The Functions of Government

Charles de Secondat (Baron de la Brede et de Montesquieu)

[From The Spirit of Laws, 1748]

... In each state there are three sorts of powers: legislative power, executive power over the things depending on the right of nations, 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 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 power of judging, and the former simply the executive power of the state.

Political liberty in a citizen is that tranquillity of spirit which comes from the opinion each one has of his 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 person or in a single body of the 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 if the same man or the same body of principal men, either of nobles, or of the people, exercised these three powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.

In most kingdoms in Europe, the government is moderate because the prince, who has the first two powers, leaves the exercise of the third to his subjects. Among the Turks, where the three powers are united in the person of the 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 inquisitors and the lion's maw into which an informer can, at any moment, throw his note of accusation.

Observe the possible situation of a citizen in these republics. The body of the magistracy, as executor of the laws, retains all the power it has given itself as legislator. It can plunder the state by using its general wills; and, as it also has the power of judging, it can destroy each citizen by using its particular wills.

There, all power is one; and, although there is none of the 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 of Asia. 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, in Venice, the Great Council has legislation; the Pregadi, execution; Quarantia. the power of judging. But the ill is that these different tribunals arc formed of magistrates taken from the same body; this makes them nearly a single power.

The power of judging should not be given to a permanent senate but should be exercised by persons drawn from the body of the people 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 a certain profession, becomes, so to speak, invisible and null. Judges arc 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 least he must be able to challenge so many of them that those who remain are considered to be of his choice.

The two other powers may be given instead to magistrates or to permanent bodies because they are exercised upon no individual, the one being only the general will of the state, and the other, the execution of that 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. If judgments were the individual opinion of a judge, one would live in this society without knowing precisely what engagements one has contracted. Further, the judges must be of the same condition as the accused, or his peers, so that he does not suppose that he has fallen into the hands of people inclined to do him violence.

If the legislative power leaves to the executive power the right to imprison citizens who can post bail for their conduct, there is no longer any liberty, unless the citizens are arrested in order to respond without delay to an accusation of a crime the law has rendered capital; in this case they are really free because they are subject only to the power of the law.

But if the legislative power believed itself endangered by some secret conspiracy against the state or by some correspondence with its enemies on the outside, it could, for a brief and 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 of Venice, 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 of one's own town better than those of other towns, and one judges the ability of one's neighbors better than that of one's other compatriots. Therefore, members of the legislative body must not be drawn from the body of the nation at large; it is proper for the inhabitants of each principal town to choose a representative from it.

The great advantage of representatives is that they are able to discuss public business. The people are not at all appropriate for such discussions; this forms one of the great drawbacks of democracy.

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 of the deputies would better express the voice of the nation; but it would produce infinite delays and make each deputy the master of all the others, and on the most pressing occasions the whole force of the nation could be checked by a caprice. ...

When the deputies represent a body of 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.

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 representatives; this is quite within their reach. For if there are few people who know the precise degree of a man's ability, yet every one is able to know, in general, if the one he chooses sees more clearly than most of the others.

Nor should the representative body be chosen in order to make some resolution for action, a thing it would not do well, but in order to make laws or in order to see if those they have made have been well 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, or honors; but if they were mixed among the people and 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 most of the 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, which will happen if they form a body that has the right to check the enterprises of the people, as the people have the right to check theirs.

Thus, legislative power will be entrusted both to the body of the nobles and to the body that will be chosen to represent the people, each of which will have assemblies and deliberations apart and have separate views and interests.

Among the three powers of which we have spoken, that of judging is in some fashion, null. There remain only two; and, as they need a power whose regulations temper them, that part of the legislative body composed of the 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 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 of the 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 of vetoing and not through its faculty of enacting.

I call the right to order by oneself, or to correct what has been ordered by another, the faculty of enacting. I call the right to render null a resolution taken by another the faculty of vetoing, which was the power of the tribunes of Rome. And, although the one who has the faculty of vetoing can also have the right to approve, this approval is no more than a declaration that one does not make use of one's faculty of vetoing, and it derives from that faculty.

The executive power should be in the hands of a monarch, because the part of the 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.

If there were no monarch and the executive power were 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 of two 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 of executing, but of defending its prerogatives and its right to execute.

In addition, if the legislative body were continuously convened, it could happen that one would do nothing but replace the deputies who had died with new deputies; and in this case, if the legislative body were once corrupted, the ill would be without remedy. When various legislative bodies follow each other, the people, holding a poor opinion of the current legislative body, put their hopes, reasonably enough, in the one that will follow; but if the legislative body were always the same, 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 identify which part was truly the legislative body, the part that was convened or the one that was not. For if it had the right to prorogue itself, it could 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 must be the executive power that regulates, in relation to the circumstances it knows, the time of the holding and duration of these assemblies.

If the executive power does not have the right to check the enterprises of the legislative body, the latter will be despotic, for it will wipe out all the other powers, since it will be able to give to itself all the power 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 power of the tribunes in Rome was faulty in that it checked not only legislation but even 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 in which the laws it has made have been executed; and this is the advantage of this government over that of Crete and Lacedaemonia, where the kosmoi and the ephors were not held accountable 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 legislative body does not become tyrannical, if he 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 cannot execute badly without having as ministers wicked counsellors who hate the law although the laws favor them as men, these counsellors can be sought out and punished. ...

Although in general the power of judging should not be joined to any part of the legislative power, this is subject to three exceptions founded on the particular interests of the one who is to be judged.

Important men are always exposed to envy; and if they were judged by the people, they could be endangered and would not enjoy the privilege of the last citizen of a free state, of being 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.

It could happen that the law, which is simultaneously clairvoyant and 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 of the 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 itself by pronouncing less rigorously than the law.

It could also happen that a citizen, in matters of public 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 Ac interested party, the people. Therefore, it can be only the accuser. But, before whom will it make its accusation? Will it bow before the tribunals of law, which are lower than it and are, moreover, composed of those who, being also of the people, would be swept along by the authority of such 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.

This last is the advantage of this government over most of the ancient republics, where there was the abuse that the people were judge and accuser at the same time.

Executive power, as we have said, should take part in legislation by its faculty of vetoing; otherwise it will soon be stripped of its 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 of this, he must take part in legislation in order to defend himself, he must take part in it by the faculty of vetoing. The cause of the change in government 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 of vetoing, as the people had.

Here, therefore, is the fundamental constitution of the government of which 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 two will be bound by the executive power, which will 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 power belongs to the legislative only through its faculty of vetoing, it cannot enter into the discussion of public 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 a body discussed the public business, it was natural for the executive power to propose and discuss with them; otherwise, there would have been a strange confusion in the resolutions.

If the executive power enacts on the raising of public 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 of legislation.

If the legislative power enacts, not from year to year, but forever, on the raising of public funds, it runs the risk of losing its liberty, because the executive power will no longer depend upon it; and when one holds such a right forever, it is unimportant whether that right comes from oneself or from another. The same is true if the legislative power enacts, not from year to year, but forever, about the land and 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 of the people and have the same spirit as the people, as they were in Rome until the time of Marius. This can be 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 a year only, as was practiced in Rome; or, if the 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 army will always scorn a senate and respect its officers. It will not make much of the orders sent from a body composed of people it believes timid and, therefore, unworthy to command it. Thus, whenever the army depends solely on the legislative body, the government will become military. And if the contrary has ever occurred, it is the effect of some extraordinary circumstances; it is because the army there is always separate, because it is composed of several bodies each of which 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 the of hunger; 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, particular circumstances keep the government from becoming military, one will encounter other drawbacks; one of these two things must happen, either the army must destroy the government, or the government must weaken the army.

And this weakening will have a fatal cause: it will arise from the very weakness of the government.

If one wants to read the admirable work by Tacitus, On the Mores of the Germans, one will see that the English have taken their idea of political government from the Germans. This fine system was 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 Carthage 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 liberty or not. It suffices 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, I who believe that the excess even of reason is not always desirable and that men almost always accommodate themselves better to middles than to extremities?

Harrington, in his Oceana, has also examined the furthest point of liberty to which the constitution of a state can be carried. But of him 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. …