1In book XII of L’Esprit des lois, which deals with political freedom in relation to the citizen – therefore from the angle of “security” – the majority of the chapters are devoted to abuses of the accusation de lèse-majesté ; and chaptres 16 et 17 of Book XXIX again envisage the abuses of Roman law tradition in the composition of laws, which allowed inadmissible extensions of the accusation of lese-majesty.
2It is clear that the issue is not another era, even if the repressive barbarity to which it is linked inclines us involuntarily to believe so, between the publicity of execution, culpable solidarities, and the collective character of punishment. But one can quickly see that Montesquieu had in mind much more than the laws on majesty in a literal sense, such as they were applicable in his time, brought back and much extended since the ordinance of 1670: lese- majesty in the first degree (an attack on royal persons, rebellion or conspiracy), and lese-majesty in the second degree (all that relates to kingly prerogatives). What interests him are the guarantees and the protection of citizens in their relationship to power, on the level of possible incriminations, of which the indefinite extensions are within reach of any “sovereign”, generally speaking, but even more precisely in a monarchy always threatening to transform itself into a despotism.
3It is from the historian’s point of view that matters must first be examined. And that is what clearly stands out in Montesquieu, at the intersection of reflection on the Roman paradigm, of the republic with its double or triple nature of reign (monarchy, military government, despotic derivative), and of reflection on what makes it possible to halt incriminations of a “political” kind – in an indefinitely extended sense of that term.
4In the tradition of Roman public law, majestas is a constitutive attribute of judicatures, and that is so in all periods. There is, in principle, lese-majesty whenever one opposed the power of magistrates, for example if one does not admit the inviolability of the tribunes, or if one exceeds one’s civil rights. What one offends is the sacred majesty of the Roman people. Now the Roman experience is that original vagueness of the laws of majesty led to various interpretations, and made possible the later abominations: the point of departure of Sulla’s terrifying laws was, in many respects, an amplification of the laws of the republic. Chapter 15 of book VI of L’Esprit des lois puts into good perspective this implacable meshing and the disastrous absence of institutional guarantees, despite the Porcia law (which excluded the execution of a Roman citizen), which made it possible to come to the confiscation of property under Caesar, and the exactions of some of the twelve Caesars. In chapters XIV and XV of Romans, Montesquieu had very clearly underscored the advantage that an unlimited power, beginning with Tiberius, drew from the vagueness of these laws (even if for a time Caligula and a few others, because they preferred ferocious armed intervention, dispensed with the need of them), thereby corrupting the whole of a society’s life. The experience of the reign, between good and bad emperors, between “military government” and/or despotism, between dictatorship and happy monarchy, was the experience par excellence not only of a power without real laws, but a power utilizing “legality” to practice tyranny. For Montesquieu it was a constant and larger political question; the beginning of chapter 5 of book VI shows the reason and extent of it. He thought that Machiavelli was wrong to attribute the loss of Florence’s freedom to the fact that “the people did not judge as a body, as in Rome, the crimes of lese-majesty committed against it” (“le peuple ne jugeait pas en corps comme à Rome, les crimes de lèse-majesté commis contre lui”). In any case where there can be a conflict between political interest and civil interest, the laws “must see, as much as they can, to the security of individuals” (“les lois pourvoient, autant qu’il est en elles, à la sûreté des particuliers”).
5To be more complete, we need also to mention another historical perspective. First of all, of course, we must “theoretically” counter the possibility of extending the notion of lese-majesty to all sorts of acts, words, gestures, and using it to practice ferocious or foolish repressions. Book XII examines and methodically challenges the unacceptable principles that inspire them, to the very worst, the justifications of repression of intentions: “The only purpose of laws is to punish only outward acts” (“Les lois ne se chargent de punir que les actions extérieures”), asserts Montesquieu (EL, XII, 11), following Cujas. It is moreover a wise adage of Roman law, and Ulpian is largely solicited, although less than Tacitus, the essential witness. But one would not allow the whole of the debate to be seized if one did not understand its current political import. This monstrous practice of incrimination, of the right to punish, to determine punishment, incompatible in our eyes with all true law, must be recalled in its full extent: total confiscations to the king’s benefit, the acceptance of all forms of denunciation and accusation, of any “testimony” at all: it applies to second-degree crimes of lese-majesty (counterfeit money, etc.). But there is more. The ordinance of 1670 was to consecrate a “crime of divine lese-majesty” aimed at heresy – the good of the state requires that “divine worship not be troubled”. It grouped under the rubric of “royal case” all types of lese-majesty (divine and human). And it is precisely the notion of the “royal case” that is central to the question. It is the principle of feudal justice: “Li home ne doivent pas juger lor segneur […]” (“Men must not judge their lord”, Beaumanoir, Coutumes de Beauvaisis, i) that finally leads to the definition of “royal cases” – that are decided only by royal justice. And the neutralization, limitation, control of the pretended system of freedom went hand in hand with their extension… That is the framework proper to the French monarchy, where crimes of lese-majesty are concerned.
Catherine Larrère, “Droit de punir et qualification des crimes, de Montesquieu à Beccaria”, Beccaria et la culture juridique des Lumières, Michel Porret ed., Geneva: Droz, 1997, p.89-108.
David W. Carrithers, “La philosophie pénale de Montesquieu”, Revue Montesquieu 1 (1997), p.39-63. http://montesquieu.ens-lyon.fr/spip.php?article87
David W. Carrithers, “Montesquieu and the Liberal Philosophy of Jurisprudence”, in Montesquieu’s Science of Politics, David Carrithers, Michael A. Mosher and Paul A. Rahe ed., New-York, Oxford: Rowman & Littlefield, 2001, p.291-354.