The Spirit of the Laws

What Book XI, Chapter 6 actually says about England

The chapter opens by counting powers, and the count is stranger than the summaries suggest. In Thomas Nugent's translation Montesquieu writes that in every government there are three sorts of power. The first is the legislative. The second is the executive in respect to things dependent on the law of nations, and the third the executive in regard to things that depend on the civil law. He then renames the third: the latter we shall call the judiciary power, and the other simply the executive power of the state. So the power to judge arrives as a second kind of executive power, not as a third branch standing alongside the other two.

What follows is a warning rather than a design. When the legislative and executive powers are united in the same person, Montesquieu writes, or in the same body of magistrates, there can be no liberty. His reason is that the same monarch or senate may enact tyrannical laws in order to execute them tyrannically. There would be an end of every thing, he adds, were the same man or the same body to exercise all three. The chapter also gives his definition of what is being protected: the political liberty of the subject is a tranquillity of mind, arising from the opinion each person has of his safety.

Montesquieu never used the phrase separation of powers. Michel Troper, writing in the scholarly Dictionnaire Montesquieu, argues that the doctrine attributed to him is a nineteenth-century construction. Jurists of that century turned his argument into a rule that each branch must be specialised and independent. That rule is close to the opposite of what his English model describes. In the England of the chapter the king, the House of Commons and the House of Lords all take part in making law, the king holds an absolute veto, and the Lords judge. Troper's reading, following Charles Eisenmann, is that Montesquieu wanted powers distributed among several bodies so that each could block the others, and that the principle is purely negative — do not let one hand hold everything.

How much of the England in the chapter is real England is a separate question. Philippe Raynaud, in the same dictionary, argues that the chapter is neither a plain description nor a fantasy. Montesquieu had watched the country for eighteen months and filled notebooks with unflattering detail — the English are occupied, he wrote, and do not have the time to be polite. The chapter sets that aside and builds a model meant to solve a puzzle: how England came to be free without either the virtue of a republic or the honour of a monarchy. Raynaud notes that Montesquieu leaves out the English constitutional debates of his own day, and that his handling of the power to judge is curiously thin for a country whose law was made by judges.

One line from the chapter has done more damage than any other. Montesquieu writes that the national judges are no more than the mouth that pronounces the words of the law, mere passive beings incapable of moderating either its force or rigor. Read as a description of English common law it is simply wrong, and Raynaud's point about the thinness of the judicial power lands hardest here. Read as part of the model it does a job: a judge who can bend the law has taken a piece of the legislative power, and the whole arrangement depends on nobody doing that.

The climate theory, and why it has aged badly

Book XIV sets out to explain national character by air temperature, and it does so physically. Cold air, Montesquieu writes, constringes the extremities of the external fibres of the body, which increases their elasticity and helps the blood return to the heart; warm air relaxes and lengthens those fibre-ends and so reduces their force. From there he draws the conclusion the book is remembered for: people are more vigorous in cold climates, and the inhabitants of warm countries are, like old men, timorous, while the people in cold countries are, like young men, brave.

The chapters that follow apply the idea to religion, to farming, to drink, to law-making and to how far a government may trust its own people. Chapter XIII takes England as a case. Montesquieu writes that the English destroy themselves most unaccountably, and that they destroy themselves often in the very bosom of happiness; the cause he gives is the weather. In a nation so distempered by the climate as to have a disrelish of every thing, he continues, the fitting government is one in which the people cannot blame their unease on any single person.

Set those chapters beside Book XI and the awkwardness is plain. Book XI praises the English arrangement of powers as the thing that keeps a country free. Book XIV explains the same country's politics by a suicidal national temperament produced by damp air. The two accounts do not sit together, and the second is not an argument a reader can repair. The physiology it rests on is not how bodies work. The national characters it produces are the stock prejudices of eighteenth-century travel writing.

The climate chapters matter anyway, for two reasons. They are the clearest statement of what Montesquieu was trying to do: explain laws by causes outside anyone's intention, so that a legal code becomes evidence about a place rather than a list of decisions. And Chapter V of the same book states the limit he set himself — bad legislators favour the vices of the climate, good ones oppose them. Climate, on his own account, is a pressure and not a sentence.

Book XV, and the argument about what Montesquieu thought of slavery

Book XV opens with a definition and a verdict. Slavery, properly so called, Montesquieu writes, is the establishment of a right which gives one man such a power over another as renders him absolute master of his life and fortune. The state of slavery, he adds in the next sentence, is in its own nature bad. The four chapters after that take the justifications one at a time — the Roman lawyers' account, conquest, sale of the self, birth — and dismantle each.

Chapter 5, Of the Slavery of Negroes, is the chapter people quote. Montesquieu writes it entirely in the voice of a slaveholder making his case, and every argument he puts in that mouth is meant to be absurd. Sugar would cost too much otherwise. A colour of skin settles whether a creature is a man. The Egyptians killed red-haired men, so appearance has always mattered. The chapter turns at its end, where the borrowed voice says it is impossible for us to suppose these creatures to be men, because allowing them to be men, a suspicion would follow, that we ourselves are not Christians. Sarcasm that sharp against the slave trade was rare in 1748.

Two later chapters of the same book complicate it, and they are where the dispute lives. Chapter 7 says that there are countries where the excess of heat enervates the body, and renders men so slothful and dispirited that nothing but the fear of chastisement will make them work. In those countries, it goes on, slavery is more reconcileable to reason. Chapter 8 draws the conclusion: natural slavery, then, is to be limited to some particular parts of the world, and in all other countries even the most laborious works of society may be performed by freemen. The Stanford Encyclopedia of Philosophy, summarising the same passages, adds that Montesquieu goes on to hope there is not that climate upon earth where the work could not be done by free men.

So the text says three things in one book: that slavery is bad in its own nature, that the people defending it are contemptible, and that in some hot places it is more reconcilable to reason than elsewhere. Readers have drawn opposite conclusions from that set, and the disagreement is a real one about how far the sarcasm of Chapter 5 reaches. Nothing here settles it. What can be said is where each claim sits — Chapter 1 for the verdict, Chapter 5 for the sarcasm, Chapters 7 and 8 for the qualification — so that a reader can go and see the combination for themselves.

Banned in Rome, consulted in Philadelphia

The attack came from the Jansenists first. Pierre Retat, in the Dictionnaire Montesquieu, records that the Nouvelles ecclesiastiques ran a long hostile review across its issues of 9 and 16 October 1749. The paper was a Jansenist one, and Retat notes it had never before taken a non-religious book so seriously. Montesquieu answered in February 1750 with the Defence of The Spirit of the Laws, printed by Huart et Moreau in Paris under a Geneva imprint. The Defence has three parts: a general statement that he writes as a Christian, a point-by-point reply, and a set of reflections meant to lift the quarrel above theology.

The condemnations came anyway. The Stanford Encyclopedia of Philosophy states that the Roman Catholic Church placed The Spirit of the Laws on the Index of Forbidden Books in 1751. The Bibliotheque nationale de France gives the date as 29 November of that year. The Catholic Encyclopedia of 1913, writing from the Church's own side, confirms the book had reached the Roman Index before March 1752. The same 1913 article records that the Sorbonne, the theology faculty of the University of Paris, drew up a list of passages from Montesquieu's writings that seemed to call for censure in August 1752.

Abroad the book did the opposite. When the American states argued in 1787 and 1788 about whether to ratify their new constitution, one serious objection was that it failed to keep the three powers properly apart. James Madison, a principal author of that constitution and later the fourth president of the United States, gave a whole essay to the objection. The oracle who is always consulted and cited on this subject, Federalist 47 begins, is the celebrated Montesquieu.

Madison then argued against the reading his opponents had taken. Montesquieu did not mean that these departments ought to have no partial agency in, or no control over the acts of each other, he wrote. His evidence was Montesquieu's own model. The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry, Madison said, and Montesquieu had treated England as the mirror of political liberty. English powers are emphatically not kept separate. Michel Troper's reading of Book XI, two centuries later, reaches the same place Madison did in 1788.