Constitutionalism and the Separation of Powers. M. J. C. Vile

published in 1748, and so became available at the beginning of a period of great change and development in Europe and America. Ideas which had blossomed in the English Civil War, but which had been premature and unrealistic in terms of the then existing society, could now find fertile ground in the British colonies of North America and in France. Within the next fifty years men were to be called upon to create new institutions, to attempt to establish new systems of government. Where better look for help than in a manual where the principles of all governments were set out, and where none were more sympathetically treated than those forms of government that set bounds to the exercise of arbitrary power. For although Montesquieu claimed to be disinterested, his affection for moderate government shines through the whole work, whether it be a moderate monarchy or a moderate republic he is describing. But Montesquieu’s approach did lead to a good deal of confused speculation about his own loyalties. Was he advocating monarchy as the best system of government, or did he believe in a mixed system, or was he a good republican? Evidence for all these points of view can be found in his great work, and, indeed, it was the very fact that the De l’Esprit des Loix can be pressed into service in support of widely differing views that added to its influence. By the end of the eighteenth century Montesquieu was being quoted as an authority in England, France, and America, as conclusive evidence of the rightness of very different systems of government.

      Montesquieu started from a rather gloomy view of human nature, in which he saw man as exhibiting a general tendency towards evil, a tendency that manifests itself in selfishness, pride, envy, and the seeking after power.⁵ Man, though a reasoning animal, is led by his desires into immoderate acts. Of the English, Montesquieu wrote that “A people like this, being always in ferment, are more easily conducted by their passions than by reason, which never produced any great effect in the mind of man.”⁶ In the realm of politics this is of the greatest consequence: “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.”⁷ However, this tendency towards the abuse of power can be moderated by the constitution of the government and by the laws, for, although by no means a starry-eyed utopian, Montesquieu, like the Greeks, believed that the nature of the State’s constitution is of the greatest consequence. Thus Montesquieu commenced his work with a description of the three different types of government, their nature and their principles, for if he could establish these, then the laws would “flow thence as from their source.”⁸ Let us look at the way in which Montesquieu dealt with this problem of the control of 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.⁹ 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.¹⁰ 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.”¹¹ 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.¹² 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.

      The different elements in Montesquieu’s approach to the control of power can be attributed to his two major sources of inspiration. On the one hand the influence of English writers, especially Locke and Bolingbroke, is clear.¹³ From the time of the Civil War onwards the volume of translations of English works on politics, and of French commentaries on England, had grown, until in the early eighteenth century it reached large proportions. Dedieu points to the importance of the exiled Huguenot journalists, lauding the virtues of the Glorious Revolution, to the writings of anglophile Frenchmen, and to the work of historians who emphasized the role of the English Parliament as a balance to the power of the Crown.¹⁴ In particular Rapin-Thoyras, in his Histoire d’Angleterre in 1717, emphasized the importance of a balanced constitution and mixed government. Voltaire in 1734 published a French edition of his English Letters, in which he wrote of the “mélange dans le gouvernement d’Angleterre, ce concert entre les Communes, les Lords et le Roy.”¹⁵ These, together with Montesquieu’s travels in England, his acquaintance with Bolingbroke, and his knowledge of the writings in the Craftsman, the paper for which Bolingbroke wrote,¹⁶ are the sources of the main ideas to be found in his chapter on the English Constitution.

      There are other sources, nearer at home, however, for Montesquieu’s attitude towards monarchy. Here, as in his description of the English Constitution, Montesquieu was concerned with the control of arbitrary power, but in a different way, and in a different context. As an aristocrat, and président à mortier of the parlement of Bordeaux, he could look back upon a long tradition of French resistance to the idea of despotism, not along the lines of the English developments, but in terms of the power of the parlements, and of the aristocracy and clergy of France as checks upon the royal authority.¹⁷ Bodin, though asserting the indivisibility of the sovereign power of the King, nevertheless had advocated that the parlements should have the power of remonstrance and of enregistering royal enactments, so that they might judge these in the light of justice and equity.¹⁸ The parlements had from time to time asserted their right to refuse to register royal edicts, especially the parlement of Bordeaux, of which Montesquieu later became a président à mortier.¹⁹ Boulainvilliers in 1727 had argued that all the unhappiness of France was due to the way in which the nobility had declined in power, and it was in defence of a similar thesis that Montesquieu approached the problem of the French monarchy.²⁰ Thus when Montesquieu defined monarchy, as opposed to despotism, as a system in which “intermediate, subordinate, and dependent powers” played an essential role, and named these intermediate powers as the nobility, the clergy, and the parlements, he was following a well-trodden path in French thought.

      It is Bodin, however, more than any other thinker, who would seem to have provided the pattern for Montesquieu’s idea of monarchy; and if this is so, it is of great importance, for Bodin’s views on sovereignty are bound to colour the whole nature of the approach to the monarchical system.²¹ Bodin had, it is true, been concerned to champion a strong monarchy, and to stress the concentration of power in the hands of the monarch, but he also stressed the difference between a tyranny and a “royal” or “legitimate” monarchy. The latter is one in which the king “yieldeth himself as obedient unto the laws of nature as he desireth his subjects to be towards himselfe, leaving unto every man his naturall libertie, and the proprietie of his own goods.”²² He accorded a role in the government, even if only a subordinate one, to the States-General and the parlements. The pattern of Bodin’s royal monarchy is very close to Montesquieu’s view of monarchy, and there is little evidence to suggest that the latter saw any real modification in the structure of this form of government that would approximate to a “separation of powers.” It is true that Montesquieu writes that to form a “moderate government,” which of course includes monarchy, it is “necessary to combine the several powers; to regulate, temper, and set them in motion; to give, as it were, ballast to one, in order to enable it to counterpoise the other.”²³ However, it is difficult to place much weight upon this statement as an indication of Montesquieu’s belief in a “separation of powers” in a moderate government, for as it stands it applies also to aristocracy, which Montesquieu