A Commentary and Review of Montesquieu's "Spirit of Laws"
Of the Laws Which Establish Public Liberty, In Relation to the Constitution.
The problem of the distribution of the power of a society, so as to be most favorable to liberty, cannot be solved so long as too much power is given to a single man.
Spirit of Laws, Book XI.
Is the Problem Solved, As To the Best Means of Distributing the Power of Society, So As to Be Most Favorable to Liberty?
In this book, the title of which does not present an idea sufficiently distinct, the degree of liberty which may be enjoyed under each constitution of government is examined; that is to say.... the effects produced on the liberties of the citizens by the laws forming the constitution of the state. Such laws are those only which regulate the distribution of political power; for the constitution of a society is nothing more than the collection of rules determining the nature, extent, and limits, of the authorities ruling it; so that when these rules are to be united into a single body of laws, serving as the bond of the political edifice, the first precaution to be taken, is not to admit any thing irreconcilable with the objects proposed to be secured; without which precaution it is not exactly a constitution, but an expedient, calculated for a greater or a less considerable portion of the general body of the nation.
To know what influence the organization of society has on the liberty of its members, we should perfectly understand what is meant by liberty. The word liberty, like all others intended to express abstract ideas of a very general nature, is often taken in a multitude of different acceptations, which are so many particular parts of its comprehensive signification; thus we say, a man has become free, when he has finished an enterprize, in which he had been wholly occupied; when he has given up a slavish office; when he has renounced a station, which imposed responsible duties on him; when he has broken the yoke of certain passions, or connexions, which kept him in subjection; when he has escaped from a prison; when he has withdrawn himself from the dominions of a tyrannical government: we likewise say, the liberty of thinking, speaking, acting, writing; that his speech, respiration, and all his movements are free, when nothing constrains him in these respects: then all these particular faculties of liberty are ranged into classes, forming different groups according to their several natures; such as physical, moral, natural, civil, and political liberty; whence it happens, that when forming a general idea of liberty, everyone composes it of that kind of liberty, to which he attaches the greatest importance, of a freedom from those constraints against which he is the most prejudiced, and which appear to him the most insupportable; some make it to consist in virtue, in indifference, or in a kind of impassibility, like those stoics who pretended that their sages remained free, even when in chains; others place it in society; others in competency and ease, or in a state unconnected with and independent of any social ties; others again pretend, that to be free is to live under certain forms of government or generally under one that is moderate and enlightened. All these opinions are just, according to the sense in which liberty is understood; but in none is it seen in all its forms, nor is its proper character embraced in any of their definitions. Let us examine what these different kinds of liberty possess in common, and in what they severally resemble each other; for it is in this way only we can approach the general ideas, abstracted from all the particular ideas which are comprehended therein.
If we consider it attentively, we shall perceive that one property common to all descriptions of liberty, is that it procures, for the individual enjoying it, the exercise of his will in a greater extent than if deprived of that enjoyment; therefore, the idea of liberty, in its most abstract form, as well as in its greatest extent, is nothing more than the idea of the power to do that which the mind wills; and in general, to be free is to be enabled to do what we please.
Hence we perceive that liberty is applicable only to beings endowed with will; and when we say of water that it runs more freely when the obstacles opposed to its passage are taken away, or that a wheel turns more freely when the friction retarding it is diminished; it is by comparison we express ourselves, because we presuppose that the water inclines, or possesses a quality which disposes it to run, and the wheel a like disposition to turn; or that such is the necessary effect in given circumstances.
For the same reason, this question so much debated.... Is our will free? should never be urged, for it is an abuse of terms; liberty only relates to the will when formed, and not before the will exists: what has given rise to an enquiry of this kind is, that on particular occasions the motives acting upon us are so powerful, that they determine us immediately to will one thing in preference to or rather than another, and then it, is said, we will irresistably or are necessitated to will; while in other circumstances, the motives not being so strong, of acting with less impulsion, leave us the power of deliberation, to reflect on and weigh them in our minds; in this state, we think we possess the power either to resist or to obey those impulses, and to take one determination in preference to another, solely because we will it; but this is an illusion, for however weak a motive may be, it necessarily determines our will, unless it be balanced by a more powerful motive, and then this is as necessarily determined as the other would have been, if alone; we will or we do not will, but we cannot will to will; and if we could, there would yet be an antecedent cause of this will, and this cause would be beyond the range of the will, as are all those which cause it; and therefore we must conclude that liberty exists only after the will, and in consequence of its unrestrained exercise; or that liberty is no more than the power of executing the will. I ask the reader's pardon, for this metaphysical discussion on the nature of liberty, but it will soon be perceived; that it is neither inappropriate nor useless. It is impossible to speak intelligibly on the interests of men without a previous and due understanding of their faculties; if there be any thing more materially deficient than another, in the writings of the great man on which I comment, it is particularly in this preliminary study, and we may perceive how vague the ideas are which he presents to us of liberty, although he had devoted three chapters to that particular subject. We have made nearly the same exceptions to his idea of the word law, in the first book.
Liberty, in the, most general acceptation of the word is nothing else than the power of executing the will, and accomplishing your desires; now the nature of every being endowed with will, is such that this faculty of willing causes his happiness or unhappiness; he is happy when his desires are accomplished, and unhappy when they are not; and happiness or misery are proportioned in him according to the degree of his gratification or disappointment. It follows that his liberty and happiness are the same thing. He would always be completely happy if he had always the power of executing his will, and the degree of his happiness is always proportionate to the degree of his power.
This remark explains why men, even without suspecting it, are all so passionately fond of liberty; for they could not be otherwise, since whenever there exists a desire, under whatever name it may appear, the possibility of accomplishing that desire is implied, and willed or wished; it is always the possession of a portion of power, or the removal of some constraint, which constitutes a certain portion of happiness. The exclamation.... "O if I could!" comprehends the desire of accomplishing all our wishes; every wish would be gratified if we could effect it by willing it: all powerful, or what is the same thing, entire liberty, is inseparable from perfect happiness.
This remark conducts us farther, and explains to us why men have formed to themselves different ideas liberty, according to their different ideas of happiness. They must always have attached the idea of liberty in an eminent degree, to the power of doing what they please, and of which satisfaction is the attribute. Montesquieu, in his second chapter, appears to be astonished that many people should entertain false ideas of liberty, making it consist in things foreign to their solid interests, or at least not essential thereto; but he should have first considered that men have often placed their happiness and satisfaction in the enjoyment of unimportant or even hurtful things: the first fault committed, the second follows as a consequence. A Russian in the time of Peter the great, placed his greatest interest in his long heard, which was in fact of no use, or an incumbrance, or very ridiculous. The native of Poland was passionately attached to his liberum veto, which was the great source of affliction to his country. Both Russians and Poles would have deemed themselves subjected to the greatest tyranny, if obliged to part with either; and their subjection was certainly great, when they were deprived thereof, for their strongest desires were frustrated. Montesquieu answers himself by adding this remarkable phrase.... "In fine, every one has called that government free, which was most conformable to his inclinations;" which is unquestionably true, it could not be otherwise, and each has so expressed himself reasonably, because every one is truly free when all his wishes are gratified, and we cannot be free in any other manner.
From this last observation flows many consequences; the first which presents itself is.... that a nation should be considered truly free as long as it continues satisfied with its government, even if in its nature the government should be less conformable to the principles of liberty than another which displeases him. It is often mentioned that Solon said.... "I have not given to the Athenians, the best possible laws that they could receive,".... that is, the best they were worthy of. I do not believe that Solon said so; such contemptuous boasting would have been very ill placed in the mouth of one who had adapted his laws so injudiciously to the character of the nation, that they did not last his life time. But I believe he did say "I have given them the best laws they would receive." This might have been true, and justifies him under the circumstances of his want of success; and it necessarily must have been so, because as he did not impose his laws by force, he was necessitated to give them as they would be received; now the Athenians, in adopting such imperfect laws, were certainly ill advised; but they were very free; while in modern times a great part of France, in receiving their constitution of the year three, (1795) however free it might be in its form, were really slaves, since it was established in opposition to their will; hence we may conclude, that institutions can be ameliorated only in proportion to the increase of information among the people at large, and even those which are the best absolutely are not always so relatively; for the better they are, the more they are opposed to false ideas, and if they are disagreeable to too great a number, they cannot be maintained without using forcible means, after which there could be no more liberty, no more happiness, no more security; this may serve as an apology for many institutions bad in themselves, which may have been at one period well adapted to the circumstances in which they existed, but furnishes no argument for our preserving them when they are found to be pernicious.... and it may also serve to explain the causes of failure of many good institutions, and will not prevent us from adopting them at a more favorable time.
The second consequence of the observation which we have made above is, that the government under which the greatest liberty is enjoyed, whatever may be its form, is that which governs the best, for in it the greatest number of people are the happiest; and when we are as happy as we can be, our desires are accomplished as much as possible. If the most despotic prince should administer public affairs in a perfect manner, we should enjoy the greatest possible happiness under his rule, which is the same thing as liberty. It is not then the form of government in itself, that is so important; it would indeed be a very weak argument in its favor, that it was in form more agreeable to reason, because it is not mere speculation or theory, which constitute the happiness of mankind in society, but practical good and beneficial results; for it concerns individuals who possess the faculties of life, and are sensible of good and evil, not ideal or abstract beings. Those, who in the political convulsions of our times, said.... "I do not care about being free, all I desire is to be happy," uttered a sentiment contradictory in itself.... being both very sensible and very insignificant: sensible, in as much as happiness is the only object worthy of our attention; insignificant, in as much as happiness is really true liberty. For the same reason, those enthusiasts, who said that happiness is not to be taken into consideration, when liberty is in question, are guilty of the same absurdity; for if happiness could be separated from liberty, it should without hesitation be preferred: but we are not happy when we are not free, for certainly suffering is not doing as we wish. The only circumstance, therefore, which renders any one social organization preferable to another, is its being better adapted to render the members of society happy; and if in general it be desired, that the social constitution should leave to the people a great facility to make known their wishes, it is then more probable that under a government which secures this power, they are governed as they desire.
Let us examine, with Montesquieu, which are the principal conditions to be fulfilled in order to accomplish this end; and like him, let us only occupy ourselves on the question generally, without respect to any local or particular conjuncture.
This justly celebrated philosopher has remarked, in the first place, that public functions may be reduced to three principles: that of making laws.... that of conducting internal and external affairs, according to the intention of the laws.... and, that of passing judgment on private or civil differences, as well as on accusations of private and public offences: that is to say, in other words.... that social action is comprised in willing, executing, and judging.
Then it may be easily perceived that these three great functions, or even two of them, could not be united in the same person or persons, without the greatest danger to the rest of the citizens; for if the same man, or body of men, were at the same time authorised to will and to execute, the single person or the body of men, would be too powerful for any to interpose or form a judgment, and consequently would be obliged to submit. If the one only who made the law also judged, it is probable that he would soon rule the one entrusted with the execution, of the law; and in short, this last person who executes, being always the most to be feared, on account of the physical force entrusted to him; if he should be invested with the function of judging, there can be no doubt that he would soon so arrange the means of authority, that the legislating power must enact such laws only as he should please.
These dangers are too palpable to attach any merit to their discovery; the great difficulty appears to be, how to devise the means of avoiding them. Montesquieu spares himself the trouble of such an enquiry, by persuading himself that they are already found: he even blames Harrington for occupying himself with the subject. "We may say of him," says Montesquieu, "that he has only sought liberty, after stumbling upon it without knowing it; that he looked for Chalcedon with the coast of Byzantium in his view." He is so well satisfied of the problem being solved, that he says in another place.... "To discover political liberty in the constitution, does not require so much trouble, if we can possess it where it is; if we have found it, why seek it:" and he immediately presents the form of the English government, as he imagined it to exist in its administration. It is true, that at the period in which he wrote, England was a very flourishing and celebrated state; its government was, of those till then known, that which produced, or appeared to produce, the most flattering results in every respect. However, this superiority, partly real, partly apparent, but in a greater measure the effect of causes wholly foreign, should not have prepossessed so strong a mind as Montesquieu, or induced him to suppress the errors of the theory, or to insinuate that it leaves nothing more to be desired.
This prepossession in favor of English institutions and ideas, led him in the first place to forget, that the legislative, executive, and judicial functions, are properly only delegated trusts, functions which may indeed confer power and credit, on the persons invested with them, but are not therefore self-existent in the persons who exercise them. There is by right, only one power in society, and that is the will of the nation or society, from which all authority flows; and in fact there is not any other change, than that of the authority delegated to the man, or body of men, of the several functions by which they disburse the necessary expences, and exercise all the physical force of the society. Montesquieu does not deny this, he is only unmindful of it; he is entirely taken up with his triple powers, his legislative, executive, and judiciary, considering them as rivals, and as powers independent of each other; and that it is only necessary to reconcile or restrain them, each by the other, in order to make every thing go on well, without taking any notice, whatever, of the natural power from which they are derived, and upon which they depend.
By not perceiving that his executive power is the only real one in fact, and that it influences all the others, he concedes, without consideration or enquiry, this power to an individual, and even makes it hereditary in that individual's family, and for no other reason than because one man is better calculated for action than many: if this principle were well founded, it would have been yet worth enquiry, whether if an individual be so much better fitted for action, he would suffer any other free action to exist round him; and moreover, whether this individual, chosen at hazard, is so likely to be competent to the exercise of that wise deliberation which should precede every action.
He also approves of the legislative power, being confided to the legislators, freely elected by the people for a limited period, and from all parts of the nation; but what is still more extraordinary, he approves of the existence of the privileged hereditary body in the nation, and that this body should compose of itself, by right, a part of the legislative body, distinct and separate from that elected by the people, and that it should possess the right of a negative upon the resolves of the elected representatives! His reasons are curious; it is, he says, "because their prerogatives are odious in themselves, and they should be enabled to defend them;" it would seem a more natural conclusion, we should think, that being odious they should rather be abolished.
He also thinks, that this second section of the legislative body is very useful, because there can be placed therein, all that is really important in the judiciary authority, the passing of judgment on crimes against the state; so that, as he says, it becomes the regulating power, of which both the executive and legislative powers stand in need to mutually temper them. He does not look to facts in the history of England, nor perceive what it attests, that the house of lords is any thing else, rather than an independent and regulating power; that it is, in fact, only an appendage to the court, the advanced guard of the executive power, whose fortunes it has always followed; and that giving this irresponsible body a negative in legislation and a high judiciary function, is only investing the court with an additional force, and rendering the punishment of state criminals a matter of mere discretion with the executive, or rendering it impossible to punish whenever it is not the pleasure of the court.
Notwithstanding these advantages, and the great power which the executive has at its disposal, he does not think the right of a negative upon the laws necessary to the executive; nor that of convoking, nor of proroguing, nor of dissolving them; and he imagines that the popular representatives possess a sufficient defence, in their precautionary power of voting the supplies only for one year, as if they must not renew them every year, or witness a dissolution of the government; and that this power is further augmented by their having it in their discretion to prohibit or permit the raising of a military force, or the establishment of camps, barracks, or fortified places; as if they must not be forced into the establishment of either, whenever a necessity shall call for it... a necessity which the executive can at any time create.
Montesquieu terminates this long detail, by a sentence obscure and embarrassed.... "This is the fundamental constitution of the government of which we speak; the legislative body being composed of two parts, each of them constrains the other, by their mutual preventative faculty; both are restrained by the executive, which will itself be restrained by the legislative:" and to this he adds this singular reflection: "These three powers should naturally form a state of repose it or inaction; but as in the nature of things they must move, they are under the necessity of acting in concert." I must acknowlege, that I do not perceive the absolute necessity of this conclusion; on the contrary, it appears evident, that where every thing is constituted, so as to constrain or impede motion, nothing can be perfectly accomplished. If the king were not effectively master of the parliament, and if he did not consequently lead them, I can see nothing in this weak fabric of government that could prevent him; neither can I perceive any thing in favor of such an organization.... which is in my opinion very imperfect.... but a circumstance which belongs to it rather than forming a part of it, and which has not been noticed.... that is, the constancy with which the nation wills that it should so subsist. But as at the same time, they are wisely attached to the maintenance of personal liberty and the freedom of the press, the power is always preserved of making the public opinion known; so that when the king abuses his power, of which he really possesses too much, he is subject to be opposed by a general movement in favor of those who resist his oppression; as has been twice exemplified in the seventeenth century, and which is always very easy in an island, where there can be no motives, consistent with the principles of the government, for maintaining a large standing army. This is in fact the only effective veto, which is to be found under the English constitution, compared with which all the rest are nothing.
The great point in the English constitution is, that the nation six or seven times deposed its kings: but then it must be remarked, that this is not a constitutional expedient; it is rather all insurrection arising out of necessity, as it was formerly said to be according to the laws of Crete. Legislative deposition, to my great astonishment, Montesquieu praises in another part of his book, notwithstanding it is certain that this remedy is so cruel, that a sensible people would endure great evils, before they could resort to it; and though it may happen that they defer redress so long, that if the usurpation be conducted with address, the people may insensibly acquire the habit of slavery so inveterately, as no longer to feel the desire, or may cease to posses the capacity, of breaking their chains by any means.
What very much characterises the warmth of Montesquieu's imagination, is, that on the faith of three lines from Tacitus, which would require a copious commentary, he has persuaded himself, that he found among the savages of ancient Germany, the model and the spirit of the government, which he considers as a masterpiece of human reason; in the excess of his admiration, he thus exclaims.... "This excellent system was discovered in the woods:" and a little after he adds.... "It does not belong to me to examine whether the English actually enjoy liberty or not, it is sufficient to say, it is established by their laws." Nevertheless, I am of opinion, that the first point was well worthy of examination, were it only to assure himself, that he had a just knowlege of the second; because if he had bestowed more attention on their laws, he would have discovered that among the English, there exists really no more than two powers instead of three; that these two powers exist only when both are present, because one has all the real force and no public attachment, while the other possesses no force, but enjoys all the public confidence, until it manifests a disposition to overpower its rival, and sometimes even then: that these two powers, by uniting, are legally competent to the change of the public established laws, and even those which determine their relations and their existence, for no law obstructs them, and they have exercised this power on various occasions: so that, in fact, liberty is not truly established by their political laws; and if the English really enjoy liberty to a certain extent, it originates in the causes which I have explained, and has reference to certain received usages in their civil and criminal proceedings, rather than to positive laws; as, in fact, it is altogether without law established.
The great problem, therefore, of the distribution of the powers of society, so that neither of them may trespass on the authority of the other, or the limits assigned them by the general interests; and that it may always be easy to keep them within bounds, or to bring them back by peaceable and legal means, is not, I conceive, resolved in that country: I would rather claim this honor for the United States of America, the constitution of which determines what should be done when the executive, or when the legislative, or when both together, go beyond their legitimate powers, or are in opposition to each other; and when it becomes necessary to change the constitutional act of a state, or of the confederation itself. But it may be objected, that in case of such regulations, the great difficulty lies in their execution; that the Americans, when the authorities of a particular state are in question, are guaranteed by the force of the superior authority of the confederation; and that when it becomes a question of guarantee, it resolves itself into the union of the several confederated states, acting for one state; and that in this view of the facts, we have rather eluded than solved it, by the aid of the confederative system; and that it therefore remains to be explained, how the same end could be obtained, where the established government is an indivisible body or unity.
Such a subject requires to be treated of in the manner of a theory, rather than historically; I shall therefore endeavor to establish à priori, the principles of a truly free, legal, and peaceable constitution; for which purpose we must take a fair point of view, from ground a little more retired and elevated.
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