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“ Action for Trespass upon or Damage to Realty.” — See EJECTMENT.
“ The Balance.” — See DEVISE.
“ Ballot.” -See VOTER. “ Imprisoned for Debt.” — See CONSTITUTIONAL LAW, STATE, 1. “ Loss occasioned by or resulting from Explosion.” — See INSURANCE (FIRE), 1, “ On the express Understanding and Agreement.” — See COVENANT, 1.
“ Ore.” — See LARCENY.
“ Surviving." - See Will, 1.
The Spirit of Laws. By M. De Secondat, Baron DE MONTESQUIEU.
Translated from the French, by Thomas NUGENT. A new edition, carefully revised and compared with the best Paris edition. To which are prefixed a Memoir of the Life and Writings of the Author, and an Analysis of the Work, by M. D'ALEMBERT. 2 vols. 8vo. Cincinnati : Robert Clarke & Co. 1873.
MONTESQUIEU, after twenty years of meditation and study, in the year 1748 published his greatest work, the Esprit des Loix. In eighteen months it passed through twenty-two editions, and was translated into nearly every language of Europe. It was translated into English by Dr. Nugent, of Gray's Inn. The excellence of the translation drew from Montesquieu a very graceful letter, of which this is an extract :
I cannot help returning you thanks ; indeed, I had already thanked you for rendering my work into English; but now I thank you once more for having done it so well. Your translation has no blemishes but those of the original, which are to be charged to my account; and I am much obliged to you for concealing them from the public eye. It would seem that you intended also to translate my style ; for there is exactly that resemblance, qualem decet esse sororum.
The immediate and great success which this work obtained was, no doubt, partly owing to the wit and sparkle with which it abounds, and to the epigrammatic terseness with which much of it is written, and which prompted Madame du Deffaud to say that it was not l'esprit des loix, but de l'esprit sur les loix, and which led Voltaire to read it “as much for amusement as for instruction." No one was more capable than Voltaire of appreciating that “smart and stinging irony against the Inquisition, which charmed all the world except the Inquisitors.” Pleasantry is, however, carried too far for a serious work, and is sometimes, too, indulged in at the expense of the reader. One bent on instruction, and awaiting argument may, perhaps not unwarrantably, feel annoyed upon turning the leaf to be met by a chapter like this : “ Chap. xv. Sure methods of preserving the three principles. I shall not be able to make myself rightly understood till the reader has perused the four following chapters.” Well may the commentator exclaim, as one does in a copy which we possess, “ Etoit-ce la peine de faire un nouveau chapitre pour ne rien dire?” This may have suggested to Horrebow that chapter of his natural history of Iceland, which Dr. Johnson could repeat entire : “ Chap. lxii. Concerning snakes. There are no snakes to be met with throughout the whole island.”
There is this difference, however, between the chapters, — while the one says absolutely nothing, the other completely exhausts the subject. Sterne, in the Life and Opinions of Tristram Shandy, has this chapter : “ Chap. xi. What a vast advantage is travelling ! only it heats one; but there is a remedy for that, which you may pick out of the next chapter.” Southey, in the Doctor, has this : “ Chap. ccxliii. Who was Pompey? • The dog will have his day,' says Shakespeare. And the dog must have his chapter, say I. But I will defer writing that chapter till the dog days.” Whence the suggestion of these chapters came is obvious. One must have great merits where his worst faults draw disciples.
But it is not always that Montesquieu, even in the short chapters, in which he abounds, says nothing. We will quote another. “ Chap. xiii. An idea of despotism. When the Louisiana savages want fruit, they cut down the tree and pick it. There is despotic government.” This has lost its freshness by having become a proverb ; but the idea it contains grows by being thought upon. One, by unfolding it throughout a volume, might gain the name of philosopher.
All, even the detractors, have united in praise of the great and varied learning, profound thought, and lofty genius displayed throughout this work. Montesquieu himself was fully conscious of its merits, and, though urged and besought by his friends, Helvetius and Saurin, not to publish it, he put it forth with a preface, which shows that his confidence in it was unshaken. After asking the reader not to judge, by a few hours' perusal, of the work of twenty years, but to search into the design of the author and approve or condemn the book entire, he says :
I have first of all considered mankind, and the result of my thoughts has been, that, amidst such an infinite diversity of laws and manners, they were not solely conducted by the caprice of fancy. I have laid down the first principles, and have found that the particular cases follow naturally from them; that the histories of all nations are only consequences of them, and that every particular law is connected with another law, or depends on some other of a more general extent. When I have been obliged to look back into antiquity, I have endeavored to assume the spirit of the ancients, lest I should consider those things as alike which are really different, and lest I should miss the difference of those which appear to be alike. . . . I write not to censure any thing established in any country whatsoever. Every nation will here find the reasons on which its maxims are founded ; and this will be found the natural inference, that to propose alterations belongs only to those who are so happy as to be born with a genius capable of penetrating into the entire constitution of a state. . . . If this work meets with success, I shall owe it chiefly to the grandeur and majesty of the subject. However, I do not think that I have been totally deficient in point of genius. When I have seen what so many great men, both in France, England, and Germany, have said before me, I have been lost in admiration; but I have not lost my courage. I have said with Correggio, “And I also am a
The position which Montesquieu holds as a writer upon jurisprudence is easily assigned. Grotius had written his famous work, De Jure Belli et Pacis, which is a treatise upon ethics, for which it was not intended, and is not a treatise upon law, for which it was intended. In it he aims at the elucidation of a complete system of natural law. He endeavors to lay down rules of abstract justice for the guidance of men living without positive institutions in a state of nature. Pufendorf, following Grotius, endeavored to extend the ground previously occupied by him, so as to embrace the whole duty of man. They together produced those abstract theories, which Voltaire justly said have never been serviceable in any treaty of peace, nor in any declaration of war, nor to secure the right of any person, and which Bentham was right in considering as things equally unphilosophical in the design and useless in the execution.
There can be no such thing as an abstract universal law, any more than there can be an abstract universal grammar. As, without an articulate language existing in the concrete and conveying ideas, there can be no such thing as grammar ; so, without a particular body of people living, not in a state of nature, whatever that may be (for neither Grotius, Pufendorf, nor their commentator, Barbeyrac, has explained its meaning), but living in a society, and having human appetites, passions, emotions, and feelings, the growth of education and custom, and of outward circumstances, can there be such a thing as law? Such treatises are unsuccessful attempts to show what law ought to be, – unsuccessful, because in the process they divest it of every attribute which makes it law.
Montesquieu shows what law is, and how it is. He shows it as it exists, diversified by circumstances both moral and physical. “I write not to censure any thing established in any country whatsoever ; every nation will here find the reasons on which its maxims are founded." Such a work is philosophical in the design and useful in the execution. It is to this writer, and to those who have followed in his footsteps, that we owe all that we have useful in the philosophy of jurisprudence.
But Montesquieu has a peculiar and a remarkable claim upon the American people. It is more than probable that it is to him, with others, that we owe the framework of our government.
It has been remarked that that portion of The Spirit of Laws which pleased most in France, was that which eulogized the English government. This is not singular. The glory of France had passed; nothing remained but poverty, disgrace, and trouble, and disaster both abroad and at home. Her fleets were being destroyed, her armies vanquished, and her colonies wrested from her. Taxes, the seed of all national trouble, were everywhere. There were the land taxes, capitation taxes, tithes, twentieths, taxes upon every article of ornament, use, or consumption, and forced labor upon the roads. The taxes were let and sublet, and sub-let again, so as to draw from the contributable the uttermost farthing. The farmer paid seigniorial taxes of a strange description. He was obliged to grind his corn at his lord's mill, to bake his bread at his oven, and to press his grapes at his wine-press. There was a droit de colombier, which restrained him from molesting his lord's pigeons while they pulled up the new planted seed; a droit de chasse, which exposed the growing crop to be trampled under foot by the horses and dogs of the huntsman; and a droit de paturage, a power of turning cattle upon the ripened grain. There was a droit de pulverage, a tax levied upon the herd for the dust they raised in passing through the fief. There were places for levying custom duties in every province, in every city, and in every town. Upon the river Loire, between St. Rambert and Nantes, goods paid custom duties twenty-eight times over. One would think that such a thorough system
of protection might cause some inequality of prices in different places of the kingdom. At Artois, salt sold for four livres a quintal; at Amiens, it sold for sixty-two livres a quintal. Still, with this perfected revenue system, the people were not happy. The prisons were full of those who could not pay their taxes. In one year, fifty thousand persons were arrested for begging. Lettres de cachet and the Bastille placed personal liberty at the mercy of the ministers. An Italian was arrested by mistake the day of his arrival in Paris, and remained thirty years in prison without being examined, because the instant the door closed upon him he was forgotten. There was no writ of habeas corpus, and when the mistake was discovered, his family were dead, he kuew not a soul in the world, and he begged as a favor to be left where he was till he died. Thirteen superior and three hundred inferior courts, quarrelling with the clergy and prosecuting Protestants, had no time to make jail delivery. The people, “who were nothing, who ought to be every thing, and who wished to be something," had commenced to be uneasy. The French people began to think that their government was not the glorious thing it had been thought to be in the middle of the reign of Louis the Grand. Some took to reading the republic of Plato. Montesquieu, on the contrary, was travelling throughout Europe, observing the manners, the customs, the modes of thought, the wants, and the institutions of the various nations, and studying the histories of all peoples and of all times. He has given us the result in this book. He thought the English government, with its system of checks and balances, with its partition of power between the executive and the two representative houses, each one of the three being a check upon and a balance to the other, and with its division of the sovereign power between the executive, the legislative, and the judiciary departments, in such a manner as to render each reasonably independent of the other, he thought that this government, with its Bill of Rights as a constitution, and the Habeas Corpus Act as a guarantee of personal liberty, was the best government the world had ever seen. This conclusion found favor with practical persons. But it did not please those who thought there was sense in Plato's republic, - a republic in which men are clay and Plato a potter. It is fortunate for mankind that the clay of which they are made is not plastic beneath the fashioner's hand. Helvetius, to whom Montesquieu submitted his manuscript, and who advised him not to publish it, thought nothing was to be learned about government from observation, and wished to play the potter in an ideal government. He wrote to Montesquieu that " a writer, anxious to serve mankind, ought rather to lay down just maxims for an improved order of things yet to arise, than to give force or consequence to those which are dangerous, at the moment when prejudice is striving to preserve and perpetuate human ignorance and subjection. To employ philosophy in giving them consequence, is to give human genius a retrograde motion, and to perpetuate those abuses which interest and bad faith are but too apt to uphold. The idea of perfectibility amuses our contemporaries, offends hypocrites and men in power ; but it instructs our rising generation, and is a light to posterity. If our offspring shall possess common sense, I doubt whether they will accommodate themselves to our principles of government, or adopt in their constitutions, which, without