CHAPTER X.

CONCLUSION.

By the authorities and examples already recited, you will be convinced that three branches of power have an unalterable foundation in nature; that they exist in every society natural and artificial; and that if all of them are not acknowledged in any constitution of government, it will be found to be imperfect, unstable, and soon enslaved; that the legislative and executive authorities are naturally distinct; and that liberty and the laws depend entirely on a separation of them in the frame of government; that the legislative power is naturally and necessarily sovereign and supreme over the executive; and, therefore, that the latter must be made an essential branch of the former, even with a negative, or it will not be able to defend itself, but will be soon invaded, undermined, attacked, or in some way or other totally ruined and annihilated by the former. This is applicable to every state in America, in its individual capacity; but is it equally applicable to the United States in their federal capacity?

The people of America and their delegates in congress were of opinion, that a single assembly was every way adequate to the management of all their federal concerns; and with very good reason, because congress is not a legislative assembly, nor a representative assembly, but only a diplomatic assembly.1 A single council has been found to answer the purposes of confederacies very well. But in all such cases the deputies are responsible to the states; their authority is clearly ascertained; and the states, in their separate capacities, are the checks. These are able to form an effectual balance, and at all times to control their delegates. The security against the dangers of this kind of government will depend upon the accuracy and decision with which the governments of the separate states have their own orders arranged and balanced.

The necessity we are under of submitting to a federal government, is an additional and a very powerful argument for three branches, and a balance by an equal negative, in all the separate governments. Congress will always be composed of members from the natural and artificial aristocratical body in every state, even in the northern, as well as in the middle and southern states. Their natural dispositions, then, in general will be, (whether they shall be sensible of it or not, and whatever integrity or abilities they may be possessed of,) to diminish the prerogatives of the governors and the privileges of the people, and to augment the influence of the aristocratical parties. There have been causes enough to prevent the appearance of this inclination hitherto; but a calm course of prosperity would very soon bring it forth, if effectual provision against it be not made in season. It will be found absolutely necessary, therefore, to give negatives to the governors, to defend the executive against the influence of this body, as well as the senate and representatives in their several states. The necessity of a negative in the house of representatives will be called in question by nobody.

Dr. Price and the Abbé de Mably are zealous for additional powers to congress. Full power in all foreign affairs and over foreign commerce, and, perhaps, some authority over the commerce of the states with one another, may be necessary; and it is hard to say that more authority in other things is not wanted. Yet the subject is of such extreme delicacy and difficulty, that the people are much to be applauded for their caution. To collect together the ancient and modern leagues, - the Amphictyonic, the Olynthian, the Argive, the Arcadian, and the Achæan

ration is a part of the law of the land, and superior in authority to the ordinary laws, because it cannot be altered by the legislature of any one state. I doubt whether they are at all a diplomatic assembly."

confederacies, among the Greeks; the general diet of the Swiss cantons, and the states-general of the United Netherlands; the union of the Hanse-towns, &c., which have been found to answer the purposes both of government and liberty; to compare them all with the circumstances, the situation, the geography, the commerce, the population, and the forms of government, as well as the climate, the soil, and manners of the people, and consider what further federal powers are wanted, and may be safely given, would be a useful work.

According to M. Turgot's idea of a perfect commonwealth, a single assembly is to be possessed of all authority, legislative, executive, and judicial. It will be a proper conclusion of all our speculations upon this, the most interesting subject which can employ the thoughts of men, to consider in what manner such an assembly will conduct its deliberations and exert its power. The executive power is properly the government; the laws are a dead letter until an administration begins to carry them into execution. Let us begin, then, with this. If there is an army to raise, this single assembly is to appoint all its officers. The man of the most ample fortune, the most honorable descent, the greatest abilities, especially if there is any one among them who has had experience, rendered important services, and acquired fame in-war, will be chosen general. This event is a great point gained by the aristocracy; and a great advance towards the selection of one, in case of convulsions and confusions, for monarchy. The general has vast influence, of course, with the whole nation, and especially with the officers of his army; whose articles of war, and whose habits, both of obedience and command, establish a system of subordination of which he is the centre, and produce an attachment that never wears out. The general, even without being sensible of it, will naturally fall in with the views of the aristocratical body, in promoting men of family, property, and abilities; and indeed, in general, it will be his duty to do this, as such are, undoubtedly, in general, the fittest for the service. His whole corps of officers will grow habitually to respect such only, or at least chiefly, and, it must be added, because experience proves it, and the truth requires it to be mentioned, to entertain some degree of contempt for the rest of the people, as "rank and file." The general's recommendation will have great weight in the assembly, and will in time be given chiefly, if not wholly, to men who are either of the aristocratical body themselves, or at least recommended by such as are SO. All the other officers of the army are to be appointed by this assembly; and we must suppose that all the general officers and field officers will be of patrician families, because each candidate will be unknown to nine tenths of the assembly. He comes from a part of the state which a vast majority of the members of the assembly do not particularly represent and are unacquainted with; they must, therefore, take his character upon trust from his patron in the house, some member who is his neighbor, and who, perhaps, owes his election to him or his particular friends. Here is an endless source of debate and delay. When there are two or more candidates for a commission, and there will generally be several, how shall an assembly of five hundred or one hundred men, collected from all the most distant parts of a large state, become informed of the merits and pretensions of each candidate? It can only be done in public or in private. If in public, it exposes the characters of the candidates to a public discussion, which few men can bear; it consumes time without end; and it will frequently happen that the time of the whole assembly shall be wasted, and all the public affairs delayed, for days and weeks, in deliberating and debating, affirming and denying, contradicting and proving, in the appointment of a single officer; and, after all, he who has friends of the most influence in the house, who will be generally of the aristocratical complexion, will be preferred. It is moderate to say, that the loss of time and delay of business will be a greater burthen to the state than the whole support of a governor and council.

If there is a navy, the same process must be gone through respecting admirals, captains, and all other officers. All the officers of revenue, police, justice, must be appointed in the same way. Ambassadors, consuls, agents to foreign countries, must be appointed, too, by vote of assembly. This branch of business alone would fill up the whole year, and be more than could be done. An assembly must be informed before it can act. The understanding and conscience of every member should be clearly satisfied before he can vote. Information is to be had only by debate and examination of evidence. Any man may see that this must be attended with difficulty; but no man who has not seen the inside of such an assembly, can conceive the confusion, uncertainty, and procrastination of such proceedings. The American provincial congresses had experience enough of this; and gentlemen were more convinced, by what they there saw, heard, and felt, of the necessity of three branches, than they would have been by reasoning or reading; it was generally agreed that the appointment of officers by lot would have been a more rational method.

But this is not all. The army, the navy, revenue, excise, customs, police, justice, and all foreign ministers, must be gentlemen, that is to say, friends and connections of the rich, well-born and well-educated members of the house; or, if they are not, the community will be filled with slander, suspicion, and ridicule against them, as ill-bred, ignorant, and in all respects unqualified for their trusts; and the plebeians themselves will be as ready as any to join in the cry, and run down their characters. In the second place, there never was yet a people who must not have somebody or something to represent the dignity of the state, the majesty of the people, call it what you will, -a doge, an avoyer, an archon, a president, a consul, a syndic; this becomes at once an object of ambition and dispute, and, in time, of division, faction, sedition, and rebellion.

The next inquiry is, concerning the administration of justice. Shall every criminal be brought before this assembly and tried? shall he be there accused before five hundred men? witnesses introduced, counsel heard? This again would take up more than the whole year; and no man, after all, would consider his life, liberty, or property, safe in such a tribunal. These all depend upon the disquisitions of the counsel, the knowledge of the law in the judges, the confrontation of parties and witnesses, the forms of proceedings, by which the facts and the law are fairly stated before the jury for their decision, the rules of evidence, by which the attention of the jury is confined to proper points, and the artifices of parties and counsel avoided. An assembly of five hundred men are totally incapable of this order, as well as knowledge; for, as the vote of the majority must determine, every member must be capable, or all is uncertain. Besides, it is the unanimity of the jury that preserves the rights of mankind. Must the whole five hundred be unanimous ?

Will it be said that the assembly shall appoint committees to try causes? But who are to make these appointments? Will