MONTESQUIEU ANDCONSTITUTIONAL ORDER

 In 1748, when The Spirit of the Laws was first published, CharlesLouis de Secondat, Baron de La Brède et de Montesquieu, wrote toa friend:I can say that I have worked on it my whole life: I wasgiven some law books when I left my college; I soughttheir spirit, I worked, but I did nothing worthwhile. Idiscovered my principles twenty years ago; they are quitesimple; anyone else working as hard as I did would havedone better. But I swear that this book nearly killed me; Iam going to rest now; I shall work no more.Indeed, this publication was the one on which he labouredlongest and for which he is best remembered. However, he certainlywrote other worthwhile books, notably The Persian Letters, whichsatirises the French society and politics of his time, andConsiderations on the Causes of the Greatness of the Romans and theirDecline, probably envisaged with at least half an eye on theeighteenth-century present. Equally, his vision was on Greece andespecially Rome when he began his Foreword to The Spirit of theLaws with the observation:In order to understand the first four books of this work,one must note that what I call virtue in a republic is a loveof the homeland, that is, love of equality. It is not a moralvirtue or a Christian virtue; it is political virtue, and this isthe spring that makes monarchy move. Therefore, I havecalled love of the homeland and of equality, political virtue.Montesquieu’s masterpiece gives special attention to therelationship between the four major continents of the world—Europe, Asia, Africa and America—as they were known before1748, the year of publication. Montesquieu was at pains to showwhy, among all these continents, Europe had achievedsupremacy. Around the middle of the eighteenth century, Europewas the Western world, and so the Americas were in theperiphery of Montesquieu’s vision. As for Russia, the great mansuggested that its relationship with Europe was also bor-derline.Having looked at the manner in which The Spirit of the Lawsoutlined the relationship of Europe—the then West— with thetransoceanic and transcontinental frontiers, this chapterproceeds to depict the way in which the book was utilised duringthe composition of the American constitution and the Russian‘constitution’, that is the rationale for enlightened absolutism.It then goes on to throw some light on the impact of the FrenchRevolution on the Russian and American systems as defendedby Empress Catherine the Great and President GeorgeWashington, as well as making a few observations about howRussians and Americans of the time related to Europe. Finally,excerpts from the works of Burke and Robespierre are used toillustrate further the concept of ‘constitution’ and to introduceits apparent opposite, ‘revolution’.Montesquieu was the first major writer to attempt to apply theprinciples of modernisation to the world as it was, or rather as itappeared to be in the first half of the eighteenth century. Hobbes,Locke, Grotius and Pufendorf, among others, discussed theprinciples at an earlier stage, but they did not attempt to applythem. Hobbes and Locke, for example, both had extensiveknowledge of the New World as well as of Europe through a widerange of contacts, but their discussion of government was mostlyabstract. The social contract, developed by Locke in particular, wasa conceptual tool at best, not a reality. Montesquieu, on the otherhand, brought fundamental questions down to earth, although whythis should be still appears itself as a matter for speculation.Probably, it was a combination of growing commerce, a greaternumber of travel accounts and a certain vogue for the Orient whichcombined with a favourable conjuncture in French history and withMontesquieu’s own talent and energy.2If Montesquieu was not the first to conceive of a social science,he was the first who wanted to give it the spirit of a new science,so to speak, in proceeding not from ideas but from facts, andextracting from these facts their laws. In other words, the discoveryof Montesquieu was not ingenious detail but universal principlespermitting the understanding of all human history along with allits details.3Montesquieu himself made a more explicit comparison of hisapproach with that of the artist. As he observed at the end of thePreface to The Spirit of the Laws: ‘When I have seen what so manygreat men in France, England, and Germany have written beforeme, I have been filled with wonder, but I have not lost courage.“And I too am a painter”, have I said with Correggio.’ Correggiowas alleged to have made this remark on seeing Raphael’s StCecilia. This painting may have been on his mind when, in hisdiscussion of the spirit, mores and manners of a nation,Montesquieu declared:In extremely absolute monarchies, historians betray thetruth because they do not have the liberty to tell it; inextremely free states, they betray truth because of theirvery liberty for, as it always produces divisions, each onebecomes as much the slave of the prejudices of his factionas he would be of a despot. Their poets would more oftenhave an original bluntness of invention than a certain deli-cacy of taste; one would find there something closer toMichelangelo’s strength than to Raphael’s grace.4Nearly two and a half centuries after the first publication of TheSpirit of the Laws, many limitations are apparent in the great man’smasterpiece. But even now historians and their colleagues in otherdisciplines alike could do worse than take it as a point of departurefor their examination of some of the most important developmentstaking place in the decades following 1748, in particular the framingof the American constitution and the attempt by Catherine theGreat to introduce a ‘constitution’ into the Russian Empire. As theyembark upon such an exercise, they should no doubt strive to avoidthe excesses of the pursuit of their profession in extremely absolutistand extremely free states, while recalling the strength ofMichelangelo, seeking the balance and harmonies of St Cecilia, andbearing in mind the conclusion of Montesquieu’s Invocation tothe Muses: ‘You also want me to make reason speak. It is the noblest,the most perfect, the most exquisite of our senses.’5The first approach might be to the proportions of The Spirit ofthe Laws itself. The work was divided by Montesquieu into sixparts of unequal length, as follows. Part 1 begins with anintroductory section on laws in their various forms, continueswith an analysis of three kinds of government—republican,monarchical and despotic—and follows with a furtherexamination of these three from the aspects of education, civiland criminal cases, matters of sumptuosity and the condition ofwomen, before a final discussion of how the principles of therespective kinds of government might become corrupt. Part 2looks at defensive and offensive force, political liberty in theconstitution and for the citizen, before evaluating the relationshipto liberty of the levy of taxes and the size of public rev-enues.Part 3 is devoted mainly to climate and its influence on civil anddomestic slavery and political servitude; it includes a book orsection on laws in their relation to the nature of the terrain, andanother on laws in their relation with the principles forming thegeneral spirit, the mores and the manners of a nation. Part 4focuses on commerce, commercial revolution, the use of moneyand the number of inhabitants, Part 5 on religion and on therelationship of various kinds of law—religious, civil, political anddomestic—to their contexts. Part 6, concentrating on the Romanand Frankish origins of feudalism, brings the work to an end onfiefs ‘where most authors have begun it’.6If Montesquieu’s end is in the beginning, his last is certainlynot his least. For, in ascending order of length, the parts run 5,2, 3, 4, 1, 6. There is more than three times as much on feudalismas on religion, while Part 6 is more than half as long again as itsnearest competitor, Part 1. Vulgar proportions do not necessarilymean intended emphases, yet the preponderance among theparts matches a marked bias in the whole considered fromanother point of view—the geographic. To put it bluntly, for allits worthy intentions to be global in coverage, The Spirit of theLaws is heavily Eurocentric, with the rest of the worldconstituting a periphery to its core, acting as provinces to itsmetropolis.Asia is the continent ‘where despotism is, so to speak, natural-ized’, where ‘domestic servitude and despotic government havebeen seen to go hand in hand in every age’. MoreoverMohammedan princes constantly kill or are killed’, while theravage of Asia by Tamerlane and Genghis Khan alsodemonstrated that:we owe to Christianity both a certain political right ingovernment and a certain right of nations in war, for whichhuman nature can never be sufficiently grateful. This rightof nations, among ourselves, has the result that victoryleaves to the vanquished these great things: life, liberty, laws,goods, and always religion, when one does not blind oneself.Inequitable taxation, emphasis on luxury at one end of the socialscale and consignment to misery at the other were among otherAsian problems, which all stemmed largely from physical features,especially heat.7Meanwhile, in Africa, ‘carnivorous beasts...have haddominion...from time immemorial’. Moreover:Most of the peoples on the coasts of Africa are savages andbarbarians. I believe that this comes largely from there beingsome uninhabitable countries that separate those smallcountries which can be inhabited. They are without industry;they have no arts; they have precious metals in abundancewhich they take immediately from the hand of nature.Therefore, all peoples with a ‘police’ (i.e. good order as well ascoercive power) were in a position to trade with them in anadvantageous manner.Again, climate was a factor, if not the only one. Africa to someextent resembled also Asia in other features, of which Montesquieuwrote in comparison with his home continent:In Asia one has always seen great empires; in Europe theywere never able to exist. This is because the Asia we knowhas broader plains; it is cut into larger parts by seas; and, asit is more to the south, its streams dry up more easily, itsmountains are less covered with snow, and its smaller riversform slighter barriers.In Europe, natural divisions had led to the formation of manymedium-sized states which could be maintained with the rule oflaw, but would without it become decadent and inferior. Hence,‘a genius for liberty’, making it very difficult for any part to besubjugated by foreign force ‘other than by laws and by what isuseful to its commerce’. By contrast, in Asia there reigned ‘a spiritof servitude’ that had never left it: ‘in all the histories of thiscountry it is not possible to find a single trait marking a free soul.’Moving on to summarise his view of the world as he knew it,Montesquieu declared:This is what I can say about Asia and Europe. Africa has aclimate like that of southern Asia, and it has the sameservitude. America, destroyed and newly repopulated bythe nations of Europe and Africa, can scarcely demonstrateits own genius today, but what we know of its formerhistory is quite in conformity with our principles.8By America, of course, Montesquieu meant both northern andsouthern continents, before and after their ‘discovery’. As onewho did not accept the idea of a social contract, Montesquieufound no state of nature in the Americas. In the area of primaryconcern to this chapter, even the Iroquois, who allegedly ate theirprisoners, possessed a ‘right of nations’ even if it was not foundedon true principles. In nearby Louisiana, the ‘savages’ cut downtrees and gathered the fruit when they wanted it. But, if thisapproached the state of nature, Montesquieu deemed it ‘despoticgovernment’. As a whole, ‘There are so many savage nations inAmerica because the land by itself produces much fruit withwhich to nourish them.’ The happy fate of these peoples of plentywas contrasted with that across the Atlantic: ‘I believe one wouldnot have all these advantages in Europe if the earth were leftuncultivated; there would be scarcely anything but forests of oakand other unproductive trees.’ However, after the ‘discovery’ of1492 and beyond: ‘The peoples of Europe, having exterminatedthose of America, had to make slaves of those in Africa in orderto use them to clear so much land.’ As a possible individualexception to this rule, Mr Penn was singled out as a ‘true Lycurgus’bent on peace. But, in general, beyond conquest and annihilation,‘in Europe it remains a fundamental law that any commerce witha foreign colony is regarded as a pure monopoly enforceable bythe laws of the country.’9Less than thirty years later, such an attitude was to help lead tothe American Revolution. Before we move on to that event andthe ensuing developments leading to the drawing up of the USconstitution, however, two further points need to be made. Whatin Montesquieu’s view, were the reasons for Europe’s pre-eminence? And how had it developed over time? Part of the answerto the first question has already been given: a conducivegeographical disposition; a particular aspect of it has been stronglyimplied: the moderate climate. Asia had no temperate zone, but inEurope there was a very broad one. From this, Montesquieu argued:it follows that the strong and weak nations face each other;the brave and active warrior peoples are immediatelyadjacent to effeminate, lazy and timid peoples; therefore,one must be the conquered and the other the conqueror.In Europe, on the other hand, strong nations face the strong;those that are adjacent have almost the same amount ofcourage. This is the major reason for the weakness of Asiaand the strength of Europe, for the liberty of Europe andthe servitude of Asia: a cause that I think has never beforebeen observed. This is why liberty never increases in Asia,whereas in Europe it increases or decreases according tothe circumstances.These included internal climatic variations, which divided thenorth of the European continent from the south. Equilibrium wasmaintained by the laziness of the latter compared with the industryand activity of the former. Between them, England, France andHolland were responsible for nearly all the commerce andnavigation of Europe, while Europe as a whole carried on thecommerce and navigation of the other three parts of the world.Altogether then:Europe has reached such a high degree of power thatnothing in history is comparable to it, if one considers theimmensity of expenditure, the size of military engagement,the number of troops, and their continuous upkeep, evenwhen they are the most useless and are only for osten-tation.10This predominance, conditioned as it was by basicgeographical circumstances, had also developed over time, fromthe ancient world through the medieval to the modern. Ofcourse, it all began with the Greeks, and was continued by theRomans, a view widely shared by his contemporaries along withMontesquieu, who devotes a considerable amount of The Spiritof theLaws to the systems to be found in Athens and Rome.However, the great man was not an uncritical analyst of theclassical world, nor did he believe that Europe owed everythingto it. He asserted that there had never been on earth agovernment as well tempered as that of each part of Europeduring the years of existence of the Gothic German ascendancyfollowing the decline and fall of the Roman Empire. Apart fromreferences to the evolution of Europe throughout the work, suchas the observation that the English took their admirable systemof government from the Germans, a whole complete part, thelast and the longest, was devoted to an account of how the feudalsystem emerged and then led on towards modernity. By the laterseventeenth century:Toward the middle of the reign of Louis XIV, France wasat the highest point of its relative size. Germany did notyet have the great monarchs it has since had. Italy was inthe same situation. Scotland and England had not formeda monarchy. Aragon had not formed one with Castile; andthe separate parts of Spain were weakened by this andweakened Spain. Muscovy was as yet no better known inEurope than was the Crimea.11MONTESQUIEU, THE USA AND RUSSIAThe moral of that particular passage is: ‘All size, all force, allpower is relative.’12 Indeed, thus it was in the world of the firsthalf of the eighteenth century, about which Montesquieu saidvery little of a specific nature, and so it remained in the secondhalf of the century, after his death. Silas Deane was to note in1777 that ‘Russia like America is a new state, and rises withastonishing rapidity.’ This dual surge interacted with the earlymoves of the USA through revolution to constitution, and theexpansion of tsarist Russia accompanied by the attempt ofCatherine the Great to introduce her own governmentalreforms.13The ideological debt of both movements to Western Europe wasenormous, but both made their own distinctive adaptations. Totake the USA first, as Bernard Bailyn has pointed out, ‘law was noscience of what to do next’,14 but the Americans drew on Coke andthen Blackstone of the English law tradition, Grotius, Pufendorfand Beccaria of the continental schools, as well as the classicaltradition of republican virtue relayed for the most part via modernauthorities. Minor figures were often as important as the major,for example the former Aberdeen students Gilbert Burnet, ThomasGordon and William Small. A comparatively minor influence onthe Revolution, Montesquieu was to enjoy a much more centralpresence at the time of deliberations leading to the constitution. Toquote Benjamin Fletcher Wright on the arguments of the opposition:Montesquieu had a vast prestige in that day. He was almostvenerated as the exponent of principles of free government.Many of his views were, in fact, entirely unac-ceptable tothe Americans, but those opinions, when not unknown,were disregarded. On the incompatibility between freedomand an extensive republic, and on the necessity of greaterseparation of powers, his views were quoted over and overagain.15Meanwhile, in a similar manner, the supporters of the newconstitution were also drawing on the writings of Montesquieu.James Madison asserted: ‘Montesquieu was in his particularscience what Bacon was in universal science. He lifted the veilfrom the venerable errors which enslaved opinion, and pointedthe way to those luminous truths of which he had but a glimpsehimself.’ Without false modesty, Madison implied that he himselfand his fellow contributors to The Federalist knew better thanMontesquieu what was good for the USA. So they could takefrom The Spirit of the Laws the concept of the ‘confederate, orfederal republic’, for example, and adapt Montesquieu’sdiscussion of it as a means of extending the sphere of populargovernment and combining the advantages of monarchies withthose of republics. Madison declared:As the natural limit of a democracy is that distance fromthe central point which will just permit the most remotecitizens to assemble as often as their public functionsdemand, and will include no greater number than can joinin those functions; so the natural limit of a republic is thatdistance from the centre which will barely allow therepresentatives to meet as often as may be necessary forthe administration of public affairs.As far as the overall influence of Montesquieu on theFounding Fathers is concerned, the account of Anne M.Cohleris broadly acceptable, especially since it takes into considerationthe circumstance that the arguments of The Spirit of the Laws oftenran parallel to those of other authorities, the writers of theScottish Enlightenment, for example. In her careful formulation,‘The presentation of the argument for the constitution in TheFederalist follows a pattern that Montesquieu could well havesuggested.’17 There was a need for a more perfect union bothpowerful and free, with a government that was representativeof but not too directly dependent on the people, divided,balanced and checked. But if the nearest model was the Britishconstitution, this was neither republican nor written, and couldnot be adopted directly. Therefore, as Scottish and Englishauthorities on the limited monarchy of Britain were used by theFounding Fathers along with the anglophile Montesquieu, theythemselves were probably not always certain whose supportspecifically they were using.The adaptation of the concept of honour from monarchy tofederal republic as a basis for full citizenship might well havebeen suggested by The Spirit of the Laws, to give just one example,but the fact remains that there are only a handful of specificreferences to its author in the records of the Federal Conventionand The Federalist. Madison pointed out that if ‘the oracle whois always consulted and cited’ on the subject of the separationof powers was ‘the celebrated Montesquieu’, ‘the BritishConstitution was to Montesquieu what Homer has been to thedidactic writers on epic poetry.’ And so one of a pair of groupsof specific references is to the separation of powers and alliedmatters. The other is to the aforesaid federal republic, whichforms but a minor part of The Spirit of the Laws, and was thenexpanded and altered for their own purposes by Hamilton,Madison and others.18Meanwhile, some of the central arguments in Montesquieu’smasterpiece were mentioned scarcely, if at all, for exampleclimate, seen in that work as one of the fundamental formativeinfluences. Needless to say, climate was very different in mostof the thirteen states from how it was back in Britain andnorthern Europe. An immigrant from England had recentlycomplained to a friend back homeThe hotness of the weather, sir, has so prodigious aninfluence on the constitution that it fevers the blood andsets all the animal spirits in an uproar. Hence we thinkand act tumultuously and all in a flutter, and are strangersto that cool steadiness which you in England justly valueyourselves upon.19Admittedly, Jonathan Boucher was discussing his own body ratherthan the body politic, but there were implications for governmentin such observations from the point of view of The Spirit of the Lawsbeyond ‘animal spirits’.Even more significantly, there was virtually no reference in TheFederalist or the records of the Constitutional Convention to thesubject which, if length be any guide, was of greatest importanceto Montesquieu as he concluded where others began, with theevolution of feudalism. For the Founding Fathers, this was not amatter of much significance, for the beginning or the end or themiddle of their deliberations. Why should it be, as they made useof arguments imported across the Atlantic mainly to emphasisetheir distance from Europe and the newness of their governmentas opposed to those forms to be found in the old continent?Madison argued that what the channel had done for Great Britainthe ocean could do for his own country: ‘The distance of the UnitedStates from the powerful nations of the world gives them the samehappy security.’ However, if the Union were not more perfectlyformed, there would be much internal disruption in the USA, while‘A plentiful addition of evils would have their source in that relationin which Europe stands to this quarter of the earth, and which noother quarter of the earth bears to Europe.’ A somewhat differentview of this special relationship was put with great passion byAlexander Hamilton in the course of an address to the people ofNew York on ‘The Value of Union to Commerce and theAdvantages of a Navy’:The world may politically, as well as geographically, bedivided into four parts, each having a distinct set ofinterests. Unhappily for the other three, Europe, by herarms and by her negotiations, by force and by fraud, has,in different degrees, extended her dominion over them all.Africa, Asia, and America, have successively felt herdomination. The superiority she has long maintained hastempted her to plume herself as the Mistress of the World,and to consider the rest of mankind as created for herbenefit. Men admired as profound philosophers have, indirect terms, attributed to her inhabitants a physicalsuperiority and have gravely asserted that all animals, andwith them the human species, degenerate in America—that even dogs cease to bark after having breathed awhilein our atmosphere. Facts have too long supported thesearro-gant pretensions of the Europeans. It belongs to us tovindicate the honor of the human race, and to teach thatassuming brother, moderation. Union will enable us to doit. Disunion will add another victim to his triumphs. LetAmericans disdain to be the instruments of Europeangreatness! Let the thirteen States, bound together in a strictand indissoluble Union, concur in erecting one greatAmerican system, superior to the control of all transatlanticforce or influence, and able to dictate the terms of theconnection between the old and the new world!20Hamilton felt strongly about the security of the westernhemisphere, not only in his native Caribbean but also on theexpanding continental frontier. His views on the latter subject wereshared nearly a quarter-century previously by Jonathan Boucher,who characterised the imperial policy leading towards the StampAct as ‘in every sense oppressive, impolitic and illegal’. Boucherwould have been far from alone in such an observation, but notmany attacked the British parliament with the assertion that it wasas ignorant in its dealings with the American colonists as it wouldbe in the prescription of ‘an assessment to the inhabitants ofKamschatka’. As far as the London government’s Indian policy inparticular was concerned, Boucher was morally certain that ‘it werea much easier task to civilize every savage in America, than Peterthe Great had, when he took to humanize the bears of Russia.’Here, then, was the recognition that Europe had two frontiers, toEast as well as West, and that the situation of the American colonistswas not completely exceptional.21More specifically, one of Hamilton’s other works, his ‘Reporton the Subject of Manufactures’ of 1791, was published in Russianin St Petersburg in 1807 with the observation from the translatorA.F.Malinovskii about similarities between the USA and Russia‘in size, climate and natural produce, in a populationdisproportionate to size and in the young age of various usefulinstitutions’. To be sure, Malinovskii recognised the differencesbetween the two ‘new states’, especially regarding the peasantry;indeed, he frequently expressed a preference for a rural ratherthan an urban society, and was apparently seeking to integratemanufactures in the former rather than to develop the latter.Moreover, differences are also revealed in a close comparison ofthe original text with the translation, where certain passages of atechnical nature or of a character completely alien to Russiansociety are omitted. Evidently, too, in view of the officialsponsorship of his work, Malinovskii made a judicious numberof further changes, omitting a section concerning the AmericanRevolution and its positive impact on the financial situation ofthe USA, and replacing the phrase ‘before the revolution’ withanother: ‘before the separation of America’. He also left out areference to a slave revolt in Haiti, for fear no doubt of thepotential comparison with similar action taken by the Russianserfs—further reinforcement of the argument that eighteenth-century observers saw the case for the comparison of Americaand Russia in general.22Such a view should be much clearer to us today, and can beillustrated through the agency of Montesquieu’s world pictureand the use made of it by Catherine the Great, who took TheSpirit of the Laws as her ‘prayer-book’ and went much furtherthan the Founding Fathers in the direction of the sincerest formof flattery—imitation—of ‘President Montesquieu’. To be sure,she was inclined in this direction by the great man himself, whomade more than a score of references to Russia, using as hisprincipal source John Perry’s The State of Russia under the PresentCzar, first published in London in 1716. It is also possible, thoughnot certain, that ‘Much of Montesquieu’s information aboutRussia may have been derived from conversations withCantemir’, that is Prince A.D.Kantemir, Russian ambassador inFrance from 1738 to 1744.23A map drawn as a supplement for the revised edition of TheSpirit of the Laws in 1756 focused on Europe and included at itseastern extremity ‘Russie Européenne’ stretching as far as theRiver Volga with ‘Petite Tartarie’ occupying the northern littoralof the Black Sea. This caught in the year after Montesquieu’sdeath the difficulty that had been caused him in his life by thefrontier situation of the Russian Empire. In his estimation ofCatherine the Great’s illustrious predecessor he wrote:Peter found it easier than he had expected to give the moresand manners of Europe to a European nation. The empireof climates is the first of all empires. Therefore, he did notneed laws to change the mores and manners of his nation;it would have been sufficient for him to inspire other moresand other manners.On the other hand, Montesquieu also observed that the soul ofnorthern peoples was less sensitive than others to pain, and thattherefore: ‘A Muscovite has to be flayed before he feels anything.’A similar kind of ambiguity and imprecision affects Montesquieu’soverall estimate of Russia. It was for him a despotism, but he couldnot place it in the basic category of Asiatic despotism, or in theminor, distorted type of European despotism. Moreover, he didfind some possibilities for the mitigation of Russian despotism inthe reforms of Peter the Great and after. For example: ‘In Russia,taxes are of medium size; they have been increased since despotismhas become more moderate.’24The Empress Catherine made the most extensive use of The Spiritof the Laws in the composition of her Nakaz or ‘Instructions to theCommission for the Composition of a Plan of a new Code of Laws’.She wrote of this work to d’Alembert in 1765: ‘For the benefit ofmy empire I have robbed President Montesquieu, without naminghim; I hope that if he sees my work from the other world, he willforgive me this plagiarism for the good of twenty million people,which must come from it.’ And so, confessing to Frederick the Greatthat she was behaving like the crow of the fable who made itself agarment of peacock’s feathers, she took her admiration of The Spiritof the Laws to the letter, extracting 294 out of 655 clauses in herNakaz wholly or in part from her ‘prayer-book’.But the plagiarism was not without a measure of adaptationand improvisation, as the Empress discounted her mentor’simplication that Russia was bound to remain to some extent adespotism and his description of the desirable structure for thestate. For example, while Montesquieu’s constitution wasbasically class-monarchical, Catherine’s was bureaucratic-autocratic. For his social composition of intermediate powers, shesubstituted a bureaucratic variant. Separate as well asintermediate institutions would prevent despotism as well asfavouring the monarch’s own enlightenment. After all,Montesquieu himself had observed that despotism would nothold sway where judicial, legislative and executive powers wereseparate and the sovereign was enlightened.Even regarding the bureaucracy, however, the priorities of theEmpress were not those of the philosophe. For example, whileaccepting the division of powers, she subordinated this principleto another, the internal correctness of government, based on theconcept of natural law. Natural law in general appears in the Nakaznot as the fundamental guarantor to all subjects of certain rights,but rather as a basic governor of the self-limitation of theautocratic power, therefore as a rationale not for constitutionalmonarchy, but rather for enlightened absolutism. While Catherinemade more extensive use of The Spirit of the Laws in her Nakazthan had the Founding Fathers, her approach to enlightenedabsolutism resembled theirs to the constitutional federal republicin its selectivity and emendation. Like them, moreover, she hadlittle or nothing to say about Montesquieu’s longest part, on theevolution of feudalism, which had taken a different path in Russiafrom that of Western Europe. Like them, too, she had made useof other authorities, including some from the ScottishEnlightenment, although her tendency towards Germancameralism and French physiocratism were among indicators offurther divergences. In her later legislative work,contemporaneous with the movement towards the AmericanRevolution and constitution, moreover, she resembled them inher adoption as a new model of ‘Sir Blackstone’, although withthe reservation ‘I do not make anything from what there is in thebook, but it is my yarn which I unwind in my own way.’25 Russianspecialists are joining their Western counterparts in seriousconsideration of Catherine’s Nakaz and other projects, especiallyher Charters of 1785—to the Nobility, to the Towns and (in draft)to the ‘State Peasants’ —as a foundation of a Russian imperialconstitution.26 She should not therefore be dis-missed as avainglorious hypocrite: if the Founding Fathers were puttingforward in their way the Enlightenment’s ‘program in practice’,so was she in hers. It might be argued that they were closer to theintention of The Spirit of the Laws in particular. On the other hand,it should not be forgotten that Montesquieu had observed in hismasterpiece first published in 1748 that what he knew ofAmerica’s former, mostly pre-colonial history was ‘quite inconformity with our principles’. Would he have seen the USA insuch conformity in 1787, from the point of view of climate,republics or whatever?27In their search for a constitution, then, both the FoundingFathers and Catherine the Great must be allowed equal latitudein the use that they made of Montesquieu’s work. All of themworked in conformity with The Spirit of the Laws as set out in thePreface:Many of the truths will make themselves felt here onlywhen one sees the chain connecting them with others.... Ido not write to censure that which is established in anycountry whatsoever.... If I could make it so that...eachcould feel better his happiness in his own country,government, and position, I would consider myself thehappiest of mortals.... I would consider myself thehappiest of mortals if I could make it so that men wereable to cure themselves of their prejudices...not whatmakes one unaware of certain things but what makes oneunaware of oneself.28Here also Montesquieu reminds us of the basic aim of this book,which is to encourage awareness of prejudices in this larger sense.That aim is now to be further pursued by an examination of themanner in which both the American and Russian approaches toconstitutionality were confronted at the end of the 1780s by thechallenge of the French Revolution. We will see that thisuncomfortable experience reinforced the Russian and Americandeviations from the norms of The Spirit of the Laws.CATHERINE THE GREAT AND THE RUSSIAN‘CONSTITUTION’In the short run, to be sure, the French Revolution appeared to bejoining the search for stability rather than opposing it, and thereforereceived a welcome from both sides. The Empress Catherine, totake her first, shared at least some of the early interest in events inParis, although she soon moved towards suspicion, writing to oneof her intellectual correspondents, Baron Melchior von Grimm, inFebruary 1790:As a person ignorant of the facts, I simply ask questions,foreseeing the destruction of everything that has beenlinked with the system of ideas of the beginning andmiddle of this century, which brought forth rules andprinciples without which, however, it is impossible to liveone day.29How could the disciple of Montesquieu and other earlyphilosophes serve the cause of enlightened absolutism in these newlytroubled times? At least some of her thoughts were set down in amemoir composed in August-September 1792, ‘On Mea-sures forthe Restoration of the Legitimate Government in France’. TheEmpress began with an uncompromising affirmation: ‘The causeof the king of France is that of all kings. Europe is interested inseeing France retaking the place due to that great kingdom.’ Forcewould be necessary to effect a restoration, but it would not be ofthe situation obtaining before 1789. Wrote Catherine:It seems that a revolution is indispensably necessary, thatmatters could not remain on the same footing. Thisrevolution could consist only of the re-establishment ofmonarchical government such as existed since the arrivalof the Franks. Would not the balance of powers, thenobility, the clergy, the magistrature reunite under leadersanimated by a desire so legitimate, so equitable, somoderate? The nobility, the clergy, the magistrature, theprinces, the troops, could they not reunite for a mostessential purpose: to effect the deliverance of the king andthe royal family from the hands of the populace of Paris?And would this be so difficult? If it was not, it would be amatter only of concentrating the wisest and most certainmeans. Since the world began, order has triumphed overdisorder.30The so-called National Assembly had gone beyond the powersaccorded it, which included the maintenance of monarchicalgovernment, and aimed at the abolition of this form of governmentwhich had been established in France for a thousand years, evendaring to dream of the abolition of the Christian religion. Instead,it was trying to introduce a destructive anarchy, driven on by thebandits swarming around Paris. The restoration would have to be