Machiavelli: In the advanced studies that you made in preparation for the composition of your memorable work, [Considerations on] The Causes of the Grandeur and Decadence of the Romans,[1] you remarked the role that the Senate played alongside the emperors, starting with the reign of Augustus.
Montesquieu: If you will permit me to say so, this is a point that historical investigation has not yet completely clarified. It is certain that, up to the last days of the Republic, the Roman Senate had been an autonomous institution, invested with immense privileges and real power; the depth of its political traditions and the grandeur that it imparted to the Republic were the secrets of its power. Starting with Augustus, the Senate became a mere instrument in the hands of the emperors, but one did not quite see by what succession of actions it came to be stripped of its power.
Machiavelli: It was not exactly to elucidate this historical point that I asked you to report upon this period of the Empire. For the moment, this question does not preoccupy me; I simply wanted to say to you that the Senate that I conceive must (alongside the prince) fulfill a political role that would be analogous to the role played by the Roman Senate in the aftermath of the fall of the Republic.
Montesquieu: So. But at that time, the laws were not voted upon by the popular associations; this was done with the aid of the senatusconsult. Is this what you would want?
Machiavelli: No: this would not be in conformity with the modern principles of constitutional rights.
Montesquieu: What thanks should one give you for such a scruple?
Machiavelli: I would have no need for this to decree what appears necessary to me. No legislative arrangement -- as you know -- can be proposed, except if it comes from me, and my decrees have the force of law.
Montesquieu: It is true, you had forgotten to mention this point, which is not minor; but then I do not see to what ends you would reserve the Senate.
Machiavelli: Placed at the highest constitutional sphere, its direct intervention would only take place during solemn circumstances: for example, if it were necessary to engage in a fundamental covenant or if the sovereignty was in peril.
Montesquieu: This language is still very divinatory. You love to prepare your effects.
Machiavelli: Until now, the fixed idea of your modern constituents was to anticipate everything, to rule everything according to the charters that they gave to the people. I would not make such a mistake; I would not want to shut myself into an impenetrable circle; I would only fix things that are impossible to leave uncertain; I would leave a wide enough margin for change so that, in great crises, there would be other means of salvation than the disastrous expedient of revolution.
Montesquieu: You speak wisely.
Machiavelli: And, concerning the Senate, I would inscribe in my constitution: "That the Senate, through a senatusconsult, rules upon everything that has not been anticipated by the constitution and that is necessary for its progress; that it fixes the meaning of the articles of the constitution that might give rise to different interpretations; that it supports or annuls all the acts that are referred to it as unconstitutional by the government or denounced by petitions lodged by the citizens; that it can propose the bases for projected laws that have great national interest; that it can propose modifications in the constitution that will be handed down by a senatusconsult."
Montesquieu: All this is very good, and such a senate would truly be a Roman Senate. I will only make a few remarks about your constitution: it would be drafted in very vague and ambiguous terms because you have judged, in advance, that the articles that it contains would be susceptible to different interpretations.
Machiavelli: No, it will be necessary to anticipate everything.
Montesquieu: I would have believed that your principle in such matters would have been to avoid anticipating and regulating everything.
Machiavelli: The illustrious President has not haunted the Palace of Themis without profit, nor uselessly worn the round judicial cap. My words have not had any other import than this: it is necessary to anticipate what is essential.
Montesquieu: Tell me, I beg you: your Senate, the interpreter and guardian of the fundamental pact: does it have a proper power?
Machiavelli: Indubitably, no.
Montesquieu: Everything that the Senate does, you would be the one doing it?
Machiavelli: I am not saying the contrary to you.
Montesquieu: Whatever it interprets, you would be the one interpreting; whatever it modifies, you would be the one modifying; whatever it annuls, you would be the one annulling?
Machiavelli: I do not deny it.
Montesquieu: Thus, you would reserve for yourself the right to undo what you have done, to take back what you have given, to change your constitution, be it good or bad, or even to make it disappear completely if you judge this to be necessary. I am not prejudging your intentions or your motivations, which might make you act in this or that given circumstance; I only ask you where would the weakest guarantee for the citizens be found in the midst of such a vast arbitrariness, and especially how could they ever agree to submit to it?
Machiavelli: I see that the philosophical sensibility returns to you. Be reassured: I would not make any modification of the fundamental bases of my constitution without submitting it for the acceptance of the people by means of universal suffrage.
Montesquieu: But it would still be you who would be the judge of the question of knowing if these modifications that you proposed carry within themselves the fundamental trait that requires that they be submitted to the sanction of the people. Nevertheless, I want to allow that you would not do through a decree or senatusconsult what must be done by plebiscite. Would you yield your constitutional amendments to discussion? Would you have them deliberated upon in the popular associations?
Machiavelli: Incontestably no. If the debate over constitutional articles were ever undertaken in the popular assemblies, nothing could prevent the people from taking possession of the examination of everything by virtue of their right to evocation, and the next day there would be revolution in the streets.
Montesquieu: At least you are logical. So, constitutional amendments would be presented and accepted en bloc?
Machiavelli: Not otherwise.
Montesquieu: So, I believe that we can now move on to the organization of the Council of State.
Machiavelli: You truly lead these debates with the consummate precision of a president of the sovereign court. I forgot to tell you that I would appoint [the members of] the Senate as I would appoint [the members of] the Legislative Body.
Montesquieu: This was understood.
Machiavelli: Moreover, I need not add that I would also reserve for myself the nomination of the presidents and vice-presidents of this upper assembly. Concerning the Council of State, I will be more brief. Your modern institutions are such powerful instruments of centralization that it is almost impossible to make use of them without exercising sovereign authority.
According to your principles, what is the Council of State? It is a simulacrum of a political body that is intended to put into the hands of the prince a considerable power, the regulatory power, which is a kind of discretionary power, which can be used to make real laws when one wants to do so.
Moreover, the Council of State -- according to your ideas (so one tells me) -- is invested with a special attribute that is, perhaps, even more exorbitant. In contentious matters, it can (one assures me) claim by the right of evocation, and can reclaim by its own authority, in front of the ordinary tribunals, knowledge of all the litigation that appears to it to have an administrative character. Thus -- and to summarize in a phrase what is completely exceptional in this attribute -- the courts must refuse to judge when they find themselves in the presence of an act of administrative authority, and the administrative authority can, in such cases, supersede the courts so as to refer the discussion to the Council of State.
Once more, then: what would the Council of State be? Would it have proper power? Would it be independent of the sovereign? Not at all. It would only be an Editorial Committee. When the Council of State makes a regulation, it would [in fact] be the sovereign who makes it; when it renders a judgment, it would [in fact] be the sovereign who renders it or, as one says today, it would be the administration, the administration who would be the judge and the jury of its own cases. Do you know anything stronger than this, and do you believe that there is more to do to establish absolute power in the States that are similarly organized?
Montesquieu: Your critique is quite just, I agree, but since the Council of State would be an excellent institution in itself, nothing could be easier than giving it the necessary independence by isolating it -- to a certain extent -- from power. No doubt this would not be what you would do.
Machiavelli: Actually, I would maintain the type of unity in the institution that already exists there, I would restore it where it does not exist, by tightening the links of solidarity that I regard as indispensable.
We need not continue any further, because my constitution is now finished.
Montesquieu: Already?
Machiavelli: A small number of skillfully ordered arrangements would suffice to change the march of the powers completely. This part of my program is completed.
Montesquieu: I believe that you still must speak to me of the court of cassation.
Machiavelli: What I have to say to you would be better placed elsewhere.
Montesquieu: [OK then.] It is true that, if we evaluate the sum of the powers that would now be in your hands, you must begin to be satisfied.
Let us recapitulate. You would make the laws in the form of 1) propositions by the Legislative Body; 2) decrees; 3) senatusconsults; 4) general regulations; 5) decrees of the Council of State; 6) ministerial regulations; and 7) coups d'Etat.
Machiavelli: You do not appear to suspect that what remains for me to accomplish would be precisely the most difficult.
Montesquieu: Actually, I do not suspect this.
Machiavelli: You have not remarked that my constitution was silent about a crowd of established rights that would be incompatible with the new order of things that I would found. For example: freedom of the press, the right of [free] association, the independence of the magistracy, the right to suffrage, the election of municipal officials by the communes, the institution of the civic guards and many other things that would have to disappear or be profoundly modified.
Montesquieu: But have you not implicitly recognized all these rights, since you solemnly recognized the principles of which these rights are the application?
Machiavelli: I said to you that I would not recognize any principle or right in particular; moreover, the measures that I would take are only exceptions to the rule.
Montesquieu: And these exceptions confirm it; this is just.
Machiavelli: But to do this, I wold have to choose my moment well, because an error in timing could ruin everything. In The Prince, I wrote a maxim that must serve as a rule of conduct in such cases: "In taking a state, its occupier must consider all those offenses which it is necessary for him to do, and do them all in one stroke, in order not to have to renew them ever day, and not renewing them to reassure men and to earn them to himself by benefiting them. Whoever does otherwise, either out of timidity or because of bad counsel, is always constrained to keep the knife in hand; nor can he ever base himself upon his subjects, these being not able to be sure of him because of the fresh and continuous injuries."[2]
The very day after the promulgation of my constitution, I would issue a succession of decrees that would have the force of law and that would, in a single blow, suppress the liberties and rights of which the exercise would be dangerous.
Montesquieu: That moment would be well-chosen. The country would still be terrorized by your coup d'Etat. Concerning your constitution, one could not refuse you anything, because you could take everything; concerning your decrees, one could not allow you anything, because you haven't demanded anything, and you have taken everything.
Machiavelli: You have a quick tongue.
Montesquieu: Not as quick as your actions, you will agree. Despite your vigorous hand and your insight, I confess to you that I have difficulty believing that the country would not revolt in response to a second coup d'Etat held in reserve behind the scenes.
Machiavelli: The country would willingly close its eyes, because, in this hypothesis, it would be weary of agitation, it would hope for rest like the desert sands do after the shower that follows the tempest.
Montesquieu: You expressed this with beautiful rhetorical figures; it was too much.
Machiavelli: I hasten to tell you that I would solemnly promise to give back the liberties that I had suppressed after the parties are pacified.
Montesquieu: I believe that one would wait forever.
Machiavelli: It is possible.
Montesquieu: Certainly, because your maxims allow the prince to not keep his word when he finds it to be in his interest.
Machiavelli: Do not be in such haste; you will see the use that I would make of this promise. Soon after, I would pass myself off as the most liberal man in my kingdom.
Montesquieu: I was not prepared for such a surprise; in the meantime, you would directly suppress all liberties.
Machiavelli: "Directly" is not the word of a statesman; I would not suppress anything directly; here the fox must work with the lion.[3] What use is politics if one cannot gain through oblique routes the goal that cannot be obtained by a straight line? The bases of my establishment are set; my forces are ready; there is nothing left but to put them into motion. I would do so with all the discretion that the new constitutional customs allow. It is here that all the artifices of government and legislation that prudence recommends to the prince would, naturally, be used.
Montesquieu: I see that we are about to enter a new phase; I plan to listen to you.
[1] Published in 1734.
[2] The Prince, Chapter VIII. Note that rather than translating Joly's French translation of Machiavelli's original into English, we have quoted from Angelo M. Codevilla's translation of the Italian original. If we had made such a second-order translation, it would have been this: "The usurper of a State must commit the rigorous acts that his security would necessitate all at once, so that he does not have to return to them; because later on he will not be able to vary either for the better or the worse; for if it would be for the worse that he would have to act, he would be too late if fortune turned against him; and if it would be for the best, his subjects would not be grateful for any change that they would consider to be forced upon them."
[3] The Prince, Chapter XVIII: "Therefore, since a prince is constrained by necessity to know well how to use the beast, among [the beats] he must choose the fox and the lion; because the lion does not defend itself from traps, the fox does not defend itself from the wolves. One therefore needs to be a fox to recognize traps, and a lion to dismay the wolves."