Chapter 6

The Constitution of England

by Montesquieu Icon

IN every government there are 3 sorts of power:

  1. The legislative – this lets the prince or magistrate:
  • create and revise laws
  1. The executive that implements the law of nations= This lets him:
  • make peace or war
  • send or receive embassies
  • establish the public security
  • provide against invasions
  1. The judiciary that implements the civil law= This lets him:
  • punish criminals
  • judge the disputes between individuals.

Superphysics Note: The legislative is the worker class, the executive is warrior class, the judiciary is the intellectual class. We propose a fourth power which is the resource power representing the merchant class. This mirrors the despotism of the workers, the monarchy of the warriors, and the republic of the intellectuals.

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 con stituted 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 o r senate should enact tyrannical laws, to execute them in a tyrannical mann er.

Again, there is no liberty if the judici ary power be not separated from the legislative and executive. Were it join ed with the legislative, the life and liberty of the subject would be expos ed to arbitrary controul; 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 every thing, we re 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 th e 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 sultanE28099s person, the subjects groan under the most dr eadful oppression.

In the republics of Italy, where these t hree powers are united, there is less liberty than in our monarchies. Hence their government is obliged to have recourse to as violent methods, for it s support, as even that of the Turks; witness the state-inquisitors,* and the lionE28099s mout h into which every informer may at all hours throw his written accusations.

In what a situation must the poor subjec t 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 determi nations; and, as they have likewise the judiciary power in their hands, eve ry private citizen may be ruined by their particular decisions.

The whole power is here united in one bo dy; and, though there is no external pomp that indicates a despotic sway, y et 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, an d all the great offices of state.

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 moder ates the power of the magistracy; the whole body of the nobles do not alway s concur in the same design; and different tribunals are erected, that temp er each other. Thus, at Venice, the legislative power is in the council, the executive in the pregadi , and the judiciary in the quarantia. Bu t the mischief is, that these different tribunals are composed of magistrat es all belonging to the same body; which constitutes almost one and the sam e power.

The judiciary power ought not to be give n to a standing senate; it should be exercised by persons taken from the bo dy of the people,* at certain times of the year, and consistently with a form and manner prescrib ed by law, in order to erect a tribunal that should last only so long as ne cessity requires.

By this method, the judicial power, so t errible to mankind, not being annexed to any particular state or profes sion, becomes, as it were, invisible. People have not then the judges conti nually present to their view; they fear the office, but not the magistrate.

In accusations of a deep and criminal na ture, 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, h e should have a right to except against so great a number, that the remaini ng 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 b e fixt, the judgements ought; and to such a degree, as to be ever conformab le to the letter of the law. Were they to be the private opinion of the jud ge, people would then live in society without exactly knowing the nature of their obligations.

The judges ought likewise to be of the s ame 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 h im with rigour.

If the legislature leaves the executive power in possession of a right to imprison those subjects who can give secu rity for their good behaviour, there is an end of liberty; unless they are taken up in order to answer, without delay, to a capital crime; in which ca se 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 correspond ence with a foreign enemy, it might authorize the executive power, for a sh ort and limited time, to imprison suspected persons, who, in that case, w ould lose their liberty only for a while, to preserve it for ever.

And this is the only reasonable method t hat can be substituted to the tyrannical magistracy of the Ephori, and to the state inquisitors of Venice, who are also despotical.

As, in a country of liberty, every man w ho is supposed a free agent ought to be his own governor, the legislative p ower should reside in the whole body of the people. But, since this is impo ssible in large states, and in small ones is subject to many inconveniences , it is fit the people should transact by their representatives what they c annot transact by themselves.

The inhabitants of a particular town are much better acquainted with its wants and interests than with those of oth er places; and are better judges of the capacity of their neighbours than o f that of the rest of their countrymen.

The members, therefore, of the legi slature should not be chosen from the general body of the nation; but it is proper, that, in every considerable place, a representative should be elec ted by the inhabitants.

The great advantage of representatives i s, their capacity of discussing public affairs. For this, the people collec tively are extremely unfit, which is one of the chief inconveniences of a d emocracy.

It is not at all necessary that the repr esentatives, who have received a general instruction from their constituent s, 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 spe eches of the deputies might, with greater propriety, be called the voice of the nation; but, on the other hand, this would occasion infinite delays; w ould give each deputy a power of controlling the assembly; and, on the mo st 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 ob serves, represent a body of people, as in Holland, they ought to be account able to their constituents; but it is a different thing in England, where t hey are deputed by boroughs.

All the inhabitants of the several distr icts ought to have a right of voting at the election of a representative, e xcept 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 repr esentatives, 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 th an most of his neighbours.

Neither should the representative body 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 dul y executed; a thing suited to their abilities, and which none indeed but th emselves can properly perform.

In such a state, there are always person s distinguished by their birth, riches, or honours= but, were they to be co nfounded with the common people, and to have only the weight of a single vo te, like the rest, the common liberty would be their slavery, and they woul d have no interest in supporting it, as most of the popular resolutions wou ld be against them. The share they have, therefore, in the legislature should be proportioned to their other advantages in the state; which happen s only when they form a body that has a right to check the licentiousness o f the people, as the people have a right to oppose any encroachment of thei rs.

The legislative power is, therefore, com mitted to the body of the nobles, and to that which represents the people; each having their assemblies and deliberations apart, each their separate v iews and interests.

Of the 3 powers abovementioned, the judiciary is next to nothing.

There remain, therefore, on ly 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 her editary. 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= privilege s, 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 tem pted to pursue its own particular interests, and forget those of the people , it is proper, that, where a singular advantage may be gained by corruptin g the nobility, as in the laws relating to the supplies, they should have n o other share in the legislation than the power of rejecting, and not that of resolving.

By the power of res olving, I mean, the right of ordaining by their own authority, or of amending what has been ordained by others. By the pow er of rejecting, I would be understood to mean, the right of annulli ng a resolution taken by another; which was the power of the tribunes at Ro me. And, though the person possessed of the privilege of rejecting may like wise have the right of approving, yet this approbation passes for no more than a declaration that he intends to make no use of his privilege of reje cting, and is derived from that very privilege.

The executive power ought to be in the h ands of a monarch, because this branch of government, having need of dispat ch, is better administered by one than by many= on the other hand, whatever depends on the legislative power, is oftentimes better regulated by many t han by a single person.

But, if there were no monarch, and the e xecutive power should be committed to a certain number of persons, selected from the legislative body, there would be an end of liberty, by reason the two powers would be united; as the same persons would sometimes possess, a nd would be always able to possess, a share in both.

Were the legislative body to be a consid erable 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 anar chy; 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 repres entative, 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 a lways assembled, it might happen to be kept up only by filling the places o f 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 l aws; and, of course, they would either become desperate or fall into a stat e of indolence.

The legislative body should not meet of itself. For a body is supposed to have no will but when it is met= and besi des, were it not to meet unanimously, it would be impossible to determine w hich was really the legislative body, the part assembled, or the other.

If it had a right to prorogue itself, it might happen never to be prorogu ed; which would be extremely dangerous, in case it should ever attempt to e ncroach on the executive power. Besides, there are seasons (some more prope r than others) for assembling the legislative body= it is fit, therefore, t hat the executive power should regulate the time of meeting, as well as the duration, of those assemblies, according to the circumstances and exigence s of a state, known to itself.

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