Too Grateful,’” 272 and 276, who compares Montesquieu’s description in 24.3 of the changes Christianity has brought with those he

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ascribes to commerce in 20.1. See also Orwin, “Montesquieu’s Humanité and Rousseau’s Pitié,” 143. 21. Beiner too draws a contrast between the third and fourth chapters of book 10, noting that for Montesquieu “Christianity certainly contains a potentiality for gentleness, and all the good consequences that this gentleness brings, but Christianity also contains a potentiality for harshness and evil, and the student of human affairs must be fully aware of this dual potentiality” (Civil Religion, 197–98). 22. He comments in My Thoughts: “Although the Christian religion has not produced many virtuous princes, it has nonetheless tempered human nature. It has done away with the Tiberiuses, the Caligulas, the Neros, the Domitians, the Commoduses and the Heliogabaluses” (185 [pensée 551]). 23. My specific concern here is his assessment of Christianity’s tendency to soften the rule of princes. Elsewhere he speaks of other specific religions or religion generally as having this effect, particularly with respect to despotisms. See 2.4 (end), 3.10, 12.29, 24.2, and 25.8. Pangle argues that such passages “imply, not that there is incompatibility between Christianity and despotism, but rather that Christianity (like other religions, but better than many) restrains or mitigates despotism (and thus works to benefit and prolong despotism)” (Theological Basis of Liberal Modernity, 103). Shklar makes the same point (Montesquieu, 84). 24. For treatments of Montesquieu’s own liberating project with respect to women, see Mosher, “Judgmental Gaze of European Women” and Schaub, Erotic Liberalism, particularly x, 11, 101, 138–39, 147–50. 25. Chapter 4 below deals with these laws in more detail. 26. Montesquieu explains the origin of this decidedly French approach to women and society when he examines how in the Middle Ages the “idea [idée] of knights-errant, protectors of the virtue and beauty of women, led to the idea of gallantry” and speaks in the first person of “[o]ur connection with women” (28.22, 561–62; OC 2: 823). There he finds that women played the important role as judges of the worth of men. Mosher offers an important insight on this passage: “Montesquieu has extracted from the medieval European practices of ‘chivalric’ conduct an innovative and even subversive meaning. Within chivalric inequality, there was something more than mere domination. He discerned in these mores a tendency to accord to the (politically) weaker party a sphere of autonomy based on its share in the kind of governance exemplified in ‘judgment’” (“Judgmental Gaze of European Women,” 34). See also Mosher, “What Montesquieu Taught,” 12. A consideration of his treatment of England, where the men do not socialize with women, might lead one to conclude that Christianity does not always have the effect of bringing women into society. See 19.27. Others also have drawn informative contrasts between Montesquieu’s depictions of these two nations. See, for example, Mosher, “Judgmental Gaze of European Women,” 30; Schaub, Erotic Liberalism, 142–43; Rahe, “Forms of Government,” 87–88. Interestingly, Montesquieu emphasizes the degree to which the English are no longer particularly attached to the Christian religion. He states that “[i]t would not be impossible for there to be in this [English] nation people who had no religion” (19.27, 330). In My Thoughts he writes, “I pass in France for having little religion and in England for having too much” (306 [pensée 1134]) and “the English nation” “has at most an enlightened respect for religion” (247 [pensée 854]). See also his observation that

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Milton’s poetry, “founded on the Christian religion, only began to be admired in England once Religion began to pass for fiction there” (My Thoughts, 289 [pensée 1052]). Pangle, Theological Basis of Liberal Modernity, 86 and 166n13. 27. Montesquieu shows a keen interest in the Christian promotion of celibacy. As he explores Christian celibacy from the very origin of the religion, this topic will be considered in the following chapter. 28. Shackleton notes that in 1752 the marquis d’Argenson wrote “with dismay that the Inquisition was gaining ground in France” (“Censure and Censorship,” 420). 29. Of course, secular authorities were implicated in the punishments, as the inquisitors of the Church would pronounce sentence but, in a procedure known as “relaxation to the secular arm,” would hand the guilty party who remained unrepentant over to the secular authorities to carry out the sentence, which was usually death by burning. See, for example, Peters, Inquisition, 94, 59, 67. Peters writes: “Between 1540 and 1760 the Portuguese Inquisition, out of 30,000 recorded cases, is estimated to have condemned to execution 1175 Judaizers and burned 633 in effigy. The rate of capital punishment ran considerably higher with the Portuguese Inquisition than it did with the Spanish” (98). 30. Shackleton, Montesquieu, 354. 31. For other commentaries on this chapter, see Carrithers, “Montesquieu’s Philosophy of Punishment,” 227–28; Ehrard, “Montesquieu et l’Inquisition,” 336–38; Schaub, “Of Believers and Barbarians,” 229–30. 32. Rahe writes: “The sentiments expressed in the ‘remonstrance’ . . . that he put into the mouth of an unnamed Jew are clearly sentiments that he subscribed to himself” (Montesquieu and the Logic of Liberty, 198). 33. Shackleton, “La religion de Montesquieu,” 113–14; my translations. Barrera observes that this characterization of the chapter under the subject “Christianisme” in the index misled many subsequent readers (Les lois du monde, 178; OC 2: 1615). The index in question is the “Analytical and Alphabetical Table of Materials Contained in The Spirit of the Laws and in the Defense” prepared by François Richer after the author’s death. On this index and its significance, see Mosher, “Monarchy’s Paradox,” 192 and 226n78. 34. Waddicor, Montesquieu and the Philosophy of Natural Law, 180. 35. Sozomen, Historia Ecclesiastica, 15–16 (1.5). 36. Julian, Caesars, 2: 345–415; Schaub, “Of Believers and Barbarians,” 237. 37. Cf. Schaub, Erotic Liberalism, 71–73. 38. Shackleton, “La religion de Montesquieu,” 114. 39. 1 Timothy 2:3–6 RSV. Augustine also refers to Christ as “the Son of man who is mediator between you [God] the One and us the many” (Confessions, 244 [11.29.39]). 40. Julian, Caesars, 2: 413. 41. Montesquieu writes of eternal reward and punishment in My Thoughts: “It is difficult to understand by reason alone the eternity of the punishments of the damned, for punishments and rewards can only be established in relation to the future. A man is punished today so that he will not err tomorrow, so that others will not err as well. But when the blessed are no longer free to sin, nor the damned to do good, what good are punishments and rewards?” (28 [pensée 82]).

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42. Here one encounters the fear of the Christian God that Schaub’s interpretation emphasizes in other parts of Montesquieu’s work (Erotic Liberalism, 140). 43. Ehrard, “Montesquieu et l’Inquisition,” 333. 44. As Shackleton notes, it was the “only categorical censure” issued by the Congregation of the Index (Montesquieu, 376). 45. Hanna, “Sacrament of Penance.” Montesquieu discusses religion’s punishments that occur in the earthly realm in 25.12. 46. Ehrard, “Montesquieu et l’Inquisition,” 339. 47. Peters, Inquisition, 87. 48. Carrese captures Montesquieu’s distinction well: “The principle throughout is that ‘human justice’ can see only acts, since the standard of ‘divine justice’ sees too much to be safe for individual security’” (Cloaking of Power, 80). Montesquieu finds the origin of the Iberian inquisitions in the laws of the Visigoths who settled in this region: “Bishops had an immense authority in the court of the Visigoth kings; the most important business was decided in councils. We owe to the codes of the Visigoths all the maxims, all the principles and all the views of the present-day Inquisitors, for the monks have only copied against the Jews laws formerly made by the bishops” (28.1, 534; see also 533). The Visigoths are unique among the barbarians for the disdain which with Montesquieu regards their laws. See, for example, 26.4, 26.19, 28.17, and 29.16. I thank Nathaniel Gilmore for these references. See also Pangle, Theological Basis of Liberal Modernity, 104–5. Peters notes that “the Visigothic kings of Spain in the sixth, seventh, and early eighth centuries” “issued wide-ranging and extremely harsh legislation against heretics and, unlike many other Germanic rulers, turned savagely against Jews” (Inquisition, 33). 49. In interpreting 12.4 primarily within the French monarchical context of his time, Kingston finds that “Montesquieu is arguing that given the unique quality of religious law, the relinquishing of policing functions to civil courts would have undesirable consequences in that it would open to the magistrates an area of competency which is only fully known by God and therefore open the door to arbitrary judgements which could undermine the principles for which civil authority was established” (“Montesquieu on Religion,” 387). Because Montesquieu insists here that this vengeance belongs to God, he makes it an open issue whether the remission for sins that ministers offer in the tribunal of penance will ultimately be upheld by divine justice (12.4; cf. 26.11–12). 50. This sentence displeased Monseigneur Bottari, who had been assigned to issue a report and recommendation on The Spirit of the Laws for the Congregation of the Index in Rome. Montesquieu revised this very sentence for the 1757 posthumous edition. Montesquieu replaced the original “on recherche” with “le magistrat recherche” and “on porte” with “il porte,” thus emphasizing his criticism of secular as opposed to ecclesiastical authority. Beyer, “Montesquieu et la censure religieuse,” 108 and 117. But Montesquieu’s revision with its apparent emphasis on the secular magistrates still implies a condemnation of the Inquisition. Cf. Montesquieu, De l’esprit des lois, Manuscrits, 3: 291. 51. Pangle, Theological Basis of Liberal Modernity, 107. 52. After the crisis of the Cathar heresy was met, the inquisitors, who were largely Dominicans, remained, focusing their attention on Jews and witches. Thus, the inquisitorial procedure that opposed these heretics was used later in the century to persecute the

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Jews in Provence. See Jewish Encyclopedia, s.v. “inquisition,” 6: 587–88, and Sullivan, “Criminal Procedure as the Most Important Knowledge,” 170n8. 53. The Spirit of the Laws by Montesquieu, ed. Carrithers, 394n2. Montesquieu responded that he would remove the passage (Montesquieu, “Réponses et explications données,” OC 2: 1175), but the deletion was not made in the posthumous edition of 1757. See Beyer, “Montesquieu et la censure religieuse,” 108 and 118. 54. Père Plesse, “Lettre au P.B.J.,” 103–4; my translation. 55. Montesquieu certainly knew of this history. In his Spicilège, he devotes an entry to “Inquisition” (156–63 [122]). 56. The allegation of magic did not become a recognized heresy until the late fifteenth century. Trevor-Roper, “European Witch-Craze,” locates its origin in part in the culmination of the Albigensian Crusade in southern France. The Inquisition and the Dominicans “had discovered, beneath the forms of one heresy, the rudiments (as they thought) of another” (103; see also 175–76). This heresy burgeoned in the later centuries, however. Although the understanding of witchcraft as a heresy was of Catholic origin, Protestant leaders largely embraced its prosecution (145–46, 161, and 170; for the participation of secular authorities and thinkers, see 171–72). 57. Richter, Political Theory of Montesquieu, 95. 58. I have corrected the translation. It should be noted that the English edition translates the French “conjurations” as exorcism. Although the word exorcisme was available to him, he does not use it in this context. According to Dictionnaire de L’Académie française of 1694, the French word conjuration had two primary meanings: a conspiracy against the state and the invocation of spirits that occur in both exorcism and magic. 59. Carrithers, “Montesquieu’s Philosophy of Punishment,” 228–29; Carrithers, “Montesquieu and the Liberal Philosophy of Jurisprudence,” 313–14; Waddicor, Montesquieu and the Philosophy of Natural Law, 144–45. This notion that religious errors should not carry corporal punishment can be found in Christian thought itself. Desiderius Erasmus writes with regret regarding the harsh penalties for heretics: “In the old days a heretic was listened to almost with respect and was absolved if he did penance; if he remained obdurate after conviction, he was not admitted—that was the extreme penalty—to communion with catholics in the bosom of the church. Nowadays the accusation of heresy is a very different thing” (letter 1033 to Albert of Brandenburg, 19 October 1519, in Paraphrase on the Gospel of Matthew, 115). See Zagorin’s discussion, How the Idea of Religious Toleration Came to the West, 63. 60. In the words of one commentator: “Montesquieu effects nothing less than the separation of Church and State” “[i]n a few masterful paragraphs” of this particular chapter (Bartlett, “On the Politics of Faith and Reason,” 17). For discussions of the issue of the separation of church and state in Montesquieu’s thought, see Ehrard, “Montesquieu et l’Inquisition,” 339; Kingston, “Montesquieu on Religion,” 385–87, 392, 397; Samuel, “Design of Montesquieu’s The Spirit of the Laws,” 317; and Shklar, Montesquieu, 89–90. But Montesquieu’s depiction of the Church’s role in checking the despotic tendencies of monarchy must not be forgotten. See chapter 2 above and Orwin, “‘For Which Human Nature Can Never Be Too Grateful,’” 271 and 280. 61. Montesquieu notes that crimes against religion could in some cases eventuate in a disturbance of “tranquility,” or in a threat to the “security of the citizens.” These

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actions then would be tried by secular authorities and punished accordingly, with the harsher punishments befitting the nature of the crime. But crimes would warrant the severest punishment not because they were sacrilege as such but rather because they involved robbery or murder, for example (12.4, 189). 62. Apparently, the lepers were originally accused of poisoning the wells as their remedies and lotions were mistaken as dangerous potions. Under torture, however, some claimed that they had been put up to this deed by Jews, whose intent was to use the lepers as a means to poison Christendom. See Crowe, History of France, 1: 374–75. 63. Carrithers too expresses doubt as to Montesquieu’s sincerity in 12.5: “It is likely, however, that this one-sentence qualification of his argument for full religious freedom was simply precautionary” (“Montesquieu’s Philosophy of Punishment,” 227). 64. Cf. 6.13, 87, where in the context of his discussion of the punishments of the Japanese, he declares: “Souls that are everywhere startled and made more atrocious can be guided only by a greater atrocity.” See Gilmore and Sullivan, “Montesquieu’s Teaching on the Dangers of Extreme Corrections.” 65. Corpus Iuris Canonici, 782–83 (5.10). I thank Michael Hawley for the Latin translation. 66. Peters, Inquisition, 48–49, and Zagorin, How the Idea of Religious Toleration Came to the West, 39 and 44. 67. Pangle notes that this is the only time that Montesquieu uses the word “revelation” in a chapter title. 68. The following chapter will consider the origins of this equation in Roman law. 69. Bellarmine, De Laicis, chap. 21. Zagorin, How the Idea of Religious Toleration Came to the West, 81. 70. Calvin, Faithful Exposition of the Errors of Michael Servetus, 475–76. I thank Michael Hawley for the Latin translation. 71. Ehrard, “Montesquieu et l’Inquisition,” 339–40. 72. Here as he offers a plea against harsh punishments, he minimizes the impact of ideas: an idea is only an idea after all. 73. Carrithers, “Montesquieu and the Liberal Philosophy of Jurisprudence,” 298. 74. His accuser proceeds in a manner akin to that of the ruler of a despotic seraglio: “He did not only possess firmness, but penetration as well. He could read [the wives’] thoughts and their concealments. Their contrived gestures, their false expressions, hid nothing from him. He knew of their most secret actions and most private remarks” (Persian Letters, 132 [letter 64]). Levin (Political Doctrine) acts the part of Montesquieu’s accusers; see n. 18 above.

CHAPTER FOUR 1. Giesey, Haldy, and Millhorn, “Cardin Le Bret and Lese Majesty.” 2. Sozomen, Historia Ecclesiastica, 199 (5.1) and 201–4 (5.2). As a youth Julian “became acquainted with Maximus, an Ephesian philosopher, who instructed him in philosophy, and inspired him with hatred towards the Christian religion” (204). 3. This passage was censored by the Sorbonne and “condemned with indignation” according to Beyer (“Montesquieu et la censure religieuse,” 119). Père Plesse also took

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exception to Montesquieu’s praise of Julian the Apostate (“Lettre au P.B.J.,” 6: 110). See Shackleton, Montesquieu, 357. See also La Roche, “Examen critique de l’Esprit des Lois,” 132. In Montesquieu’s Réponses et explications he said that he would remove it (OC 2: 1175). In My Thoughts (pensée 969), Montesquieu offers an extended reflection on how Christianity came to replace paganism in the Roman Empire, noting that paganism “became established because it had a reasonable origin at first,” then “its extravagance emerged only little by little.” He explains that with Christianity’s advent paganism was “in decline.” He marvels, though, that Christianity was able to win the support of the partisans of various philosophical sects, whose tenets would seem to preclude the adherents’ acceptance of its teachings: “The Gospels are published, and are accepted by the Pyrrhonians, who say everything must be doubted; by the Naturalists, who believe everything is the effect of form and motion; by the Epicureans, who mock all the miracles of Paganism; in short, by the enlightened world, by all the philosophical sects. If the establishment of Christianity among the Romans were an event solely in the category of things of this world, it would be the strangest event of its kind that has ever occurred” (My Thoughts, 272–73). 4. His comment in My Thoughts is again relevant: “Although the Christian religion has not produced many virtuous princes, it has nonetheless tempered human nature. It has done away with the Tiberiuses, the Caligulas, the Neros, the Domitians, the Commoduses and the Heliogabaluses” (185 [pensée 551]). 5. Agathias, Histories, 65 (30.4). 6. Quoted from Frendo’s explanatory note (Agathias, Histories, 65n40). Agathias was born about the time this event was believed to have occurred. The other source for this event is the Chronicle of John Malalas of Antioch, who was about forty years older than Agathias and thus closer to these events but whom Montesquieu does not cite. Contemporary scholarship has identified several unresolved issues with these accounts, including the very identity of the laws as well as the specific events in Athens to which they refer. See, for example, Watts, “Justinian, Malalas, and the End of Athenian Philosophical Teaching.” Montesquieu comments in Considerations regarding Justinian’s approach to religion that “what did the most harm to the political condition of the government was his scheme for reducing all men to the same opinion in matters of religion, in circumstances which made his zeal entirely indiscreet” (Considerations on the Causes of the Greatness of the Romans and Their Decline, 190 [chap. 20]). 7. Montesquieu recounts in the Considerations on the Causes of the Greatness of the Romans and Their Decline the many doctrinal disputes that divided the Christianized Roman Empire: “After the Christian religion became dominant in the empire, many heresies arose in succession that had to be condemned. When Arius denied the divinity of the Word, the Macedonians that of the Holy Spirit, Nestorius the unity of the person of Jesus Christ, Eutyches his two natures, and the monothelites his two wills, it was necessary to convene councils against them. But since the decisions of these councils were not universally accepted at once, several emperors were seduced into returning to the condemned errors” (197 [chap. 21]). 8. Arianism strictly understood derives from Arius, but there were variants of this belief. All were regarded as heresies by the Catholic Church. Montesquieu does not distinguish among them. Montesquieu explains in Considerations on the Causes of

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the Greatness of the Romans and Their Decline that when “the Christian religion was brought to the barbarians, the Arian sect was practically dominant in the empire. Valens sent them Arian priests, who were their first apostles. But, in the interval between their conversion and their settlement, this sect was practically destroyed among the Romans. The Arian barbarians, finding the whole country orthodox, could never gain its good will, and it was easy for the emperors to disturb them” (186 [chap. 20]). 9. Ibid., 190 (chap. 20). 10. In the Persian Letters, Rica comments on the apparent oddity of the pervasiveness of Roman law in France: “Who would think that the oldest and most powerful kingdom in Europe has been governed for more than ten centuries by laws which were not made for it? If the French had been conquered it would not be hard to understand, but it is they who have been the conquerors. They have abandoned their ancient laws, made by their first kings at national general assemblies, and the odd thing is that the Roman laws, which they adopted instead, were in part made and in part drafted by emperors who were contemporary with their own legislators” (185 [letter 100]). 11. England is an exception to this recovery of Roman law in the formerly barbarian nations. Before the rediscovery of Roman law, England had been guided by the early establishment of the principles of common law. Thus, the rediscovery of Roman law had little impact on this country. For this reason, England was not guided by the Roman law that permitted torture. See Montesquieu’s comments on this fact in 6.17: “Today we see a well-policed nation,” “[t]he English nation,” “reject it without meeting drawbacks. The use of the question is, therefore, not necessary by its nature” (92 and n. 55). This general rejection of torture in England meant that persecution for witchcraft was much more limited there, according to Trevor-Roper, “European Witch-Craze,” 118–19. 12. Although in Considerations on the Causes of the Greatness of the Romans and Their Decline (190 [chap. 20]), Montesquieu says that Justinian produced a monument, he nevertheless criticizes that monument’s architect by charging that Justinian is a thoughtless and frivolous legislator. Justinian’s “jurisprudence,” as evidenced in the Novellae, reveals that he offers many “changes” “mostly in things of such little importance that one sees no reason why a legislator should have been induced to make them.” This recognition inclines Montesquieu to accept Procopius’s depiction in The Secret History, of the ruler “selling his judgments and his laws alike”—a judgment that he repeats in The Spirit of the Laws. 13. Levin (Political Doctrine, 215–17), Richter (“Political Theory of Montesquieu,” 95–96), and Shklar (Montesquieu, 90), for example, note his particular concern with charges of high treason. 14. Montesquieu draws the passage from Tacitus, Annals 3.24. In the sentence immediately prior to the one he quotes, Tacitus refers to Augustus’s status as divine: “Fortune, staunch to the deified Augustus [divo Augusto] in his public life, was less propitious to him at home, owing to the incontinence of his daughter and granddaughter, whom he expelled from the capital while penalizing their adulterers by death or banishment” (Annals, 2: 560–61). See also Annals 1.10 for Augustus’s desire to be “‘adored in temples and in the image of godhead by flamens and by priests!’” (2: 265). 15. Suggesting that Montesquieu’s interest in treason arises from “contemporary French conditions,” Levin notes that “it is evident from his citations that his ideas on the

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subject have been influenced by the terrible abuse of that potent instrument of tyranny as wielded by the worst of the emperors” (Political Doctrine, 215). 16. Shklar, Montesquieu, 90. 17. For the doctrinal controversies in which these emperors were embroiled, see Sozomen, Historia Ecclesiastica, 7–9. The Catholic Encyclopedia describes Theodosius I as “one of the sovereigns by universal consent called Great” and notes that he “reigned as a just and mighty Catholic emperor,” having “stamped out the last vestiges of paganism, put an end to the Arian heresy in the empire, [and] pacified the Goths” (Fortescue, “Theodosius I”). In his decree of 380 CE, to which the names of Gratian and Valentinian, emperors of the West, were appended, Theodosius deemed that only those who believed in the “Holy Trinity” were “Catholic Christians”; all others he “adjudge[d] demented and insane” “who sustain the infamy of heretical dogmas.” Emperor Theodosius I thus vindicated the Nicene Catholic creed. He further decreed that such heretics “shall be smitten first by divine vengeance and secondly by the retribution of Our own initiative, which We shall assume in accordance with the divine judgment” (Theodosian Code, 440 [16.1.2]). Theodosius’s reign also exemplifies the fullest expression under the Christian dispensation of the sacred monarchy that was evident even in Augustus’s reign. Theodosius “accepted the theory and practice of the sacred monarchy, the pretensions of which were, indeed, under this sovereign and his descendants, to attain their climacteric.” Illustrative of this understanding of imperial rule is the very law that Montesquieu adduces that deems questioning the emperor’s appointments to office tantamount to sacrilege, thus equating imperial service with sacerdotal service (Cochrane, Christianity and Classical Culture, 321–22). Zagorin dates the first executions for heresy in Church history to 385 when Maximus, Theodosius’s colleague in the West, condemned a Spanish bishop and his followers to death (How the Idea of Religious Toleration Came to the West, 23). 18. This principle, as it applies in a Christian context, is clearly linked to chapter 13 of that same book where the Jew, who castigates the Inquisition, says to these Christian “inquisitors”: “You reply that though your religion is new, it is divine, and your proof is that it has grown by the persecution of the pagans and by the blood of your martyrs; but today you take the role of the Diocletians” (25.13, 491). 19. For a general discussion of the state of the law in France, see Kelly, “From LèseMajesté to Lèse-Nation.” Kelly notes that Montesquieu’s discussion of high treason in book 12 launched “the philosophical and legal debate in France” and sensitized “French intellectual opinion to the disproportionate atrocity of the definition of capital criminal acts and severity of punishment attached to them” (277–78). 20. Montesquieu cites the Latin of the preface of this law (Justinian, Codex, IX). 21. Clearly influenced by Montesquieu’s analysis, Edward Gibbon in the context of his discussion of Arcadius’s law too refers to the incident involving Richelieu and Cinq-Mars, but specifically mentions a different victim. Gibbon comments that the law of Arcadius “most positively and most absurdly declares, that in such cases of treason, thoughts and actions ought to be punished with equal severity; that the knowledge of a mischievous intention, unless it be instantly revealed, becomes equally criminal with the intention itself.” At this, Gibbon inserts a note referring to the “lawyers of Cardinal Richelieu” and declares that “Eutropius [advisor to Arcadius] was indirectly guilty of the murder of the virtuous De Thou” (History of the Decline and Fall, 3: 300 and n. 19;

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emphasis in original). Jacques-Auguste de Thou was executed for not revealing the conspiracy of Cinq-Mars. 22. For Montesquieu’s opposition to perfectionism, see also Mosher, “What Montesquieu Taught,” 10, 14–15. Carrese notes that in part 5 of The Spirit of the Laws, where the author explicitly treats religion, he “seeks to temper Christian perfectionism” (Cloaking of Power, 77). 23. The doctrine of Foë is a Chinese form of Buddhism. See Beiner, Civil Religion, 194. Schaub reads it in The Spirit of the Laws as a stand-in for Christianity (Schaub, “Of Believers and Barbarians,” 239 and 242). The passage Montesquieu quotes appears in an English translation of Jean-Baptiste Du Halde’s work: General History of China, 3: 268. There is much in Du Halde’s description of the religion that recalls Christian teachings. For instance, “according to the Sect of Fo, the body of Fo, the Trunk or Substance is one, but it hath three Images” (3: 271). In addition, its adherents believe that “criminal Actions” can be wiped away with incense or prayers before their idol (3: 274). 24. Laockium is the Chinese deity who founded Taoism. 25. In this context, it is worth reconsidering the passage from My Thoughts in which Montesquieu equates Islam with Christianity in its focus on the next life and contrasts both to a healthy form of ancient paganism: “The world no longer has that cheerful air that it had in Greek and Roman times. Religion was mild and always in accord with nature. Great gaiety in the ritual was joined to complete independence in the doctrine. . . . Today, Mohammedanism and Christianity, made solely for the afterlife, are annihilating all that. And while religion is afflicting us, despotism—spread out everywhere—is overwhelming us” (459 [pensée 1606]). 26. The Persian Letters contains a similarly positive depiction of the religion of the Ghebers. See “The Story of Apheridon and Astarte” contained in letter 67 from Ibben to Usbek. Elsewhere in book 24 of The Spirit of the Laws, he also points to the religion of the people of Pegu as being particularly salutary for society. In addition to simple moral precepts, these people believe “that one will be saved in any religion whatever; this makes these peoples, though they are proud and poor, show gentleness and compassion to unfortunates” (24.8, 465). See also Persian Letters, 101 (letter 46): “whatever religion one may have, obedience to the laws, love of mankind, and respect for one’s parents are always the principal acts of religion.” 27. Schaub, “Montesquieu’s Legislator,” 161–62. 28. Matthew 5: 48 and 19: 21 (RSV). 29. Matthew 19: 10 (RSV). 30. See Augustine: “The apostle did not forbid me to marry, though he exhorted me to something better and very much wished that all men were as unattached as he himself. . . . From the mouth of truth I had heard that there are ‘eunuchs who have castrated themselves for the kingdom of heaven’s sake.’ But, he says, ‘let him who can accept this accept it’ (Matt. 19: 12)” Confessions, 134 (8.2). 31. Montesquieu comments in My Thoughts that Justinian “had taken it . . . much to heart to abrogate all laws contrary to Christianity” (48 [pensée 147]). 32. Christianity’s adverse effect on Europe’s current population is a prominent theme in The Persian Letters, as he devotes eleven letters to the topic of depopulation. The series begins when Rhedi’s letter to Usbek poses the question “Why is it that the world is

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so thinly populated in comparison with former times?” (202 [letter 112]). Like Montesquieu himself, Usbek has an intense interest in the topic, and Montesquieu’s character responds in the following ten letters. Usbek finds fault with Christianity’s prohibition on divorce (210 [letter 116]). Usbek also identifies the deleterious effect of the vows “of perpetual chastity” for “both sexes,” which “for the Christians, is virtue in its purest form.” Usbek adds that he himself cannot understand “what sort of virtue it is that produces nothing [rien]” (OC 1: 305). He continues that such a “career of chastity has annihilated more men than plagues or the most savage wars. In every monastic institution is an everlasting family to which no children are born, and which maintains itself at the expense of all other families. Their houses stand open all the time like so many abysses, for future generations to be engulfed in” (211–12 [letter 117]). Montesquieu knew of which he speaks. All of his siblings who survived infancy were consecrated to God, his two sisters and his brother (Shackleton, Montesquieu, 4). He also devotes pensées 1747 and 1748 of My Thoughts to the topic of “Number of Inhabitants.” 33. See Pangle, Theological Basis of Liberal Modernity, 106, for a discussion of the significance of Montesquieu’s term “counsels.” Another commentator, on the basis of Montesquieu’s distinction between the precepts of human law and the “counsels,” or recommendations, of religion, maintains that “[s]tate authority ought not to enforce religious law” (Mosher, “What Montesquieu Taught,” 10). 34. Beiner, Civil Religion, 194. 35. Mosher, “What Montesquieu Taught,” 10; Beiner, Civil Religion, 194. 36. Dupin, Bibliothèque des auteurs ecclésiastiques, 5: 114–15. 37. Sozomen, Montesquieu’s source on other matters of Church history, explains that Constantine “enacted a law in favour of the clergy”: “permitting judgment to be passed by the bishops when litigants preferred appealing to them rather than to the secular court, he enacted that their decree should be valid, and as far superior to that of other judges as if pronounced by the emperor himself; that the governors and subordinate military officers should see to the execution of these decrees; and that sentence, when passed by them, should be irreversible” (Historia Ecclesiastica, 23–24 [1.9]). Constantine’s decree violates Montesquieu’s principle in 12.4 that religious officials should not pronounce on matters that carry civil and criminal penalties. In My Thoughts he judges that “Constantine made a mistake in consenting that the ecclesiastical jurisdiction that the Christians had established among themselves from the time of the pagan Emperors be authorized” (74 [pensée 204]). 38. Montesquieu shows a great deal of interest in The Spirit of the Laws in how the Church acquired and lost property throughout the ages. See for example 23.29, 25.5, 30.11, 30.21, and 31.9–15. He speaks also in general terms: “Wealth in the temples and the clergy affects us greatly. Thus, the very poverty of peoples is a motive attaching them to that religion, which has served as a pretext for those who have caused their poverty” (25.2, 481). 39. For example, “those who were unmarried at the age of twenty-five were not admitted to the same privileges as the married.” These privileges related primarily to the laws of inheritance as the celibate had been denied the right both to inherit from those who were not relatives and to render bequests. Constantine overturned these restrictions of the old Roman law in his attempt to bestow “peculiar privileges on those who embraced a life of continence and virginity” (Sozomen, Historia Ecclesiastica, 23 [1.9]).

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40. The Sorbonne censured this passage. See proposition 9, Réponse et explications (OC 2: 1177). Montesquieu did not make the changes to the text he promises here. See also Beyer, “Montesquieu et la censure religieuse,” 118–19. 41. The abbé La Roche clearly draws this implication. Commenting on this very passage he writes: “If it is the case that some [Christian celibates] violate their commitment, as indeed there are some, is it religion that we must blame, by insinuating that it has made the world more corrupt under the pretext of raising it to a higher degree of perfection?” My translation from “Examen critique de l’Esprit des Lois,” 130. In his Defense Montesquieu devotes a section to rebutting the abbé’s criticism of his treatment of the subject. There he insists that he has not disapproved of celibacy that is practiced from religious motives. Montesquieu writes that his critic cannot complain about his condemnation of celibacy introduced by libertinism. He complains that his critic has made him “say against religion what he has said against libertinism” (OC 2: 1149).

CHAPTER FIVE 1. Contemporary scholarship on Plato evidences approaches both opposed and similar to the one that Montesquieu employs. By contrast to Montesquieu, some scholars emphasize the educative function of the dialogue form in their interpretations of The Republic and argue that the dialogue, far from being a prescription for political practice, is intended by Plato to reveal the limits of politics. See Strauss, City and Man, 65 and 127; Bloom, “Interpretive Essay,” 409–15; and Nichols, Socrates and the Political Community, 147– 51. Other prominent twentieth-century commentators, though, have an understanding of Plato’s intention not far from Montesquieu’s own in which they regard one or both dialogues as a blueprint for a regime that Plato would like to see instituted. Like Montesquieu, they emphasize the degree to which Plato took the historical regimes of Sparta and Crete as a model for the city he describes in The Republic. See particularly Popper, Spell of Plato, 40–41, 45, and 49; his interpretation of the dialogue issues in a condemnation of Plato’s politics as “totalitarian and anti-humanitarian” (88; see also 87, 103, and 131). Although Glenn Morrow (Plato’s Cretan City) acknowledges at several places Plato’s regard for Sparta and Crete (e.g., 20, 32), he argues both that Plato is particularly attached to the practice of an older Athenian regime that predates Plato’s lifetime and that this archaic Athenian regime guides his prescriptions in The Laws (e.g., 86, 591–92). Trevor Saunders too regards the regime of The Laws as representing Plato’s best available regime (Plato’s Penal Code, 1; see also 349). 2. For forceful presentations of this position, see Pangle, Theological Basis of Liberal Modernity, 71, and Montesquieu’s Philosophy of Liberalism, 48–106; and Manent, City of Man, 15–24. Mansfield characterizes Montesquieu’s position toward the ancient republics as akin to that of “a connoisseur’s appreciation for an inimitable object of a bygone age” and his “strategy” as one that endeavors “to replace classical virtue without opposing it—indeed, while praising it eloquently” (Taming the Prince, 217). My account of Montesquieu’s approach to Plato’s exposition of the ancient city finds Montesquieu taking a more active and antagonistic stance, which is required because, although the ancient cities are in ruins, Plato’s perfection of them persists still in his writings, holding allure for any future reader and potential legislator.

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3. Pangle, Montesquieu’s Philosophy of Liberalism, 65. 4. Eric Nelson finds Montesquieu decidedly in favor of the ancient Greek republics as well as of Plato’s teachings on the basis of the Frenchman’s sympathy for equality of property and the virtue it nurtures (Greek Tradition in Republican Thought, 163–76). Nelson’s interpretation of The Spirit of the Laws abstracts from Montesquieu’s treatment both of commerce and of Plato as an opponent of it as well as from Montesquieu’s critical depiction of the treatment of the ancient slaves in Sparta and in Plato’s writings. 5. See my introduction above. 6. In examining Montesquieu’s treatment of the Greeks’ singular institutions, Manent comments that it “leaves an impression of an improbable, monstrous venture” (City of Man, 23). Pangle notes the “pejorative” character of the term, which “points to [Montesquieu’s] recognition of the fanaticism, or extremeness, of such communities” (Montesquieu’s Philosophy of Liberalism, 76). 7. Other than the mention of Plato in the preface, this is Montesquieu’s first reference to Plato in The Spirit of the Laws. 8. Montesquieu, My Thoughts, 322 (pensée 1208). 9. Montesquieu actually links the Samnites to Spartan institutions as early as book 4. When speaking of the laws of Crete and Laconia, he notes that the “Samnites had these same institutions and they provided the occasion for twenty-four triumphs for the Romans” (4.6, 37). Montesquieu’s discussion of the Samnites’ practices with respect to marriage bears a similarity to a passage of The Laws (771e–772a). In The Republic, the male guardians in Socrates’s good city are given no choice as to their temporary spouses, a fact that distinguishes that city from the law of the Samnites. See also Levin, Political Doctrine, 181. Cohler, Miller, and Stone suggest that both Platonic works serve as Montesquieu’s source here. Montesquieu’s treatment of the family and of eugenic practices in both Sparta and Plato’s Republic will be treated later in this chapter. 10. For Minos, see Plato, Laws 624b; Plutarch, “Theseus,” Lives, 1: 8–9. For Lycurgus’s voyage to Crete and study of its laws, see “Lycurgus,” Lives, 1: 55. 11. Plato, Laws 702b–e. 12. In his Pensées, Montesquieu refers to “the two Republics of Plato” (My Thoughts, 404 [pensée 1378]). 13. Although Montesquieu does not mention the specific feature of the philosopherkings, in a broader sense he takes its implications very seriously. Whereas Plato’s Socrates says that a regime with such rulers is unlikely to be founded, Montesquieu understands philosophers as legislators. 14. Plato, Republic, book 5, 462a–b and 457c–d. Cf. Lowenthal, “Montesquieu and the Classics,” 203, and Pangle, Montesquieu’s Philosophy of Liberalism, 65. Both commentators raise as a question why Montesquieu’s depiction of The Republic in book 4 omits mention both of the philosopher-kings and of the community of women and children. Montesquieu treats the latter feature of Plato’s work more directly in book 23, as a subsequent section of this chapter explores. 15. Plutarch, “Lycurgus,” Lives, 1: 60. 16. He notes later that “war” was “the purpose” (l’objet) of Lacedaemonia (11.5, 156; OC 2: 396). 17. Morrow writes: Plato’s “proposal [in The Laws] is extreme in that it makes

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legally punishable many activities that in most Greek cities were merely regarded with disdain. Only Sparta and perhaps two or three other cities went so far as to prohibit these occupations to citizens” (Plato’s Cretan City, 141). The Cohler, Miller, and Stone edition misidentifies Montesquieu’s own note as being to “bk. 2,” but offers the correct Stephanus pages to book 11 of The Laws. The manuscript has Montesquieu furnishing the book number as the Arabic numeral “11,” which very well may explain the source of confusion in the English edition. See Montesquieu, De l’esprit des lois, Manuscrits, 3: 51. 18. Rahe offers insightful observations regarding Montesquieu’s treatment of commercial Athens in Montesquieu and the Logic of Liberty, 229–30. 19. Montesquieu also indicates in his Pensées that he relies on Plutarch for his understanding of Sparta. See My Thoughts, 527–28 (pensée 1773). 20. Pangle, Montesquieu’s Philosophy of Liberalism, 57. See also Manent, City of Man, 18–19, and Pangle, Theological Basis of Liberal Modernity, 53–55. 21. See also Rahe, Montesquieu and the Logic of Liberty, 71–73. Given their extreme measures, Montesquieu seems to associate these particular legislators with the “great men,” whom he treats in book 28. He says there that because “great men who are moderate are rare,” many outstanding individuals follow their strength to excess and love to dominate “other souls”; they fail to distrust their good intentions so they ultimately do not do good well (28.41, 595). Cf. Lowenthal’s statement: “Montesquieu admires the genius and wisdom of these legislators—especially of Lycurgus and Plato—who shock all usages and confound all virtues, and we are surprised by his openness to even extreme singularity” (“Montesquieu and the Classics,” 202). 22. Plutarch, “Lycurgus,” Lives, 1: 68–69. 23. Ibid., 1: 77. 24. Ibid., 1: 77; cf. “Comparison of Numa with Lycurgus,” 1: 102. Levin finds that “one can hardly conceive of a government in which fear was more rigorously applied as a means of inculcating political subservience than in Sparta, with its harsh policy of insult and periodic murder applied to the unfortunate Helots” (Political Doctrine, 115). 25. Cf. Pangle’s interpretation of “atrocious sentiments,” which links them, in Montesquieu’s view, to homosexuality that weakened “private family love” (Montesquieu’s Philosophy of Liberalism, 75). Montesquieu consistently reserves the word “atrocious” for particularly shocking acts of violence. See, for example, 6.13, 25.12, and 29.14. 26. Plutarch, “Lycurgus,” Lives, 1: 76. 27. Ibid., 1: 74. 28. Ibid., 1: 66. 29. Ibid., 1: 66. 30. Ibid., 1: 64–65. 31. Plato has the Athenian Stranger refer to the “looseness” of Spartan women immediately after the Spartan criticizes the other Greeks for their dissolute drinking parties (Laws 636e–637c; Laws of Plato, 16). Thus, Plato is among those who raise questions regarding Spartan virtue and whom Plutarch endeavors to rebut on this score. 32. The Athenian Stranger does use the term, however, to describe a particular type of hunt: “so the young men ought to practice running with hounds and all forms of hunting. . . . With regard, then, to this branch of service—both the men themselves and their duties, whether we choose to call them secret-service men [τις κρυπτοùς], or land stewards

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or by any other name—every single man who means to guard his own State efficiently shall do his duty zealously to the best of his power” (Plato, Laws 763b–c; quoted from Bury translation, 430–33). 33. Cf. Manent, City of Man, 18 and n. 6, who considers the identity of these “‘political men of Greece’” only in the context of Montesquieu’s discussion in 3.3. Manent assumes that Montesquieu includes Plato in this group, but maintains further that they were all Athenian “since just about all the Greeks of interest to posterity lived in Athens.” He thus dismisses Minos and Lycurgus from this grouping. He also rejects the possibility that Crete and Sparta were popular governments, thus apparently discounting Montesquieu’s many indications that he regards them as such (cf. 2.2, 3.3, 4.6, and 5.5–7). This puts Manent in the position of somehow explaining how on Montesquieu’s presentation the Athenian democrats could be said to have promoted virtue. 34. Barrera, Les lois du monde, 111–32. 35. “It is love of Country that has given Greek and Roman history that nobility that ours does not have. . . . When one thinks about the pettiness of our motives, the baseness of our means, the avarice with which we seek out vile rewards, the ambition—so different from love of glory—one is astonished at the difference in the spectacles, and it seems that, ever since those two great peoples ceased to exist, men have lost a few inches in stature” (My Thoughts, 93 [pensée 221]). Cf. Manent, City of Man, 18. 36. See Larrère on the significance of Montesquieu’s devoting these four books to the topic, “Montesquieu on Economics and Commerce,” 335. 37. Usbek declares in the Persian Letters, letter 115, that “the more men there are in a state, the more trade flourishes; the two things are interdependent and provide mutual stimulus” (209). 38. Socrates asks rhetorically in The Republic: “isn’t virtue in tension with wealth, as though each were lying in the scale of a balance, always inclining in opposite directions?” (228 [550e]). 39. The English translation refers incorrectly here to book 3 of The Laws; see also 5.5, 45 and n. 4. 40. See particularly 457c–d and 459d–460a in book 5 of Plato’s Republic. 41. Plutarch, “Lycurgus,” Lives, 1: 66, and Republic 460a. 42. See Plato, Laws 865c–d and 868a. In the latter discussion, the Stranger says that if he kills his own slave, he must undergo rites of purification. In other words, he will not be punished as a murderer. Perhaps Montesquieu’s claim here that Plato takes natural defense away from the slave is a specific allusion to this provision. In any case, Montesquieu makes this point explicit in book 26, as we shall see. Saunders comments on this passage that for Plato “the killer of a non-slave is more unjust than the killer of a slave; adikia is measured in a precise social context” (Plato’s Penal Code, 228). 43. Saunders too notes that the Athenian “law regarded the slave as more than a piece of property,” but surmises that the penalty for murdering a slave could not have been death because he finds that Athens did not exact capital punishment even for the murder by a citizen of a noncitizen free man (Plato’s Penal Code, 240). 44. His quotation clearly derives from 869d where the Athenian Stranger declares that “if a slave should kill a free man in self-defense, he is to be liable to the same laws as the man who kills his father” (Laws, 264). See Plato’s Penal Code, 346n33, where Saun-

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ders comments specifically on this provision of Plato: “The slave is certainly to die; but if we may argue ex silentio that he is not to be executed ‘privately’, perhaps it is the fact of self-defence that has earned him the exemption. (Some comfort.)” 45. Just earlier, the Stranger decreed: “Let the punishment be death for him who kills his father or mother out of spirited anger” (Plato, Laws, 264 [869c]). 46. For an interpretation of the significance of this particular right in Montesquieu’s thought, see Zuckert, “Natural Rights and Modern Constitutionalism,” 46–49, and “Natural Law, Natural Rights, and Classical Liberalism,” 247–48. 47. Of course, the bestowal of absolute power on a magistrate hardly accords with Montesquieu’s teaching that specifically warns that “it has eternally been observed that any man who has power is led to abuse it; he continues until he finds limits” and that “[d]emocracy and aristocracy are not free states by their nature” (11.4, 155). 48. In the Persian Letters, Usbek speaks against laws that punish suicide (152–53 [letter 76]). Cf. letter 77, which was added in the 1754 edition, and My Thoughts, 565–66 (pensée 1890). Montesquieu’s treatment of suicide in The Spirit of the Laws, which occurs in the chapter entitled “On laws against those who kill themselves” (14.12), was censured by the Faculty of Theology of the University of Paris. 49. Elsewhere Montesquieu refers to specific Roman laws that were “not among those laws brought back by the deputies sent to the Greek towns” (27, 522), which suggests, of course, that he understands other Roman laws as coming from these Greek towns. 50. Plutarch, “Lycurgus,” Lives, 1: 66. 51. See Plato, Republic 459a–c, see also 451d–e. Plato’s imagery seems to have influenced Plutarch’s depiction of Lycurgus. 52. Cicero’s claim in a passage to which Montesquieu directs his reader when speaking of speculation (23.21, 448n102) is apropos of this discussion: “And not only while present in the flesh do [philosophers] teach and train those who are desirous of learning, but by the written memorials of their learning they continue the same service after they are dead” (Cicero, De Officiis, 159 and 161 [1.44]). 53. Cf. Saunders, who writes of Plato’s Laws: “to judge from the sheer amount of space Plato devotes to these two subjects [penology and a penal code], he regards them as of central importance to the entire enterprise” (Plato’s Penal Code, 1). This aspect of Montesquieu’s treatment of Plato is underscored by a portion of the entry on Plato in Richer’s index: “Vouloit qu’on punît un citoyen qui faisoit le commerce”; “Vouloit qu’on punît de mort ceux qui recevroient des presents pour faire leur devoir”; and “Dans quel cas il vouloit que l’on punît le suicide” (OC 2: 1730–31).

CHAPTER SIX 1. Vile, Constitutionalism and the Separation of Powers, 84. See also Lowenthal, “Montesquieu and the Classics,” 259; Mansfield, Taming the Prince, 215; Rahe, Montesquieu and the Logic of Liberty, 277. 2. Montesquieu attests to this himself in his Pensées: “One must reflect upon Aristotle’s Politics and the two Republics of Plato, if one wants to have an accurate idea of Greek laws and mores” (My Thoughts, 404 [pensée 1378]).

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3. For Aristotle’s caution on innovation, see Politics 2.8, 1268b23–1269a29. But compare Montesquieu’s statement: “Human laws, on the other hand, gain advantage from their novelty, which shows the legislator’s particular and present attentiveness to their observation” (26.2, 495). 4. Mosher, “Monarchy’s Paradox,” 161. Of recent commentators, perhaps GoyardFabre finds the greatest similarity between the thought of Aristotle and that of Montesquieu. See, for example, La philosophie du droit de Montesquieu, 97–105. 5. In interpreting this passage, Manin offers an instructive account of the differences and similarities in the role of prudence between the thought of Montesquieu and the thought of Aristotle (“Montesquieu et la politique moderne,” 193–97). 6. In this regard, see the section “Montesquieu’s Recommendation of the Milieu and Challenge to Machiavelli’s Extremes” in chapter 1 above. 7. Nicomachean Ethics 2.6, 1107b35–1107a8. Radasanu argues that although Montesquieu encourages this comparison, the bases of their appeal to moderation are quite different (“Montesquieu on Moderation, Monarchy, and Reform,” 286). 8. Aristotle, Politics 2.7, 1267a10–11. 9. Ibid., 7.7, 1327b23–32. 10. See 14.2. Montesquieu cites Aristotle only twice in his book devoted to climate, and both references appear in chapter 10 relating to the consumption of wine in various climates. 11. In My Thoughts, 183 (pensée 546), Montesquieu refers to Aristotle as Alexander’s tutor. Montesquieu’s particular source for Alexander’s relationship with Aristotle in The Spirit of the Laws (see 10.14, 149n15) declares that Aristotle tutored the young Alexander: “the equipment that [Alexander] had from Aristotle his teacher when he crossed over into Asia was more than what he had from his father Philip” (Plutarch, On the Fortune or the Virtue of Alexander, 391). Modern scholarship has questioned this traditional association, which is not contemporaneous with events. See, for example, Chroust, “Was Aristotle Actually the Chief Preceptor of Alexander the Great?” 12. I have modified the translation. 13. Aristotle, Politics 1.1, 1252a1–14; Complete Works, 2: 1986. 14. Plato, Statesman 258e–259c. 15. Aristotle, Politics 2.1, 1261a6–10; Complete Works, 2: 2001. 16. Aristotle, Politics 2.2, 1261b6–9; Complete Works, 2: 2001–2. 17. Plato, Republic, 153 (473c–d). See also Socrates’s comment: “We were not seeking them for the sake of proving that it’s possible for these things to come into being” (152 [472d]). 18. Aristotle ends his critique of Plato’s Republic with the intriguingly ambiguous statement: “The Republic of which Socrates discourses has all these difficulties, and others quite as great” (Politics 2.5, 1264a23–25; Complete Works, 2: 2006). Perhaps Aristotle includes the philosopher-kings in these additional difficulties that are as great as the others he has chosen to discuss. 19. Aristotle, Politics 2.6, 1265a38–1265b17; Complete Works, 2: 2008. Aristotle reiterates this criticism elsewhere: “But those who make such laws should remember what they are apt to forget—that the legislator who fixes the amount of property should also fix the number of children; for, if the children are too many for the property, the laws must

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be broken” (Politics 2.7, 1266b7–14; Complete Works, 2: 2009). He also criticizes Sparta’s legislator for not limiting population enough at 2.9, 1270b1–6. 20. Pangle comments on Montesquieu’s “seemingly malapropos” praise of Alexander in book 10 (Theological Basis of Liberal Modernity, 120). 21. Cf. Volpilhac-Auger (“Montesquieu et l’impérialisme grec,” 58), who suggests that Montesquieu should credit Aristotle for the moderation that Alexander exemplifies. The passage from Plutarch, to which Montesquieu refers, reads: “For Alexander did not follow Aristotle’s advice to treat the Greeks as if he were their leader, and other peoples as if he were their master; to have regard for the Greeks as for friends and kindred, but to conduct himself toward other peoples as though they were plants or animals; for to do so would have been to cumber his leadership with numerous battles and banishments and festering seditions” (329b–c; quoted from On the Fortune or the Virtue of Alexander, 4: 397–99). This passage appears as a fragment, F 658, in Aristotle, Complete Works, 2: 2460. But contrast Aristotle, Politics 1.6, 1255a21–40. 22. Larrère offers these comments regarding Alexander’s place in book 21: “Alexander is the conqueror who unites rather than separates. This reversal of the traditional image displaces Alexander from the domain of heroic and warlike virtues toward that of commerce. Thus, there is a real subversion of the myth of conquest which upsets the habitual references. Here from the depths of antiquity arises the exemplary figure of modernity” (“Montesquieu et l’histoire du commerce,” 324; my translation). See also Larrère, “Montesquieu on Economics and Commerce,” 354. Volpilhac-Auger similarly emphasizes how Montesquieu’s depiction of Alexander highlights a revolution in the world and places modernity in antiquity (“Montesquieu et l’impérialisme grec,” 49, 53, 55, 56, and 58). 23. See Pangle’s discursus on the importance of Alexander in Montesquieu’s thought (Theological Basis of Liberal Modernity, 120–24). “Montesquieu does not envisage, or even hope for, a new Alexander; what he conjures up instead is a dramatically different, and more lasting, version of the Alexandrian dream of a commercial union of East and West, now dominated by a liberal and liberalizing Europe—most obviously distinguished morally from even the enlightened Alexander by the struggle to limit or abolish slavery” (124). 24. On Montesquieu’s views on how contact with others enlarges one’s ideas see his “Essay on Causes Affecting Minds and Characters,” 435–45. 25. Aristotle, Politics 1.13, 1260a33–37; Complete Works, 2: 2000. I derive the Greek from the Loeb Classical edition, 64. I follow the suggestion here of the editors of the English translation of The Spirit of the Laws in locating Montesquieu’s reference. Caillois in OC suggests chapter 3 of book 1, but that particular chapter contains no discussion of virtue. 26. Shklar summarizes: “He had no doubt that slavery was absolutely evil. It degrades the slave and demoralizes the master” (Montesquieu, 96). See also Richter, Political Theory of Montesquieu, 10, 59, and 97–98. Cf. Rasmussen, Pragmatic Enlightenment, 67–99. 27. The Spirit of the Laws was “the first vigorous and concentrated attack on slavery in the eighteenth century” in French, according to Seeber, Anti-Slavery Opinion in France, 16. Seeber quotes Dupont de Nemours, who wrote in 1771: “‘Montesquieu, whose successive tracts, rapid and brilliant seem like flaming arrows, was the first to attack with ridicule the pretended reasoning, not less absurd than atrocious, that the op-

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pressors of the blacks used to excuse their slavery’” (106; my translation). Commentators on Montesquieu’s opposition to slavery have emphasized how deeply engrained the acceptance of black slavery was in French society before, during, and after Montesquieu’s lifetime, and thus how Montesquieu’s many objections and arguments were largely discordant with the tenor of his times. The black slaves of the French West Indies were critical to the French economy because they cultivated the sugarcane and kept the sugar mills running. It was widely believed that this key commodity could not be produced without slavery. See Jameson, Montesquieu et l’esclavage, 55. Hunting describes the situation for a writer who opposed these practices: slavery “was a long-standing official policy of the French government and of its absolute monarch, who derived substantial benefits from slave trade and slavery in the colonies. The sinister lettres de cachet, the shadows of the Bastille or Vincennes prisons and vigilant censorship threatened any opponent of governmental authority” (“Philosophes and Black Slavery,” 406). In this atmosphere, book 15 of The Spirit of the Laws stands out as a courageous denunciation and satire of the institution, which was to have a decisive effect on the antislavery movement in France. Its arguments were explicitly used by the antislavery author Louis de Jaucourt in his articles “Esclavage” and “Traite des nègres” in the Encyclopédie (Hunting, “Philosophes and Black Slavery,” 407, 410–11, 415–16; Jameson, Montesquieu et l’esclavage, 345–47; and Seeber, Anti-Slavery Opinion in France, 61–62). Jameson concludes: “In general, Montesquieu powerfully contributed to modifying the moral ideas of generations of posterity, and in particular the great writer inaugurated this evolution of public opinion, which, one hundred years later, brought the abolition of slavery in all the possessions of France” (347; my translation). For the influence of Montesquieu’s ideas on the antislavery movement in Britain, see Fletcher, Montesquieu and English Politics, 228–38. 28. Contemporary scholars of Aristotle such as Wayne Ambler and Thomas L. Pangle also point to the inadequacy of Aristotle’s arguments for the naturalness of slavery. These scholars proceed, however, to argue that Aristotle is keenly aware of their inadequacy and that through them he impugns the type of slavery that the Greek cities practiced. See Ambler, “Aristotle on Nature and Politics,” and Pangle, Aristotle’s Teaching, 42–51. 29. He echoes this statement in his Pensées where he declares: “Slavery is contrary to natural right, by which all men are born free and independent” (My Thoughts, 58 [pensée 174]). 30. Schaub, “Montesquieu on Slavery,” 74. 31. Montesquieu’s placement of responsibility on the legislator for overcoming laziness in a population is very much akin to Machiavelli’s call to the founder to overcome “idleness” (ozio) with laws (Discourses, 8 [1.1]; Discorsi, 78). Orwin, “‘For Which Human Nature Can Never Be Too Grateful,’” 274. 32. Aristotle, Politics 1.2, 1252b32–35; Complete Works, 2: 1986–87. 33. Aristotle, Politics 1.5, 1254b15–21; Complete Works, 2: 1990. 34. Aristotle, Politics 1.6, 1255a25; Complete Works, 2: 1991. 35. Aristotle, Politics 1.5, 1254b21–22; Complete Works, 2: 1990. 36. Aristotle, Politics 1.6, 1255b12–14; Complete Works, 2: 1992. 37. Aristotle, Politics 1.8, 1256b21–25; Complete Works, 2: 1993–94. The Greek derives from the Loeb Classical edition, 36. 38. In the Nicomachean Ethics, Aristotle notes that virtue “is concerned with pas-

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sions and actions,” and it is only “on voluntary passions and actions [that] praise and blame are bestowed” (3.1, 1109b30–33; Complete Works, 2: 1752). 39. Shklar, Montesquieu, 96. 40. Aristotle Politics 1.7, 1255b35–37; Complete Works, 2: 1992. 41. It is here that Montesquieu contrasts Sparta with Athens, a commercial republic, and notes that Solon prescribed that its citizens have an occupation and earn their own living. For Montesquieu’s other criticisms of Sparta’s treatment of its slaves, see 15.17 and the discussion in the section “The Legislative Genius of Lycurgus and Plato” in the prior chapter. 42. Aristotle, Politics 2.9, 1269b1–12. 43. Aristotle, Politics 7.10, 1330b24–33; Complete Works, 2: 2111. 44. Montesquieu is not conveying Aristotle’s argument entirely faithfully. What Montesquieu refers to in Aristotle’s writing as “republics,” Aristotle refers to as democracies. Lowenthal too recognizes Montesquieu’s change in terms (“Montesquieu and the Classics,” 285n13). The change does have important implications because Aristotle categorizes democracy as a deviant regime. (This distinction of Aristotle will be discussed in the next section.) Therefore, for Aristotle these farming democracies are the best among the deviant regimes ruled by the many, not the best among all republics simply, which would include the best of the regimes ruled by the few (aristocracy) and by the many (polity). 45. Aristotle, Politics 6.4, 1318b5–25; Complete Works, 2: 2093. 46. Aristotle, Politics 3.5, 1278a201; Complete Works, 2: 2028. I derive the Greek from the Loeb Classical edition, 246. 47. Aristotle, Politics 3.5, 1278a6–9; Complete Works, 2: 2028. 48. Compare chapter 1 above. 49. Schaub, “Montesquieu on Slavery,” takes note of this “explicit criticism of Aristotle” (70). Cf. Mosher, “Monarchy’s Paradox,” 161. 50. Aristotle, Politics 3.6–7. 51. Aristotle, Politics 3.14, 1284b36; Complete Works, 2: 2039. 52. Schaub, “Montesquieu on Slavery,” 70. 53. On this topic, see also the section “Montesquieu’s Treatment of Sole Rule and the Ballasts to Power in the Political Realm” in chapter 2. 54. Aristotle, Politics 3.13, 1284a25–34; Complete Works 2: 2038–39. I have corrected the translation of the Greek here. See also 3.10, 1281a29–39. 55. Although in this chapter Montesquieu so clearly invokes his own nation’s past by using the first person plural, he also points more subtly to the England of his age. He announces at this chapter’s outset his interest in a “government founded on a body of nobility” and in a “government founded on a legislative body formed of representatives of a nation” (11.8, 167). Of course, the French parlements were not legislative bodies and the Estates General, which were, were inactive during Montesquieu’s lifetime. Certainly, England is the outstanding example of such a government in which representatives, both of the nobility and of the common people, make law. Moreover, he declares two chapters earlier that “the English have taken their idea [l’idée] of political government from the Germans” (11.6, 166; OC 2: 407). 56. Many scholars have noted that the famous chapter 6 on England takes a rather idealized perspective. It does not provide proper names for the various institutions and

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speaks in generalities. In fact, the only time the word England appears in this discussion is in the chapter title. See, for instance, Mansfield, Taming the Prince, 230; Rahe, Montesquieu and the Logic of Liberty, 54; Vile, “Montesquieu,” 93. Perhaps this quality of the chapter points to the manner in which Montesquieu turns the practice of England into theory. 57. Carrese perceptively links the two elements of this chapter: Montesquieu “criticizes both classical political philosophy and Christianity for an unrealistic concern with virtue precisely in the chapter where he rejects ‘machiavélisme’ in favor of ‘moderation in councils.’ . . . By linking lowered moral expectations with a criticism of political brutality, Montesquieu adapts Machiavelli’s orientation by interest to a moderation of both the ends and means of Machiavellian man” (“Machiavellian Spirit of Montesquieu’s Republic,” 135). For the classic analysis of how modern thought transformed some of the passions into interests that would benefit society and humanity more generally, a transformation in which both Machiavelli and Montesquieu play critical roles, see Hirschman, Passions and the Interests. 58. For the English context see Roth, History of the Jews in England, and for the French see Chazan, Medieval Jewry in Northern France. 59. See Herman, Medieval Usury, 23–24. See also Aquinas, Summa theologiæ 2.2, q. 78, art. 1: “is it a sin to make a charge for lending money, which is what usury is?” (38: 233). John T. Noonan Jr. introduces his work The Scholastic Analysis of Usury with the acknowledgment that in the current age “we find it impossible to imagine that usury could once have been defined as ‘profit on a loan,’ and that the vice of usury could have implicated every part of Western society, and that concern with his culpability of it could have plagued every European businessman and landowner” (1). 60. Grayzel, Church and the Jews in the XIIIth Century, 43–45 and n. 15. 61. In My Thoughts, 646–47 (pensée 2154), he writes of the discovery of the principles of the Scholastics in the writing of Aristotle: “I couldn’t get over my astonishment when, in reading Aristotle’s Politics, I found all the theologians’ principles on usury, word for word. I thought they had put them there. I talked about it in the Spirit of the Laws. But these gentlemen do not like it when their sources are revealed; their sources are unknown to them themselves, just as the source of the Nile used to be unknown. They made quite an outcry over that.” His reference to the outcry that these gentlemen made is clearly to the fact that the Sorbonne censured this chapter. I will examine that controversy below. 62. Passages from the Nicomachean Ethics do not censure usury as extensively, although a couple of passages were cited in support of the condemnation of usury (4.2, 1121b30–1122a7; Complete Works, 2: 1770, and 5.5, 1133a19–32; Complete Works, 2: 1788). 63. Aristotle, Politics 1.9, 1257a27–30; Complete Works, 2: 1994. 64. Aristotle, Politics 1.9, 1257b10–24; Complete Works, 2: 1995. Cf. 4.6, 39 and its treatment in the section “Plato and the Singular Institutions of the Ancient Republics” in the prior chapter. 65. Aristotle, Politics 1.9, 1257b38–1258a2; Complete Works, 2: 1996. 66. Aristotle, Politics 1.10, 1258b2–9; Complete Works, 2: 1997. In the following chapter Aristotle notes that what was said in the two preceding chapters was related to knowledge, and then proceeds to discuss “what relates to practice.” This subsequent chapter shows how the acquisition of an excess can be necessary to both cities and households.

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67. In speaking of the English context in particular, Chazan underscores that the “pressure on the king’s Jews” to pay ever greater sums to the treasury “necessarily translated into Jewish pressures on Christian debtors. When money had to be produced, it could only be realized by squeezing those in debt to the Jews. Thus, such tallages were doubly disastrous. They impoverished the Jews, while at the same time intensifying popular animosity toward them” (Jews of Medieval Western Christendom, 162). 68. Montesquieu refers to Philippe le Long in one other context in the work. That reference also notes his treatment of the Jews: “Under the reign of Philip the Tall, the Jews were run out of France, having been accused of allowing the lepers to pollute the wells. This absurd accusation certainly should cast doubt on all accusations founded on public hatred” (12.5, 193). See also my introduction and chapter 3 above for consideration of Montesquieu’s additional treatments of Europe’s persecution of the Jews. 69. In Considerations on the Causes of the Greatness of the Romans and Their Decline, Montesquieu declares: “Great enterprises cannot be accomplished without money, and merchants have been in control of money since the invention of letters of exchange” (199 [chap. 21]). 70. Orwin, “‘For Which Human Nature Can Never Be Too Grateful,’” 272–75. See Hirschman’s examination of this facet of Montesquieu’s argument in Passions and the Interests, 71–74. 71. Montesquieu places the names of the French kings in a footnote, whereas he discusses the English kings by name in the body of the text. 72. Noonan, Scholastic Analysis of Usury, 46. 73. That Montesquieu had Aquinas in mind as the Scholastic responsible for the harm he recounts in 21.20 is corroborated by his response to the Faculty of Theology when it censured passages in this chapter. Montesquieu’s response focuses particularly on Aquinas’s use of Aristotle and at one point says, “When one chose a Scholastic as respectable as Saint Thomas, it is no longer necessary to speak of others” (OC 2: 1185; my translation). 74. Contrary to his normal practice, Montesquieu furnishes in his notes to this chapter several years as guideposts to his readers. Four times he associates the passage of strictures aimed at the Jews with particular years, and all four occur in the first third of the thirteenth century (1206 [twice], 1228, and 1231). Aquinas wrote his first work touching on usury in the period 1254–56. In it, he refers not to Aristotle’s Politics but rather to Aristotle’s discussion of the origin of money in book 5 of the Ethics (Noonan, Scholastic Analysis of Usury, 51–52). There were no early translations of the Politics into Latin as there were for other works of Aristotle that had been translated from Arabic versions. William of Moerbeke worked to translate the ancient’s entire Greek corpus into Latin, and he finished the first Latin translation of the Politics around 1260 (Koebner, “Despot and Despotism,” 278; Langholm, Economics in the Medieval Schools, 170). Aquinas in the Summa theologiæ draws on the Politics for his condemnation of usury: “Aristotle, following natural reason, said that making a profit out of lending money is absolutely contrary to nature” (38: 237 [2.2, q. 78, art. 1]; emphasis in original). This belongs to the later period of his life (1268–72), as do all the works that contain his “chief argument against usury” (Noonan, Scholastic Analysis of Usury, 51 and 53). 75. For example, the Council of Nicaea in 325 had forbidden members of clergy to

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take interest on loans (Herman, Medieval Usury, 23–24). The Second Lateran Council in 1139 issued a general decree that usury was a sin (Noonan, Scholastic Analysis of Usury, 180). The first secular prohibition against usury in medieval Europe belonged to Charlemagne and banned usury to laymen as well as to clergy (Noonon, Scholastic Analysis of Usury, 15). Noonan points out that “the medieval position [on usury] was well established long before Aristotle was known in Western Europe” (Scholastic Analysis of Usury, 12). 76. Innocent III (1198–1216), “On Usury.” The Third Council of the Lateran, held in 1179 during Alexander III’s reign as pope, also appealed to both the New and Old Testament. Pope Urban III (1185–87) cites the passage from Luke in support of the prohibition on usury, and “for the first time in the entire tradition, a specific command of Christ is authoritatively interpreted” for this purpose (Noonan, Scholastic Analysis of Usury, 19–20). 77. Although, for Montesquieu, the barbarism in Europe was quelled by the advent of letters of exchange, usury was still widely condemned after this point. Secular rulers in the sixteenth century, such as King Henry VIII, took the step of allowing interest on commercial loans. Catholic France, however, was an exception to this process of liberalization. Indeed, Louis XIV extended the prohibitions that then existed in France, and the French prohibition on interest was not eradicated until 1789. Böhm-Bawerk, Capital and Interest, 1: 27 and 33. 78. The two passages are: “Les Scolastiques s’en infatuèrent (de la philosophie d’Aristote) et prirent de ce philosophe leur doctrine sur le prêt à intérêt; ils le confondirent avec l’usure et le condamnèrent”; and “Nous devons aux speculations des Scolastiques tous les malheurs qui ont accompagné la destruction du commerce” (OC 2: 1183–84). 79. He asserts in his response that “it is certain that the rigidity of the Scholastics was very great” (OC 2: 1187; my translation). 80. Cf. Pangle, Montesquieu’s Philosophy of Liberalism, 5. 81. For the Old Testament, see particularly Exodus 22: 25; Ezekiel 22: 12; Leviticus 25: 35–37; and Deuteronomy 23: 19–20. Montesquieu elsewhere suggests there is reason for dissatisfaction with Jewish laws: “When the divine wisdom said to the Jewish people, ‘I have given you precepts that are not good,’ this meant that the precepts were only relatively good, which sponges away all the difficulties one can propose about the Mosaic laws” (19.21, 322). I thank Nathaniel Gilmore for the insight of the applicability of this reference to this particular context. See Chazan’s discussion of the use of Deuteronomy by Christians who condemn Jews for charging Christians interest (Medieval Jewry in Northern France, 45 and 83). 82. For the importance of this passage, see Noonan, Scholastic Analysis of Usury, 19–20. Cf. Aquinas, Summa theologiæ, 28: 233 and 239 (2.2, q. 78, art. 1); and Langholm, Economics in the Medieval Schools, 238. 83. The Catholic Encyclopedia expresses this view: “In the Christian era, the New Testament is silent on the subject [of usury]; the passage in St. Luke (vi, 34, 35), which some persons interpret as a condemnation of interest, is only an exhortation to general and disinterested benevolence” (Vermeersch, “Usury,” in Catholic Encyclopedia). 84. Barrera, Les lois du monde, 253. 85. OC 2:1187; my translation. See Manent, City of Man, 210n45.

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86. According to Carrese, “[o]ne price for eschewing teleology is that Montesquieu’s philosophy resembles, at moments, Machiavelli’s reductive realism” (“Montesquieu’s Complex Natural Right,” 239).

CONCLUSION 1. For his references to this chain of reasoning in the work that helps to obscure his meaning, see also OC 2: 1197 and OC 2: 1161 as well as “The Chain of the Work” in the introduction above. 2. I thank Cody Valdes for this particular formulation. 3. Orwin, “‘For Which Human Nature Can Never Be Too Grateful,’” 270–71. 4. Ibid., 272. Radasanu acknowledges this similarity, but understands Montesquieu as “giv[ing] the lion’s share of credit to commerce” (“Montesquieu on Moderation, Monarchy, and Reform,” 297). 5. Cf. Manent, City of Man, 40–41 and 45. In Manent’s view, the fact that “commerce,” on Montesquieu’s presentation, “is only indirectly linked to his nature” explains what the interpreter regards as “the authority Montesquieu gives to the present moment, to history” (46). 6. See, for example, Manent, City of Man, 42–45. See also Pangle, Theological Basis of Liberal Modernity, 113–14 and 133, and Rahe, Montesquieu and the Logic of Liberty, 182–84 and 148. 7. Both Volpilhac-Auger and Larrère take notice of Montesquieu’s peculiar treatment of Alexander in The Spirit of the Laws. Volpilhac-Auger, in “Montesquieu et l’impérialisme grec,” notes that it is different from that of his Pensées or Consideration on the Causes of the Greatness of the Romans and Their Decline (52 and n. 15). She comments: “Alexander is thus above all the instigator of a veritable revolution in the manner of conceiving of the world” (53); and “Such is the paradox of Montesquieu’s depiction of modernity: it arises from the depth of antiquity, inciting the readers of today just as those of yesterday to question the idea of progress in politics supported by history (58; my translations with assistance from Zachary Shufro). Larrère, in “Montesquieu et l’histoire du commerce,” observes: “But it is Alexander, above all, who is the pivot of the changing perspective. . . . Montesquieu actually creates a paradoxical conqueror whose conquests had as their objective the establishment of trade relationships (and not only those made from the commerce that follows in the wake of his power). . . . Alexander is the conqueror who unites rather than separates (324; my translations). 8. See my introduction above. 9. As should be clear by the end of this concluding section, it appears to me that when he admits his audacity in these two instances with the formulation “si j’ose,” he is simultaneously acknowledging that he is referring to his hopes for his own enterprise (OC 2: 381 and 387). This formulation is not only an acknowledgment of his presumption, but also an expression of his humility because he so politely acknowledges that presumption. 10. Engels, “Alexander the Great,” 15. See Stoneman, Introduction: “Each succeeding version makes more of Alexander’s relation to God, his dependence on and trust in ‘Providence above’, and his eventual submission to . . . divine commandment” (22).

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11. Cf. Rahe, Montesquieu and the Logic of Liberty, 184. At points, both Rahe and Pangle offer assessments of Montesquieu’s view of the redemptive role of commerce in the history of Europe that are more optimistic than the understanding that emerges from my interpretation. See also, for example, Rahe, Montesquieu and the Logic of Liberty, xxi, 57, 148, 174; Pangle, Theological Basis of Liberal Modernity, 93, 108–9. By no means does the interpretation I offer here deny many of their findings, particularly the beneficial transformation that Montesquieu ascribes to commerce. Nevertheless, it highlights the many ways in which contemporary European society, even after the advent of commerce, remains susceptible to despotic political practices. 12. Of course, such a reinterpretation could be seen as its destruction: “one does not succeed in detaching the soul from religion by filling it with this great object, by bringing it closer to the moment when it should find religion of greater importance; a more certain way to attack religion is by favor, by the comforts of life, by the hope of fortune, not by what reminds one of it, but by what makes one forget it” (25.12, 489). 13. On Montesquieu’s depiction of the effect of commerce on barbarism, see Orwin, “Montesquieu as the Heir of Christianity,” 273. 14. See Orwin, “‘For Which Human Nature Can Never Be Too Grateful’”: “With Montesquieu Christianity shades into post-Christianity, or, as he would put it, humanity. And humanity itself comes to sight as at the same time a repudiation of Christianity and its consummation” (269). 15. For Barrera, Montesquieu rejects the project of “an absolute and perpetual peace” (Les lois du monde, 455; my translation). Binoche contrasts Montesquieu’s rejection of a universal history with Bossuet’s Christian teleological notion of such a history (Introduction, 82–87). 16. In depicting Montesquieu’s thought as ultimately formulating “the mother and sum of all successions, which is History,” Manent entirely neglects Montesquieu’s assertions of the role that founders and their reason can play in history and fails to mention the philosopher-legislators of 29.19. See also Pangle, Montesquieu’s Philosophy of Liberalism, 190–91. My interpretation of Montesquieu’s understanding of history is much more akin to that of Carrithers’s presentation, which highlights the role that great political figures can play in history in Montesquieu’s view (“Montesquieu’s Philosophy of History,” see particularly 72–80). Carrithers’s article, though, does not treat The Spirit of the Laws in any detail, and thus also does not treat the role of great philosophers. 17. See 12.2: “La liberté philosophique consiste dans l’exercice de sa volonté” (OC 2: 431). 18. Rahe, Montesquieu and the Logic of Liberty, 198. 19. Shklar declares that the “politics of fear remained” Montesquieu’s “supreme enemy” (Montesquieu, 69). For her general description of a type of liberalism that takes its guidance from its repugnance for the worst political possibilities, see “Liberalism of Fear.”

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index

accusations (criminal), 34–36, 39, 207–8, 247n74 adultery, 89–90, 117–22, 132–34, 152–53, 247n74. See also gender; law; marriage Agathias, 115 Albert the Great, 199–200 Albigensian heresy, 103 Alexander III, 196, 264n76 Alexander VI, 24 Alexander the Great, 12, 121–22, 135, 170, 176–79, 187, 204, 210–13, 242n16, 258n11, 259n22 Ambler, Wayne, 260n28 Antonines, 114 Aquinas, Thomas, 199–200, 202, 263nn73–74 Arcadius, 120–22, 250n21 Arendt, Hannah, 222n25 Arezzo (city), 42–43 Arianism, 113–15, 248n8 Aristotle: Alexander and, 12, 135, 187, 212– 13, 258n11; despotism definition and, 237n40; as legislator, 11, 13, 135–37, 169–72, 215–16; monarchy and, 188–94; on monetary policy, 172; passions of, 170–74, 176–79; Plato’s relationship to, 135–36, 170, 172–76, 204, 258n18; Scholastics’ rediscovery of, 13–14, 18, 136–37, 172, 195–204, 262n59, 262n61; slavery and, 170–72, 178–88, 208–9, 260n28. See also specific works Art of War, The (Machiavelli), 45–46 Assyrians, 81 Athenian Stranger, 143, 157–58, 160, 174, 255n32, 256n42, 256n44, 257n45

Athens, 12, 135, 140–48, 160, 165, 169, 171, 193–94, 208, 211. See also Aristotle; commerce; Plato Augustine, Saint, 51, 251n30 Augustus Caesar, 90, 112–13, 117–19, 121, 124–25, 130, 249n14 avenging God, 10, 78–79, 83, 101–3, 109, 121 Bactrians, 3, 177–79, 212 Baglioni, Giovampagolo, 44 Barckhausen, Henri Auguste, 228n31 Barrera, Guillaume, 240n71, 244n33, 266n15 Basil (emperor), 202 Bayle, Pierre, 236n38 Beccaria, Cesare, 223n39 Beiner, Ronald, 243n21 Bellarmine, Robert, 107 Bertière, André, 224n3, 224n5 Bibliothèque des auteurs ecclésiastiques (Dupin), 130 Binoche, Bertrand, 61, 240n67 Boesche, Roger, 239n64 Borgia, Cesare, 12, 23–24, 28–29 Bossuet, Jacques Bénigne, 52 Bruno, Giordano, 107 Brutus, 38–41, 47, 225n7, 226n8, 230n51 Buddhism, 124, 251n23 Byzantine Empire, 104, 114–16, 196–97, 203 Calvin, John, 107–8 capital punishment, 41–49, 62, 104, 167–68 Carrese, Paul, 225n6, 245n48, 262n57 Carrithers, David W., 266n16 Carthaginians, 3, 145

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Cathar heresy, 245n52 Catholic Church: celibacy and, 112–13, 122– 34, 205, 252n39; emergence of, 113–16; Inquisition of, 10, 83–85, 91–95, 99–102, 244n29, 245n48, 246n56, 250n18; Montesquieu’s clashes with, 10, 16, 18, 50–51, 78–79, 84–85, 100, 108–10, 200–203, 245n50, 247n3, 262n61, 263n73. See also Aristotle; Christianity; law; Plato; religion; and specific institutions and people Cato (pseudonym), 225n8 celibacy, 112–13, 122–34, 205, 252n39 charity, 89, 137, 195, 200–201, 209–10, 214–15 Charles IX, 29–30 Chazan, Robert, 263n67 China, 1–2, 70, 90, 221n21, 237n43 Christianity: Alexander the Great and, 212– 13; Aristotle and Plato and, 13–14, 18, 136–37, 172, 195–204, 207–10, 262n59, 262n61; charity and, 89, 137, 195, 200– 201, 209–10, 214; equality of souls and, 77–78, 85–87, 209; internecine strife and, 23–25, 28–30, 67, 87–88, 213; judicial procedures and, 84–85, 92–93, 95–102, 108–9; law and, 12–13, 78–79, 81–85, 102–10, 116, 122–34, 244n29; liberatory effects of, 81–82, 85–91, 93, 109–10, 133–34, 209, 211, 243n23; Machiavelli on, 45–46; perfection’s pursuit by, 77–78, 81–82, 112–13, 122–34, 139–40; political power’s concentration and, 68–71; rights of nations and, 86–89, 133–34; Roman empire and, 81, 111–17, 124–34, 247n3, 252n37; slavery and, 77–79, 81, 86–87, 89, 137; softening of rulers under, 2, 77–79, 89–90, 98–99; treason and, 102–3, 117–22; usury and, 13–14, 172, 195–204, 214, 262n61, 263n75; violence in the name of, 10, 78–79, 83, 101–3, 109, 121. See also Catholic Church Chronicle (John Malalas of Antioch), 248n6 Cicero, 26, 257n52 Cinq-Mars (Henri Coiffier du Ruzé), 120, 250n21 citizens and citizenship: commerce and, 144– 49, 155–59, 261n41; under despotism, 180–81, 185, 187–88; fear and, 28, 31, 40–41, 47–49, 52–55, 60–66, 74–75, 121– 22, 140; ideals of, 221n15; judiciary structures and, 32–41, 141; liberty and, 24, 27, 37–41, 46–49, 52–53, 60–66, 72–76; militarism and, 146–49; Plato on, 139–40,

142–49, 254n14; reproduction laws and, 113, 122–34, 152–57, 165–66, 173–76, 205, 214–15, 239n66; slavery and, 159– 62, 242n13; virtue and, 140, 142–53 civil war, 20, 26, 73 Civil War (English), 54–55 climate theory, 122, 128–29, 160, 169–70, 209 Clovis, 115 colonialism, 3, 7, 157–58, 162–63, 175–79, 231n57, 242n16 commerce: Aristotle on, 137, 172, 195–204; Athens’s association with, 140–42, 145, 147–48, 261n41; despotism’s relation to, 8, 20–21, 34–35, 54, 136–37, 142, 144– 49; Hobbes on, 20–21, 72–76; letters of exchange and, 199–200, 210, 213, 264n77; moderation in, 169–70; Plato’s denigration of, 144–49, 155–56, 168; as softening force, 13–15, 26–27, 54–55, 155–59, 195– 96, 209–13, 222n37, 239n66, 266n11. See also Christianity; usury Committee of Public Safety, 9 commodious living, 51–55, 72–76 complacency, 72–76 Comte, Auguste, 219n1 concentration camps, 9 Congregation of the Index, 100, 245n50. See also Index of Prohibited Books Considerations on the Causes of the Greatness of the Romans and Their Decline (Montesquieu), 116, 208, 224n4, 236n31, 248nn6–8, 249n12 Constantine, 81, 96, 98–99, 111, 113–15, 130– 31, 252n37 constitutions, 68, 74, 116–17, 189–91, 198, 205 Corpus Juris Civilis (Justinian), 116–17, 119, 121, 166 corrections (to law), 12, 20, 48–49, 64–65, 85, 118, 142–43, 164–67, 216 corruption, 169–71, 193–94, 208, 211 Council of Nicaea, 115, 263n75 coups d’état, 26–32, 42, 49, 206, 227n19 Courtney, C. P., 220n5 Craiutu, Aurelian, 5, 15, 221n12, 234n15, 237n44 Crete, 12, 135, 141–49, 151, 156–57, 166–67, 254n9 Cryptia, the, 151, 153 d’Aubigné, Agrippa, 29–30 Decemvirs, 162–65, 232n72

index De Cive (Hobbes), 235n20 Defense of “The Spirit of the Laws” (Montesquieu), 16, 50–51, 76, 84–85, 95–96, 109 defensive force, 5, 8, 140–41, 159–62, 168 de’ Medici, Catherine, 28–29 de Orco, Remirro, 28 de Ruzé, Henri Coiffier. See Cinq-Mars (Henri Coiffier du Ruzé) despotism: absolute power and, 8, 20–21, 52–53, 66–71, 113, 140–41, 164–65, 190, 207–8, 216, 230n51, 233n9; as always already within Europe, 7–11, 15–17, 52, 54–55, 63, 65, 67, 93–95, 195–206, 233n9; Aristotle and, 170–72, 182–89; commerce’s relation to, 8, 20–21, 34–35, 54, 72–76, 136–37, 142, 144–49, 209–10; coups d’état and, 26–32, 42, 49, 206, 227n19; criminal penalties and, 17, 24–26, 60–66; definitions of, 7–11, 15, 237nn39–40; fear and, 28, 31, 40–41, 51–55, 60–66, 74–75; judiciary powers and, 10, 32–36, 78–79, 83–85, 101–3, 109, 121, 164–65; militarism and, 20–21, 74–75, 87–88, 146–51, 155–59, 166–67, 170–71; monarchical government and, 26–32, 188–94; Montesquieu’s disdain for, 2; Orientalism and, 2–4, 7–11, 54, 65, 70, 221n21; Plato and, 140–41; religious doctrines leading to, 8–9, 78–79, 84–85, 93–95, 117–22, 207–10, 214–15; resistance to, 30–31; Roman law and, 111–13, 133–34; slavery and, 65–66, 178–89; treason and, 46–49 Deuteronomy, 106–7, 111–12 Digest (Justinian), 116, 166–67 Discourses on Livy (Machiavelli), 24, 33–35, 39–45, 49, 224n5, 227n23, 230n51 Dissertation sur la politique des romains dans la religion (Montesquieu), 224n5 divorce, 127 Dominicans, 245n52, 246n56 Domitian, 65 Domville, William, 240n70 Du Halde, Jean-Baptiste, 251n23 Ecumenical Council of Ephesus, 113–14 education, 43–46, 81, 132, 140, 180–81 Edward I, 196 Egypt, 81 Ehrard, Jean, 99, 223n49 England, 23, 25–26, 37, 39–41, 54–55, 74, 196, 205, 237n43, 249n11, 261n55

283

Enlightenment, 4–7 Epirus, 194 Erasmus, Desiderius, 246n59 eugenics, 152–53, 165–66 eunuchs, 127 evidence (rules of), 108–9 Evrigenis, Ioannis, 236n34 families (politics as reflective of), 144–49, 152–59, 161–62, 172–75, 183 fear, 28, 31, 33, 40–41, 47–49, 51–55, 60–66, 74–75, 121–22 Florence, 43–45, 230n51 flourishing, 113, 122–34, 152–53, 156–57, 165–66, 173–74, 176, 205, 214–15, 239n66 forgiveness, 97–100 Four Gallican Articles, 70, 238n56 France: ancient laws persisting in, 5–6; Christianity’s liberations and, 81–83, 86, 89–91; despotism in, 17, 68–70, 195–204, 233n9; Huguenot massacres and, 14, 23–25, 29–30, 67, 196, 213, 227n21; Jews’ expulsion from, 104–5, 196, 263n68; marriage law and, 113; Revolution of, 9; Roman law remainders in, 132–34, 163, 167–68; slavery in, 259n26 Franco, Francisco, 9 François I, 28–29 Franks, 89, 98–99, 115 Frisians, 58 Gallicanism, 70, 238n56 gender, 81–82, 85–86, 89–91, 117–22, 143–45, 152–53, 157–59, 165–66, 243n26 General History of China (Du Halde), 251n23 Germania (Tacitus), 58 Germans, 6, 46, 58, 192 Ghebers, 124, 251n26 Gibbon, Edward, 250n21 Gilmore, Nathaniel, 234n16 Gordon, Thomas, 225n8 Goyard-Fabre, Simone, 234n12, 258n4 Gratian, 119 great men, 23–26, 31–34, 41–42, 48–49, 224n2, 255n21 Greeks: marriage laws and, 144–49, 152–59, 161–62, 172–75; militaristic republics of, 142–53, 155–59; reproductive policies of, 113, 122–34, 152–57, 165–66, 173– 76, 205, 214–15, 239n66; separation of powers under, 37–39; slavery under, 4–5,

284

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Greeks (continued) 8, 87, 137, 140–41, 150, 157, 159–62, 168, 170–72, 179–88; suicide laws and, 163– 64; virtue ethics of, 140, 142–59, 180–81, 184–85, 188–94. See also Aristotle; Athens; Crete; Plato; Sparta Gregory (pope), 130 Grosrichard, Alain, 9, 222n26 Harrington, James, 11, 13, 215–16 Helots, 151, 157, 185–86 Henri II, 29 Henri III, 30–31, 227n29 Henry VIII, 70–71, 156, 264n77 heresy, 78–79, 83–85, 91–92, 103, 105–10, 113–15, 133–34, 245n52, 246n59, 248n8 Histoire universelle (d’Aubigné), 29–30 History of the Sevarambians, The (Vairasse), 142 Hobbes, Thomas, 13–21, 23, 50–76, 84, 136– 37, 190, 206, 232n71, 235n20, 236n28 homosexuality, 103 honor, 67–68, 72. See also virtue Honorius, 120–22 Hulliung, Mark, 225n6, 233n9 human nature, 19–20, 55–60, 63–71, 124–34, 142, 179–90, 216 Hunting, Claudine, 259n26 Index of Prohibited Books, 84, 100. See also Congregation of the Index Innocent III, 103, 106, 112, 200–201 Innocent IX, 238n56 interest (lending at), 13–14, 26, 172, 195–206, 264n75, 264n81, 264n83. See also usury Islam, 10–11, 94, 124, 202, 241n4, 251n25 Japan, 1–4 Jews and Jewishness: expulsions of, 104–5, 196, 263n68; the Inquisition and, 10, 83, 91–94, 100, 102, 245n48, 245n52, 247n62, 250n18; Islam and, 241n4; letters of exchange and, 199–200, 210, 213, 264n77; property forfeitures of, 3, 31–32, 196; usury charges and, 13–14, 172, 195–204, 263n74 John, King, 198–200 John Malalas of Antioch, 248n6 Julian, 96–98, 113–14, 117, 121, 124–25 Julius II, 44, 226n18 juste milieu, 41–49. See also middle way, the; Montesquieu

Justinian, 111, 113–17, 119–21, 128, 131, 166, 206, 248n4, 249n12 Klosko, George, 220n11 knowledge (most important), 4–7, 60, 62–63, 101, 109–10, 207–10, 213–17 Krause, Sharon, 7, 71, 219n3, 222n26, 224n4, 238n46, 239n66 Kynaithes, 147 labor, 122–24, 147–48, 187 La Roche, Jacques de, 18, 84, 242n20, 253n41 Larrère, Catherine, 222n37, 259n22, 265n7 law: correction and perfection of, 12, 20, 48–49, 64–65, 85, 118, 142–43, 164–67, 216; criminal procedures and, 32–41, 84–85; despotism and, 7–8, 11–14, 17, 61–70; divine vs. human justice and, 10, 78–79, 83, 101–3, 109, 121; durations and resurrections of, 11–14, 162–68, 206, 213– 17, 249nn10–11; French, 132–34, 163, 167–68, 206, 249n10; human nature and, 19–20, 55–71, 124–34, 142, 179–90, 216; judiciary structures and, 32–36, 84–85, 164–65, 207–8, 228n35, 229n44; marriage and, 112, 124–34, 143, 154–59, 173–75, 254n9; natural, 1–2, 51, 55–60, 219n2, 233n4; passion and, 6–7, 12–15, 27–29, 52–60, 135–41, 149–50, 170–79, 197, 216– 17, 222n33; Plato on, 139–49; positive, 51–52; punishments and, 3–7, 15, 17, 37–49, 60–66, 103–4; religion and, 2–3, 13, 78–79, 81–85, 95–110, 117–24, 201–2, 246nn59–61, 247n62; Roman, 37–41, 103, 111–17, 162–68, 249n12; separation of powers and, 15, 33–41, 66–71, 113, 190–92, 207–8, 228n35, 236n28, 261n55; sovereignty and, 61–70; Spartan, 8, 135– 37, 142–53, 162–68; states of nature and war and, 50–66, 76; suicide and, 163–64, 166–67, 257n48 Laws (Plato), 11, 139, 141–51, 157–58, 160, 164, 167–68, 172–74, 185–86, 206 Le Gendre, Gilbert-Charles, 233n9 legislators: bad lawmaking by, 182–83, 209; correction impulses of, 12, 20, 48–49, 64–65, 85, 118, 142–43, 164–67, 216; the middle way and, 41–49; religious leaders as, 122–34; separation of powers and, 190–91; thinkers as, 11–14, 19–21, 30–31, 48–49, 135–37, 142–49, 154–59, 162–73, 175–76, 215–17; virtue’s creation

index and, 142–53. See also Aristotle; Hobbes, Thomas; Machiavelli, Niccolò; Plato; separation of powers Leo (emperor), 202–3 letters of exchange, 199–200, 210, 213, 264n77 Leviathan (Hobbes), 21, 52–53, 56–57, 63–65, 68, 71, 73, 206, 233n8, 235n20 Levi-Malvano, E., 224n4, 228n34, 230n48 Levin, Lawrence Meyer, 242n18, 255n24 Lex Julia, 124–25 Lex Papia, 124–25, 131 liberty: Christianity and, 78–79, 89–90, 109– 10, 209, 211, 243n23; commodious living and, 72–76; definitions of, 24, 37, 39–40, 52–55, 60–66, 121–22, 139–40, 214–17; England as exemplary in regards to, 37, 39, 41, 74–75, 205, 230n45, 261n55; Machiavelli on, 226n9; separation of powers’ protection of, 15, 32–41, 66–71, 113, 190–92, 207–8, 228n35, 236n28, 261n55; treason charges and, 46–49, 102–12, 117– 22, 228n35, 244n29 Life of Lycurgus (Plutarch), 142, 149–50, 158, 165–66, 206 Locke, John, 1–2, 219n2, 236n28 Louis XIII, 52, 86, 120 Louis XIV, 9, 52, 65, 67, 71, 156, 238n56, 264n77 Lowenthal, David, 228n34, 255n21, 261n44 Lycurgus, 12, 135, 139–43, 145–53, 158–59, 165, 167, 195, 207 MacDonald, Sara, 235n22 Machiavelli, Niccolò, 11–14, 18–36, 39–49, 65, 190, 204–6, 225n6, 228n31 magic, 103–5, 246n56 Magna Carta, 198 Manent, Pierre, 256n33, 266n16 Manin, Bernard, 220n11, 258n5 Mansfield, Harvey C., 230n52, 232n70, 253n2 marriage, 112, 114–15, 124–34, 143, 152–53, 156–59, 165, 173–75, 252n39, 254n9 Marseilles, 145, 211 Mazarin (cardinal), 65, 227n19 Mexico, 3–4, 7, 91, 242n20 middle way, the, 41–49, 62–63, 175–76 militarism, 20–21, 74–75, 87–88, 146–51, 155– 59, 166–67, 170–71 Ministry for State Security (East Germany), 9 Minos, 12, 135, 139–40, 142, 145, 148, 195, 207 monarchy: Aristotle on, 170–71, 188–94; despotism and, 26–32, 185, 188–94; in

285

England, 73–75; in France, 49, 52, 67–70, 113, 120; judiciary powers and, 207–8, 228n35, 229n44; rule of law and, 68–70, 189; separation of powers’ importance to, 15, 33–41, 66–71, 113, 190–92, 207–8, 228n35, 236n28, 261n55 monasticism, 122–24, 127–28 Montesquieu: Catholic Church’s censoring of, 10, 16, 18, 50–51, 200–203, 245n50, 247n3, 262n61, 263n73; commerce and, 8, 154–59, 195–98, 200–202, 214–15, 222n37, 266n11; critical project of, 3–4, 9–10, 14–18, 26–27, 205, 207–10; despotism and, 2, 7–11; great men and, 23–26, 31–34, 224n2, 255n21; historiography of, 211–17, 221n16, 266n16; on human nature, 19–20, 124–34, 181–90, 216; liberty and, 24, 32–37, 39, 46–49, 52–53; the middle way of, 41–49, 62–63; objectivity of, 1–4; religious views of, 84–85, 95–96; self-defense and, 159–62. See also Considerations on the Causes of the Greatness of the Romans and Their Decline (Montesquieu); Defense of “The Spirit of the Laws” (Montesquieu); despotism; law; Pensées (Montesquieu); and specific interlocutors More, Thomas, 11, 13, 215–16 Morrow, Glenn, 253n1 Mosher, Michael, 14, 222n25, 233n9, 243n26 music, 147–48 Muslims, 10–11, 94, 124, 241n4, 251n25 Mussolini, Benito, 9 My Thoughts (Montesquieu). See Pensées (Montesquieu) natural law, 1–2, 51, 55–60, 159–62, 168, 179– 88, 219n2, 233n4 Naudé, Gabriel, 227n19 Nelson, Eric, 254n4 Nicomachean Ethics (Aristotle), 169 Noonan, John T., Jr., 262n59 nourishment, 57 Novellae (Justinian), 116, 132 Numa, 242n13 Oceana (Harrington), 11 Of the Life and Actions of Justinian (Agathias), 115 On Crimes and Punishments (Beccaria), 223n39 Orientalism, 2–4, 7–11, 54, 65, 70, 221n21

286

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Origins of Totalitarianism (Arendt), 222n25 Otto di Guardia, 229n38 paganism, 96–97, 114–15, 200–201. See also Aristotle; Greeks; Plato; Rome Pangle, Thomas, 140, 222n22, 232n70, 241n4, 241n11, 243n23, 259n23, 260n28, 266n11 passions, 6–7, 12–15, 27–29, 52–60, 118, 135– 41, 170–79, 197, 216–17, 222n33 peace, 15, 20, 51–60, 63–73, 133, 209, 236n28, 237n43. See also commodious living Pensées (Montesquieu), 12, 143, 223n42, 232n71, 234n18, 240n70, 240n72, 243n22, 244n41, 248n4, 251n25 perfection (Christian), 12, 20, 48–49, 64–65, 85, 118, 122–43, 164–67, 216 Persia, 1–2, 65, 81, 115, 124, 179, 189 Persian Letters, The (Montesquieu), 14, 84, 222n26, 242n14, 249n10, 251n26 Perugia, 44 Pettit, Philip, 226n10 Phaleas of Chalcedon, 169 Philippe IV, 196 Philippe V (le Long), 104, 199, 263n68 Philippe-Auguste, 196, 199–200 Philolaus of Corinth, 169 Philopoemen, 153 philosopher-kings, 145, 173, 175, 254n13 Pistoia, 43–45 Plato, 195; absolute power and, 8, 140–41, 164; Aristotle’s jealousy of, 135–37, 170, 172–76, 204, 258n18; on Athenian law, 12, 135, 140–41, 155–56, 161– 62, 168, 211; Christianity and, 18; as legislator, 11–13, 135–37, 139–41, 144, 149–59, 162–68, 173, 215–16; marriage law and, 143, 172, 254n14; Roman law and, 163–68; Scholastics’ use of, 136– 37; singular institutions of, 141–53, 168, 186; slavery policies of, 159–62, 255n32, 256n44; Spartan law and, 8, 12, 135–36, 139–40, 142–53, 163–68, 206; on suicide, 163–64, 166–67. See also specific works Plesse, Pierre-Joseph, 84, 102 Plutarch, 86, 108, 146, 149–53, 158, 165–66, 177–78, 194, 206, 242n13, 259n21 Politics (Aristotle), 11, 169, 173–76, 181–89, 194, 237n40, 257n2, 262n61, 263n74 Portuguese Inquisition, 10, 78–85, 91–95, 99– 102, 244n29, 245n48, 246n56, 250n18 positive law, 51–52

Prince, The (Machiavelli), 11, 18, 23–26, 28, 49, 227n23 Procopius, 116–17 progress, 207–10, 221n16 punishments: capital, 41–49, 62, 104, 167–68; cruelty of, 3–4, 37–41, 60–66, 83–84, 103–5, 151, 206, 212; cultural imperialism and, 3, 177–79, 212; despotic, 17, 24–26; judging and, 32–36; moderation in, 4–7, 15, 47–49, 60–66, 103, 178–79, 216, 223n39, 232n71; pecuniary, 46, 167; Plato’s recommendations and, 162–68; religious views of, 82–85, 91–95, 111, 246n59, 247n62; virtue’s inculcation and, 150–52. See also despotism; fear; law; religion Radasanu, Andrea, 258n7 Rahe, Paul, 225n6, 229n42, 231n68, 237n43, 266n11 relativism (charges of), 3–5, 219n1, 220n11, 233n4 religion: church-state separation and, 68–70, 117–22, 246nn59–61; judicial procedures and, 10, 78–79, 83–85, 92, 95–99, 101–3, 108–9, 121; law and, 3, 13, 78–79, 81–85, 99–110, 122–34, 201–2, 244n29, 246nn59–61, 247n62; liberatory effects of, 81–82, 85–91, 93, 109–10, 243n23; Montesquieu’s unorthodoxy charges and, 10, 16, 18, 50–51; political power and, 68–71; sovereignty and, 63–66; treason and, 102–3, 117–22, 124–34; violence and, 10, 23–25, 44–45, 78–79, 83, 91–95, 101–3, 109, 121, 213. See also Catholic Church; Christianity; commerce; Islam; Jews and Jewishness; usury reproduction (politics of), 113, 122–34, 152– 57, 165–66, 173–76, 205, 214–15, 239n66 Republic (Plato), 11, 139–48, 157–59, 172–75, 186, 195, 206, 253n1, 257n2 republics: Aristotle on, 170–71, 181–89; Machiavelli’s recommendations on, 24– 25, 32–36, 42–49, 225n8, 226n9, 228n32; Plato’s philosophical legislation and, 139–48; reproductive policies and, 113, 122–34, 152–57, 165–66, 173–76, 205, 214–15, 239n66; Roman, 25–26, 33–49, 230n52; separation of powers as important to, 15, 33–41, 66–71, 113, 190–92, 207–8, 228n35, 236n28, 261n55

index

287

Richelieu (Armand Jean du Plessis, Cardinal), 52, 67, 69, 113, 136–37, 190, 250n21 Richter, Melvin, 224n53 robbery, 150–52, 166 Romagna, the, 28 Rome: Christianity in, 81, 85–86, 89–90, 95– 96, 103, 106–7, 117–22, 247n3, 252n37; civil wars in, 73; colonialism of, 3, 7, 157–58, 162–63, 178–79, 212, 231n57, 242n16; criminal punishments in, 37–41; empire of, 65, 90, 98–99, 117–19; fall of, 46, 58, 192–93, 250n21; laws of, 3, 5–6, 78–79, 111–13, 124–34, 249n10; modern European law and, 162–68, 206, 215–16, 242n13, 254n9; republican structure of, 25–26, 33–36, 125–26; separation of powers in, 38; slavery and, 4, 132–34, 159–62; Spartan law in, 136, 162–68, 206– 7, 215–16, 242n13 Rosen, Stanley, 51

Spanish Inquisition, 78–79, 83–85, 89–102, 244n29, 245n48, 246n56, 250n18 Sparta: Aristotle and, 189; effect of, on modern European law, 162–68; marriage law in, 154–59, 161–62, 165; militaristic culture of, 87–88, 146–49, 155–59, 161– 62, 166–67, 261n41; Plato’s regard for, 8, 12, 135–36, 141–53, 206; Roman law and, 162–68, 206, 215–16, 242n13, 254n9; slavery in, 159–62, 168, 180, 185–86; suicide and, 163–64, 166–67 Spector, Céline, 223n44, 238n55 speculation, 122–24, 195, 251n25 Spinoza, Baruch, 84 state of nature, 52–53, 55–66, 76 state of war, 52–53, 55–66, 76 Statesman, The (Plato), 174 Stoicism, 114 suicide, 163–64, 166–67, 257n48 Sulla, 73

Said, Edward, 10 Saint Bartholomew’s Day Massacre, 29–30, 67 Samnites, 162–63, 165, 254n9 Saunders, Trevor, 256nn42–43, 257n53 Schaub, Diana, 14, 224n1, 241n4 Scholastic Analysis of Usury, The (Noonan), 262n59 Second Lateran Council, 263n75 security (of the individual), 62–66, 76, 79, 216–17, 221n15 self-defense, 5, 8, 140–41, 159–62, 168, 256n44 separation of powers, 15, 33–41, 66–71, 113, 190–92, 230n51, 236n28, 261n55 Servetus, Michael, 107 sex, 57, 113, 117–18, 122–34, 152–57, 165–66, 173–76, 205, 214–15, 239n66 Shackleton, Robert, 92, 95, 98, 241n5, 244n28 Shklar, Judith, 54, 221n20, 238n41, 259n26, 266n19 singular institutions, 141–53, 168, 186 slavery, 4–8, 65–66, 77–91, 132–41, 150, 157–62, 168–72, 178–88, 255n32, 256n44, 259n26 social contract, the, 63–64 Socrates, 141, 165–66, 173, 175 Soderini, Piero, 35 Solon, 148, 261n41 Sorbonne, 202–3, 247n3, 262n61 sovereignty, 61–70 Sozomen, 96, 98, 131, 252n37 Spain, 3–4, 7, 9, 91, 242n20

Tacitus, 58, 249n14 Taoism, 124 taxes, 5 Terror, the, 9 Theodosian Code, 116–17, 119 Theodosius I, 119, 250n17 Theodosius II, 111, 113–14, 116–17, 119, 131, 206 Theological Basis of Liberal Modernity (Pangle), 241n11 thievery, 150–52, 166 Thucydides, 194 Tiberius, 3, 117–18, 121 treason, 46–49, 102–3, 105–10, 112, 117–22, 228n35, 244n29 Trenchard, John, 225n8 Trevor-Roper, Hugh, 246n56 Turkey, 1–2 Twelve Tables, 162–63, 165–66 tyranny, 7–8, 12, 42, 44, 46–49, 108, 135, 141 Tyre, 145 universalism, 1–2, 159–62, 219n1, 233n4 Urban III, 264n76 usury, 13–14, 172, 195–204, 214, 262n61, 263n75. See also interest (lending at) Utopia (More), 11 Vairasse, Denis, 142 Valdes, Cody, 265n2 Valentinian II, 119

288

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Valentinian III, 116 Valerian law, 38–39 vengeance (for God), 10, 78–79, 83, 99–111, 117–22 Vernet, Jacob, 17 violence: in criminal punishments, 40–49, 60– 66; despotism and, 7–8, 46–49; religious, 14, 23–25, 44–45, 78–79, 91–95, 99–102, 213; in states of nature and war, 55–60. See also despotism; fear virtue, 72, 140, 142–59, 180–81, 184–85, 188–94 Viscount of Orte, 30–31, 67 Visigoths, 245n48 Volpilhac-Auger, Catherine, 259n21, 265n7 voluptuousness, 185–88

Waddicor, Mark H., 219n2 Waldensian heresy, 103 war (laws of), 86–89, 133–34, 175–79, 183–84, 212. See also Alexander the Great; colonialism; slavery William of Moerbeke, 263n74 witchcraft, 78–79, 84–85, 103–4, 245n52 witnesses, 5–6, 34–36 women, 81–91, 117–34, 143–45, 152–53, 157– 59, 165–66, 243n26, 254n14 Zagorin, Perez, 250n17 Zeno, 114 Zoroastrianism, 81 Zuckert, Michael, 219n2