Spirit of the Laws

Charles-Louis de Secondat, Baron de Montesquieu 

France, 1748

From: http://www.constitution.org/cm/sol.htm

[The] government most conformable to nature is that which best agrees with the humour and disposition of the people in whose favour it is established. Law in general is human reason . . . the political and civil laws of each nation . . . should be adapted in such a manner to the people for whom they are framed . . .

[Law and government] should be in relation to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen, or shepherds: they should have relation to the degree of liberty which the constitution will bear; to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs . . . [Chap. 1.3]

There are three species of government: republican, monarchical, and despotic. In order to discover their nature, it is sufficient to recollect the common notion, which supposes three definitions, or rather three facts: that a republican government is that in which the body, or only a part of the people, is possessed of the supreme power; monarchy, that in which a single person governs by fixed and established laws; a despotic government, that in which a single person directs everything by his own will and caprice. [Chap. 2.1]

In every government there are three sorts of power; the legislative; the executive, in respect to things dependent on the law of nations . . . By virtue of the first, the prince . . . 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.

. . . 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 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 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 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 . . .

[But] 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 . . . 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 . . . and as . . . the judiciary power [is] 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.

[On the executive branch]

The executive power ought to be in the hands of a monarch; because this branch of government, which has always need of expedition, is better administered by one than by many: Whereas, whatever depends on the legislative power, is oftentimes better regulated by many than by a single person.

But if there was no monarch, and the executive power was 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 actually sometimes have, and would moreover be always able to have, a share in both.

[On the legislative (law-making) branch]

Were the legislative body to be a considerable time without meeting, this would likewise put an end to liberty. For one of these two things 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 assembled. 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 from executing, and oblige it to think only of defending its own prerogatives, and the right it has to execute . . . 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 . . .

The legislative body should not assemble of itself. For a body is supposed to have no will but when it is assembled . . . the executive power should regulate the time of convening, as well as the duration of those assemblies, according to the circumstances  . . . Were the executive power not to have a right of putting a stop to the encroachments 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 stop the executive. For as the executive 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 government ought to have no right to stop the executive, it has a right, and ought to have the means of examining in what manner its laws have been executed . . . whatever may be the issue of that examination, the legislative body ought not to have a power of judging the person, nor of course the conduct of him who is entrusted 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.

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 . . . [Chap 11.6]

[On law and justice]

Liberty is in perfection when criminal laws derive each punishment from the particular nature of the crime. There are then no arbitrary decisions; the punishment does not flow from the capriciousness of the legislator, but from the very nature of the thing; and man uses no violence to man. [Chap 20.4]

[On the monarch, nobility and clergy]

. . . [In] monarchical government . . . a single person governs by fundamental laws . . . the prince is the source of all power, political and civil. These fundamental laws necessarily suppose the intermediate channels through which the power flows: for if there be only the momentary and capricious will of a single person to govern the state, nothing can be fixed, and of course there is no fundamental law.

The most natural, intermediate, and subordinate power is that of the nobility. This in some measure seems to be essential to a monarchy, whose fundamental maxim is: no monarch, no nobility; no nobility, no monarch; but there may be a despotic prince.

There are men who have endeavored in some countries in Europe to suppress the jurisdiction of the nobility, not perceiving that they were driving at the very thing that was done by the parliament of England. Abolish the privileges of the lords, the clergy and cities in a monarchy, and you will soon have a popular state, or else a despotic government.

The courts of a considerable kingdom in Europe have, for many ages, been striking at the patrimonial jurisdiction of the lords and clergy . . . we leave it to the public to judge how far this may alter the constitution. Far am I from being prejudiced in favor of the privileges of the clergy; however, I should be glad if their jurisdiction were once fixed.

Though the ecclesiastic power be so dangerous in a republic, yet it is extremely proper in a monarchy, especially of the absolute kind. What would become of Spain and Portugal, since the subversion of their laws, were it not for this only barrier against the incursions of arbitrary power?  . . [Since] a despotic government is productive of . . . calamities . . . the very evil that restrains it is beneficial to the subject. [Chap 1.4]

Prin version: 5_Montesquieu_Spirit of the Laws.docx

Home website address: http://www.constitution.org

Webpage address: http://www.constitution.org/cm/sol.htm

Original citation: Baron de Montesquieu, The Spirit of the Laws, trans. Thomas Nugent (rev. J. V. Prichard), based on a public domain edition published by G. Bell and Sons (1914)

This edition edited by Elizabeth L. Hardman (italics added for emphasis)