Montesquieu

In every state there are three kinds of power : the legis­la­tive autho­rity, the exe­cu­tive autho­rity for things that stem from the law of nations, and the exe­cu­tive autho­rity for those that stem from civil law.

Through the first, the prince or magis­trate makes laws for a time or for all time, and amends or abro­ga­tes those that are in place. Through the second, he makes peace or war, sends or recei­ves ambas­sa­dors, pro­vi­des for secu­rity, and pre­vents inva­sions. Through the third, he puni­shes cri­mes or jud­ges dis­pu­tes bet­ween indi­vi­duals. We will call this last one the autho­rity to judge, and the for­mer sim­ply the exe­cu­tive autho­rity of the state.

Political free­dom in a citi­zen is the tran­qui­lity of mind that comes from the opi­nion each one has of his secu­rity ; and for him to have this free­dom, the govern­ment must be such that one citi­zen can­not fear ano­ther citi­zen.

When in the same per­son or in the same body of magis­tracy the legis­la­tive autho­rity is com­bi­ned with the exe­cu­tive autho­rity, there is no free­dom, because one can fear lest the same monarch or the same senate make tyran­ni­cal laws in order to carry them out tyran­ni­cally.

Again there is no free­dom if the autho­rity to judge is not sepa­ra­ted from the legis­la­tive and exe­cu­tive autho­ri­ties. If it were com­bi­ned with the legis­la­tive autho­rity, power over the life and liberty of the citi­zens would be arbi­trary, for the judge would be the legis­la­tor. If it were com­bi­ned with the exe­cu­tive autho­rity, the judge could have the strength of an oppres­sor.

All would be lost if the same man or the same body of prin­ci­pals, or of nobles, or of the peo­ple, exer­ci­sed these three powers : that of making laws, that of exe­cu­ting public reso­lu­tions, and that of jud­ging cri­mes or dis­pu­tes bet­ween indi­vi­duals.

In most king­doms of Europe the govern­ment is mode­rate, because the prince, who has the first two powers, lea­ves to his sub­jects the exer­cise of the third. Among the Turks, where these three powers are joi­ned on the head of the sul­tan, a hor­ri­ble des­po­tism rei­gns.

In the repu­blics of Italy, where these three powers are com­bi­ned, there is less free­dom to be found than in our monar­chies. The govern­ment, to main­tain itself, the­re­fore requi­res means as vio­lent as the govern­ment of the Turks : wit­ness the state inqui­si­tors1 and the box where any infor­mer can at any time depo­sit his billet of accu­sa­tion.

See what the situa­tion of a citi­zen in these repu­blics can be : the same body of magis­tracy has as exe­cu­tor of the laws all the autho­rity it has assi­gned to itself as legis­la­tor. It can ravage the state with its gene­ral orders ; and as it also has the judi­cial autho­rity, it can des­troy each citi­zen with its indi­vi­dual orders.

All autho­rity there is one ; and although there is no exte­rior pomp to iden­tify a des­po­tic prince, he can be felt at every moment.

And so it is that the prin­ces who have wished to become des­po­tic have always begun by com­bi­ning all the magis­tra­cies in their per­son, as seve­ral European kings have done with all the impor­tant func­tions of their state.

It appears to me that the pure here­di­tary aris­to­cracy of the Italian repu­blics does not cor­res­pond pre­ci­sely to the des­po­tism of Asia. The mul­ti­tude of magis­tra­tes some­ti­mes mel­lows magis­tracy ; all the nobles do not always work toge­ther towards the same ends ; various tri­bu­nals are cons­ti­tu­ted which tem­per each other. Thus, in Venice the great coun­cil has legis­la­tion, the pre­gadi exe­cu­tion, and the qua­ran­tia the power to judge. But what is wrong is that these dif­fe­rent tri­bu­nals are made up of magis­tra­tes from the same body, which hardly adds up to any­thing but one sin­gle autho­rity.

The autho­rity to judge ought not to be given to a per­ma­nent senate, but exer­ci­sed by per­sons drawn from the body of the peo­ple2 at cer­tain times of the year in the man­ner pres­cri­bed by law to cons­ti­tute a tri­bu­nal that lasts only as long as neces­sity requi­res.

In this way the judi­cial autho­rity, so for­mi­da­ble among men, being atta­ched nei­ther to a cer­tain condi­tion nor to a cer­tain pro­fes­sion, beco­mes, so to speak, invi­si­ble and nonexis­tent. The jud­ges are not conti­nually in plain view, and it is the magis­tracy that is fea­red and not the magis­tra­tes.

It ought even to be the case that when the char­ges are serious, the cri­mi­nal in conjunc­tion with the law can chose his jud­ges, or at least be able to recuse enough of them so that those remai­ning are assu­med to be by his choice.

The two other powers could ins­tead be assi­gned to magis­tra­tes or to per­ma­nent bodies, because they are not brought to bear upon any indi­vi­dual, one of them being but the gene­ral will of the state, and the other the exe­cu­tion of that gene­ral will.

But if the tri­bu­nals are not to be fixed, judg­ments must be, to such a point that they are never any­thing but a pre­cise text of the law. For them to be a pri­vate opi­nion of the judge’s would be to live in the society without kno­wing pre­ci­sely what enga­ge­ments one contracts within it.

The jud­ges must even be from the same sta­tion as the accu­sed or his peers, so he can­not get it into mind that he has fal­len into the hands of per­sons dis­po­sed to do him vio­lence.

If the legis­la­tive autho­rity lea­ves to the exe­cu­tive the right of impri­so­ning citi­zens who can put up secu­rity for their conduct, that is the end of free­dom, unless they are held to ans­wer without delay to a charge which the law has made capi­tal, in which case they are really free, since they are sub­jec­ted only to the autho­rity of the law.

But if the legis­la­tive autho­rity belie­ved itself in dan­ger from some hid­den cons­pi­racy against the state or some conni­vance with out­side ene­mies, it could for a brief and limi­ted time allow the exe­cu­tive autho­rity to have sus­pec­ted citi­zens held, who would lose their free­dom for a time only to pre­serve it fore­ver.

And that is the sole means consis­tent with rea­son of com­ple­men­ting the tyran­ni­cal magis­tracy of the ephors and the state inqui­si­tors of Venice, who are equally des­po­tic.

Since in a free state every man who is assu­med to have a free soul must be self-gover­ning, the peo­ple as a body ought to have the legis­la­tive autho­rity ; but as that is impos­si­ble in large sta­tes, and is sub­ject to many disad­van­ta­ges in small ones, wha­te­ver they can­not do them­sel­ves the peo­ple must do through their repre­sen­ta­ti­ves.

One knows the needs of his city much bet­ter than those of other cities, and jud­ges the abi­li­ties of his neigh­bors bet­ter than that of his other com­pa­triots. The mem­bers of the legis­la­tive body the­re­fore ought not to be cho­sen gene­rally from the body of the nation ; but it is appro­priate for the resi­dents in each prin­ci­pal loca­tion to choose a repre­sen­ta­tive.

The great advan­tage of repre­sen­ta­ti­ves is that they are able to debate mat­ters. The peo­ple are not at all sui­ted for that, and this cons­ti­tu­tes one of the great disad­van­ta­ges of demo­cracy.

It is not neces­sary for the repre­sen­ta­ti­ves who have recei­ved gene­ral ins­truc­tions from those who have cho­sen them to receive spe­ci­fic ins­truc­tions on each piece of busi­ness, as is prac­ti­ced in the diets of Germany. It is true that in this way the word of the depu­ties would be more nearly the expres­sion of the voice of the nation, but that would neces­si­tate end­less delays, would make each deputy the mas­ter of all the others, and in the most urgent situa­tions the whole strength of the nation could be blo­cked by a whim.

When, as Mr. Sidney puts it quite well, the depu­ties repre­sent a body of peo­ple, as in Holland, they must give an account to those who have com­mis­sio­ned them ; it is a dif­fe­rent mat­ter when they are dis­pat­ched by vil­la­ges, as in England.3

All the citi­zens in the various dis­tricts must have the right to contri­bute their vote to the choice of repre­sen­ta­tive, except those who are in such a state of sub­ser­vience that they are dee­med to have no will of their own.

There was a great vice in most of the ancient repu­blics, which was that the peo­ple were entit­led to make active reso­lu­tions which requi­red some exe­cu­tion, a thing of which they are enti­rely inca­pa­ble. They should take part in govern­ment only to choose their repre­sen­ta­ti­ves, which is very much within their means. For if there are few who know the pre­cise degree of men’s abi­lity, each one is none­the­less capa­ble of kno­wing in gene­ral whe­ther the one he choo­ses is more enligh­te­ned than most of the others.

Nor ought the repre­sen­ta­tive body to be cho­sen to take some active reso­lu­tion, some­thing it would not do well, but to make laws, or to see whe­ther the ones it has made have been well exe­cu­ted, some­thing which it can do very well, some­thing even which it alone can do well.

In a state there are always per­sons dis­tin­gui­shed by birth, wealth, or honors ; but if they were mixed among the com­mon peo­ple, and if there they had only one vote like the others, the com­mon free­dom would be their sla­very, and they would have no inte­rest in defen­ding it, because most of the reso­lu­tions would be against them. The role they have in legis­la­tion ought the­re­fore to be in pro­por­tion to the other advan­ta­ges they have within the state, which is what will hap­pen if they form a body that has the right to pre­vent the enter­pri­ses of the peo­ple, as the peo­ple have the right to pre­vent theirs.

Thus the legis­la­tive autho­rity will be entrus­ted both to the body of the nobles and to the body that will be cho­sen to repre­sent the peo­ple, each of which will have its own assem­blies and deli­be­ra­tions, and dis­tinct pur­po­ses and inte­rests.

Of the three autho­ri­ties which we have dis­cus­sed, the judi­cial autho­rity is in some sense null. There remain only two ; and as they need a limi­ting autho­rity to tem­per them, that part of the legis­la­tive body which is com­po­sed of nobles is quite capa­ble of pro­du­cing this effect.

The body of nobles must be here­di­tary. It is so in the first ins­tance by its nature ; and moreo­ver it must have a very great inte­rest in pre­ser­ving its pre­ro­ga­ti­ves, odious in them­sel­ves, and which in a free state must always be endan­ge­red.

But as an here­di­tary autho­rity could be led to fol­low its pri­vate inte­rests to the neglect of the peo­ple’s, it is man­da­tory that in mat­ters where one has a sin­gu­lar inte­rest in cor­rup­ting it, as in laws per­tai­ning to the rai­sing of funds, its only role in legis­la­tion should be its faculty of pre­ven­tion, and not its sta­tu­tory faculty.

I call sta­tu­tory faculty the right to decree by itself, or to amend what has been decreed by ano­ther. I call faculty of pre­ven­tion the right to annul a reso­lu­tion taken by some other, which was the autho­rity of the Roman tri­bu­nes. And although he who has the faculty of pre­ven­tion may also have the right of appro­val, at that point such appro­ba­tion is nothing more than a decla­ra­tion that he is not invo­king his faculty of pre­ven­tion, and deri­ves from that faculty.

The exe­cu­tive autho­rity must be in the hands of a monarch, for this part of the govern­ment, which almost always requi­res imme­diate action, is bet­ter admi­nis­tra­ted by one than by seve­ral, whe­reas that which depends on the legis­la­tive autho­rity is often bet­ter orga­ni­zed by seve­ral than by one per­son alone.

If there were no monarch, and the exe­cu­tive autho­rity were entrus­ted to a cer­tain num­ber of per­sons cho­sen from the legis­la­tive body, that would be the end of free­dom, because the two autho­ri­ties would be com­bi­ned, the same per­sons some­ti­mes having, and always in a posi­tion to have, a role in both.

If the legis­la­tive body went for a consi­de­ra­ble time without assem­bling, that would be the end of free­dom. For one of two things would hap­pen : either there would be no more legis­la­tive reso­lu­tions, and the state would fall into anar­chy ; or those reso­lu­tions would be taken by the exe­cu­tive autho­rity, and it would become abso­lute.

There would be no need for the legis­la­tive body to be always assem­bled. That would be inconve­nient for the repre­sen­ta­ti­ves, and would moreo­ver occupy the exe­cu­tive autho­rity too much, making it think not about exe­cu­tion, but about defen­ding its pre­ro­ga­ti­ves and the right it has to exe­cute.

Moreover, if the legis­la­tive body were conti­nually assem­bled, it could occur that new depu­ties would sim­ply be sent to replace those who died ; and in that case, if the legis­la­tive body were once cor­rup­ted, the damage would be irre­me­dia­ble. When dif­fe­rent legis­la­tive bodies suc­ceed each other, the peo­ple who have a poor opi­nion of the sit­ting legis­la­tive body rightly direct their hopes toward the one that will come next. But if it were always the same body, the peo­ple, seeing it once cor­rup­ted, would no lon­ger place any hope in its laws ; they would become furious or fall into apa­thy.

The legis­la­tive body should not assem­ble on its own. For a body is not sup­po­sed to have inten­tions except when it is assem­bled ; and if it did not assem­ble una­ni­mously, it would not be clear which part would be authen­ti­cally the legis­la­tive body, the one which was assem­bled or the one which was not. And if it had the right to adjourn itself, it could hap­pen that it would never adjourn, which would be dan­ge­rous in cases where it might wish to cons­pire against the exe­cu­tive autho­rity. Besides, some times are more sui­ta­ble than others for the assem­bly of the legis­la­tive body : it must the­re­fore be the exe­cu­tive autho­rity that deter­mi­nes the time and dura­tion for hol­ding these assem­blies in func­tion of cir­cum­stan­ces it knows.

If the exe­cu­tive autho­rity does not have the right to block the enter­pri­ses of the legis­la­tive body, the lat­ter will be des­po­tic ; for as it will be able to grant itself all the power it can think up, it will reduce all the other autho­ri­ties to nothing.

But the legis­la­tive autho­rity must not have the reci­pro­cal faculty of blo­cking the exe­cu­tive autho­rity. For exe­cu­tion being by its nature cir­cum­scri­bed, there is no need to limit it, besi­des the fact that the exe­cu­tive autho­rity is always exer­ci­sed on things of the moment. And the autho­rity of the Roman tri­bu­nes was fla­wed in that it blo­cked not only legis­la­tion, but exe­cu­tion as well, which cau­sed great harm.

But if in a free state the legis­la­tive autho­rity should not have the right to block the exe­cu­tive autho­rity, it has the right and should have the faculty of exa­mi­ning in what man­ner the laws it has pas­sed have been car­ried out. And that is the advan­tage this govern­ment has over that of Crete and Lacedæmon, where the kos­moi and the ephors gave no account of their admi­nis­tra­tion.

But wha­te­ver that exa­mi­na­tion may be, the legis­la­tive body must not have the power to judge the per­son and conse­quently the conduct of the exe­cu­tor. His per­son must be sacred because, being essen­tial to the state to pre­vent the legis­la­tive body from beco­ming tyran­ni­cal, the moment he could be accu­sed or jud­ged would be the end of free­dom.

In those cases the state would not be a monar­chy but an unfree repu­blic. But as the exe­cu­tor can­not exe­cute poorly unless he has feck­less coun­se­lors who hate the laws as minis­ters even though they favor them as men, these can be cal­led out and puni­shed. And that is the advan­tage of this govern­ment over that of Gnidus, where the law, not allo­wing the ami­mo­nes4 to be cal­led into judg­ment even after their admi­nis­tra­tion,5 the peo­ple could never com­pel an expla­na­tion of the injus­ti­ces com­mit­ted against them.

Although in gene­ral the judi­cial autho­rity ought not to be com­bi­ned with any part of the legis­la­tive, this is sub­ject to three excep­tions, based on the indi­vi­dual inte­rest of the per­son who is to be jud­ged.

The great are always expo­sed to envy, and if they were jud­ged by the peo­ple they could be in dan­ger, and would not enjoy the pri­vi­lege of the least of the citi­zens in a free state of being jud­ged by their peers. Therefore nobles must be cal­led, not before the nation’s ordi­nary tri­bu­nals, but before that part of the legis­la­tive body which is com­po­sed of nobles.

It could occur that the law, which is at once clair­voyant and blind, would in cer­tain cases be too severe. But the jud­ges of the nation are, as we have said, merely the mouth that pro­noun­ces the words of the law, ina­ni­mate beings who can mode­rate nei­ther their force nor their seve­rity. It is the­re­fore the part of the legis­la­tive body that we have just cal­led, on ano­ther occa­sion, a neces­sary tri­bu­nal, which it is again on this occa­sion ; it is up to its supreme autho­rity to mode­rate the law in favor of the law itself, by pro­noun­cing less seve­rely than the law does.

It could also occur that some citi­zen, in public affairs, could vio­late the rights of the peo­ple and com­mit cri­mes that the esta­bli­shed magis­tra­tes would be una­ble or unwilling to punish. But in gene­ral the legis­la­tive autho­rity can­not judge, and it can do so even less in this par­ti­cu­lar case, where it repre­sents the inte­res­ted party, which is the peo­ple. It can the­re­fore only accuse. But before whom shall it make its accu­sa­tion ? Shall it go demean itself before the tri­bu­nals of the law, which are beneath it, and are moreo­ver com­po­sed of per­sons who, being like­wise of the peo­ple, will be swayed by the autho­rity of such a great accu­ser ? No, in order to pre­serve the dignity of the peo­ple and the secu­rity of the pri­vate citi­zen, the legis­la­tive por­tion of the peo­ple must accuse before the legis­la­tive por­tion of the nobles, which has nei­ther the same inte­rests nor the same pas­sions as the plain­tiff.

That is the advan­tage this govern­ment has over most of the ancient repu­blics, where there was this abuse, that the peo­ple were at once judge and plain­tiff.

The exe­cu­tive autho­rity, as we have said, should take part in legis­la­tion through its faculty of pre­ven­tion, without which it would soon be strip­ped of its pre­ro­ga­ti­ves. But if the legis­la­tive autho­rity par­ti­ci­pa­ted in the exe­cu­tion, the exe­cu­tive autho­rity will equally be undone.

If the monarch par­ti­ci­pa­ted in legis­la­tion through the faculty of decreeing, that would be the end of free­dom. But as he must none­the­less have a role in legis­la­tion in order to defend him­self, he must par­ti­ci­pate through the faculty of pre­ven­tion.

What cau­sed the govern­ment to change in Rome was that the senate, which had a part of the exe­cu­tive autho­rity, and the magis­tra­tes, who had the other part, did not, like the peo­ple, have the faculty of pre­ven­tion.

Here, then, is the fun­da­men­tal cons­ti­tu­tion of the govern­ment we are des­cri­bing. The legis­la­tive body being com­po­sed of two parts, one will enchain the other through its mutual faculty of pre­ven­tion. Both will be bound by the exe­cu­tive autho­rity, which will itself be bound by the legis­la­tive one.

These three autho­ri­ties ought to cons­ti­tute a rest or inac­tion. But as by the natu­ral move­ment of things they are for­ced to func­tion, they will be for­ced to func­tion in concert.

The exe­cu­tive autho­rity being part of the legis­la­tive only through its faculty of pre­ven­tion, it can­not enter into the debate over issues. It is not even neces­sary for it to pro­pose, since being always able to disap­prove reso­lu­tions, it can reject deci­sions on pro­po­si­tions it would rather had not been made.

In some ancient repu­blics where the peo­ple as a body held the debate over issues, it was natu­ral for the exe­cu­tive autho­rity to pro­pose them and debate them with the peo­ple, for other­wise there would have been a strange confu­sion in the reso­lu­tions.

If the exe­cu­tive autho­rity deci­des on the levy of public funds other than by its consent, that will be the end of free­dom, because it will become legis­la­tive on the most impor­tant point of legis­la­tion.

If the legis­la­tive autho­rity deci­des, not year by year but per­ma­nently, on the levying of public funds, it risks losing its free­dom, because the exe­cu­tive autho­rity will no lon­ger depend upon it ; and when one holds such a right per­ma­nently, it is rather indif­fe­rent whe­ther it was confer­red by one­self or by someone else. The same situa­tion obtains if it deci­des not year by year but per­ma­nently on the land and sea for­ces it must entrust to the exe­cu­tive autho­rity.

For the per­son who exe­cu­tes to be una­ble to oppress, the armies entrus­ted to him must be of the peo­ple, and have the same spi­rit as the peo­ple, as was the case in Rome until the time of Marius. And for this to be so, there are but two means : either for those who are employed in the army to be well enough off to ans­wer to the other citi­zens for their conduct, and be enrol­led only for a year, as was prac­ti­ced in Rome ; or, if there is a per­ma­nent corps of troops of which the sol­diers are one of the basest por­tions of the nation, the legis­la­tive autho­rity must be able to dis­solve it the minute it so desi­res ; sol­diers must live with the citi­zens, and there must be nei­ther a sepa­rate camp, nor bar­racks, nor for­tress.

The army being once esta­bli­shed, it must be a depen­dency not imme­dia­tely of the legis­la­tive body, but of the exe­cu­tive autho­rity, and this by the nature of the thing, its pur­pose consis­ting more in action than in deli­be­ra­tion.

It is in the human man­ner of thin­king that more be made of cou­rage than of timi­dity, of acti­vity than of pru­dence, of strength than of coun­sel. The army will always scoff at a senate, and res­pect their own offi­cers. They will pay lit­tle atten­tion to orders sent to them by a body com­po­sed of men who to them are timid and hence unwor­thy of com­man­ding them. Thus, the minute the army beco­mes solely depen­dent on the legis­la­tive body, the govern­ment will become mili­tary ; and if the reverse has ever occur­red, it is the effect of some extra­or­di­nary cir­cum­stan­ces. For the army is always sepa­rate ; it is com­po­sed of seve­ral corps, each of which is depen­dent on its par­ti­cu­lar pro­vince : for the capi­tal cities are excel­lent stron­gholds which are defen­ded by their situa­tion alone, and where there are no troops.

Holland is even more secure than Venice : she would sub­merge troops in revolt ; she would make them die of hun­ger ; they are not in the cities, which could give them sub­sis­tence ; that sub­sis­tence is the­re­fore pre­ca­rious.

It suf­fi­ces to read the excel­lent work by Tacitus on the ways of the Germans6 to see that the English got from them the idea of their poli­ti­cal govern­ment. This ele­gant sys­tem was dis­co­ve­red in the woods.

As all human things have an end, the state we are des­cri­bing will lose its free­dom and perish. Rome, Lacedæmon, and Carthage have indeed peri­shed. It will perish when the legis­la­tive autho­rity has become more cor­rupt than the exe­cu­tive.

It is not for me to exa­mine whe­ther the English pre­sently enjoy this free­dom or not. It is enough for me to say that it is esta­bli­shed by their laws, and I inquire no fur­ther.

I do not pre­tend the­reby to dis­pa­rage other govern­ments, nor to say that this extreme poli­ti­cal free­dom should mor­tify those who have only a mode­rate free­dom. How could I say that, I who believe that excess even of rea­son is not always desi­ra­ble, and that men almost always adapt bet­ter to mode­ra­tion than to extre­mes ?

Harrington, in his Oceana, also exa­mi­ned what was the highest point of free­dom to which the cons­ti­tu­tion of a state can be rai­sed.7 But we can say of him that he sought this free­dom only after fai­ling to reco­gnize it, and that he built Chalcedon with the sho­res of Byzantium in plain sight.

In Venice.

As in Athens.

[Algernon Sidney, Discourses Concerning Government, 1698.]

These were magistrates elected annually by the people. See Stephanus of Byzantium.

Roman magistrates could be accused after their magistracy. See in Dionysius of Halicarnassus, book IX, the affair of the tribune Genutius.

De minoribus rebus principes consultant, de majoribus omnes ; ita tamen ut ea quoque quorum penes plebem arbitrium est apud principes pertractentur [‘On minor matters the chiefs deliberate, about the more important ones the whole people. Yet even when the final decision rests with the people, the matter is always thoroughly considered by the chiefs’ (Tacitus, De moribus Germanorum, [ch. 11].)

[James Harrington (1611-1677), The Commonwealth of Oceana, 1656.]