Document 16-4: Charles De Secondat, BARON DE MONTESQUIEU, From The Spirit of Laws: On the Separation of Governmental Powers (1748)

From The Spirit of Laws: On the Separation of Governmental Powers (1748)

The writings of Frenchman Charles de Secondat (1689–1755), better known as Baron Montesquieu (mahn-tuhs-KYOO), were composed as the spirit of the Enlightenment swept over Europe in the early eighteenth century. Montesquieu’s political writings, excerpted here, were concerned with the makeup of the state and the effect of a government on the lives of those it ruled. In this excerpt from The Spirit of Laws, Montesquieu argued for the importance of the separation of powers, or the assignment of executive, legislative, and judicial powers to different individuals or political bodies. As you read, consider the implications for political reform. Why, despite Montesquieu’s avowed support of European monarchies, might monarchs have seen his work as a threat?

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 matters 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 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 judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; 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 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 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 Sultan’s person, the subjects groan under the most dreadful 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 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.

From Baron de Montesquieu, The Spirit of Laws, trans. T. Nugent (New York: Hafner, 1949), pp. 151–152.

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