Montesquieu

from Spirit of the Laws

1748


[Montesquieu first addresses law. He describes three types of human law: law of nations, which governs relations between countries; political law, which deals with relations between the governors and the governed; and civil law, which governs relations between citizens. The following selection deals with political and civil law. According to Montesquieu, what is the best form of political law, or government?]

      Besides the law of nations relating to all societies, there is a politic law for each particularly considered. No society can subsist without a form of government. The conjunction of the particular forces of individuals, as Gravina well observes, constitutes what we call a political state.

      The general force may be in the hands of a single person, or of many. Some have thought that nature having established paternal authority, the government of a single person was most conformable to nature. But the example of paternal authority proves nothing. For if the power of a father is relative to a single government, that of brothers after the death of a father, or that of cousin-germans after the decease of brothers, are relative to the government of many. The political power necessarily comprehends the union of several families.

      Better is it to say that the government most conformable to nature, is that whose particular disposition best agrees with the humour and disposition of the people in whose favour it was established.

      The particular force of individuals cannot be united without a conjunction of all their wills. The conjunction of those wills, as Gravina again very justly observes, is what we call the CIVIL STATE.

      Law in general is human reason, inasmuch as it governs all the inhabitants of the earth; the political and civil laws of each nation ought to be only the particular cases in which this human reason is applied.

      They should be adapted in such a manner to the people for whom they are made, as to render it very unlikely for those of one nation to be proper for another.

      They should be relative to the nature and principle of the actual, or intended government; whether they form this principle, as in the case of political laws, or whether they support it, as may be said of civil institutions.

      They should be relative to the climate, whether hot or cold, of each country, to the quality of the soil, to its situation and bigness, to the manner of living of the natives, whether husbandmen, or shepherds; they should have a relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, number, commerce, manners, and customs. In fine they have relations amongst themselves, as also with their origin, with the object of the legislator, and with the order of things on which they are established, in all which different lights they ought to be considered.

[Like many of the Enlightenment philosophers, including of course Voltaire, Montesquieu was a great admirer of the English. He had spent time in England during the late 1720s. In the next selection from Spirit of the Laws, he describes the English political system. This section would be very influential on the American founding fathers. What does Montesquieu mean when he writes that the power of judging "becomes invisible"?]

Of the Constitution of England

      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 laws.

      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 crimes, 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 tranquility 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 magistracy, there can be no liberty; because apprehensions may arise, 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 be then the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.

      Miserable indeed would be the case, 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 of Europe enjoy a moderate government, because the prince who is invested with the two first powers, leaves the third to his subjects. In Turky, where these three powers are united in the Sultan's person, the subjects groan under the weight of tyranny an oppression.

      The judiciary power ought not to be given to a standing senate; it should be exercised by persons taken from the body of the people, at certain times of the year, and pursuant to a form and manner prescribed by law, in order to erect a tribunal that should last only as long as necessity requires.

      By this means the power of judging, a power so terrible to mankind, not being annexed to any particular state or profession, becomes, as it were, invisible. People have not then the judges continually present to their view; they fear the office, but not the magistrate. . . .

      . . .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, will perish. Have not Rome, Sparta, and Carthage perished? It will perish when the legislative power be more corrupt than the executive.

      It is not my business to examine whether the English actually enjoy this liberty, or not. Sufficient it is 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, nor 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? . . .

Of the Monarchies We Are Acquainted With

      The monarchies we are acquainted with [i.e., France], have not, like that we have been speaking of, liberty for their direct view; their only aim is the subject's, the state's, and the prince's glory. But from this glory there results a spirit of liberty, which in those governments may perform as great things, and may contribute as much perhaps to happiness, as liberty itself.

      Here the three powers are not distributed and founded on the model of the constitution above-mentioned; they have each a particular distribution, according to which they border more or less on political liberty; and if they did not border upon it, monarchy would degenerate into despotic government.


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