Montesquieu was aware of the problem of ensuring that a system of government so nicely balanced should not result in complete deadlock, that the three bodies, King, Lords, and Commons, by being poised in opposition to each other should not produce merely a state of “repose or inaction.” But he dismissed the problem by arguing that in the nature of things they are forced to move (par le mouvement nécessaire des choses), and forced to move in concert. The question of whether he saw the State as an organic unity in which the articulated parts formed a single unit exercising the sovereign power, or whether he destroyed the unity of sovereignty by dividing it up into parts which were to be distributed among quite distinct, autonomous bodies, related to each other in a mechanistic fashion only, is probably impossible to answer, because it is doubtful if he ever formulated the problem in either of these ways. He seems to have a unitary view of the supreme power when he is discussing his three forms of State in the initial books of De l’Esprit des Loix, but there is little clue to his attitude in Book XI, Chapter 6. On the question of legislative supremacy he seems, though less explicitly, to hold much the same position that we attributed above to John Locke. The legislative function is logically prior to the rest in the sense that the executive and judicial functions are concerned with putting the law into effect; but the legislative branch must be limited in its power to interfere with the acts of the executive branch, otherwise the former will be able to wield arbitrary power. Montesquieu does not, however, emphasize the supremacy of the law, or of the legislative function, to anything like the extent Locke had done, and as a consequence there seems to be a good deal more disagreement between them on this point than was probably the case.
Having shown that all the elements of the pure doctrine of the separation of powers are to be found, if not always clearly worked out, in Montesquieu’s thought, can we simply label him as a protagonist of the pure doctrine? Clearly not, for he went further, and added to these ideas the further dimension of a theory of checks and balances between the legislative and executive powers, drawn largely from the theory of mixed government. He did not rely upon a concept of negative checks to the exercise of power, checks dependent upon the mere existence of potentially antagonistic agencies, charged with different functions of government—again he went further, and advocated positive checks by placing powers of control over the other branches in the hands of each of them. Perhaps the first important point to note about his theory of checks and balances is that in Book XI it does not involve the judiciary or “the power of judging” at all. The judiciary is not given any power over the other branches. Equally, its independence is absolute, for it is not subject to control by the other branches, except that the legislature can be a supreme court of appeal in order to mitigate the sentence of the law. The courts, in other words, being merely the mouthpiece of the law, being en quelque façon nulle, and not representing any social force in the State, are not seen as a check, nor is it necessary to check them. The difference between this view of judicial power and that of Chief Justice Marshall in Marbury v. Madison, fifty-five years later, is of great interest although it is true that Montesquieu elsewhere saw the French parlements with their rights of remonstrance as checks to the legislative power.
He defined three types of government: republican, monarchical, and despotic. In the first the people is possessed of the supreme power; in a monarchy a single person governs by fixed and established laws; in a despotic government a single person directs everything by his own will and caprice. Republican government can be subdivided into aristocracy and democracy, the former being a State in which the supreme power is in the hands of a part of the people, not, as in a democracy, in the body of the people. In a despotic government there can be no check to the power of the prince, no limitations to safeguard the individual—the idea of the separation of powers in any form is foreign to despotic governments. In an aristocracy also, though it be a moderate government, the legislative and executive authority are in the same hands. However, in a democracy, Montesquieu argued, the corruption of the government sets in when the people attempt to govern directly and try “to debate for the senate, to execute for the magistrate, and to decide for the judges.” Montesquieu implied, then, that some form of separation of powers is necessary to a democracy, but he did not develop this point. The relevance of this to modern states is in any case rather slight, as Montesquieu believed that democracy was only suitable to small societies. The most extended treatment he gives of institutional checks to power, therefore, is to be found in his discussion of monarchy and of the English Constitution. These two discussions, though obviously connected in spirit, seem to be drawn from quite different sources, and to depend upon different principles. Each system is praised for its virtues, but it is difficult to say that Montesquieu clearly favoured one above the other. Here we have the source of the confusions on this subject.
Montesquieu devotes considerable attention to the nature and composition of the judiciary, but his approach to this problem is very much a reflection of his general scheme, and does not bear much relation to the actual practice in England. In Book VI he had developed his ideas about the judicial function in the differing forms of State. In a despotic government the caprice of the prince is the basis of the law, and judging will be an arbitrary process without rules. In a monarchy, however, the prince rules according to the laws; these must be relatively stable and applied in a cool, aloof fashion. The judges in a monarchy, therefore (and Montesquieu is clearly thinking of the parlements), must be learned in the law, professional, and skilled in the reconciliation of potentially conflicting rules. But the closer the form of government approaches that of a republic, the more fixed and settled are the rules of law, and the more the judges must follow the letter of the law. In Rome, he avers, the judges had only to decide matters of fact, and then the punishment was clearly to be found in the laws. In England the jury gives its verdict on the facts and the judge pronounces the punishment inflicted by the law, “and for this he needs only to open his eyes.” In Book XI he describes a judicial system without professional judges. He rejects the idea of the judiciary power being lodged in a “standing senate,” and affirms that it should be exercised by persons drawn (tirées) from the people, on an ad hoc basis for fixed periods of short duration. In other words a system of juries, which would apparently be judges of both fact and law, because the laws would be so clear and explicit as to require no professional knowledge in the judges.
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What then did Montesquieu add to seventeenth- and early-eighteenth-century English thought on the separation of powers? Clearly his view of the functions of government was much closer to modern usage than his predecessors’—he was one of the first writers to use “executive” in a recognizably modern sense in juxtaposition with the legislative and judicial functions. His emphasis upon the judicial function and upon the equality of this function with the other functions of government, though (as we have seen) by no means altogether new, was nevertheless of great importance. The judiciary had a position of independence in his thought greater than that of earlier English writers, and greater than it was in practice at that time in England. Although he used the idea of mixed government he did not allow it to dominate his thought, as had the writers on the balanced constitution in England; consequently he articulated the elements of the constitution in a different way, and a clearer view of the separation of legislative and executive branches was now possible. He had gone a long way, in fact, towards the transformation of the theory of mixed government from its position as a doctrine in its own right into a set of checks and balances in a system of agencies separated on a functional basis. Perhaps the most significant difference between Bolingbroke and Montesquieu is that the latter placed the King outside the legislature. In some ways, then, Montesquieu moved back towards the emphasis that was placed during the Protectorate upon separate and distinct powers; he was certainly closer to the pure doctrine than his English contemporaries, but he did not go all the way. He had a more realistic, more articulated system, with an amalgam of seventeenth- and eighteenth-century ideas woven into a new fabric. Sometimes it is difficult to know whether the changes he introduced into the stream of political thought on constitutionalism were wholly intentional, or whether they resulted rather from his method of writing. We shall never know—but it does not matter. The very defects of his style gave him an influence which a more precise and less interesting thinker would never have achieved, but more important than this is the fact that by changing the emphasis that English writers of the preceding half century had placed upon legislative supremacy and the mixed constitution, he paved the way for the doctrine of the separation of powers to emerge again as an autonomous theory of government. This theory was to develop in very different ways in Britain, in America, and on the continent of Europe, but from this time on, the doctrine of the separation of powers was no longer an English theory; it had become a universal criterion of a constitutional government.
We have seen that even given the attribution of distinct functions to separate agencies there still arises the problem of personnel. Should the personnel of the agencies be quite distinct, or should a degree of overlapping be allowed, or does it not matter at all? Montesquieu is less clear on this point than on the other elements, although there are strong indications of his line of thought. When writing of monarchy he does not envisage a separation of legislative and executive functions in practice, so the question of personnel does not arise; however, he does express shock at the idea that royal ministers should also sit as judges. There is, he says, a sort of “contradiction” between the prince’s council and the courts of judicature. The former requires a certain passion in the conduct of its affairs by a few men who identify themselves with its business, whereas the courts demand a certain “sang-froid” and a measure of indifference on the part of the judges. Once again we have this emphasis upon the impartiality of the judiciary. In his discussion of the judiciary in Book XI, he is less explicit, but the nature of the selection of the judges, or rather juries, is such that the problem of whether or not they should simultaneously be legislators, or in the service of the king, hardly seems to arise. These ad hoc juries are so impermanent that the problem of the overlapping of membership with the more professional and permanent members of the other branches does not arise.
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