Modern History Sourcebook:
Montesquieu:
The Spirit of the Laws, 1748
Charles de Secondat, Baron de Montesquieu (16891755),
was a nobleman, a judge in a French court, and one of the most
influential political thinkers. Based on his research he developed
a number of political theories presented in The Spirit of
the Laws (1748).
This treatise presented numerous theories - among the most
important was respect for the role of history and climate in shaping
a nation's political structure.
It was for his views on the English Constitution, which he
saw in an overly idealized way, that he is perhaps most renowned.
In every government there are three sorts of power; the legislative;
the executive, in respect to things dependent on the law of nations;
and the executive, in regard to things that depend on the civil
law.
By virtue of the first, the prince or magistrate enacts temporary
or perpetual laws, and amends or abrogates those that have been
already enacted. By the second, he makes peace or war, sends or
receives embassies; establishes the public security, and provides
against invasions. By the third, he punishes criminals, or determines
the disputes that arise between individuals. The latter we shall
call the judiciary power, and the other simply the executive power
of the state.
The political liberty of the subject is a tranquillity of mind,
arising from the opinion each person has of his safety. In order
to have this liberty, it is requisite the government be so constituted
as one man need not be afraid of` another.
When the legislative and executive powers are united in the same
person, or in the same body of magistrates, there can be no liberty;
because apprehensions may anse, lest the same monarch or senate
should enact tyrannical laws, to execute them in a tyrannical
manner.
Again, there is no liberty, if the power of judging be not separated
from the legislative and executive powers. Were it joined with
the legislative, the life and liberty of the subject would be
exposed to arbitrary control, for the judge would then be the
legislator. Were it joined to the executive power, the judge might
behave with all the violence of an oppressor.
There would be an end of every thing were the same man, or the
same body, whether of the nobles or of the people to exercise
those three powers that of enacting laws, that of executing the
public resolutions, and that of judging the crimes or differences
of individuals.
Most kingdoms in Europe enjoy a moderate government, because the
prince, who is invested with the two first powers, leaves the
third to his subjects. In Turkey, where these three powers are
united in the sultan's person the subjects groan under the weight
of a most frightful oppression.
In the republics of Italy, where these three powers are united,
there is less liberty than in our monarchies. Hence their government
is obliged to have recourse to as violent methods for its support,
as even that of the Turks witness the state inquisitors, and the
lion's mouth into which every informer may at all hours throw
his written accusations.
What a situation must the poor subject be in, under those republics!
The same body of magistrates are possessed, as executors of the
laws, of the whole power they have given themselves in quality
of legislators. They may plunder the state by their general determinations;
and as they have likewise the judiciary power in their hands,
every private citizen may be ruined by their particular decisions.
The whole power is here united in one body; and though there is
no external pomp that indicates a despotic sway, yet the people
feel the effects of it every moment.
Hence it is that many of the princes of Europe, whose aim has
been levelled at arbitrary power, have constantly set out with
uniting in their own persons, all the branches of magistracy,
and all the great offices of state.
The executive power ought to be in the hands of a monarch; because
this branch of government, which has always need of expedition,
is better administered by one than by many: Whereas, whatever
depends on the legislative power, is oftentimes better regulated
by many than by a single person.
But if there was no monarch, and the executive power was committed
to a certain number of persons selected from the legislative body,
there would be an end then of liberty; by reason the two powers
would be united, as the same persons would actually sometimes
have, and would moreover be always able to have, a share in both.
Were the legislative body to be a considerable time without meeting,
this would likewise put an end to liberty. For one of these two
things would naturally follow; either that there would be no longer
any legislative resolutions, and then the state would fall into
anarchy; or that these resolutions would be taken by the executive
power, which would render it absolute.
It would be needless for the legislative body to continue always
assembled. This would be troublesome to the representatives, and
moreover would cut out too much work for the executive power,
so as to take off its attention from executing, and oblige it
to think only of defending its own prerogatives, and the right
it has to execute.
Again, were the legislative body to be always assembled, it might
happen to be kept up only by filling the places of the deceased
members with new representatives; and in that case, if the legislative
body was once corrupted, the evil would be past all remedy. When
different legislative bodies succeed one another, the people who
have a bad opinion of that which is actually sitting, may reasonably
entertain some hopes of the next: But were it to be always the
same body, the people, upon seeing it once corrupted, would no
longer expect any good from its laws; and of course they would
either become desperate, or fall into a state of indolence.
The legislative body should not assemble of itself. For a body
is supposed to have no will but when it is assembled; and besides,
were it not to assemble unanimously, it would be impossible to
determine which was really the legislative body, the part assembled,
or the other. And if it had a right to prorogue itself, it might
happen never to be prorogued; which would be extremely dangerous,
in case it should ever attempt to encroach on the executive power.
Besides, there are seasons, some of which are more proper than
others, for assembling the legislative body: It is fit therefore
that the executive power should regulate the time of convening,
as well as the duration of those assemblies, according to the
circumstances and exigencies of state known to itself.
Were the executive power not to have a right of putting a stop
to the encroachments of the legislative body, the latter would
become despotic; for as it might arrogate to itself what authority
it pleased, it would soon destroy all the other powers.
But it is not proper, on the other hand, that the legislative
power should have a right to stop the executive. For as the execution
has its natural limits, it is useless to confine it; besides,
the executive power is generally employed in momentary operations.
The power therefore of the Roman tribunes was faulty, as it put
a stop not only to the legislation, but likewise to the execution
itself; which was attended with infinite mischiefs.
But if the legislative power in a free government ought to have
no right to stop the executive, it has a right, and ought to have
the means of examining in what manner its laws have been executed;
an advantage which this government has over that of Crete and
Sparta, where the Cosmi and the Ephori gave no account of their
administration.
But whatever may be the issue of that examination, the legislative
body ought not to have a power of judging the person, nor of course
the conduct of him who is intrusted with the executive power.
His person should be sacred, because as it is necessary for the
good of the state to prevent the legislative body from rendering
themselves arbitrary, the moment he is accused or tried, there
is an end of liberty.
To prevent the executive power from being able to oppress, it
is requisite, that the armies, with which it is intrusted, should
consist of` the people, and have the same spirit as the people,
as was the case at Rome, till the time of Marius. To obtain this
end, there are only two ways, either that the persons employed
in the army, should have sufficient property to answer for their
conduct to their fellow subjects, and be enlisted only for a year,
as customary at Rome: Or if there should be a standing army, composed
chiefly of the most despicable part of the nation, the legislative
power should have a right to disband them as soon as it pleased;
the soldiers should live in common with the rest of the people;
and no separate camp, barracks, or fortress, should be suffered
.
When once an army is established, it ought not to depend immediately
on the legislative, but on the executive power, and this from
the very nature of` the thing; its business consisting more in
action than in deliberation.
From a manner of thinking that prevails amongst mankind, they
set a higher value upon courage than timorousness, on activity
than prudence, on strength than counsel. Hence, the army will
ever despise a senate, and respect their own officers. I hey will
naturally slight the orders sent them by a body of` men, whom
they look upon as cowards, and therefore unworthy to command them.
So that as soon as the army depends on the legislative body, the
government becomes a military one; and if the contrary has ever
happened, it has been owing to some extraordinary circumstances.
It is because the army was always kept divided; it is because
it was composed of several bodies, that depended each on their
particular province; it is because the capital towns were strong
places, defended by their natural situation, and not garrisoned
with regular troops. Holland, for instance, is still safer than
Venice; she might drown, or starve the revolted troops; for as
they are not quartered in towns capable of furnishing them with
necessary subsistence, this subsistence is of course precarious.
Whoever shall read the admirable treatise of Tacitus on the manners
of the Germans, will find that it is from them the English have
borrowed the idea of their political government. This beautiful
system was invented first in the woods.
As all human things have an end, the state we are speaking of
will lose its liberty, it will perish. Have not Rome, Sparta,
and Carthage perished? It will perish when the legislative power
shall be more corrupted than the executive.
It is not my business to examine whether the English actually
enjoy this liberty, or not. It is sufficient for my purpose to
observe, that it is established by their laws; and I inquire no
further.
Neither do I pretend by this to undervalue other governments,
not to say that this extreme political liberty ought to give uneasiness
to those who have only a moderate share of it. How should I have
any such design, I who think that even the excess of reason is
not always desirable, and that mankind generally find their account
better in mediums than in extremes?
From Montesquieu, The Spirit of the Laws, vol. 1, trans.
Thomas Nugent (London: J. Nourse, 1777), pp. 221-237, passim.
This text is part of the Internet Modern History Sourcebook.
The Sourcebook is a collection of public domain and copy-permitted
texts for introductory level classes in modern European and World
history.
Unless otherwise indicated the specific electronic form of the
document is copyright. Permission is granted for electronic copying,
distribution in print form for educational purposes and personal
use. If you do reduplicate the document, indicate the source.
No permission is granted for commercial use of the Sourcebook.
(c)Paul Halsall Aug 1997
The Internet History Sourcebooks Project is located at the History Department of Fordham University, New York. The Internet
Medieval Sourcebook, and other medieval components of the project, are located at
the Fordham University Center
for Medieval Studies.The IHSP recognizes the contribution of Fordham University, the
Fordham University History Department, and the Fordham Center for Medieval Studies in
providing web space and server support for the project. The IHSP is a project independent of Fordham University. Although the IHSP seeks to follow all applicable copyright law, Fordham University is not
the institutional owner, and is not liable as the result of any legal action.
© Site Concept and Design: Paul Halsall created 26 Jan 1996: latest revision 15 November 2024 [CV]
|
