Machiavelli: I have already said many times, and I will repeat it again, that I do not need to create everything, to organize everything; I find a large part of the instruments of my power in the already existing institutions.[1] Do you know what the constitutional guarantee is?
Montesquieu: Yes, and I am sorry, because -- without wanting to do so -- I have taken away a surprise that perhaps you wanted to spring on me with the skillfulness of staging that is proper to you.
Machiavelli: What are you thinking?
Montesquieu: I think that, at least in the France of which you seem to want to speak, it is true that this is a law of circumstance that must be modified, if not completely removed, under a regime of constitutional liberty.
Machiavelli: In find you very moderate on this point. According to your ideas, it is simply one of the most tyrannical restrictions in the world. Why? When private citizens are injured by government agents during the exercise of their official functions, and when they haul these agents into court, the judges must respond to the plaintiffs: "We cannot render you justice, the door to the court is closed: go demand authorization from the administration to prosecute its functionaries." But this would be a real denial of justice. How many times would a government have to authorize such prosecutions?
Montesquieu: What makes you complain? It seems to me that this would suit your affairs very well.
Machiavelli: I have only said this to show you that, in the States in which the action of justice encounters such obstacles, a government would not have anything to fear from the courts. It is always as transitional arrangements that one inserts such exceptions into the law, but once the period of transition passes, the exceptions remain, and rightly so, because when order reigns, they do not inconvenience, but when it is troubled, they are necessary.
This is another modern institution that serves the efficacy of the action of centralized power: the creation of a great magistracy surrounding the courts, which you call the Public Ministry and that, with much more reason, one previously called the Ministry of the King, because this function is essentially removable and revocable at the liking of the prince. I do not need to tell you the influence of this magistracy on the courts around which they sit: it is considerable. Remember all this. Now I must speak to you of the court of cassation, about which I have restrained myself from speaking and which would play a considerable role in the administration of justice.
The court of cassation is more than a judicial body: in a certain way it is a fourth power in the State, because to it belongs the last word in fixing the meaning of the law. So I will repeat here what I believe I told you with respect to the Senate and the Legislative Assembly: an equal court of justice that would be completely independent of the government could -- by virtue of its sovereign and nearly discretionary power of interpretation -- overthrow the government when it wanted to do so. For this, it would suffice for it to systematically curtail or extend (where liberty is concerned) the dispositions of the laws that rule the exercise of political rights.
Montesquieu: And, apparently, you would demand the contrary?
Machiavelli: I would demand nothing of it; it would do on its own what is fitting for it to do. Because here the different influences of which I spoke to you earlier would most strongly compete. The closer the judge is to power, the more he belongs to it. The conservative spirit of the reign would develop here to a much greater degree than anywhere else, and the higher laws of the political police would receive -- at the heart of this great assembly -- an interpretation so favorable to my power that I could do without a crowd of restrictive measures that would be necessary without it.
Montesquieu: Listening to you speak, one could truly say that the laws are susceptible to the most fantastic interpretations. Is it that the legislative texts are not clear and precise? Can they loan themselves to the extensions or restrictions that you have indicated?
Machiavelli: I would not have the pretense of teaching jurisprudence to the author of the Spirit of the Laws, to the experienced magistrate who rendered so many excellent decrees. There is no text, no matter how clear it is, that cannot accommodate the most contrary solutions, even in pure civil rights; but I beseech you to note that we deal with political matters here. Therefore, it is a common habit among legislators of all eras to adopt in some of their arrangements a quite elastic phrasing so that they can, according to circumstances, serve to govern cases or introduce exceptions, the precise explication of which would not be prudent.
I know perfectly well that I must give you examples, because without them my propositions will appear too vague to you. The difficulty for me will be to find one of sufficient generality to allow me to dispense with going into details. Here is one example for which I have a preference, since we touched upon it a little while ago.
Speaking of the constitutional guarantee, you said that this law of exception would have to be modified in free countries.
So, I will suppose that this law exists in the State that I would govern; I will suppose that it has been modified; thus I can imagine that, previous to my ascension, a law had been promulgated that allowed the prosecution of government agents concerning electoral matters without the authorization of the Council of State.
The question might come up under my rule, which, as you know, would introduce great changes in public rights. One might want to prosecute a functionary before the courts on the occasion of an electoral misdeed. The magistrate of the public ministry could rise and say: "The privilege that one wants to avail oneself of today no longer exists; it is not compatible with the current institutions. The old law that permitted the authorization of the Council of State in such cases has implicitly been abrogated." The courts may respond favorably or unfavorably; in the end, the debate would be carried on before the court of cassation and this superior jurisdiction would thus set forth the public rights on this point: the old law is implicitly abrogated; the authorization of the Council of State is necessary to prosecute public functionaries, even in electoral matters.
Here is another example: it is more particular; it is borrowed from the policing of the press. One tells me that, in France, there is a law that -- under penal sanction -- obliges all the people who work in the distribution and peddling of writings to be provided with an authorization from the public functionary who is in charge of general administration in that particular province. The law is intended to regulate peddling and to subject it to close surveillance; such is the essential goal of this law, but the text of it, I suppose, reads: "All distributors or peddlers must be provided with an authorization, etc."
So, if the question comes before the court of cassation, it could say: "It is not only the professional trades that the law has in view. It is all distribution and peddling that is covered." Consequently, the very author of a text or a work who delivers one or several copies, even as complimentary gifts, without prior authorization, would commit the act of distribution and peddling, and would consequently fall under the penal provision of this law.
You can see what would result from a similar interpretation: instead of a simple law of policing, you would have a law that restricts the right to publish one's thinking through the means of the press.
Montesquieu: You have not failed to be a writer on legal matters.
Machiavelli: This has been absolutely necessary. Today, how does one overthrow governments? By legal distinctions, by the subtleties of constitutional rights, by using against power all the means, weapons and arrangements that are not directly prohibited by the law. And these legal artifices, which the various parties employ against power with so much fury: would you not want power to employ them against these parties? If not, the struggle would not be equal; resistance would not even be possible; it would be necessary [for the sovereign] to abdicate.
Montesquieu: You would have so many stumbling blocks to avoid: it would be a miracle if you could foresee them all. The courts would not be bound by their judgments. With a jurisprudence such as the one you would employ under your reign, I see you fighting lawsuits on all sides. Those subject to your jurisprudence would not tire of knocking on the door of the courthouses to seek other interpretations.
Machiavelli: At first, this would be possible; but when a certain number of decrees have definitively established [assis] this jurisprudence, no one will take the liberty of doing what it prohibits, and the source of the lawsuits will be drained. Public opinion will even be so appeased that the people will yield to the administration's unofficial opinions concerning the meaning of the laws.
Montesquieu: And how, I beg you?
Machiavelli: In this or that given conjuncture, when one would have reason to fear that some difficulty would arise concerning this or that point of law, the administration would declare in the form of an opinion that this or that act falls under the jurisdiction of the law, that the law covers this or that case.
Montesquieu: But these would only be declarations that would not bind the courts in any way.
Machiavelli: No doubt, but these declarations would still have a very great authority, a very great influence over judicial decisions, coming from an administration as powerful as the one that I would organize. Such declarations would especially have a very great control over individual resolutions and -- in a vast majority of cases, if not always -- they would prevent annoying lawsuits. One would abstain from [bringing] them.
Montesquieu: As we advance, I see that your government becomes more and more paternal. These would almost be patriarchal judicial customs. In fact, it seems impossible to me that one would not keep in mind a solicitude that would be shown for so many [of your] ingenuous forms.
Machiavelli: Nevertheless, here you are be obliged to recognize that I am far from the barbarous governmental proceedings that you seemed to attribute to me at the beginning of this discussion. You see that violence would play no role in all this; I would place my support where everyone does today: in the law.
Montesquieu: In the strongest law.
Machiavelli: The law that makes itself obeyed is always the strongest law; I do not know any exception to this rule.
[1] Karl Marx, The 18th Brumaire of Louis Bonaparte (1852): "Present-day France was already contained in the parliamentary republic. It only required a bayonet thrust for the bubble to burst and the monster to leap forth before our eyes." See also Victor Hugo's Napoleon the Little, Book VIII, Chapter IV: "Your political system bears that within it that will destroy it."