Tuesday, April 10, 2012

The Spirit of the Laws - Montesquieu

Baron Charles Louis Joseph de Secondat Montesquieu (1689 – 1755) was an authoritative French professor, legal philosopher, and author of The Spirit of the Laws which he wrote in 1748. The Spirit of the Laws had a profound impact on the formation of the American federal government. Upon examining almost 15,000 newspaper articles, monographs, books, pamphlets, and sermons written by the Founding Fathers of America; Montesquieu was the most frequently quotes source other than the Bible.

Montesquieu maintained the philosophic premise that humanity was basically selfish. Hence, individuals unchecked would accumulate power unto themselves when the opportunity arose. His philosophic world view merged with the Calvinist doctrine of the depravity of man – mankind fallen in space and time through the rebellion of Adam and Eve against God. Consequently, such persons accumulating power unto themselves would become despotic.

His philosophic position is reflected in the concept of the fallen nature of man as expressed by the Old Testament prophet Jeremiah.

Jeremiah 17:9

“The heart is deceitful above all things and desperately wicked who can know it.”

Montesquieu proposed dividing the powers of central government of a nation into three co existent branches which would be balanced in power. Each branch of government would prevent the unwarranted accumulation of power through checks and balances. The monarch's power divided into Judicial, Executive, and Legislative branches is reflected in the book of Isaiah.

Isaiah 33:22

“For the Lord is our judge, the Lord is our Lawgiver, the Lord is our King.”

In his book The Spirit of the Laws which was published in 1748, Montesquieu wrote:

“Nor is there liberty if the power of judging is not separated from legislative power and from executive power. If it [the power of judging] were joined to legislative power, the power over life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to the executive power, the judge would have the force of an oppressor. All would be list if the same...body of principal men...exercised these three powers...”

“The Christian religion, which orders men to love one another, no doubt wants the best political laws and the best civil laws for each people, because those laws are, after [the Christian religion], the greatest good that men can give and receive.”

Furthermore, Montesquieu declared in Book XXIV of The Spirit of the Laws:

“I have always respected religion; the morality of the Gospel is the noblest gift ever bestowed by God on man. We shall see that we owe to Christianity, in government, a certain political law, and in war a certain law of nations – benefits which human nature can never sufficiently acknowledge.

“The principles of Christianity, deeply engraved on the heart, would be infinitely more powerful than the false honor of monarchies, than the humane virtues of republics, or the servile fear of despotic states.

“It is the Christian religion that, in spite of the extent of empire and influence of climate, has hindered despotic power from being established in Ethiopia, and has carried into the heart of Africa the manners and laws of Europe.”

“The Christian religion is a stranger to mere despotic power. The mildness so frequently recommended in the Gospel is incompatible with the despotic rage with which a price punishes his subjects and exercises himself in cruelty.”

“Society...must repose on principles that do not change.”

The Spirit of Laws

“Laws, in their most general signification, are the necessary relations arising from the nature of things. In this sense all beings have laws: the Deity His laws, the material world its laws, the intelligences superior to man their laws, the beasts their laws, man his laws. They who assert that a blind fatality produced the various effects we behold in this world talk very absurdly; for can any thing be more unreasonable than to pretend that a blind fatality could be productive of intelligent beings? There is, then, a prime reason; and laws are the relations subsisting between it and different beings, and the relations to these to one another.”

“God is related to the universe, as Creator and Preserver; the laws by which He created all things are those by which He preserves them. He acts according to these rules, because He knows them; He knows them, because He made them; and He made them, because they are in relation to his Wisdom and power...”

“In very 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 already been 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...”

“Hence it is that many of the princes of Europe, whose aim has been leveled at arbitrary power, have constantly set out with uniting in their persons all the branches of magistracy, and all the great offices of state...”

“The judiciary power ought not to be given to a standing senate; it should be exercised by persons taken from the body of the people at certain times of the year, and consistently with a form and manner prescribed by law, in order to erect a tribunal that should last only so long as necessity requires...”

“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 be fixed, the judgments ought; and to such a degree as to be ever conformable to the letter of the law. Were they to be the private opinion of the judge, people would then live in society, without exactly knowing the nature of their obligations...”

“As in a country of liberty, every man who is supposed a free agent ought to be his own governor; the legislative power should reside in the whole body of the people. But since this is impossible in large states, and in small ones is subject to many inconveniences, it is fit the people should transact by their representatives what they cannot transact themselves.

“The inhabitants of a particular town are much better acquainted with its wants and interests than with those of other places; and are better judges of the capacity of their neighbors than of that of the rest of their countrymen. The members, therefore, of the legislature should not be chosen from the general body of the nation; but it is proper that in every considerable place a representative should be elected by the inhabitants.”

“The great advantage of representatives is, their capacity of discussing public affairs. For this the people collectively are extremely unfit, which is one of the chief inconveniences of a democracy.”

“It is not at all necessary that the representatives who have received a general instruction from their constituents should wait to be directed on each particular affair, as is practiced in the diets of Germany. True it is that by this way of proceeding the speeches of the deputies might with greater propriety be called the voice of the nation; but on the other hand, this would occasion infinite delays;would give each deputy a power of controlling the assembly; and, on the most urgent and pressing occasions, the wheels of government might be stopped by the caprice of a single person...”

“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 representatives, 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 than most of his neighbors.”

“Neither ought the representative body to 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 duly executed, a thing suited to their abilities, and which none indeed but themselves can properly perform...”

“The legislative power is therefore committed to the body of the nobles, and to that which represents the people, each having their assemblies and deliberations apart, each their separate views and interests.”

“Of the three powers above mentioned, the judiciary is in some measure next to nothing; there remain, therefore, only 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 executive power ought to be in the hands of a monarch, because this branch of government, having need of despatch, is better administered by one than my many; on the other hand, whatever depends on the legislative power is oftentimes better regulated by many than by a single person.”

“But if there were no monarch, and the executive 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, and would always able to possess a share in both...”

“Were the executive power not to have a right of restraining the encroachments of the legislative body, the latter would become despotic; for as it might arrogate to itself what authority it pleased, it would soon destroy all the other powers.”

“But it is not proper, on the other hand, that the legislative power should have a right to stay the executive. For as the execution has its natural limits, it is useless to confine it; besides, the executive power is generally employed in momentary operations. The power, therefore, of the Roman tribunes was faulty, as it put a stop not only to the legislation, but likewise to the executive part of government which was attended with infinite mischief.”

“But if the legislative power in a free state has no right to stay the executive, it has a right and ought to have the means of examining in what manner its laws have been executed; an advantage which this government has over that of Crete and Sparta, where the Cosmi and Ephori have no account of their administration...”

“The executive power, pursuant of what has been already said, ought to have a share in the legislature by the power of rejecting; otherwise it would soon be stripped of its prerogative. But should the legislative power usurp a share of the executive, the latter would be equally undone.”

“If the prince were to have a part in the legislature by the power of resolving, liberty would be lost. But as it is necessary he should have a share in the legislature for the support of his own prerogative, this share must consist in the power of rejecting. The change of government at Rome was owing to this, that neither the senate, who had one part of the executive power, nor the magistrates, who were intrusted with the other, had the right of rejecting, which was entirely lodged in the people. Here, then, is the fundamental constitution of the government we are treating of. The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting. They are both restrained by the executive power, as the executive is by the legislature. These three powers should naturally form a state of repose or inaction. But as there is a necessity for movement in the course of human affairs, they are forced to move, but still in concert...”

Montesquieu's The Spirit of the Laws was published in Colonial Press 1900. The text here was edited from The Christian History of the Constitution of the United States of America - Christian Self Government compiled by Verna M. Hall

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