Polybius and the Founding Fathers: the separation of powers

Polybius and the Founding Fathers: the separation of powers
1999 Donald E. Glover Award, outstanding final project

under the direction of
Diane Hatch, Professor of Classics
Mary Washington College, Fredericksburg, Virginia

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.

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 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.

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.

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

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 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. 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 In a mixed constitution, each of the three 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 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

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 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 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 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.

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 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.

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 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

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” from the floor.³⁵ 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 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 Indeed well-educated colonists were in the minority.⁴⁰ Nevertheless, those who were educated received a decidedly classical training--the framers of the Constitution disproportionately so (see above, page 15). Polybius’ work was by no means unknown to them nor does Mullet claim so. Note too that the one exception to Mullet dismissal of 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 In the introduction to chapter six of his A 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, 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 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

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

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 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):

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 ((Ellh/nwn, o(moi/wj de\ kai\ 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. The significance of this is twofold. 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., 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

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

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.

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.

BIBLIOGRAPHY

[MDL 09/13/00: Many of these works are available online as e-texts through the Liberty Library of Constitutional Classics. ]

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