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here to premise) is to show, not, as has been frequently supposed, what laws ought to be,—but how the diversities in the physical and moral circumstances of the human race have contributed to produce diversities in their political establishments, and in their municipal regulations. * On this point, indeed, an appeal may be made to the author himself. "I write not,” says he, “to censure any thing established in any country whatsoever; every nation will bere find the reasons on which its maxims are founded.” This plan, however, which, when understood with proper limitations, is highly philosophical, and which raises Jurisprudence, from the uninteresting and useless state in which we find it in Grotius and Puffendorf, to be one of the most agreeable and important branches of useful knowledge (although the execution of it occupies by far the greater part of his work), is prosecuted by Montesquieu in so very desultory a manner, that I am inclined to think he rather fell into it insensibly, in consequence of the occasional impulse of accidental curiosity, than from any regular design he had formed to himself when he began to collect materials for that celebrated performance. He seems, indeed, to confess this in the following passage of his preface: “Often have I begun, and as often laid aside this undertaking. I have followed my observations without any fixed plan, and without thinking either of rules or exceptions. I have found the truth only to lose it again.”
But whatever opinion we may form on this point,Montesquieu enjoys an unquestionable claim to the grand idea of connecting Jurisprudence with History and Philosophy, in such a manner as to render them all subservient to their mutual illustration. Some occasional disquisitions of the same kind may, it is true, be traced in earlier writers, particularly in the works of Bodinus; but they are of a nature too trifling to detract from the glory of Montesquieu. When we compare the jurisprudential researches of the latter with the systems previously in possession of
* This, though somewhat ambiguously expressed, must, I think,
have been the idea of D'Alembert in the following sentence: “ Dans cet ouvrage, M. de Montesquieu s'occupe moins des loix qu'on a faites, que de celles qu’on a du faire.” (Eloge de M. de Montesquieu.) According to the most obvious interpretation of his words, they convey a meaning which I conceive to be the very reverse of the truth. VOL. VI.
the schools, the step which he made appears to have been so vast, as almost to justify the somewhat too ostentatious motto prefixed to them by the author; Prolem sine matre creatam. Instead of confining himself, after the example of his predecessors, to an interpretation of one part of the Roman code by another, he studied the Spirit of these laws in the political views of their authors, and in the peculiar circumstances of that extraordinary race. He combined the science of law with the history of political society, employing the latter to account for the varying aims of the legislator ; and the former, in its turn, to explain the nature of the government, and the manners of the people. Nor did he limit his inquiries to the Roman law, and to Roman history; but, convinced that the general principles of human nature are every where the same, he searched for new lights among the subjects of every government, and the inhabitants of every climate; and, while he thus opened inexhaustible and unthought of resources to the student of Jurisprudence, he indirectly marked out to the legislator the extent and the limits of his power, and recalled the attention of the philosopher from abstract and useless theories, to the only anthentic monuments of the history of mankind.*
This view of law, which unites History and Philosophy with Jurisprudence, has been followed out with remarkable success by various authors since Montesquieu's time; and for a considerable number of years after the publication of The Spirit of Laws, became so very fashionable (particularly in this country,) that many seem to have considered it, not as a step towards a farther end, but as exhausting the whole science of Jurisprudence. For such a conclusion there is undoubtedly some foundation, so long as we confine our attention to the ruder periods of society, in which governments and laws may be universally regarded as the gradual result of time and experience, of
As examples of Montesquieu's peculiar and characteristical style of thinking in The Spirit of Laws, may be mentioned his Observations on the Origin and Revolutions of the Roman Laws on Successions ; and what he has written on the History of the Civil Laws in his own Country ; above all, his Theory of the Feudal Laws among the Franks, considered in relation to the revolutions of their monarchy. On many points connected with these researches, his conclusions have been since controverted : but all his successors have agreed in acknowledging him as their common master and guide.
circumstances and emergencies. In enlightened ages, however, there cannot be a doubt, that political wisdom comes in for its share in the administration of human affairs; and there is reasonable ground for hoping, that its influence will continue to increase, in proportion as the principles of legislation are more generally studied and understood. To suppose the contrary, would reduce us to be mere spectators of the progress and decline of society, and put an end to every species of patriotic exertion.
Montesquieu's own aim in his historical disquisitions, was obviously much more deep and refined. In various instances, one would almost think he had in his mind the very shrewd aphorism of Lord Coke, that, “to trace an error to its fountain-head, is to refute it;”-a species of refutation, which, as Mr. Bentham has well remarked, is, with many understandings, the only one that has any weight.* To men prepossessed with a blind veneration for the wisdom of antiquity, and strongly impressed with a conviction that every thing they see around them is the result of the legislative wisdom of their ancestors, the very existence of a legal principle, or of an established custom, becomes an argument in its favor; and an argument to which no reply can be made, but by tracing it to some acknowledged prejudice, or to a form of society so different from that existing at present, that the same considerations which serve to account for its first origin demonstrate indirectly the expediency of now accommodating it to the actual circumstances of mankind. According to this view of the subject, the speculations of Montesquieu were ultimately directed to the same practical conclusion with that pointed out in the prophetic suggestions of Bacon ; aiming, however, at this object, by a process more circuitous; and, perhaps, on that account, the more
• If our ancestors have been all along under a mistake, how came they to have fallen into it? is a question that naturally occurs upon all such occasions. The case is, that, in matters of law more especially, such is the dominion of authority over our minds, and such the prejudice it creates in favor of whatever institution it has taken under its wing, that, after all manner of reasons that can be thought of in favor of the institution have been shown to be insufficient, we still cannot forbear looking to some unassignable and latent reason for its efficient cause. But if, instead of any such reason, we can find a cause for it in some notion, of the erroneousness of which we are already satisfied, then at last we are content to give it up without further struggle; and then, and not till then, our satisfaction is complete.” Defence of Usury, pp. 94, 95.
likely to be effectual. The plans of both have been since combined with extraordinary sagacity, by some of the later writers on Political Economy ;
but with their systeins we have no concern in the present section. I shall therefore only remark, in addition to the foregoing observations, the peculiar utility of these researches concerning the history of laws, in repressing the folly of sudden and violent innovation, by illustrating the reference which laws must necessarily have to the actual circumstances of a people,—and the tendency which natural causes have to improve gradually and progressively the condition of mankind, under every government which allows them to enjoy the blessings of peace and of liberty.
The well merited popularity of The Spirit of Laws gave the first fatal blow to the study of Natural Jurisprudence; partly by the proofs which in every page, the work afforded, of the absurdity of all schemes of Universal Legislation; and partly by the attractions which it possessed, in point of eloquence and taste, when contrasted with the insupportable dulness of the systems then in possession of the schools. It is remarkable, that Montesquieu has never once mentioned the name of Grotius; -in this, probably, as in numberless other instances, conceiving it to be less expedient to attack established prejudices openly and in front, than gradually to undermine the unsuspected errors upon which they rest.
If the foregoing details should appear tedious to some of my readers, I must request them to recollect, that they relate to a science which, for much more than a hundred years, constituted the whole philosophy, both ethical and political, of the largest portion of civilized Europe. With respect to Germany, in particular, it appears from the Count de Hertzberg, that this science continued to maintain its undisputed ground, till it was supplanted by that growing passion for Statistical details, which, of late, has, given a direction so different, and in some respects so opposite, to the studies of his countrymen.*
* Above all, by Mr. Smith ; who, in his Wealth of Nations, has judiciously and skilfully combined with the investigation of general principles, the most luminous sketches of Theoretical History relative to that form of political society, which has given
birth to so many of the institutions and customs peculiar to modern Europe. - The strong ray of philosophic light on this interesting subject,” which, according to Gibbon, “ broke from Scotland in our times," was but a reflection, though with af ar steadier and more concentrated force, from the scattered but brilliant sparks kindled by the genius of Montesquieu. I shall afterwards have occasion to take notice of the mighty influence which his writings have had on the subsequent history of Scottish literature.
When from Germany we turn our eyes to the south of Europe, the prospect seems not merely sterile, but afflicting and almost hopeless. Of Spanish literature I know nothing but through the medium of Translations; a very imperfect one, undoubtedly, when a judgment is to be passed on compositions addressed to the powers of imagination and taste; yet fully sufficient to enable us to form an estimate of works which treat of science and philosophy. On such subjects, it may be safely concluded, that whatever is unfit to stand the test of a literal version, is not worth the trouble of being studied in the original. The progress of the mind in Spain during the seventeenth century, we may therefore confidently pronounce, if not entirely suspended, to have been too inconsiderable to merit attention.
“The only good book,” says Montesquieu, “ which the Spaniards have to boast of, is that which exposes the absurdity of all the rest.” In this remark, I have little doubt that there is a considerable sacrifice of truth to the pointed effect of an antithesis. The unqualified censure, at the same time, of this great man, is not unworthy of notice, as a strong expression of his feelings with respect to the general insignificance of the Spanish writers.
The inimitable work here referred to by Montesquieu, is itself entitled to a place in this discourse, not only as one of the happiest and most wonderful creations of Human fancy, but as the record of a force of character, and an enlargement of mind, which, when contrasted with the prejudices of the author's age and nation, seem almost miraculous. It is not merely against Books of Chivalry that the satire of Cervantes is directed. Many other
* “La connoissance des états qu'on se plait aujourd'hui d'appeller Statistique, est une de ces sciences qui sont devenues à la mode, et qui ont pris une vogue générale depuis quelques années ; elle a presque dépossédé celle du Droit Public, qui régnoit au commencement et jusques vers le milieu du siècle présent.” Reflections sur la Force des Etats. Par M. le Comte de Hertzberg. Berlin, 1782.