Courtenay Ilbert

“ To know modern times, one must know antiquity: each law must be followed in the spirit of all the ages.' But for its application he had neither the requisite knowledge nor the requisite capacity. Like his predecessors, he speculated about the state of nature. But for any knowledge of savage or uncivilized man, without which all speculations and theories as to the origin of society are idle, he was dependent on books of travel and accounts of missionaries, with no means of checking their accuracy. ”

“ Montesquieu must therefore die: he must die, as his great countrymen, Descartes, had died before him: he must wither as the blade withers, when the corn is ripe: he must die, but let tears of gratitude and admiration bedew his grave. O Montesquieu! the British constitution, whose death thou prophesiedst, will live longer than thy work, yet not longer than thy fame. Not even the incense of [the illustrious Catherine] can preserve thee.
'Locke—dry, cold, languid, wearisome, will live for ever. Montesquieu—rapid, brilliant, glorious, enchanting—will not outlive his century. ”

“ Montesquieu was thinking of the three main types of government with which he was familiar through study or observation. By a republic he meant the city states of the Greek and Roman world, and also such modern city states as Venice and Genoa. Monarchy was the limited monarchy of the West, which still preserved traditions of constitutional checks, but which was, in most countries, tending to become absolute. Despotism was the unbridled, capricious rule of the eastern world.
Each form of government has its peculiar principle or mainspring. ”

“ To the student of political history he is known as the source of ideas which exercised an influence of incomparable importance in the framing of constitutions both for the old and for the new continent. And for the student of political science, his work marks a new departure in methods of observation and treatment. ”

“ What, then, are the principles which after so long and painful a search, Montesquieu ultimately found? In brief, they are these. The world is governed, not by chance, nor by blind fate, but by reason. Of this reason, the laws and institutions of different countries are the particular expressions. Each law, each institution, is conditioned by the form of government under which it exists, and which it helps to constitute, and by its relations to such facts as the physical peculiarities of the country, its climate, its soil, its situation, its size ”

“ Thus almost all the materials for modern Parliamentary legislation were absent.
This then would have been one of the differences that Montesquieu would have noted—the prodigious increase in the extent and variety of legislation. And on investigating the causes of the difference he would have found the main cause to be this—that the world has been since his time absolutely transformed by the operation of physical science. What has physical science done for the world? It has done three things. It has increased the ease and speed of production. It has increased the ease and speed of locomotion. ”

“ But it has also increased, to an extent unimaginable even in the days of Law's system and the South Sea Bubble, that power of great finance, which manufactures through its press what is called public opinion, pulls the strings of political puppets, and is the most subtle, ubiquitous, and potent of modern political forces. ”

“ As nations live commercially by the free interchange of commodities, so they live intellectually by the free interchange of ideas, and they are not the worse, but the better, for borrowing from each other such laws and institutions as are suitable to their needs. It is true, as Savigny taught, and as Montesquieu had indicated before him, that the laws of a nation can only be understood if they are studied as part of the national life and character. But it is also true that the object of the jurist is to discover the general principles which underlie different systems of law. ”

“ If he has only one million crowns in his treasure chest and he wants two, he has merely to tell them that one crown is equal to two, and they believe it. If he has a difficult war to carry on and has no money, he has merely to put it into their heads that a piece of paper is money, and they are convinced at once. ”

“ Then comes a man who, by some new thought, it may be by some new phrase, which becomes a catchword, like 'evolution,' takes his fellow men out of the old ruts, and opens up to them new regions of speculation and discovery. These are the men that change the world. And Montesquieu was one of these men. ”

“ Within the British Empire we have to legislate for the hill-tribes of India, for the fetish-worshippers of Western Africa, and for the savages of New Guinea, and a museum full of instruction and suggestions to the statesman and the jurist is to be found in the Regulations made by the Government of British India for its less advanced regions and in the Ordinances which have been passed for the West African Protectorates. ”

“ In the year 1902 the legislature of the Straits Settlements was imposing on little Malay children the duty of compulsory attendance at school, and the legislature of Sierra Leone was regulating Mohammedan education on Western lines, whatever that may mean. It is perhaps in the field of industrial legislation that this similarity of treatment and of trend is most remarkable. A quarter of a century ago the liability of employers for injuries to their workmen was in every civilized country regulated by rules derived directly or indirectly from the old Roman law. ”

“ And it was admirably adapted for a writer who wished to let his mind play freely on men and manners, to compare and contrast the religious, political and social codes of different countries, to look at his manifold subject from different points of view, to suggest inferences and reflections, and to do all this without committing himself to or making himself responsible for any definite proposition. ”

“ He was not content to mumble the dry bones of Roman law. He turned men away from abstract and barren speculations to the study and comparison of concrete institutions. And it is in this sense that he may be claimed as one of the founders of the comparative method as applied to the moral and political sciences.
He began at the other end. This may seem a little thing. In reality it was a very great thing. The human mind is intensely conservative. For generations men go on working at the old subjects in the old ways. ”

“ There are general causes, moral or physical, on which the rise, the stability, the fall of governments depend. If a state is ruined by the chance of a single battle, that is to say by a particular event, the possibility of its being so ruined arises from some general cause, and it is for these causes that the historian should seek.' In this short treatise Montesquieu's style perhaps reaches its highest level. ”

“ His doctrine of the relativity of laws, which is the foundation of enlightened conservatism, and has been used in defence of much conservatism which is not enlightened, is not a sufficient foundation for a constructive system, but was an admirable starting-point for a man whose primary interest lay in observing and comparing different institutions and drawing inferences from their similarities and diversities. ”

“ Suddenly, there has entered a man stained with the filth of the streets, his utterance choked with passion,a savage menace lurking in every phrase, and announcing himself as the herald of a furious multitude, ready to tear to pieces all the beautiful theories and formulas which stand between them and their wants.'—Leslie Stephen, English Thought in the Eighteenth Century, p. ”

“ The lively personal sketches become more rare: more space is devoted to the discussion of serious problems such as the causes and effects of the decrease of population in Europe since the flourishing days of the Roman Empire. The writer is no longer content with noting and criticizing: he begins to draw conclusions. In short, the feuilletonist is ripening into the philosophical historian and the political philosopher. ”

“ The influence of Montesquieu on methods of study was as important, though not as immediate [35] , as his influence on the course of political thought. Of the historical and comparative method, in their application to Law and Politics, he was, as has been justly remarked [36] , rather a precursor than a founder. His apreciation of the historical method was imperfect, and his application of it defective. It was not until the expiration of a century after his death that the importance and significance of either the historical or the comparative method was fully realized. ”

“ Some hundred years after Montesquieu's death another brilliant book was written on the Spirit of Law [41] . Savigny had laid down the dogma that the law of each nation is the natural and necessary outgrowth of the national consciousness. Ihering reminded his readers that Rome had thrice conquered the world, first by arms, secondly by religion, and lastly by law; and that the general reception of Roman law, of which Savigny was the historian, was inconsistent with the dogma of the exclusively national character of law, of which Savigny was the prophet. ”

“ And by so doing it has made for democracy, it has made for plutocracy, it has made for great states. It has made for democracy, both by enabling the popular will to act more speedily and effectively, and by the creation of wealth which levels distinctions based on social position. ”

“ He has undertaken and carried on great wars without funds except titles of honour to sell, and, through a prodigy of human pride, his troops have found themselves feared, his fortresses built, his fleets equipped. Moreover he is a great magician. His empire extends to the minds of his subjects: he makes them think as he wishes. ”

“ Physical science has made great democratic states possible, and, great states, or agglomerations of states, necessary. For Montesquieu, as for Aristotle, a democracy meant a body of citizens who could meet together in one place for political discussion. The body must not be too large, for as Aristotle says, if it were, what herald could address them, unless he were a Stentor. But the modern statesman, to say nothing of the modern reporter who heralds a cricket match, can, without being a Stentor, speak to the Antipodes. ”