INTRODUCTION
The separation of powers, the concept that the
legislative, judicial, and executive branches of government
ought to be separate and distinct, is a central feature of the
United States Constitution.
Through this separation, each
branch works according to its own authority, forming a check
or balance against any abuse of power by the remaining two
branches.1
James Madison, the Founding Father most often
credited with including this feature in the constitution,
declares, “no political truth is certainly of greater
intrinsic value” (Federalist Papers No. 47).
Most consider the French philosopher Charles Louis de
Secondat Baron de Montesquieu the author of this system of
checks and balances.2
The Founding Fathers repeatedly cite
his work Spirit of the Laws as the authority on the issue.3
Madison himself proclaims, “the oracle who is always consulted
1See
C. Rossiter, 1787: The Grand Convention (New York: W. W.
Norton, 1987), 64.
2“The
18th-century French philosopher Montesquieu is popularly
credited with originating the doctrine, but its roots reach back to
ancient times,” George W. Carey, “Government,” in Encyclopedia
Americana (1989), 130; see also D. Hutchison, The Foundations of
the Constitution (Secaucus, New Jersey: University Books, 1975),
20-21.
3“‘The
Fathers’ had for their oracle of political philosophy
the treatise of Montesquieu on the ‘Spirit of Laws’,” James Bryce,
American Commonwealth, vol. 1 (New York: Macmillan Company, 1911),
29. “The oracles usually consulted were Blackstone and
Montesquieu. The ‘Spirit of Laws’ was studied by Washington as
part of his preparation for the work of the convention,” Hannis
Taylor, The Origin and Growth of the English Constitution, vol. 1
(Boston: Houghton, Mifflin, 1889), 60. “Montesquieu is accepted as
the oracle of political theory for that time,” R. A. Ames and H. C.
Montgomery, “The Influence of Rome on the American Constitution,”
CJ 30 (1935): 27.
and cited on this subject is the celebrated Montesquieu”
(ibid.).
Nevertheless, this paper proposes that--while
Montesquieu may have presented the framers of the Constitution
with the most modern incarnation of that principle--he borrows
too heavily from Polybius and the ancient theory of the mixed
constitution (mikth/) to be credited accurately as its
originator.
The arguments for this position will be presented in
three chapters.
The first will trace the origins of the
theory of mixed constitution to antiquity and especially
Polybius’ Histories,4 while underscoring similarities between
Polybius’ system and that of the American Constitution.
Other
sources will include Herodotus, Thucydides, Plato, Aristotle,
his pupil Dicaearchus of Messana, Diogenes Laertius, and
Cicero.
The second chapter will explore the availability of the
Histories to the Founding Fathers, addressing whether they
were aware of Polybius’ teachings on the separation of powers.
In particular, a survey of the works of Jefferson, Madison,
Monroe, Otis, Adams, and Hamilton will serve as representative
of what was available to the framers of the constitution
generally.
Note that while Jefferson was not present at the
convention himself (he was representing the United States in
Paris at the time), he was in correspondence with many who did
attend and had presented them with books, material, and ideas
from Europe.
4Translations
of all ancient texts will be taken from the Loeb
Classical Library.
2
The third chapter will focus on Montesquieu himself,
exploring the extent to which his own work is based on that of
Polybius and the classical tradition of the mixed
constitution.
Particular attention will be given to the fact
that several of his recent predecessors had already touted the
efficacy of separation of powers long before the publication
of Montesquieu’s works.
Key sources for this chapter will
include Harrington, King Charles I of England, Locke,
Bolingbroke, and Blackstone, as well as the criticism of
several modern scholars who call into question the
indispensability of Montesquieu in America’s adopting the
separation of powers.
3
CHAPTER ONE
In order to discuss the concept of the mixed constitution
in antiquity,5 it is important first to understand what is
meant by a simple constitution.
In Book VI of his Histories
(6.4.6-11; cf. 6.3.5), the ancient Greek historian Polybius
outlines three simple forms of constitution--each categorized
according to the number of its ruling body: monarchy (rule by
the one), aristocracy (rule by the few), and democracy (rule
by the many).6
According to the historian, these three simple
constitutions each degenerate, over time, into their
respective corrupt forms (tyranny, oligarchy, and mob-rule) by
a cycle of gradual decline which he calls anacyclosis or
“political revolution” (6.9.10: politeiw=n a)naku/klwsij ; 6.4.7-11;
cf. 6.3.9).7
5For
more on mixed constitutions, see Kurt von Fritz, The
Theory of the Mixed Constitution in Antiquity (New York: Arno
Press, 1975); see also Correa Moylan Walsh, The Political Science
of John Adams: a Study in the Theory of Mixed Government and the
Bicameral System (New York: Putnam, 1915), 32, n. 1; and Neal Wood,
“Essentials of the Mixed Constitution,” chap. in Cicero’s Social
and Political Thought (Berkeley: University of California Press,
1991), 159-175.
6Herodotus
is the first to list these three forms of
constitution (Persian Wars 3.80-82). Thucydides (8.97) then
describes a constitutional fusion of two elements: the few and the
many. Also before Polybius, both Plato (Laws 710e, 712c; Menex.
238c-d) and Aristotle (Pol. 1279a) categorize constitutions into
three groups, according to the number of the sovereign body (i.e.,
the one, the few, and the many). For other early works on mixed
constitutions, see F. W. Walbank, Polybius (Berkeley: University of
California Press, 1990), 135-137; and his A Historical Commentary
on Polybius (Oxford: Clarendon Press, 1957), 640, 643-47.
7Polybius
credits the six categories (i.e., the original three
forms of simple constitution and their respective perversions or
parekba/seij) to “Plato and certain other philosophers” (6.5.1:
Pla/twni kai/ tisin e(te/roij tw=n filoso/fwn). Plato (Laws 712c), however,
allows for only five of the six forms of constitution because he
does not distinguish nominally between democracy and mob-rule.
4
For monarchy, he claims, inevitably degrades into
tyranny.
Tyranny is then replaced by aristocracy, which in
turn degrades into oligarchy.
Oligarchy then is overthrown by
democracy, which ultimately falls into its own corresponding
distortion, mob-rule (or ochlocracy).
In Polybius’ analysis,
the cycle then starts up again (monarchy, aristocracy, and
democracy) since anarchy inevitably creates a void that some
new demagogue will fill.8
'Anaku/klwsij , the sliding from one
form of constitution into another, is unavoidable because of
the inherent weakness of each simple form of constitution.9
The catalyst for the decay in each simple form, Polybius
says (6.7.7), is hereditary succession--the automatic handing
Aristotle (Pol. 1279b), on the other hand, mentions the full six,
claiming that each of the original three (sovereignty of the one,
the few, and the many) splits into two sub-categories, based on
whether the ruling authority’s motives are selfish or unselfish:
Deviations from the constitutions mentioned are tyranny
corresponding to kingship, oligarchy to aristocracy, and
democracy to constitutional government [or polity]; for tyranny
is monarchy ruling in the interest of the monarch, oligarchy
government in the interest of the rich, democracy government in
the interest of the poor, and none of these forms governs with
regard to the profit of the community.
parekba/seij de\ tw=n ei)rhme/nwn turanni\j me\n basilei/aj o)ligarxi/a de\ a)ristokrati/aj
dhmokrati/a de\ politei/aj: h( me\n ga\r turanni/j e)sti monarxi/a pro\j to\ sumfe/ron to\ tou=
monarxou=ntoj, h( d )o)ligarxi/a pro\j to\ tw=n eu)po/rwn, h( de\ dhmokrati/a pro\j to\ sumfe/ron
to\ tw=n a)po/rwn, pro\j de\ to\ t%= koin%= lusitelou=n ou)demi/a au)twn.
8
See below, Thornton Anderson’s comment in note 53.
9For
more on a)naku/klwsij , see Stephan Podes, “Polybius and His
Theory of Anacyclosis: Problems of Not Just Ancient Political
Theory,” History of Political Thought 12 (1991): 577-87; see also
George Boas, “Cycles,” in Dictionary of the History of Ideas (New
York: Scribner’s, 1968); Stow Persons, “The Cyclical Theory of
History in Eighteenth-Century America,” American Quarterly 6
(Summer 1954): 147-63; Walbank, “Polybius and the Roman State,”
GRBS 5 (1964): 246; H. Ryfell, Metabolh\ politeiw=n: der Wandel der
Staatsverfassungen (New York: Arno Press, 1973); and Bernard
Bailyn, The Origins of American Politics (New York: Alfred A.
Knopf, 1968), 19-20.
5
down of the privileges of a particular form of government to
future generations without their ever having to internalize
for themselves the discipline necessary to maintain those
privileges.
Each of the three simple forms of constitution serves
well enough at its inception, since founder kings arise out of
their very excellence of character, aristocracies (by
definition at least) form from the noblest of society, and
democracies too embrace the highest ideals at the outset.
The
problem lies not with the initial impetus that forms these
governments but with the fact that they each suffer entropy,
or internal decay.
Polybius explains his theory in fuller detail, describing
the mechanism by which hereditary succession weakens the
state.
When the crown is inherited generation upon
generation, kings are no longer then chosen by excellence of
leadership but by accident of birth.
When monarchs are born
to privilege, they no longer have any incentive to serve the
state (since their privileges are no longer tied to their
performance as leaders).
They eventually expend their daily
energies in merely fulfilling the desires of their own
appetites.
Having become arrogant and self-serving, the last
in the line of tyrants is pushed aside by those who are close
enough to the throne to notice his corruption, namely the
members of the aristocracy (Polyb. 6.8.1).
They, in turn, serve the state well initially.
After
all, these were the nobles so offended by the king’s excesses
that principle drove them to take action against him.
6
Unfortunately, here again, when the grandchildren of these
nobles inherit position, they are ill equipped to handle the
power of rule (since they were born to privilege and identify
less and less with the problems of the common man).
The
aristocracy then degrades proportionally by each generation
into an oligarchy, just as the kings degenerated into tyrants
(6.8.5).
The oligarchs then are banished or killed by the
people, who finally assume the responsibility of ruling
themselves.
The people also govern well, at first.
As long as there
are any living who remember the days of oppression, they guard
their liberties with a jealous vigor.
Nevertheless, as future
generations inherit the same privileges of democracy as their
ancestors, yet without effort, they cease to cherish those
benefits (6.9.5).
Eventually individuals arise among them
who, seeking pre-eminence, cater to the creature comforts of
the masses, thereby hoping to win their favor.
People sell
cheap those liberties that have cost them nothing personally.
Once the masses accept these demagogues, the cycle of tyranny
begins again.
This is the cycle Polybius calls a)naku/klwsij .
Polybius believes that Republican Rome has avoided this
endless cycle by establishing a mixed constitution, a single
state with elements of all three forms of government at once:
monarchy (in the form of its elected executives, the consuls),
aristocracy (as represented by the Senate), and democracy (in
the form of the popular assemblies, such as the Comitia
Centuriata).10
10Polyb.
In a mixed constitution, each of the three
6.11.11-13; cf. Cic. Rep. 1.42, 45, 69-70.
7
branches of government checks the strengths and balances the
weaknesses of the other two.
Since absolute rule rests in no
single body but rather is shared among the three, the
corrupting influence of unchecked power is abated and stasis
is achieved.11
Polybius is not alone in his praise of mixed government.
Plato, Aristotle, Polybius, and Cicero all stress the
supremacy of a mixed constitution and the need for separation
of powers within the government.12
Plato (Laws 693e, cf. 756e) advises that a state balance
both its monarchic and democratic elements, for “a State which
does not partake of these can never be rightly constituted”
(w(j ou)k aÃn pote tou/twn po/lij aÃmoiroj genome/nh politeuqh=nai du/nait' aÄn
11“The
Greek historian Polybius admired the mutual automatic
balances which created an equilibrium between its legislative,
executive and judicial institutions,” Michael Grant, The Founders
of the Western World (New York: 1991), 153.
12For
Plato’s references to a mixed constitution, see Laws
681d, 693b-e, 712d-e; Rep. 557d; Menex. 238c-d; and Statesman 291a92a, 301a-3b. For Aristotle’s discussion, see Politics 1266a,
1267b, 1269a-73b, 1278b-80a, 1289a, 1293a-96b, 1298a-b, 1302a,
1318b-19a, 1320b. His pupil, Dicaearchus of Messana, even wrote a
treatise on mixed constitution called Tripolitiko/n (Cic. Att. 13.32.2;
Phot. Bibl. 37.69c; cf. Walbank, Commentary, 640). Diogenes
Laertius lists the theory as a doctrine of the early Stoics: “the
best form of government they hold to be a mixture of democracy,
kingship, and aristocracy” (7.1.131: politei/an d' a)ri/sthn th\n mikth\n eÃk te
dhmokrati/aj kai\ basilei/aj kai\ a)ristokrati/aj). Dionysius of Halicarnassus
also praises the theory in his reporting of a speech given by
Manius Valerius (2.7.7). For Cato the Elder’s opinion that the
constitution of Carthage was mixed, see Serv. Aen. 4.682; cf.
Polyb. 6.51. In addition to the previous authors, Carl J. Richard
(The Founders and the Classics: Greece, Rome and the American
Enlightenment, (Cambridge: 1994), 126) adds,
Although Plutarch, Livy, Sallust, and Tacitus never formally
endorsed mixed government, their sympathy toward the lost
republic and criticism of absolute monarchy, combined with their
disquisitions on the volatile nature of untutored mobs, suggest a
strong sympathy for it.
8
kalw=j).
He also warns (Laws 691c) against placing too much
power in the hands of a single body:
If one neglects the rule of due measure, and gives things
too great in power to things too small—sails to ships,
food to bodies, offices of rule to souls—then everything
is upset, and they run through excess of insolence, some
to bodily disorders, others to that offspring of
insolence, injustice.
)Ea/n tij mei/zona did%= toi=j e)la/ttosi du/namin parei\j to\ me/trion, ploi/oj te
i(sti/a kai\ sw/masi trofh\n kai\ yuxai=j a)rxa/j, a)natre/petai/ pou pa/nta kai\
e)cubri/zonta ta\ me\n ei)j no/souj qei=, ta\ d )ei)j eãkgonon uàbrewj a)diki/an.
Citing as example the Spartan constitution, with its two
kings, council of elders (gerousi/a), and ephors, Plato (Laws
692) praises not only the blended form of government but those
of tripartite construction.
Aristotle agrees, “the better the constitution is mixed,
the more permanent it is” (Pol. 1297a: oÀs% d )aÄn aÃmeinon h( politei/a
mixq$=, tosou/t% monimwte/ra).
For him the well-ordered constitution
results from the proper ordering of three factors: the
deliberative body, the magistracies, and the judiciary.
13
13
Aristotle (Pol. 1297b-98a) attributes the success of a
constitution to the organization of the three factors of government
when he states:
All forms of constitution then have three factors in reference
to which the good lawgiver has to consider what is expedient
for each constitution; and if these factors are well-ordered
the constitution must of necessity be well-ordered, and the
superiority of one constitution over another necessarily
consists in the superiority of each of these factors. Of these
three factors one is, what is to be the body that deliberates
about common interests, second the one connected with the
magistracies, that is, what they are to be and what matters
they are to control, and what is to be the method of their
election, and a third is, what is to be the judiciary.
eãsti dh\ tri/a mo/ria tw=n politeiw=n pasw=n peri\ wâân dei= qewrei=n to\n spoudai=on
nomoqe/thn e(ka/st$ to\ sumfe/ron: wâân e)xo/ntwn kalw=j a)na/gkh th\n politei/an eãxein
kalw=j, kai\ ta\j politei/aj a)llh/lwn diafe/rein e)n t%= diafe/rein eàkaston tou/twn. Eãsti
de\ tw=n triw=n eán me\n ti/ to\ bouleuo/menon peri\ tw=n koinw=n, deu/teron de\ to\ peri\ ta\j
9
Polybius (6.3.8) also cites Sparta as the first to draw
upon this principle.
He elsewhere (6.18.1; cf. below, note
49) concludes:
Such being the power that each part has of hampering the
others or co-operating with them, their union is adequate
to all emergencies, so that it is impossible to find a
better political system than this.
Toiau/thj d )ou)/shj th=j e(ka/stou tw=n merw=n duna/mewj ei)j to\ kai\ bla/ptein
kai\ sunergei=n a)llh/loij, pro\j pa/saj sumbai/nei ta\j perista/seij deo/ntwj
e)/xein th\n a(rmogh\n au)tw=n, w(/ste mh\ oiÂo/n t )eiÅnai tau/thj eu(rei=n a)mei/nw
politei/aj su/stasin.
Referring again to the power of the three branches, “if they
wish, to counteract or co-operate with the others” (6.15.1:
a)ntipra/ttein boulhqe/nta kai\ sunergei=n a)llh/loij ), Polybius (6.18.7-8)
elaborates:
For when one part having grown out of proportion to the
others aims at supremacy and tends to become too
predominant, it is evident that, as for the reasons above
given none of the three is absolute, but the purpose of
the one can be counterworked and thwarted by the others,
none of them will excessively outgrow the others or treat
them with contempt. All in fact remains in statu quo, on
the one hand, because any aggressive impulse is sure to
be checked and from the outset each estate stands in
dread of being interfered with by the others.
e)peida\n ga\r e)coidou=n ti tw=n merw=n filoneik$= kai\ ple/on tou= de/ontoj e)pikrat$=, dh=lon w(j ou)deno\j au)totelou=j oÃntoj kata\ to\n aÃrti lo/gon, a)ntispa=sqai de\ kai\ parapodi/zesqai duname/nhj th=j e(ka/stou proqe/sewj u(p'
a)llh/lwn, ou)de\n e)coidei= tw=n merw=n ou)d' u(perfronei=. pa/nta ga\r e)mme/nei toi=j
u(pokeime/noij ta\ me\n kwluo/mena th=j o(rmh=j, ta\ d' e)c a)rxh=j dedio/ta th\n e)k
tou= pe/laj e)pi/stasin.
In short, Polybius insists “it is evident we must regard as
the best constitution a combination of all these three
a)rxa/j, tou=to d ) e)sti\ ti/naj dei= kai\ ti/nwn eiånai kupi/aj, kai\ poi/an tina\ dei= gi/gnesqai
th\n aiàresin au)tw=n, tri/ton de\ ti/ to\ dika/zon.
10
varieties” (6.3.7: dh=lon ga\r w(j a)ri/sthn me\n h(ghte/on politei/an th\n e)k
pa/ntwn tw=n proeirhme/nwn i)diwma/twn sunestw=san).
Cicero (Rep. 1.69) also attests to the stability of a
mixed constitution against the ravages of a)naku/klwsij :
For the primary forms already mentioned degenerate easily
into the corresponding perverted forms, the king being
replaced by a despot, the aristocracy by an oligarchical
faction, and the people by a mob and anarchy; but whereas
these forms are frequently changed into new ones, this
does not usually happen in the case of the mixed and
evenly balanced constitution, except through great faults
in the governing class.
Quod et illa prima facile in contraria vitia
convertuntur, ut existat ex rege dominus, ex optimatibus
factio, ex populo turba et confusio, quodque ipsa genera
generibus saepe conmutantur novis, hoc in hac iuncta
moderateque permixta conformatione rei publicae non ferme
sine magnis principum vitiis evenit.
Cicero too declares the mixed constitution the best form of
government (Rep. 2.41), “the most splendid conceivable” (Rep.
2.42: quo nihil possit esse praeclarius).
He concludes, “a
form of government which is an equal mixture of the three good
forms is superior to any of them by itself” (Rep. 2.66: sed id
praestare singulis, quod e tribus primis esset modice
temperatum).14
The result of Polybius’ analysis of the Roman
Constitution, the theory of a system of checks and balances
among three branches of the same government, is ostensibly the
14Cicero
is known to have regarded Polybius as a dependable
source (Att. 13.30; Rep. 2.27), though he was probably just as
greatly influenced by Dicaearchus on the subject of mixed
constitution (Att. 2.2.1, 13.31.2, 13.32.2; Tusc. 1.77). See
above, note 12. Richard (126) claims, “Cicero (Rep. 2.23-30)
seized upon Polybius’ theory to thwart the increasing efforts of
ambitious Romans to consolidate their own power at the republic’s
expense.”
11
same principle as that of the American Constitution with its
executive, legislative, and judicial branches.
As Paul A.
Rahe admits, “the American regime bears a certain resemblance
to Polybius’ depiction of Rome, for the American Constitution
deploys institutional checks.”15
Aristotle anticipates the
American Constitution as well, when he divides the elements of
government into three parts (Pol. 1297b), calling them the
legislative (to\ bouleuo/menon), the executive (to\ peri\ a)rxa/j), and
the judicial (to\ dikastiko/n).16
The lesson was not missed by the
Founding Fathers, as R. M. Gummere notes:17
A careful search in law-makers like Nathaniel Ward or in
the studies of Wilson and Madison preparatory to the
debates on the Constitution indicates a first-hand
knowledge, on the part of the twenty-four college-bred
delegates, of the Aristotelian arguments for a “mixed”
type of government.
The Roman Constitution parallels the American
Constitution in historical context as well as content.18
The
Roman Republic was founded after the expulsion of the Tarquin
15Republics
Ancient and Modern
North Carolina Press, 1992), 602.
the Roman Constitution, see Thomas
Political History of Rome (London:
(Chapel Hill: The University of
For more on Polybian analysis of
Taylor, A Constitutional and
Methuen and Company, 1899), 212.
16See
above, note 13. Literally the deliberative, the one
concerning magistracies, and the one dealing with justice. Note
that these are the very branches often mistakenly ascribed as the
modern innovation of Montesquieu over the so-called “antiquated”
branches (monarchy, aristocracy, and democracy)--e.g., P. C. Bartholomey, “Checks and Balances,” art. in Encyclopedia Americana 6
(1989), 353.
17“The Heritage of the Classics in Colonial North America,”
Proceedings of the American Philosophical Society 99 (April 1955):
75; See also Gummere, “John Dickenson, the Classical Penman of the
Revolution,” CJ 52 (Nov. 1956): 81, 86; and see below, Gummere’s
comments on Aristotle page 27, and notes 71 and 73.
18See
Ames and Montgomery, 19-27. For America’s identification
with Rome in general, see Charles F. Mullet, “Classical Influences
on the American Revolution,” CJ (1939): 92.
12
Kings.
Like the Americans, the Romans had ridded themselves
of a tyrant and were contemplating the best form of
constitution.
Rome sent a delegation of three men to Greece
to study the laws of Solon, Lycurgus, and Greek institutions
(Livy 3.32-33).
The opinion of the Romans was that laws
should be codified and inscribed onto 12 tables that would be
publicly displayed.19 Influenced by the Greeks, their
government embraced a mixed constitution.20
In like manner
the Founding Fathers, having expelled the tyrant George III,21
consulted the history books to find the best that foreign
lands had to offer in constitutional theory.22
They found
separation of powers within a mixed constitution.
19For
other similarities between the American Constitution and
the Roman Constitution, see Gilbert Chinard, “Polybius and the
American Constitution,” in The American Enlightenment, ed.
F. Shuffelton (Rochester, New York: University of Rochester Press,
1993), 217-237; R. M. Gummere, “The Classical Ancestry of the
Constitution,” chap. in The American Colonial Mind and the
Classical Tradition (Cambridge: Harvard University Press, 1963),
173-90; and also Ames and Montgomery, 19-27.
20For
Solon’s Athenian constitution as mixed, see Walbank,
Polybius, 135; for Lycurgus’ Spartan constitution as same, see C.
O. Brink and Walbank, “The Construction of the Sixth Book of
Polybius,” CQ n.s. 3 (1954): 112-13; and Walbank, “Polybius and the
Roman State,” GRBS 5 (1964): 250-51.
21The Virgina state motto is, after all, “Thus Always to
Tyrants” (Sic Semper Tyrannis).
22 See Marcus Cunliffe, The American Heritage History of the
Presidency (New York: Simon and Schuster, 1968), 26. Here he
comments on the Executive but his words are just as appropriate for
the Founder’s inclusion of separation of powers in the
constitution:
The men who invented the Presidency in Philadelphia in 1787
were not bound by a long national tradition. Even so, they
were deeply affected by the past. Early in the year, John
Adams had written in London that the creators of the American
state governments had “adopted the method of a wise architect,
in erecting a new palace for . . . his sovereign.” Such an
architect, said Adams, would read the best writers, examine the
most famous buildings to see how well they had survived the
passing years, and then choose the ideas that seemed most
13
CHAPTER TWO
The fact that Polybius’ theories and the American system
share similarities will not suffice to prove, more than
circumstantially, that the U.S. Constitution is founded upon
ancient theories.
The second focus of this paper, therefore,
will be to establish whether the Founding Fathers actually
knew and read Polybius.
Steeped as they were in the classics, “the Founding
Fathers,” Saul K. Padover asserts, “were educationally and
spiritually the children of the antiquity.”23
Bernard Bailyn
too proclaims, “knowledge of classical authors was universal
among colonists with any degree of education.”24
Gummere
useful to his own structure. Similarly, in devising the
national Executive, the writers of the Constitution called not
only on their own sentiments and experience, but also on those
of lawmakers and philosophers throughout history.
23World
of the Founding Fathers (New York: Barnes & Co., 1960),
30; see also Edwin A. Miles, “The Young American Nation and the
Classical World,” in The American Enlightenment, 337-52; F.
McDonald, Novus Ordo Seclorum: the Intellectual Origins of the
Constitution (Lawrence: University Press of Kansas, 1985); C. J.
Richard, “The Classical Conditioning of the Founders,” chap. in The
Founders and the Classics, 12-38; Meyer Reinhold, Classica
Americana: The Greek and Roman Heritage in the United States
(Detroit: Wayne State University Press, 1984); S. F. Wiltshire,
ed., The Usefulness of Classical Learning in the Eighteenth
Century, (Washington, D.C.: American Philological Association,
1975); T. L. Simmons, “Greek Ruins,” National Review, 14 Sept.
1998, 42-43; J. W. Eadie, ed., Classical Traditions in Early
America (Ann Arbor: Center for the Coordination of Ancient and
Modern Studies, 1976); and Charles F. Mullet, “Classical Influences
on the American Revolution,” CJ 35 (Nov. 1939): 92-104. Jefferson,
for example, “had commissioned Ticknor to send him from Europe the
best and most recent editions of Greek and Latin Classics” Gilbert
Chinard, “Thomas Jefferson as a Classical Scholar,” American
Scholar 1 (April, 1932): 143.
24The Ideological Origins of the American Revolution
(Cambridge: Belknap Press, 1972), 23. For the academic credentials
of the members of the Convention, see Ames and Montgomery, 20. See
14
adds, “there was seldom an epoch when the leading men were so
imbued with the classical tradition.”25
In recognition of
this fact, Richard (130) concludes,
The founders had access to every level of this western
tradition of mixed government theory. Hence it was only
natural that, when confronted by unprecedented
parliamentary taxation during the 1760s and 1770s, they
should turn to the most ancient and revered of political
theories to explain this perplexing phenomenon. Patriot
leaders such as Richard Henry Lee, Samuel Adams, and John
Adams ascribed the new tyranny to a degeneration of the
mixture of the English constitution.
Clearly the Founding Fathers were familiar with the
classics generally, but did they know about Polybius
specifically?26
That the text of Polybius’ Histories itself
was available to the Founders is of no doubt, as M. N. S.
Sellers attests,27
Americans understood the Roman constitution primarily
through the writings of Polybius, readily available in
four recent printings, and after [January of] 1787 in
excerpts from Spelman’s translation, reproduced in John
Adam’s Defense of the Constitutions of the United States
of America.
also Gummere, “The Heritage of the Classics in Colonial North
America,” 75. Rossiter (35) adds,
The overall performance of the college graduates in the
Convention of 1787 speaks forcefully for the proposition that
Latin, rhetoric, philosophy, and mathematics can be a healthy
fare for political heroes.
25“John Adams Togatus,” Philological Quarterly 13 (April,
1934): 203.
26Mullet
(92) found references to Polybius during an
“exhaustive examination of American Revolutionary Literature.”
Some of the pamphleteers of the period also derived their knowledge
of Rome from Polybius (ibid., 96; cf. 97). Richard (53) adds, “the
founders encountered their Roman heroes in the works of Polybius,
Livy, Sallust, Plutarch, and Tacitus.”
27M.
N. S. Sellers, American Republicanism: Roman Ideology in
the U.S. Constitution (New York: New York University Press, 1994),
46.
15
Richard (24) also notes,
after the Stamp Act of 1765, many [Bachelor’s and
Master’s] theses applied the political principles of
Aristotle, Cicero, and Polybius to the debates concerning
independence and the Constitution.
The best way to prove a direct connection between
Polybius and the Fathers is to search for references to him in
their own writings.
Therefore, a brief survey of the papers
of Thomas Jefferson, James Madison, James Monroe, Benjamin
Franklin, James Otis, John Adams, and Alexander Hamilton will
show that many of the Founding Fathers indeed knew Polybius,
especially his passages on the Roman Constitution,
a)naku/klwsij , and the separation of powers.
Thomas Jefferson, a fervent supporter of mixed
government,28 had numerous editions of Polybius’ Histories in
his personal library.29
Several private letters reveal that
he was buying copies of the Histories for himself and his
friends.30
Jefferson sent many of these letters from Paris in
1787, the same year as the Federal Convention that drafted the
28See
Richard, 131; for Jefferson’s estimation that the
separation of powers is “the leading principle of our Constitution”
see James J. Kilpatrick’s response to the speech of William F.
Buckley, given at Kent State University, 1 April 1998, “U.S. v.
Clinton,” National Review, 28 Sep. 1998, 46.
29E. Millicent Sowersby, compiler, Catalogue of the Library of
Thomas Jefferson 5 (Washington, D.C.: Library of Congress, 1953),
383. For Polybius in pre-Revolutionary collections, see Richard
Beal Davis, Intellectual Life in the Colonial South 1585-1763
(Knoxville: University of Tennessee Press, 1978), 532, 540. For
classical studies among the colonists, see Gummere’s articles,
“Some Classical Side Lights on Colonial Education,” CJ 55 (Feb.
1960): 223-232; and “Church, State, and Classics,” CJ 54 (Jan.
1959): 175-83.
30“From
Paris Jefferson shipped copies of Polybius and sets of
ancient authors to Madison, a former graduate student . . . and to
George Wythe, a finished Greek and Latin scholar” Gummere, “The
Classical Ancestry of the Constitution,” 174.
16
Constitution.
In February of that year, he wrote to Philip
Mazzei for an Italian translation of Polybius.31
By August
Jefferson had sent an edition of the Histories to his friend
Peter Carr (Papers, 18).
A month later he wrote George Wythe
that he had procured for him “a copy of Polybius, the best
edition” and was sending it to him in Williamsburg (ibid.,
127).
In March of the following year, Jefferson sent Vann Damme
a letter requesting the 1548 Dutch edition (ibid., 688).
Then
two months later he wrote John Trumbul asking him to purchase
copies of Hampton’s Polybius from “Lackington bookseller
Chriswell Street” (ibid. 179).
In January of 1789, Jefferson
again wrote to Van Damme for another 1584 Polybius (ibid.,
490) which the vendor sent him two months later (ibid.,
707).32
James Madison also knew Polybius’ work.
He cites the
historian in The Federalist Papers No. 63 and devotes nearly
the entirety of No. 47 to the separation of powers:
33
31Charles T. Cullen, ed., The Papers of Thomas Jefferson
(Princeton: Princeton University Press, 1962), 159. Note this is a
month after the European release of John Adams’ summary of Polybius
(see above, note 27; see below, note 43).
32For
more on Jefferson’s involvement with the classics, see
David M. Mayer, The Constitutional Thought of Thomas Jefferson
(Charlottesville: University Press of Virginia, 1994); Louis B.
Wright, “Thomas Jefferson and the Classics,” Proceedings of the
American Philological Society 87 (1944): 223-33; Lance Banning,
“Jeffersonian Ideology Revisited: Liberal and Classical Ideas in
the New American Republic,” William and Mary Quarterly, 3rd ser.,
43 (Jan. 1986): 4; and David W. Carrithers, “Montesquieu, Jefferson
and the Fundamentals of 18th-Century Republican Theory,” FAR 6
(Fall 1982): 160-88.
33Cf.
Padover’s statement (31): “in James Madison one finds
mentions of the outstanding classical writers, such as Plato,
Plutarch, Polybius.” See also Gummere, “The Classical Ancestry of
the Constitution,” 181; and his comment on Madison, page 12 above.
17
The accumulation of all powers, legislative, executive,
and judiciary, in the same hands whether of one, a few or
many, and whether hereditary, self appointed, or elective,
may justly be pronounced the very definition of tyranny.
Here Madison reveals a Greek influence in his use of such
terms as one, few, many, and tyranny. On December 25, 1773,
William Bradford wrote him: “Scipio used daily to thank the
Gods that they had introduced him to the Acquaintance [sic] of
Polybius; nor have I less reason to be thankful that I once
enjoyed your company and now you[r] correspondence.”34
Madison himself cites Polybius in a letter to Jefferson dated
October 24, 1787 (Papers, 10.210).
Other Founding Fathers had no less knowledge of Polybius.
During the Virginia state convention on ratification of the
Federal Constitution, James Monroe “read several passages in
Polybius”35 from the floor.
In a letter of May 1779, William
Jones sent Benjamin Franklin a “translation of a curious
fragment of Polybius.”36
Actually, the pretended fragment was
simply a device to draw Franklin’s attention to some ideas on
conciliation with the British.
Nonetheless, the false
fragment attests not only to a familiarity with Polybius, but
34W.
T. Hutchinson and W. M. E. Rachal, ed., The Papers of
James Madison (Chicago: University of Chicago Press, 1962), vol. 1,
103.
35The Debates in the Several State Conventions on the Adoption
of the Federal Constitution, ed. Jonathan Elliot (Philadelphia:
1861), 210.
36B.
B. Oberg, ed., The Papers of Benjamin Franklin (New Haven:
Yale University Press, 1992), 570. For the actual text of the
fragment, see J. Sparks, ed., The Works of Benjamin Franklin
(Boston: Hiliard Gray and Company, 1839), 543-546.
18
also to Jones’ estimation that Franklin would consider the
historian an authority worth reading.37
James Otis also read Polybius.
He praised the
constitution of Rome, observing that the city had been most
durable when its powers were separate but fell when it failed
to maintain a balance among the three branches.38
Citing Otis
(Rights, 14), Mullet (100) comments on Polybius’ contribution
as one of the philosophic sources for separation of powers:
The very few colonists who knew him found his history more
useful for illustrative than for philosophic materials.
In this respect, however, his description of the Roman
constitution at the time of the battle of Cannae aroused
some homage and in all likelihood contributed to the high
value placed on separation of powers as a basis of stable
government.
One should note that Mullet’s reference to the relative
obscurity of Polybius is in regards to the population
generally.39
minority.40
Indeed well educated colonists were in the
Nevertheless, those who were educated received a
decidedly classical training--the framers of the Constitution
disproportionately so (see above, page 14).
Polybius’ work
was by no means unknown to them nor does Mullet claim so.
Note too that the one exception to Mullet dismissal of
37For
another possible example of Franklin’s use of Polybius,
see Gilbert Chinard “Polybius and the American Constitution,” 223.
38James
Otis, The Rights of the British Colonies Asserted and
Proved (Boston: 1764), 14; Mullet, 97; cf. C. F. Adams, ed., The
Works of John Adams (Boston: Little and Brown, 1851), vol. 4, 440.
39Nonetheless, given Mullet’s earlier admission that Polybius
was a common source among the pamphleteers (see above, note 26),
his statement “the very few colonists who knew him” is still at
least puzzling, if not overstated. Perhaps Mullet means that they
did not know Polybius’ text directly—just as one could say today
that more know “of” Plato than have actually read his texts.
40
See Rossiter, 34.
19
Polybius as an ideological source for the Founding Fathers is
the doctrine of the separation of powers.
At the time of the Convention, John Adams was away in
London.
He was, as Rossiter (83) describes it, “represented
in Philadelphia” by his writings nonetheless.
Adams’ own
library contained several editions of Polybius.41
The subject
of the Greek historian also finds its way into Adams’ private
correspondence with his wife.42
Gilbert Chinard even credits
Adams for many of the classical references cited during
debates of the Federal Convention of 1787:43
To a certain extent, their really surprising knowledge of
classical analogies and precedents may be explained by
the fact that John Adams had published, early in January
1787, his A Defense of the Constitutions of Government of
the United States of America. The first part of the
work, dealing exclusively with ancient governments and
writers, had reached America in March, long before the
opening of the Federal Convention. It was immediately
reprinted in Boston, New York and Philadelphia.44
Adams (Works, 4.328) fully embraces the classical division of
simple constitutions into monarchy, aristocracy, and
democracy.45
41Chinard,
In the introduction to chapter six of his A
“Polybius and the American Constitution,” 222.
42Familiar
Letters of John Adams and his Wife Abigail, 25.
Abigail quotes Polybius in a letter to her husband.
43“Polybius
and the American Constitution,” 221.; cf. 236:
“Montesquieu was only one of their authorities . . . they did not
neglect the original texts available either in full or in the
convenient compilation of John Adams.”
44It is perhaps significant that Jefferson did not begin his
flurry of letters from Paris regarding Polybius until the month
following the European release of Adams’ book. See above, page 17.
45See
C. M. Walsh, 23. Richard (132) calls Adams “the most
visible and most persistent proponent of mixed government in
America.” See also R. M. Gummere, “The Classical Politics of John
Adams,” Boston Public Library Quarterly 9 (Oct. 1957): 172.
20
Defense of the Constitutions, Adams (Works, 4.435) clearly
links Polybius with his purpose:46
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, whose
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.
Note that the constitutions Adams refers to in the title A
Defense of the Constitutions are the state constitutions
already adopted prior to January of 1787, well before the
adoption of the Federal Constitution.47
As McDonald (84)
notes, many of these state constitutions (six out of the
original thirteen) had already adopted some degree of
separation of powers.48
In his A Defense of the Constitutions, Adams devotes an
entire chapter to Polybius’ doctrine of the mixed
constitution, a)naku/klwsij , and the Polybian assessment of the
Roman system of checks and balances.49
Adams, like Polybius,
46For
more on John Adams, see Dorothy M. Robathan, “John Adams
and the Classics,” The New England Quarterly 19 (1946): 91-98; R.
M. Gummere, “John Adams Togatus,” 203-10; Gilbert Chinard, Honest
John Adams (Gloucester, Mass.: Peter Smith, 1964); M. N. S. Sellers
(46); and especially C. M. Walsh.
47Richard
(132) notes that Adams was reciting Polybius even in
1763, when he writes,
Adams was devoted to mixed government theory throughout his
life. As early as 1763 he claimed, in “An Essay on Man’s Lust
for Power:” “No simple Form of Government can possibly secure Men
against the Violences of Power, Simple Monarchy will soon mould
itself into Despotism, Aristocracy will soon commence on
Oligarchy, and Democracy will soon degenerate into Anarchy.
48Cf.
J. Bryce, 1.29. See below, note 70.
49Adams
summarizes a)naku/klwsij (Works, 4.440-41):
Polybius thinks it manifest, both from reason and experience,
that the best form of government is not simple, but compounded,
21
credits Rome’s greatness to its constitutional separation of
powers (Works, 4.439-440):50
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 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?
In effect, any Federal Convention delegate who read Adams’ A
Defense of the Constitutions had indirectly read Polybius.51
The Records of the Federal Convention of 1787, edited by
Max Farrand (New Haven: Yale University Press, 1911), are
filled with classical references too numerous to cover here.52
Nevertheless, both Gummere and Chinard make important
observations about the proceedings.
Chinard (“Polybius and
the American Constitution,” 221) notes:
the delegates called upon Montesquieu as an authority in
support of their views; but a careful study of the Records
because of the tendency of each of the simple forms to
degenerate.
Adams hopes the state constitutions will prove themselves even
superior to that of Rome, stating (ibid. 440):
As we advance, we may see cause to differ widely from the
judgment of Polybius, ‘that it is impossible to invent a more
perfect system of government.’
50Adams
had defended the principle of separation of powers as
early as 1776, when he wrote a pamphlet, “Thoughts on Government”
(Works, 4.193; cf. Benjamin F. Wright, “The Origins of the
Separation of Powers in America,” Economica 13 (May 1933): 178).
51Cf. Gummere’s comment (“The Classical Ancestry of the
Constitution,”178): “Polybius was of special interest to the
framers of the Constitution. They studied him intently as the
leading authority on the Greek city-states.”
52For
a brief digest of references to Rome made during the
Convention, see Ames and Montgomery, 21-23. For John Dickenson’s
quoting Polybius, see E. H. Scott, ed., The Federalist and Other
Constitutional Papers (Chicago: 1894), vol. 2, 806. See also
Gummere, “John Dickenson, the Classical Penman of the Revolution,”
81-87.
22
and the Federalist would show that more frequently they
went back to the ancient sources from which Montesquieu
himself had derived his information, and that they had
apparently a first-hand acquaintance with ancient
historians and ancient history.
Gummere (“The Classical Ancestry of the Constitution,” 175)
adds:
The debates before, during, and after the Convention of
1787 can be better understood if the doctrine of three
ancient authorities--Aristotle, Cicero, and Polybius--are
first clarified in relation to the establishment of the
federal government. Their testimony underlies all the
suggested patterns for the new republic.
During the Federal Convention, Hamilton expressed the
concern that “if we incline too much to democracy, we shall
soon shoot into a monarchy” (June 26th, Records, 1.432).
His
fear is obviously based on his acceptance of Polybius and the
inevitability of a)naku/klwsij --namely that democracy in excess
paves the way for tyranny.53
Hamilton frequently used Roman
names in the publications of The Federalist Papers and
confessed knowing more about the Roman Constitution than that
of the British.54
53“It looks as if Hamilton must have read Adams’s first volume
and have borrowed from it” (C. M. Walsh, 307; cf. Chinard,
“Polybius,” 230). Hamilton cites Polybius directly (The Federalist
and Other Constitutional Papers, vol. 1,352; cf. Ames and
Montgomery, 23). Cf. Richard’s comment (135) that “democracy,
[John] Adams concluded in Polybian fashion, was a mere way station
on the road to tyranny.” Thornton Anderson, Creating the
Constitution: The Convention of 1787 and the First Congress,
(University Park, Pennsylvania: 1993), 24 also notes,
Many of the delegates, students of classical history, no doubt
remembered that the plebeians of Rome had supported Caesar, not
Brutus. There were enough examples in the Greek city states of
popular demagogues becoming tyrants to enable Polybius (6.1-9) to
construct a cycle of types of government in which democracy
deteriorated into mob rule and then into despotism.
54See Thomas P. Govan, “Alexander and Julius Caesar: a Note on
the Use of Historical Evidence,” William and Mary Quarterly 32
(1975): 475-80; Padover, 32; and Douglas Adair, “A Note on Certain
23
T. L. Simmons (“Greek Ruins,” 43), the author of the
forthcoming book Climbing Parnassus: A Defense of Classical
Education, regarding the Founding Fathers concludes,
It is no accident, then, that so many who gathered at
Philadelphia to declare independence and a decade later to
draft a constitution were men who had apprenticed
themselves to Thucydides, Plato, Aristotle, Polybius, and
Cicero, and who could debate at length on the various
constitutional forms of the classical world before they
chose one for the new American nation. We owe our very
existence as a people in great part to classical learning.
In fact, so prevalent were the references to antiquity during
the Convention that on June 28th, as Chinard relates,
“Franklin rose in despair.
The Convention threatened to
degenerate into a classical meeting.”55
of Hamilton’s Pseudonyms,” William and Mary Quarterly 12 (1955):
282-97.
55“Polybius
and the American Constitution,” 227; cf. 225:
“There were few occasions when the ancient writers were not called
upon to provide precedents and illustration for the different
speakers.”
24
CHAPTER THREE
The third focus of this paper will deal directly with
Montesquieu himself.
If he relied heavily on Polybius, then
even those who cite Montesquieu as their source for the
doctrine of separation of powers are indirectly citing ancient
authority.
In fact, Montesquieu had not only read Polybius
but also produced summaries of his work, as R. Shackleton
attests:56
It was his practice to make extracts or synopses of books
which he had read, and the accident of mention in the
Pensées or elsewhere discloses that he had made extracts
from . . . [among others] . . . Polybius.
M. Hulliung admits that “more often than not, Montesquieu
derived his inspiration from works of Aristotle, Polybius, or
some other classical author.”57
Shackleton adds that the
doctrine of separation of powers was “a theory of considerable
antiquity . . . Montesquieu made an attempt to bring it into
line with the advances in the study of science.”58
Chinard is
more blunt, charging that Montesquieu “did nothing but
generalize and modernize the lessons of ancient history.”59
M. E. G. Duff ultimately wonders, “if Polybius had not led the
56Montesquieu:
a Critical Biography (Oxford University Press,
1961), 153; cf. 158, 233-34.
57Montesquieu and the Old Regime (Berkeley: University of
California Press, 1976), 2; cf. Friedrich’s encyclopedia articles
“Constitutions and Constitutionalism,” International Encyclopedia
of Social Sciences (New York: Macmillan, 1968), 321; and
“Separation of Powers,” Brittanica 20 (Chicago: University of
Chicago, 1970), 227.
58“Montesquieu,
Bolingbroke, and the Separation of Powers,”
French Studies 3 (1949): 25.
59“Polybius
and the Constitution,” 223.
25
way, . . . [whether]
Montesquieu’s study of the greatness and
decadence of the Romans would ever have been written.”60
In Chapter 11 of Spirit of the Laws, Montesquieu proposes
balance of power between “the legislative, the executive in
respect to things dependent on the law of nations, and the
executive in regard to matters that depend on civil law”61
(11.6.1: la puissance législative, la puissance exécutrice des
choses qui dépendent du droit des gens, et la puissance
exécutrice de celles qui dépendent du droit civil).
These
powers are essentially the same as Aristotle’s three portions
of the state: the deliberative, the executive, and the
judicial (Pol. 1298a-b);62 however, as Gummere (“Heritage of
the Classics,” 75) notes, “the doctrines of Aristotle were
well known to the Colonials long before Montesquieu lifted the
sixth book of the Politics into his Esprit de Lois.”
An important study of the classical foundation of
Montesquieu’s work is Lawrence M. Levin’s dissertation, The
Political Doctrine of Montesquieu’s Esprit Des Lois: Its
Classical Background (Westport, Connecticut: Greenwood Press,
1936; reprint, 1973).63
In his introduction, Levin points out
(VIII-IX):
60“Presidential
Address,” Transactions of the Royal Historical
Society 11 (1897) 1. Montesquieu is more of a “conduit” than a
source (Ames and Montgomery, 23; cf. 26).
61English translations of Montesquieu throughout are taken from
Thomas Nugent, trans., The Spirit of the Laws (New York: Hafner
Publishing Company, 1949; reprint 1959).
62See
above, note 16.
See below, note 71.
63For
more on Montesquieu, see P. M. Spurlin, Montesquieu in
America: 1760-1801 (New York: Octagon Books, 1969); and A. M.
Cohler, Montesquieu, Comparative Politics, and the Spirit of
American Constitutionalism (Lawrence: University of Kansas, 1988).
26
Montesquieu cites certain historical instances of the
manner in which the balance of powers functioned in
antiquity . . . it is hardly likely that he was not aware
of any of the ancient texts that stress the idea, and it
is unlikely that these ancient texts were not partially
instrumental at least in bringing to his attention a
fundamental aspect of his theory: the system of checks or
balances as a means of promoting the welfare of the
state.
Of course, one of the ancient texts Montesquieu read was
Polybius’ Histories.
For, paraphrasing the ancient historian,
Montesquieu describes the government of Rome in the time of
the kings (Spirit, 11.12; cf. Polybius 6.11.11):
the constitution was a mixture of monarchy, aristocracy
and democracy; and such was the harmony of power, that
there was no instance of jealousy or dispute.
la constitution étoit monarchique, aristocratique et
populaire; et telle fut l’harmonie du pouvoir, qu’on ne
vit ni jalousie, ni dipute.
When Montesquieu (Spirit, 11.17) turns to describe the balance
of power in Rome during the Republic, he explicitly cites the
Histories:
so great was the share the senate took in the executive
power, that, as Polybius (Book VI) informs us, foreign
nations imagined that Rome was an aristocracy.
la part que le sénat prenoit à la puissance exécutrice
étoit si grande, que Polybe dit que les étrangers
pensoient tous que Rome étoit une aristocratie.
The passage in question is 6.13.8-9, in which Polybius himself
states:
So that again to one residing in Rome during the absence
of the consuls the constitution appears to be entirely
aristocratic; and this is the conviction of many Greek
states and many of the kings, as the senate manages all
business connected with them.
e)c wÂn pa/lin o(po/te tij e)pidhmh/sai mh\ paro/ntoj u(pa/tou, telei/wj a)ristokratikh\ fai/neq ) h( politei/a. oÁ dh\ kai\ polloi\ tw=n E
( llh/nwn, o(moi/wj de\ kai\
27
tw=n basile/wn, pepeisme/noi tugxa/nousi, dia\ to\ ta\ sfw=n pra/gmata sxedo\n
pa/nta th\n su/gklhton kurou=n.
Even more significant than Montesquieu’s direct reference to
Polybius are the locations of the two passages, both the
citing passage and the one cited.
Montesquieu’s citing
passage falls in the middle of Chapter 11 of Spirit of the
Laws, the same chapter which sets forth his principles of
separation of powers and the system of checks and balances.
The passage cited from Polybius is taken from the middle of
his description of the Roman Constitution.
of this is twofold.
The significance
First, that Montesquieu, when composing
his theory of checks and balances, turned to the ancient
historian.
Second, that any careful reader of Montesquieu’s
Chapter 11, after coming upon Polybius’ name, would check the
reference and in doing so would find Polybius’ entire theory
of a)naku/klwsij and the mixed constitution.
Was Montesquieu indispensable to the Founding Fathers?
B. Wright (171) is inclined to believe that “had Montesquieu
never published his treatise, the [state] constitutions . . .
would not have been [different].”64
He argues that
discussions on the separation of powers had been a long
tradition among English political scientists--e.g.,
64
Rossiter (74) echoes this sentiment, when he states:
Whatever government the Framers might propose to the people, it
would certainly have to be . . . divided, checked, and balanced—
not because Montesquieu . . . had taught them to celebrate the
beauties of such government but because this was the pattern
toward which America had been moving from the beginning.
Sellers (222) agrees, “the United States Constitution continued the
development towards Rome’s Polybian model that had been evident in
the English and earlier state constitutions.”
28
Harrington, Locke, and Blackstone--well before Montesquieu.65
Harrington, a friend of King Charles I, had incorporated
elements of checks and balances into his utopian work
Oceana.66
It was perhaps this association that spurred
Charles I (some 50 years before Montesquieu was born) to claim
that England enjoyed separation of powers.
For, in a
proclamation that Corinne C. Weston (23-24) terms “one of the
most influential ever made on the nature of the English
government,” and Anderson (24) readily identifies as “based on
the old Polybian balance of monarchy, aristocracy, and
democracy,” King Charles (Answer to the XIX Propositions,
1642) declares:
The experience and wisdom of your Ancestors hath so
moulded this government out of a mixture of these
monarchy, aristocracy, and democracy, as to give this
Kingdom the conveniences of all three, without the
inconveniences of any one so long as the balance hangs
even between the three Estates, the King, the House of
Lords, and the House of Commons, and they run jointly on
in their proper channel.67
65Cf.
Gummere, “The Heritage of the Classics in Colonial North
America,” 75. See also J. G. Pocock, ed., The Political Works of
James Harrington (Cambridge: Cambridge University Press, 1977).
66B. Bailyn (Origins, 20) notes, “the value of such a balance
was commonly endorsed by sixteenth-century writers, and in the
early seventeenth century it came to characterize the working of
the English constitution.” John Adams, in his A Defense of the
Constitutions, also dedicates a chapter to Harrington (Works,
4.427-34). For the history of mixed constitution in England, see
Corinne C. Weston, English Constitutional Theory and the House of
Lords, 1556-1832 (London: Routledge & Kegan Paul, 1965).
67Charles
I, quoted in Melvin Richter, The Political theory of
Montesquieu (Cambridge: Cambridge University Press, 1977), 87; cf.
McDonald, 48; B. Bailyn, Origins, 20. For the evolution of the
three estates in England, see Michael Mendle, Dangerous Positions:
Mixed Government, the Estates of the Realm, and the Making of the
Answer to the XIX Propositions (Tuscaloosa, Alabama: University of
Alabama Press, 1985).
29
If Montesquieu described the English as having a mixed
constitution a full generation after Charles I had done so,
can Montesquieu be credited as the author of the balance of
powers?68
Gummere (“Heritage of the Classics,” 75) admonishes:
It should also be remembered that the idea of
representation as well as the theory of checks and
balances was not only correlated with the current studies
of the Colonials, but traced back to the ancient sources.
Bailyn specifies a Polybian lineage for the theory, when he
states:69
No one set of ideas was more deeply embedded in the
British and the British-American mind than the notion,
whose genealogy could be traced back to Polybius, that
liberty could survive in a world of innately ambitious .
. . men only where a balance of the contending forces was
so institutionalized that no one contestant could
monopolize the power of the state without effective
opposition.70
Indeed, the entire Declaration of Independence is predicated
upon the notion that the people share equally with the crown
the powers of government.71
68On
May Day 1660, the English Parliament decreed, “according
to the ancient and fundamental laws of this kingdom, the government
is, and ought to be by King, Lords, and Commons,” William Cobbett,
ed., Parliamentary History of England, vol. 2 (London: 1806) cols.
24-25.
69Faces
of the Revolution (New York: Alfred A. Knopf, 1990),
76.
70J.
Bryce (1.29) concurs:
No general principle of politics laid such hold on the
constitution-makers and statesmen of America as the dogma that
the separation of these three functions [executive, legislative,
and judicial] is essential to freedom. It had already been made
the groundwork of several State constitutions.
71Bailyn
(Faces of the Revolution, 76) notes that the American
Colonists “presumed that the three main socio-constitutional
contestants for power--the monarchy, the nobility, and the people-had an equal right to share in the struggle for power.” See
Gummere’s comment above, page 27.
30
Even among the Founding Fathers, there is some ambiguity
concerning the role Montesquieu played.
This is
understandable, since Montesquieu not only was against an
elected executive but also was opposed to the power of the
legislative to impeach him (Spirit 11.18; cf. B. Wright 170).
Reflecting on John Adams’ A Defense of the Constitutions,
B. Wright (178) notices, “Montesquieu is quoted, but without
comment.
Harrington and Polybius he apparently found better
suited to his needs.”
Concerning the Convention itself,
B. Wright (184) adds:
Although Montesquieu was referred to seven or eight times
during the debates in the Convention, only once was his
authority appealed to in support of the separation
principle, and then by Madison.72
Even when James Madison does cite Montesquieu as the oracle of
the doctrine of separation of powers, he falls short of
calling him its originator when he says (Federalist Papers,
47):
If he be not the author of this invaluable precept in the
science of politics, he has the merit at least of
displaying and recommending it most effectually to the
attention of mankind.
72The
eight references to Montesquieu during the Convention
are: Records 1.71, 308, 391, 485, 497, 580; 2.34, 530.
31
CONCLUSION
Polybius’ work on the separation of powers antedates
Montesquieu’s considerably.
His system includes checks and
balances, some of which are the same as the American
Constitution’s.
Many of the Founding Fathers had read
Polybius and even quote him on this issue during the Federal
Convention of 1787 and the subsequent State Conventions on
ratification.
73
Those who did not read him directly in Greek
still had available to them translations in French, Italian,
Latin, and English.74
Others had available the summaries of
Polybius in John Adams’ A Defense of the Constitutions,
released in the same year as the Federal Convention.
Montesquieu himself borrowed heavily from Polybius and other
ancient authorities.
Therefore, if Madison’s comment
regarding separation of powers is right, that “the oracle who
is always consulted and cited on this subject is the
celebrated Montesquieu” (Federalist Papers 47), surely then it
is only fair to consider Polybius its very god.
73McDonald, 81; cf. Miles, 338: “Framers of the American
Constitution, like the earlier republicans, often referred to
Polybius’ theory of mixed government.”
74Polybius
was one of the Greek authors whom Pope Nicholas V
had translated into Latin (c. 1450); see Arnaldo Momigliano’s
“Polybius’s Reappearance in Western Europe,” in Essays in Ancient
and Modern Historiography (Wesleyan University Press, 1977), 79-98;
cf. Boas, 626. Polybius’ balance of powers also influenced Niccolò
Machiavelli (Discourses 1.1). Richard (127) first states,
“Machiavelli practically copied Polybius’ discussion of the
degeneration of the simple forms of government into his Discourses
on Livy” and later concludes (128), “like Polybius and Cicero,
Machiavelli ascribed Roman greatness to the gradual development of
mixed government there.”
32
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39
POLYBIUS AND THE FOUNDING FATHERS:
THE SEPARATION OF POWERS
Marshall Davies Lloyd
MALS 590
SEPTEMBER 22, 1998
Diane Hatch
Professor of Classics
DEDICATION
This paper is presented to Dr. Linda J. Piper, my beloved
Ancient History Professor, on the occasion of her retirement
from the Classics and History departments at the University
of Georgia. Five years or so ago, she first introduced our
class to the Greek historian Polybius and the wonders of
anacyclosis. We bemoaned the fact that Polybius receives
too little credit for his contributions to the U.S.
Constitution. The class discussion that day was one of the
finest experiences I ever had at Georgia. On that day, Dr.
Piper expressed a wish that someone would write a paper on
Polybius’ influence on the Founding Fathers.
Now that Dr. Piper is retiring, all I could think of this
semester has been how I would like to present her this paper
as a small token of thanks for her enthusiasm both for the
classics and her students, for her willingness to serve on
my thesis committee, and most especially for her attending
my wedding.
Dr. Piper, as you retire, I hope you will never forget what
you mean to the lives of so many. I despair for Georgia and
grieve for the students for whom Roman History now will be a
faint shadow of the experience we once had with you at the
helm. I wish you the best in the years to come. My father
has thoroughly enjoyed his retirement from the Classics. I
hope you will too. God bless you.
ii
TABLE OF CONTENTS
DEDICATION ............................................... ii
INTRODUCTION .............................................. 1
CHAPTER ONE ............................................... 4
CHAPTER TWO ............................................. 14
CHAPTER THREE ............................................ 25
CONCLUSION ............................................... 32
BIBLIOGRAPHY ............................................. 33
iii