Memoir on the silence to be imposed concerning the Constitution

Catherine Maire

1Montesquieu wrote this memoir around 1753-1754, in the context of the Jansenist refusal of sacraments which opposed, on the one hand, the bishops and parish priests who were partisan of the Constitution Unigenitus, in particular the archbishop of Paris, Christophe de Beaumont, and on the other the defenders of the dying who were suspected of Jansenism, in other words the parlements, in particular the Paris parlement. Following the great remontrances [“An humble supplication made to the king (…) to entreat him to consider the drawbacks or consequences of his edicts or orders” (Trévoux)] of 9 April 1753 which the king refused to receive, the Paris parlement left its function and was exiled to various spots, notably to Bourges where the principal instigators were concerned. The Grand Chambre was banished to Pontoise, where it suspended its disputes. A first wave of negotiations led by the Maréchal de Richelieu, the former general prosecutor Joly de Fleury and the Prince de Conti failed to restore peace. The Bourges “fanatics”, under the direction of Durey de Meinières, clung to their resistance and it was henceforth toward them that the efforts of the partisans of peace were turned. Montesquieu was one of them. In mid-June, he was invited to an audience with the king. It is likely that the author of L’Esprit des lois was asked to intervene with his colleagues and draft a memoir for the king on the means of restoring peace, in particular a declaration about silence. That would explain the concomitance of the letter to Durey de Meinières on 9 July 1753 and the Mémoire sur le silence à imposer sur la Constitution.

2Montesquieu’s purpose was to stand aside from all the protagonists in the quarrel: Jansenists, parlements, pro-constitutional bishops and Pope. To this singular orientation corresponds a behavior specified for the ruler: “outward” toleration, and a political means for restoring peace: the declaration on “silence”. Even on the level of terminology, Montesquieu takes care to remain as neutral and disinterested as possible. Thus he uses the adjectives “outward” and “inward” to qualify forms of toleration, instead of repeating the distinction classically recognized since the 17th century, as well by the Protestants as the Catholics, philosophers and antiphilosophers, between “ecclesiastical toleration”, a matter for the Church, and “civil toleration”, a matter for the state. “Inward” toleration implies a “sort of approval” as opposed to “outward” toleration which entails no inner adherence. A similar distinction is to be found in chapter 9 of book XXV of L’Esprit des lois: “for theologians themselves, there is a considerable difference between tolerating a religion and approving it” (“pour les théologiens mêmes, il y a bien de la différence entre tolérer une religion et l’approuver”).

3Montesquieu’s demonstration is very subtle, proceeding by successive stages the logical advancement of which must be followed step by step. The origin of the dilemma goes back, according to him, to the confusion of “inward” toleration with “outward” toleration. These different forms both have their legitimacy and obey different principles: theological for the former, political for the latter. They correspond to two consciences of the ruler, but their distinction does not destroy the unity of the Catholic faith professed by the political authority. The Catholic ruler believes in the theological principle but it is not “always” in conformity with it that laws are to be conceived. “The welfare of the state is the supreme law” (“Le salut de l’État est la suprême loi”, OC, t. IX, p. 531), as Montesquieu also likes to remind Durey de Meinières. It does not follow, however, that outward toleration casts doubt on the ruler’s Catholicity. The historical examples of the Edict of Nantes and the Treaty of Westphalia are evoked in support of the thesis. A contrario the intolerance of Spain or Portugal with respect to the Jews does not reinforce the Catholicity of those countries. In the recent disputes over the Constitution, outward toleration is all the more clearly necessary that the two opposed parties are not sects. Very skillfully Montesquieu turns the sophism of “the interest of religion” into “interest of disputes over religion”. He dismisses both Jansenists and the constitutionaries who separate themselves from the Church by “fury”. The ruler’s outward duty is thereby reinforced with respect to a field that is not even that of faith, which cannot be pacified by theologians who have not managed to achieve mutual consent in forty years.

4Montesquieu bases his hopes on the Constitution Unigenitus, however curious it may appear, since while considering that it was received in France and is tacitly accepted by the country, he adds that it is precisely that reception that was the object of interminable disputes. So the problem is to find means of taking advantage of that potential agreement by extinguishing the controversies. Again, Montesquieu sets himself apart from the two parties in the solutions he prescribes. Against the Jansenists and the magistrates of the opposition, he supports the Constitution. He even considers it as “a kind of rest and rallying point among citizens” (“une espèce de repos et de point de ralliement entre les citoyens”), as he explains it in his letter to Durey de Meinières (Correspondance, Masson, t. III, p. 1466). Against the ecclesiastical partisans of the Constitution, he asserts the autonomy of the Council of State, which he considers as the king’s “true counsel of conscience”. Members of the clergy should exert no influence there – no doubt an allusion to the numerous evocations of parlementary decrees relative to the refusal of sacraments. With respect to the previous royalist declarations intended to restore silence (1717, 1719, 1730, 1752), the Montesquieu’s proposition is the most outward and pragmatic: a simple police matter. It aims for active abstention from any involvement in theological matters and the application of measures designed to make them inoperative: total silence even about the qualification [“Declaration of the qualities of an erroneous proposition” (Trévoux)] of the Constitution imposed indifferently on the two parties under penalty of being accused of “disturbing the peace”.

5The attitude specified with respect to the Pope is highly equivocal. On the one hand, the entire responsibility for the theological qualification of the Constitution is referred back to him, but on the other the sovereign pontiff is kept completely aside from the pacification, as a potential firebrand from whom above all nothing must be asked. If Montesquieu accepts the Constitution, it is in a way the better to suspend it. He differs the decision regarding it because he is betting on the power of forgetfulness. The coactive power ultimately remains in the ruler’s hands, who retains the possibility of punishing the overzealous offenders by means of the distribution of benefices used as a weapon. That is why this strategic task must be entrusted to wise, lay hands: the “nobility” and “enlightened men”. Montesquieu develops the principles of an original and personal Gallicanism, political but formally moderate with regard to Rome, enlightened and knowledgeable but pragmatic, equally distant from the “heat” of the “small minds”, the “ignorant ecclesiastics”, the Jansenists or the members of the parlementary opposition. It may even be that the spirit of this memoir (if it was ever transmitted to Louis XV) inspired the “law of silence” of 2 September 1754 and then the declaration of 10 December 1756 that withdrew the qualification of the “rule of faith” from the Constitution after the encyclical of Benedict XIV.



Bordeaux, BM, Ms


Mémoire sur le silence à observer sur la Constitution, ed. Pierre Rétat and Catherine Maire, OC, t. IX, p. 519-536.


Augustin Gazier, “Une lettre inédite de Montesquieu”, Revue d’histoire littéraire de la France 19 (1907),

Lucien Ceyssens, “Autour de la Bulle Unigenitus: Charles de Montesquieu (1689-1755)”, Jansenistica Lovaniensia 6 (1990), p. 1-2, 5-22.

Rebecca Kingston, “Montesquieu on Religion and on the Question of Toleration”, in Montesquieu’s Science of Politics: Essays on ‘The Spirit of Laws’, David W. Carrithers, Michasel A. Mosher and Paul A. Rahe, (ed.), Lanham, Boulder, New York, Oxford: Rowman & Littlefield, 2001, p. 375-408.

Catherine Maire, “ Le Paige et Montesquieu à l’épreuve des enragés de Bourges”, in Le Monde parlementaire au XVIIIe siècle. L’invention d’un discours politique, Alain Lemaître ed., Rennes: Presses universitaires de Rennes, 2010,