44 Chapter III
Parlement of Bordeaux, was active in that parlement in the days of the Regency,
and announced his ideas in systematic form in The Spirit of Laws some thirty years
later. The strength of Montesquieu’s book, published in 1748, lay in its firmly
weaving together many diverse strands, each strand representing the position taken
by actually existing institutions or groups of men. He combined the arguments of
the old feudal and the new parlementary nobility in France. He put together En-
gland and France, showing that each in its way had the institutions necessary for
political liberty, England through its balance of King, Lords, and Commons,
France through the moderating influence of “intermediate bodies” upon the crown.
He transcended a purely nobilitarian view because he included groups of all kinds
among these intermediate bodies: not only the nobility, but the French parlements
as associations of judges, the seigneurial and ecclesiastical courts as distinct from
the royal power, the clergy and the innumerable smaller corporations within the
church, the provinces and towns as corporate entities, the gilds and professional
associations of all kinds. Each of these, according to Montesquieu (anticipating
the views already quoted from Professor Lousse), had its own rights, legal powers,
and privileges. These were no mere grants from either a sovereign people or a sov-
ereign King. Such rights could not lawfully be curtailed; they balanced each other,
and prevented the undue concentration of power. “Abolish in a monarchy,” said
Montesquieu, “the prerogatives of manorial lords (seigneurs), clergy, nobility and
towns, and you will soon have either a popular or a despotic state.”
But Montesquieu, in wishing to concede appropriate rights to all, thought it
appropriate to allow more extended rights for the more powerful elements in soci-
ety. His reading of French history, and indeed of world history as he knew it,
taught him that if the “great” did not have a great share in government they would
rebel against it. They were ungovernable except on their own terms; if their inter-
ests were not protected they would not be loyal. Here is what he says in his famous
chapter on the British constitution:
“There are always in a state some people distinguished by birth, wealth or hon-
ors; but, if they are confounded with the rest of the people, if they have only one
vote like others, the common liberty will be slavery for them, and they will have no
interest in defending it.... Their share in legislation should therefore be propor-
tionate to their other advantages in the state.”^3
It is hard to deny the wisdom of this observation, or the truth of the historical
perceptions on which it rested: the whole interminable story of barons’ wars and
noble rebellions lay behind it. It may be contrasted, however, with the thought of
Rousseau, when he maintained, in the Social Contract, that the very fact that the
force of things tended to destroy equality was a reason why the force of law should
be used to maintain it.
The important personages would have their proportionate share in legislation,
Montesquieu went on to say, “if they form a body which has the right to check the
enterprises of the people, as the people have the right to check theirs.” So he rec-
ommends that the legislative power “be confided both to a body of nobles, and to
3 Esprit des lois, Book XI, chapter VI. See also Carcassonne, Montesquieu et le problème de la con-
stitution française au 18e siècle (Paris, 1926), 76–77, 84–85.