SOURCE: Cohler, Anne M. “Liberty.” In Montesquieu's Comparative Politics and the Spirit of American Constitutionalism, pp. 98-119. Lawrence: University Press of Kansas, 1988.

[In this excerpt from her study of Montesquieu's influence on American politics, Cohler relates Montesquieu's idea of liberty to the structure of the American federal government and the doctrine of the separation of powers. Cohler also emphasizes Montesquieu's belief that not all citizens were equally able to possess liberty, noting his aristocratic sympathies.]

We have been taught that political liberty, as the end of political life, is a result of the view that men are by nature equal and that this equality gives them the same rights to life, to liberty, and to the pursuit of the ends implied by liberty, whether those ends are expressed in terms of property or of happiness. Governments are instituted to keep these human entities from bumping into each other unduly—to protect each person's liberty. But we also believe that efforts which the legislature, the executive, or the judiciary make in order to ignore, by-pass, or corrupt the other two powers are signs of despotism and tyranny. Liberty here is understood as the result of a process in which government is divided, shared, and balanced, in which governmental power is not exercised directly by one agent or political body. The relation between these two views of liberty vexes American politics. Here we are in a position to look at a relatively pure case of the argument for liberty as a consequence of divided and balanced governmental arrangements: namely, Montesquieu's discussion of the English government and of its advantages and disadvantages. Montesquieu offers us, not a variation on the argument from natural right, but an example of a government whose end, he says, is political liberty alone, a government that does not identify liberty with the liberty to pursue some particular end, such as expansion, war, religion, the laws, commerce, public tranquility, navigation, natural liberty, the delights of the prince, the glory of the prince, or the independence of each individual (11.5).

Before proceeding to examine his discussion of a free government (11.6) and of the kind of people who result from a life within such a government (19.27), we should examine briefly the differences between Hobbes and Locke and Montesquieu in their treatment of natural right. First we shall collect Montesquieu's views on natural law and natural right as they bear directly on the question of liberty in order to understand why he frames his discussion of political liberty around a government, rather than the rights of individuals. Then we shall be able to examine Montesquieu's objections to the way in which Hobbes and Locke proceeded.

Montesquieu remarks that “as all men are born equal, one must say that slavery is against nature” (15.7). He did not remark directly upon that equality in his discussion of natural law in book 1 (1.2). The generality he implies for the natural sentiments and capacities implies equality in that these impulses are within everyone. But the recognition of those sentiments and the development of an intention that would satisfy them do not imply similarity and equality. If natural conditions are hard enough, men may need to be slaves (bk. 15), women enclosed (bk. 16), and populations subjected to despotic rule (bk. 17) in order to satisfy the conditions of their continued existence—to satisfy the natural law. But those despotic solutions use the least preferable, if most obvious and easy, solution to the needs given to people by nature. Despotism is the consequence, in Montesquieu's opinion, of measuring political life by natural equality and natural liberty.

Hobbes thought that the movement from natural to political life did not entail a new standard; rather, it entailed an organization that would better guarantee that the demands of nature would be met without moving beyond the natural purposes. According to Hobbes, men are equal in respect to their capacity to preserve themselves in nature; each has the liberty “to use his own power as he will himself, for the preservation of his own nature; that is to say, of his own life; and consequently, of doing any thing, which in his own judgment, and reason, he shall conceive to be the aptest means thereunto.”¹ The natural law, then, is a precept that sets the conditions under which that life can in fact be preserved. The peace that is the chief precept of the natural law is a consequence of the existence of a sovereign invested with the rights of all. Two clever human inventions—the natural law and the representative sovereign—serve as a machine to redirect the passions of men so that they in fact act to further their own ends. Through his analysis of despotism Montesquieu seems to say to Hobbes that he cannot see how the transition from the domain of natural right to that of natural law can be made. Cleverness is not a characteristic of natural or despotic life; despots are products of the mindless order in which they live, and they will act like everyone else, leading to lives filled with fear, want, and early death for all. The chances for preservation may be improved under despotism, but the result is a deadly peace.

Montesquieu measures political life by something other than natural equality and the liberty it implies. In book 1, chapter 2, Montesquieu moves from the ability to acquire knowledge to the desire to live in society. Social life is, then, linked to a capacity that people do not share equally. But it is in the movement from sentiments or abilities to the intentions to satisfy them that one finds the movement from the passions to Montesquieu's natural spirit, which, as we saw in chapter 3, embodies the capacity to do something, to have an intention, to act toward some end. That capacity is ordinarily expressed through a common way of life that supports and encourages a preferred activity. We have come around to the natural groupings that result from differences in terrain (bk. 18) and the ancient republics that embodied, formalized, shaped, those natural spirits. These governments were not moderate by nature. Their very virtues were in danger of being taken to excess. But there is no doubt about one's—or Montesquieu's—choice when the alternatives are either despotisms or republics. Rather, one should move to temper the particularity and ferocity of republics with some sense of common vulnerability and common life.

Another situation altogether appears if all men are thought to have the capacity to move toward God—that is, if all men are thought to have the divine spirit within themselves. Like the citizens of a republic, they must discipline their passions, but in doing so, they altogether remove themselves from any particular attachments, whether familial or political. This thought gives vitality to natural equality. The equal entities subject to natural passions in their natural liberty are also the equal subjects of a universal God. Their passions are limited to the love of God, to His image in the love of all, and their spirits are pointed toward God. And where, one might plausibly ask, is everyday political life? What has happened to the natural spirits that suggest the variety of family and political life, the particular groups within which virtually all lead their lives? If the ancients did not easily envision a common humanity, the modern Christian does not easily give way to the particularity of the political life within which our human lives are led. Unless that particularity and the limits that it implies for the ends of any government, however Christian, is acknowledged, there is a persistent danger of having governments identify their ends and spirit with that of God; this leads to the modern despotism.

Locke's difference from Hobbes has often been thought to be in the content that Locke gives to the human soul. The view is that Locke's references to Hooker and Locke's connection to the Thomistic tradition, which saw men's nature as pointing toward God, must be taken seriously. Men are not simply atoms in search of self-preservation; they are souls in search of God. Governments were to assure self-preservation and the conditions under which men could pursue the Divinity. Montesquieu, it seems to me, takes this view of Locke's intention seriously, but he suggests that Locke could move simultaneously toward both ends of men because they both imply equality and because neither of them even suggests any human ends between nature and God that political life itself might have. Then politics remains a facilitating, clever mechanism for ends beyond itself.

In Montesquieu, political liberty is not a consequence of natural right, of the autonomy of individuals in nature. Rather, the natural law that emerges as a solution to natural human sentiments and capacities implies both equality and inequality. Although all men have the sentiments and capacities, they must either be forced by despots to do the things required, or they must move toward particular solutions in particular social situations from their own spirits, which are shared by only a part of the population. In either case, the social solution is not liberty for all. When the divine law forces a greater attention to the equal right to liberty of all men because they are all equal before God, it gives, by implication, greater importance to natural equality. The importance Montesquieu gives to the egalitarian, universal characteristics of natural right is a result of circumstance—the advent of Christianity—and of the egalitarian aspects of natural right that circumstance brings to the fore. In the text he introduces his discussion of political liberty in books 11 and 12 with a discussion of international law in books 9 and 10. There, as we have previously noticed, he examines the change in international law to one in which all things that are regarded as property among men—civil liberty, goods, women, children, temples, and even sepulchers—are somehow independent of the government and are defensible even when the government loses a war. This was not true at all under the ancient republics (9.1).

Monarchies were the first governments to emerge in this new situation. They were a curious mix. They began with the rule established by barbaric tribes, which relied upon herding and warfare for their subsistence. These tribes were governed by an aristocracy of warriors, one of whom was the king. In contrast to the more settled rule and, perhaps, to the southern temperaments of the Greek and Roman republics, they did not follow an international law that denied to the defeated the potentiality for citizenship. Rather, these tribes distinguished between the spoils of war and the peace settlement. They seemed, in effect, to recognize each other's natural liberty once the warfare had come to an end. They gave no one the entire rule over another; instead, they invented overlapping jurisdictions. This also, perhaps, was a response to their natural liberty, their discomfort with being ruled by someone else. With time, a number of transformations took place in this government. When feudalism was established, the posts were given, in effect, to families, rather than to some member of the nobility. Political bodies that judged and were not simply inherited then developed. Servitude was first expanded as serfdom and then was contracted. The suggestion is that the unremitting pressure of Christian belief was against such servitude. The consequence is a government in which the offices are held by families—a feudal rather than a political government, to use Montesquieu's expressions. The end of such a government is the glory of certain individuals and families; it acts using the sense of honor, however false, of all. There is a tension between the notion of nobility and the arbitrariness of its inheritance. Honor becomes vanity as inheritance seems to mean less, and everyone has some hope of being well regarded. Rule and reputation come from above and are somehow filtered through these intermediate institutions to everyone.

Moderation is intrinsic to such governments, but their liberty is what Tocqueville was later to call aristocratic liberty. Some men have the space—the liberty—to become quite extraordinary and magnanimous, to become true gentlemen (5.12). Liberty in this context is the liberty of some, chosen by inheritance, or chance, to fill this space or to appear to fill it. These activities fill the intermediate spaces and institutions with a variety of specific, possible, yet Christian lives in government, which makes it difficult to imagine the despotism that results from identifying the Christian best, the natural, and political virtue. This despotism required a collapse of the plausibility of those noble, Christian lives—a point that Montesquieu only suggests in his discussion of vanity in France. The paths left for human action by the intermediate powers of a monarchy come to form, give shape, even give a purpose, to those actions as people move to take advantage of the possibilities that are open to them. The intermediate institutions in political life act analogously to the terrain in nature: they lead to particular political, rather than natural, lives.

Montesquieu begins his explicit discussion of liberty by asserting that liberty is ordinarily identified with the government that is consistent with one's customs or inclinations (11.2). As republics and democracies appear to follow the inclinations of their people, they have been identified with liberty, thus confusing the power of the people with their liberty. Rather, “in a state, that is, in a society where there are laws, liberty can consist only in having the power to do what one should want to do and in no way being constrained to do what one should not want to do” (11.3). That is, political liberty takes place only within laws, and those laws both indicate preferred actions and prohibit others. Liberty can also be defined as having the right to do everything that the law permits and as not having others free to do what it prohibits.² By assuming that in practice a government that prohibits also, by implication, encourages, Montesquieu denies the possibility of a government that only prohibits actions—that is, a liberal government in the strictest sense.³ What, then, is he to think of a government that has liberty as its sole end? What are to be the boundaries, the shapes, the lives of men in a government that is not directed by any end other than their liberty? England, he says, presents him with an example to examine. There are two long chapters on England—chapter 6 of book 11 and chapter 27 of book 19—and two short chapters—chapter 13 of book 14 and chapter 8 of book 20. The first long chapter takes up the governmental institutions that create and sustain English liberty; the second, the kinds of men that result from such institutions. There is a parallel here between the first and second parts of Tocqueville's Democracy in America. The short chapters take up the natural English character and English commerce. We shall now examine these chapters on England, keeping in mind that liberty, as the end for politics, raises for Montesquieu the question of exactly what the people in such a state will do with themselves and of what they will be like as a result of that activity. In the course of this examination, in order to amplify Montesquieu's understanding of English liberty, we shall also look briefly at book 12, on liberty in respect to individuals, and book 13, on taxation.

Montesquieu's understanding of English political life as a result of balanced powers of government has been both criticized and defended in respect to its historical accuracy.⁴ Montesquieu himself says that looking for liberty in England is like looking in a mirror (11.5), and he claims to speak not of English practice, but of the principles of the government. In fact, although England is mentioned in the titles of the chapters about it, England and its history are not mentioned directly. Rather, the language is abstract and is even somewhat peculiarly and awkwardly put into the conditional tense: for example, “It would be” or “It could happen that. …”

Montesquieu begins by saying that “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” (11.6). The first is the power to make laws; the second, to conduct foreign policy; and the third, or judicial, to punish crimes and judge disputes between individuals. Any rulers would have to do these things, and their acts could be considered under these headings. Montesquieu makes explicit the variety of possible sources of rulers by referring in each case to “the prince or the magistrate” (11.6).

John Locke divides political power into the legislative, the executive, and the federative. The differences between Locke's and Montesquieu's divisions of power center on the executive. Montesquieu's executive power over the civil right is judicial power because it is seen from the point of view of the punishment of individual offenders rather than from the point of view of the need to set out regulations, send out tax forms, and establish criteria for prosecution. These last tasks are those of Locke's executive. “But because the Laws, that are at once, and in a short time made, have a constant and lasting force and need a perpetual execution, or an attendance thereunto: Therefore, 'tis necessary there should be a Power always in being which should see to the Execution of the laws that are made and remain in force.”⁵ But as Montesquieu continues, his executive power seems to include Locke's executive power. For example, he calls executive power the power of “executing public resolutions”; he worries that the power to make and execute the laws should not be in the same hands; and he calls legislative power the “general will of the state” and executive power “the execution of that general will” when he asserts that they can be held by magistrates or political bodies (11.6).

Because political right varies altogether from republics to monarchies in respect to the question of its capacity to act directly upon private lives, it is very difficult to speak of its execution. However, Montesquieu has some reasons to subsume the execution of the political right under that of the right of nations. The purpose of all states (11.5) is to maintain themselves. Insofar as a prince or a magistrate serves this purpose, he can be spoken of as executing the right of nations. If the preservation of the regime is the task of the executive, then his task differs with each government. The executive whose job is to establish safety can be expected to protect both the lives and the way of life of the people.

Montesquieu's skittishness about executive power may be due to his unwillingness to explicitly promote that power for the French king. He does say here that “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” (11.6). Tocqueville also takes up that point in his investigation of the development of the French administrative structure, which, he says, tended toward despotism because it used commoners, who had no independence from the king, and because it was linked to a king who legislated.

In a government that is directed toward political liberty, whose political right is arranged toward the end of political liberty itself, the offenses that the executive prosecutes are limited chiefly to those against the civil law, to those in which someone's private well-being is threatened. Such a regime has two typically difficult executive problems. First there is the question of offenses against its purpose—that is, of treason. As principles, liberty and safety offer few guides for prudential action against those who violate them (bk. 12). Second is the question of taxation, of the extent to which a state can take the goods, the guarantee of individual safety, from a person for its own use when it has no purpose other than that safety (bk. 13). In other governments one would be left with the question of magistrates who are concerned with education, family structure, sumptuary laws, or religious establishments; but not in the government with liberty alone for its end.

The shape of executive, legislative, and judicial power in a particular government is a result of the kind of government. That is, the jobs of these powers and thus the relations between them change as the ends of the government change. A division of powers that is protected by balancing through some shared tasks must be peculiar to each kind of government and must lead to governmental action appropriate to that government. We shall see a balanced government with a somewhat different intention when we examine the development of the United States Constitution in our chapter 7. Montesquieu writes of the English government: “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” (11.6). The powers of government, balanced perfectly so that their aim can be only liberty, would not move without an impulse from the outside—that is, from external circumstances. They can move together because they are the parts of a particular government—here, one aimed exclusively toward liberty.

There is neither liberty nor moderation when the three powers are united. Both can exist if the judicial power is separate. The citizens fear neither that one another's acts nor that those of the state are directly aimed at them personally. Here the issue is whether the people have the liberty to pursue in safety the ends that are either permitted or encouraged by a government. Without that safety there can be no liberty. This points the reader to book 12, where Montesquieu looks at the crimes whose punishment is particularly dangerous to a citizen's feeling of security, his liberty, even with a separate judiciary. Montesquieu here identifies the separate judiciary in England with the jury. Its advantage is that it is never a “political body,” to use Montesquieu's term. “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. Jurors are not continually in view; one fears the magistracy, not the magistrates” (11.6). This suggests that moderation and liberty are linked to a separate judiciary, but that for liberty to be the purpose of the government, the judicial power must dissolve out of sight into juries, so that this fearsome power cannot be exercised either for some end of its own or in conjunction with the other two powers.⁶

Judges in republics follow the letter of the law. They have no discretion because discretion would mean that they could interpret the law to the detriment of a citizen. In both Rome and England, after the decision as to guilt or innocence has been given, “the judge pronounces the penalty imposed by the law for this deed; and he needs only his eyes for that” (6.3). The unanimity required of juries to condemn a man to death is, Montesquieu believes, a result of the need, when judgments were moving from the battlefield to the court, for the judges to stand together so that the accused would not challenge any one of them to combat because of his decision (28.27). Some group of one's peers makes the decision, which it stands by as a group. This group serves, in effect, as a representative of the people—the sovereign in a republic—but as a representative body that has such a brief existence that one would not expect it to be able to develop any interest of its own or to respond to political pressures.

The difficulty arises when even the anonymity of the jurors and the brief duration of juries do not protect them from pressures. The pressure that is most likely to overwhelm juries is the passion aroused by the suspicion and accusation of treason. In book 6, Montesquieu agrees with Machiavelli's concern that a few can be corrupted by a few in great cases involving the accusation of crimes against the state, and that those cases will somehow have to be judged by the whole. In his discussion of England, Montesquieu promotes an explicit procedure for trials of crimes against the state within the legislative body, as we shall notice shortly.

But that same passion—the suspicion of secret actions and beliefs that are subversive to the general order—is a more general problem for the security of individuals. This is the topic of book 12, where Montesquieu takes up the question of how to treat heresy, magic, homosexuality, and treason. These offenses share the characteristics of secrecy and of alien rule, whether by another god, the devil, another nature, or another sovereign. Montesquieu here suggests a set of rules to guide and control prosecutions; these are rather like the Romans' formulae for actions or the American Bill of Rights. In the context of discussing crimes against religion, he distinguishes between offenses against religion itself, against the mores, against tranquility, and, finally, against the security of the citizens. The first cannot be punished by men because they have no way of knowing about and no appropriate penalties for crimes against God. The second should be subject to deprivation of the advantages that society accords to those who have good mores. The third should receive penalties that hope for correction. Only the fourth is punished by retribution for the wrong done, whether economic or capital. In the remainder of book 12, Montesquieu concentrates on the dangers of prosecution for things unseen but suspected. Neither speech nor writing, he says, should be the primary evidence for treason. Montesquieu continues this book with an array of topics: the violation of modesty in punishing; the requirement that conspiracies be revealed; the excessive punishment for treason in republics; bills of attainder; the cruelty of laws against debtors in republics; judgments by commissioners; spies; anonymous letters; and the dictum that a king should be polite to his subjects. These topics follow from the principles of proportion and attention to deeds and of reluctance to search for a hidden motive; the best analogy to all this in our political experience is the array of interpretations that have followed upon the Bill of Rights.

Only two separate powers are left to be balanced. In a free state the people as a body should have legislative power because “every man, considered to have a free soul, should be governed by himself” (11.6). Self-government is, in effect, the appropriate kind of rule for those thought to be free. This remark contains the same ambiguity—in regard to both the truth of the claim and the extent of free souls—as does the remark in The Federalist that republican government rests on the “honorable determination which animates every votary of freedom to rest all our experiments on the capacity of mankind for self-government” (Fed. no. 39). In a large state it is impossible for the people as a whole to rule; such rule is subject to many drawbacks even in small states. The primary drawback is that the people cannot discuss public business. Montesquieu seems to presume that a large people's inappropriateness for such discussion is obvious.⁷ The representatives improve upon any assembly of the people because they can discuss business; therefore they should be chosen and instructed in a way that will permit such discussion: they should be chosen from districts so that the choice will be informed by neighborliness and the representatives' actions will be limited by that same neighborliness; but they should not be given specific instructions.

The characteristic of representatives is that they discuss affairs, deliberate, and that they do it for others. That is, they act for someone else in an arena where the person cannot act for himself. A representative is necessarily something other than what he represents. The consequence Montesquieu draws from this difference is, not that it should be minimized, but that in order to understand any representative we must have clearly in mind the respect in which he is different from that which he represents. That is, a representative differs from the people because he has the possibility of deliberation—like the judges in a monarchy.⁸ Then, the institutions that shape representation could be judged by the extent to which they facilitate the expression of this activity which is proper to the representatives but not to the people who elect them.

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” (11.6). This means that the monarch is defined by its singularity, by its number; this is a way of thought that is also characteristic of The Federalist, as we shall see. Montesquieu proceeds to argue that the executive power should not be given to a “certain number of persons drawn from the legislative body.” There would no longer be liberty because the two powers would be united: that is, there should not be any cabinet government. The virtue of inheritance, then, is that it provides an independent source of executive power, not that inheritance itself is the source of some good. This leaves open the possibility of coming up with another device for choosing the executive and ensuring its independence.

At the end of book 13, on taxation in relation to liberty, Montesquieu ends by asserting with great clarity and definitiveness that taxes should be collected by agents of the government, by bureaucrats, and not by independent agents, or tax farmers, whose pay is some portion of the taxes collected. Even in monarchies, where tax collecting is a separate order, if the profession comes to be honored, honor itself “loses all its esteem there” (13.20), as money alone should be enough reward for the tax collectors. Tax collection is, then, explicitly the concern of the executive in a moderate government.

Book 13 consists largely of a discussion of how and what should be taxed. The conclusions and alternatives are some of the platitudes of our political life: namely, that freedom and commercial vitality offer the possibility of larger taxes, but that excessive taxation could destroy both; that taxes are least objectionable if they are proportional to the value of the thing taxed, if they leave room for necessity and tax luxury at a higher rate, if they are hidden in taxes on commodities, or in some other way. Book 13 begins by making a distinction between countries in which a part of the peoples are slaves to the land and those in which “all the individuals are citizens and each one of them possesses by his domain that which the prince possesses by his empire” (13.7). That is, free citizens and modern alienable property are the conditions under which the preceding considerations are relevant. Otherwise, in a monarchy the king should depend on the revenues of his domain and on the military service of his nobles, and a republic should take a fixed proportion and never increase the tax (13.4). Montesquieu's distrust of the means that the monarchy has used in collecting taxes—the tax farmers—points toward having the taxes collected by the executive even in a monarchy. But this means that the monarch would both make the rules for taxation and collect the taxes himself—a situation with great potential for despotism, even if there is a separate judiciary. This points toward the need in the modern situation, where taxes must be collected from the population at large, for a division between the legislation that establishes taxation and the executive who is to collect them. The suggestion, again, is that the monarchy has moved too far away from its division into orders for that division to guarantee moderation, much less liberty.

A balance between two powers has little capacity for correction once some circumstance has shifted the balance to one side or another. Once a weight has shifted, something has to be able to move from one side or the other or to move either side away from or toward the center of balance in order to restore the balance. The image is that of a seesaw or a scale. Montesquieu suggests that a second legislative body, composed of nobles, can make adjustment possible in a government that aims toward liberty. The other possibility is for people to shift their allegiance from one branch to the other, as Montesquieu points out in chapter 27 of book 19. Balance is possible both from the point of view of the institutions and from that of their support.

This second legislative body also protects those “people who are distinguished by birth, wealth, or honors” (11.6). Those people would be enslaved if they were simply subject to a legislature formed from the people, for most of the resolutions of the legislature would be against them. This group of notables is not the nobility of a feudal monarchy. There is considerable evidence that Montesquieu thought there was no longer a feudal nobility in England. He wrote earlier in the book that “in order to favor liberty, the English have removed all the intermediate powers that formed their monarchy” (2.4). He remarks later that “in a nation where the republic hides under the form of monarchy, observe how a particular estate for fighting men is feared and how the warrior still remains a citizen or even a magistrate, so that these titles serve as a pledge to the homeland so that it is never forgotten” (5.19). This is not a state in which the nobility can protect the moderation and freedom of the government by its existence as a separate order. Rather, the notables must be protected from the envy of the majority. To do so is sufficiently difficult that they need to be hereditary; this gives them enough interest in defending themselves and is, he says, natural (11.6).

Why protect this minority? The existence of notables of a variety of kinds must add something important to the government other than the moderation that their existence supported in a feudal monarchy. The grander ways of life of the notables must be protected from the envy of the people. Liberty, the purpose of this government, did not point toward a particular way of life. However, the protection of the notables does seem to point the state toward ways of life of some distinction, if not toward a choice among them. One cannot help but be reminded of Tocqueville, of both his worry about democratic individualism and his admiration for aristocratic liberty.

The mechanisms that balance this government have two purposes: first, they maintain the division of power by protecting each part of the government from the encroachments of the others; and second, they promote what perhaps can best be called good government—that is, they make it easier, or possible, for the parts of the government to perform their tasks well. Each mechanism is a breach of the principle of separation of powers, because each involves the action of one branch in what is properly the domain of another branch. This balancing is only possible if the whole is thought of as something whose parts can be identified but cannot be taken altogether apart—a machine or body, not a collection of discrete parts.

In this division of powers, Montesquieu has divided up rule itself. Ruling is to be regularized and limited, not from the outside, as in a monarchy, by the intermediate powers—by the honor identified with their particular tasks and lives—but from within itself. In that way, liberty will be the end; the government will have no aim other than regular, limited rule. Rule has to be taken apart to guarantee regularity, but it is hard to conceive of it apart; one is always looking around for sovereignty. In addition, it must be taken apart in a way that permits or encourages it to proceed competently, or the government will not last. Hence, there is a need for forceful mechanisms to protect the institutions from their tendency to incorporate all of rule within their purview, and there is a need to do so in a way that will encourage good government. Let us look at the mechanisms of each kind in each of the three branches of the government in Montesquieu's description of the English government.

The judicial branch's most important protection against the incursions of the other two branches of government is its invisibility. The jurors disappear as they finish judging each case; this makes consistent corruption virtually impossible.⁹ The executive, in turn, is protected from the judiciary by his immunity from their judgment, although his ministers are not. To ensure fair judgment, Montesquieu requires that the judges be of the same status as the judged; the juries for the people are taken from the people, and the nobles are to be judged by the noble branch of the legislature. To ensure consistency in judgment, the punishments must be according to the precise text of the law. But the noble branch of the legislature can moderate judgments to meliorate the harshness of that consistency. Impeachment—that is, judgment for political crimes—must be brought by the house of the legislature of the people before that of the nobles. In these last considerations, Montesquieu limits judging and moves aspects of it to nonjudicial institutions in order to improve the judgments rendered, not to protect the independence of the judiciary.

The executive is protected from the legislative branch both by the fact that he is the monarch and by his veto over legislation. He is not to propose laws; this limits his involvement in legislation, thus protecting the division of powers. Then, Montesquieu says that the executive is to set the times for the meeting of the legislature. The legislature needs an outsider to convene and to prorogue it in order for it to be simply one body in the government and for it to reemerge after each election as another body. In addition, the executive is to supervise the army. The army would never respect the legislature, because the army's way of life is in opposition to the legislature's. Again the executive takes over a task to protect the legislature from an enterprise that would make it impossible for it to do its job.

The legislature protects itself from the executive by its capacity to oversee, but not to veto, the actions of the executive. The executive power, Montesquieu says, is limited by its own nature; it cannot work properly if it cannot act immediately in particular instances—that is, in accordance with its nature. The suggestion is, then, that the particularity limits the executive action. In addition, the legislature is both to originate taxation and to do so on a year-to-year basis in order to protect itself from the executive. The actions of the legislature itself are limited to those that will not do active harm to the notables by the existence of a branch made up of those notables. As a hereditary body, they could easily follow their particular interests and forget those of the people, so they must only be able to veto in those matters in which “one has a sovereign interest in corrupting” (11.6)—for example, taxation. Rather, the people's house must originate tax bills. Montesquieu puts the need for two branches of the legislature in terms of a substantive issue—namely, the tendency of the many to threaten the liberty of the few in a government whose purpose is the liberty of all—not in terms of the need to limit the generally excessive activism of legislatures.

The result of all this balancing is rest or inaction. Only inevitable changes in circumstances can force the government to move, but it is so constructed that the parts will be forced to move together. The government favors no group or purpose, but it is sufficiently well constructed that its parts will move together to produce coherent rule. Then, it seems to follow that the character of the people will not be affected by the government. It will simply facilitate purposes and characters that are developed in some other realm—natural, economic, religious, or historical. Montesquieu's other great chapter on England provides an explicit rejection of this conclusion. At the end of book 19, whose general point is the importance of having government respect the preexisting character of a people, he puts a chapter titled “How Laws Can Contribute to Forming the Mores, Manners, and Character of a Nation” (19.27). He refers to writing about the principles of the constitution of a free people in book 11; but here we are to “see the effects that had to follow, the character that was formed from it, and the manners that result from it” (19.27). That is, living under such a constitution does, in fact, form the character of the people, even if it does not intend to do so.

This is not to say that climate does not have its prior effect. Whatever character people have as a result of the way of life imposed on them by nature cannot be discounted. In a brief earlier chapter on the English character and climate, Montesquieu typifies the English character insofar as it is due to climate (14.13). The English are a people to whom everything can be intolerable and who are both impatient and courageous. Therefore, they require a government in which no one person can be blamed for anything, and their constant agitation not only disorganizes the projects of tyranny but also makes difficult the politics that requires patience and persistence.

For liberty alone to be the end of the government, the institutions of government have to embody parts of rule itself, rather than any particular kind of rule. Then, Montesquieu says in book 19, chapter 27, although parties form around the legislative and the executive branch, depending upon whether people do or do not hope for places in the executive branch, there would be no allegiance to either party. This is because people would be motivated by all the passions, as the passions would all be free there, and because they would act as independent individuals, each following his own caprice and fantasies. Even the monarch would have to put his trust in those who had been his enemies, because he would have no reliable allies. A free society, then, is made up of individuals who are following their particular passions and fantasies, without having any coherent or reliable allegiances or groupings within the society. They form and reform groupings around the separate powers of the government, as the interests, real or imagined, of the individuals indicate at any moment.

These people do not feel secure. Montesquieu describes them as uneasy, filled with terror. They are, it seems, principally afraid of losing their liberty. The existence of the legislative branch keeps them from visiting those terrors upon the executive, and they ordinarily would “produce only empty clamors and insults and would even have the good effect of stretching all the springs of the government and making all the citizens attentive” (19.27). But they can be turned against anyone who overthrows the fundamental laws or against foreign threats.

The nation's attachment to its liberty is such that it would sacrifice its goods, its ease, and its interests such that it would take on burdens that no absolute prince would dare ask of his subjects. Its credit would be secure, it would be safe, and yet it would not conquer abroad. It would not become a conquering nation because it is difficult and unsafe for island nations to conquer, because the nation did not need to go to war to prosper, and because “no citizen would depend on another citizen, each would make more of his liberty than of the glory of a few citizens, or of a single one” (19.27). Military men, then, would be regarded as useful, engaged in a dangerous and arduous occupation; but civil status would be more highly esteemed.

The result of peace, liberty, and freedom from destructive prejudices is, according to Montesquieu, that the nation would be inclined to become commercial. Insofar as this list of causes is a summary of the preceding discussion, then it seems that freedom from destructive prejudices is to be identified with the individualism and the absence of any fixed order or ranks in the population that Montesquieu describes in the beginning of the chapter. The conditions for commerce have all been met in England, and no other direction has been set for the people, thus making commerce the most likely avenue for their restless activity. This commercial people would trade with the south, often emigrate in search of wealth, be petty and jealous over trade advantage, have rigid laws about commerce, and send colonies abroad for commerce more than domination. Its colonies would also prosper because they would be given its form of government, but its rule over a neighboring state would crush any political independence out of jealousy for that nation's wealth, while permitting civil liberties to all of its people. The commerce would make possible a great navy, which is also the most acceptable defense of a free government on an island. This would lead to great power, as other nations have to finance a land army as well. This nation would have the pride that results from impunity and from the capacity to insult others everywhere, and it could have great influence on its neighbors. In negotiations it would be a bit more honest than others because it could not be as secretive.

Having completed his picture of the way of life that results from this government, Montesquieu turns to the manners of its people and their character. Neither the nobility nor religion sets the standards in this society. The nobility once had an immoderate power and ruled arbitrarily; although its style is preserved, what one sees is the “form of an absolute government over the foundation of a free government” (19.27). In these comments, Montesquieu warns the reader against paying undue attention to the monarchical forms in England. Religion in such a state will be a result of the enlightenment or the fantasies of individuals. If they were generally indifferent, they would all embrace the dominant religion, but if they were serious about religion, sects would multiply. No one would take kindly, however indifferently they felt about religion, to a demand to change religion; and any religion that had a history of such attempts would remain odious, although the laws against it would not be bloodthirsty. (One can only presume that Montesquieu is discussing the fate of Catholicism in England.) Members of the clergy would not be highly enough regarded to seek a separate rank; rather, they would bear the same burdens as lay people do and would try to distinguish themselves by the quality of their lives. The only ranks, then, would be those belonging to the fundamental constitution. They would be more fixed than ranks elsewhere, but those who held the ranks would be closer to the people than elsewhere. Men who hold ranks and govern would have regard for those who would be useful to them, not those who could divert them. “Men would scarcely be judged there by frivolous talents or attributes, but by real qualities, and of these there are only two, wealth and personal merit” (19.27). Their politeness is that of people who must deal with one another regularly and not cause displeasure, not that of the court, which is founded on idleness and arbitrary power. Women are scarcely to be seen among men in this society of confederates who share the administration of the state. These men talk about politics continuously, calculating about things that depend upon fortune. “In a free nation it often does not matter whether individuals reason well or badly; it suffices that they reason; from that comes the liberty that protects them from the effects of these same reasonings” (19.27).

He proceeds to conclude with a description of the malaise that results from this situation—from there being no generally accepted standards. Montesquieu writes that although many do not worry and abandon themselves to their own humors, most of those with wit, or spirit, are tormented by that same wit, disdaining everything. Their pride is founded on their independence, on living on their own, so in an unfamiliar society they demonstrate a strange mixture of bashfulness and pride. Their solitary, withdrawn way of life and thought inclines them to feel individual vices and to resort to satire, rather than to the ridicule that society teaches us. Their party spirit makes their historians as much the slaves of the prejudices of their own party as they would be of any despot. Their poets show more the original bluntness of invention than any delicacy or grace.

Montesquieu here presents a social scheme that is familiar to us today. The ranks of the constitutional governments are faced with a population in which there are no settled groupings, only individuals willing to change allegiances for the passions or interests of the moment. There are no distinct orders in the society—no nobility, no clergy, no military; only the rank given by the constitution is reliable, and the adherents of each division of power change continuously. The people have nothing beyond their individual interests, passions, and terrors. The people are uneasy, frightened, moved by the passions of the moment. They turn their attention to commerce, and its pursuit is a source of strict rule. But Montesquieu does not suggest that commerce offers a reliable social order. There is not even an allegiance to one another among the people beyond the consideration that is due to confederates or allies. The various positions that might be expected to give the individuals a sense of accomplishment and stability do so in such a way as to produce anxiety as well. Those who hold the ranks established in the constitution cannot expect recognition beyond their own circle, and they demonstrate a curious mixture of pride and bashfulness. The men of wit, or spirit, express disdain for the others in the society. Those who are prone to humor settle on the satire of individual vices rather than the gentler ridicule of social life. The arts are limited to rough invention; there is no context for acquiring grace or style. In each case, the individuality and the flux within which they live their lives limit their accomplishments and give them a certain unfinished, uneasy quality. Here, Montesquieu begins to sketch the analysis and criticism of modern democratic man that Madison implied in The Federalist and that Tocqueville amplified later.

From another point of view, the English government, which was aimed exclusively toward liberty and not toward forming character, in fact did not form character; rather, it confined the passions by pitting them against each other. In so doing, it created separated, limited individuals whose passions were limited by their positions and by the habits that those positions engendered, but whose spirits seemed to fly off in any direction.¹⁰

With this in mind, one is pushed to return to inquire into the conditions of English lives—to the economic, religious, and historical conditions that might give direction and can be directed. The question has become, How are these things to be thought about and acted upon? They are no longer intrinsic to the political life and to the political law of the country, as in a republic; but they are not irrelevant. They are not topics about which a government can properly have no opinions and to which it ought to give way as far as possible without countermanding the force of political liberty. Here we turn to the topics of parts 4, 5, and 6 of The Spirit of the Laws, the latter half of the book. We have already looked at these topics in the preceding chapters, asking the question of how they came to be loosened from political law and of the consequences of that loosening in the development of monarchies and modern republics. Here, rather, we are turning to the question of how they are to be understood once they have been loosened, whether they have a shape and direction of their own, and if so, what and how they can, under these latter circumstances, be brought under some political law—that is, how they can be legislated about.

Notes

1. Thomas Hobbes, Leviathan, ed. Michael Oakeshott (Oxford: Basil Blackwood, 1960), p. 84 (pt. 1, chap. 14).

2. See also 26.20: “Liberty consists principally in not being forced to do a thing the law does not order, and one is in this state only because one is governed by civil laws; therefore, we are free because we live under civil laws.”

3. David Spitz, “Montesquieu's Theory of Freedom,” in Essays in the Liberal Ideal of Freedom (Tucson: University of Arizona Press, 1964), pp. 28-35.

4. See John Plamenatz, Man and Society (Harlow, Essex, Eng.: Longman, 1963), pp. 284-291, and C. P. Courtney, Montesquieu and Burke (Oxford: Basil Blackwell, 1963), pp. 59-64, for their defense of Montesquieu's account of British politics as it was practiced when he visited and observed. William Blackstone, in his Commentaries on the Laws of England, relies heavily on Montesquieu's account of the division of powers in England.

5. John Locke, Second Treatise of Government, rev. ed., with an introduction and notes by Peter Laslett (Cambridge: Cambridge University Press; reprinted by Mentor), p. 410, para. 146.

6. One can only wonder whether this implies a criticism of the French parlements, which were permanent bodies that judged.

7. See 8.15-20 in The Spirit of the Laws for Montesquieu's discussion of the proper sizes of the various governments; and for the treatment of size in The Federalist see p. 154.

8. Both Edmund Burke, in his “Speech to the Electors of Bristol” (3 Nov. 1774), and David Hume, in his “Idea of a Perfect Commonwealth,” in his Essays, Moral Political and Literary, presumed and advocated a considerable distance between the population and the representatives. This notion of constructing a space in which the representatives could think and act in a way that was not possible for the population at large was remote from the thought in France at that time: see Keith Michael Baker, “The Idea of Representation at the End of the Old Regime,” in The Political Culture of the Old Regime, ed. Keith Michael Baker (Oxford: Pergamon Press, 1987), pp. 469-492; this is Vol. 1 of The French Revolution and the Creation of Modern Political Culture, 3 vols. (1987-).

9. This is possible in a system in which the notion of proof requires a judgment between two competing views, not a positive judgment as to the event: see 29.11 and p. 139.

10. See Martin Diamond, “The Federalist,” in History of Political Philosophy, ed. Leo Strauss and Joseph Cropsey (Chicago: Rand McNally & Co., 1963), pp. 573-593, for an account of The Federalist that is remarkably close to this account of English government.