“The Spirit of Laws” — Montesquieu and the Architecture of Liberty
SELF-EVIDENT The Road to 1776 Article 14 of 22
Constant experience shows us that every man invested with power is apt to abuse it … it is necessary from the very nature of things that power should be a check to power.— Montesquieu, The Spirit of Laws, 1748¹
Westminster
He arrived on a borrowed yacht. Lord Chesterfield, then ambassador at The Hague, offered the French traveler a berth, and at the beginning of November 1729 a baron of forty from the wine country south of Bordeaux came ashore in England with letters of introduction and an appetite for observation. He stayed until the spring of 1731, almost all of it in London.²
He was presented at court, dined with the King, was elected a fellow of the Royal Society, fell in with the freemasons, read the opposition press, and went to Parliament. He attended debates in both houses.³
One sitting he recorded ran from an hour after midday until three the next morning. The Commons were arguing about Dunkirk, and he had never seen passions run so high. Robert Walpole went after Viscount Bolingbroke in the cruelest fashion, as he put it, and told the House a story about a peasant who cut down a hanged man, carried him home, revived him, and found the next morning that his guest had pocketed the cutlery. The peasant’s conclusion was that one ought not to interfere with the course of justice and that the man should be put back where he was found.⁴
He also took down a speech against keeping soldiers in peacetime, delivered by a member who told the chamber that force and violence are the resort of usurpers and tyrants alone. The Scots would still be making that argument thirty years later, in a club named for a fire poker, as the previous article described.⁵
There is a difficulty with this scene, and it is the reason to begin here rather than in a library. His English was poor. He had learned a little in Rome from an Irishman and said himself that he would have to start over. The one English sentence in his surviving notes has French grammar in it. Scholars who have worked on those notes conclude that much of what was shouted across the floor of the Commons went past him, and that what he knew of the argument came afterward, from conversation and from the papers.⁶
So the picture is not a foreign philosopher taking dictation from the mother of parliaments. It is a half-deaf listener in a crowded gallery, reconstructing later, from men who had their own reasons for what they told him, a system whose language he could not follow at speed.
What he wrote down about that system, in private, is not what he later published about it. Corruption, he noted, had spread through every station of society. Thirty years earlier nobody in London had heard of thieves; now there was nothing but thieves. Members from Scotland were short two hundred pounds and sold their votes at that price. The English were no longer worthy of their liberty: they sold it to the King, and if the King gave it back they would sell it again.⁷
He recorded one episode at length, and it stemmed from a session before he arrived, which means it reached him second hand. The Commons sent up a bill against electoral corruption every session and the Lords always threw it out, until a peer proposed that they stiffen the penalties so severely that the Commons would have to kill it themselves. The Commons saw the trick, or saw an opening, and passed the stiffened bill. The Lords were stuck with it. The King was stuck with it. At the next election the court lost seats. His conclusion: the most corrupt of parliaments was the one that had best secured public liberty.⁸
None of that is in the famous chapter. He began drafting the famous chapter within two years of coming home.⁹
The Magistrate Who Sold His Office
Charles-Louis de Secondat was born at the château of La Brède, a few hours south of Bordeaux, in January 1689, and baptized on the eighteenth of that month.¹⁰ He took a law degree at the University of Bordeaux in 1708 and went to Paris to continue. His father died in 1713 and he came home to run the estates. In 1715 he married Jeanne de Lartigue, a Protestant with money of her own.¹¹
The next year an uncle died and left him two things: the title he is known by, and the office of président à mortier in the Parlement of Bordeaux.
For modern Americans, a few items in that sentence need explaining, because the concepts are foreign and yet they matter for everything he later wrote.
A parlement was not a parliament. It was a sovereign court — the Bordeaux one had jurisdiction over a large slice of southwestern France — and its work was judicial. It also had a political function with no exact American analogue: royal edicts had to be entered on its registers before they could be enforced in its territory, and the magistrates could decline to register, sending back objections instead. That practice of remonstrance was one of the monarchy’s principal institutional brakes, and it belonged to a body of judges nobody elected.
The office itself was property. Under the system of venality, judicial and administrative posts in France were bought and sold, and, subject to legal and fiscal conditions, passed to an heir, and the crown sold them precisely because it needed the money. A man who held one owned a piece of the state the way another man owned a vineyard, which is the point of the arrangement and also the objection to it. He could not be dismissed for a ruling the minister disliked. He had also not been chosen for his learning, and the post could be, and often was, transferred to an heir who had none.¹²
The new baron held the office for the next ten years, sitting in the Tournelle, the criminal chamber. Its work was hearing criminal proceedings, supervising the prisons, and administering the punishments, which in the France of Louis XV included judicial torture.¹³ It should be kept in mind through everything that follows. A sustained eighteenth-century argument for humane criminal law, for narrow statutes, for punishments limited to what necessity requires, for not writing crimes that an innocent man cannot disprove, was made by a magistrate who had spent a decade in a criminal chamber whose business included imprisonment, punishment, and judicial torture.¹⁴
In 1721 he published, anonymously and to immediate success, a novel in letters. Two Persians travel through Europe and write home about what they find, and the joke runs both ways, because Usbek, the more thoughtful of them, is generous, curious, appalled by religious persecution — and the master of a harem he keeps by terror, which collapses behind his back while he is abroad explaining liberty.¹⁵ Whatever else the Persian Letters is, it is a book by a man who already suspected that the distance between what people say about power and what they do with it is the whole subject.
In July 1726 he sold the office to Jean-Baptiste d’Albessard, under a clause returning it to himself or his son at the buyer’s death, and left the Parlement. The reason is not recorded.¹⁶ In 1727 he was elected to the Académie française, taking his seat the following January, and then set out to see Europe: Austria, Hungary, Italy, the German states, Holland, and finally the year and a half in England.¹⁷
He came home in 1731 with failing eyesight and settled at La Brède. In 1734 he published, anonymously again, a study of Rome that explained the rise and collapse of a republic by ordinary causes rather than by providence.¹⁸ Fourteen years after that, in 1748, in Geneva, came De l’esprit des lois — two volumes, thirty-one books, published without his name on it. Rome had been the rehearsal. This was the whole world.
The book was attacked from two directions at once. The Jesuit journal asked politely for explanations in the spring of 1749; the Jansenist paper called it scandalous that October and went on calling for its condemnation. He answered the Jansenists with a Défense in February 1750, and left the Jesuits alone. The Church placed The Spirit of Laws on the Index of Forbidden Books in November 1751.¹⁹ He died in Paris in February 1755.
What the Book Was For
The opening move is the one everything else rests on. Laws are not commands dropped into a vacuum; they stand in relation to things. They should be adapted, he writes, to the people for whom they are framed, to the nature and principle of each government, to the climate of a country, to the quality of its soil, to its situation and extent, to the principal occupation of its inhabitants, to the degree of liberty the constitution will bear, to the religion of the people, to their inclinations, riches, numbers, commerce, manners, and customs.²⁰
That list is the method. A law is not to be judged in the abstract, as good or bad in itself, but examined as a fit or a misfit between a rule and the people living under it. He read for twenty years to assemble the comparisons — Roman law, English statutes, travelers’ reports from Persia and China and Japan, the customs of the Franks, the codes of the Visigoths — and the reading covers the globe, including perhaps a propensity for being too willing to gather ideas about places he had never been.
Two consequences follow from the method, and they compete against each other.
The first is caution about reform. If an institution has grown into a standard or a fit with a people, tearing it out because it looks irrational on paper is likely to damage what it was holding up. He asks his reader, in the preface, to judge the book entire rather than by a few sentences, and he is not a utopian by temperament or argument: to live under a settled, non-despotic government that leaves law-abiding people more or less alone is a great good, and not to be tampered with lightly.²¹
The second is that some things are simply wrong and can be named. Persecution can be stopped. Criminal law can be made less arbitrary. Slavery can be abolished. Understanding why a bad law exists is not the same as excusing it, and the same chapters that counsel patience also supply the ammunition.
There is a debt here worth marking. In Edinburgh, a chaplain turned professor quoted this book early in his own account of how societies develop, and later, at the point where he had to sort the forms of government, confessed that when he recollected what the President Montesquieu had written, he was at a loss to say why he should treat of human affairs at all.²² Adam Ferguson’s method — study how people actually came to live in groups, rather than reason forward from an imagined first condition — is the French magistrate’s method carried into Scots. Whether Ferguson’s use of it amounts to discipleship or to a running quarrel is a live question in the scholarship, and the two men certainly part company on the value of commerce.²³ The previous article left the Scottish arc with a question that neither Smith nor Ferguson answered: not what a people should believe and not what they should be willing to do, but how the offices of a government should be arranged. The answer, if there is one, is in the book Ferguson was bowing to.
Three Governments and What Moves Them
Before the offices can be arranged, the governments have to be sorted, and his sorting is not Aristotle’s.
He finds three kinds. In a republic the people, or a part of the people, hold sovereign power — which makes both democracy and aristocracy species of the same genus, a point the Americans would later have to work around. In a monarchy one person governs by fixed and established laws. In a despotism a single person directs everything by his own will and caprice, without law and without restraint.²⁴
The distinction between the last two has nothing to do with the character of the ruler. A kind despot is still a despot and a cruel monarch is still a monarch. What separates them is whether there is law the ruler is bound by, and whether there are bodies between the ruler and the subject with standing enough to make the binding real.
Then comes the part that is his own. Each kind of government has a nature — who holds power — and also a principle, which he defines as the human passions that set it in motion.²⁵ A government can keep its form perfectly and die anyway, because the passion that drove it has gone out.
The principle of a democratic republic is virtue, and the word is a trap. He does not mean personal morality, and he does not mean piety. He means political virtue: the love of the laws and of one’s country, a constant preference of the public interest to private interest, which he calls a self-renunciation that is always difficult and painful. He compares it to the attachment monks feel for the rule that torments them.²⁶ In an aristocratic republic, where one part of the people governs the rest, he names a different spring: moderation, which restrains the governing few both from oppressing the people and from grasping at each other’s power, and which he calls the soul of such a government. A democracy must manufacture its virtue, through education, through censors, through frugality written into law, through a rough equality of property, and through keeping the territory small enough that a citizen can identify with it. None of it is natural, and all of it is expensive.
The principle of a monarchy is honour — the desire for distinction and precedence, which comes to people without being taught. This is why a monarchy is easier to sustain than a republic. Ambition and vanity, which ruin a republic, are exactly what a monarchy runs on. The king does not need his nobles to be virtuous. He needs them to want rank badly enough to serve well for it.
A monarchy survives, then, only as long as the intermediate ranks survive. The laws of such a state, he writes, presuppose the intermediate channels through which the ruler’s power flows; if nothing exists but the momentary will of one person, nothing is fixed and there is no fundamental law.²⁷ The channels are the nobility, the clergy, the chartered towns — and the parlements, the courts holding the registers. Weaken them to strengthen the crown and the result is not a stronger monarchy but a despotism.
The principle of a despotism is fear, and fear is cheap. It requires no education, or rather it requires an education designed to break the spirit, because a subject who sets any value on himself might cause trouble.²⁸ Despotism is the technical name for a category with a defined mechanism, not a synonym for a government one dislikes, and in his account it is the condition every other form decays toward. A monarchy that destroys its intermediate bodies becomes one. A republic whose citizens stop preferring the public interest becomes one. And the principle of despotic government, he writes, is subject to continual corruption, because it is corrupt in its very nature.²⁹
One more piece belongs here, because it becomes an American problem forty years later. If a republic runs on a passion that has to be manufactured, and if manufacturing it requires that citizens be able to see and feel the thing they are attached to, then a republic cannot be large. It is natural to a republic, he writes, to have only a small territory; otherwise it cannot long subsist. In a large one there are men of great fortunes and correspondingly little moderation, and the public good is sacrificed to a thousand private views.³⁰ Remember that sentence. Both sides in the American ratification fight had it by heart.
The Chapter on England
Every state has a general aim, which is to preserve itself, and most have a particular one besides: Rome pursued expansion, Sparta war, Marseilles commerce. There is one nation in the world, he writes, whose constitution has political liberty for its direct object. He proposes to examine the principles on which that nation founds it. If the principles are good, liberty will appear in them as in a mirror.³¹
Then comes the sixth chapter of the eleventh book, on the constitution of England, which is the passage everyone recalls and arguably the one least accurately remembered.
What Political Liberty Is
He clears away the loose senses of the word first. Liberty is not doing whatever one likes; in a state with laws, it is the right to do whatever the laws permit, because if a citizen could do what they forbid, so could everyone else, and nobody would have any security at all.³²
The definition he settles on is psychological, and it is the key to the whole design: political liberty is a tranquility of mind arising from the opinion each person has of his safety.³³ Not a list of entitlements. A settled condition of not being afraid. A government may leave a subject perfectly untouched and still deprive him of liberty in this sense, if he has no reason to believe tomorrow will be like today.
That is why the arrangement of offices matters so much to him. Fear is produced by the possibility of arbitrary action, and the possibility is produced by concentration.
The Three Sorts of Power
In every state, he says, there are three: the authority to make law, the authority to execute what belongs to the law of nations — peace, war, embassies, security against invasion — and the authority to execute what belongs to civil law, meaning to punish crimes and judge disputes. The last he calls the power of judging, and the second he calls simply the executive power of the state.³⁴
Then the two prohibitions everyone quotes. When the legislative and executive are united in one person or one body of magistrates, there can be no liberty, because the same hands that make a tyrannical law can execute it tyrannically. And there is no liberty if the power of judging is not separated from the other two: joined to the legislative, the judge becomes a legislator and the subject’s life and property are exposed to arbitrary control; joined to the executive, the judge may behave with violence and oppression.³⁵
Read to that point, the chapter says what everyone thinks it says. Read past it, the chapter takes both prohibitions apart.
The Judge Who Disappears
He does not want a permanent professional judiciary at all. He prefers occasional tribunals, drawn from among the people, sitting only as long as the business requires and dissolving when it is done, with judges of the same rank as the accused. His reason is that a standing corps of judges attaches fear to particular men. A court that assembles and disperses attaches it to the office instead — so that the power of judging, so terrible to mankind, becomes in a manner invisible, and people fear the office and not the magistrate.³⁶
He goes further. Those who judge are not to shape what they apply; they are the mouth that pronounces the words of the law, and the law’s force and rigour are not theirs to soften. And then, having made the judicial power invisible, he calls it in so many words null, and drops it out of the reckoning.
Whatever that describes, it does not describe England. England in 1748 had a permanent, professional, salaried bench drawn from a powerful legal profession and appointed by the crown, and its court of last resort sat in the House of Lords, a fact he knew perfectly well and mentions in his private notes. To find a court that matched his principle he had to reach past the Norman Conquest, to the mythology of an old Saxon constitution, and to Athens.³⁷
What He Actually Recommended
With the judges set aside, what is left in the chapter is not a threefold separation of functions. It is the old English arrangement of three estates: the crown, a hereditary upper house, and an elected lower house, sharing the making of law between them.
He wants the legislative power divided in two, so that an assembly of nobles and an assembly of commons check each other. He wants the executive to be a single person, on the ground that it needs speed. He wants the executive to hold a veto over legislation, or the crown would be stripped by the legislature. He wants money bills to originate with the representatives, so that the funds can be withheld. He does not want the executive to have a positive voice in making law, only the negative one.³⁸
So the mechanism is not three walls. It is a distribution among bodies of different composition, each of which can stop the others, and none of which can move alone. His own summary is that these three forces, being compelled by the motion of affairs to act, will be forced to act in concert.
The Words He Did Not Use
Three terms need care here, because all three are used to say what he did not quite say.
“Separation of powers” is a later label for a doctrine he never states in the pure form. His own vocabulary is distribution — powers distributed among bodies — and the mechanism he names is a faculty of enacting and a faculty of preventing. The point of the second is precisely that one body reaches into another body’s business to stop it. That is not separation. It is interference, deliberately arranged.³⁹
“Checks and balances” is not his phrase in any translation, and the pairing is Anglo-American. Adams put the two words together in that order in 1787; The Federalist writes of balance and check. What he wrote, in French, is that power must arrest power.⁴⁰
And the doctrine itself was not his invention. Locke had divided legislative from executive. Bolingbroke, whose paper he read in London and whose politics he absorbed, had been publishing the division of powers among king, lords, and commons, and the language of the balance, while the Frenchman was sitting in the gallery. What he added was the third power, a far greater prominence for the whole idea, and the general form that let the argument travel to countries with no king, no lords, and no commons at all.⁴¹
One sentence at the close of the chapter governs the reading of everything in it. He says he is not inquiring whether the English actually enjoy the liberty he has described. It is enough for him that it is established by their laws, and he looks no further.⁴²
He told his readers he was describing principles. His readers took a description of the world.
The Reception
The Oracle
The American argument about this book was, at the moment it mattered most, an argument about what it meant, and it was conducted in public in the spring of 1788 by a man trying to get a constitution ratified.
The objection Madison had to answer was that the proposed federal government mixed the three departments and therefore violated the maxim. He concedes the maxim’s standing immediately and completely: no political truth, he says, is of greater intrinsic value, and the accumulation of all powers in the same hands may justly be pronounced the very definition of tyranny. Then he names the authority. The oracle who is always consulted and cited on this subject, he writes, is the celebrated Montesquieu — and if he is not the author of this invaluable precept, he has at least the merit of displaying and recommending it most effectually to mankind.⁴³
Having conceded the authority, Madison takes it apart with the same care a lawyer uses on a hostile precedent. The British constitution was to Montesquieu, he says, what Homer has been to writers on epic poetry: the model from which the rules were drawn. So look at the model. On the slightest view of the British constitution, Madison observes, the three departments are by no means totally separate and distinct from each other. The king is a branch of the legislature and appoints the judges. One house of the legislature advises the executive, tries impeachments, and is the supreme court of appeal in everything else. The judges attend the legislature and take part in its deliberations. From these facts, by which Montesquieu was guided, Madison concludes that he cannot have meant that the departments ought to have no partial agency in, or control over, the acts of each other.⁴⁴
That is the reception story, and it is better than the influence story. The authority everyone cited on the separation of the powers was used, by the man who had to defend an impure constitution, to prove that pure separation was never the doctrine. In the next number Madison drives it home from the other side: marking the boundaries on parchment is not sufficient, and the encroaching branch has to be given the constitutional means and the personal motive to resist.⁴⁵ Whether the arrangement Madison was defending worked is a question for a later article in this series. What belongs here is the fact that in 1788 the argument was conducted as a dispute over the text of a French book.
Both Sides Quoted Him
The dispute ran the other way too, and on the other question.
The men who opposed ratification had the small-republic doctrine, and they used it hard. Brutus opened his first essay to the citizens of New York with it; Cato used it; it was the ground of the objection the leading Anti-Federalists put first, that a territory as large as the American states together could not be governed on free principles.⁴⁶
Hamilton answered, in the ninth number, by turning to another part of the same book. The opponents of the plan, he writes, have with great assiduity cited and circulated the observations of Montesquieu on the necessity of a contracted territory, but they seem not to have been apprised of what that great man says elsewhere, or to have noticed where their own principle leads. The standards he had in view, Hamilton points out, were dimensions far short of almost every one of these states — so the doctrine, taken seriously, would require breaking the states themselves into pieces. And the same author had described a confederate republic, a form that carries the internal advantages of a small state and the external force of a large one, and had praised the Lycian league as its model.⁴⁷
The same book, quoted by both sides, on opposite sides of the central question. The Anti-Federalist use of it is a subject in its own right and belongs to a later article. The point for this one is what it shows about how the book was read in America: not as scripture, which is agreed on, but as a common language that opponents were obliged to argue in.
What the Counting Shows
In 1984 Donald Lutz published a study of citations in American political writing from 1760 to 1805, drawn from 916 items — pamphlets, sermons, newspaper essays, books — and counted who was quoted. Of the European authors, Montesquieu came first, ahead of Blackstone, with Locke well behind. Scripture was cited more often than any of them, and the single most cited work was Deuteronomy, which Lutz attributes to the very large number of sermons reprinted as pamphlets. His own conclusion was not that Montesquieu dominated American thinking. It was that no one European writer and no one tradition did.⁴⁸
What that supports is a bounded claim: among European writers, in American political literature across those forty-five years, he was cited more than anyone else. What it does not support is the claim usually built on it, that he was the most cited author at the Constitutional Convention. Lutz did not examine the Convention. The Convention’s proceedings survive chiefly in Madison’s notes together with fragments kept by other delegates, and those records do show men invoking Montesquieu by name on the floor — Wilson, Hamilton, Butler, and Madison among them. But they are selective reconstructions of what was said, not a systematic record of citation, and nobody has counted Philadelphia the way Lutz counted the pamphlets.⁴⁹ The two populations are different, and the stronger version of the claim rests on a study that did not measure it.
Recent study has drawn attention to one further piece of the reception, and it deserves its place, because it concerns the chapter this article has not yet touched. Jefferson, as a young lawyer, copied extracts from the slavery books of The Spirit of Laws into his legal commonplace book. And in 1764, in Massachusetts, James Otis was praising the same author’s mock justification of enslaving Africans — praising it, that is, as the attack it was meant to be.⁵⁰
The Honest Reckoning
The Principles and the Practice
Start with the thing he did, because the ordinary version of the charge is wrong and the accurate version is worse.
The ordinary version is that he misunderstood England — that a foreigner on a short visit mistook a corrupt oligarchy for a working model of free government and that his readers inherited the error. His private notes will not support it. He knew the system was bought and sold. He wrote that corruption had reached every station of society, that members sold their votes at a known price, that the English would sell their liberty back to the King if he returned it to them. He set down an account of an electoral-corruption bill that passed because two houses were trying to trap each other, and drew the conclusion that the most corrupt parliament was the one that had done the public the most good. He also wrote, in the same notes, that England was at that moment the freest country in the world, and that when he traveled he did not ask whether a country had good laws but whether the laws it had were carried out.⁵¹
He knew. And then he wrote a chapter that says, at its close, that whether the English actually enjoy this liberty is not his business, and that it is enough for him that their laws establish it.
That is not naivety. It is a decision about what the book was for, and it is the same decision that makes the book useful and makes it dangerous. He was extracting a model. A model is a set of relations among offices, stripped of the men filling them and the money moving between them. Stripped that way it can be carried to another country and built, which is exactly what happened, and which no amount of accurate reporting about Walpole’s majorities could have accomplished.
The cost is that he handed the world an account of a constitution with the corruption removed, and many of his readers took it as a description of a working government rather than as an argument about how a government might be arranged. His own reader had no way to know, from the published text, that the author had watched the thing operate and thought it rotten. The private notes were not printed until 1818, and most of what he wrote in England was burned by a grandson.⁵²
A science of politics that promised to study governments as they are, from the record, produced its best-known chapter by setting the record aside. He told his readers he was doing it. They did not hear him, and he did not insist.
Climate
The same method fails in a second place, and this time the consequences were not confined to how a chapter was read.
Books fourteen through seventeen argue that climate shapes temperament and that laws must take the shaping into account. Cold contracts the fibers of the body and produces people who are vigorous, bold, frank, and insensible to pain — you must flay a Muscovite alive, he writes, to make him feel. Heat expands them and produces people of stronger but briefer sensation, more fearful, more amorous, less capable of sustained resolution. Temperate zones produce inconstant manners, because the climate has no quality settled enough to fix them.⁵³
Take the argument at in full before objecting to it, because two things in it are genuinely defensible. He is not a determinist: he says repeatedly that the influence can be counteracted, that good laws and religion and manners work against it, and that a legislator’s business in a hot country is precisely to resist what the climate inclines people toward. And the differences are not inherited. Move a man from one zone to another and his temperament changes with it. Whatever this is, it is not a racial theory in the nineteenth-century sense, and it was not built to be one.
It was used as one anyway, and the use began in his own century, among people who had read him carefully.
The connection runs through slavery. Having said in the fifteenth book that slavery is in its own nature bad, he allows that there are places where it is less bad than elsewhere — in a despotism, where the slave’s condition is not much worse than the subject’s, and in countries so hot that, as he puts it, the excess of heat enervates the body and renders men so slothful and dispirited that nothing but fear of punishment will make them work, where slavery is more reconcilable to reason. He immediately qualifies it: free men working for gain always work better than slaves working from fear, and he hopes there is no climate on earth where the most laborious services could not be performed by free men with proper encouragement.⁵⁴
The qualification is real. It is also a sentence long, attached to a concession several sentences long, in a book that colonial administrators were reading for exactly the concession. French colonial jurists in the Caribbean took the climate argument and the argument about manners and put both to work justifying the government of the sugar islands and the labor system that ran them, selecting the passages that served and ignoring his own request that the book be judged whole.⁵⁵
He is not responsible for what other men did with the concession. He is responsible for the concession. A method that explains what a people can bear by where they live will always be available to someone who wants to explain why a particular people must bear what is being done to them, and the availability is not an accident of misreading. It is in the structure of the argument.
Book Fifteen
Which brings the article to the chapter that will not sit still.
The fifth chapter of the fifteenth book is titled on the slavery of the Africans, and it is five paragraphs of a man pretending to make the case. Were I to vindicate our right to make slaves of the Africans, it begins, these should be my arguments. The Europeans, having wiped out the Americans, were obliged to enslave the Africans to clear so vast a land. Sugar would be too dear if the cane were cultivated by anyone else. The creatures in question are black from head to foot and have such flat noses that it is scarcely possible to pity them. It is hardly to be believed that God, who is wise, would place a soul, and above all a good soul, in a body so black and so ugly.⁵⁶
The sarcasm is not subtle, and it was not read as subtle in the eighteenth century — an American revolutionary was praising it as satire in 1764. But the chapter sits inside a book that elsewhere makes the accommodations just described, and modern scholarship has not settled what to conclude from that. A recent survey of the question treats his position on slavery as ambiguous, notes that scholars have reached different assessments, argues that the fifteenth book is best read as sustained satire against entrenched prejudice and entrenched money — and records that his views were cited on both sides of the slavery debate that followed.⁵⁷ This article does not settle it either. What can be said is that the same book contains a piece of antislavery mockery that American revolutionaries were quoting approvingly in the 1760s and the sentences that colonial apologists leveraged later in the century.
And the setting deserves to be understood, without being made to prove more than it proves. Bordeaux was one of the four ports opened by royal act in 1716 to the trade of enslaved Africans. It fitted out slaving voyages of its own, and it grew rich in the decades that followed on the colonial trade those voyages supplied — the sugar, coffee, and indigo of islands worked by enslaved people. The magistrate who served in that city’s criminal chamber, and whose fortune was in land and wine, wrote the chapter. Whether any part of his own income touched the trade is not established here and is not asserted.⁵⁸
The previous articles in this series ran a reckoning about a university inside a commercial economy built partly on slave labor. This is a different problem, and a harder one. The Scottish case was an institution funded by money it did not examine. This is a text that argues against the thing and a theory, in the same volumes, that other men used to defend it.
The Skeptic’s Case
The Liberty He Defended Was a Nobleman’s
The strongest objection to putting this man in a libertarian inheritance is made entirely from his own text, and it is not a matter of a stray passage.
What stands between a monarch and despotism, in his account, is the intermediate ranks. Name them as he names them: the hereditary nobility, the clergy, the privileged towns, and the sovereign courts. These are not voluntary associations and they are not the people organized. They are corporate privileges attached to birth and to purchased office, and the whole argument for keeping them is that a ruler who cannot get past them cannot rule arbitrarily.
The author of the argument was a member of the class in question. He inherited a barony and a judicial office from an uncle, spent roughly a decade as a magistrate assigned to the Tournelle, a criminal chamber whose responsibilities ran to the prisons, the punishments, and judicial torture, sold the office subject to a clause returning it to his family, and then wrote a powerful defense of the arrangement that had given it to him. Althusser’s reading, which is hostile and hard to answer, is that the balance of forces he recommends is a compromise that preserves the position of the nobility, and that the three political forces holding each other in check were, in the England he admired, an alliance of the propertied against everyone beneath them.⁵⁹
The private notes support the hostile reading more than the published book does. London liberty, he writes there, is a liberty of respectable people, which is what distinguishes it from the Dutch version — and the Dutch version he calls a liberty of the rabble.⁶⁰
Concede the whole of it. There is no democrat here. The unreformed House of Commons he was watching was elected by a small fraction of adult men, many of its seats were in the pocket of a landowner, and while he was in England Parliament was extending the number of capital offenses. His constitution of liberty is compatible with all of that, and he never says otherwise.
What survives the concession is narrow but real, and it is not a defense of his politics. It is that the mechanism he described turned out to be separable from the class that produced it. He argued that power is restrained by other power, that the restraint has to be built into the arrangement of offices rather than trusted to the character of officeholders, and that where it is not built in, liberty depends on the goodwill of whoever holds the sword. Those propositions do not require a hereditary nobility. They required one to be thought of in 1748, by a man whose own security came from an inherited office and who could not easily imagine a brake on a king that was not made of other privileged men. The Americans, who had no hereditary titled order to work with, kept the mechanism and built the brakes out of other materials — two chambers, staggered terms, divided sovereignty, a written text. That they could do it is evidence that the mechanism was not the property of his class. It is not evidence that he would have approved.
A Separated Government Can Be an Enormous One
The second objection cuts at the use this series makes of the doctrine rather than at the man.
Nothing in the whole account limits what a government may do. It limits who does it. The argument from beginning to end concerns the distribution of authority among bodies, and it is silent about the scope of the authority being distributed. A state that makes law in one chamber, executes it through another, and judges under a third can tax at any rate, conscript any number, and regulate any transaction, and every step of it will satisfy the design perfectly. The anti-tyranny argument and the limited-government argument are two arguments, and a tradition that treats the first as if it delivered the second has not noticed the gap.
The objection is sound and should be conceded before anything is said back. He is explicitly not a minimal-state theorist. His whole picture of monarchy involves an active crown, a standing revenue, and a nobility rewarded with places and luxuries.
Two things can be said in reply, and neither is a rescue.
The first is that he does supply limits, in a different place, and they are limits on scope. The twelfth book is about what the criminal law may reach, and it is severe: punishment not derived from necessity is tyrannical; things indifferent in their own nature are not within the law’s province; statutes should not reach thoughts, or dreams, or things a man might do inadvertently, because a subject who cannot know in advance whether he is safe is not free whatever the offices look like.⁶¹ That is a substantive restriction on what a government may do to a person, and it comes from the same definition of liberty as tranquillity of mind.
The second is that the gap in the doctrine is not a flaw the Americans failed to notice. It is why they did not stop at the doctrine. The men who quoted him at ratification also wrote enumerated authorities, and then a bill of rights, and those supplied restraints on scope that the arrangement of offices does not supply. The design restrains the how. Something else has to restrain the what. Whether the something else held is the question this series will be asking for the rest of the American arc.
If Laws Must Fit the Climate, Liberty Is Not a Right
The last objection is the deepest, and it is aimed at the foundation of this series rather than at him.
The method says that laws should suit the people, the terrain, the religion, the manners, and the latitude. Push it one step and liberty stops being something owed to human beings as such and becomes something appropriate to certain places and not to others. On that view there is no self-evident truth about anyone’s entitlement to anything. There is only fit and misfit. A series that takes its title from a claim about what is true of all men, and that then enlists as its most quoted authority a writer whose method dissolves universal claims into local conditions, has a contradiction to answer for.
Concede that the tension is genuine and that he did not resolve it. He states that the cold north produces free peoples and the hot south servile ones, and he means it as an explanation rather than a permission, but he does not supply the principle that would keep the explanation from becoming a permission.
The reply available is not that the relativism is unreal. It is that he had a universal claim underneath the local ones, and that it does the work the series needs. Slavery, he says, is in its own nature bad. Not bad for Europeans. Not unsuited to temperate zones. Bad in its nature, as a condition in which one person’s life belongs to another. He says that punishment without necessity is tyrannical, and that a law that reaches a man’s thoughts is not a law a person can live under, and these are not claims about the suitability of institutions to a place. He is a relativist about the form of a government and an absolutist about a small number of things that may not be done to a person under any form. The two positions sit together uncomfortably in his book. They have sat together uncomfortably in every serious argument about liberty since, including the American one, and the discomfort is not a reason to pretend either half away.
The Road Continues
He died in 1755, in Paris, of a fever, twenty years before the argument he had shaped was carried into the streets of Boston.
What he left was not a creed and not a program. It was a way of asking the question, and a mechanism. The question: given that everyone with power tends to use all of it, how do you arrange the offices so that nobody has enough at once? The mechanism: divide, distribute, and give each part the means to stop the others. It was drawn from a country he had watched without following the language, refined in twenty years of reading at a château in the Gironde, published without his name, condemned in Rome, and invoked over and over in the ratification debates and the pamphlets around them.
The book idealized its central example in a way its author knew about and declined to correct. It explained the temperament of nations by latitude and handed colonial apologists a tool they put to work later in the century. It contains a chapter against enslaving Africans that Americans were reading aloud as satire in the 1760s and passages that the planters of Saint-Domingue would be quoting in their own defense later in the century.
And it contains the sentence that mattered most, which is not about England at all: that power must be arrested by power, and that the arresting has to be arranged in advance, because it cannot be expected from the men who hold it.
Other French writers of the same decades gave other answers. Voltaire pressed toleration and the limits of state authority over conscience. Rousseau located sovereignty in the general will and wrote that a man who resists it may be forced to be free. Americans read both, unevenly and selectively, and what they took from each, what they refused, and how far any of it explains the different courses the two revolutions ran, is the next article.⁶²
This is the road to 1776.
Self-Reflection Prompts
He defined political liberty as a settled confidence in one’s own safety rather than as a list of permissions. Think of a rule you live under at work or in your city. Do you know in advance exactly what it forbids, and could you prove you had complied with it? If not, you are less free under it than the rule’s text suggests.
He knew the constitution he admired was corrupt in practice and published an account of its principles without saying so. When have you described something you believe in by its design rather than by its operation, and who was likely to be misled by the difference?
His argument about climate was meant as explanation and was used as justification. Take a claim you hold about why a group of people live as they do. If someone wanted to use that claim to argue that they should keep living that way, what in your version would stop them?
The authority everyone cited on separating the branches was used by the man defending a constitution that did not separate them, to prove that pure separation was never the doctrine. When you cite an authority, how recently have you read enough of the original to know whether it says what you are using it for?
The Liberty Test. Separating the functions of a government restrains who exercises authority, not how much authority exists. Choose one part of your own government that is properly divided among branches and still does something you object to. Does the division leave people more free, or more governed, and what besides division would have to change?
Endnotes
Montesquieu, The Spirit of Laws (1748), XI.4. Quoted here and throughout from Thomas Nugent’s translation, first published in 1750, which is the version the founding generation read and which Montesquieu is reported to have admired. The epigraph combines the opening and closing statements of XI.4 and omits an intervening sentence. The modern scholarly standard is the Cohler, Miller, and Stone translation (Cambridge: Cambridge University Press, 1989), which renders the final text; where this article’s wording differs from that edition, the difference is Nugent’s.
On the crossing from The Hague with Lord Chesterfield at the end of October 1729, the arrival in London in early November, the length of the stay, and the return to France in the spring of 1731, see Robert Shackleton, Montesquieu: A Critical Biography (London: Oxford University Press, 1961), ch. 6; and Iain Stewart, “Montesquieu in England: his ‘Notes on England’, with Commentary and Translation,” (2002) Oxford University Comparative Law Forum 6.
On the presentation at court, the election as a Fellow of the Royal Society, the contact with English freemasons, the reading of The Craftsman, and attendance at debates in both houses, see Stewart, “Montesquieu in England,” commentary, and Shackleton, Montesquieu, ch. 6.
Montesquieu, “Notes on England,” in Œuvres complètes, ed. Roger Caillois (Paris: Gallimard, Bibliothèque de la Pléiade, 1949–51), i.875–84; translated in Stewart, “Montesquieu in England.” The debate concerned the Dunkirk affair. The length of the sitting, the attack on Bolingbroke, and the story of the hanged man are Montesquieu’s own record of it.
“Notes on England,” entry dated January 28, 1730, old style. Stewart identifies the speaker as William Shippen and gives the fuller report at Cobbett’s Parliamentary History of England, vol. 8, 772–73. The Scottish militia controversy and the Poker Club are the subject of the previous article in this series.
On Montesquieu’s limited English, his own remark that he would have to begin the language again after tuition from an Irishman in Rome, and the inference that much of the parliamentary argument reached him only afterward through conversation and the press, see Stewart, “Montesquieu in England,” commentary; Shackleton, Montesquieu, ch. 6.
“Notes on England,” Stewart translation, for the spread of corruption through every station of society, the sale of votes by members from Scotland, and the remark that the English would sell their liberty to the King a second time.
“Notes on England,” Stewart translation, on the bill against electoral corruption and its passage against the wishes of Commons, Lords, and King alike.
Shackleton, Montesquieu, 285, cited in Stewart, “Montesquieu in England,” for the first draft of the section on the English constitution being complete by the end of 1733.
Sources differ on the birth date. The baptism is recorded on January 18, 1689; the Stanford Encyclopedia of Philosophy gives the birth as January 19. This article asserts the month and the baptismal date and no more.
Hilary Bok, “Baron de Montesquieu, Charles-Louis de Secondat,” Stanford Encyclopedia of Philosophy (substantive revision 2014), section 1; Shackleton, Montesquieu.
On the parlements as sovereign courts, on the registration of royal edicts and the practice of remonstrance, and on the venality of office in eighteenth-century France, see Rebecca Kingston, Montesquieu and the Parlement of Bordeaux (Geneva: Librairie Droz, 1996), and William Doyle, Venality: The Sale of Offices in Eighteenth-Century France (Oxford: Clarendon Press, 1996).
Bok, “Montesquieu,” SEP, section 1, states that for eleven years he presided over the Tournelle, the criminal division of the Parlement, hearing proceedings, supervising prisons, and administering various punishments including torture. The Dictionnaire Montesquieu entry “Parlement de Bordeaux” (ENS de Lyon) qualifies the picture: his attendance was irregular, and he became premier président of the Tournelle only in 1723. The article follows the shorter span from the 1716 inheritance to the 1726 sale and makes no claim about his participation in particular cases. See also Kingston, Montesquieu and the Parlement of Bordeaux.
The reference is to the twelfth book of The Spirit of Laws, on the laws that establish political liberty in relation to the subject. See note 61 below.
Montesquieu, Lettres persanes (1721), published anonymously. On the collapse of the seraglio and Roxana’s closing letter see Letters 153, 156, and 161, cited from Persian Letters, trans. C. J. Betts (Harmondsworth: Penguin, 1973); the letter numbering follows that edition.
The contract of sale to Jean-Baptiste d’Albessard is dated July 7, 1726, and carried a clause returning the office to Montesquieu or his son on the buyer’s death; see the entry “Parlement de Bordeaux” in the Dictionnaire Montesquieu (ENS de Lyon), which also records that the motive is unknown and that the office was finally sold outright in 1748. The Stanford Encyclopedia of Philosophy gives 1725; the archival date is followed here.
Stewart gives the election to the Académie française as 1727, with reception the following January; the Stanford Encyclopedia of Philosophy gives 1728. On the itinerary of the European tour, Shackleton, Montesquieu, ch. 6.
Considérations sur les causes de la grandeur des Romains et de leur décadence (1734), published anonymously; Bok, “Montesquieu,” SEP, section 1, which notes that the book was meant in part to discourage the use of Rome as a model for contemporary governments.
The Journal de Trévoux, the Jesuit periodical, raised its objections in April 1749; the Jansenist Nouvelles ecclésiastiques attacked the book in its issues of October 9 and 16, 1749, and the Défense de l’Esprit des lois of February 1750 answers those articles; the Congregation of the Index condemned the book on November 29, 1751. See the entry “Querelle de L’Esprit des lois“ in the Dictionnaire Montesquieu (ENS de Lyon); and Bok, “Montesquieu,” SEP, section 1.
The Spirit of Laws, I.3.
Preface and I.3. On the anti-utopian character of the argument and the claim that a settled non-despotic government is not to be tampered with lightly, see Bok, “Montesquieu,” SEP, section 4.
Adam Ferguson, An Essay on the History of Civil Society (1767), Part I, section 3, for the quotation of Montesquieu that man is born in society and there he remains; Part I, section 10, for the passage in which Ferguson writes that when he recollects what the President Montesquieu has written he is at a loss to tell why he should treat of human affairs, and then proceeds to the classification of governments. Cited from the edition of Fania Oz-Salzberger (Cambridge: Cambridge University Press, 1995), where the second passage falls at page 66 according to the Dictionnaire Montesquieu entry on Ferguson.
Sheila Mason, “Ferguson and Montesquieu: Tacit Reproaches?”, British Journal for Eighteenth-Century Studies 11, no. 2 (1988): 193–204; and Richard B. Sher, “From Troglodytes to Americans: Montesquieu and the Scottish Enlightenment on Liberty, Virtue, and Commerce,” in David Wootton, ed., Republicanism, Liberty, and Commercial Society, 1649–1776 (Stanford: Stanford University Press, 1994), 368–402.
The Spirit of Laws, II.1 and II.2.
III.1.
IV.5 for political virtue as the love of the laws and of one’s country and as a self-renunciation that is arduous and painful; V.3 for the limiting of ambition to the desire of serving the country; V.2 for the comparison with the attachment of monks to their rule; V.4 through V.7 for the laws by which a democracy inspires and maintains equality and frugality; III.4 for moderation as the principle and the soul of aristocratic government.
II.4.
III.9 and IV.3.
VIII.10.
VIII.16.
XI.5.
XI.3.
XI.6; compare XII.1, where political liberty is said to consist in security, or in one’s own opinion of one’s security.
XI.6. The categories are Roman: a legislative power, an executive power over matters belonging to the law of nations, and an executive power over matters belonging to the civil law, the last renamed the power of judging. The formulation is paraphrased here rather than quoted, since Nugent’s rendering and later translations differ on the terms.
XI.6.
XI.6, for the occasional tribunal drawn from the people, for judges of the same rank as the accused, and for the judicial power becoming in a manner invisible so that people fear the office rather than the magistrate.
On the mismatch between the occasional tribunal and the permanent professional English bench, on Montesquieu’s awareness that final appeal lay in the House of Lords, and on his reliance on the mythology of the pre-Norman constitution and on Athenian practice, see Stewart, “Montesquieu in England,” commentary; and J. G. A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University Press, 1987 reissue).
XI.6.
XI.7 for the language of distributed powers; XI.6 for the faculty of enacting and the faculty of preventing. On division of powers as the more accurate rendering of Montesquieu’s meaning, see Stewart, “Montesquieu in England,” commentary, drawing on Charles Eisenmann, “La pensée constitutionnelle de Montesquieu,” in La pensée politique et constitutionnelle de Montesquieu (Paris: Recueil Sirey, 1952), 133–60.
John Adams uses the phrase in the preface to A Defence of the Constitutions of Government of the United States of America (London, 1787), dated January 1, 1787, where he writes that the checks and balances of republican governments have been adopted in some degree by the courts of princes. The Federalist writes of balance and check. Montesquieu’s French at XI.4 is que le pouvoir arrête le pouvoir.
M. J. C. Vile, Constitutionalism and the Separation of Powers, 2nd ed. (Indianapolis: Liberty Fund, 1998), ch. 4, which holds that Montesquieu did not invent the doctrine and that much of the sixth chapter of the eleventh book was taken from contemporary English writers and from Locke. On the Bolingbroke connection see Robert Shackleton, “Montesquieu, Bolingbroke, and the Separation of Powers” (1949), reprinted in Essays on Montesquieu and on the Enlightenment, ed. David Gilson and Martin Smith (Oxford: Voltaire Foundation, 1988), 3–15; the relevant Bolingbroke material is in Remarks on the History of England (London, 1743).
XI.6, near the close of the chapter. Paraphrased; Nugent and later translators render the sentence differently.
The Federalist No. 47 (Madison). Cited from The Federalist, ed. George W. Carey and James McClellan, Gideon edition (Indianapolis: Liberty Fund, 2001).
Federalist No. 47.
Federalist No. 48 for the insufficiency of marking the boundaries on parchment, and No. 51 for supplying each department with the constitutional means and the personal motives to resist encroachment.
Brutus No. 1 and Cato No. 3, both citing the doctrine of the small territory at VIII.16. Texts in The Founders’ Constitution, ed. Philip B. Kurland and Ralph Lerner (Chicago: University of Chicago Press, 1987).
Federalist No. 9 (Hamilton), citing The Spirit of Laws, IX.1, on the confederate republic and the Lycian league.
Donald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” American Political Science Review 78, no. 1 (1984): 189–197. The study is Lutz’s alone; the underlying collection of American political writings was edited jointly with Charles S. Hyneman, which is the likely source of the frequent misattribution. The published abstract states that the citation count was drawn from 916 items and concludes that no one European writer and no one tradition of writers dominated American political thought. The 916-item corpus, the period, and the no-dominance conclusion are from the published abstract of the 1984 article, which also singles out Montesquieu, Blackstone, and Hume as the writers whose importance most needed upgrading. For the ranking of Montesquieu ahead of Blackstone and Locke, and for the findings on scriptural citation and on Deuteronomy, see Lutz’s own restatement of the study in The Origins of American Constitutionalism (Baton Rouge: Louisiana State University Press, 1988), and Daniel L. Dreisbach, “The Bible in the Political Rhetoric of the American Founding,” Politics and Religion 4, no. 3 (2011): 401–427, which reports that biblical citation accounted for roughly a third of the total, that Deuteronomy was the single most cited work, and that Montesquieu and Blackstone were the two most cited secular writers. No percentages are given in the body: the original tables were not consulted directly, and figures circulated at second hand are not asserted.
Max Farrand, ed., The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1911), 1:71 (Wilson, in King’s notes, June 1), 1:308 (Hamilton, June 18), 1:391 (Butler, in Yates’s notes, June 23), and 1:497 (Madison, in Yates’s notes, June 30). The records consist of Madison’s notes together with fragments kept by other delegates and are selective rather than systematic; the running head of a page names the recorder, not the speaker.
Arthur Scherr, “Intellectual Roots of Thomas Jefferson’s Opinions on Slavery: Montesquieu’s Impact,” Journal of Transatlantic Studies 19, no. 2 (2021): 189–214, on Jefferson’s extracts from the slavery books in his legal commonplace book and on Granville Sharp’s report that James Otis praised the satirical chapter in 1764.
“Notes on England,” Stewart translation, for England as at that moment the freest country in the world and for the remark that the question to ask of a country is not whether its laws are good but whether they are carried out.
Shackleton, Montesquieu, 117–19, discussed in Stewart, “Montesquieu in England,” on the first publication of the notes in the Lefèvre edition of 1818 and on the conclusion that the fuller English journal was burned in England by Montesquieu’s grandson.
XIV.2.
XV.1 for slavery as bad in its own nature and for the despotic case; XV.7 for the argument from excessive heat; XV.8 for the hope that no climate exists where the most laborious services could not be performed by free men.
On the use of the arguments from climate and manners by French colonial jurists in the Caribbean, and on the selective quotation of Montesquieu in defense of colonial rule, see Malick W. Ghachem, The Old Regime and the Haitian Revolution (Cambridge: Cambridge University Press, 2012). The material is distributed through the book and no page pinpoint is asserted. The jurist chiefly in question, Michel-René Hilliard d’Auberteuil, published his Considérations sur l’état présent de la colonie française de Saint-Domingue in 1776, which places this use of Montesquieu later in the century than the American reception described above.
XV.5. Closely paraphrased from Nugent’s rendering.
Vickie B. Sullivan, “Montesquieu on Slavery,” in The Cambridge Companion to Montesquieu, ed. Keegan Francis Callanan and Sharon Ruth Krause (Cambridge: Cambridge University Press, 2023), 182–197, which describes his treatment of slavery in the fifteenth book as ambiguous, records that scholars have reached differing assessments, argues that the book is best read as sustained satire in the face of entrenched prejudice and entrenched financial interest, and notes that his views were cited on both sides of the subsequent debate.
Lettres patentes du roy, pour la liberté du commerce sur les costes d’Afrique (Paris, January 1716), art. I, which permits merchants to trade freely in enslaved Africans on condition that they fit out their vessels at Rouen, La Rochelle, Bordeaux, or Nantes; the privilege was extended to other ports in the years that followed. The printed instrument gives the month and not the day. On the French trade generally see Christopher L. Miller, The French Atlantic Triangle: Literature and Culture of the Slave Trade (Durham: Duke University Press, 2008); no page pinpoint is asserted. This article asserts no connection between Montesquieu’s own income and that trade and has not established one.
Louis Althusser, “Montesquieu: Politics and History” (1959), in Politics and History: Montesquieu, Rousseau, Hegel and Marx, trans. Ben Brewster (London: New Left Books, 1972), especially the chapter on the myth of the separation of powers. The reading is summarized, and endorsed in part, in Stewart, “Montesquieu in England,” commentary.
“Notes on England,” Stewart translation.
XIX.14 for the claim that punishment not derived from necessity is tyrannical and that things indifferent in their own nature are not within the province of law; XII.6 on crimes that are inherently difficult to prove and on laws that reach what a subject cannot disprove.
Jean-Jacques Rousseau, Du contrat social (1762), I.7, for the formulation that a man who refuses to obey the general will may be compelled to it by the whole body. On the American reception of both writers, see Paul Merrill Spurlin, Rousseau in America, 1760–1809 (University: University of Alabama Press, 1969); Spurlin, Montesquieu in America, 1760–1801 (Baton Rouge: Louisiana State University Press, 1940); and Spurlin, The French Enlightenment in America: Essays on the Times of the Founding Fathers (Athens: University of Georgia Press, 1984).
Sources and Further Reading
Primary Sources
Montesquieu, Charles-Louis de Secondat, Baron de La Brède et de. The Spirit of Laws. 1748. Translated by Thomas Nugent, 1750.
Montesquieu. The Spirit of the Laws. Translated and edited by Anne M. Cohler, Basia Carolyn Miller, and Harold Samuel Stone. Cambridge: Cambridge University Press, 1989.
Montesquieu. Œuvres complètes. Edited by Roger Caillois. 2 vols. Paris: Gallimard, Bibliothèque de la Pléiade, 1949–51.
Montesquieu. Persian Letters. 1721. Translated by C. J. Betts. Harmondsworth: Penguin, 1973.
Montesquieu. “Notes on England.” In Œuvres complètes, edited by Caillois, i.875–84. Translated by Iain Stewart in “Montesquieu in England,” Oxford University Comparative Law Forum 6 (2002).
Bolingbroke, Henry St John, Viscount. Remarks on the History of England. London, 1743.
Lettres patentes du roy, pour la liberté du commerce sur les costes d’Afrique. Paris, January 1716.
Rousseau, Jean-Jacques. Du contrat social. 1762.
Ferguson, Adam. An Essay on the History of Civil Society. 1767. Edited by Fania Oz-Salzberger. Cambridge: Cambridge University Press, 1995.
The Federalist. Gideon edition. Edited by George W. Carey and James McClellan. Indianapolis: Liberty Fund, 2001.
Adams, John. A Defence of the Constitutions of Government of the United States of America. London, 1787.
Farrand, Max, ed. The Records of the Federal Convention of 1787. New Haven: Yale University Press, 1911.
Kurland, Philip B., and Ralph Lerner, eds. The Founders’ Constitution. Chicago: University of Chicago Press, 1987.
Secondary Works
Althusser, Louis. Politics and History: Montesquieu, Rousseau, Hegel and Marx. Translated by Ben Brewster. London: New Left Books, 1972.
Bok, Hilary. “Baron de Montesquieu, Charles-Louis de Secondat.” Stanford Encyclopedia of Philosophy, substantive revision 2014.
Dictionnaire Montesquieu. Edited under the direction of Catherine Volpilhac-Auger. ENS de Lyon, online edition.
Doyle, William. Venality: The Sale of Offices in Eighteenth-Century France. Oxford: Clarendon Press, 1996.
Dreisbach, Daniel L. “The Bible in the Political Rhetoric of the American Founding.” Politics and Religion 4, no. 3 (2011): 401–427.
Eisenmann, Charles. “La pensée constitutionnelle de Montesquieu.” In La pensée politique et constitutionnelle de Montesquieu, 133–60. Paris: Recueil Sirey, 1952.
Ghachem, Malick W. The Old Regime and the Haitian Revolution. Cambridge: Cambridge University Press, 2012.
Kingston, Rebecca. Montesquieu and the Parlement of Bordeaux. Geneva: Librairie Droz, 1996.
Mason, Sheila. “Ferguson and Montesquieu: Tacit Reproaches?” British Journal for Eighteenth-Century Studies 11, no. 2 (1988): 193–204.
Lutz, Donald S. “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought.” American Political Science Review 78, no. 1 (1984): 189–197.
Lutz, Donald S. The Origins of American Constitutionalism. Baton Rouge: Louisiana State University Press, 1988.
Miller, Christopher L. The French Atlantic Triangle: Literature and Culture of the Slave Trade. Durham: Duke University Press, 2008.
Pocock, J. G. A. The Ancient Constitution and the Feudal Law. Cambridge: Cambridge University Press, 1987 reissue.
Shackleton, Robert. Montesquieu: A Critical Biography. London: Oxford University Press, 1961.
Shackleton, Robert. Essays on Montesquieu and on the Enlightenment. Edited by David Gilson and Martin Smith. Oxford: Voltaire Foundation, 1988.
Spurlin, Paul Merrill. Montesquieu in America, 1760–1801. Baton Rouge: Louisiana State University Press, 1940.
Spurlin, Paul Merrill. Rousseau in America, 1760–1809. University: University of Alabama Press, 1969.
Spurlin, Paul Merrill. The French Enlightenment in America: Essays on the Times of the Founding Fathers. Athens: University of Georgia Press, 1984.
Sher, Richard B. “From Troglodytes to Americans: Montesquieu and the Scottish Enlightenment on Liberty, Virtue, and Commerce.” In Republicanism, Liberty, and Commercial Society, 1649–1776, edited by David Wootton, 368–402. Stanford: Stanford University Press, 1994.
Scherr, Arthur. “Intellectual Roots of Thomas Jefferson’s Opinions on Slavery: Montesquieu’s Impact.” Journal of Transatlantic Studies 19, no. 2 (2021): 189–214.
Shklar, Judith. Montesquieu. Oxford: Oxford University Press, 1987.
Sullivan, Vickie B. “Montesquieu on Slavery.” In The Cambridge Companion to Montesquieu, edited by Keegan Francis Callanan and Sharon Ruth Krause, 182–197. Cambridge: Cambridge University Press, 2023.
Stewart, Iain. “Montesquieu in England: his ‘Notes on England’, with Commentary and Translation.” Oxford University Comparative Law Forum 6 (2002).
Vile, M. J. C. Constitutionalism and the Separation of Powers. 2nd ed. Indianapolis: Liberty Fund, 1998.
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