 Montesquieu,
[Charles de Secondat, Baron de Montesquieu (16891755)], was
an influential French enlightenment political thinker. His
Spirit of the Laws is his best known work. It is in
this work that he explains his theory of separation of powers
and checks and balances, ideas which powerfully influenced
the American constitution.
In
every government there are three sorts of power; the legislative;
the executive, in respect to things dependent on the law of nations;
and the executive, in regard to things that depend on the civil
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 tranquility of mind,
arising from the opinion each person has of his safety. In
order to have this liberty, it is requisite the government
be so constituted as one man need not be afraid of` another.
When
the legislative and executive powers are united in the same
person, or in the same body of magistrates, there can be no
liberty; because apprehensions may anse, lest the same monarch
or senate should enact tyrannical laws, to execute them in
a tyrannical manner.
Again,
there is no liberty, if the power of judging be not separated
from the legislative and executive powers. Were it joined
with the legislative, the life and liberty of the subject
would be exposed to arbitrary control, for the judge would
then be the legislator. Were it joined to the executive power,
the judge might behave with all the violence of an oppressor.
There
would be an end of every thing were the same man, or the same
body, whether of the nobles or of the people to exercise those
three powers that of enacting laws, that of executing the
public resolutions, and that of judging the crimes or differences
of individuals.
Most
kingdoms 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 weight of a most frightful 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.
What
a situation must the poor subject be in, 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.
From
Montesquieu, The Spirit of the Laws, translated by
Thomas Nugent, (London: J. Nourse, 1777)
Edited
by Jennifer Brainard c. 2000-2003
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