My dear Sir,
MY design is more extensive than barely to shew the imperfection of Mr. Turgot's idea. This might be done in a few words, and a very short process of reasoning: but I wish to assemble together the opinions and reasonings of philosophers, politicians, and historians, who have taken the most extensive views of men and societies, whole characters are deservedly revered, and whose writings were in the contemplation of those who framed the American constitutions. It will not be contested, that all these characters are united in Polybius, who, in a fragment of his sixth book, translated by Edward Spelman, p. 291 at the end of his translation of the Roman Antiquities of Dionysius Halicarnassensis, says: "It is customary to establish three sorts of governments; kingly government, aristocracy, and democracy: upon which one may very properly ask them, whether they lay these down as the only forms of government, or as the best; for in both cases they seem to be in an error, since it is manifest, that the best form of government is that which is compounded of all three. This is founded not only in reason but in experience, Lycurgus having set the example of this form of government in the institution of the Lacedemonian commonwealth."
Six kinds of government must be allowed: kingly government and monarchy, aristocracy and oligarchy, democracy, and the government of the multitude.
Lycurgus concluded, that every form of government that is simple, by soon degenerating into that vice that is allied to it, must be unstable. The vice of kingly government is monarchy; that of aristocracy, oligarchy; that of democracy, rage and violence; into which, in process of time, all of them must degenerate. Lycurgus, to avoid these inconveniences, formed his government not of one sort, but united in one all the advantages and properties of the best governments; to the end that no branch of it, by swelling beyond its due bounds, might degenerate into the vice which is congenial to it; and that, while each of them were mutually acted upon by opposite powers, no one part might incline any way, or out-weigh the rest; but that the commonwealth, being equally poised and balanced, like a ship or a waggon, acted upon by contrary powers, might long remain in the same situation; while the king was restrained from excess by the fear of the people, who had a proper share in the commonwealth; and, on the other side, the people did not dare to disregard the king, from their fear of the senate, who, being all elected for their virtue, would always incline to the justest fide; by which means, that branch which happened to be oppressed became always superior, and. by the accessional weight of the senate, outbalanced the other. This system preserved the Lacedemonians in liberty longer than any other people we have heard of ever enjoyed it.
All the three principal orders of government were found in the Roman commonwealth; every thing was constituted and administered with that equality and propriety by these three, that it was not possible, even for a Roman citizen, to assert positively, whether the government, in the whole, was aristocratical, democratical, or monarchical. For when we cast our eyes on the power of the consuls, the government appeared entirely monarchical and kingly; when on that of the senate, aristocratical; and when any one considered the power of the people, it appeared plainly democratical.
The consuls, when they are at Rome, and before they take the field, have the administration of all public affairs; for all other magistrates obey them, except the tribunes of the people: they introduce ambassadors into the senate; they also propose to the senate those subjects of debate that require immediate dispatch; and are solely entrusted with the execution of the decrees; to them belongs the consideration of all public affairs of which the people have cognizance, whom they are to assemble upon all occasions, and lay before them the decrees of the senate, then pursue the resolutions of the majority. They have almost an absolute power in every thing that relates either to the preparations of war, or to the conduct of it in the field; for they may give what orders they please to their allies, and appoint the tribunes; they may raise forces, and enlist those who are proper for the service: they also have a power, when in the field, of punishing any who serve under them; and of expending as much as they please of the public money, being always attended by a quæstor for that purpose, whose duty it is to yield a ready obedience to all their commands. So that whoever casts his eyes on this branch, may with reason affirm, that the government is merely monarchical and kingly.
The senate have, in the first place, the command of the public money: for they have the conduct of all receipts and disbursements; since the quæstors cannot issue money for any particular service without a decree of the senate, except those sums they pay by the direction of the consuls.
It has the power over all disbursements made by the censors, every fifth year, in erecting and repairing public buildings; takes cognizance of all crimes committed in Italy, such as treasons, conspiracies, poisonings, and assassinations; sends embassies out of Italy to reconcile differences, use exhortations, signify commands, admit alliances, or declare war; determines, when ambassadors come to Rome, in what manner they are to be treated, and the answer to be given them. For these reasons, when a foreigner comes to Rome, in the absence of the consuls, the government appears to him purely aristocratical
There is still a most considerable share in the government left for the people. They only have the power of distributing honours and punishments, to which alone both monarchies and commonwealths, in a word all human institutions, owe their stability: for wherever the difference between rewards and punishments is not understood, or injudiciously applied, there nothing can be properly administered, since the worthy and unworthy are equally honoured!
They often take cognizance of those causes where the fine is considerable, if the criminals are persons who have exerclsed great employments; and in capital cases they alone have jurisdiction; and a custom prevails with them, to give those who are tried for their lives a power of departing openly to voluntary banishment.
They have the power of conferring the magistracy upon those they think worthy of it, which is the most honourable reward of merit any government can bestow.
They have the power of rejecting and confirming laws, and determine concerning peace and war, alliances, accommodations, and conventions.
So that, from hence again, one may with reason assert, that the people have the greatest share in the government, and that the commonwealth is democratical.
These orders, into which the commonwealth is divided, have the power to oppose, assist, and balance each other, as occasion may require.
Though the consul at the head of his army in the field, seems to have an absolute power to carry every thing he proposes into execution, yet he still stands in need of the people and senate, and without their assistance can effect nothing; for neither corn, clothes, nor pay, can be furnished to the army without the consent of the senate; who have also the power of sending another general to succeed him, as soon as the year is expired, or of continuing him in the command. Again, they may either magnify and extol, or obscure and extenuate, the victories of the generals: for these cannot celebrate their triumphs unless the senate contents to it, and furnishes the necessary expence.
As the power of putting an end to the war is in the people, the generals are under a necessity of having their approbation, who have the right of ratifying and annulling all accommodations and conventions. It is to the people that the generals, after the expiration of their command, give an account of their conduct: so that it is. by no means safe for them to disregard the favour either of the senate, or of the people.
The senate is under a necessity of shewing a regard to the people, and of aiming at their approbation; as not having the power to punish crimes of the first magnitude with death, unless the people confirm the previous decree: if a law is proposed, by which part of the power of the senate is to be taken away, their dignities abolished, or even their fortunes diminished, the people have it in their power either to receive or reject it. If one of the tribunes of the people opposes the passing of a decree, the senate are so far from being able to enact it, that it is not even in their power to consult or assemble at all. For all these reasons, the senate stands in awe of the people.
The people also are subject to the power of the senate, and under an obligation of cultivating the good-will of all the senators, who have many opportunities both of prejudicing and advantaging individuals. Judges are appointed out of the senate in most causes that relate to contracts, public or private. There are many rivers, ports, gardens, mines, and lands, and many works relating to erecting and repairing public buildings, let out by the centers, under the care of the senate; all these are undertaken by the people; some are purchasers, others partners, some sureties for the contracts. All these things are under the controul of the senate, which has power to give time, to mitigate, and, if any thing has happened to render the performance of the contract impracticable, to cancel it. The people, thus dependent on the senate, and apprehending the uncertainty of the occasions in which they may stand in need of their favour, dare nor resist or oppose their will.
In like manner, they are not easily brought to obstruct the designs of the consuls, because all of them in general, and every one in particular, become subject to their authority, when in the field.
Such being the power of each order to hurt and assist each other, their union is adapted to all contingencies, and it is impossible to invent a more perfect system. When the common fear of a foreign enemy compels them to act in concert, such is the strength of the government, that nothing necessary is omitted, or comes too late, since all vie with each other in directing their thoughts to the public good, and their endeavours to carry their designs into execution. The commonwealth, from the peculiar frame of it, becomes irresistible, and attains whatever it proposes.
When, in consequence of victory, they live in prosperity and affluence, enjoying their good fortune free from the fear of a foreign enemy, they grow, through ease and flattery, insolent and proud; their commonwealth is then chiefly observed to relieve itself: for when any branch of it becomes ambitious, and, swelling beyond its bounds, aims at unwarrantable power, being subject to the controul of the other two, it cannot run into any excess of power or arrogance; but all three must remain in the terms prescribed by the constitution.
Thus, my dear Sir, you see that Polybius's opinion of different orders, checks, and balances, in a commonwealth, is very different from that of Mr. Turgot. The Roman constitution formed the noblest people, and the greatest power, that has ever existed. But if all the powers of the consuls, senate, and people, had been centered in a single assembly of the people, collectively or representatively, will any man pretend to believe that they would have been long free, or ever great?
The distribution of power was however never accurately or judiciously made in that constitution: the executive was never sufficiently separated from the legislative, nor had these powers a controul upon each other defined with sufficient accuracy: the executive had not power to interpose and decide between the people and the senate.
As we advance in this correspondence, we may see cause to differ widely from the judgment or Polybius, "that it is impossible to invent a more perfect system of government." We may be convinced that the constitution of England, if its balance is seen to play, in practice, according to the principles of its theory that is to say, if the people are fairly and fully represented, so as to have the power of dividing or choosing, of drawing up hill or down, instead of being disposed of by a few lords is a system much more perfect. The constitutions of several of the United States, it is hoped, will prove themselves improvements, both upon the Roman, the Spartan, and the English commonwealths.
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