Montesquieu happened to visit Great Britain and was tremendously impressed by the spirit of freedom prevailing there. He tried to find, out the causes of the liberty of the British people. He compared the independence of the judges and the strength of Parliament there with the subordination of the judiciary to the French Monarchy and the virtual extinction of the Estates-General.
Not foreseeing the rise of the Cabinet system of government in Britain and keenly desiring to substitute political liberty for royal absolutism in France, Montesquieu advocated the separation of powers as a device to make government safe for the governed. The division of powers that he envisaged was the same as that of Locke, except for renaming Locke’s executive power and calling it the judicial power.
The executive function, as described by Locke, had been to execute the laws in any case. He also changed Locke’s terminology and named his federative power as the executive power. But in his insistence that they must be entrusted separately to different personnel he went considerably ahead of his predecessor. His most famous statement runs thus:
“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, and execute them in a tyrannical manner.
Again, there is no liberty if the judicial 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 then be legislator. Were it joined to the executive power, the judge might behave with violence and oppression.
There would be an end of everything, were the same man or the same body… to exercise those three powers that of enacting laws, that of executing the public resolutions, and of trying the cases of individuals.”
To explain briefly and in simple language, Montesquieu endeavoured to establish that whoever has unrestrained power, will abuse it. If the legislative and executive powers arc combined in the same person or body of persons, there can be no liberty, because the same agency becomes the maker and executor of laws.
Similarly, if the legislative and judicial functions are combined the maker of laws is also their interpreter. If the executive powers are combined with the judicial, the same agency is the prosecutor as well as the judge. If all the three powers are concentrated in a single hand there would be an end of everything, as there will be tyrannical laws interpreted and enforced with the violence of an oppressor.
Montesquieue’s thesis is that concentration of legislative, executive and judicial functions, either in one single person or a body of persons, results in abuse of authority, and such an organisation is tyrannical.
He urged that the three departments of government should be so organised that each should be entrusted to different personnel, and each department should perform distinct functions within the sphere of powers assigned to it.
There has been some controversy among students of Political Science whether Montesquieu contemplated an absolute or only a limited separation of three powers. One school is of the opinion that Montesquieu desired absolute separation so that each department remained independent and supreme within its own sphere.
Others believe that he never thought to separate the powers completely. He rather suggested modification of the concentration of powers. “Montesquieu was searching for means,” as Herman Finer observes, “to limit the Crown; to make a constitution; to build canals through which, but not over which, power should stream; to create intermediary bodies; to check and balance probable despotism and yet he did not wish to fly to the extreme of democracy.”
For Montesquieu, the executive convenes the legislature, fixes its duration, and votes legislation. The legislature has the right of impeachment. It may not arraign the chief of the State but, “as the person entrusted with the executive power cannot abuse it, without bad counsellors, and such as have the laws as ministers, though the laws protect them as subjects, these men may be examined and punished.” His idea of impeachment is akin to that of political responsibility of ministers in our times.
Loeke’s analysis of the government structure, too, proves that the various powers of government were not to be separated into watertight compartments. He made them dependent on the supreme power of the people, the executive functioned in subordination to the legislature; and the judiciary worked as part and parcel of the executive.
The essence of Montesquieu’s theory of Separation of Powers is that it imposes on each organ of government the obligation to explain itself and to see that it acted within law and not beyond it.
If the authority exercised is in excess of that permitted by law, it should be checked by the other in order to restrain its encroachments. And this is the correct meaning of le pouvoir artere le pouvoir—power halts power.
There must be a separation of powers within the structure of government in order that one power may operate as a balance against another power. Such a check Montesquieu considered necessary for safeguarding the liberty of the individual and for avoiding tyranny.
Montesquieu follows Locke, “but with more system and it is important to observe that he never thinks to separate the powers completely, but rather to modify the concentration of powers.”