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The Specter of Rome in Montesquieu's the Spirit Of THE SPECTER OF ROME IN MONTESQUIEU’S THE SPIRIT OF THE LAWS ZACHARY SHUFRO – SENIOR HONORS THESIS ACKNOWLEDGEMENTS I would like to thank my advisor, Professor Vickie Sullivan, for her guidance and infinite knowledge of Montesquieu, without which I would never have been able to write this work; Professor Dennis Rasmussen, for his encouragement, advice, and candor in his revisions; my grandmother, Lydie Shufro, for fielding my questions on French history, grammar, and anything else that crossed my mind; and my friends, for tolerating my astronomical levels of stress as deadlines approached. I could not have completed this work without your aid and constant support. 1 TABLE OF CONTENTS INTRODUCTION............................................................................................................. 3 PART I: FRANCE ............................................................................................................ 6 CHAPTER I: MONTESQUIEU’S ANALYSIS OF FRENCH LAW ............................................... 9 CHAPTER II: THE INFLUENCE OF ROMAN LAW IN FRANCE............................................. 22 CHAPTER III: THE ORIGINS OF THE FRENCH – THE GRAND DEBATE .............................. 32 CHAPTER IV: THE REVOLUTION OF THE LAWS .............................................................. 47 CONCLUSION TO PART I ................................................................................................. 60 PART II: ENGLAND ..................................................................................................... 62 CHAPTER V: MONTESQUIEU’S ANALYSIS OF ENGLAND ................................................. 65 CHAPTER VI: THE INFLUENCE OF ROMAN LAW IN ENGLAND ........................................ 89 CHAPTER VII: THE ORIGINS OF ENGLISH LAW .............................................................. 98 CHAPTER VIII: THE BARRIERS OF THE COMMON LAW ................................................ 111 CONCLUSION TO PART II .............................................................................................. 122 PART III – SYNTHESIS.............................................................................................. 124 CHAPTER IX: THE COMMON ROOTS OF THE LAW ........................................................ 127 CHAPTER X: THE DIVERGENCE OF THE LAW ............................................................... 135 CHAPTER XI: DEVIATING POLITICS ............................................................................. 144 CHAPTER XII: CONSEQUENCES .................................................................................... 155 CONCLUSION TO PART III ............................................................................................ 162 CONCLUSION ............................................................................................................. 164 WORKS CITED............................................................................................................ 169 REFERENCES .............................................................................................................. 177 2 INTRODUCTION Few in modern history have had as profound an impact on the world as Charles-Louis de Secondat, Baron de la Brède et de Montesquieu. In his magnum opus, The Spirit of the Laws, Montesquieu undertook to examine the very roots of human existence, and to uncover the spirit of liberty through an examination of the world as it is and the laws as he saw them. He explains: “I began by examining men, and I believe that, amidst the infinite diversity of laws and mores, they were not led by their fancies alone” (Preface, xliii). Being thus resolved, Montesquieu laid down the principles of all governments and laws as he saw fit, explaining their histories and mores through a keen analysis of their laws. Over the course of this examination, Montesquieu observed in England a principle which has shaped every democratic constitution of the modern era: the theory of the separation of powers. But beyond this important principle, Montesquieu had much more to impart to the reader. Throughout his discussion of the laws of various nations, Montesquieu devotes considerable attention to the laws of France and of England; he furthermore implies that the spirit of Roman laws casts a shadow over these nations’ legal codes. This thesis seeks to examine the specter of Rome in these two nations, in order to understand Montesquieu’s analysis of the following three questions: First, how did the adoption of Roman law affect the development of a strong and central illiberal government in France? To fully elucidate the implications of Montesquieu’s analysis, it will be necessary not only to examine his analysis, but to cast an eye to the history of the nation as a whole. We will determine the extent to which there existed prior legal codes in France, and their exact nature; once their spirit has been ascertained, we will examine exactly how they have 3 changed over time, and seek to understand why. The political implications of these changes will then allow a fuller understanding of the nature of politics in France. Second, why did England not adopt Roman law? The English legal and political system must be examined, both in Montesquieu’s analysis and from a historical perspective. It is necessary to establish exactly what the legal code is in England, as well as its origins. From that point of departure, it can be established whether or not Roman law ever influenced its development. Ultimately, a full understanding of why the English legal code developed in the way it did, when, and why, will allow us to understand how England above all other states “has political liberty for its direct purpose” (XI.5, 156). Once the answers to the two above questions have been fully determined, we can approach the third: what role did the divergence of the legal codes of France and England play in Montesquieu’s analysis of absolutism and political liberty? * * * * * Montesquieu published The Spirit of the Laws in 1748; in the Preface, he refers to this, his lasting contribution to modern politics, as “the work of twenty years” (Preface, xliii). The examination of his analysis must be couched in an understanding of the era in which he wrote. Louis XIV, the roi soleil and the great consolidator of the absolute French monarchy, died in 1715; under his great-grandson, Louis XV, France slowly started to revert to a state run by nobility in their domains and of the king at Versailles, albeit with only a margin of their former power in each case. Scandals rocked the era: the French were resoundingly defeated in the War of the Spanish Succession at the 1704 Battle of Blenheim, and the king kept company with a known prostitute, whom he had ennobled through marriage to the title of Madame du Barry, and the age of the 4 Enlightenment marked a reversal of all known modes and orders of the previous centuries; change happened in Europe at a scale unknown since the Reformation. The French Catholic Church, for almost a century a formidable political influence under the regencies of the Cardinals Mazarin and de Richelieu, was slowly losing its monopoly on power, as deistic understandings of the world, prompted by scientific advancement, began to take the world by storm. Natural right theory, promoting the individual rather than the state, was rearing its head, and belief in a scientific analysis of the natural world flourished. In England, a young German couple ruled as king and queen; first Sir Robert Walpole, then the Earl of Wilmington, guided policy by creating the de facto position of Prime Minister. Change was in the air, on both political and societal fronts; Montesquieu’s work is considered by some to have contributed to, or even to have sparked, some of this change. By presenting a full analysis of the English and French governments in that era, as well as historically, Montesquieu exposes the most fundamental traits of these regimes, for better or for worse; his keen observations will provide a further understanding of the political and social values, norms, and mores of this turbulent era. Ultimately, this thesis seeks to examine the roots of absolutism in early modern politics, guided by Montesquieu’s implicit theories on the influence of Roman law. A careful examination of his analysis of France and of England will provide a lens through which to scrutinize Montesquieu’s understanding of political liberty. Through a careful consideration of Montesquieu’s opus, the legal codes upon which the British common law system was established, one can shed light on the development and state of French jurisprudence in his era and the legal history of Western civilization, as well as on Montesquieu’s implications regarding what we understand to be political liberty, and why we consider that the paramount goal of modern government. With that in mind, we now turn to Part I – Montesquieu’s analysis of France. 5 PART I: FRANCE 6 PART I: FRANCE It should hardly be surprising that a French author would look to his country when writing a treatise on government. Even less surprising would be that such an author, especially a baron and judge of the Enlightenment era, would seek to understand the origins of his own nation’s form of government. Montesquieu makes reference to France and to the French throughout his work, both obliquely through discussion of ‘our laws’ or through the use of a national ‘we’ [fr: nous] when discussing moral, legal, and social customs, and with his extensive analysis of
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