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The three powers were there distributed in such a manner that the people were the legislature,[19] and the king had the executive together with the judiciary power; whereas in modern monarchies the prince is invested with the executive and legislative powers, or at least with part of the legislative, but does not act in a judiciary capacity.

In the government of the kings of the heroic times, the three powers were ill-distributed. Hence those monarchies could not long subsist. For as soon as the people got the legislative power into their hands, they might, as they everywhere did, upon the very least caprice, subvert the regal authority.

Among a free people possessed of the legislative power, and enclosed within walls, where everything tending towards oppression appears still more odious, it is the masterpiece of legislation to know where to place properly the judiciary power. But it could not be in worse hands than in those of the person to whom the executive power had been already committed. From that very instant the monarch became terrible. But at the same time as he had no share in the legislature, he could make no defence against it, thus his power was in one sense too great, in another too little.

They had not as yet discovered that the true function of a prince was to appoint judges, and not to sit as judge himself. The opposite policy rendered the government of a single person insupportable. Hence all these kings were banished. The Greeks had no notion of the proper distribution of the three powers in the government of one person; they could see it only in that of many; and this kind of constitution they distinguished by the name of Polity.[20]

12. Of the Government of the Kings of Rome, and in what Manner the three Powers were there distributed. The government of the kings of Rome had some relation to that of the kings of the heroic times of Greece. Its subversion, like the latter's, was owing to its general defect, though in its own particular nature it was exceedingly good.

In order to give an adequate idea of this government, I shall distinguish that of the first five kings, that of Servius Tullius, and that of Tarquin.

The crown was elective, and under the first five kings the senate had the greatest share in the election.

Upon the king's decease the senate examined whether they should continue the established form of government. If they thought proper to continue it, they named a magistrate[21] taken from their own body, who chose a king; the senate were to approve of the election, the people to confirm it, and the augurs to declare the approbation of the gods. If any of these three conditions was wanting, they were obliged to proceed to another election.

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 in the first reigns. The king commanded the armies, and had the direction of the sacrifices: he had the power of determining[22] civil and criminal[23] causes; he called the senate together, convened the people, laid some affairs before the latter, and regulated the rest with the senate.[24]

The authority of the senate was very great. The kings oftentimes pitched upon senators with whom they sat in judgment; and they never laid any affair before the people till it had been previously debated[25] in that august assembly.

The people had the right of choosing[26] magistrates, of consenting to the new laws, and, with the king's permission, of making war and peace; but they had not the judicial power. When Tullius Hostilius referred the trial of Horatius to the people, he had his particular reasons, which may be seen in Dionysius Halicarnassus.[27]

The constitution altered under[28] Servius Tullius. The senate had no share in his election; he caused himself to be proclaimed by the people; he resigned the power of hearing civil causes,[29] reserving none to himself but those of a criminal nature; he laid all affairs directly before the people, eased them of the taxes, and imposed the whole burden on the patricians. Hence in proportion as he weakened the regal together with the senatorial power, he augmented that of the plebeians.[30]

Tarquin would neither be chosen by the senate nor by the people; he considered Servius Tullius as a usurper, and seized the crown as his hereditary right. He destroyed most of the senators; those who remained he never consulted; nor did he even so much as summon them to assist at his decisions.[31] Thus his power increased: but the odium of that power received a new addition, by usurping also the authority of the people, against whose consent he enacted several laws. The three powers were by these means re-united in his person; but the people at a critical minute recollected that they were legislators, and there was an end of Tarquin.

13. General Reflections on the State of Rome after the Expulsion of its Kings. It is impossible to be tired of so agreeable a subject as ancient Rome: thus strangers at present leave the modern palaces of that celebrated capital to visit the ruins; and thus the eye, after recreating itself with the view of flowery meads, is pleased with the wild prospect of rocks and mountains.

The patrician families were at all times possessed of great privileges. These distinctions, which were considerable under the kings, became much more important after their expulsion. Hence arose the jealousy of the plebeians, who wanted to reduce them. The contest struck at the constitution, without weakening the government; for it was very indifferent as to what family were the magistrates, provided the magistracy preserved its authority.

An elective monarchy, like that of Rome, necessarily supposes a powerful aristocratic body to support it, without which it changes immediately into tyranny or into a popular state. But a popular state has no need of this distinction of families to maintain itself. To this it was owing that the patricians, who were a necessary part of the constitution under the regal government, became a superfluous branch under the consuls; the people could suppress them without hurting themselves, and change the constitution without corrupting it.

After Servius Tullius had reduced the patricians, it was natural that Rome should fall from the regal hands into those of the people. But the people had no occasion to be afraid of relapsing under a regal power by reducing the patricians.

A state may alter in two different ways, either by the amendment or by the corruption of the constitution. If it has preserved its principles and the constitution changes, this is owing to its amendment; if upon changing the constitution its principles are lost, this is because it has been corrupted.

The government of Rome, after the expulsion of the kings, should naturally have been a democracy. The people had already the legislative power in their hands; it was their unanimous consent that had expelled the Tarquins; and if they had not continued steady to those principles, the Tarquins might easily have been restored. To pretend that their design in expelling them was to render themselves slaves to a few families is quite absurd. The situation therefore of things required that Rome should have formed a democracy, and yet this did not happen. There was a necessity that the power of the principal families should be tempered, and that the laws should have a bias to democracy.

The prosperity of states is frequently greater in the insensible transition from one constitution to another than in either of those constitutions. Then it is that all the springs of government are upon the stretch, that the citizens assert their claims, that friendships or enmities are formed amongst the jarring parties, and that there is a noble emulation between those who defend the ancient and those who are strenuous in promoting the new constitution.

14. In what Manner the Distribution of the three Powers began to change after the Expulsion of the Kings. There were four things that greatly prejudiced the liberty of Rome. The patricians had engrossed to themselves all public employments whatever; an exorbitant power was annexed to the consulate; the people were often insulted; and, in fine, they had scarcely any influence at all left in the public suffrages. These four abuses were redressed by the people.

1st. It was regulated that the plebeians might aspire to some magistracies; and by degrees they were rendered capable of them all, except that of Inter-rex.

2nd. The consulate was dissolved into several other magistracies;[32] pr?tors were created, on whom the power was conferred of trying private causes; qu?stors[33] were nominated for determining those of a criminal nature; ?diles were established for the civil administration; treasurers[34] were made for the management of the public money; and, in fine, by the creation of censors the consuls were divested of that part of the legislative power which regulates the morals of the citizens and the transient polity of the different bodies of the state. The chief privileges left them were to preside in the great meetings[35] of the people, to assemble the senate, and to command the armies.

3rd. The sacred laws appointed tribunes, who had a power of checking the encroachments of the patricians, and prevented not only private but likewise public injuries.

In fine, the plebeians increased their influence in the general assemblies. The people of Rome were divided in three different manners -- by centuries, by curi?, and by tribes; and whenever they gave their votes, they were convened in one of those three ways.

In the first the patricians, the leading men, the rich and the senate, which was very nearly the same thing, had almost the whole authority; in the second they had less; and less still in the third.

The division into centuries was a division rather of estates and fortunes than of persons The whole people were distributed into a hundred and ninety-three centuries,[36] which had each a single vote. The patricians and leading men composed the first ninety-eight centuries; and the other ninety-five consisted of the remainder of the citizens. In this division therefore the patricians were masters of the suffrages.

In the division into curi?,[37] the patricians had not the same advantages; some, however, they had, for it was necessary to consult the augurs, who were under the direction of the patricians; and no proposal could be made there to the people unless it had been previously laid before the senate, and approved of by a senatus-consultum. But, in the division into tribes they had nothing to do either with the augurs or with the decrees of the senate; and the patricians were excluded.

Now the people endeavoured constantly to have those meetings by curi? which had been customary by centuries, and by tribes, those they used to have before by curi?; by which means the direction of public affairs soon devolved from the patricians to the plebeians.

Thus when the plebeians obtained the power of trying the patricians -- a power which commenced in the affair of Coriolanus,[38] they insisted upon assembling by tribes,[39] and not by centuries; and when the new magistracies[40] of tribunes and ?diles were established in favour of the people, the latter obtained that they should meet by curi? in order to nominate them; and after their power was quite settled, they gained[41] so far their point as to assemble by tribes to proceed to this nomination.

15. In what Manner Rome, in the flourishing State of that Republic, suddenly lost its Liberty. In the heat of the contests between the patricians and the plebeians, the latter insisted upon having fixed laws, to the end that the public judgments should no longer be the effect of capricious will or arbitrary power. The senate, after a great deal of resistance, acquiesced; and decemvirs were nominated to compose those laws. It was thought proper to grant them an extraordinary power, because they were to give laws to parties whose views and interest it was almost impossible to unite. The nomination of all magistrates was suspended; and the decemvirs were chosen in the comitia sole administrators of the republic. Thus they found themselves invested with the consular and the tribunition power. By one they had the privilege of assembling the senate, by the other that of convening the people; but they assembled neither senate nor people. Ten men only of the republic had the whole legislative, the whole executive, and the whole judiciary power. Rome saw herself enslaved by as cruel a tyranny as that of Tarquin. When Tarquin trampled on the liberty of that city, she was seized with indignation at the power he had usurped; when the decemvirs exercised every act of oppression, she was astonished at the extraordinary power she had granted.

What a strange system of tyranny -- a tyranny carried on by men who had obtained the political and military power, merely from their knowledge in civil affairs, and who at that very juncture stood in need of the courage of those citizens to protect them abroad who so tamely submitted to domestic oppression!

The spectacle of Virginia's death, whom her father immolated to chastity and liberty, put an end to the power of the decemvirs. Every man became free, because every man had been injured; each showed himself a citizen because each had a tie of the parent. The senate and the people resumed a liberty which had been committed to ridiculous tyrants.

No people were so easily moved by public spectacles as the Romans. That of the empurpled body of Lucretia put an end to the regal government. The debtor who appeared in the forum covered with wounds caused an alteration in the republic. The decemvirs owed their expulsion to the tragedy of Virginia. To condemn Manlius, it was necessary to keep the people from seeing the Capitol. C?sar's bloody garment flung Rome again into slavery.

16. Of the legislative Power in the Roman Republic. There were no rights to contest under the decemvirs: but upon the restoration of liberty, jealousies revived; and so long as the patricians had any privileges left, they were sure to be stripped of them by the plebeians.

The mischief would not have been so great had the plebeians been satisfied with this success; but they also injured the patricians as citizens. When the people assembled by curi? or centuries, they were composed of senators, patricians, and plebeians; in their disputes the plebeians gained this point,[42] that they alone without patricians or senate should enact the laws called Plebiscita; and the assemblies in which they were made had the name of comitia by tribes. Thus there were cases in which the patricians[43] had no share in the legislative power, but[44] were subject to the legislation of another body of the state. This was the extravagance of liberty. The people, to establish a democracy, acted against the very principles of that government. One would have imagined that so exorbitant a power must have destroyed the authority of the senate. But Rome had admirable institutions. Two of these were especially remarkable: one by which the legislative power of the people was established, and the other by which it was limited.