Week 4: English Roots III

Montesquieu, Spirit of the Laws

Complete Works, vol. 1 (The Spirit of Laws)

Charles Louis de Secondat, Baron de Montesquieu





CHAP. I.: Of the Relation of Laws to different Beings.

LAWS, in their most general signification, are the necessary relations arising from the nature of things. In this sense, all beings have their laws; the Deity his* laws, the material world its laws, the intelligence 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 primitive reason; and laws are the relations subsisting between it and different beings, and the relations of 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 relative to his wisdom and power.

Since we observe that the world, though formed by the motion of matter, and void of understanding, subsists through so long a succession of ages, its motions must certainly be directed by invariable laws: and, could we imagine another world, it must also have constant rules, or it would inevitably perish.

Thus the creation, which seems an arbitrary act, supposeth laws as invariable as those of the fatality of the atheists. It would be absurd to say, that the Creator might govern the world without those rules, since without them it could not subsist.

These rules are a fixed and invariable relation. In bodies moved, the motion is received, increased, diminished, lost, according to the relations of the quantity of matter and velocity: each diversity is uniformity; each change is constancy.

Particular intelligent beings may have laws of their own making; but they have some likewise which they never made. Before there were intelligent beings, they were possible; they had therefore possible relations, and consequently possible laws. Before laws were made, there were relations of possible justice. To say that there is nothing just or unjust, but what is commanded or forbidden by positive laws, is the same as saying that, before the describing of a circle, all the radii were not equal.


We must therefore acknowledge relations of justice antecedent to the positive law by which they are established: as for instance, that, if human societies existed, it would be right to conform to their laws; if there were intelligent beings that had received a benefit of another being, they ought to shew their gratitude; if one intelligent being had created another intelligent being, the latter ought to continue in its original state of dependence; if one intelligent being injures another, it deserves a retaliation; and so on.

But the intelligent world is far from being so well governed as the physical: for, though the former has also its laws, which of their own nature are invariable, it does not conform to them so exactly as the physical world. This is because, on the one hand, particular intelligent beings are of a finite nature, and consequently liable to error; and, on the other, their nature requires them to be free agents. Hence they do not steadily conform to their primitive laws; and even those of their own instituting they frequently infringe.

Whether brutes be governed by the general laws of motion, or by a particular movement, we cannot determine. Be that as it may, they have not a more intimate relation to God than the rest of the material world; and sensation is of no other use to them, than in the relation they have either to other particular beings, or to themselves.

By the allurement of pleasure they preserve the individual, and by the same allurement they preserve their species. They have natural laws, because they are united by sensation; positive laws they have none, because they are not connected by knowledge: and yet they do not invariably conform to their natural laws: these are better observed by [4] vegetables, that have neither understanding nor sense.

Brutes are deprived of the high advantages which we have; but they have some which we have not. They have not our hopes; but they are without our fears: they are subject, like us, to death, but without knowing it: even most of them are more attentive than we to self-preservation, and do not make so bad a use of their passions.

Man, as a physical being, is, like other bodies, governed by invariable laws. As an intelligent being, he incessantly transgresses the laws established by God, and changes those of his own instituting. He is left to his private direction, though a limited being, and subject, like all finite intelligences, to ignorance and error: even his imperfect knowledge he loseth; and, as a sensible creature, he is hurried away by a thousand impetuous passions. Such a being might every instant forget his Creator; God has therefore reminded him of his duty by the laws of religion. Such a being is liable every moment to forget himself; philosophy has provided against this by the laws of morality. Formed to live in society, he might forget his fellow-creatures; legislators have, therefore, by political and civil laws, confined him to his duty.

CHAP. II.: Of the Laws of Nature.

ANTECEDENT to the above-mentioned laws are those of nature; so called because they derive their force entirely from our frame and existence. In order to have a perfect knowledge of these laws, we must consider man before the establishment of society; the laws received in such a state would be those of nature.

The law, which, impressing on our minds the idea of a Creator, inclines us toward him, is the first in importance, [5] though not in order, of natural laws. Man, in a state of nature, would have the faculty of knowing before he had acquired any knowledge. Plain it is that his first ideas would not be of a speculative nature: he would think of the preservation of his being before he would investigate its original. Such a man would feel nothing in himself, at first, but impotency and weakness: his fears and apprehensions would be excessive; as appears from instances (were there any necessity of proving it) of savages found in forests* trembling at the motion of a leaf, and flying from every shadow.

In this state, every man, instead of being sensible of his equality, would fancy himself inferior: there would, therefore, be no danger of their attacking one another; peace would be the first law of nature.

The natural impulse, or desire, which Hobbes attributes to mankind, of subduing one another, is far from being well founded. The idea of empire and dominion is so complex, and depends on so many other notions, that it could never be the first which occurred to the human understanding.

Hobbes enquires, “For what reason men go armed, and have locks and keys to fasten their doors, if they be not naturally in a state of war?” But is it not obvious, that he attributes to mankind, before the establishment of society, what can happen but in consequence of this establishment, which furnishes them with motives for hostile attacks and self-defence?

Next to a sense of his weakness, man would soon find that of his wants. Hence, another law of nature would prompt him to seek for nourishment.

Fear, I have observed, would induce men to shun one another; but the marks of this fear, being reciprocal, [6] would soon engage them to associate. Besides, this association would quickly follow from the very pleasure one animal feels at the approach of another of the same species. Again, the attraction arising from the difference of sexes would enhance this pleasure, and the natural inclination they have for each other would form a third law.

Beside the sense or instinct which man possesses in common with brutes, he has the advantage of acquired knowledge; and thence arises a second tie, which brutes have not. Mankind have therefore a new motive of uniting, and a fourth law of nature results from the desire of living in society.

CHAP. III.: Of positive Laws.

AS soon as mankind enter into a state of society, they lose the sense of their weakness; equality ceases, and then commences the state of war.

Each particular society begins to feel its strength; whence arises a state of war betwixt different nations. The individuals likewise of each society become sensible of their force: hence the principal advantages of this society they endeavour to convert to their own emolument; which constitutes a state of war betwixt individuals.

These two different kinds of states give rise to human laws. Considered as inhabitants of so great a planet, which necessarily contains a variety of nations, they have laws relative to their mutual intercourse, which is what we call the law of nations. As members of a society that must be properly supported, they have laws relative to the governors and the governed; and this we distinguish by the name of politic law. They have also another sort of laws, as they stand in relation to each other; by which is understood the civil law.


The law of nations is naturally founded on this principle, that different nations ought in time of peace to do one another all the good they can, and in time of war as little injury as possible, without prejudicing their real interests.

The object of war is victory; that of victory is conquest; and that of conquest, preservation. From this and the preceding principle all those rules are derived which constitute the law of nations.

All countries have a law of nations, not excepting the Iroquois themselves, though they devour their prisoners; for they send and receive ambassadors, and understand the rights of war and peace. The mischief is, that their law of nations is not founded on true principles.

Besides the law of nations relating to all societies, there is a polity, or civil constitution, for each, particularly considered. No society can subsist without a form of government. “The united strength of individuals,” as Gravina well observes, “constitutes what we call the body politic.

The general strength may be in the hands of a single person, or of many. Some think that, nature having established paternal authority, the most natural government was that of a single person. But the example of paternal authority proves nothing: for, if the power of a father be relative to a single government, that of brothers after the death of a father, and that of cousin-germans after the decease of brothers, refer to a government of many. The political power necessarily comprehends the union of several families.

Better is it to say, that the government most conformable to nature is that which best agrees with the humour and disposition of the people in whose favour it is established.


The strength of individuals cannot be united without a conjunction of all their wills. “The conjunction of those wills,” as Gravina again very justly observes, “is what we call the civil state.

Law in general is human reason, inasmuch as it governs all the inhabitants of the earth; the political and civil laws of each nation ought to be only the particular cases in which human reason is applied.

They should be adapted in such a manner to the people for whom they are framed, that it is a great chance if those of one nation suit another.

They should be relative to the nature and principle of each government; whether they form it, as may be said of political laws; or whether they support it, as in the case of civil institutions.

They should be relative to the climate of each country, to the quality of its soil, to its situation and extent, to the principal occupation of the natives, whether husbandmen, huntsmen, or shepherds: they should have a relation to the degree of liberty which the constitution will bear, to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs. In fine, they have relations to each other, as also to their origin, to the intent of the legislator, and to the order of things on which they are established; in all which different lights they ought to be considered.

This is what I have undertaken to perform in the following work. These relations I shall examine, since all these together constitute what I call the Spirit of Laws.

I have not separated the political from the civil institutions; for, as I do not pretend to treat of laws, but of their spirit, and as this spirit consists in the various relations which the laws may have to different objects, it is not so much my business to follow [9] the natural order of laws, as that of these relations and objects.

I shall first examine the relations which laws have to the nature and principle of each government: and, as this principle has a strong influence on laws, I shall make it my study to understand it thoroughly; and, if I can but once establish it, the laws will soon appear to flow from thence as from their source. I shall proceed afterwards to other more particular relations.


CHAP. I.: Of the Nature of three different Governments.

THERE are three species of government; republican, monarchical, and despotic. In order to discover their nature, it is sufficient to recollect the common notion, which supposes three definitions, or rather three facts: “That a republican government is that in which the body or only a part of the people is possessed of the supreme power: monarchy, that in which a single person governs by fixed and established laws: a despotic government, that in which a single person directs every thing by his own will and caprice.”

This is what I call the nature of each government: we must now inquire into those laws which directly conform to this nature, and consequently are the fundamental institutions.


CHAP. II.: Of the republican Government, and the Laws relative to Democracy.

WHEN the body of the people is possessed of the supreme power, this is called a democracy. When the supreme power is lodged in the hands of a part of the people, it is then an aristocracy.

In a democracy the people are in some respects the sovereign, and in others the subject.

There can be no exercise of sovereignty but by their suffrages, which are their own will: now, the sovereign’s will is the sovereign himself. The laws, therefore, which establish the right of suffrage, are fundamental to this government. And indeed it is as important to regulate, in a republic, in what manner, by whom, to whom, and concerning what, suffrages are to be given, as it is, in a monarchy, to know who is the prince, and after what manner he ought to govern.

Libanius* says, that at “Athens a stranger who intermeddled in the assemblies of the people was punished with death.” This is because such a man usurped the rights of sovereignty.

It is an essential point, to fix the number of citizens who are to form the public assemblies; otherwise it would be uncertain whether the whole or only a part of the people had given their votes. At Sparta the number was fixed to ten thousand. But Rome, designed by Providence to rise from the weakest beginnings to the highest pitch of grandeur; Rome, doomed to experience all the vicissitudes of fortune; Rome, who had sometimes all her inhabitants without her walls, and sometimes all Italy and a considerable part of the world within them; [11] Rome, I say, never fixed* the number; and this was one of the principal causes of her ruin.

The people, in whom the supreme power resides, ought to have the management of every thing within their reach: what exceeds their abilities must be conducted by their ministers.

But they cannot properly be said to have their ministers, without the power of nominating them: it is therefore a fundamental maxim, in this government, that the people should choose their ministers; that is, their magistrates.

They have occasion, as well as monarchs, and even more so, to be directed by a council or senate. But, to have a proper confidence in these, they should have the choosing of the members; whether the election be made by themselves, as at Athens; or by some magistrate deputed for that purpose, as on certain occasions was customary at Rome.

The people are extremely well qualified for choosing those whom they are to intrust with part of their authority. They have only to be determined by things to which they cannot be strangers, and by facts that are obvious to sense. They can tell when a person has fought many battles, and been crowned with success; they are therefore very capable of electing a general. They can tell when a judge is assiduous in his office, gives general satisfaction, and has never been charged with bribery: this is sufficient for choosing a prætor. They are struck with the magnificence or riches of a fellow-citizen: no more is requisite for electing an ædile. These are facts of which they can have better information in a public forum than a monarch in his palace. But are they capable of conducting an intricate affair, of seizing and improving [12] the opportunity and critical moment of action? No; this surpasses their abilities.

Should we doubt of the people’s natural capacity, in respect to the discernment of merit, we need only cast an eye on the series of surprising elections made by the Athenians and Romans; which no one surely will attribute to hazard.

We know that, though the people of Rome assumed to themselves the right of raising plebeians to public offices, yet they never would exert this power; and though, at Athens, the magistrates were allowed, by the law of Aristides, to be elected from all the different classes of inhabitants, there never was a case, says Xenophon*, that the common people petitioned for employments which could endanger either their security or their glory.

As most citizens have sufficient abilities to choose, though unqualified to be chosen, so the people, though capable of calling others to an account for their administration, are incapable of conducting the administration themselves.

The public business must be carried on, with a certain motion, neither too quick nor too slow. But the motion of the people is always either too remiss or too violent. Sometimes, with a hundred thousand arms, they overturn all before them; and sometimes, with a hundred thousand feet, they creep like insects.

In a popular state the inhabitants are divided into certain classes. It is in the manner of making this division that great legislators have signalized themselves; and it is on this the duration and prosperity of democracy have ever depended.

Servius Tullus followed the spirit of aristocracy in the distribution of his classes. We find, in Livy, [13] and in Dionysius Halicarnasseus, in what manner he lodged the right of suffrage in the hands of the principal citizens. He had divided the people of Rome into a hundred and ninety-three centuries, which formed six classes; and, ranking the rich, who were in smaller numbers, in the first centuries; and those in middling circumstances, who were more numerous, in the next, he flung the indigent multitude into the last; and, as each century had but one vote*, it was property rather than numbers that decided the elections.

Solon divided the people of Athens into four classes. In this he was directed by the spirit of democracy, his intention not being to fix those who were to choose, but such as were eligible: therefore, leaving to every citizen the right of election, he made the judges eligible from each of those four classes; but the magistrates he ordered to be chosen only out of the first three, consisting of persons of easy fortunes.

As the division of those who have a right of suffrage is a fundamental law in republics, the manner also of giving this suffrage is another fundamental.

The suffrage by lot is natural to democracy, as that by choice is to aristocracy.

The suffrage by lot is a method of electing that offends no one; but animates each citizen with the pleasing hope of serving his country.

Yet, as this method is in itself defective, it has been the endeavour of the most eminent legislators to regulate and amend it.


Solon made a law, at Athens, that military employments should be conferred by choice; but that senators and judges should be elected by lot.

The same legislator ordained, that civil magistracies attended with great expence should be given by choice, and the others by lot.

In order, however, to amend the suffrage by lot, he made a rule, that none but those who presented themselves should be elected; that the person elected should be examined by judges,* and that every one should have a right to accuse him if he were unworthy of the office: this participated at the same time of the suffrage by lot, and of that by choice. When the time of their magistracy was expired, they were obliged to submit to another judgement in regard to their conduct. Persons utterly unqualified must have been extremely backward in giving in their names to be drawn by lot.

The law which determines the manner of giving suffrage is likewise fundamental in a democracy. It is a question of some importance, whether the suffrages ought to be public or secret. Cicero observes, that the laws which rendered them secret, towards the close of the republic, were the cause of its decline. But, as this is differently practised in different republics, I shall offer here my thoughts concerning this subject.

The people’s suffrages ought doubtless to be public§; and this should be considered as a fundamental [15] law of democracy. The lower class ought to be directed by those of higher rank, and restrained within bounds by the gravity of eminent personages. Hence, by rendering the suffrages secret in the Roman republic, all was lost: it was no longer possible to direct a populace that sought its own destruction. But, when the body of the nobles are to vote in an aristocracy,* or in a democracy the senate, as the business is then only to prevent intrigues, the suffrages cannot be too secret.

Intriguing in a senate is dangerous: dangerous it is also in a body of nobles; but not so in the people, whose nature is to act through passion. In countries where they have no share in the government, we often see them as much inflamed on the account of an actor, as ever they could be for the welfare of the state. The misfortune of a republic is, when intrigues are at an end; which happens when the people are gained by bribery and corruption: in this case they grow indifferent to public affairs, and avarice becomes their predominant passion. Unconcerned about the government and every thing belonging to it, they quietly wait for their hire.

It is likewise a fundamental law, in democracies, that the people should have the sole power to enact laws. And yet there are a thousand occasions on which it is necessary the senate should have a power of decreeing: nay, it is frequently proper to make some trial of a law before it is established. The constitutions of Rome and Athens were excellent. The decrees of the senate had the force of laws for the [16] space of a year, but did not become perpetual till they were ratified by the consent of the people.

CHAP. III.: Of the Laws relative to the Nature of Aristocracy.

IN an aristocracy the supreme power is lodged in the hands of a certain number of persons. These are invested both with the legislative and executive authority; and the rest of the people are, in respect to them, the same as the subjects of a monarchy in regard to the sovereign.

They do not vote here by lot; for this would be productive of inconveniencies only. And indeed, in a government where the most mortifying distinctions are already established, though they were to be chosen by lot, still they would not cease to be odious: it is the nobleman they envy, and not the magistrate.

When the nobility are numerous, there must be a senate to regulate the affairs which the body of nobles are incapable of deciding, and to prepare others for their decision. In this case it may be said, that the aristocracy is in some measure in the senate, the democracy in the body of the nobles, and the people are a cypher.

It would be a very happy thing, in an aristocracy, if the people, in some measure, could be raised from their state of annihilation. Thus, at Genoa, the bank of St. George being administered by the people* gives them a certain influence in the government, from whence their whole prosperity is derived.

The senators ought by no means to have a right of naming their own members; for this would be [17] the only way to perpetuate abuses. At Rome, which in its early years was a kind of aristocracy, the senate did not fill up the vacant places in their own body: the new members were nominated by the* censors.

In a republic, the sudden rise of a private citizen to exorbitant power produces monarchy, or something more than monarchy. In the latter, the laws have provided for, or in some measure adapted themselves to, the constitution; and the principle of government checks the monarch: but, in a republic, where a private citizen has obtained an exorbitant power, the abuse of this power is much greater, because the laws foresaw it not, and consequently made no provision against it.

There is an exception to this rule, when the constitution is such as to have immediate need of a magistrate invested with an exorbitant power. Such was Rome with her dictators; such is Venice with her state-inquisitors: these are formidable magistrates, who restore, as it were by violence, the state to its liberty. But how comes it that these magistracies are so very different in these two republics? It is because Rome supported the remains of her aristocracy against the people; whereas Venice employs her state-inquisitors to maintain her aristocracy against the nobles. The consequence was, that at Rome the dictatorship could be only of a short duration, as the people act through passion, and not with design. It was necessary that a magistracy of this kind should be exercised with lustre and pomp; the business being to intimidate, and not to punish, the multitude. It was also proper that the dictator should be created only for some particular affair, [18] and for this only should have an unlimited authority, as he was always created upon some sudden emergency. On the contrary, at Venice they have occasion for a permanent magistracy; for here it is that schemes may be set on foot, continued, suspended, and resumed; that the ambition of a single person becomes that of a family, and the ambition of one family that of many. They have occasion for a secret magistracy, the crimes they punish being hatched in secrecy and silence. This magistracy must have a general inquisition; for their business is not to remedy known disorders, but to prevent the unknown. In a word, the latter is designed to punish suspected crimes; whereas the former used rather menaces than punishment, even for crimes that were openly avowed.

In all magistracies the greatness of the power must be compensated by the brevity of the duration. This most legislators have fixed to a year: a longer space would be dangerous, and a shorter would be contrary to the nature of government; for who is it that, in the management even of his domestic affairs, would be thus confined? At Ragusa* the chief magistrate of the republic is changed every month, the other officers every week, and the governor of the castle every day. But this can take place only in a small republic environed by formidable powers, who might easily corrupt such petty and insignificant magistrates.

The best aristocracy is that in which those who have no share in the legislature are so few and inconsiderable, that the governing party have no interest in oppressing them. Thus, when Antipater made a law at Athens, that whosoever was not worth [19] two thousand drachms should have no power to vote, he formed, by this method, the best aristocracy possible; because this was so small a sum, as excluded very few, and not one of any rank or consideration in the city.

Aristocratical families ought, therefore, as much as possible, to level themselves, in appearance, with the people. The more an aristocracy borders on democracy, the nearer it approaches to perfection; and, in proportion as it draws towards monarchy, the more it is imperfect.

But the most imperfect of all is that in which the part of the people that obeys is in a state of civil servitude to those who command; as the aristocracy of Poland, where the peasants are slaves to the nobility.

CHAP. IV.: Of the Relation of Laws to the Nature of monarchical Government.

THE intermediate, subordinate, and dependent powers constitute the nature of monarchical government; I mean of that in which a single person governs by fundamental laws. I said, the intermediate, subordinate, and dependent powers: and indeed, in monarchies, the prince is the source of all power, political and civil. These fundamental laws necessarily suppose the intermediate channels through which the power flows; for, if there be only the momentary and capricious will of a single person to govern the state, nothing can be fixed, and of course there is no fundamental law.

The most natural intermediate and subordinate power is that of the nobility. This, in some measure, seems to be essential to a monarchy, whose [20] fundamental maxim is, No monarch, no nobility; no nobility, no monarch: but there may be a despotic prince.

There are men who have endeavoured, in some countries in Europe, to suppress the jurisdiction of the nobility; not perceiving that they were driving at the very thing that was done by the parliament of England. Abolish the privileges of the lords, the clergy, and cities, in a monarchy, and you will soon have a popular state, or else a despotic government.

The courts of a considerable kingdom in Europe have, for many ages, been striking at the patrimonial jurisdiction of the lords and clergy. We do not pretend to censure these sage magistrates; but we leave it to the public to judge how far this may alter the constitution.

Far am I from being prejudiced in favour of the privileges of the clergy; however, I should be glad their jurisdiction were once fixed. The question is not, whether their jurisdiction was justly established; but, whether it be really established; whether it constitutes a part of the laws of the country, and is in every respect relative to those laws; whether, between two powers acknowledged independent, the conditions ought not to be reciprocal; and whether it be not equally the duty of a good subject to defend the prerogative of the prince, and to maintain the limits which from time immemorial he has prescribed to his authority.

Though the ecclesiastic power be so dangerous in a republic, yet it is extremely proper in a monarchy, especially of the absolute kind. What would become of Spain and Portugal, since the subversion of their laws, were it not for this only barrier against the incursions of arbitrary power? a barrier ever [21] useful when there is no other: for, since a despotic government is productive of the most dreadful calamities to human nature, the very evil that restrains it is beneficial to the subject.

In the same manner as the ocean, threatening to overflow the whole earth, is stopped by weeds and pebbles, that lie scattered along the shore; so monarchs, whose power seems unbounded, are restrained by the smallest obstacles, and suffer their natural pride to be subdued by supplication and prayer.

The English, to favour their liberty, have abolished all the intermediate powers of which their monarchy was composed. They have a great deal of reason to be jealous of this liberty: were they ever to be so unhappy as to lose it, they would be one of the most servile nations upon earth.

Mr. Law, through ignorance both of a republican and monarchical constitution, was one of the greatest promoters of absolute power ever known in Europe. Besides the violent and extraordinary changes owing to his direction, he would fain suppress all the intermediate ranks, and abolish the political communities. He was dissolving* the monarchy by his chimerical reimbursements, and seemed as if he even wanted to redeem the constitution.

It is not enough to have intermediate powers in a monarchy; there must be also a depositary of the laws. This depositary can only be the judges of the supreme courts of justice, who promulge the new laws, and revive the obsolete. The natural ignorance of the nobility, their indolence, and contempt of civil government, require there should be [22] a body invested with a power of reviving and executing the laws, which would be otherwise buried in oblivion. The prince’s council are not a proper depositary: they are naturally the depositary of the momentary will of the prince, and not of the fundamental laws. Besides, the prince’s council is continually changing; it is neither permanent nor numerous; neither has it a sufficient share of the confidence of the people; consequently it is incapable to set them right in difficult conjunctures, or to reduce them to proper obedience.

Despotic governments, where there are no fundamental laws, have no such kind of depositary. Hence it is that religion has generally so much influence in those countries, because it forms a kind of permanent depositary; and, if this cannot be said of religion, it may of the customs that are respected instead of laws.

CHAP. V.: Of the Laws relative to the Nature of a despotic Government.

FROM the nature of despotic power it follows, that the single person, invested with this power, commits the execution of it also to a single person. A man, whom his senses continually inform that he himself is every thing, and his subjects nothing, is naturally lazy, voluptuous, and ignorant. In consequence of this, he neglects the management of public affairs. But, were he to commit the administration to many, there would be continual disputes among them; each would form intrigues to be his first slave, and he would be obliged to take the reins into his own hands. It is, therefore, more [23] natural for him to resign it to a vizir,* and to invest him with the same power as himself. The creation of a vizir is a fundamental law of this government.

It is related of a pope, that he had started an infinite number of difficulties against his election, from a thorough conviction of his incapacity. At length he was prevailed on to accept of the pontificate, and resigned the administration entirely to his nephew. He was soon struck with surprize, and said, “I should never have thought that these things were so easy.” The same may be said of the princes of the East, who, being educated in a prison, where eunuchs corrupt their hearts and debase their understandings, and where they are frequently kept ignorant of their high rank, when drawn forth in order to be placed on the throne, they are at first confounded; but, as soon as they have chosen a vizir, and abandoned themselves in their seraglio to the most brutal passions, pursuing, in the midst of a prostituted court, every capricious extravagance, they could never have dreamt to find matters so easy.

The more extensive the empire, the larger the seraglio; and consequently the more voluptuous the prince. Hence the more nations such a sovereign has to rule, the less he attends to the cares of government; the more important his affairs, the less he makes them the subject of his deliberations.


CHAP. I.: Difference between the Nature and Principle of Government.

AFTER having examined the laws relative to the nature of each government, we must investigate those which relate to its principle.

There is this difference between* the nature and principle of government, that the former is that by which it is constituted, and the latter that by which it is made to act. One is its particular structure, and the other the human passions which set it in motion.

Now, laws ought to be no less relative to the principle, than to the nature, of each government. We must therefore enquire into this principle, which shall be the subject of this third book.

CHAP. II.: Of the Principle of different Governments.

I have already observed, that it is the nature of a republican government, that either the collective body of the people or particular families should be possessed of the supreme power: of a monarchy, that the prince should have this power, but, in the execution of it, should be directed by established laws: of a despotic government, that a single person should rule according to his own will and caprice. This enables me to discover their three principles, which [25] are naturally derived from thence. I shall begin with a republican government, and in particular with that of democracy.

CHAP. III.: Of the Principle of Democracy.

THERE is no great share of probity necessary to support a monarchical or despotic government: the force of laws, in one, and the prince’s arm, in the other, are sufficient to direct and maintain the whole: but, in a popular state, one spring more is necessary, namely, virtue.

What I have here advanced is confirmed by the unanimous testimony of historians, and is extremely agreeable to the nature of things. For, it is clear, that, in a monarchy, where he, who commands the execution of the laws, generally thinks himself above them, there is less need of virtue than in a popular government, where the person, entrusted with the execution of the laws, is sensible of his being subject to their direction.

Clear it is, also, that a monarch, who, through bad advice or indolence, ceases to enforce the execution of the laws, may easily repair the evil; he has only to follow other advice, or to shake off this indolence. But when, in a popular government, there is a suspension of the laws, (as this can proceed only from the corruption of the republic,) the state is certainly undone.

A very droll spectacle it was, in the last century, to behold the impotent efforts of the English towards the establishment of democracy. As they, who had a share in the direction of public affairs, were void of virtue; as their ambition was enflamed by [26] the success of the most daring of their members; as the prevailing parties were successively animated by the spirit of faction; the government was continually changing; the people, amazed at so many revolutions, in vain attempted to erect a commonwealth. At length, when the country had undergone the most violent shocks, they were obliged to have recourse to the very government which they had so wantonly proscribed.

When Sylla thought of restoring Rome to her liberty, this unhappy city was incapable of that blessing. She had only the feeble remains of virtue, which were continually diminishing: instead of being roused out of her lethargy by Cæsar, Tiberius, Caius, Claudius, Nero, Domitian, she riveted every day her chains; if she struck some blows, her aim was at the tyrant, but not at the usurpation.

The politic Greeks, who lived under a popular government, knew no other support than virtue: the modern inhabitants of that country are entirely taken up with manufacture, commerce, finances, opulence, and luxury.

When virtue is banished, ambition invades the minds of those who are disposed to receive it, and avarice possesses the whole community. The objects of their desires are changed; what they were fond of before is become indifferent; they were free while under the restraint of laws, but they would fain now be free to act against law; and, as each citizen is like a slave who has run away from his master, what was a maxim of equity, he calls rigour; what was a rule of action, he stiles constraint; and to precaution he gives the name of fear. Frugality, and not the thirst of gain, now passes for avarice. Formerly, the wealth of individuals constituted the public treasure, [27] but now this is become the patrimony of private persons. The members of the commonwealth riot on the public spoils, and its strength is only the power of a few and the licentiousness of many.

Athens was possessed of the same number of forces, when she triumphed so gloriously, and when, with so much infamy, she was inslaved. She had twenty thousand citizens§ when she defended the Greeks against the Persians, when she contended for empire with Sparta, and invaded Sicily. She had twenty thousand when Demetrius Phalereus numbered them*, as slaves are told by the head in a market-place. When Philip attempted to lord it over Greece, and appeared at the gates of Athens, she had even then lost nothing but time. We may see, in Demosthenes, how difficult it was to awake her: she dreaded Philip, not as the enemy of her liberty, but of her pleasures. This famous city, which had withstood so many defeats, and, after having been so often destroyed, had as often risen out of her ashes, was overthrown at Chæronea, and, at one blow, deprived of all hopes of resource. What does it avail her, that Philip sends back her prisoners, if he does not return her men? It was ever after as easy to triumph over the Athenian forces as it had been difficult to subdue her virtue.

How was it possible for Carthage to maintain her ground? When Hannibal, upon his being made prætor, endeavoured to hinder the magistrates from plundering the republic, did not they complain of him to the Romans? Wretches, who would fain be citizens without a city, and beholden for their [28] riches to their very destroyers! Rome soon insisted upon having three hundred of their principal citizens as hostages; she obliged them next to surrender their arms and ships; and then she declared war. From the desperate efforts of this defenceless city, one may judge of what she might have performed in her full vigour, and assisted by virtue.

CHAP. IV.: Of the Principle of Aristocracy.

AS virtue is necessary in a popular government, it is requisite, also, under an aristocracy. True it is, that, in the latter, it is not so absolutely requisite.

The people, who, in respect to the nobility, are the same as the subjects with regard to a monarch, are restrained by their laws: they have, therefore, less occasion for virtue than the people in a democracy. But how are the nobility to be restrained? They, who are to execute the laws against their colleagues, will immediately perceive they are acting against themselves. Virtue is, therefore, necessary in this body, from the very nature of the constitution.

An aristocratical government has an inherent vigour, unknown to democracy. The nobles form a body, who, by their prerogative, and for their own particular interest, restrain the people; it is sufficient, that there are laws in being, to see them executed.

But, easy as it may be for the body of the nobles to restrain the people, it is difficult to restrain themselves*. Such is the nature of this constitution, that it seems to subject the very same persons to the power [29] of the laws, and, at the same time, to exempt them.

Now, such a body as this can restrain itself only two ways; either by a very eminent virtue, which puts the nobility, in some measure, on a level with the people, and may be the means of forming a great republic; or by an inferior virtue, which puts them, at least, upon a level with one another; and on this their preservation depends.

Moderation is, therefore, the very soul of this government; a moderation, I mean, founded on virtue, not that which proceeds from indolence and pusillanimity.

CHAP. V.: That Virtue is not the Principle of a monarchical Government.

IN monarchies, policy effects great things with as little virtue as possible. Thus, in the nicest machines, art has reduced the number of movements, springs, and wheels.

The state subsists independently of the love of our country, of the thirst of true glory, of self-denial, of the sacrifice of our dearest interests, and of all those heroic virtues which we admire in the ancients, and to us are known only by story.

The laws supply here the place of those virtues; they are by no means wanted, and the state dispenses with them: an action, performed here in secret, is, in some measure, of no consequence.

Though all crimes be, in their own nature, public, yet there is a distinction between crimes really public and those that are private, which are so called, because they are more injurious to individuals than to the community.


Now, in republics, private crimes are more public; that is, they attack the constitution more than they do individuals: and, in monarchies, public crimes are more private; that is, they are more prejudicial to private people than to the constitution.

I beg that no one will be offended with what I have been saying; my observations are founded on the unanimous testimony of historians. I am not ignorant that virtuous princes are no such very rare instances; but I venture to affirm, that, in a monarchy, it is extremely difficult for the people to be virtuous*.

Let us compare what the historians of all ages have asserted concerning the courts of monarchs; let us recollect the conversations and sentiments of people of all countries in respect to the wretched character of courtiers; and we shall find, that these are not airy speculations, but truths, confirmed by a sad and melancholy experience.

Ambition in idleness, meanness mixed with pride, a desire of riches without industry, aversion to truth, flattery, perfidy, violation of engagements, contempt of civil duties, fear of the prince’s virtue, hope from his weakness, but, above all, a perpetual ridicule cast upon virtue, are, I think, the characteristics by which most courtiers, in all ages and countries, have been constantly distinguished. Now, it is exceeding difficult for the leading men of the nation to be knaves, and the inferior sort to be honest; for the former to be cheats, and the latter to rest satisfied with being only dupes.

But, if there should chance to be some unlucky honest man among the people, cardinal Richelieu, in his political testament, seems to hint that a prince [31] should take care not to employ him. So true is it, that virtue is not the spring of this government. It is not, indeed, excluded, but it is not the spring of government.

CHAP. VI.: In what Manner Virtue is supplied in a monarchical Government.

BUT it is high time for me to have done with this subject, lest I should be suspected of writing a satire against monarchical government. Far be it from me; if monarchy wants one spring, it is provided with another. Honour, that is, the prejudice of every person and rank, supplieth the place of the political virtue of which I have been speaking, and is every where her representative: here it is capable of inspiring the most glorious actions, and, joined with the force of laws, may lead us to the end of government as well as virtue itself.

Hence, in well-regulated monarchies, they are almost all good subjects, and very few good men; for, to be a good man, a good intention is necessary*, and we should love our country not so much on our own account as out of regard to the community.

CHAP. VII.: Of the Principle of Monarchy.

A monarchical government supposeth, as we have already observed, pre-eminences and ranks, as likewise a noble descent. Now, since it is the nature of [32] honour to aspire to preferments and titles, it is properly placed in this government.

Ambition is pernicious in a republic; but in a monarchy it has some good effects; it gives life to the government, and is attended with this advantage, that it is no way dangerous, because it may be continually checked.

It is with this kind of government as with the system of the universe, in which there is a power that constantly repels all bodies from the center, and a power of gravitation, that attracts them to it. Honour sets all the parts of the body politic in motion, and, by its very action, connects them; thus each individual advances the public good, while he only thinks of promoting his own interest.

True it is, that, philosophically speaking, it is a false honour which moves all the parts of the government; but even this false honour is as useful to the public as true honour could possibly be to private people.

Is it not a very great point, to oblige men to perform the most difficult actions, such as require an extraordinary exertion of fortitude and resolution, without any other recompence than that of glory and applause?

CHAP. VIII.: That Honour is not the Principle of despotic Government.

HONOUR is far from being the principle of despotic government: mankind being here all upon a level, no one person can prefer himself to another; and as, on the other hand, they are all slaves, they can give themselves no sort of preference.

Besides, as honour has its laws and rules; as it knows not how to submit; as it depends, in a great [33] measure, on a man’s own caprice, and not on that of another person; it can be found only in countries in which the constitution is fixed, and where they are governed by settled laws.

How can despotism bear with honour? This glories in the contempt of life, and that is founded in the power of taking it away. How can honour, on the other hand, bear with despotism? The former has its fixed rules and peculiar caprices, but the latter is directed by no rule, and its own caprices are subversive of all others.

Honour, therefore, a thing unknown in arbitrary governments, some of which have not even a proper word to express it*, is the prevailing principle in monarchies; here it gives life to the whole body politic, to the laws, and even to the virtues themselves.

CHAP. IX.: Of the Principle of despotic Government.

AS virtue is necessary in a republic, and, in a monarchy, honour, so fear is necessary in a despotic government: with regard to virtue, there is no occasion for it, and honour would be extremely dangerous.

Here, the immense power of the prince is devolved intirely upon those whom he is pleased to intrust with the administration. Persons, capable of setting a value upon themselves, would be likely to create disturbances. Fear must, therefore, depress their spirits, and extinguish even the least sense of ambition.

A moderate government may, whenever it pleases, and without the least danger, relax its springs: it supports itself by the laws and by its own internal strength. But, when a despotic prince ceases one single moment to lift up his arm, when he cannot [34] instantly demolish those whom he has intrusted with the first employments, all is over: for, as fear, the spring of this government, no longer subsists, the people are left without a protector.

It is probably in this sense the Cadis maintained that the Grand Seignior was not obliged to keep his word or oath, when he limited thereby his authority.

It is necessary that the people should be judged by laws, and the great men by the caprice of the prince; that the lives of the lowest subjects should be safe, and the bashaw’s head ever in danger. We cannot mention these monstrous governments without horror. The Sophi of Persia, dethroned, in our days, by Mahomet, the son of Miriveis, saw the constitution subverted, before this revolution, because he had been too sparing of blood*.

History informs us, that the horrid cruelties of Domitian struck such a terror into the governors, that the people recovered themselves a little under his reign§. Thus a torrent overflows one side of a country, and, on the other, leaves fields untouched, where the eye is refreshed by the prospect of fine meadows.

CHAP. X.: Difference of Obedience in moderate and despotic Governments.

IN despotic states, the nature of government requires the most passive obedience; and, when once the prince’s will is made known, it ought infallibly to produce its effect.


Here they have no limitations or restrictions; no mediums, terms, equivalents, or remonstrances; no change to propose: man is a creature that blindly submits to the absolute will of the sovereign.

In a country like this, they are no more allowed to represent their apprehensions of a future danger than to impute their miscarriage to the capriciousness of fortune. Man’s portion here, like that of beasts, is instinct, compliance, and punishment.

Little does it then avail to plead the sentiments of nature, filial respect, conjugal or parental tenderness, the laws of honour, or want of health; the order is given, and that is sufficient.

In Persia, when the king has condemned a person, it is no longer lawful to mention his name or to intercede in his favour. Even if the prince were intoxicated, or non compos, the decree must be executed*; otherwise he would contradict himself, and the law admits of no contradiction. This has been the way of thinking in that country in all ages: as the order, which Ahasuerus gave, to exterminate the Jews, could not be revoked, they were allowed the liberty of defending themselves.

One thing, however, may be sometimes opposed to the prince’s will§, namely, religion. They will abandon, nay, they will slay, a parent, if the prince so commands, but he cannot oblige them to drink wine. The laws of religion are of a superior nature, because they bind the sovereign as well as the subject. But, with respect to the law of nature, it is otherwise; the prince is no longer supposed to be a man.

In monarchical and moderate states, the power is limited by its very spring, I mean, by honour, which, like a monarch, reigns over the prince and his people. [36] They will not alledge to their sovereign, the laws of religion; a courtier would be apprehensive of rendering himself ridiculous. But the laws of honour will be appealed to on all occasions. Hence arise the restrictions necessary to obedience: honour is naturally subject to whims, by which the subject’s submission will be ever directed.

Though the manner of obeying be different, in these two kinds of government, the power is the same. On which side soever the monarch turns, he inclines the scale, and is obeyed. The whole difference is, that, in a monarchy, the prince receives instruction, at the same time that his ministers have greater abilities, and are more versed in public affairs, than the ministers of a despotic government.

CHAP. XI.: Reflections on the preceding Chapters.

SUCH are the principles of the three sorts of government: which does not imply, that, in a particular republic, they actually are, but that they ought to be, virtuous: nor does it prove, that, in a particular monarchy, they are actuated by honour; or, in a particular despotic government, by fear; but that they ought to be directed by these principles, otherwise the government is imperfect.


CHAP. I.: A general Idea.

I make a distinction between the laws that establish political liberty, as it relates to the constitution, and those by which it is established, as it relates to the citizen. The former shall be the subject of this book; the latter I shall examine in the next.

CHAP. II.: Different Significations of the Word, Liberty.

THERE is no word that admits of more various significations, and has made more different impressions on the human mind, than that of liberty. Some have taken it for a facility of deposing a person on whom they had conferred a tyrannical authority: others, for the power of choosing a superior whom they are obliged to obey; others, for the right of bearing arms, and of being thereby enabled to use violence: others, in fine, for the privilege of being governed by a native of their own country, or by their own laws.* A certain nation, for a long time, thought liberty consisted in the privilege of wearing a long beard. Some have annexed this name to one form of government exclusive [196] of others: those who had a republican taste applied it to this species of polity: those who liked a monarchical state gave it to monarchy. Thus they have all applied the name of liberty to the government most suitable to their own customs and inclinations; and as, in republics, the people have not so constant and so present a view of the causes of their misery, and as the magistrates seem to act only in conformity to the laws, hence liberty is generally said to reside in republics, and to be banished from monarchies. In fine, as in democracies the people seem to act almost as they please, this sort of government has been deemed the most free, and the power of the people has been confounded with their liberty.

CHAP. III.: In what Liberty consists.

IT is true that, in democracies, the people seem to act as they please; but political liberty does not consist in an unlimited freedom. In governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will.

We must have continually present to our minds the difference between independence and liberty. Liberty is a right of doing whatever the laws permit; and, if a citizen could do what they forbid, he would be no longer possessed of liberty, because all his fellow-citizens would have the same power.

CHAP. IV.: The same Subject continued.

DEMOCRATIC and aristocratic states are not in their own nature free. Political liberty is to be found only in moderate governments; and even in these it is not always found. It is there only when there is no abuse of power: but constant experience shews us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. Is it not strange, though true, to say, that virtue itself has need of limits?

To prevent this abuse, it is necessary, from the very nature of things, power should be a check to power. A government may be so constituted, as no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits.

CHAP. V.: Of the End or View of different Governments.

THOUGH all governments have the same general end, which is that of preservation, yet each has another particular object. Increase of dominion was the object of Rome; war, that of Sparta; religion, that of the Jewish laws; commerce, that of Marseilles; public tranquillity, that of the laws of China*; navigation, that of the laws of Rhodes; natural liberty, that of the policy of the savages; in general, the pleasures of the prince, that of despotic states; that of monarchies, the prince’s and the kingdom’s glory: the independence of individuals [198] is the end aimed at by the laws of Poland; from thence results the oppression of the whole.

One nation there is also in the world, that has, for the direct end of its constitution, political liberty. We shall presently examine the principles on which this liberty is founded: if they are sound, liberty will appear in its highest perfection.

To discover political liberty in a constitution, no great labour is requisite. If we are capable of seeing it where it exists, it is soon found, and we need not go far in search of it.

CHAP. VI.: Of the Constitution of England.

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 tranquillity 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 controul; 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 every thing, 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.

In what a situation must the poor subject be, under those republics! The same body of magistrates are possessed, as executors of the laws, of the whole [200] 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.

I allow, indeed, that the mere hereditary aristocracy of the Italian republics does not exactly answer to the despotic power of the Eastern princes. The number of magistrates sometimes moderates the power of the magistracy; the whole body of the nobles do not always concur in the same design; and different tribunals are erected, that temper each other. Thus, at Venice, the legislative power is in the council, the executive in the pregadi, and the judiciary in the quarantia. But the mischief is, that these different tribunals are composed of magistrates all belonging to the same body; which constitutes almost one and the same power.

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.

By this method, the judicial power, so terrible to mankind, not being annexed to any particular state [201] or profession, becomes, as it were, invisible. People have not then the judges continually present to their view; they fear the office, but not the magistrate.

In accusations of a deep and criminal nature, it is proper the person accused should have the privilege of choosing, in some measure, his judges, in concurrence with the law; or, at least, he should have a right to except against so great a number, that the remaining part may be deemed his own choice.

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 fixt, the judgements 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.

The judges ought likewise to be of the same rank as the accused, or, in other words, his peers; to the end, that he may not imagine he is fallen into the hands of persons inclined to treat him with rigour.

If the legislature leaves the executive power in possession of a right to imprison those subjects who can give security for their good behaviour, there is an end of liberty; unless they are taken up in order to answer, without delay, to a capital crime; in which case they are really free, being subject only to the power of the law.

But, should the legislature think itself in danger, by some secret conspiracy against the state, or by a correspondence with a foreign enemy, it might authorize the executive power, for a short and limited time, to imprison suspected persons, who, in that [202] case, would lose their liberty only for a while, to preserve it for ever.

And this is the only reasonable method that can be substituted to the tyrannical magistracy of the Ephori, and to the state inquisitors of Venice, who are also despotical.

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 by 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 neighbours 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 practised 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; [203] and, on the most urgent and pressing occasions, the wheels of government might be stopped by the caprice of a single person.

When the deputies, as Mr. Sidney well observes, represent a body of people, as in Holland, they ought to be accountable to their constituents; but it is a different thing in England, where they are deputed by boroughs.

All the inhabitants of the several districts ought to have a right of voting at the election of a representative, except such as are in so mean a situation as to be deemed to have no will of their own.

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 neighbours.

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.

In such a state, there are always persons distinguished by their birth, riches, or honours: but, were they to be confounded with the common people, and to have only the weight of a single vote, like the rest, the common liberty would be their slavery, and they would have no interest in supporting it, as most of the popular resolutions would be against them. The share they have, therefore, in the legislature ought to [204] be proportioned to their other advantages in the state; which happens only when they form a body that has a right to check the licentiousness of the people, as the people have a right to oppose any encroachment of theirs.

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 abovementioned, 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 body of the nobility ought to be hereditary. In the first place, it is so in its own nature; and, in the next, there must be a considerable interest to preserve its privileges: privileges, that, in themselves, are obnoxious to popular envy, and of course, in a free state, are always in danger.

But, as an hereditary power might be tempted to pursue its own particular interests, and forget those of the people, it is proper, that, where a singular advantage may be gained by corrupting the nobility, as in the laws relating to the supplies, they should have no other share in the legislation than the power of rejecting, and not that of resolving.

By the power of resolving, I mean, the right of ordaining by their own authority, or of amending what has been ordained by others. By the power of rejecting, I would be understood to mean, the right of annulling a resolution taken by another; which was the power of the tribunes at Rome. And, though the person possessed of the privilege of rejecting may likewise have the right of approving, yet this approbation [205] passes for no more than a declaration that he intends to make no use of his privilege of rejecting, and is derived from that very privilege.

The executive power ought to be in the hands of a monarch, because this branch of government, having need of dispatch, is better administered by one than by 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 be always able to possess, a share in both.

Were the legislative body to be a considerable time without meeting, this would likewise put an end to liberty. For, of two things, one would naturally follow; either that there would be no longer any legislative resolutions, and then the state would fall into anarchy; or that these resolutions would be taken by the executive power, which would render it absolute.

It would be needless for the legislative body to continue always assembled. This would be troublesome to the representative, and moreover would cut out too much work for the executive power, so as to take off its attention to its office, and oblige it to think only of defending its own prerogatives and the right it has to execute.

Again, were the legislative body to be always assembled, it might happen to be kept up only by filling the places of the deceased members with new representatives; and, in that case, if the legislative body were once corrupted, the evil would be past all [206] remedy. When different legislative bodies succeed one another, the people, who have a bad opinion of that which is actually sitting, may reasonably entertain some hopes of the next: but, were it to be always the same body, the people, upon seeing it once corrupted, would no longer expect any good from its laws; and, of course, they would either become desperate or fall into a state of indolence.

The legislative body should not meet of itself. For a body is supposed to have no will but when it is met: and besides, were it not to meet unanimously, it would be impossible to determine which was really the legislative body, the part assembled, or the other. And, if it had a right to prorogue itself, it might happen never to be prorogued; which would be extremely dangerous, in case it should ever attempt to encroach on the executive power. Besides, there are seasons (some more proper than others) for assembling the legislative body: it is fit, therefore, that the executive power should regulate the time of meeting, as well as the duration, of those assemblies, according to the circumstances and exigences of a state, known to itself.

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, [207] but likewise to the executive part of government; which was attended with infinite mischiefs.

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 the Ephori gave no account of their administration.

But, whatever may be the issue of that examination, the legislative body ought not to have a power of arraigning the person, nor, of course, the conduct, of him who is entrusted with the executive power. His person should be sacred, because, as it is necessary, for the good of the state, to prevent the legislative body from rendering themselves arbitrary, the moment he is accused or tried there is an end of liberty.

In this case, the state would be no longer a monarchy, but a kind of republic, though not a free government. But, as the person, intrusted with the executive power, cannot abuse it without bad counsellors, and such as hate the laws as ministers, though the laws protect them, as subjects these men may be examined and punished: an advantage which this government has over that of Gnidus, where the law allowed of no such thing as calling the Amymones* to an account, even after their administration; and therefore the people could never obtain any satisfaction for the injuries done them.

Though, in general, the judiciary power ought not to be united with any part of the legislative, yet [208] this is liable to three exceptions, founded on the particular interest of the party accused.

The great are always obnoxious to popular envy; and, were they to be judged by the people, they might be in danger from their judges, and would moreover be deprived of the privilege, which the meanest subject is possessed of in a free state, of being tried by his peers. The nobility, for this reason, ought not to be cited before the ordinary courts of judicature, but before that part of the legislature which is composed of their own body.

It is possible that the law, which is clear-sighted in one sense, and blind in another, might, in some cases, be too severe. But, as we have already observed, the national judges are no more than the mouth that pronounces the words of the law, mere passive beings, incapable of moderating either its force or rigour. That part, therefore, of the legislative body, which we have just now observed to be a necessary tribunal on another occasion, is also a necessary tribunal in this: it belongs to its supreme authority to moderate the law in favour of the law itself, by mitigating the sentence.

It might also happen, that a subject, intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of crimes which the ordinary magistrates either could not, or would not, punish. But, in general, the legislative power cannot try causes; and much less can it try this particular case, where it represents the party aggrieved, which is the people. It can only, therefore, impeach. But before what court shall it bring its impeachment? Must it go and demean itself before the ordinary tribunals, which are its inferiors, and, being composed moreover of men who are chosen from the people as well as itself, will naturally [209] be swayed by the authority of so powerful an accuser? No: in order to preserve the dignity of the people and the security of the subject, the legislative part which represents the people must bring in its charge before the legislative part which represents the nobility, who have neither the same interests nor the same passions.

Here is an advantage which this government has over most of the ancient republics where this abuse prevailed, that the people were at the same time both judge and accuser.

The executive power, pursuant to 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 entrusted 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 legislative.

These three powers should naturally form a state of repose or inaction: but, as there is a necessity for [210] movement in the course of human affairs, they are forced to move, but still in concert.

As the executive power has no other part in the legislative than the privilege of rejecting, it can have no share in the public debates. It is not even necessary that it should propose; because, as it may always disapprove of the resolutions that shall be taken, it may likewise reject the decisions on those proposals which were made against its will.

In some ancient commonwealths, where public debates were carried on by the people in a body, it was natural for the executive power to propose and debate in conjunction with the people; otherwise their resolutions must have been attended with a strange confusion.

Were the executive power to determine the raising of public money otherwise than by giving its confent, liberty would be at an end; because it would become legislative in the most important point of legislation.

If the legislative power were to settle the subsidies, not from year to year, but for ever, it would run the risk of losing its liberty, because the executive power would be no longer dependent; and, when once it was possessed of such a perpetual right, it would be a matter of indifference whether it held it of itself or of another. The same may be said if it should come to a resolution of intrusting, not an annual, but a perpetual, command of the fleets and armies to the executive power.

To prevent the executive power from being able to oppress, it is requisite that the armies with which it is intrusted should consist of the people, and have the same spirit as the people, as was the case at Rome till the time of Marius. To obtain this end, there are only two ways; either that the persons [211] employed in the army should have sufficient property to answer for their conduct to their fellow-subjects, and be enlisted only for a year, as was customary at Rome; or, if there should be a standing-army composed chiefly of the most despicable part of the nation, the legislative power should have a right to disband them as soon as it pleased; the soldiers should live in common with the rest of the people; and no separate camp, barracks, or fortress, should be suffered.

When once an army is established, it ought not to depend immediately on the legislative, but on the executive, power; and this from the very nature of the thing, its business consisting more in action than deliberation.

It is natural for mankind to set a higher value upon courage than timidity, on activity than prudence, on strength than counsel. Hence the army will ever despise a senate, and respect their own officers: they will naturally slight the orders sent them by a body of men whom they look upon as cowards, and therefore unworthy to command them: so that, as soon as the troops depend entirely on the legislative body, it becomes a military government; and, if the contrary has ever happened, it has been owing to some extraordinary circumstances. It is because the army was always kept divided; it is because it was composed of several bodies, that depended each on a particular province; it is because the capital towns were strong places, defended by their natural situation, and not garrisoned with regular troops. Holland, for instance, is still safer than Venice; she might drown or starve the revolted troops; for, as they are not quartered in towns capable of furnishing them with necessary subsistence, this subsistence is of course precarious.


In perusing the admirable treatise of Tacitus on the manners of the Germans,* we find it is from that nation the English have borrowed the idea of their political government. This beautiful system was invented first in the woods.

As all human things have an end, the state we are speaking of will lose its liberty, will perish. Have not Rome, Sparta, and Carthage, perished? It will perish when the legislative power shall be more corrupt than the executive.

It is not my business to examine whether the English actually enjoy this liberty, or not. Sufficient it is for my purpose to observe, that it is established by their laws; and I inquire no farther.

Neither do I pretend by this to undervalue other governments, nor to say that this extreme political liberty ought to give uneasiness to those who have only a moderate share of it. How should I have any such design; I who think that even the highest refinement of reason is not always desirable, and that mankind generally find their account better in mediums than in extremes?

Harrington, in his Oceana, has also enquired into the utmost degree of liberty to which the constitution of a state may be carried. But, of him, indeed, it may be said, that, for want of knowing the nature of real liberty, he busied himself in pursuit of an imaginary one; and that he built a Chalcedon, though he had a Byzantium before his eyes.


Political Science 601: Political Theory of the American Revolution Copyright © 2017 by John Zumbrunnen. All Rights Reserved.

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