The Godfather of the American Constitution
First novels are often erotic and almost always autobiographical. The Persian Letters, one of the earliest and most famous of French novels, published anonymously in Amsterdam and a runaway bestseller of the 1720s, was a bit of both.
Its author, Charles-Louis de Secondes, Baron de La Brède, Baron de Montesquieu, was born exactly one hundred years before the convening of the first Federal Congress empowered by the American Constitution, a document drawn up by men who knew Montesquieu who had read his books, knew his political views by heart, and regarded him as an oracle.
The young man who brought out that first novel was far from being an oracle, but the cast of his character was already formed. He was bright, irreverent and fascinated by the ever-changing spectacles of 18th-century life. The novel consists of a stream of letters flowing back and forth between Persia and Paris. Two young Persian noblemen, Usbek and Rica, have gone abroad to observe the exotic customs of the Europeans, which gives the author to poke a good deal of fun at the laws and morals, doctors and lawyers and society ladies of the Paris of Louis XIV the "Sun King." Their letters, describing the odd and irrational ways of the West are matched by letters written by wives and eunuchs of the harems back in Ispahan, revealing a life even more odd and irrational. Usbek, the mild-mannered gentleman visiting Parisian salons, is revealed as a despot at home, with power of life and death over a number of women who are allowed to see no other man and who have no function except to satisfy their master's every whim. While their master sends them sprightly letters about the manners of the infidels, the women pour out on paper their repressed sensuality, their peevish jealousies and resentments, their tantrums. From a safe distance Usbek tries to calm them down. The book ends melodramatically when Rosanna, the most cherished of the wives, is caught in bed with a lover, declares her independence and kills herself.
In real life, Montesquieu never had the bad taste to imitate literature. No suicide, in fact no display or violent emotion of any kind, was to mar his well-regulated existence. Passion rather bored him. One person in love, he observed, was very much like any other, while the world of ideas was full of infinite variety. His wide-ranging studies had taught him that the same actions can take on very different aspects at different times and at different places.
Like Usbek, he was an aristocrat who never had to really worry about where the money was coming from. He had forebears in both the sworded nobility (noblesse d'épée) which did the fighting and the gowned nobility (noblesse de robe) those highborn black-robed men who, before the Revolution, dispensed the laws of France from seats in the regional parlements of the kingdom. Despite their name, the parlements had little in common with the English-style legislative bodies of today. They were primarily law courts, and a seat in any one of them - like most of the other administrative posts in the French government of the ancien régime - was a commodity that could be passed on by inheritance, as Montesquieu's uncle did to him, or sold to the highest suitable bidder, as Montesquieu himself was to do at the age of 36 when he got tired of all the paper work and needed some extra cash.
As a great landowner and a parlementaire, Montesquieu accepted the privileges and the prejudices of his class. He knew the limitations of the parlements, but he defended them on the grounds that a man who had put out a good deal of money to get a government office was more apt to show independent judgment than one appointed by the king and serving at the royal whim. Viewed from the standpoint of today, his private life looks more like Usbek's than perhaps he would have appreciated. His profitable marriage with a Protestant woman made Montesquieu extremely rich, even without the fortune he would inherit from his uncle a year later. Although he appreciated his wife (she was a first-rate housekeeper and book-keeper), he paid as little attention to her as possible. She remained devoted to him, competently managing the chateau and vineyards of La Brède while he traveled, visiting the leading intellectual figures of England, Germany and Italy, or kept up a fashionable bachelor's establishment in Paris. He had a number of affairs with ladies of quality, some of them stormy, but never stormy enough to disturb the equilibrium of his life. The most important thing to know about an affair, he said, was to know how to break it off cleanly once the thrill was gone.
At La Brède, he said affectionately, Nature wore her bathrobe, and he regularly went back there to enjoy the grape-picking season, staying on until he had overseen arrangements for selling his wine to discriminating customers ll over Europe. He had three children, including a daughter, Denise, of whom he was very fond. But noble lineages are not built on fondness. When it became very clear that his only son was not going to have a male heir, he married off Denise, much against her will, to a third cousin twice her age. He was a dull creature, but the match would perpetuate the name and keep the property in the family.
What Montesquieu considered really important, however, was study and the play of ideas, mostly to be found in Paris where he could be free of all his family affairs. This was the great age of witty but serious conversation, a perpetual play of give-and-take among the finest minds of Europe. Though his ideas had their own personal coloring, they generally reflected the climate of the day. This was the dawn of the Enlightenment, when a radical and sell-confident group of thinkers, known as philosophes, were proposing nothing less than tearing down the whole structure of ideas on which European civilizations had rested for a thousand years and putting a new one in its place.
In the world of their fathers, it was assumed that chaos could be best kept at bay if speech, thought, trade and faith were all strictly regulated by the central authority of church and state. Against all that, the philosophes were now proposing freedom of thought and speech, equality under the law, separation of church and state, religious toleration, representative government, public education, individual rights.
Eighteenth-century intellectual activity was typically conducted in a salon where a society hostess would regularly invite a group of congenial people for food and civilized talk. Like the cocktail-party, its debased modern derivative, the salon provided an opportunity for exchanging gossip, for amatory intrigue, for pulling delicate political strings. But its main function was to stimulate free-wheeling discussion of new and provocative ideas. In the salons of an expert hostess like Julie de Lespinasse, the guests were "so well assorted that they were in harmony like the strings of an instrument in the hands of a skilled tuner."
Whenever he visited a new town, Montesquieu liked to climb up a high tower and get a good overall look at the place, then come down and examine its different parts at leisure. He approached intellectual problems in rather the same way. This was the Age of Reason, before specialists and experts had taken over everything, and a well-educated man might well claim all knowledge as his province. Montesquieu presented to the Academy of Bordeaux learned papers on such heterogeneous subjects as Echoes, the Transparency of Objects and the Uses of the Kidney Glands. He liked to make an Olympian survey of general principles, then leap down among the details, following them with no fixed plan, much as they might come up in a brisk conversation with such philosophes as Helvétius and Voltaire in the salons of Madame de Tencin to Madame Geoffrin.
This was not an efficient method of studying the physical science, but it was suited perfectly to the loose-jointed masterpiece on which he spent more than fifteen years of his life, to which he was still adding variations when he lay old and blind and dying at Le Brède. This work if L'Esprit des Lois, the Spirit of the Laws, whose more than six hundred chapters are grouped in thirty-one books. Completed in 1745 and published in 1748, it is one of the most influential books of all time, a treatise celebrated enough to have a big city street named after it, Bordeaux's Boulevard de l'Esprit des Lois. It is a grab-bag of general principles and particular observations, mixing a theory of government and many reflections on ancient and modern history, and comments on the influence of climate on national character, and an outline of what a hundred years later would receive the name of sociology. The section that had the most impact on America dealt with the separation of powers, legislative and executive and judicial, drawn from his conversations in England with Viscount Bolingborke.
He began with the then highly radical premise that laws are not the result of a divine revelation to some Moses or Lycurgus or any other of the traditional lawgivers of antiquity, but a natural evolution out of everything that influences the life of a country, including climate, soil, habit, tradition, history, religion and how the inhabitants make their living. A rational man, he said, could study these matters the way Newton had studied the natural world, and the use the knowledge to adjust the laws of his country in the direction of greater liberty for all. As two of Montesquieu's most avid American readers, James Madison and Alexander Hamilton, put in the Federalist papers, men were now capable of "establishing good government from reflection and choice," instead of having to "depend for their political constitutions on accident and force."
Madison and Hamilton were babes in arms when The Sprit of the Law appeared in 1748. Great Britain's colonies in North America were just that, colonies, offshoots of the United Kingdom and proud of it. They would soon help the mother country fight a great war against French colonists and their Indian allies to the north and west. Nevertheless, it was in these English colonies that some of Montesquieu's notions took deepest root.
When Americans began to grow restive under the distant rule of England, Montesquieu's writings provided them with a framework of ideas into which they could fit their grievances and their aspirations. In England, Bolingbroke had taught Montesquieu to dislike the tight hold on the colonies kept by Robert Walpole's government in London during the reigns of George I and George II. Now the colonies could use Montesquieu to strengthen their resistance to George III.
They believed that their rights were guaranteed by the constitution of England., but there was no written constitution of England they could appeal to.
In fact, there had never been a nation anywhere in the world with a written constitution. The English constitution was, as it still is, an unwritten consensus of the proper rules for governing the nation, and in that consensus Montesquieu recognized that something new had evolved, a balanced, liberal, self-regulating form of government like nothing seen before in ancient or in modern times. By summarizing its features - representative government, separation of powers, individual rights - he was making a blueprint for future creators of written constitutions.
America's founding fathers leaped on that blueprint, especially chapters 5 and 6 of Book XI of Spirt of the Laws. There they found the definition they wanted of the word "liberty." "Liberty is the right of doing whatever the law permits." In other words, a law-abiding citizen has a right to be left alone. But he must also be able to feel safe. "In order to have this liberty, it is requisite for the government to be so constituted as one man need not be afraid of another."
England had such a government, Montesquieu believed, and its greatest virtue was a separation of the civil authority into three branches which did not overlap. "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be on liberty...Again, there is no liberty, if the power of judging be not separated from the legislative and elective powers."
At the Convention which the created the Constitution of the United States of America in Philadelphia in 1787, James Madison cited Montesquieu as his authority for insisting on the separation of executive, legislative and judicial powers in the new government, the "checks and balances" that have become part of the American tradition. Like several other members of the convention he had studied The Spirit of the Laws under President Witherspoon of Princeton, who drilled his students so thoroughly that twenty years after leaving college, Madison could still quote whole paragraphs from memory.
Madison was no slavish disciple fo Montesquieu. H ventured to disagree with the master when he held that republics are inherently unstable and can exist only in a confined area, like England, with a homogenous population. No, said Madison, in a small state or territory a majority could act in concert and "execute plans of oppression." In an extended republic liked the United States, on the other hand, the large number of parties made such collusion almost impossible. "In the extent and proper structure of the Union, we behold a republican remedy for the diseases most incident to republican government." The very diversity of the thirteen states insured that no one group or interest would come to dominate. This was according to Montesquieu's precepts, the spirit of practical moderation. Compromise and adjustment were watchwords for Montesquieu, as they were for the lawyers and planters in Philadelphia, who no longer had a revolution to win but needed to set up a system that would work. Both the philosophe and the practical politicians hated extremes.
Because Montesquieu had only limited faith in the goodness of human nature, he reasoned that anyone who possessed power would desire to increase it, and the only way to stop him was by a system of rival powers, a view that the Founding Fathers, fearful alike of tyranny by the many or by the few, subscribed to. "The oracle who is always consulted and cited on this subject," said Madison, "is the celebrated Montesquieu. If he be not the author of the invaluable precept in the sciences of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind.".
"Political liberty," he wrote, "consists in security, or, at least, in the opinion that we enjoy security." Modern critics of U. S. Supreme Court decisions that seen to give accused persons too many right might ponder Montesquieu's belief that "It is on...the goodness of criminal laws that the liberty of all subjects principally depends." He had no illusions that men left to themselves would automatically strive for the betterment of the human race. His historical studies had taught him how efficient and long-lasting a despotism, based on pure terror and violence, could be. He would have put no faith at all int eh pronouncement of another French aristocrat who played a major role in the Enlightenment, Jefferson's friend and idol the Marquis de Condorcet, who predicted that "the moment will come when the sun will shine on none but free men>"
Condorcet was a much deeper and more original thinker than Montesquieu. A mathematical genius and man of great generosity of spirit and breadth of vision, Condorcet had every quality except common sense. He hated Montesquieu's idea of the separation of powers because it muddied the pure radiance of his idea of universal liberty. All power to the people, Condorcet declared, and forget all this nonsense about checks and balances. Montesquieu could have told him (and he did, in Book V, chapter 11) that if you start with direct rule by the people you are apt to end up with a concentration of despotic power far worse than any king's.
The French Revolution which began in 1789 began true to Montesquieu's legacy, in a spirit of moderate reform but it was soon taken over by extremists. In the name of liberty and the people, a few hundred members of the Jacobin Club in Paris seized power and proceeded, among other things, to condemn Condorcet to death for having opinions different from their own..
Condorcet spent the last months of his life hiding from Robespierre's bloodhounds, writing a voluminous work to prove by rigorous logic that the human mind was infinitely perfectible. One day, famished and exhausted, he stumbled into a roadside tavern and ordered an omelet. When they asked him how many eggs he wanted in it, he didn't know what to say - a marquis, even an impoverished revolutionary marquis like Condorcet, would never have had any reason to be inside a kitchen - he answered at random, Twelve. Marked out at once as a suspicious character, and certainly no child of the common people, he spent the next two nights in jail and only escaped the guillotine by swallowing the poison he had learned enough to always carry about his person.
Montesquieu, the wine grower who had to deal every year with the unforgiving and unpredictable necessities of soil, climate and human perverseness, always knew how many eggs went into his omelets. Once he had been taken to the top of his tower, he liked to come down and feel the earth under his feet. He had no use for the kind of philosopher who deals only with abstract generalities.
It was that solid down-to-earth feeling which made Montesquieu's ideas so congenial to the Madisons and Hamiltons in the American colonies, who were trying to deal with the intractable materials of local selfish interests and build them into a united commonwealth. And that is why this suave, quietly ironic, long-nosed French nobleman became, in effect, the godfather of the American Constitution. . .
©1987 Robert Wernick