on commerce.27 If the spirit of commerce naturally produces a spirit of interest opposed to the sublimity of the moral virtues, it also renders a people naturally just, and it banishes laziness and brigandage. Free nations that live under moderate governments are bound to engage in more commerce than slave nations. One nation should never exclude another nation from its trade without very good reasons.28 Nonetheless, liberty in this area is not an absolute faculty granted to traders to do what they want, a faculty that would often be harmful to them; it consists only in hampering traders to the benefit of trade.29 In a monarchy, the nobility should not devote themselves to it, still less the prince. Finally, there are nations for which commerce is disadvantageous—not those that need nothing, but those that need everything, a paradox the author makes concrete by the example of Poland, which lacks everything except wheat, and which, through the commerce it engages in, deprives the peasants of their sustenance in order to satisfy the luxury of the lords. On the subject of the laws that commerce requires, M. Montesquieu presents the history of these different revolutions, and this part of his book is neither the least interesting nor the least curious. He compares the impoverishment of Spain by the discovery of America to the fate of that imbecilic prince of the fable—ready to die of hunger for having asked the gods that everything he touched be converted into gold.30 Since the use of money is a substantial part of the topic of commerce, and its main instrument, he thus thought he should treat the operations on the currency, on exchange, on the payment of public debt, on lending at interest—upon which he defines the laws and limits, and which he in no way confuses with the so justly condemned excesses of usury.31
The population and the number of inhabitants have an immediate relationship with commerce.32 Since the purpose of marriage is population, M. Montesquieu thoroughly examines that important matter here. What most
[print edition page 134]
encourages propagation is public continence; experience proves that illicit unions contribute little, and indeed are harmful. It is with justice that the consent of the father has been established for marriage; however, restrictions ought to be placed on this, for the law ought in general to encourage marriage. The law that prohibits the marriage of mothers with sons is (independent of the precepts of religion) a very good civil law. For aside from many other reasons, since the contracting parties are of very different ages, these sorts of marriages can rarely have propagation as their purpose. The law that prohibits the marriage of father and daughter is based on the same motives; however (speaking only from the perspective of civil law), it is not as indispensably necessary as the other to the purpose of population, since the capacity for procreation ends much later in men. Thus, the contrary custom has occurred among certain peoples upon whom the light of Christianity has not shone. Since nature brings itself to bear on marriage, it is a bad government that would need to encourage it. Liberty, security, moderate taxes, and proscription of luxury are the true principles and the true supports of population. Nonetheless, one may successfully enact laws to encourage marriage when, despite the corruption, there still remain resources in the people that attach them to their Country. Nothing is finer than Augustus’s laws for encouraging the propagation of the species; unfortunately, he passed these laws during the decay, or rather the fall, of the republic. The demoralized citizens must have foreseen that they would no longer be bringing anyone into the world but slaves; thus, the execution of these laws was quite weak during the entire time of the pagan emperors. Constantine in the end abolished them in becoming a Christian, as if Christianity’s purpose was to depopulate society by recommending the perfection of celibacy to a small number.
The establishment of poorhouses,33 depending on the spirit with which it is done, can harm population or encourage it. There may, and even should be, poorhouses in a State in which most of the citizens have only their resourcefulness as an asset, because that resourcefulness may sometimes fall short through misfortune. But the assistance that these poorhouses give should be only temporary, in order not to encourage mendicancy
[print edition page 135]
and idleness. One must begin by making the people rich, and afterward build poorhouses for pressing, unforeseen needs. Woe betide the countries in which the multitude of poorhouses and of monasteries (which are only perpetual poorhouses) makes everyone comfortable except those who work.
M. Montesquieu has thus far spoken only of human laws. He now passes to the laws of religion,34 which in almost all States form such an essential object of government. He everywhere praises Christianity, he shows its advantages and its greatness, he seeks to make it loved. He maintains that it is not impossible, as Bayle claimed,35 for a society of perfect Christians to form a durable and coherent State. But he also thought it permissible for him to examine what the different religions (humanly speaking) might have that is in conformity with, or contrary to, the genius and situation of the peoples who profess them. It is from this point of view that one must read everything he wrote on this matter, which has been the subject of so many unjust rantings. It is especially surprising that in an age that calls so many other ages barbarous, what he said about tolerance should have been made a crime against him, as if to tolerate a religion was to approve of it, as if even the Gospel did not proscribe every other means of spreading itself but mildness and persuasion. Those in whom superstition has not extinguished every feeling of compassion and justice will be unable to read without being moved to pity the remonstrance to the inquisitors—that odious tribunal which outrages religion while appearing to avenge it.36
Finally, after treating individually the different types of law that men may have, it remains only to compare them all together, and to examine them in their relationship with the things they ordain.37 Men are governed by different types of law: by natural law, common to each individual; by divine law, which is that of religion; by ecclesiastical law, which is that of the administration of the religion; by civil law, which is that of the members of the same society; by political law, which is that of the government
[print edition page 136]
of that society; by the law of nations, which is that of societies’ relations with each other. These laws each have their distinctive objects, which must not be confused. One must never regulate by one type of law what belongs to another, so as to avoid sowing disorder and injustice in the principles that govern men. The principles that prescribe the type of law, and that circumscribe its purpose, must also prevail in the manner of drafting them.38 As far as possible, the spirit of moderation must dictate all its clauses and provisions. Well-made laws will be in conformity with the spirit of the legislator, even when appearing to be opposed to it.39 Such was the famous law of Solon, by which all those who took no part in an act of sedition were declared infamous. It either prevented seditions or made them useful by forcing all members of the republic to attend to its true interests. Ostracism itself was a very good law. For on the one hand, it treated the affected citizen honorably, and on the other, it made provision against the effects of ambition. Moreover, a great many votes were necessary, and banishment was only possible every five years. Often, laws that seem the same have neither the same motive nor the same effect nor the same level of equity: the form of government, the specific conjunctures, the character of the people change everything. Finally, the style of the laws should be simple and serious. They can dispense with motivating, because the motive is assumed to exist in the mind of the legislator. But when they do motivate, it should be on evident principles; they should not resemble that law which, prohibiting the blind from pleading, adduces as a reason that they cannot see the ornaments of the magistracy.40
To show by examples the application of his principles, M. de Montesquieu chose two different peoples, the most celebrated on earth and the one whose history interests us the most: the Romans and the French.41 He devotes himself to only a part of the jurisprudence of the former, that which concerns inheritance. As for the French, he goes into the greatest detail on the origin and revolutions of their civil laws, and on the different customs, abolished or still extant, that have resulted from them. He mainly covers
[print edition
