Montesquieu and the Separation of Powers
![handle is hein.journals/orglr12 and id is 181 raw text is: OREGON LAW REVIEW
VOLUME XII APRIL, 1933 NUMBER 3
MONTESQUIEU AND THE SEPARATION OF POWERS
JAMES T. BRAND
Underlying the constitution of the United States is a theory.
Underlying that theory was an inspired mistake. In 1748, before the
era of written constitutions and limited governments, Baron de Mon-
tesquieu broadcast into the electrified air that preceded the thunder-
claps and flares of the French revolution, his L'Esprit des Lois.
It was a portentous book. Born to immense popularity, its influence
is still potent in our own time. So profound has been its imprint
upon the government of the United States that the truth of our
premises must be strictly examined or later conclusions will be
thought fanciful.
In reviewing the work of such a genius, subtle, brilliant, yet philo-
sophical, our worst temptation will be the delightful error of dis-
cursiveness. The harvest of events depends on soil as well as seed,
and to apprehend the influence of Montesquieu upon the development
of ordered liberty and governmental form, we should know the world
into which he came.
Back of the revolutionary era of the eighteenth century lay the
Renaissance, a mighty cumulative tide of thought and aspiration that
re-vitalized the dry scholasticism of Europe. From it we trace the
rise of liberalism, the inspiration of the new philosophy of Bacon,
Descartes, Spinoza, Locke. In the field of economics we note the
waning of mercantilism, offspring of monarchy, with its convenient
doctrines calculated to fill the treasure chests of spendthrift kings;
we view the rise of a new economic doctrine fostering freedom of
trade and unfettered individualism. We see life in flux, in the mind
of man a new susceptibility, and in the air new concepts of liberty
and of the functions of government. We envision blind ominous
forces, moving resistlessly toward the French revolution, for into
such jungle soil was the Spirit of the Laws sown.
But all of this must be reserved for a future time. In the Spirit
of the Laws is a short chapter which treats Of the Laws Which
Establish Political Liberty with Regard to the Constitution.' In
this brief treatise is stated the classical theory of the separation of
1 MONTEsQUisU, THE SPmr oF THE LAWS, (Nugent's Transl. 1909, Bk.
XI, p. 160.
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Montesquieu and the Separation of Powers
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