Necessary Relations Deriving from The Nature of Things

Necessary Relations Deriving from The Nature of Things

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Necessary Relations Deriving from The Nature of Things

BOOKI On laws in general

CHAPTER I

On laws in their relation with the various beings

Laws, taken in the broadest meaning, are the necessary relations deriving from the nature of things; and in this sense, all beings have their laws: the divinityl has its laws, the material world has its laws, the intelligencessuperior to manhave their laws, thebeastshave their laws, man has his laws. Those who have said that ablindfate hasproducedall the effects that we

see in the worldhave said a great absurdity; for what greater absurdity is there than a blind fate that could have produced intelligent beings? There is, then, a primitivea reason; and laws are both the relations

that exist between itand the differentbeings, and the relations ofthese various beings to each other. God is related to the universe, as creator and preserver; the laws

according to which he created are those according to which he preserves; he acts according to these rules because he knows them; he knows them because he made them; he made them because they are related to his wisdomb and his power. Aswe see that the world, formed by the motion ofmatter and devoid

ofintelligence, still continues to exist, its motions must have invariable laws; and, ifone could imagine another world than this, it would have consistent’ rules or it would be destroyed.

1″The law,” Plutarch says in [Moralia] Adprincipem ineruditum [78oc], “is the queen ofall, mortal and immortal.” [Plutarch is quoting Pindar, fragment 169 (151).]

‘Wehave rendered Montesquieu’s primitiveas “primitive,” thus retaining the distinc- tion between that term and premier, “first,” which is used repeatedly in 1.2. bWe have translated sage and its various forms with “wise” and its various forms. The meaning is generally prudence, calm, sobriety. ‘Montesquieu uses constant, constamment, and constance to referboth to a fixed rule and

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Part I

Thus creation, which appears to be an arbitrary act, presupposes rules as invariable as the fate claimed byatheists. Itwould be absurd to say that the creator, without these rules, could govern the world, since the world would not continue to existwithout them. These rules are a consistently established relation. Between one

moving body and another moving body, it is in accordwith relations of mass and velocity that all motions are received, increased, diminished, or lost; every diversity is unifimnity, every change is consistency.d Particular intelligent beings can have laws that they have made, but

they also have some that they have not made. Before there were intelligent beings, they were possible; therefore, they had possible relationsand consequentlypossible laws. Before lawswere made, there were possible relations of justice.’To say that there is nothing just or unjust but what positive laws ordain or prohibit is to say that before a circle was drawn, all its radii were not equal. Therefore, one must admit that there are relations offairness!prior

to thepositive law thatestablishes them, so that, for example, assuming that there were societies ofmen, it would be just to conform to their laws; so that, if there were intelligent beings that had received some kindness from another being, they ought to be grateful for it;Kso that, if one intelligentbeinghad created another intelligentbeing, the created one ought to remain in its original dependency; so that one intelligent being who has done harm to another intelligent being deserves the same harm in return, and so forth. But the intelligent world is far from being as well governed as the

physicalworld. For, though the intelligentworld also has laws that are invariable by their nature, unlike the physical world, it does not follow its laws consistently. The reason for this is that particular intelligent beingsare limitedby theirnature andare consequentlysubject to error; furthermore, it is in their nature to act by themselves. Therefore, they

to multiple actions that conform to the rule. We have chosen to translate them by “consistent” and “consistency,” which have both ofthese implications. dHere translatingconstanceas “consistency” conveys the meaning ofchangingaccord- ing to a rule, as “constancy” with its static implication would not. See note b, above. ‘HereMontesquieu takesadvantage ofthe rangeofmeaningofthe French}uste, which includesboth the notion of”correct” and that of”just.” It leads him to the arithmetic notion of justice in the next paragraph. fEquiti is translated throughout as “fairness,” because it implies a much wider sphere than the English term “equity” with its almost exclusively legal implications. Here Montesquieu’s equite reminds the reader of the egal, “equal,” at the end of the preceding sentence and ofthe arithmetic relation. gavoir de la reconnais,ance, See 31.33 (note’, bk. 3I).

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On laws in general

do not consistently follow theirprimitive laws orevenalways follow the laws they give themselves. It is not known whether beasts are governed by the general laws of

motion or by a movement particular to themselves. Be that as it may, they do not have a more intimate relation with godh than the rest ofthe materialworld has, and feeling is useful to them only in their relation to one another, either with other particular beings, or with themselves/ By the attraction ofpleasure they preserve their particular being; by

the same attraction they preserve their species. They have natural laws because they are united by feeling; they have no positive laws because they are not united by knowledge. Still, they do not invariably follow their naturallawsj plants, in which we observe neither knowledge nor feeling, better follow their natural laws. Beasts do not have the supreme advantages that we have; they have

some thatwe do not have. Theydo nothave our expectations; but they do not have our fears; they suffer death as we do, but without recognizingit; most even preserve themselves better thanwe do and do not make such bad use oftheir passions. Man, as a physical being, is governed by invariable laws like other

bodies. As an intelligent being, he constantlyviolates the laws god has established and changes those he himself establishes; he must guide himself, and yet he is a limited being; he is subject to ignorance and error, as are all finite intelligences; he loses even the imperfect knowledge he has. As a feeling creature, he falls subject to a thousand passions. Such abeingcould at any moment forget his creator; god has called him back to himbythe lawsofreligion. Suchabeingcouldatany moment forget himself; philosophers have reminded him ofhimselfby the laws of morality. Made for living in society, he could forget his fellows; legislators have returned him to his duties bypolitical and civil laws.

hMontesquieu never capitalizes dieu, “god.” idans [erapport qu ‘elles ont entreelles, ou avecd’autres itres particuliers, ou avecelles-memes. The middle term was added after 1748. This addition suggests that the meaning is that relations among animals may be either with members ofother species or with other members oftheir own species. iWhether men’s having purposes beyond those of the animals leads to hopes or expectations is, ofcourse, not clear from the French. (See note a in Preface.)

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Part I

CHAPTER 2

On the laws ofnature

Prior to aU these laws are the laws ofnature, so named because they derive uniquely from the cf,nstitutionofourbeing. Toknowthemwell, one must consider a man before the establishment of societies. The laws he would receive in such a state will be the laws ofnature. The law that impresses on us the idea ofa creator and thereby leads

us toward him is the first ofthe natural laws in importance, though not first in the order ofthese laws. Aman in the state ofnaturewould have the faculty ofknowing rather than knowledge. It is clear that his first ideaswould notbe speculative ones; hewould thinkofthe preservation ofhis beingbefore seeking the originofhisbeing. Such amanwould at first feel only his weakness; his timidity would be extreme: and as for evidence, if it is needed on this point, savages have been found in forests;Z everything makes them tremble, everything makes them flee. In this state, each feels himselfinferior; he scarcely feels himselfan

equal. Such men would not seek to attack one another, and peace would be the first natural law. Hobbes gives men first the desire to subjugate one another, but this

is not reasonable. The idea ofempire and domination is so complex and depends on so many other ideas, that itwould not be the one they would first have. Hobbes asks, Ifmen are not naturally in a state ofwar, why do they

always carry arms and why do they have keys to lock their doors?k But one feels that what can happen to men only after the establishment of societies, which induced them to find motives for attacking others and for defending themselves, is attributed to them before that establishment. Man would add the feeling of his needs to the feeling of his

weakness. Thus another natural law would be the one inspiring him to seek nourishment. I have said that fear would lead men to flee one another, but the

marks of mutual fear would soon persuade them to approach one

2Witness the savage who was found in the forests ofHanover and who lived in England in the reign ofGeorge I.

kSee Thomas Hobbes, Leviathan, bk. I, chap. 13.

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On laws in general

another. They would also be so inclined by the pleasure one animal feels at the approach of an animal of its own kind. In addition, the charmthat the twosexes inspire ineachotherbytheirdifferencewould increase thispleasure, and thenaturalentreaty’theyalwaysmake toone another would be a third law. Besides feelings, which belong to men from the outset, they also

succeed in gaining knowledge; thus they have a second bond, which other animals do not have. Therefore, they have another motive for uniting, and the desire to live in society is a fourth natural law.

/priere.

CHAPTER 3

On positive laws

As soon as men are in society, they lose their feeling ofweakness; the equality that was among them ceases, and the state ofwar begins. Each particular society comes to feel its strength, producing a state

ofwaramongnations. The individualswithin each societybegin to feel their strength; they seek to tum their favor the principal advantages of this society, which brings about a state ofwar among them. These two sortsofstatesofwarbringabout the establishmentoflaws

among men. Considered as inhabitants of a planet so large that different peoples are necessary, they have laws bearing on the relation that these peoples have with one another, and this is the RIG H T 0 F NATIONS.'” Considered as living ina society that mustbe maintained, they have laws concerning the relation between those who govern and those who are governed, and this is the POLlTICAL RIGH To” Further, they have laws concerning the relation that alI citizens have with one another, and this is the CIVIL RIGHT. The right ofnations is by nature founded on the principle that the

various nations should do to one another in times ofpeace the most goodpossible, and in timesofwar the least illpossible,withoutharming their true interests.

mIe droi/ des gens is translated “right ofnations” throughout. “We have translated droit as “right” and loi as “law.” Although the French droit is usually closer to the meaning of”law” in English, we have kept Montesquieu’s usage so that his distinction and his version of the changes in meaning would nOl be obscured.

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Part I

The object of war is victory; of victory, conquest; of conquest, preservation. All the laws that form the right ofnations should derive from this principle and the preceding one. All nations have a right ofnations; and even the Iroquois, who eat

theirprisoners, have one. Theysend and receive embassies; theyknow rights ofwar and peace: the trouble is that their right ofnations is not founded on true principles. In addition to the rightofnations, which concerns all societies, there

is a political right for each one. A society could not continue to exist withoutagovernment.”The union ofall individualstrengths,” as Gravina aptly says, “forms what is called the POLI TIC AL STATE.”0 Thestrengthofthewhole societymaybe put in the handsofonealone

or in the hands ofmany.P Since nature has established paternal power, some have thought that government byone alone is most in conformity with nature. But the example ofpaternal power proves nothing. For, if the powerofthe father is related to governmentbyone alone, thenafter the death ofthe father, the powerofthe brothers, or after the death of the brothers, the powerofthe first cousins, is related to government by many. Political power necessarily includes the union ofmany families. It is better to saythat the governmentmost in conformitywith nature

is the one whose particular arrangement best relates to the disposition ofthe people for whom it is established.q Individual strengths cannotbe united unless allwills are united. The

union of these wills, as Gravina again aptly says, is what is called the CIVIL STA TE: Law in general is human reason insofar as it governs aU the peoples

of the earth; and the political and civil laws ofeach nation should be only the particular cases to which human reason is applied. Lawsshouldbe so appropriate to thepeople forwhomthey are made

that it is very unlikely that the laws ofone nation can suit another. Laws must relate to the nature and the principle ofthe government

that is established or that one wants to establish, whether those laws form it as do political laws, or maintain it, as do civil laws.

°Giovanni Vincenzo Gravina, Origine RomtJnijuris (1739), bk. z, chap. 18, p. 160. PThe eighteenth-century meaningofplusieurswas “many.”The opposition isbetween “one” and “many,” as between monarchies or despotisms and republics in Book z. qIIvaut mieuxdireque Iegouvemement Ieplus conformea/a natureest eeluidont /a disposition particulitre se rapporte mieuxa/a disposition du peuplepour lequel ilest ctab/i. No English word covers all the disparate topics Montesquieu joins with the word disposition. ‘Giovanni Vincenzo Gravina, Origine RomtJnijuris (1739), bk. 3, chap. 7, foomote, p. 3″.

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On laws in general

They should be related to the physical aspect of the country; to the climate, be it freezing, torrid, or temperate; to the properties of the terrain, its location and extent; to the way oflife ofthe peoples, be they plowmen, hunters, or herdsmen; they should relate to the degree of liberty that the constitution can sustain, to the religion of the inhabitants, their inclinations, their wealth, their number, their com- merce, their mores and their manners; finally, the laws are related to one another, to their origin, to the purpose ofthe legislator, and to the orderofthings onwhich theyare established. Theymustbe considered from all these points ofview. This is what I undertake to do in this work. I shall examine all these

relations; together they form what is called THE SPIRIT OF THE LAWS.’ Ihave made no attempt to separatepoliticalfrom civi/laws, for, as Ido

not treat laws but the spirit ofthe laws, and as this spirit consists in the various relations that laws may have with various things, I have had to follow the natural order oflaws less than that ofthese relations and of these things. I shall first examine the relations that laws have with the nature and

the principle ofeach government, and, as this principle has a supreme influence on the laws, I shall apply myselfto understanding itwell; and if I can once establish it, the laws will be seen to flow from it as from their source. I shall then proceed to other relations that seem to be more particular.

SL ‘ESPRIT DES LOIX. Whenverpossible, we translate esprit as “spirit,” but “mind” and “wit” also appear.

9

BOOK 11 On the laws that form political liberty in

its relation with the constitution

CHAPTERI

General idea

I distinguish the laws that form political liberty in its relation with the constitution from those that form it in its relation with the citizen. The first are the subjectofthe presentbook; I shall discuss the second in the next book.

CHAPTER2

The various significations given to the word liberty

No word has received more different significations and has struck minds in so many ways as has liberty. Some have taken it for the ease of removing the one to whom they had given tyrannical power; some, for the faculty ofelecting the one whom they were to obey; others, for the right to be armed and to be able to use violence; yet others, for the privilege ofbeing governed only by a man of their own nation, or by their own laws.) For a certainpeople liberty has longbeen the usage of wearing a long beard.2 Men have given this name to one form of government and have excluded the others. Those who had tasted republican government put it in this government; those who had enjoyedmonarchicalgovernmentplaced it in monarchy.3 Inshort, each

1Cicero [EpistoloeadAtticum 6.I.Isl says, “I have copied Scaevola’s edict, which pennits the Greeks to end their differences among themselves according to their laws; this makes them regard themselves as free peoples.” 2The Muscovites could not bear Czar Peter’s order to cut them off. 3The Cappadocians refused the republican state the Romans offered them.

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Political liberty and the constitution

has given the name ofliberty to the government thatwasconsistentwith his customs or his inclinations; and as, in a republic, one does not always have visible and so present the instruments ofthe ills ofwhich one complains and as the very laws seem to speak more and the executors of the law to speak less, one ordinarily places liberty in republics and excludes it from monarchies. Finally, as in democracies the people seem very nearly to do what they want, liberty has been placed in this sort ofgovernment and the power ofthe people has been confused with the liberty ofthe people.

CHAPTER 3

What liberty is

It is true that in democracies the people seemto do what theywant, but political liberty in no way consists in doing what one wants. In a state, that is, in a society where there are laws, liberty can consist only in having the power to dowhat one shouldwant to do and in noway being constrained to do what one should not want to do. One must put oneself in mind ofwhat independence is and what

liberty is. Liberty is the right to do everything the laws permit; and if one citizen could do what they forbid, he would no longer have liberty because the others would likewise have this same power.

CHAPTER4

Continuation ofthe same subjea

Democracy and aristocracy are not free states by their nature. Political liberty is found only in moderate governments. But it is not always in moderate states. It is present onlywhen power is not abused, but it has eternally been observed that any man who has power is led to abuse it; he continues until he finds limits. Who would think it! Even virtue has need oflimits. So that one cannot abuse power, power must check power by the

arrangement ofthings. A constitution can be such that no one will be

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constrained to do the things the lawdoes notoblige him to do orbe kept from doing the things the law permits him to do.

CHAPTERS

On the purpose ofvarious states

Although all states have the same purpose in general, which is to maintain themselves, yet each state has a purpose that is peculiar to it. Expansion was the purpose of Rome; war, that of Lacedaemonia; religion, that oftheJewish laws; commerce, that ofMarseilles; public tranquillity, thatofthe lawsofChina;4navigation, thatofthe lawsofthe Rhodians; natural liberty was the purpose ofthe police ofthe savages; in general, the delights of the prince are the purpose of the despotic states; his glory and that of his state, that of monarchies; the independence ofeach individual is the purpose of the laws ofPoland, and what results from this is the oppression ofall.5 There is also one nation in theworld whose constitution has political

liberty for its directpurpose. We are going to examine the principles on ;:-which this nation founds political liberty. Ifthese principles are good, liberty will appear there as in a mirror. Not much trouble need be taken to discover political liberty in the

constitution. Ifit can be seen where it is, ifit has been found, why seek it? 4Thenatural purposeofastatehavingno enemieson the outsideorbelievingthem checked by barriers. 5Drawback ofthe liberum veto.

CHAPTER 6

On the constitution ofEngland

In each state there are three sorts of powers: legislative power, executive powerover the things depending on the right ofnations, and executive power over the things depending on civil right. By the first, the prince or the magistrate makes laws for a time or for

always and corrects or abrogates those that have been made. By the

Political liberty and the constitution

second, he makes peace or war, sends or receives embassies, establishes security, and prevents invasions. By the third, he punishes crimes or judges disputes between individuals. The last will be called the powerofjudging, and the former simply the executive power ofthe state. Political liberty in a citizen is that tranquillity ofspirit which comes

from the opinion each one has ofhis security, and in order for him to have this liberty the government must be such that one citizen cannot fear another citizen. When legislative power is united with executive power in a single

personor inasinglebodyofthe magistracy, there is no liberty, because one can fear that the same monarch or senate that makes tyrannical laws will execute them tyrannically. Nor is there liberty if the power of judging is not separate from

legislative power and from executive power. If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to executive power, the judge could have the force of an oppressor. All would be lost ifthe same man or the same bodyofprincipal men,

eitherofnobles, or ofthe people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes ofindividuals. In most kingdoms in Europe, the government is moderate because

the prince, who has the first two powers, leaves the exercise ofthe third to his subjects. Amongthe Turks,where the threepowers are united in the person ofthe sultan, an atrocious despotism reigns. In the Italian republics, where the three powers are united, there is

less liberty than in our monarchies. Thus, in order to maintain itself, the government needs means as violent as in the government of the Turks; witness the state inquisitors6 and the lion’s maw into which an informer can, at any moment, throw his note ofaccusation. Observe the possible situation ofa citizen in these republics. The

body ofthe magistracy, as executor of the laws, retains all the power it has given itselfas legislator. It can plunder the state by usingitsgeneral wills; and, as it also has the powerofjudging, it can destroy each citizen by using its particular wills.

bIn Venice.

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There, all power is one; and, although there is none ofthe external pomp that reveals a despotic prince, it is felt at every moment. Thus princes who have wanted to make themselves despotic have

always begun by uniting in their person all the magistracies, and many kings of Europe have begun by uniting all the great posts of their state. I do believe that the pure hereditary aristocracy of the Italian

republics is not precisely like the despotism ofAsia. The multitude of magistrates sometimes softens the magistracy; not all the nobles always concur in the same designs; there various tribunals are formed that temper one another. Thus, inVenice, the Great Council has legislation; the Pregadi, execution; Quarantia, the power of judging. But the iII is that these different tribunals are formed ofmagistrates taken from the same body; this makes them nearly a single power. The powerofjudgingshould notbe given to apermanent senate but

should be exercised by persons drawn from the body ofthe people7 at certain times of the year in the manner prescribed by law to form a tribunal which lasts only as long as necessity requires. In this fashion the power of judging, so terrible among men, being

attached neither to a certain state nor to acertain profession, becomes, so to speak, invisible and null. Judges are not continually in view; one fears the magistracy, not the magistrates.” In important accusations, the criminal in cooperation with the law

must choose the judges,or at leasthe mustbe able to challenge so many ofthem that those who remain are considered to be ofhis choice. The two other powers may be given instead to magistrates or to

permanent bodies because they are exercised upon no individual, the one beingonly the generalwill ofthe state, and the other, the execution ofthat general will. But though tribunals should not be fixed, judgments should be fixed

to such a degree that they are never anything but a precise text of the law. Ifjudgmentswere the individual opinionofa judge, one would live in this society without knowing precisely what engagements one has contracted. Further, the judges mustbe ofthe same condition as the accused, or

7As in Athens.

aThese juges, “jurors,” as the office is called in English, are judges as they make the judgments.

Political liberty and the constitution

his peers, so that he does not suppose that he has fallen into the hands ofpeople inclined to do him violence. If the legislative power leaves to the executive power the right to

imprisoncitizenswho can postbail for their conduct, there is no longer any liberty, unless the citizens are arrested in order to respond without delay to an accusation ofa crime the law has rendered capital; in this case they are really free because they are subject only to the power of the law. Butifthe legislative powerbelieved itselfendangered bysome secret

conspiracy against the state or by some correspondence with its enemieson the outside, it could, for abriefand limited time, permit the executive power to arrest suspected citizens who would lose their liberty for a time only so that it would be preserved forever. And this is the only means consistent with reason of replacing the

tyrannical magistracy of the ephors and the state inquisitors ofVenice, who are also despotic. As, in a free state, every man, considered to have a free soul, should

be governed by himself, the people as a body should have legislative power; but, as this is impossible in large states and is subject to many drawbacks in small ones, the people must have their representatives do all that they themselves cannot do. One knows the needs ofone’s own town better than those ofother

towns, and one judges the ability ofone’s neighbors better than that of one’s other compatriots. Therefore, members of the legislative body must not be drawn from the body ofthe nation at large; it is proper for the inhabitants ofeach principal town to choose a representative from it. Thegreatadvantageofrepresentatives is that theyare able to discuss

public business. The people are not at all appropriate for such discussions; this forms one ofthe great drawbacks ofdemocracy. It is not necessary that the representatives, who have been generally

instructed by those who have chosen them, be instructed about each matter of business in particular, as is the practice in the Diets of Germany. It is true that, in their way, the word ofthe deputies would better express the voice of the nation; but it would produce infinite delays and make each deputy the master ofall the others, and on the mostpressingoccasions thewhole force ofthe nation could be checked by a caprice. Mr. Sidneysays properly thatwhen the deputies represent abody of

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people, as in Holland, they should be accountable to those who have commissioned them; it is another thing when they are deputed by boroughs, as in England.b In choosing a representative, all citizens in the various districts

should have the right to vote except those whose estate is so humble that they are deemed to have no will of their own. A great vice in most ancient republics was that the people had the

right to make resolutions for action, resolutions which required some execution, which altogether exceeds the people’s capacity. The people should not enter the government except to choose their representa- tives; this is quite within their reach. For if there are few people who knowtheprecisedegreeofaman’s ability, yeteveryone isable to know, in general, if the one he chooses sees more clearly than most of the others. Norshould the representativebodybechosen in order tomake some

resolution for action, a thing it would not do well, but in order to make laws or in order to see ifthose theyhave made havebeenwell executed; these are things it can do very well and that only it can do well. In a state there are always some people who are distinguished by

_.birth,wealth, orhonors;but iftheywere mixed amongthe peopleand if . they had only one voice like the others, the common liberty would be their enslavement and they would have no interest in defending it, because mostofthe resolutions would be against them. Therefore, the part they have in legislation should be in proportion to the other advantages they have in the state, whichwill happen ifthey form abody that has the right to check the enterprises ofthe people, as the people have the right to check theirs. Thus, legislative power will be entrusted both to the body of the

noblesand to the body thatwill be chosen to represent the people, each ofwhichwill have assemblies and deliberationsapart and have separate views and interests. Amongthe three powers ofwhichwe have spoken, that ofjudging is

in some fashion, null. There remain only two; and, as they need a powerwhose regulations temper them, that part ofthe legislative body composed ofthe nobles is quite appropriate for producing this effect. The nobility should be hereditary. In the first place, it is so by its

nature; and, besides, it must have a great interest in preserving its

bAlgernon Sidney, ,622- I 683, an English Whig politician and author of Discourses Concerning GtnJernment (I6<}8), chap. 3, sect. 38.

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Political liberty and the constitution

prerogatives, odious in themselves, and which, in a free state, must always be endangered. But, as a hereditary power could be induced to follow its particular

interests and forget those ofthe people, in the things about which one has a sovereign interest in corrupting, for instance, in the laws about levying silver coin, it must take part in legislation only through its faculty ofvetoing and not through its faculty ofenacting. I call the right to order by oneself, or to correct what has been

orderedbyanother, thefaculty ofenacting. Icall the right to rendernull a resolution takenbyanother thefacultyofvetoing, whichwas the powerof the tribunes of Rome. And, although the one who has the faculty of vetoingcanalso have the right to approve, this approval is no more than adeclaration that onedoes notmake use ofone’s facultyofvetoing, and it derives from that faculty. The executive power should be in the hands ofa monarch, because

the part ofthe government that almost always needs immediate action is better administered by one than by many, whereas what depends on legislative power is often better ordered by many than by one. Iftherewere no monarch and the executive powerwere entrusted to

a certain number of persons drawn from the legislative body, there would no longer be liberty, because the two powers would be united, the same persons sometimes belonging and always able to belong to both. If the legislative body were not convened for a considerable time,

there would no longer be liberty. For one oftwo things would happen: either there would no longer be any legislative resolution and the state would fall into anarchy; or these resolutions would be made by the executive power, and it would become absolute. It would be useless for the legislative body to be convened without

interruption. That would inconvenience the representatives and besides would overburden the executive power, which would not think ofexecuting, butofdefending its prerogatives and its right to execute. In addition, if the legislative body were continuously convened, it

could happen that one would do nothingbut replace the deputies who had diedwith new deputies; and in this case, ifthe legislative bodywere once corrupted, the ill would be without remedy. When various legislative bodies follow eachother, the people, holding apooropinion ofthe current legislative body, put their hopes, reasonably enough, in the one thatwill follow; but ifthe legislativebodywere always the same,

Part 2

the people, seeing it corrupted, would expect nothing further from its laws; they would become furious or would sink into indolence. The legislative body should not convene itself. For a body is

considered to have a will only when it is convened; and if it were not convened unanimously, one could not identifYwhich partwas truly the legislativebody, the part thatwas convened or the one thatwas not. For ifit had the right to prorogue itself, itcould happen that it would never prorogue itself; this would be dangerous in the event that it wanted to threaten executive power. Besides, there are some times more suitable than others for convening the legislative body; therefore, it mustbe the executive power that regulates, in relation to the circumstances it knows, the time ofthe holding and duration of these assemblies. If the executive power does not have the right to check the enter-

prises ofthe legislative body, the latter will be despotic, for it will wipe outall the otherpowers, since itwillbeable to give to itselfall thepower it can imagine. But the legislative power must not have the reciprocal faculty of

checking the executive power. For, as execution has the limits of its own nature, it is useless to restrict it; besides, executive power is always exercised on immediate things. And the powerofthe tribunes in Rome was faulty in that itchecked notonly legislationbuteven execution; this caused great ills. But if, in a free state, legislative power should not have the right to

check executive power, it has the right and should have the faculty to examine the manner inwhich the laws it has made have beenexecuted; and this is the advantage of this government over that of Crete and Lacedaemonia,where the kosmoiand the ephors were notheld account- able for their administration. But, whether or not this examination is made, the legislative body

should not have the power to judge the person, and consequently the conduct, of the one who executes. His person should be sacred because, as he is necessary to the state so that the legislativebody does not become tyrannical, ifhe were accused or judged there would no longer be liberty. In this case, the state would not be a monarchy but an unfree

republic. But, as he who executes cannotexecute badlywithout having as ministers wicked counsellors who hate the law although the laws favor them as men, these counsellors can be sought out and punished.

Political liberty and the constitution

And this is the advantage ofthis governmentover thatofCnidus,where the people could never get satisfaction for the injustices that had been done to them, as the law did not permit calling the amymones8 to judgment even after their administration.9 Althoughin general the powerofjudgingshouldnotbe joined to any

partofthe legislative power, this is subject to three exceptions founded on the particular interests ofthe one who is to be judged. Important men are always exposed to envy; and ifthey were judged

by the people, they could be endangered and would not enjoy the privilege ofthe last citizen ofa free state, ofbeing judged by his peers. Therefore, nobles must not be called before the ordinary tribunals of the nation but before that part of the legislative body composed of nobles. Itcould happen that the law,which is simultaneouslyclairvoyantand

blind, might be too rigorous in certain cases. But the judges of the nation are, as we have said, only the mouth that pronounces the words ofthe law, inanimate beings who can moderate neither its force nor its rigor. Therefore, the part of the legislative body, which we have just said is a necessary tribunal on another occasion, is also one on this occasion; it is for its supreme authority to moderate the law in favor of the law itselfby pronouncing less rigorously than the law. It could also happen that a citizen, in matters ofpublic business,

might violate the rights of the people and commit crimes that the established magistrates could not or would not want to punish. But, in general, the legislative power cannot judge, and even less so in this particular case, where it represents the interested party, the people. Therefore, it can be only the accuser. But, beforewhomwill it make its accusation?Will itbowbefore the tribunalsoflaw,whichare lower than it and are, moreover, composed ofthose who, beingalso ofthe people, would be swept along by the authority ofsuch a great accuser? No: in order to preserve the dignity of the people and the security of the individual, that part of the legislature drawn from the people must make its accusation before the part of the legislature drawn from the nobles, which has neither the same interests nor the same passions.

8These were magistrates elected annually by the people. See Stephanus of Byzantium [EthnjkJJ 686; 1958 ednl. 90necouldaccuse the Roman magistrates after theirmagistracy. In Dion.Hal. [Ant. Rom.l, bk.9 [9.37.2-4), see the affair ofthe tribune Genutius.

Part 2

This last is the advantage ofthis governmentovermostofthe ancient republics, where there was the abuse that the people were judge and accuser at the same time. Executivepower, aswe havesaid, should take part in legislationbyits

faculty ofvetoing; otherwise itwill soon be stripped ofits prerogatives. But if legislative power takes part in execution, executive power will equally be lost. If the monarch took part in legislation by the faculty of enacting,

there would no longer be liberty. But as in spite ofthis, he must take part in legislation in order to defend himself, he must take part in it by the faculty ofvetoing. Thecauseofthechangeingovernment in Rome was that the senate,

which had one part of the executive power, and the magistrates, who had the other, did not have the faculty ofvetoing, as the people had. Here, therefore, is the fundamental constitution ofthe government

ofwhich we are speaking. As its legislative body is composed of two parts, the one will be chained to the other by their reciprocal faculty of vetoing. The twowill be bound bythe executive power, whichwill itself be bound by the legislative power. The form of these three powers should be rest or inaction. But as

they are constrained to move by the necessary motion of things, they will be forced to move in concert. As executive powerbelongs to the legislative only through its faculty

ofvetoing, it cannot enter into the discussion ofpublic business. It is not even necessary for it to propose, because, as it can always disapprove of resolutions, it can reject decisions on propositions it would have wanted left unmade. In some ancient republics, where the people as abody discussed the

public business, it was natural for the executive power to propose and discuss with them; otherwise, there would have been a strange con- fusion in the resolutions. If the executive power enacts on the raising ofpublic funds without

the consent of the legislature, there will no longer be liberty, because the executive power will become the legislator on the most important point oflegislation. Ifthe legislative power enacts, not from year to year, but forever, on

the raisingofpublic funds, it runs the risk oflosing its liberty, because the executive powerwill no longerdepend upon it; andwhen one holds such a right forever, it is unimportant whether that right comes from

Political liberty and the constitution

oneself or from another. The same is true if the legislative power enacts, not fromyear toyear, but forever, about the landand sea forces, which it should entrust to the executive power. So that the one who executes is not able to oppress, the armies

entrusted to him must be ofthe people and have the same spirit as the people, as theywere in Rome until the time ofMarius. This canbe so in only two ways: either those employed in the army must have enough goods to be answerable for their conduct to the other citizens and be enrolled for ayearonly, aswas practiced in Rome; or, ifthe troops must be a permanent body, whose soldiers come from the meanest parts of the nation, legislative power must be able to disband them as soon as the legislature so desires; the soldiers must live with the citizens, and there must not be a separate camp, a barracks, or a fortified place. Once the army is established, it should be directly dependent on the

executive power, not on the legislative body; and this is in the nature of the thing, as its concern is more with action than with deliberation. Men’s manner of thinking is to make more of courage than of

timidity; more of activity than of prudence; more of force than of counsel. The armywill always scorn a senate and respect its officers. It will not make much ofthe orders sent from abodycomposed ofpeople it believes timid and, therefore, unworthy to command it. Thus, whenever the army depends solely on the legislative body, the govern- ment will become military. And if the contrary has ever occured, it is the effect ofsome extraordinary circumstances; it is because the army there is always separate, because it is composed ofseveral bodies each ofwhich depends upon its particular province, because the capitals are in excellent locations whose situation alone defends them and which have no troops. Holland is even more secure than Venice; it could flood rebellious

troops; it could leave them to die ofhunger; since the troops are not in towns that could give them sustenance, their sustenance is precarious. For if, in the case of an army governed by the legislative body,

particularcircumstanceskeep the government from becomingmilitary, one will encounter other drawbacks; one of these two things must happen, either the army must destroy the government, or the govern- ment must weaken the army. And this weakeningwill have a fatal cause: it will arise from the very

weakness ofthe government. Ifone wants to read the admirable work by Tacitus, On theMores of

Part 2

the Germans,JO one will see that the English have taken their idea of political government from the Germans. This fine systemwas found in the forests. Since all human things have an end, the state of which we are

speaking will lose its liberty; it will perish. Rome, Lacedaemonia, and :(:arthage have surely perished. This state will perish when legislative power is more corrupt than executive power. It is not for me to examine whether at present the English enjoy this

libertyor not. Itsuffices for me to say that it is established by their laws, and I seek no further. I do not claim hereby to disparage other governments, or to say that

this extreme political liberty should humble those who have only a moderate one. How could I say that, Iwho believe that the excess even of reason is not always desirable and that men almost always accom- modate themselves better to middles than to extremities? Harrington, in his Oceana,’ has also examined the furthest point of

liberty to which the constitution ofa state can be carried. But ofhim it can be said that he sought this liberty only after misunderstanding it, and that he built Chalcedon with the coast of Byzantium before his eyes.

lQ”On lesser maners the princes consult, on greater ones, everybody does; yet even when a decision is in the power of the people, it is thoroughly considered by the princes” IL.l. [Tacitus, Germania, chap. t t.J

‘James Harrington, Commonwealth o[Oceana.

CHAPTER 7

The monarchies that we know

Themonarchieswe knowdonothave liberty for theirdirectpurposeas does the one we have justmentioned; they aim only for the gloryofthe citizens, the state, and the prince. But this glory results in a spirit of liberty that can, in these states, produce equally great things and can perhaps contribute as much to happiness as liberty itself. The three powers are not distributed and cast on the model of the

constitutionwhich we have mentioned; each instance shows aparticu- lar distribution ofthem and each approximates political liberty accord-

166

Necessary Relations Deriving from The Nature of Things

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