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The Separation of Powers According to Montesquieu, Locke, & the Founding Fathers

14 QC AHMP: The Separation of Powers According to Montesquieu, Locke & the Founding Fathers

Who was the philosopher known as Montesquieu? What governmental structure did he believe would best assure political liberty, and why did he believe so strongly that each branch must be firmly separated from one another? How can we hear his ideas in the writings of the Founding Fathers? We will explore these questions in this episode.

First, let’s learn a bit about his life history

Who was Charles-Louis de Secondat, Baron de La Brede et de Montesquieu? Well, we will begin by simply referring to him as Montesquieu.

In the 13th edition of American History for the Modern Patriot, we learned about the life and philosophy of John Locke. While Locke talked about sweeping concepts such as natural law and the state of nature, Montesquieu focused on much concrete systems such as the structure of government.

But let’s start from the beginning of his life.  As with Locke, Montesquieu’s parents died while he was a child. However, unlike Locke, both of Montesquieu’s parents were French nobles. Additionally, Montesquieu’s guardian and uncle was a Baron and left him that title, wealth, and with a Parliamentary office upon his death. In 1708, He received a law degree from the University of Bordeaux.

He served in the office of President a Mortier for eleven years. During that time, he supervised prisons and sat as the trier of fact in proceedings. Montesquieu was financially able to devote himself to writing. He began publishing in his early thirties, and published the book that is of most interest to us, The Spirit of the Laws, as he neared his 60th birthday.

Montesquieu first published this work anonymously.  It is an immense work with four volumes, hundreds chapters, and discussed everything from anthropology to governmental structure. He expounded on slavery, liberty, religion, and most important for our purposes the structure of a republic

Although the book was well received in Britain, and most certainly in the American Colonies, it was banned by the Catholic Church and not well received by those in power in his own country. Why? It might have something to do with Montesquieu’s description governments ruled by despots, monarchies, and republics. While republics were said to have virtuous characteristics such as fraternity, equality, and patriotism (yes, patriotism was actually a virtue in Montesquieu’s eyes), he was not so complementary of monarchies and governments or institutions ruled by singular authorities (such as the Church). In an earlier work (“Persian Letters), Montesquieu had ridiculed social classes, the reign of Louis XIV, and the doctrines of the Catholic Church.

Let’s discuss some of Montesquieu’s ideas and how he defines various concepts.

It is in Book XI of The Spirit of the Laws Which is Entitled “Of the Laws Which Establish Political Liberty, with Regard to the Constitution”  there are discussions about  liberty, political liberty, and the structure of government. It is a critical chapter because much of the structure established in our own constitution mirrors what Montesquieu advocated in this section. In the full length edition of this podcast, I quoted extensively from the writings of Montesquieu and the Founders. For our purposes here, I will limit the quotes to the bare bones.

First, let’s begin with Montesquieu’s definition of liberty. Of the definition of liberty, he said: “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. (Ch 11, number 3)

So to assure an individual’s liberty, how did Montesquieu suggest that the government be structured?

He said that “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.” (Ch 11, number 6). For our purposes, the second executive that is mentioned relates to the judiciary.

Later in the chapter, he said:: “There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”

 Let’s now examine what Montesquieu had to say about each of the branches.

The executive authority should be in hands of one person whom he termed as a monarch, but of course he was not referencing an absolute monarch such as was loathed by John Locke, but more of a limited authority as had recently been assured in England. The authority should be in singular hands “because this branch of government, having need of despatch, 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.”

Of the legislature, he argued for two legislative bodies: “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.” Later, he said: “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 judiciary, Montesquieu said: “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…. But though the tribunals ought not to be fixed, the judgments ought; and to such a degree as to be ever conformable to the letter of the law. Were they to be the private opinion of the judge, people would then live in society, without exactly knowing the nature of their obligations.

Montesquieu argued that by necessity there should be a separation of powers within the government:

He believed that a governmental system with powers divided amongst different entities was a government which was less likely to become corrupted. He said, “To prevent this abuse, it is necessary from the very nature of things that 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.” (Ch 11, number 4)

This, of course, was one of the central principles used by the Framers when constructing the Constitution. James Madison actually titled  Federalist Number 51 The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.

But why should these three branches remain separate entities? What could go wrong if the branches melded together?  Montesquieu had much to say about that subject, and it is important for us to hear his warnings because some of them have occurred in our own republic.

What would happen if the executive and legislative powers joined together?

“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.

Montesquieu also cautioned: “Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”

 Now that we have learned about the philosophy of Montesquieu, let’s e in the Separation of Powers as found in the writings of the Founding Fathers:

In 1776, Thomas Paine wrote: “No country can be called free which is governed by an absolute power; and it matters not whether it be an absolute royal power or an absolute legislative power, as the consequences will be the same to the people.”

In the Virginia Declaration of Rights, which was primarily authored by George Mason and also written in 1776, stated: “That the legislative and executive powers of the state should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people,”

In yet another “revolutionary” writing in 1776 letter John Adams wrote in his Thoughts on Government, that: “A question arises, whether all the powers of government, legislative, executive, and judicial, shall be left in this body? I think a people cannot be long free, nor ever happy, whose government is in one Assembly…. The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that.”

The concept of the Separation of Powers was alive and well in the Federalist Papers.

Madison argued for the separation of powers in Federalist 48: “It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments.”

In Federalist Number 51, the author, who is either James Madison or Alexander Hamilton, stated that in order to preserve liberty, “each department should have a will of its own.” He also said, “But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.”

And what was the opinion of Thomas Jefferson who was far less an advocate for a strong federal government than either Madison or Hamilton?

In 1785, Jefferson wrote in Notes on Virginia of concerns of melding the powers of the government:  “The concentrating in the same hands is precisely the definition of despotic government.”

In a letter to Joseph Cabell written in 1816, Thomas Jefferson said: “The way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to every one exactly the function he is competent to… What has destroyed liberty and the rights of man in every government which has ever existed under the sun?  The generalizing and concentrating all cares and powers into one body, no matter whether of the autocrats of Russia or France, or of the aristocrats of a Venetian Senate.”

Ominously, Jefferson later wrote to Charles Hammond in 1821, “When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.”

Ominously, Jefferson later wrote to Charles Hammond in 1821, “When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.”

In George Washington’s Farewell Address he said: “Towards the preservation of your government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles…Liberty itself will find in such a government, with powers properly distributed and adjusted, its surest guardian.”

Each of the above documents is available for your review on my website: bingoforpatriots.com.

Given the importance of the theories of Locke and Montesquieu on the Founders, I would encourage you to listen to the complete editions of the 13th and 14th episode of American History for the Modern Patriot. Each of them is also available on my website.

Until next time, this is Dr. Susan Rempel urging you to remain motivated, informed, and engaged in the political process. Visit my website, www.bingoforpatriots.com, with more than 500 pages of documents, information, and products to motivate the modern patriot.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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