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

14 AHMP The Separation of Powers According to Montesquieu, Locke, and the Founding Fathers

Who was the philosopher known as Montesquieu? What governmental structure did he believe would be assure political liberty, and why did he believe so strongly that each branch must be firmly separated from one another? When we meld the ideas of Locke and Montesquieu together, how can we hear them 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 Montesquieu? First of all, his name is a mouthful to say the least! Let me see if I can stumble over it for you. His full name is Charles-Louis de Secondat, Baron de La Brede et de Montesquieu.

In the 13th edition of American History for the Modern Patriot, we learned about the life and philosophy of John Locke. You will recall that he was an empiricist, meaning the he believed that knowledge arises not from a series of deductions, but from the sensate or experiential collection of data. He talked about broad concepts such as natural law, the state of nature, property, liberty, and tyranny. Montesquieu focused on much more concrete systems such as the structure of government. Is it any surprised that Locke was trained in medicine, and Montesquieu was trained in the law?

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. Although his mother carried a minor title, 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. Montesquieu watched the events of England’s Glorious Revolution from afar, and the limitations set upon the English Sovereign, as well as guarantees instituted in documents such as the English Bill of Rights and the Act of Settlement. He also connected with exiled members of the House of Stuart in France, and spent more than a year in England intermixing with members of Parliament and becoming a member of the Freemasons.

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. He also became active in the Academy of Bordeaux which was focused on science rather than the law. Although trained as an attorney, he 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 as he neared his 60th birthday.

The book that those interested in the American Founding most closely associate with Montesquieu is the Spirit of the Laws.

As with Locke, Montesquieu first published this work anonymously.  It is an immense work with four volumes, hundreds chapters, and discusses everything from anthropology to governmental structure. Montesquieu was nearly blind when he produced this work, and he employed several secretaries to help him read material and scribe the text.  Montesquieu worked on his masterpiece from 1731 until 1748. In it, he considered a vast number of social institutions including that of the governments of Rome, China, England and France, as well as why those government thrived or may have become corrupt. 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 three different types of governments: despotism, 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), despotisms were controlled by fear, and monarchies by honor. In an earlier work (“Persian Letters), Montesquieu had ridiculed social classes, the reign of Louis XIV, and the doctrines of the Catholic Church. Three years after the Spirit of the Laws was published, Montesquieu published Defense of the Spirit of the Laws in response to criticisms of the original work.

However, his book needed little defending in the American colonies, where it is said that the Spirit of the Laws was cited by the Founders more than any other work aside from the Bible.

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

It is in Book XI. Which is  Entitled Of the Laws Which Establish Political Liberty, with Regard to the Constitution  that 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. But more so, in this section of the Sprit of the Laws, Montesquieu warned of the dangers that would occur if the branches failed to remain separate.

First, let’s begin with Montesquieu’s definition of liberty.

Of the definition of liberty, he said: “There is no word that admits of more various significations, and has made more varied impressions on the human mind, than that of liberty. Some have taken it as a means 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.” If I might stop for a moment thus showing that Montesquieu had a bit of a sense of humor. But I digress… “Some have annexed this name to one form of government exclusive 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;”

Montesquieu went on to say: “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 how did he define “Political Liberty?” He wrote: “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. (Ch 11, number 6 He  further wrote “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 shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go.” Ch 11, number 4). Those words must have rang true for the Founders. Don’t you think?

 

So to assure an individual’s liberty, or specifically his political 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. Of that he said the executive enact both temporary or perpetual laws, as well as amend and abrogate laws which already exist. The executive power that Montesquieu related to the law of nations would declare war or peace with other nations, receive foreign dignitaries, as well as establish public security and assure against invasions.

Later in the book, 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…. 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.

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.

He also said, “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 then 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.”

 

He later said, “Were the executive power not to have a right of restraining the

encroachments of the legislative body, the latter would become despotic; for as it might arrogate to itself what authority it pleased, it would soon destroy all the other powers…

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

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

Montesquieu even considered what the Founders called the “negative”  and we think of the “veto.” “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.…The executive power, pursuant of what has been already said, ought to have a share in the legislature by the power of rejecting, otherwise it would soon be stripped of its prerogative. But should the legislative power usurp a share of the executive, the latter would be equally undone.”

He also cautioned about the amount of time a legislature should be in session. “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.”

On the other hand, he said, “It would be needless for the legislative body to continue always assembled. This would be troublesome to the representatives, 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.”

Regarding the possibility of the judiciary combining with the powers of the executive or legislature, Montesquieu 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. 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.

He later said: “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 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.”

 

Now that we have learned about the writings of Montesquieu regarding the separation of powers, let’s focus a bit on how the theories of Locke and Montesquieu influenced the construction of our federal government.

Given their experience with the Crown, many of our Founders resisted the idea of forming a government that was led by a single individual. They were indeed wary of the absolute monarchy so firmly rejected by Locke, as well as Montesquieu’s warning that “every man invested with power is apt to abuse it, and to carry his authority as far as it will go.”

The Albany Plan of Union, the first plan that called for a united system between the colonies as written by Benjamin Franklin only called for a single executive who would be “appointed and supported by the crown.” Even if Franklin had thoughts that the colonies should separate from England, the structure he proposed was clearly under control of something larger than a single person. Similarly, neither the “Sketch of Articles of Confederation” that Benjamin Franklin submitted to the Continental Congress on July 21, 1775, nor the draft of the Articles that John Dickson worked on in June, 1776 contained details for an executive to oversee the government.

The closest thing to an Executive found in the Articles of Confederation was the President of the Legislature who merely presided over proceedings and served as the official signatory on documents such as treaties. As was noted in the third episode of American History for the Modern Patriot, the federal government, as structured under the Articles of Confederation, was seen as weak and doomed to failure because it also lacked a federal mechanism for adjudicating disputes and crimes. By the time the Constitutional Convention was held, it was clear that both an executive and judicial branch, as advocated by Montesquieu was necessary in order for the United States to even survive much less thrive.

And this is where the Founders turned to the writings of Locke and Montesquieu:

In his Second Treatise on Government, Locke lamented that “it may be too great a temptation to human frailty apt to grasp at Power, for the same Persons who have the Power of making Laws, to have also in their hands the power to execute them, whereby they may exempt themselves from Obedience to the Laws they make, and suit the Law, both in its making and execution, to their own private advantage, and thereby come to have a distinct interest from the rest of the Community.” His solution, therefore, was to create “Legislative Power is put into the hands of divers Persons who duly Assembled, have by themselves, or jointly with others, a Power to make Laws, which when they have done, being separated again, they are themselves subject to the Laws, they have made…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. And thus the Legislative and Executive Power come often to be separated.” However, Locke did not include a judicial component in his structure of government. Instead, the third power that he mentions is “federative power” which relates to how one country should interact with another.

Of course, it was Montesquieu who argued for a governmental system that contained three branches. Montesquieu also suggested that any government could become despotic if a system was not set into place which required the separate bodies to balance power under the guidance of the rule of law. He called, not only for a system with three branches of government, but that the three branches be separate as we have discussed above.

Given the insight these men possessed regarding human nature, they each had a bevy of practical suggestions to incorporate into the structure and function of government as well. For example, Locke advocated that those who create the laws must be subject to them. Montesquieu argued that one virtue necessary to maintain a functional democracy was “a constant preference of public to private interest.” He equated this focus on the interest of others, rather than the interest in oneself, as almost a love for one’s country. “This love is peculiar to democracies. In these alone the government is entrusted to private citizens. Now a government is like everything else: to preserve it we must love it.”

How interesting that John Locke felt those who make the laws should also live by the laws which they have made. It is a concept that our own elected officials would do well to practice. It is also interesting that Montesquieu felt that in order to insure preservation of our democratic government, we the citizens, must love our country. This flies in the face of the efforts of many to remove patriotic teachings and observances from our schools and our day-to-day life.

Let’s examine evidence of the firm belief in the Separation of Powers as evidenced by 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, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part, of the former members, to be again eligible, or ineligible, as the laws shall direct.”

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.”

Adams put his ideas into practice as he wrote the following clause into the Constitution of the Commonwealth of Massachusetts in 1780:  “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.”

The concept of the Separation of Powers was definitely in the minds of those who advocated for the ratification of the United States Constitution:

In Federalist 10 Madison wrote: “[T]he 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 encroachment of the others.”

Madison again 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. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”

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.”

In Federalist 75, Alexander Hamilton wrote: “The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States.”

Hamilton, also stated in a speech before the New York Ratifying Convention on June 25, 1788, that: “Good constitutions are formed upon a comparison of the liberty of the individual with the strength of government: If the tone of either be too high, the other will be weakened too much…Through the opposition and mutual control of these bodies, the government will reach, in its regular operations, the perfect balance between liberty and power.

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.”

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.

Please take a moment to consider the importance placed on the concept of the Separation of Powers by John Locke, Montesquieu, and the Founding Fathers, as well as their warnings of what would occur if the boundaries between the Branches were blurred. A restoration of our republic to its original form will require, to use a popular phrase, a fundamental transformation.

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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