Montesquieu’s warning that “every man invested with power is apt to abuse it, and to carry his authority as far as it will go.” argues that political institutions must address the threat that state power itself poses to the liberty and security of individuals, not simply reduce the dangers of conflict among those individuals themselves. It proposes to meet this threat by confining state power, and endorses constitutional government as its principal institutional instrument. Constitutional government is to be limited through a combination of public rules delineating the boundaries of legitimate state authority (rule of law), devices for fracturing state power to keep it from transgressing those boundaries (federalism, separation of powers), and arrangements for monitoring government conduct for possible transgressions (judicial review, legislative supremacy).
A revolution in thought at the time of writing, will these institutions remain valid in 20 years? How about 50? Yes? Then how about 200? The farther out we go, the less certain we become. Why? Read on about one perspective on liberty and government, and keep your futurist’s hat on your head…
Every Man Invested with Power is Apt to Abuse It
Original work by Montesquieu
Different Significations of the Word Liberty
There is no word that admits of more various significations, and has made more different impressions on the human mind, than that of Liberty. Some have taken it for a facility of deposing a person on whom they had conferred a tyrannical authority; others for the power of choosing a superior whom they are obliged to obey; others for the right of bearing arms, and of being thereby enabled to use violence; others, in fine, for the privilege of being governed by a native of their own country, or by their own laws. . . Some have annexed this name to one form of government exclusive of others: Those who had a republican taste, applied it to this species of polity; those who liked a monarchical state, gave it to monarchy. Thus they have all applied the name of Liberty to the government most suitable to their own customs and inclinations: and as in republics, the people have not so constant and so present a view of the causes of their misery, and as the magistrates seem to act only in conformity to the laws, hence liberty is generally said to reside in republics, and to be banished from monarchies. In fine, as in democracies the people seem to act almost as they please; this sort of government has been deemed the most free; and the power of the people has been confounded with their liberty.
In What Liberty Consists
It is true, that in democracies the people seem to act as they please; but political liberty does not consist in an unlimited freedom. In governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do, what we ought not to will.
We must have continually present to our minds the difference between independence and liberty. Liberty is a right of doing whatever the laws permit; and if a citizen could do what they forbid, he would be no longer possessed of liberty, because all his fellow citizens would have the same power.
Democratic and aristocratic states are not in their own nature free. Political liberty is to be found only in moderate governments: and even in these, it is not always found. It is there only when there is no abuse of power; but constant experience shows us, that every man invested with power is apt to abuse it; and to carry his authority as far as it will go. Is it not strange, though true, that virtue itself has need of limits?
To prevent this abuse, it is necessary from the very nature of things, power should be a check to power. A government may be so constituted, as no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits.
Of the End or View of Different Governments
Though all governments have the same general end, which is that of preservation, yet each has another particular object. Increase of dominion was the object of Rome; war, that of Sparta; religion, that of the Jewish laws; commerce, that of Marseilles; public tranquillity, that of the laws of China; navigation, that of the laws of Rhodes; natural liberty, that of the policy of the Savages; in general, the pleasures of the prince, that of despotic states; that of monarchies, the prince’s and the kingdom’s glory: the independence of individuals is the end aimed at by the laws of Poland, from thence results the oppression of the whole.
One nation there is also in the world, that has for the direct end of its constitution political liberty. We shall presently examine the principles on which this liberty is founded; if they are found, liberty will appear in its highest perfection.
To discover political liberty in a constitution, no great labor is requisite. If we are capable of seeing it where it exists, it is soon found, and we need not go far in search of it.
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 executive, in regard to matters 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 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 judiciary power be not separated from the legislative and executive. 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 violence and oppression.
There would be an end of everything, 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 of trying the causes 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 most dreadful 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.
In what a situation must the poor subject be, 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 leveled 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.
I allow indeed that the mere hereditary aristocracy of the Italian republics, does not exactly answer to the despotic power of the Eastern princes. The number of magistrates sometimes moderate the power of the magistracy; the whole body of the nobles do not always concur in the same design; and different tribunals are erected, that temper each other. Thus at Venice the legislative power is in the Council, the executive in the Pregadi, and the judiciary in the Quarantia. But the mischief is that these different tribunals are composed of magistrates all belonging to the same body; which constitutes almost one of the same power.
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 consistently with a form and manner prescribed by law, in order to erect a tribunal that should last only so long as necessity requires.
By this method the judicial 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.
In accusations of a deep or criminal nature, it is proper the person accused should have the privilege of choosing in some measure his judges in concurrence with the law; or at least he should have a right to except against so great a number, that the remaining part may be deemed his own choice.
The other two powers may be given rather to magistrates or permanent bodies, because they are not exercised on any private subject; one being no more than the general will of the state, and the other the execution of that general will.
But though the tribunals ought not to be fixed, the judgments ought; and to such a degree as to be ever conformable to the letter of the law. Were they to be the private opinion of the judge, people would then live in society, without exactly knowing the nature of their obligations.
The judges ought likewise to be of the same rank as the accused, or in other words, his peers; to the end that he may not imagine he is fallen into the hands of persons inclined to treat him with rigor.
If the legislature leaves the executive power in possession of a right to imprison those subjects, who can give security for their good behavior, there is an end of liberty; unless they are taken up, in order to answer without delay to a capital crime; in which case they are really free, being subject only to the power of the law. . .
As in a country of liberty, every man who is supposed a free agent, ought to be his own governor; the legislative power should reside in the whole body of the people. But since this is impossible in large states, and in small ones is, subject to many inconveniencies; it is fit the people should transact by their representatives, what they cannot transact by themselves.
The inhabitants of a particular town are much better acquainted with its wants and interests, than with those of other places; and are better judges of the capacity of their neighbors, than of that of the rest of their countrymen. The members therefore of the legislature should not be chosen from the general body of the nation; but it is proper that in every considerable place, a representative should be elected by the inhabitants.
The great advantage of representatives is their capacity of discussing public affairs. For this the people collectively are extremely unfit, which is one of the chief inconveniencies of a democracy.
It is not at all necessary that the representatives who have received a general instruction from their constituents, should wait to be directed on each particular affair, as is practiced in the diets of Germany. True it is, that by this way of proceeding, the speeches of the deputies might with greater propriety be called the voice of the nation; but, on the other hand, this would occasion infinite delays; would give each deputy a power of controlling the assembly; and, on the most urgent and pressing occasions, the wheels of government might be stopped by the caprice of a single person. . .
Neither ought the representative body to be chosen for the executive part of the government, for which it is not so fit; but for the enacting of laws, or to see whether the laws in being are duly executed, a thing suited to their abilities, and which none indeed but themselves can properly perform.
In such a state there are always persons distinguished by their birth, riches, or honors: but were they to be confounded with the common people, and to have only the weight of a single vote like the rest, the common liberty would be their slavery, and they would have no interest in supporting it, as most of the popular resolutions would be against them. The share they have therefore in the legislature ought to be proportioned to their other advantages in the state; which happens only when they form a body that has a right to check the licentiousness of the people, as the people have a right to oppose any encroachment of theirs.
The legislative power is therefore committed to the body of the nobles, and to that which represents the people, each having their assemblies and deliberations apart, each their separate views and interests.
Of the three powers above mentioned, the judiciary is in some measure next to nothing: there remain therefore only two; and as these have need of a regulating power to moderate them, the part of the legislative body composed of the nobility, is extremely proper for this purpose.
The body of the nobility ought to be hereditary. In the first place it is so in its own nature; and in the next there must be a considerable interest to preserve its privileges; privileges that in themselves are obnoxious to popular envy, and of course in a free state are always in danger.
But as an hereditary power might be tempted to pursue its own particular interests, and forget those of the people; it is proper that where a singular advantage may be gained by corrupting the nobility, as in the laws relating to the supplies, they should have no other share in the legislation, than the power of rejecting, and not that of resolving.
By the power of resolving, I mean the right of ordaining by their own authority, or of amending what has been ordained by others. By the power of rejecting, I would be understood to mean the right of annulling a resolution taken by another. . .
The executive power ought to be in the hands of a monarch, because this branch of government, having need of dispatch, is better administered by one than by many: on the other hand, whatever depends on the legislative power is oftentimes better regulated by many than by a single person.
But if there were no monarch, and the executive power should be 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 sometimes possess, and would be always able to possess, a share in both.
Were the legislative body to be a considerable time without meeting this would likewise put an end to liberty. For of two things one 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. . .
Were the executive power not to have a right of restraining the incroachments 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 stay 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. . .
But if the legislative power in a free state, has no right to stay the executive, it has a right and ought to have the means of examining in what manner its laws have been executed. . .
But whatever may be the issue of that examination, the legislative body ought not to have a power of arraigning the person, nor of course the conduce 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.
In this case, the state would be no longer a monarchy, but a kind of republic, though not a free government. . .
Though in general the judiciary power ought not to be united with any part of the legislature, yet this is liable to three exceptions, founded on the particular interest of the party accused.
The great are always obnoxious to popular envy; and were they to be judged by the people, they might be in danger from their judges, and would moreover be deprived of the privilege which the meanest subject is possessed of in a free state, of being tried by his peers. The nobility, for this reason, ought not to be cited before the ordinary courts of judicature, but before that part of the legislature which is composed of their own body.
It is possible that the law, which is clear-sighted in one sense, and blind in another, might in some cases, be too severe. But as we have already observed, the national judges are no more than the mouth that pronounces the words of the law, mere passive beings, incapable of moderating either its force or rigor. That part therefore of the legislative body, which we have just now observed to be a necessary tribunal on another occasion, is also a necessary tribunal in this; it belongs to its supreme authority to moderate the law in favor of the law itself, by mitigating the sentence.
It might also happen that a subject intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of crimes which the ordinary magistrates either could not, or would not punish. But, in general, the legislative power cannot try causes; and much less can it try this particular case, where it represents the party aggrieved, which is the people. It can only therefore impeach. But before what court shall it bring its impeachment; must it go and demean itself before the ordinary tribunals which are its inferiors, and being composed moreover of men who are chosen from the people as well as itself, will naturally be swayed by the authority of so powerful an accuser? No: in order to preserve the dignity of the people, and the security of the subject, the legislative part which represents the people, must bring in its charge before the legislative part which represents the nobility, who have neither the same interests, nor the same passions.
Here is an advantage which this government has over most of the ancient republics, where this abuse prevailed, that the people were at the same time both judge and accuser.
The executive power, pursuant to what has been already said, ought to have a share in the legislature by the power of rejecting, otherwise it would soon be stripped of its prerogative. But should the legislative power usurp a share of the executive the latter would be equally undone.
If the prince were to have a part in the legislature by the power of resolving, liberty would be lost. But as it is necessary he should have a share in the legislature for the support of his own prerogative, this share must consist in the power of rejecting. .
Here then is the fundamental constitution of the government we are treating of. The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting. They are both restrained by the executive power, as the executive is by the legislative.
These three powers should naturally form a state of repose or inaction. But as there is a necessity for movement in the course of human affairs, they are forced to move, but still in concert.
As the executive power has no other part in the legislative, than the privilege of rejecting, it can have no share in the public debates. It is not even necessary that it should propose, because as it may always disapprove of the resolutions that shall be taken, it may likewise reject the decisions on those proposals which were made against its will. . .
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 shall 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 farther.
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 highest refinement of reason is not always desirable, and that mankind generally find their account better in mediums than in extremes?
Harrington, in his Oceana, has also enquired into the utmost degree of liberty, to which the constitution of a state may be carried. But of him indeed it may be said, that for want of knowing the nature of real liberty, he busied himself in pursuit of an imaginary one; and that he built a Chalcedon, though he had a Byzantium before his eyes. . .
Excerpted from Spirit of the Laws, by Baron Charles-Louis de Secondat de Montesquieu