The spirit of laws by Charles de Secondat, Baron de Montesquieu


part of the legislative, yet this is liable to three exceptions, founded



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part of the legislative, 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 clearsighted 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 rigour. 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 favour of the
law itself, by mitigating the sentence.

It might also happen that a subject entrusted 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 of 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.

The change of government at Rome was owing to this, that neither the


senate, who had one part of the executive power, nor the magistrates,
who were entrusted with the other, had the right of rejecting, which was
entirely lodged in the people.

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.

In some ancient commonwealths, where public debates were carried on by


the people in a body, it was natural for the executive power to propose
and debate in conjunction with the people, otherwise their resolutions
must have been attended with a strange confusion.

Were the executive power to determine the raising of public money,


otherwise than by giving its consent, liberty would be at an end;
because it would become legislative in the most important point of
legislation.

If the legislative power was to settle the subsidies, not from year to


year, but for ever, it would run the risk of losing its liberty, because
the executive power would be no longer dependent; and when once it was
possessed of such a perpetual right, it would be a matter of
indifference whether it held it of itself or of another. The same may be
said if it should come to a resolution of entrusting, not an annual, but
a perpetual command of the fleets and armies to the executive power.

To prevent the executive power from being able to oppress, it is


requisite that the armies with which it is entrusted should consist of
the people, and have the same spirit as the people, as was the case at
Rome till the time of Marius. To obtain this end, there are only two
ways, either that the persons employed in the army should have
sufficient property to answer for their conduct to their
fellow-subjects, and be enlisted only for a year, as was customary at
Rome: or if there should be a standing army, composed chiefly of the
most despicable part of the nation, the legislative power should have a
right to disband them as soon as it pleased; the soldiers should live in
common with the rest of the people; and no separate camp, barracks, or
fortress should be suffered.

When once an army is established, it ought not to depend immediately on


the legislative, but on the executive, power; and this from the very
nature of the thing, its business consisting more in action than in
deliberation.

It is natural for mankind to set a higher value upon courage than


timidity, on activity than prudence, on strength than counsel. Hence the
army will ever despise a senate, and respect their own officers. They
will naturally slight the orders sent them by a body of men whom they
look upon as cowards, and therefore unworthy to command them. So that as
soon as the troops depend entirely on the legislative body, it becomes a
military government; and if the contrary has ever happened, it has been
owing to some extraordinary circumstances. It is because the army was
always kept divided; it is because it was composed of several bodies
that depended each on a particular province; it is because the capital
towns were strong places, defended by their natural situation, and not
garrisoned with regular troops. Holland, for instance, is still safer
than Venice; she might drown or starve the revolted troops; for as they
are not quartered in towns capable of furnishing them with necessary
subsistence, this subsistence is of course precarious.

In perusing the admirable treatise of Tacitus On the Manners of the


Germans,[13] we find it is from that nation the English have borrowed
the idea of their political government. This beautiful system was
invented first in the woods.

As all human things have an end, the state we are speaking of will lose


its liberty, will perish. Have not Rome, Sparta, and Carthage perished?
It will perish when the legislative power 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 further.

Neither do I pretend by this to undervalue other governments, nor to say


that this extreme political liberty ought to give uneasiness to those
who have only a moderate share of it. How should I have any such design,
I who think that even the 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 inquired 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.

7. Of the Monarchies we are acquainted with. The monarchies we are


acquainted with have not, like that we have been speaking of, liberty
for their direct view: the only aim is the glory of the subject, of the
state, and of the sovereign. But hence there results a spirit of
liberty, which in those states is capable of achieving as great things,
and of contributing as much perhaps to happiness as liberty itself.

Here the three powers are not distributed and founded on the model of


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

8. Why the Ancients had not a clear Idea of Monarchy. The ancients had


no notion of a government founded on a body of nobles, and much less on
a legislative body composed of the representatives of the people. The
republics of Greece and Italy were cities that had each their own form
of government, and convened their subjects within their walls. Before
Rome had swallowed up all the other republics, there was scarcely
anywhere a king to be found, no, not in Italy, Gaul, Spain, or Germany;
they were all petty states or republics. Even Africa itself was subject
to a great commonwealth: and Asia Minor was occupied by Greek colonies.
There was, therefore, no instance of deputies of towns or assemblies of
the states; one must have gone as far as Persia to find a monarchy.

I am not ignorant that there were confederate republics; in which


several towns sent deputies to an assembly. But I affirm there was no
monarchy on that model.

The first plan, therefore, of the monarchies we are acquainted with was


thus formed. The German nations that conquered the Roman empire were
certainly a free people. Of this we may be convinced only by reading
Tacitus On the Manners of the Germans. The conquerors spread themselves
over all the country; living mostly in the fields, and very little in
towns. When they were in Germany, the whole nation was able to assemble.
This they could no longer do when dispersed through the conquered
provinces. And yet as it was necessary that the nation should deliberate
on public affairs, pursuant to their usual method before the conquest,
they had recourse to representatives. Such is the origin of the Gothic
government amongst us. At first it was mixed with aristocracy and
monarchy -- a mixture attended with this inconvenience, that the common
people were bondmen. The custom afterwards succeeded of granting letters
of enfranchisement, and was soon followed by so perfect a harmony
between the civil liberty of the people, the privileges of the nobility
and clergy, and the prince's prerogative, that I really think there
never was in the world a government so well tempered as that of each
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