Seven

Montesquieu and the American Constitution

America has long been interested in Montesquieu. From those remote days in the eighteenth century when his books found their slow way by sailing vessel across the Atlantic to a comparatively recent time when an assumption was prevalent that some of his ideas had exerted an influence on the Constitution of the United States, many Americans have been concerned with this writer. Some scholars have claimed for him a significant role in the development of American political thought. Others have vigorously denied the validity of their claims. The most astonishing fact of all is that two hundred years after the foundation of the Republic disagreement still persists as to Montesquieu’s importance in the crucial years of American history.

Gladstone affirmed that the American Constitution was “the most wonderful work ever struck off at a given time by the brain and purpose of man.” This language may strike us as inflated, but the statement is not unsupported. The document is girded with the triple and ingeniously twisted strands of separation of powers, balance of powers, and checks and balances. The checks and balances buttress the Constitution’s interior structure.¹ They counterpoise its exterior structure, the separation of power into legislative, executive, and judicial branches, which Madison referred to as “parchment barriers.” This Constitution, the Federal Constitution of “the compound republic of America,” to use the Virginian’s words,² unites both experience and theory.

Montesquieu’s impact, or lack of impact, on early American constitutional thought is, as indicated above, a subject that has provoked much controversy. Between the extreme and conflicting statements of some scholars, one finds numerous and sundry views of others. A survey of this mass of scholarly opinion leads only to an impasse. Many years ago I concluded that the role of Montesquieu in the most critical period of our national history would continue to be a matter for speculation and debate if there were no other avenues of approach to the subject than those hitherto traveled. It seemed obvious that a satisfactory solution of what I then saw as only a conceptual problem hinged on the acquisition of some very basic information—in short, that conclusions about influence could not be validly arrived at until many facts were in hand concerning the extent of American acquaintance with the French thinker. These facts I brought together in my book Montesquieu in America, 1760–1801.³ Written solely from the literary historical point of view, the book treats of the dissemination of Montesquieu’s writings, opinions of him, and the use made of his work during the American Enlightenment.

A few words concerning the sources of my information will be appropriate. Books, essays, pamphlets, printed speeches, library catalogs, booksellers’ advertisements, and college curricula were all turned to account. I went through the writings and letters of leaders of American thought in the colonial and later period. Sources of prime importance also were the accounts of debates in the various conventions. For popular opinion, I examined important newspapers published in different sections of the country. Research among these newspapers, some of different political complexion, others avowedly nonpartisan, with few exceptions covered either many continuous years of their existence, or the period from their inception up to Jefferson’s accession to the presidency, or in some cases even their life span. This investigation, as representative and complete as possible, yielded results which are both interesting and significant.⁴

Since the publication of these findings, I have continued my study of Montesquieu in America. The problem, as I now clearly see, not only is conceptual but also heavily involves institutional history. In regard to the latter aspect, I am much indebted to a remarkable article by Sergio Cotta.⁵ He opened my eyes to the importance of the writings of Sir Edward Coke to early American legal thought.

Around 1760 Americans began to be preoccupied with the relationship of the colonies to English parliamentary power. Theories of government, rights, and liberty engrossed their attention. A succession of parliamentary acts in the years following provoked the colonists to anger and caused both resentment and resistance. Worsening relations with England led to the meeting of the First Continental Congress in 1774. Two years later, the Second Continental Congress declared the independence of the American colonies. The Declaration prompted the drawing up of state constitutions. The Constitutional Convention of 1787 framed a constitution for the people of the United States. And the new federal government began its operations in March 1789.

Did Montesquieu influence the American Constitution? Let me set forth, as succinctly as possible, the reasons which lead me to my own conclusions.⁶

Colonials and later Americans were surprisingly well acquainted with Montesquieu. The booksellers’ advertisements in the newspapers make it quite clear that Americans had ample opportunity to buy books by great English and French writers. Most often the booksellers advertised Montesquieu’s writings in English although some could be purchased in French. The advertisements in the press contained few offerings of his Lettres persanes or of his Considérations sur les causes de la grandeur des Romains et de leur décadence. But the Esprit des lois was repeatedly and consistently advertised in English translation. This book, in English, was early for sale: in Charleston in 1756, at Annapolis in 1762, at Williamsburg in 1765, and in Boston certainly by 1771. It was a “better seller” in the American colonies in 1774.⁷

Books of Montesquieu were in the libraries of such leaders of thought as Franklin, John Adams, Jefferson, James Wilson, John Witherspoon, and John Marshall. To judge by the numerous citations of the Spirit of Laws in their papers and speeches, although one cannot always point with certainty to the book’s presence in their libraries, many other influential Americans—among them George Mason, James Otis, John Dickinson, Samuel Adams, Nathaniel Chipman, Richard Henry Lee, Edmund Randolph, Alexander Hamilton, and James Madison—were familiar with the masterpiece. Montesquieu’s books were also to be found in circulating libraries and in some college libraries. The Spirit of Laws was recommended to law students. At Princeton and Yale it was used as a textbook.

The American gazettes disseminated Montesquieu’s ideas. Both before and after the Revolution editors printed extracts, sometimes entire chapters, from his masterpiece. Occasionally they did not even bother to acknowledge their source. During the colonial period and under the government of the Continental Congress, it was quoted in books, newspaper articles, magazines, pamphlets, sermons, and speeches. By 1787 the Spirit of Laws had become an “American” classic. It was cited in the Constitutional Convention at Philadelphia in the debates on the Constitution and in the state ratifying conventions. It was referred to and quoted in The Federalist, the collection of important papers written to encourage the adoption of the great charter. Revolutionist and Loyalist, Anglican and Quaker, Federalist and Republican, advocate and adversary of the Constitution all reinforced and adorned their articles and addresses by citing this treatise. Throughout the century it was used as an authoritative handbook of political information. Montesquieu was held in high esteem. If generally admired and respected, he was, nevertheless, the object of isolated attacks. But instances of iconoclasm were few indeed. Jefferson, absent in France during the Constitutional Convention, was his only real detractor.

By the time of the Declaration of Independence Jefferson had copied and filled twenty-eight pages of his Commonplace Book with extracts from the Spirit of Laws, more space than he devoted to any other author. But later on Jefferson changed his opinion of the French writer. His antagonism, first manifested openly in 1790 to my knowledge, appears to have been motivated by political and ideological considerations. Montesquieu’s “blind admiration for everything English was precisely Jefferson’s bugbear,” writes Gilbert Chinard, “and there is little doubt that he considered Montesquieu as a sort of political opponent and the chief support of his most ardent enemies [the Federalists].”⁸

On September 16, 1810, Jefferson wrote to William Duane, Philadelphia printer and editor, that Montesquieu’s “predilection for monarchy, and the English monarchy in particular, has done mischief everywhere, and here also, to a certain degree.” Concerning ideological differences between the two philosophes, one example will suffice. In a letter to Nathaniel Niles on March 22, 1801, Jefferson spoke of “the falsehood of Montesquieu’s doctrine, that a republic can be preserved only in a small territory,” and he said, “The reverse is the truth.” Madison would have agreed (see The Federalist, Number 10). In another letter to Duane, on August 12, 1810, the Virginian criticized the Spirit of Laws “as a book of paradoxes; having, indeed, much of truth and sound principle, but abounding also with inconsistencies, apochryphal facts and false inferences.” And he added, “It is a correction of these which has been executed in the work I mention.” Jefferson had fixed on a course of action to belittle Montesquieu. The work of “correction” to which he refers was a French manuscript by Destutt de Tracy. Jefferson saw to its translation and publication in the United States. This work—A Commentary and Review of Montesquieu’s Spirit of Laws, published by William Duane in Philadelphia—appeared anonymously in 1811.⁹ The author of the Declaration of Independence called it “the most valuable political work of the present age.” He expressed the hope that it would “become the elementary book of the youth at all our colleges,” and his correspondence offers evidence that he did what he could to bring this about. “Such a reduction of Montesquieu to his true value,” Jefferson said, “had been long wanting in political study.”

This is a good place to call attention to the chief subjects on which men appealed to Montesquieu’s authority in the decades between 1760 and 1800. Before 1774, the year of the First Continental Congress, most of the citations had to do with the English constitution. His reputation in America was established by the chapter on this constitution in De l’Esprit des lois, first published in English translation in 1750.¹⁰ Americans appealed to the celebrated chapter because in it Montesquieu insisted on the separation of the executive, legislative, and judicial powers of government as the indispensable condition of liberty. In addition to the subjects of separation of powers and political liberty, the French thinker was apparently most cited on confederate republics and on virtue as the principle of republican government. Opponents of the American Constitution cited his dictum that a republic could exist only on a small territory. But defenders of the Constitution parried their thrusts by quoting him on the advantages of a federal republic. Most of the controversy among scholars concerning Montesquieu and American political thought has revolved around the subject of separation of powers, and to this I turn.

Cotta calls attention to the fact that in the chapter on the constitution of England there are two types of tripartition of powers: the one concerning the executive, the legislative and the judicial; the other the chief of the executive, the body of nobles, and the body of representatives. The purpose of the first tripartition, Cotta writes, it to ensure the liberty of the individual against the powers of the state. The second establishes the conditions for the exercise of powers by any government wishing to be free. This double tripartition, he adds, corresponds therefore to two different notions of liberty: civil liberty and political liberty.¹¹ I propose in this essay to deal only with the first type of tripartition. The second type to which Cotta refers pertains to a mixed or balanced form of government.¹²

Separation of the powers of government into executive, legislative, and judicial branches is, as everyone knows, a fundamental principle of the American Constitution. If Montesquieu exerted a definite influence in America, it was on this tripartition. It is certain that there was a tendency here toward such separation long before the Spirit of Laws first appeared in French (1748). In my book Montesquieu in America, I point to two official protests against violation of the principle. The first, in Maryland in 1720, had to do with the uniting of executive and judicial powers; the second, in New Jersey in 1744, involved the union of legislative and judicial functions. To give Montesquieu credit for the great principle incorporated in our Constitution, simply on the basis of ideological resemblance, would be foolhardy. On the other hand, one cannot disavow his influence because of the colonial tendency toward this tripartition, or because the principle was followed after a fashion in state constitutions adopted immediately after the Declaration of Independence.

The doctrine elaborated by Montesquieu is, as I believe, unique:

It is hardly irrevelant to compare a paragraph in the Virginia constitution of 1776 with the preceding passage:

Nor is it inappropriate to compare Article 30 of A Declaration of Rights in the Massachusetts constitution of 1780:

The last clause is from James Harrington’s Commonwealth of Oceana (1656). Whence came the inspiration for the rest?

Montesquieu’s formulation of a theory of tripartite separation of powers as essential to civil liberty cannot be found in John Locke or any other predecessor. This type of separation does figure in Sir William Blackstone’s Commentaries on the Laws of England (1765–69), but here the eminent English legal scholar was himself influenced by Montesquieu. Blackstone was of course widely read in the United States. And one may well wonder why Americans did not quote Blackstone on this instead of appealing to a Frenchman. For one thing, the theory is “lost” in the Commentaries. Elements or components of it are scattered here and there in the pages of this big book. It is not treated at any length. Colonial Americans, harassed by what they believed to be unjust ministerial demands and encroachments on their rights by the mother country, found it convenient to cite the Spirit of Laws. Its precise statement on the necessity of separation of powers as the prerequisite of liberty was ready to hand. The tripartition that Montesquieu stressed was, of course, diametrically opposite to the combining of powers in the cabinet form of government which was then emerging in England. The British jurist did not accentuate separation of powers.

Blackstone did emphasize in the Commentaries—and this was his central message—the sovereignty of Parliament. The implications of this were more than enough to drive American colonists to Montesquieu. Confronted with acts and issues involving constitutional points, it was both easy and advantageous for them to refer to the French thinker’s concise exposition of the broad principles of the English constitution—a constitution not to be found in a single document. To my knowledge, one could find an elucidation of this sort at that time only in the famous chapter 6, book 11, of the Spirit of Laws.

Many scholars have taken issue with the French thinker’s treatment of this constitution. He has been censured by some for his “false views” of it. In an introduction to Montesquieu’s masterpiece published in New York in 1900, even Mr. Justice Holmes went so far as to say, “His England—the England of the threefold division of power into legislative, executive and judicial—was a fiction invented by him, a fiction which mislead Blackstone and Delolme.” Years later, when Sir Frederick Pollock, the distinguished English legal scholar, learned of this statement, he wrote Holmes, “It is true that the English Constitution does not lend itself to formulas. But as formulas go I don’t think M. was far out of the middle of the 18th century. Not only in Blackstone’s time but down to the end of the century (if not later) ’the distribution of real political power between the Crown and the two Houses of Parliament was still undefined’ as I say in … my little History of the Science of Politics…. But no one thought of the King as a cogwheel: certainly not the fathers of the American Constitution, who knew a good deal more than they read in Blackstone. Montesquieu’s error was not in observation but in supposing that the balance of powers could be stable.”¹³ Another scholarly opinion in support of Montesquieu’s understanding of the British system of government is apposite. “If we say that Montesquieu was interested in the mixed form of government, with the separation of powers as an incidental device to maintain the mixed constitution, it can be argued that his mistake was not great. It may be added that Englishmen in the eighteenth century, notably Blackstone in his Commentaries … did not believe that Montesquieu had misinterpreted the British Constitution.”¹⁴ Pertinent to this last sentence is an opinion expressed by a well-informed colonial. Charles Carroll of Carrollton, a signer of the Declaration of Independence, while engaged in a newspaper polemic, wrote that “so far from being crude” what he had “quoted as the notions of Montesquieu, enlarged upon, and explained by the writer of a pamphlet… are judicious, and discover a perfect knowledge of our [English] constitution.”¹⁵

The constitution of England as explained by Montesquieu has never had its counterpart in reality. The Founding Fathers could not have derived the tripartition that is of concern to us from England because it has never existed there. Madison took care to make this clear in The Federalist, Number 47: “On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other.” Montesquieu’s chapter poses many problems. For one thing, confusion may arise from an unjustified assumption on the part of readers that the author’s purpose was to describe this constitution. This he did not pretend to do. Rather than a description, Montesquieu, in treating of this unwritten constitution, appears to have given what in law is called a construction, that is, an interpretation, not directly expressed. “In strictness, interpretation is limited to exploring the written text, while construction goes beyond and may call in the aid of extrinsic considerations. … [A construction is] the process of bringing together and correlating a number of independent entities, so as to form a definite entity.”¹⁶ The words of the French publicist himself suggest a construction.

At the beginning of book 11, chapter 6, “Of the Constitution of England,” Montesquieu writes, “The political liberty of the subject is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another.” This definition is immediately followed by the three oft-quoted paragraphs which assert the necessity of a tripartite separation of the powers of government as a safeguard. In the preceding chapter, which serves as an introduction to 11.6, he had remarked that the constitution of England has political liberty as its direct object, and that he would examine the principles on which this liberty is founded. Montesquieu concluded his examination of these principles in chapter 6 with this statement: “It is not my business to examine whether the English actually enjoy this liberty or not. Sufficient it is for my purpose to observe that it is established by their laws; and I inquire no further.”

The most original thing in the French publicist’s doctrine of tripartition, I believe, is the position occupied by the judiciary. I do not need to explain the source or sources of his thinking concerning this third power. But he did insist that there could be no liberty were it not separated from the legislative and executive. Yet oddly enough, Montesquieu wrote, “Of the three powers … mentioned, the judiciary is in some measure next to nothing: there remain, therefore, only two.” He may have meant by this that the judiciary had, to use Alexander Hamilton’s words, “neither FORCE nor WILL but merely judgment.” So much for the conceptual aspect of the Montesquieu problem. American institutional history is another facet, another side of it. I can only refer to this here.¹⁷

Eighteenth-century Americans certainly did not consider the judiciary “in some measure next to nothing.” They had good reasons not to do so. Only two need be mentioned in this place. One was the ancient belief that no man should be both judge and jury. The other had to do with the confiscations of Tory properties by legislatures during the War of the Revolution. Concerning the latter, J. Franklin Jameson wrote, “The legislatures were so hot against the Tories and so eager in the pursuit of their spoils that they quite overstepped constitutional bounds in their enactments against them. Among the lawyers there grew up the idea, virtually a new idea, that courts might set aside laws if they conflicted with the constitution of the state.”¹⁸ The reader should also look at Gordon S. Wood’s section on the “The Enhancement of the Judiciary.”¹⁹

I have mentioned Sir Edward Coke. This English jurist was “the chief guide of the older lawyers” until the Revolution.²⁰ Raoul Berger writes, “The Framers did not pluck the concept of judicial review from the void. It harked back to Coke’s 1610 statement in Bonham’s case: ’when an Act of Parliament is against common right and reason … the common law will control it and adjudge such act to be void.’”²¹ And again to quote Berger, “The case for judicial review does not … hinge upon whether there existed an established practice of judicial review, but rather on the Founders’ belief that existing precedents, apparently fortified by Coke and Holt, furnished a means to curb Congressional excesses and enforce Constitutional limits.”²² The year 1803 and the decision in the case of Marbury v. Madison were not far away. This was the first case in which the Supreme Court annulled an act of Congress. This case, however, involved the court’s own jurisdiction. The decision in 1857 in the Dred Scott Case, when the Supreme Court declared an act of Congress unconstitutional, was the first in which the court itself was not involved. The trilateral equality which in 1789 had been established in law had now been established in fact. Would that Montesquieu could have observed the development of his third power in the United States! But enough with regard to the institutional side of the Montesquieu problem.

The eminent French critic Gustave Lanson long ago wrote that influence exists when something intervenes to cause a definite change in direction.²³ If this be the test, Montesquieu did not exert any influence on the Constitution. But there is another criterion to be considered, and it is this: a foreign writer will not have influence in another country unless people there are ready to receive his ideas. If they are, the seed will fall on fertile ground, will take root and begin to grow. In that case the writer may direct or help direct thought or practice.

Colonial charters did not contain provisions for tripartite separation of powers, but colonials had made such separation an important article of their political credo long before 1776. Whenever the name of an author was mentioned in the countless discussions of the separation of power into executive, legislative, and judicial branches that I noticed in the years between 1760 and 1800, that name, with one exception, was always Montesquieu.

James Madison, “Father of the Constitution,” called this principle of separation “the sacred maxim of free government.” He himself believed that Montesquieu was the author of this maxim. “The oracle who is always consulted and cited on this subject,” Madison wrote, “is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind.”²⁴

The French thinker’s doctrine that made tripartition of powers the sine qua non of liberty helped give a definite and permanent form to American constitutional thought. He supplied the verbal formula for a strongly marked trend. He provided the rationale, and the broad outlines of a structure, for a native concept that had long been in the process of development. This is how Montesquieu influenced the Founding Fathers and the American Constitution.