The Spirit Of Laws Part 1
The Spirit of Laws.
Charles Montesquieu.
Introduction
MONTESQUIEU, Charles Louis Secondat de la Brede, was born at the Chateau de la Brede, near Bordeaux, in the month of January, 1689. He lived sixty-six years, and died on the tenth day of February, 1755. If we should omit his literary performances from the record of his life, and consider his existence apart from his books, the record would end here, and it might be said of him, as has been justly said of some royal personages, that he was born, he lived and he died. Not only was that life uneventful, but it was studiously shut off from the public eye. He shrank from those who would peer into his privacy, and reserved that part of himself for his family and his friends. He loved fame, that is, the honorable repute that grew out of the intellectual productions with which he enriched the world. Apart from these, as Horace, whom he resembled in many ways, has said of himself: "He sought the secret way and unfrequented path of life that steals away unknown."
That he was thoroughly a gentleman in the best sense of the word-courteous, gentle, kindly and una.s.suming-all who knew him testify: withal a genuine Gascon in the sparkle of his speech, in the southern brogue that he patriotically exaggerated, in his wit and effervescence, in all the qualities that he derived from the sunny atmosphere of his native Gascony and the ruddy wines that flowed so freely from the land that he dearly loved to the end.
Writers with an ingenious turn for the discovery of a.n.a.logies have compared him to Voltaire, who was born but a few years after Montesquieu, and survived him many years. Voltaire was undoubtedly a man of rare genius and unequalled skill when it came to the work of destruction. To demolish ancient things was the task in which he excelled and which he delighted to perform. His bitterness against the social system of which the Church was an integral part displayed itself with all the venom of personal enmity: it was flavored with the pa.s.sion of revenge rather than a desire to promote right and to prevent wrong. Throughout all his aggressive life, this feature was apparent; it existed in fact and showed itself by unmistakable symptoms. Nor was it without reason. In his early youth, he had been subjected to personal indignities at the hands of blue-blooded men who considered it the privilege of their caste to disregard the claims of those whose pedigree was not as long as their own; they laughed to scorn the demands for satisfaction of such, however grievously and wantonly they had been injured. When Voltaire sought to obtain redress for deliberate affronts, they were repeated in most brutal and offensive form; the only compensation that he received was free quarters at the Bastille and abundant opportunity, in the silence of solitary meditation, to nurse his hatred and to lick his wounds. The friend of Frederick II never forgot the humiliation of his early life: and the sharpness of his pen and tongue may both be traced in a measure to these days of wrong unavenged and unpunished. The Church was the ally and prop of the social scheme which permitted these wrongs, hence the Church must pay the penalty. His rage increased with his years, until he boasted, in the heat of his madness, that one man might destroy the religion which twelve men had founded.
But Montesquieu had no personal reasons for disliking either Church or State. No insult had embittered his early life, his unwounded pride never festered at the recollection of personal maltreatment. He was always decorous, conservative and prudent. In the rich soil of his generous nature, no seed had been sown from which hatred could grow. He was a lover of the human race, and sought to promote its happiness. If, in the effervescence of his early youth, he allowed his brilliant pen to enter upon dangerous fields of controversy, he never intended other than good results. He meant to cure, not to kill: he hoped to make, not to mar: he sought to repair and to improve, not to tear down and to destroy. His warm Gascon nature exulted in the mere fact of existence, the sunshine of the merry Gascon country was in itself a delight. He would have had the whole world as happy as himself. He loved the companionship of friends, he delighted in the society of books. He had never known one single sorrow in his life to resist the soothing influence of these silent and eloquent companions. They were part of his life; indeed, the best part, the only part by or through which we know him, the only part through which he survives.
Montesquieu became famous in a day. His "Persian Letters," written when he was thirty years of age, charmed, delighted and irritated his countrymen, and especially his countrywomen, who were quite as ready and able as the male part of the population to make a writer's fame. The Persian visitors whom he invented and whose comments upon the society and the religion of France he gives to the public, were very free in their criticisms of what they saw, and it is not to be wondered at that the guardians of public morals looked with suspicion and alarm upon the trenchant wit of the Gascon sage, who dared to criticise abuses and to laugh at practices which Time had rendered venerable. There was, indeed, much that might create grave concern in the minds of those who studied the Letters of the Persian travellers. We must not forget that the roots and branches of State and Church were closely interwoven and intertwined. The blow aimed at the one was in effect a blow at the other. Time showed-and Voltaire lived to see the day-when the destruction of the existing State must needs bring with it a shock and disturbance to the Church. The result of the Letters was that the contagion spread which the conservatism of Montesquieu would fain have arrested and cured. He did not delay the current nor stem the rising tide. Perhaps by calling attention to abuses, he aided in producing the calamity that he would have deprecated. He gave aid and comfort to the enemies of the social system that he would have willingly saved: finally, by making these attacks plausible, half a century after he was at rest, everything gave way that he would have preserved, and the foundations of the world were shaken.
Even when the Letters were at the full tide of success many readers who were attached to the existing system of society looked with disfavor on their cold disregard of respectable barnacles. D'Argenson said: "These are reflections which a brilliant man can easily make, but which a prudent man ought never to print." Marivaux expressed the cla.s.s sentiment with accuracy when he said that a man should be sparing of his wit on such subjects. Montesquieu himself realized that he had become an object of suspicion to the "official cla.s.ses" who sought every occasion to slight him, while they admired his ability-of which they thought he had too much. Indeed, it was darkly suggested that he was an infidel and possibly might be a traitor! These comments had their effect, so far as to induce him to disclaim the paternity of a work which it might not be quite safe to recognize as his offspring.
The sale of the "Persian Letters" was all that their author could wish. His Jesuit secretary, Pere Desmolets, had confidently predicted the result: "The Letters will sell like bread," he had prophesied. And so they did. They expressed, in delightful speech, the thoughts of many who were neither able nor daring enough in fitting phrase to attack the powers of the day. As for himself, his reputation was, from that moment, established as a wit. He was an homme d'esprit. Perhaps he was surprised at the success that he had achieved, possibly a little alarmed at the construction that had been put upon the criticism of his Persians. He had never desired to be looked upon as an iconoclast. As he afterwards says, "I am not a theologian, I am a historian." If he used the knife, it was rather as a kindly surgeon than as a wilful shedder of blood. He took no delight in angry controversy. "Men forget," he said, "that when I represent a Turk, I must make him talk and act and write like a Turk." The trouble is that his Turks talk too much like Parisians and not enough like genuine Turks. Their real nationality is but ill disguised by their flowing robes, and the laughing face of the Bordeaux wine grower is seen through their foreign mask.
The "Causes of the Greatness and Decline of the Romans," next issued from Montesquieu's pen, would have a.s.sured his fame had the "Spirit of Laws" not belittled it by its own superiority. His Treatise on the Romans is marked by the same perseverance and research as his book on the Laws. He delves at the roots of History to learn how from general causes events have grown. He is no believer in chance: there is a Philosophy of History with its rules and principles and they must be studied and found before we can know the nature and reason of Things. "It is not chance that rules the world," he says; "witness the Romans, who had a constant succession of triumphs while they managed their Government on a certain plan, and an uninterrupted series of reverses when it was conducted on another. There are general causes, either moral or physical, at work in every monarchy, exalting, maintaining or overcoming it." Upon this theory, he has examined symptoms to ascertain causes, and has, with a beauty of style that well became the dignity of his subject, first taught men that the records of the past might be found to contain sermons as well as traditions, lessons as well as facts, and materials for prophecy mingled with the dust of ages.
When the "Spirit of Laws" appeared, the work upon which his t.i.tle to the admiration of posterity must depend, he was well known to the literary world as the author of the "Persian Letters," but it is not clear that he was much helped by the celebrity thus acquired. If there is one reproach in the a.r.s.enal of Gallic denunciation from which a man seldom recovers who aspires to instruct his people, it is the suggestion that he is not a serious man (un home serieux), and many thought, no doubt, that the putative father of these disrespectful Persians was too witty to be serious. How could he write a grave and instructive book and at the same time masquerade in Persian silks to the tune of Parisian music! The Professor's gravity did not sufficiently appear to ent.i.tle the aspiring pedagogue to a diploma.
Although the success of the "Spirit of Laws" was not immediate in France, it was not long in doubt. In England, intelligent opinion immediately seized upon the work, and received it with enthusiasm. This was due in a great measure to the fact that the author had been a close student and admirer of the British Const.i.tution, and had adopted the shortest road to the British heart by his intelligent tribute to the superiority of that vague, shadowy and unwritten Charter of British liberty.
The practical genius of the English mind was happily shown on this occasion. The trans-Channel admirers of Montesquieu must needs know something about this meridional wise man, who had studied, a.s.similated and understood and expounded the Const.i.tution of England as intelligently and satisfactorily as though he had opened his eyes to the light at London or Liverpool. Inquiry into his residence and occupation naturally developed the fact that the expounder was not only a book-writer but a wine-grower, whereupon British logic suggested that the man who wrote so excellent a book must also grow excellent wine. The orders for the wine grown at La Brede flowed in as rapidly as the orders for copies of the "Spirit of Laws," so that Montesquieu's frugal mind rejoiced at this double success, which delighted his pride and filled his purse. "The success of my book in that country," he said, "contributed to the success of my wine: but I think that the success of my wine has done still more for the success of my book." Whether this estimate was based on an overestimate of the bouquet of the wine or an underestimate of the greatness of the book, we have no means of ascertaining. The fame of the La Brede brand rests wholly on tradition.
It may not be without interest here to note that Montesquieu, though frugal and modest in his personal expenditures, was at heart generous and kind. He was a ready giver, but he concealed his charities as though they were grievous sins. Ostentation was abhorrent to his nature. His simplicity of life was such as to suggest avarice when it was only indifference to display. He was quite conscious that he did not live and dress and shine like the gaudy members of his own circle and felt that love of money for its own sake would be charged against him. But he repudiated the reproach. "I have never made any display in the way of expense," he said, "but I have never been avaricious. I know of no task, however easy of performance, that I would have performed to earn money. I have, I think, increased my store, but it was rather because I flattered myself that I thereby showed a certain kind of ability than from any desire to become rich." He could not remember to have spent four louis for show, but many a gold piece quietly left his purse to relieve a needy applicant.
One instance may be cited: An English watchmaker once wrote him: "I think of hanging myself: but I believe that I would not do it if I had one hundred crowns." To which Montesquieu immediately replied: "I send you one hundred crowns: do not hang yourself, my dear Sully, but come to see me." How many English clockmakers he thus saved from voluntary strangulation we do not know: he was the last man to record the number of those or of others whom he rescued from despair.
That Montesquieu did think highly of his masterpiece, we know from his own expressions. He exulted with a schoolboy's delight at the completion of his task, and as his weary pen traced the last words of his immortal work, his memory recalled the tempest-tossed companions of Aeneas as they touched the sh.o.r.es of the promised land. "Italiam, Italiam," he exclaimed. The joy of triumph and the hope of repose combined to make this the happiest moment of his life. The long labor of twenty years was ended and the prize of endless fame secured. Like the Augustan Poet, he felt sure that he would not wholly die, for he had erected a monument more enduring than bra.s.s. But the labor and anxiety were almost more than he could bear. As he revised his last proofs, he said: "This work has well-nigh killed me: I am going to rest: I shall labor no more." He lived eight years longer, but made no effort to add to his fame or to his claims upon the world.
It is curious to note how Montesquieu was at first alone of his immediate circle to realize and adequately measure the value of the "Spirit of Laws." Whether the long and faithful labor of years had satisfied him that he could not have thus striven in vain or the equipoise of his trained mind allowed him to judge as correctly as though he were pa.s.sing on the performance of a stranger, he knew from the outset that the book would win him renown. He called his intimates and asked for their opinion. The critic who showed the most favor kindly declared that there was enough in the work to make it valuable as a notebook, from which material might be drawn for another Treatise: the sternest and possibly the most candid of the critics bluntly declared that the best plan would be to throw the ma.n.u.script into the fire as the safest method of guarding the author's reputation from the injury which it would receive from publication. But he trusted to his own judgment rather than to theirs. Undismayed and undisturbed by his comforters, he quietly sent his work to the printer, and awaited the result without anxiety.
If the "Spirit of Laws" escaped the blazing logs of the chateau, thanks to the self-confidence of the author, another work of his was less fortunate. He had written a "History of Louis XI," one of the most extraordinary and complex characters in the records of the French Monarchy. Mr. Watson, in his "Story of France," says of Louis XI that he was "a great King, a thoroughly bad man, and utterly unscrupulous in method, yet his life work was upon the whole a benefit to mankind. He was crafty, deceitful, cruel and calculating." Perhaps a man may be a great King even if his character is made up of such ingredients. But as he did exhibit them in his life, it is not to be wondered at if historians, with one accord-still according to Mr. Watson-"decry him as a beast unclean." The estimate of a French historian of modern times probably comes nearer the truth. He says that Louis XI was not a great King nor a good King, but still a King! Our curiosity to know what so competent a judge as Montesquieu would have held upon this point will never be gratified. The carelessness of the secretary, who threw into the flames the complete and priceless ma.n.u.script, has inflicted a permanent injury upon mankind. Our regret is only heightened by the few samples that we have of the work that the world has lost. Who but Montesquieu could have described Richelieu in fewer words and have given a more accurate photograph of this towering figure of French History! "Richelieu made his King play the second part in the Monarchy and the first in Europe: he degraded the Sovereign but he enn.o.bled the Throne."
The necessary limits of this paper will not permit even a brief attempt at a.n.a.lyzing the "Spirit of Laws." D'Alembert has made the effort, and has written many and dreary pages to show what Montesquieu intended to accomplish. But no author is more difficult to condense than Montesquieu. He is a dealer in epigrams and possessed the talent to a rare degree of squeezing the sap out of an idea and of crystallizing it into apt and pungent words. So marked is this faculty in him that one of his contemporaries, Buffon, who did not err in the same direction, accounted for this conciseness by saying that it was due to the author's defective vision. His eyes had failed many years before his death, and he was obliged to dictate to his daughter, who performed for him the same pious office that Milton's children performed for their father. As his memory was bad, says Buffon, he was obliged to formulate in his own mind brief sentences that he was able to carry while the dictation was made, and in this way he became accustomed to the form of expression which is predominant in his work. Buffon may be right, though this compensation to short-sighted men is not usually given. If it were, the "Spirit of Laws" would not stand out as a shining example of a style that has never, in epigrammatic excellence at least, been surpa.s.sed.
The foundation of the work was the attempt to find those common principles and emotions which, operating upon men of every climate and degree of civilization, produce certain results. He was satisfied that those principles existed, and if found, would afford a scientific explanation of what without their aid would seem to be chaotic and inexplicable. Or, to come nearer to his own language, he rejoiced to find in "the nature of things" the explanation of so many different laws and customs. He was often discouraged and dismayed at what he termed "the majesty of his subject." Time and again, he flung away the unfinished page, and turned his back in despair upon his herculean task. But his courage and the philosophy of his temperament never yielded long to debilitating influences. He resumed his labors and continued them until he was able to say, like Correggio: "I, too, am a painter"!
Montesquieu has been spoken of, and was no doubt considered in his day by many, a reformer. And yet the reforming spirit in him was so mild as to be almost innocuous. He did condemn the Inquisition-but who did not even then shrink in horror from that awful and mysterious tribunal? He advocated the abolition of torture-who would restore it to-day? He was supposed to be a champion of religious toleration, but went no further in his anxiety to give the benefits of generous forbearance to dissenters than the restoration of the Edict of Nantes. Yet that Edict gave no equality, only faint-hearted toleration, to the men who believed in the same religious doctrines once held by the King who formulated the Edict (a.s.suming that Henry IV ever entertained any fixed belief on religion). Montesquieu was not an advocate of what to-day we consider the elementary rights of conscience. He was willing that the Huguenots should be permitted, with definite restrictions, to practise their own religious rites, but he was not in favor of admitting new beliefs to disturb the State and complicate the machinery of political society. In other words, if he was in advance of his day in these matters, his conservatism so dominated his theories of reform that before the eighteenth century had ended, he had long been outstripped in the race for toleration by the majority of his people.
The peculiarities of his style have been criticised, and affectation imputed with scant justice. His methods were certainly unusual: his brusque transitions, the sudden breaks in the continuity of an argument, the dramatic outburst taking the place of a formal conclusion, astonish the modern reader by their unaccustomed and unexpected appearance. But they fulfilled their object, for they captivated the attention as they stimulated the curiosity of the reader. He sought to be read not only by the scholars and purists of the day, but by the many brilliant, if frivolous, people who dabbled in letters and only dreaded one thing in a book, to wit, being bored. The deadly sin of a writer was to fail in making the attention of the reader a prisoner, willing or unwilling. The solid gold of learning and wisdom was not enough: the artist's skill must call attention to the value of the metal so that the taste might be charmed while the mind was satisfied. There must be for the reader of the day frequent halting places where he might stop and get his breath. He was not always able to keep his mind stretched on the rack of continuous attention: he must be allowed at times to turn a corner abruptly and catch a new view of men or things.
A few, among the countless instances of Montesquieu's skill in cheating the sluggard and decoying the unwary, will ill.u.s.trate the novelty, the charm and the effect produced by this accomplished artist. Who would not prefer an aphorism to a sermon, if the former conveyed all the instruction of the latter? As he himself has said: "It is not enough to make one read, he must be made to think." His chapter on the "Idea of Despotism" contains exactly three lines: Here it is:
Montesquieu's Preface
IF amidst the infinite number of subjects contained in this book there is anything which, contrary to my expectation, may possibly offend, I can at least a.s.sure the public that it was not inserted with an ill intention-for I am not naturally of a captious temper. Plato thanked the G.o.ds that he was born in the same age with Socrates; and for my part I give thanks to the Supreme that I was born a subject of that government under which I live, and that it is His pleasure I should obey those whom He has made me love.
I beg one favor of my readers, which I fear will not be granted me; this is, that they will not judge by a few hours' reading of the labor of twenty years; that they will approve or condemn the book entire, and not a few particular phrases. If they would search into the design of the author, they can do it in no other way so completely as by searching into the design of the work.
I have first of all considered mankind, and the result of my thoughts has been, that amidst such an infinite diversity of laws and manners, they were not solely conducted by the caprice of fancy.
I have laid down the first principles, and have found that the particular cases follow naturally from them; that the histories of all nations are only consequences of them; and that every particular law is connected with another law, or depends on some other of a more general extent.
When I have been obliged to look back into antiquity I have endeavored to a.s.sume the spirit of the ancients, lest I should consider those things as alike which are really different, and lest I should miss the difference of those which appear to be alike.
I have not drawn my principles from my prejudices, but from the nature of things.
Here a great many truths will not appear till we have seen the chain which connects them with others. The more we enter into particulars, the more we shall perceive the certainty of the principles on which they are founded. I have not even given all these particulars, for who could mention them all without a most insupportable fatigue?
The reader will not here meet with any of those bold flights which seem to characterize the works of the present age. When things are examined with never so small a degree of extent, the sallies of imagination must vanish; these generally arise from the mind's collecting all its powers to view only one side of the subject, while it leaves the other un.o.bserved.
I write not to censure anything established in any country whatsoever. Every nation will here find the reasons on which its maxims are founded; and this will be the natural inference, that to propose alterations belongs only to those who are so happy as to be born with a genius capable of penetrating the entire const.i.tution of a state.
It is not a matter of indifference that the minds of the people be enlightened. The prejudices of magistrates have arisen from national prejudice. In a time of ignorance they have committed even the greatest evils without the least scruple; but in an enlightened age they even tremble while conferring the greatest blessings. They perceive the ancient abuses; they see how they must be reformed; but they are sensible also of the abuses of a reformation. They let the evil continue, if they fear a worse; they are content with a lesser good, if they doubt a greater. They examine into the parts, to judge of them in connection; and they examine all the causes, to discover their different effects.
Could I but succeed so as to afford new reasons to every man to love his prince, his country, his laws; new reasons to render him more sensible in every nation and government of the blessings he enjoys, I should think myself the most happy of mortals.
Could I but succeed so as to persuade those who command to increase their knowledge in what they ought to prescribe, and those who obey to find a new pleasure resulting from obedience-I should think myself the most happy of mortals.
The most happy of mortals should I think myself could I contribute to make mankind recover from their prejudices. By prejudices I here mean, not that which renders men ignorant of some particular things, but whatever renders them ignorant of themselves.
It is in endeavoring to instruct mankind that we are best able to practice that general virtue which comprehends the love of all. Man, that flexible being, conforming in society to the thoughts and impressions of others, is equally capable of knowing his own nature whenever it is laid open to his view, and of losing the very sense of it when this idea is banished from his mind.
Often have I begun, and as often have I laid aside, this undertaking. I have a thousand times given the leaves I had written to the winds:1 I, every day, felt my paternal hands fall.2 I have followed my object without any fixed plan-I have known neither rules nor exceptions; I have found the truth, only to lose it again. But when I once discovered my first principles, everything I sought for appeared; and in the course of twenty years I have seen my work begun, growing up, advancing to maturity, and finished.
If this work meets with success I shall owe it chiefly to the grandeur and majesty of the subject. However, I do not think that I have been totally deficient in point of genius. When I have seen what so many great men, in France, in England, and in Germany, have said before me, I have been lost in admiration; but I have not lost my courage: I have said with Correggio, "And I also am a painter.3 1 Ludibria ventis.
2 Bis patriae cecidere ma.n.u.s.
3 Ed io anche son pittore.
Book XI
Of the Laws which Establish Political Liberty with Regard to the Const.i.tution 1.-A general Idea I MAKE a distinction between the laws that establish political liberty as it relates to the const.i.tution, and those by which it is established as it relates to the citizen. The former shall be the subject of this book; the latter I shall examine in the next.
2.-Different Significations of the word Liberty There is no word that admits of more various significations, and has made more varied impressions on the human mind, than that of liberty. Some have taken it as a means 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.1 A certain nation for a long time thought liberty consisted in the privilege of wearing a long beard.2 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.3 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.
3.-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,4 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.
4.-The same Subject continued 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, to say that virtue itself has need of limits?
To prevent this abuse, it is necessary from the very nature of things that power should be a check to power. A government may be so const.i.tuted, 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.
5.-Of the End or View or 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 Ma.r.s.eilles; public tranquillity, that of the laws of China: 5 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, thence results the oppression of the whole.6 One nation there is also in the world that has for the direct end of its const.i.tution political liberty. We shall presently examine the principles on which this liberty is founded; if they are sound, liberty will appear in its highest perfection.
To discover political liberty in a const.i.tution, 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.
6.-Of the Const.i.tution of England7 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 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 emba.s.sies, 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 const.i.tuted 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 n.o.bles 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,8 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 in 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.
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 n.o.bles 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 const.i.tutes almost one and 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 people9 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 and 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.
But should the legislature think itself in danger by some secret conspiracy against the state, or by a correspondence with a foreign enemy, it might authorize the executive power, for a short and limited time, to imprison suspected persons, who in that case would lose their liberty only for a while, to preserve it forever.
And this is the only reasonable method that can be subst.i.tuted to the tyrannical magistracy of the Ephori, and to the state inquisitors of Venice, who are also despotic.
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 inconveniences, 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.10 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 inconveniences of a democracy.
It is not at all necessary that the representatives who have received a general instruction from their const.i.tuents should wait to be directed on each particular affair, as is practised 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 a.s.sembly; and, on the most urgent and pressing occasions, the wheels of government might be stopped by the caprice of a single person.
When the deputies, as Mr. Sidney well observes, represent a body of people, as in Holland, they ought to be accountable to their const.i.tuents; but it is a different thing in England, where they are deputed by boroughs.
All the inhabitants of the several districts ought to have a right of voting at the election of a representative, except such as are in so mean a situation as to be deemed to have no will of their own.
One great fault there was in most of the ancient republics, that the people had a right to active resolutions, such as require some execution, a thing of which they are absolutely incapable. They ought to have no share in the government but for the choosing of representatives, which is within their reach. For though few can tell the exact degree of men's capacities, yet there are none but are capable of knowing in general whether the person they choose is better qualified than most of his neighbors.
Neither ought the representative body to be chosen for the executive part of 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 n.o.bles, and to that which represents the people, each having their a.s.semblies 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 n.o.bility is extremely proper for this purpose.
The body of the n.o.bility 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 a 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 n.o.bility, 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; which was the power of the tribunes at Rome. And though the person possessed of the privilege of rejecting may likewise have the right of approving, yet this approbation pa.s.ses for no more than a declaration, that he intends to make no use of his privilege of rejecting, and is derived from that very privilege.
The executive power ought to be in the hands of a monarch, because this branch of government, having need of despatch, 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.
It would be needless for the legislative body to continue always a.s.sembled. 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 to its office, 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 a.s.sembled, 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 were 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.