My dear Sir,
IN every government there are three sorts of power; the legislative, the executive in respect of things dependent on the law of nations, and the executive in regard to things that depend on the civil law.
By virtue of the first (i. e. the legislative power), 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 political liberty of the citizen, 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 that one citizen need not be afraid of another citizen.
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, or the same senate should enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers: were it joined with the legislative, the life and liberty or the citizens would be exposed to arbitrary controul; for the judge would then be legislator: were it joined to the executive power, the judge might behave with all the violence of an oppressor.
There would be an end of every thing (tout seroit perdu) were the same man, or the same body, whether of princes, of the nobles, or of the people, to exercise those three powers; that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals.
Most kingdoms in Europe enjoy a moderate government, because the prince, who is invested with the two first powers, leaves the third to his subjects. In Turkey, where these three powers are united in the sultan's person, the subjects groan under the weight of a most frightful oppression. In the republics of Italy, where these three powers are united, there is less liberty than in our monarchies. Hence their government is obliged to have recourse to as violent methods for its support, as even that of the Turks; witness the state inquisitors at Venice, and the lion's mouth, into which every informer may at all hours throw his written accusations: what a situation must: the poor citizen be in under those poor republics! The same body of magistrates are possessed, as executors of the laws, of the whole power they have given themselves in quality of legislators. They might plunder the state by their general determinations; and as they have likewise the judiciary power in their hands, every private citizen may be ruined by their particular decisions. The whole power is here united in one body; and though there is no external pomp that indicates a despotic sway, yet the people feel the effects of it every moment.
Hence it is, that many of the princes of Europe, whose aim has been levelled at arbitrary power, have constantly set out with uniting in their own persons all the branches of magistracy, and all the great offices of state.
I allow, indeed, that the mere hereditary aristocracy of the Italian republicks, does not answer exactly to the despotic power of the eastern princes. The number of magistrates sometimes softens the power of the magistracy; the whole body of the nobles do not always concur in the same designs; and different tribunals are erected that temper each other. Thus, at Venice, the legislative power is in the council, the executive in the pregadi, and the judiciary in the quarantia. But the mischief is, that these different tribunals are composed of magistrates all belonging to the same body; which constitutes almost one and the same power.
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, as at Athens, at certain times of the year, and pursuant to a form and manner prescribed by law, in order to erect a tribunal that should last only as long as necessity requires.
By this means the power of judging, a 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.
In accusations of a deep or criminal nature, it is proper the person accused should have the privilege of chusing, in some measure, his judges, in concurrence with the law? or, at least, he should have a right to except against so great a number, that the remaining part may be deemed his own choice. The other two powers may be given rather to magistrates or permanent bodies, because they are not exercised on any private subject; one being no more than the general will of the state, and the other the execution of that general will.
But though the tribunals ought not to be fixed, yet the judgments ought, and to such a degree as to be always conformable to the exact letter of the law. Were they to be the private opinion of the judge, people would then live in society without knowing exactly the obligations it lays them under.
The judges ought likewise to be in the same station 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.
If the legislative leaves the executive power in possession of a right to imprison those subjects who can give security for their good behaviour, there is an end of liberty; unless they are taken up, in order to answer, without delay, to a capital crime; in this case they are really free, being subject only to the power of the law.
But should the legislature think itself in danger, by some secret conspiracy against the state, or by a correspondence with a foreign enemy, it might authorise the executive power, for a short and limited time, to imprison suspected persons; who, in that case, would lose their liberty only for a while, to preserve it for ever. And this is the only reasonable method that can be substituted to the tyrannical magistracy of the Ephori, and to the state inquisitors of Venice, who are also despotical.
As, in a free state, every man who is supposed a free agent, ought to be his own governor; so the legislative power should reside in the whole body of the people. But since this is impossible in large states, and in small ones is subject to many inconveniencies; it is fit the people should execute by their representatives what they cannot execute by themselves.
The inhabitants of a particular town are much better acquainted with its wants and interests, than with those of other places; and are better judges of the capacity of their neighbours, than of that of the rest of their countrymen. The members therefore of the legislature should not be chosen from the general body of the nation; but it is proper, that in every considerable place, a representative should be elected by the inhabitants.
The great advantage of representatives, is their being capable of discussing affairs; for this the people collectively are extremely unfit, which is one of the greatest inconveniencies of a democracy.
It is not at all necessary that the representatives, who have received a general instruction from their electors, should wait to be particularly instructed on every affair, as is practised in the diets of Germany. True it is, that by this way of proceeding, the speeches of the deputies might with greater propriety be called the voice of the nation: but, on the other hand, this would throw them into infinite delays; would give each deputy a power of controuling the assembly; and on the most urgent and pressing occasions, the springs of the nation might be stopped by a single caprice.
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