What influenced the Founding Fathers: Charles de Secondat Baron de Montesquieu, and "The Spirit of Laws"

In the first writing of Influencing the Founding Fathers I discussed John Locke, and his Two Treatises of Government. Where John Locke defined what natural rights are, the source of power of a government is the people, a government of a Constitution that must abide by Law, and the separation of powers, Charles de Secondat Baron de Montesquieu, defined the details of how to do this, with some significant changes of his own, with his publication, “The Spirit of Laws”.

Charles Montesquieu was a 18th Century French Philosopher. Perhaps his most notable work was “The Spirit of Laws”, finished in 1748, translated into English in 1752. Much like Locke, he breaks his book into sub books, like chapters today. He covers a wide variety of topics from the Law of Nature, to the types of governments, Liberty and Slavery, Republics, money and constitutions. These are topics similar to Locke, but for the most part Montesquieu goes into much more detail on the topics in hand, and can more easily be seen on how they influence the Founding Fathers, and Drafters.

 

Much like Locke, one of the first items Montesquieu discusses is Natural Law, what rights one possess naturally by virtue. Here we can immediately see influences on the Declaration of Independence,

“God is related to the Universe, as a creator and preserver; the laws by which He created all things are those by which He preserves them”,

 

later on followed by, “…laws are those of nature, so called because they derive their force entirely from our frame of existence”.

 

Thomas Jefferson in the Declaration of Independence states it as this, “We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness”. The inalienable rights that Thomas Jefferson wrote, and the Continental Congress resolved to, were not new concepts. Locke and Montesquieu had both discussed just this idea, that man was inherently free, and possessed the rights of freedom naturally, and not be the grace of a King or other government authority.

In Book II, Montesquieu discusses the Nature of Government. He divides government into three types,  Republican, Monarchial, and Despotic [One may argue that there are in fact many more types of governments, but in some form each would fall into one of these three categories, which Montesquieu does as well in this part of his book]. On Republican Government he states,

“that When the body of the people is possessed of the supreme power, it is called a democracy. When the supreme power is lodged in the hands of a part of the people, it is then an aristocracy”.

This form is the only one of the three, in which the people possess any power, whereas the other two, power is vested in a single person as a Monarch or Despot. Not only does he establish a Republican Government as being the only form of government in which the people have any power, but also the only form of government in which the people possess the SUPREME power. He follows this explanation of the three types of Governments with,

“we must now inquire into those laws which directly conform to this nature, and consequently are the fundamental institutions”.

On a Republican Government Montesquieu states,

“When the body of the people is possessed of the supreme power, it is called a democracy. When the supreme power is lodged in the hands of a part of the people, it is then an aristocracy. In a democracy the people are in some respects the sovereign, and in others the subject”. 

Here he is stating in the first part what we see in the Declaration of Independence, “deriving their just powers from the consent of the governed,”. The Declaration of Independence is stating what Montesquieu [and Locke] contend, the people are the source of political power. We also see this in the Preamble of the Constitution, “We the People of the United States,…do ordain and establish this Constitution for the United States of America”. The people are giving its consent to be governed, and establish the rules of the government.

In Book III, Montesquieu goes in to the Principles of the three kinds of government, and one of his first observations is that of, “laws ought no less to relate to the principle than to the nature of each government”. In this portion of the writing, what principles run each form of government are discussed. He states,

“For it is clear that in a monarchy, where he who commands the execution of the laws generally thinks himself above them, there is less need of virtue than in a popular government, where the person entrusted with the execution of the laws is sensible of his being subject to their direction”.

This to say, no one is above the law in a Democracy and the one charged with the execution of the Laws is also accountable to them, and aware that they must be sensibly enforced. “Clear is it also that a monarch who, through bad advice or indolence, ceases to enforce the execution of the laws, may easily repair the evil”. He is also saying the one who carries out the laws [the Monarch in this instance], must enforce what is law, it is not a choice but an obligation. We see this concept in the Constitution in Article II Section 3 regarding the President, “he shall take Care that the Laws be faithfully executed”. The Constitution does not give the President the option to enforce laws, it obligates him to do so. Montesquieu also draws upon the lessons of ancient Republics, of how they operated, shortfalls and eventual demise [Greek and Roman for example], in his writings about Republics. We will see in a future post the Delegates in the Convention of 1787 do the same a numerous occasions refer to the ancient Greek or Roman Republics, in support or against various proposals in the drafting of the Constitution. He follows this with discussion on the principles of Aristocracy, Monarchy and Despot governments as well.

Montesquieu discusses the importance of education, “

The laws of education will be therefore different in each species of government: in monarchies they will have honour for their object; in republics, virtue; in despotic governments, fear.”.”It is in a republican government that the whole power of education is required…As such love requires a constant preference of public to private interest, it is the source of all private virtues; for they are nothing more than this very preference itself. ~ 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.”

Montesquieu continues with this principle of virtue with the legislature, “to examine this relation in each government, beginning with the republican state, the principle of which is virtue.” Virtue is a necessary part in order to have a republic. Those who the people elect must have the virtue to faithfully execute the office to which they were chosen, to do otherwise leads to corruption, which Montesquieu discusses later on. Montesquieu continues discussing laws, their relationships with types of governments, the simplicity of law as it should be,  judges, the severity of punishment corruption in, and defensive force  through book X. He draws from many examples in his comparison between the governments using both historical and current governments from around the world.

It is book XI “Of the Laws Which Establish Political Liberty, with regard to the Constitution”, we continue. One of the first things he examines is Liberty itself",

”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”.

This is the Rule of Law in regards to a constitution. Liberty gives us the ability to do what we wish, provided it does not inhibit another from excursing theirs as well. What we do is establish rules in written law to define what those limits are. He continues to state Democracies and Aristocracies are not in their own right free.Both have the ability to suppress the people through simple majorities, perhaps you have heard of this referred to the “tyranny of the Majority”. Montesquieu then states,

“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. Is it not strange, though true, to say that virtue itself has need of limits?”

This is referring back to the virtue required to have a Republic, but also acknowledges the fact, that power does and will corrupt. Eventually those in power will desire more power, to prevent this abuse of power he suggests,

“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 permit”.

This is to define the limits of what government itself can do to the people. As discussed earlier in a Republic, the people are the source of power, and combined with the need to restrain government is the basis for the basis of the Founding Fathers in creating a Constitution of the United States, the defines the role and limit of government to prevent the abuses, and having the people ratify it since they are the only legitimate source of power.

Montesquieu’s  writings on the role of a Constitution to define and limit government is not the end of his influence on the US Constitution. In his analysis of the English Constitution he describes,

“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”.

We see these today as simply the Legislative, Executive and Judicial powers. Montesquieu describes them as follows,

“By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state”. 

The concept of this is what we end up with in our constitution today, thought the details are slightly different. Simply the Congress is to make Law. The President is to enforce Law. The Courts to interpret Law. Some of the differences we have with his description in regards to foreign affairs, is based off of his concept of separation of power, and checking powers both. He states that,

“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”.

If the power to make and enforce laws, the people would be subject to the will of the one who holds the power.

“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”.

He again contends of the need to keep the Judiciary separate from both the Legislature and Executive for similar reasons. This is the reason we have the three branches in not only the Government of the United States and each of the States, but for most free nations in the world in general.

But back to the reason why the foreign powers of the President are different from Montesquieu. The delegates in the Convention decided the separation that Montesquieu described was not enough, that the powers not only needed to be separated, but sufficient checks be placed on each, as suggestion Montesquieu made, to prevent one branch from becoming to powerful, “it is necessary from the very nature of things that power should be a check to power.” This is why the President does not have the authority to make and enact treaties, but requires consent of the Senate [2/3 vote consent], and also does not have the power to make war and peace, which is reserved to Congress. The checks do not stop their for the Constitution, Justices are nominated by the President but confirmed by the Senate. The President may veto Legislation, and the Supreme Court  can nullify it. The checks and balances of power Montesquieu described are what influenced how our system was created. Combine this with Locke's on the idea of Federalism with Montesquieu’s checks on power even more Balances of power are constructed between the National [Federal] Government and the States, each with its own sovereignty, and each also having a means to check the power of the other, and all of  ends in the result of our Democratic Constitutional Federalist Republic .

In Book XI, Montesquieu once gain addresses Liberty,

“liberty consists in the free exercise of the will; or at least, if we must speak agreeably to all systems, in an opinion that we have the free exercise of our will. Political liberty consists in security, or, at least, in the opinion that we enjoy security.”

This has influences on both the Declaration of Independence and the Constitution, but perhaps more evident in the Declaration of Independence itself. The concept of Liberty for the Founding Father included their right to make law upon them selves, Montesquieu describes,

“In popular governments it often happens that accusations are carried on in public, and every man is allowed to accuse whomsoever he pleases. This rendered it necessary to establish proper laws, in order to protect the innocence of the subject.”. Montesquieu even notes, “Liberty often has been weakened in monarchies by a thing of the least use in the world to the prince: this is the naming of commissioners to try a private person.”

This is written almost 35  before the Declaration of Independence, and by a Frenchman. In the Declaration The Founders made several accusations against the King, regarding Liberty including but not limited to.

• He has refused his assent to laws
• He has refused his assent to laws
• He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them, and formidable to tyrants only.
• He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers.
• He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.
• He has abdicated government here, by declaring us out of his protection and waging war against us.
• He has constrained our fellow-citizens, taken captive on the high seas, to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands.
  

It was these grievances and the others, that lead to the American Revolution that began in 1775. Montesquieu discuses the origins and Revolution to the Laws of the Roman and French Empires, but not so much the right of the people to revolt as we saw from Locke, though he does not condemn Revolution against unjust or tyrannical Governments, but promotes the ideas of Liberty, Republicanism, written Constitutions, Separation of power with checks, and the people being the only legitimate source of power, these desires by the American Colonist, are did what lead to the Revolution, the Declaration of Independence, the Articles of Confederation, and the Constitution.
Montesquieu’s book the Spirit of Laws continues on much after this topic. He discusses Laws more, Religion, Money and Feudal Law. But the most influential parts on the Declaration of Independence and Constitution itself happened for the most part in the Books discussed, though other influences can be seen throughout his writings. Combined with Locke, we see two significant influences on the Founding Fathers, and the Delegates to the Constitution Convention of 1787.

”In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another.”

As with Locke, I encourage you to read the The Spirit of Laws your self, as well as John Locke’s, Two Treatises of Government. Discover these ideals yourself, and see how they relate today.