The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Second Edition
• One: the Doctrine of the Separation of Powers and Institutional Theory
• Two: the Foundation of the Doctrine
• Three: the Theory of the Balanced Constitution
• Four: Montesquieu
• Five: the Matchless Constitution and Its Enemies
• Six: the Doctrine In America
• Seven: the Doctrine In France
• Eight: the Rise and Fall of Parliamentary Government
• Nine: From the Third Republic to the Fifth
• Ten: Progressivism and Political Science In America
• Eleven: Political Theory, Constitutionalism, and the Behavioural Approach
• Twelve: a Model of a Theory of Constitutionalism
• Thirteen: Epilogue: the Separation of Powers and the Administrative State
• Bibliography

SIX

The Doctrine in America

On the 29 June 1776, twenty-eight years after the publication of the De l’Esprit des Loix, the “future form of government” for the State of Virginia was proclaimed in convention at Williamsburg. It began with the resounding declaration that the good people of Virginia ordain that “The legislative, executive and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other: nor shall any person exercise the powers of more than one of them at the same time, except that the justices of the county courts shall be eligible to either House of Assembly.” This declaration, which the framers of the Constitution of Virginia considered to be the basis of their system of government, was the clearest, most precise statement of the doctrine which had at that time appeared anywhere, in the works of political theorists, or in the pronouncements of statesmen. All its major elements were set out, but of greater importance is the fact that in the Constitution of Virginia it stood as a theory of constitutional government in its own right for the first time since the Instrument of Government over one hundred and twenty years earlier. It is true that the legislature of Virginia, and of most other revolutionary States, was bicameral, that the division of functions between the branches of the governments of the States was not always consistently followed through, and that in their practical operation the early State governments deviated considerably from the spirit of the doctrine; but in Virginia, and many other States, it was the separation of powers that formed the basis of the institutional structure of the government. In the same year as Virginia did, Maryland and North Carolina made similar declarations in their Constitutions, although they were less thoroughgoing than the Virginians, and in 1777 Georgia followed suit. Clearly this is an important moment in the development of the doctrine of the separation of powers. Is the “pure doctrine” to emerge again and rid itself altogether of the complexities of the balanced constitution, or is some new statement of institutional theory to be evolved? The experience of the Protectorate suggested that the pure doctrine was an inadequate basis for a system of government; would this impression be confirmed by the experience of revolutionary America? The development of political thought that led to the Federal Constitution provides one of the most fascinating spectacles of the adaptation of ideological materials to the demands of an unprecedented situation that history can offer.

The general pattern of American thought in this period provides many parallels with English developments in the mid seventeenth century. The idea of mixed and balanced government dominated the scene in America until, as in England in the 1640’s, it was swept away by the democratic fervour of revolution,1 and the dominant theory of the mixed constitution became totally inadequate to cope with a situation in which resistance to monarchical or aristocratic power was the major characteristic. In both situations the demise of the established constitution was followed by a period of government by convention in which the revolutionary legislature absorbed all power into its own hands, carrying out all the tasks of government through the medium of its committees. As a result of the demand for a return to constitutional government the revolutionary constitutions, like the Instrument of Government, show an adherence to the basic ideas of the separation of powers, and a determination to strip away all vestiges of royal or aristocratic power; but, as in England, there was in America a kind of “Restoration,” in which the more revolutionary doctrine was modified by older ideas about the balancing and the limitation of power in governments. The parallel, however, must not be pushed too far. In revolutionary America the separation of powers was ready to hand and well understood, whereas in revolutionary England it had had to be formed and fashioned for the first time. When the Restoration came in England it all but swamped the new doctrine by assimilating it, in a subordinate role, to the complex theory of the balanced constitution; in the America of 1787 the doctrine of the separation of powers was modified, tempered, buttressed even, by the theory of checks and balances drawn from the older conception of English constitutional theory, but it remained itself firmly in the centre of men’s thoughts as the essential basis of a free system of government.

A great controversy has raged around the extent to which the American colonists and the Founding Fathers were influenced by Montesquieu in their adoption of the separation of powers as a fundamental of good government. On the one hand Montesquieu has been accorded a decisive influence upon the Fathers of the Constitution,2 whilst at the other extreme it has been argued that the American colonial experience was such that had Montesquieu never put pen to paper the results of their deliberations would hardly have differed from the actual outcome.3 It is often an extremely difficult task to determine the “decisive influences” upon the work of a single man, let alone to attribute to a single overriding source the results of the work and thought of a large number of men, like those who were engaged upon formulating the State and Federal Constitutions. When one further reflects that the Federal Constitution resulted from a series of compromises effected in the Convention by the majority vote of State delegations, themselves often internally divided in opinion, and that these majorities were often very close, and fluctuated from day to day, it becomes difficult to talk in terms of a “decisive influence.” In fact both of the extreme views drastically oversimplify the actual course of events. Constitutional thought in America in the period leading up to the creation of the Federal Constitution reflects a number of interwoven influences at work. English thought, and the pattern of English institutions, inevitably provided the starting point for American development. But the structure of English constitutional theory, although it was adapted to the American environment, was potentially at variance with the social structure of the colonies. There was some strain in adapting the English form of balanced constitution to that of the colonial government. For though the former acknowledged the importance of monarch and hereditary aristocracy, with their claim to the exercise of power, the claims of the Crown, as represented by the colonial Governor, were far greater than the prerogative powers exercised in practice by the monarch in England. The growing objections of the colonists to the excessive weight attributed to the power of the governors were, therefore, expressed in terms of the need to maintain a proper balance in the constitution. “A small weight over, in either scale,” a writer argued in the Boston Gazette of 6 June 1763, “might indeed be easily removed, but while it remains it as effectually destroys the balance, as the largest. . . .” As the conflict deepened, however, as had been the case in seventeenth-century England, the theory of the balanced constitution became more and more irrelevant, and the separation of powers emerged again as the only available basis of a constitutional government. Locke and Montesquieu provided the intellectual ammunition by which the separation of powers could be advanced as a principle more fundamental than that of mixed government, although the influence of the latter author was, naturally enough in view of the structure of his great work, felt and exercised on both sides of the argument, each side selecting those passages which best suited their cause. The actual outbreak of a revolution that leaned heavily upon the relatively democratic character of the American way of life rendered the old theory of government wholly inappropriate, and for a short period the pure doctrine of the separation of powers emerged in America, as it had in England over a century before, and as it was shortly to do again in France, and was incorporated in varying degrees into the institutional structure of the revolutionary State governments. With the attainment of independence, however, those leaders in America who had allied with radical forces, for the purposes of the revolution, turned back again to the old ideas of balanced government, not embracing the theory in its entirety, but grafting it on to the new basis of American constitutional thought, to provide a new, and uniquely American, combination of the separation of powers and checks and balances. These men were well aware that they faced problems which were not to be neatly solved by appeal either to experience or to the old constitutional theory. They were, necessarily, caught up in the logic of their own position as revolutionaries who wished to maintain the best of the old ways, so that they built within the general pattern of constitutional thought which they inherited, but they specifically and consciously rejected many elements of the old pattern. The remarkable achievement of the Americans was that they not only accepted and understood the constitutional theory and experience that they were heirs to, but that they took this heritage and refashioned it, effectively and successfully, to meet a new and extraordinarily difficult situation.

Until shortly before the Declaration of Independence the constitutional theory of the American colonists closely paralleled that of the mother country, with only those emendations necessary to relate it to the conditions of colonial government. Thus we find that in the mid seventeenth century the great constitutional battles of the English Civil War find a rather pale reflection in the political disputes in Massachusetts. At just the time when Herle and Hunton were grappling with the problems of adapting the age-old theory of mixed government to a rapidly changing situation, the Elders of the Church in Massachusetts were faced with the problem of adapting the same theory to the government of the “Company of Massachusetts Bay.” The Elders, however, far from using the theory to justify democratic practices were concerned to use it as a weapon to defend the position of the magistrates, the Governor and Assistants, against pressures for a greater degree of democratic control. In the General Court of Massachusetts the Governor and Assistants exercised a “negative voice,” and when the Court was not in session they met to deal with the business of government, making decisions over the whole range of affairs. After 1642 there was a continuous battle between the Governor and Assistants and those deputies who felt that the magistrates should be subjected to considerable restraints in the exercise of their power in the recesses of the General Court, and at the same time an attack was mounted on the “negative voice.” The parallel with the course of events in England is striking. The deputies claimed the right to a continuous participation in, and oversight of, the acts of the magistrates, attacking all idea of an autonomous “standing council” free from the control of the Court. Governor John Winthrop clearly summed up the point at issue. Some of the deputies, he wrote, demanded that “all authority, both legislative, consultative, and judicial, must be exercised by the people in their body representative.”4 This claim, which the Long Parliament succeeded in making good for a while in England, was, however, successfully resisted by the elected aristocracy of New England.

In 1644 the Elders of the Church delivered an opinion upon certain constitutional questions which had been placed before them by the General Court, thus setting a theological stamp of approval upon the political theory of those who resisted the current democratic excesses. There is under the Charter, said the Elders, a threefold power of government, or “magistraticall authoritie”; these three powers are “legislative, judicative, and consultative or directive of the publique affairs of the commonwealth, for provision and protection.”5 The legislative power is given jointly to the freemen (or their deputies) and to the Governor and Assistants, as also is the directive power. As for the judicial power, however, this is to be exercised by the magistrates only, except in cases of impeachment and appeal. The government of Massachusetts is not a “pure aristocracy, but mixt of an aristocracy and democracy,” in respect of the powers of the General Court, although the actual administration of justice is to be aristocratic.6 When the General Court is not sitting the magistrates have a power of constant judicature and “counsel.” The Elders even made a distinction between two types of counsel—care and action: in respect of “care” the power of the magistrates was not limited, in respect of “action” they were accountable to the General Court. Thus in 1644 we find a theory of mixed government with an essential degree of functional differentiation between the branches of the government, together with a recognition of the difference between the discretionary and “executive” duties of magistrates.7

The Elders in Massachusetts had evolved a constitutional theory which paralleled the seventeenth-century theory of the balanced constitution in England, and again in 1679 they set forth in another constitutional opinion the same combination of mixed government and the separation of powers.8 Perhaps the most remarkable aspect of this period in American thought is the way in which this adaptation of English political thought to American conditions foreshadowed the eventual solution of the problems which faced the framers of the Constitution over a century later. For when the Elders in 1679 insisted that the Charter of the Massachusetts Bay Company had set up a “distribution of differing interest of power and privilege between the magistrates and freemen, and the distinct exercise of legislative and executive power,”9 the aristocracy they had in mind was an elective aristocracy. The division of functions between agencies of government who will exercise a mutual check upon each other although both are elected, directly or indirectly, by the same people, is a unique American contribution to modern constitutional theory.

In the discussions of mixed government in early Massachusetts there was little reference to the monarch, the role of the English King being either assumed or ignored as best suited the colonists. With the establishment of royal government in Massachusetts, however, the theory in the colonies fell more into line with English thought, and by the middle of the eighteenth century the theory of the balanced constitution seemed as impregnably established in America as it was in England. In 1717 John Wise described the English Constitution as “an Elisium,” and the mixture which it represented as the fairest in the world.10 Jared Eliot in 1738 pictured the “respective governments in the British Plantations” as little models of that happy mixture to be found in British government, in which each branch whilst “having full power to do good” was checked and restrained by the others.11 Conservatives, like Cadwallader Colden of New York, and the future loyalist Joseph Galloway, saw in a mixed monarchy the best possible pattern of government,12 and the New England clergy in their election sermons thanked God for mixed government.13 In 1753 William Livingston published in the Independent Reflector a eulogy of the compound British Constitution as “infinitely the best,”14 and even as late as 1772 the British system was lauded by Joseph Warren in his Boston massacre oration, while at the same time he applied the terminology of mixed government to Governor, Council, and House of Representatives in Massachusetts.15

As relations with England deteriorated, the theory of mixed government as applied in England was first criticized on the grounds that corruption had so warped the Constitution that it no longer represented a truly balanced structure but was a disguised tyranny, and then was rejected altogether as inapplicable to a country where hereditary monarchy and aristocracy were unthinkable.16 The publication of Paine’s Common Sense in January 1776 heralded the rejection of the old theory of constitutionalism and opened a period of intense constitutional development in which all that was considered bad in the old forms would be discarded, and all that was considered good would be scrutinized and modified to suit the needs of an independent America. The separation of powers lay ready to hand as a theoretical basis for this constitutional activity.

It has been suggested that it was one of the most curious events in the history of the United States that the colonists, after their bitter experience of divided powers in colonial governments, should have turned to the separation of powers as a fundamental principle of free government.17 It is true, of course, that the colonial governor and the colonial assembly stood in opposition to each other as separate organs of the government in continual conflict, but it would be wrong to think that colonial governments operated in fact in a way which closely approximated to a thoroughgoing doctrine of the separation of powers, or that the colonists at the time of the Revolution associated the operation of these governments with such a theory of government. Undoubtedly in the earlier period of colonial development their view of the proper distribution of the functions of government closely approximated the English theory of the balanced constitution, but as the tensions of the later colonial period developed, that theory was broken down into its component parts, and the colonists criticized the colonial governments because they did not embody a thoroughgoing separation of powers. By 1776 the separation of powers was being advanced as the only coherent constitutional theory upon which an alternative to colonial forms could be based.

There were a number of reasons why the colonists could use the doctrine of the separation of powers to criticize the colonial régimes. First, in those royal colonies which shared a very similar structure of government we can see that the colonial government was far more in tune with the theory of mixed government than with the pure separation of powers. A most important element in these governments was the Governor’s Council, which also formed the Upper House of the legislature. The Council, appointed by the Crown, except in Massachusetts, held office during pleasure, and became a stable aristocratic element in colonial government. The Council advised the Governor, was an essential part of the legislature, and, with the Governor at its head, acted as the supreme court of the colony. Although nominated by the Governor, the councillors could not be considered mere creatures of the Crown, for the Governor was forced to choose from among a small circle of colonial gentry, who, linked by family connections, maintained a domination on those Councils which made them a miniature replica of the great connections of the aristocracy in eighteenth-century England.18 The colonial Council, therefore, held a crucial position between the Governor and the Lower House of the legislature, but it was usually in a spirit of rather uneasy co-operation between Governor and Council that the colony was ruled. The Council shared every type of government business, and so played a strategic role in most decisions. It is not surprising, therefore, that the idea of mixed government characterized the thought of the dominant groups in early-eighteenth-century America, for a thoroughgoing doctrine of the separation of powers would hardly have been acceptable to those “aristocratic” families through whose hands ran all the strands of government business. Nor is it surprising that in the outbreak of democratic fervour associated with the revolution there was an attack upon the whole concept of the concentration of power which these councils represented.

The second characteristic of the colonial system, which in the eyes of revolutionary Americans did not equate with a system of properly separated powers, was common to all the colonies, except Connecticut and Rhode Island. Colonial Americans saw continual infringements of the principle in the activities of the governors. Because in the earlier period the theory of the balanced constitution was dominant in men’s minds, these infringements were often discussed as attempts to destroy that balance, but as the century wore on the complaints were couched more and more in terms of the vocabulary of the separation of powers, and after the publication of De l’Esprit des Loix the colonists gained a valuable source of intellectual ammunition. In fact, complaints that the balance of the Constitution was being perverted came from both sides of the fence. The royal governors complained that the legislature’s control over finance was used to exercise undue influence in the executive sphere. In 1723 Governor Shute was led to complain that the control exercised by the House of Representatives of Massachusetts over the salaries of Governor and Treasurer had given to that House “the whole legislative, and in a good measure the executive power of the province.”19 A similar complaint was made in 1754 by the Privy Council in regard to New York,20 and Thomas Pownall, one of the most intelligent of the royal governors, indicted the colonial assemblies for having endangered “the freedom and right efficiency of the constitution,” which required that the executive and judicial officers of government should be independent of the legislature.21

On their part the colonists saw the legislature’s control over supply as the only means of maintaining their own independence in the face of the powers of the Crown. They complained of the improper exercise of power in words which reflected more and more the doctrine of the separation of powers. In 1744 the New Jersey House of Assembly protested against the appointment of the Chief Justice to the Governor’s Council as inconsistent with the freedom and privilege of the people.22 The more that the separation of powers was stressed as the tension rose in the colonies, the more clear it became that this principle, if pushed far enough, resulted in a denial of the theory of the balanced constitution. This tendency can be clearly seen in the disputes which arose in Massachusetts concerning the election of members of the judiciary to the Council of the Province, and in particular over the appointment of Lieutenant-Governor Hutchinson to the office of Chief Justice. James Otis was deeply involved in this dispute, which involved charges and counter-charges of personal interest. In 1762 Otis lauded the British Constitution as perhaps the most perfect form of government of which human nature was capable, adding that it was a fundamental maxim in such a system that the legislative and executive powers should be kept separate.23 Two years later, however, after a bitter dispute over Hutchinson’s appointment, Otis emphasized the importance of the separation of powers.24 He now wrote passionately of the need for a proper balance between the executive and legislative powers. Drawing upon Locke and Vattel he saw these two powers as “a perpetual check and balance to each other.” Using seventeenth- rather than eighteenth-century terminology, Otis argued that both the supreme legislature and the supreme executive are limited in power. If the supreme executive errs, it is “informed” by the supreme legislature in parliament. If the supreme legislature errs, it is informed by the supreme executive in the King’s courts of law. He developed one of the earliest American pleas for what would today be called judicial review, by claiming that when Acts of Parliament offend against natural equity the “executive courts” will adjudge such Acts void.25

The dispute in Massachusetts well illustrates how the proponents of different interpretations of the best system of government appealed to the authority of Montesquieu, and how the two components of that author’s theory of the constitution of liberty were torn apart. Those who were attacking plural office-holding in Massachusetts quoted him, emphasizing only those sections where Montesquieu insisted upon the separation of powers.26 The defenders of the colonial government also quoted him, but used those passages where he supported the idea of mixed government, or where he emphasized the interdependence of the branches of government. In April 1762 a bill to exclude the judges of the Superior Court from the legislature was narrowly defeated in the House of Representatives,27 and there ensued a lively newspaper debate in which the rival tendencies in the accepted constitutional doctrine came into conflict. Although the argument was carried on within the framework of accepted British constitutional theory, the revolutionary propensities of the separation of powers when pushed to extremes came very close to the surface. The defence of the colonial government in the Boston Evening-Post, signed by “J,” interpreted Montesquieu to mean that liberty was sufficiently safeguarded if a partial separation of the personnel of government was observed. It was perfectly acceptable for one person, or a small number of people, to be members of both the judicial and legislative branches, but it was essential that a majority of the legislature should have no share in judicial office. Similarly in relation to the legislative and executive powers Montesquieu had meant only that “the whole executive, and the whole legislative powers ought not to be united.”28 “J” developed in 1763 an argument very similar to that later used by Madison to defend the proposed Federal Constitution, but whereas Madison interpreted Montesquieu as propounding a partial separation of the functions of government in a system where the personnel of government were kept strictly separate, the writer in the Boston Evening-Post was concerned only with the partial separation of persons.

“J” appealed to the example of the British Constitution as a model for Massachusetts to follow, but his opponent “T.Q.” in the Boston Gazette pushed his insistence upon the separation of powers dangerously close to a rejection of the British pattern. Although he was on occasion prepared to admit that it was the degree of the concentration of offices and power that mattered, “T.Q.” tended to push the demand for the separation of offices to the point where no single member of the judiciary ought to be at the same time a member of the legislature. In order to support this contention he was prepared to reject the authority of British precedents as a sufficient justification for the practices of the colonial administration. “J” had argued that the colonial practice of councillors also holding judicial office was analogous to the appointment of Lord Chief Justices in England to be peers of the realm, but “T.Q.” insisted that the British model was not applicable in Massachusetts. Peers were appointed by the sovereign, whereas councillors in the province were elected. Did it then follow that “because the sovereign is pleased to create a lord chief justice a peer of the realm, it is expedient for the people of this province to make a judge a councellor”?29 He explicitly rejected the idea that what had happened in the past in England was necessarily “constitutional” simply because it had happened. “A practice may sometimes take place, which may interfere with and obstruct the direct end of the constitution.” The arguments, drawn from British experience, which supported the combination of the offices of legislator and judge “with regard to this province” therefore fell to the ground. The revolutionary implications of this line of thought are very clear.30

Yet another indication of the way in which the eighteenth-century English constitutional theory was being broken up into its component parts can be seen in the revolutionary period itself. In 1774 the Continental Congress addressed the inhabitants of Quebec, urging them to send delegates to the next meeting of the Congress. The address contained extensive quotations from “the immortal Montesquieu,” proving that the separation of powers was “the only effectual mode ever invented by the wit of men, to promote their freedom and prosperity.”31 Unfortunately for Quebec, the Congress continued, it enjoyed only the appearance of separated powers, for in fact all the powers of government were moved “by the nods of a Minister.”32 Two years later the Tory author of Plain Truth, replying to Tom Paine, used the authority of “the excellent Montesquieu” to defend the mixture of monarchy, aristocracy, and democracy which formed the basis of the “beautiful system” of the English Constitution.33 In the bitterness of the revolutionary struggle the two potentially contradictory components of Montesquieu’s theory were being rudely torn apart. His authority was invoked by those who wished to strip the separation of powers of its former association with the ideas of mixed government, but either they were very selective in their use of quotations, or they argued that in the different circumstances of the colonies, in which there was “a total absence of all nobles,” Montesquieu himself would have approved the more extreme application of the principle of the separation of powers.34

Thus the more strongly that the principle of the separation of powers was asserted as an argument against British policy the more it became clear to the colonists that the colonial governments did not embody this principle to a sufficient degree. The Governor was not, of course, a true “executive officer.” He did execute the decisions of the colonial legislature but his power was much greater than this. He exercised royal prerogatives, and could attempt to coerce the legislature. He played an essential role in the passage of legislation, and had powers of prorogation and dissolution. But his power was even greater than that of the King in the balanced constitution, for he claimed to exercise powers over the government of the colony which no monarch claimed any longer to exercise in Britain itself. As Jefferson observed in his Summary View of the Rights of British America of 1774, the royal power, exercised through the governors, to disallow laws of American legislatures was actively exercised long after the sovereign had “modestly declined the exercise of this power in that part of his empire called Great Britain.” The great list of charges against the Crown in the Declaration of Independence was, of course, an indictment of the excessive powers of the royal governors as the colonists saw them. Thus the colonial Governor could never see himself, nor be seen by the colonists, as a “mere executive” in relation to the colonial legislature. These problems of fitting the ideas of “legislation” and “execution” to the colonial situation can be clearly seen in Richard Bland’s The Colonel Dismounted of 1764.35 Thus although in the early eighteenth century the acceptance of the balanced constitution implied an acceptance of a very modified doctrine of the separation of powers, in the tradition of Mackworth or Bolingbroke, as the century progressed the separation of powers was emphasized more and more, and became more rigid in conception. In the revolutionary period, therefore, the colonists’ approach to the office of Governor was to strip it of all prerogatives, and to turn it into a purely executive position. They were not recreating the royal Governor, they were for the first time instituting an executive power in the proper sense of that term. In this respect, as in others, the Americans did not adopt the separation of powers in imitation of their colonial governments; they retained only that part of the old constitutional system which remained when the attributes of mixed government and of imperial rule were rejected.

The transfer of power from the royal governments to the revolutionary governments was achieved by the setting up of Congresses that wrested authority from royal hands, and ruled the colonies through Committees of Safety, combining in their hands all the powers of government. This system of government by convention very quickly raised demands for a return to constitutional forms. It was at this period of his career that John Adams, who was later to defend mixed government with such passion, bent his main efforts to refuting the right of the legislature to exercise all the powers of government. The new States soon set about the business of drawing up their constitutions, and in many of them the doctrine of the separation of powers was declared to be the major criterion of constitutional government. The separation of powers had again emerged in response to democratic attacks upon the constitutional theory of privilege. Adams began his outline of a desirable form of government in 1775 with the statement: “A legislative, an executive and a judicial power comprehend the whole of what is meant and understood by government. It is by balancing each of these powers against the other two, that the efforts in human nature towards tyranny can alone be checked and restrained.”36 Adams proposed that the governor should have a veto, a proposal that few of his contemporaries were then prepared to accept, but it is his emphasis in this letter upon the separation of powers which marks it out as a piece for the times.

In 1776 eight State constitutions were written, in 1777 Georgia and New York completed theirs, and Vermont, in revolt against New York as well as Great Britain, joined in. The following year South Carolina revised her Constitution of two years earlier, in 1780 Massachusetts made her impressive contribution, and in 1784 New Hampshire, revising her Constitution of 1776, brought an end to the era of revolutionary State constitutions. Three years later the Federal Convention had at its disposal the fund of experience which these State constitutions had provided. The first two State constitutions, those of South Carolina and New Hampshire, were avowedly temporary instruments, written to cover the period until an accommodation was reached with Britain. The Constitution of New Jersey was little more than a copy of a colonial charter, although it remained in force until 1844. With the Constitution of Virginia adopted on 29 June 1776, a few days before that of New Jersey, we come to the revolutionary constitutions based upon the separation of powers. The constitutions of Virginia and of five other States that finished their labours in 1776 and early 1777 represent the height of the revolutionary acceptance of the doctrine of the separation of powers. In many respects they differed considerably: in the adoption of unicameral or bicameral legislatures, in the liberality or conservatism of the franchise, or in the experiments they made with such devices as the indirect election of the Senate in Maryland, or the institution of a Council of Censors in Pennsylvania; but they all adhered to the doctrine of the separation of powers, and they all rejected, to a greater or lesser degree, the concept of checks and balances. With the Constitution of New York in April 1777 the reaction began against the extreme rejection of checks and balances, and this movement continued until the Federal Constitution set the seal upon a new and uniquely American combination of separation of powers and checks and balances. In this the class basis of the old theory of mixed government was discarded, and some, but by no means all, of the control mechanisms of the balanced constitution were reintroduced to correct the obvious deficiencies of the early State constitutions, in which checks to the arbitrary use of power had been limited to the negative restraints of the pure separation of powers.

It has been said that the separation of powers was recognized in principle in the early State constitutions, but that this recognition “was verbal merely,”37 and that in practice it meant little more than a prohibition on plurality of office. Even if the acceptance of the doctrine had been “limited” to this aspect it would hardly have been a matter of little consequence. The maintenance of a strict prohibition upon dual membership of the legislative and executive branches has no doubt been the most significant aspect of the doctrine in forming the special character of American government, and should by no means be underplayed. In fact the early State constitutions varied considerably in the extent to which they embodied a strict separation of persons, although they all made great efforts in that direction. But the separation of powers meant more than that. Before the personnel of the branches of government could be kept separate the governments had to be organized along the lines of three distinct and separate branches. This was done by ensuring that the executive would have no part to play in legislation, and by abolishing the old Governor’s Council, which had had a finger in every pie.

The functions of the Council were distributed between a Council of State, and the legislature, where the Upper House exercised them, except in the two unicameral States. The Governor was stripped of virtually all his prerogatives, and in the Constitutions of Virginia and Maryland it was provided that he “shall not, under any pretence, exercise any power or prerogative, by virtue of any law, statute or custom of England.”38 The Governor was given no veto power, and the only remnant of the prerogative left to any of the executives was that of pardon or reprieve, and doubt was expressed whether even this was a proper power for an executive to wield. The Governor, President, or executive council became “executive” in the strictest sense of the word, merely to enforce the rules made by the legislature. It is indeed strange to argue, as has often been done, that because the States did not provide for “strong executives,” or kept the governors very “weak,” they did not really intend to embody the separation of powers in their constitutions; for if one accepts the thoroughgoing view of the separation of powers the idea of a “strong executive” is a contradiction in terms. Jefferson later insisted that the basic principle of the 1776 Constitution of Virginia was that no power could be exercised that was not defined by law, and that no provision was made for circumstances where the law would not apply. Indeed, he argued, the Constitution refused even to admit that such circumstances could arise.39 Thus was the problem of a discretionary power in government swept aside, a problem which had deeply interested John Locke, which Montesquieu had largely obscured, and which, in the democratic mood of the American patriots, was declared no problem at all. The implications of this view for the American system of government can hardly be exaggerated; the history of the Presidency of the United States is, in large part, the history of the attempts to change this conception of the functions of a “chief executive.” However, the exact importance of the separation of powers varied considerably from State to State. It would be very difficult to frame generalizations which would fit Pennsylvania, Virginia, and Connecticut in the revolutionary period. Although the major concern of all men was the dispute with Great Britain, it was the internal politics of the particular States which influenced the extent to which the doctrine played a part in their efforts at constitution-making. What can be said, however, is that the more “revolutionary” the atmosphere, the more likely it was that ideas tending towards the pure separation of powers would be in evidence. In Pennsylvania the pure doctrine played a large part in political and constitutional discussion; in Virginia, as in most of the States, it was modified and restrained by attachment to the old ways; in Connecticut the old colonial charter was not even replaced, and the revolution, together with the separation of powers, did not really arrive until 1818, when the power of an oligarchy centred in the Council was ended.40

The most extreme expression of the separation of powers, emerging in fact in its pure form, came in Pennsylvania, and later in Vermont. It is often stated that the Constitution of Pennsylvania did not embody the separation of powers, whereas in fact it was the basis of the whole Constitution. It is the failure to distinguish clearly between the separation of powers on the one hand, and checks and balances on the other, which leads to the confusion. The founders of the 1776 Constitution were bitterly opposed to any semblance of the checks and balances of the monarchic or aristocratic constitution. Pennsylvania in 1776 was unique among the American States in that the revolutionary movement against the authority of Great Britain was accompanied by, and was used as a cover for, a successful internal revolution in Pennsylvanian government itself. This internal revolution, whether it be seen as a regional or class movement, as an attack upon Quaker influence in government, or as a coup d’état by a small number of ingenious men,41 provided in Pennsylvania a democratic revolutionary situation unlike that of any other of the rebelling colonies. In Pennsylvania the doctrines which were propounded by the radical revolutionaries were very close to those of the English Civil War period, and they rejected more whole-heartedly than other Americans any suggestion of maintaining vestiges of the mixed and balanced constitution. Paine’s attack upon the English system of government had a particular success in Philadelphia, and local writers took up with enthusiasm the ideas which had in earlier years in England been associated with extreme democracy. “Demophilus” in 1776 drew upon the Historical Essay on the English Constitution in order to praise the “Saxon” form of government, with which he equated the separation of powers.42 Both he and the author of some “hints” to the constitution-makers were insistent that the governor and his council should be “solely executive.”43 “Demophilus,” however, was prepared to accept the idea of a bicameral legislature, whereas the most extreme expressions of the pure doctrine of the separation of powers came from those who were prepared to tolerate only a unicameral system.

The revolutionary concept of the delegation of power from the people to their agents in the various branches of government is deeply opposed to the ideas of the balanced constitution, in which important elements were independent of popular power, and able to check the representatives of that power. This idea of the direct delegation of all power had been proclaimed in the True State of the Case of the Commonwealth of 1654, and it was announced again in revolutionary Pennsylvania in 1776. In the Pennsylvania Journal of 22 May 1776 it was argued that “a charter of delegation” should be framed which would give “a clear and full description of the quantity and degree of power and authority, with which the society vests the persons intrusted with the powers of the society, whether civil or military, legislative, executive or judicial.” It is noticeable that the radicals did not, therefore, advocate complete legislative supremacy, or a system of gouvernement d’assemblée. The writer in the Journal proposed that a “Committee of Inquiry” should be chosen every third year to ensure that no laws had been passed which “infringed upon the Social Compact.” This insistence that all power flowed from, and was delegated by, the people, and that all the branches of government should be limited in power, was echoed by the author of Four Letters on Interesting Subjects printed in Philadelphia in 1776. “No country can be called free which is governed by an absolute power; and it matters not whether it be an absolute royal power or an absolute legislative power, as the consequences will be the same to the people.”44

Both the author of Four Letters and the writer in the Journal were concerned with the distinction between, and the limitation of, the powers of government, but the former was the more radical and thoroughgoing. The notion of checking power by dividing up the legislature “has but little weight with it,” for to argue for a balance in the constitution because of the existence of differing interests in society is wholly misplaced. There must be only one interest, and “that one to consist of every sort.”45 He returned to the stark simplicity of the seventeenth-century view of government which saw only two powers of government, that of making the law, and that of carrying it out, “for the judicial power is only a branch of the executive.”46 This author also demanded a Provincial Jury which would enquire at intervals into the operation of the branches of government.

Perhaps the clearest rejection of the system of mixed government and checks and balances came in a piece entitled The Interest of America, which was published in the Pennsylvania Packet of 1 July 1776.47 The author insisted that the form of government to be adopted must be new, not the corrupt mixtures of earlier governments. A “patched government, consisting of several parts,” had been the disease of otherwise great systems such as those of Rome or Britain. At all costs they must avoid “several branches of legislature.” The great absurdity of such governments was that one branch of the legislature, having a negative on the others, should be the principal executive power in the State. The mixed and balanced constitution, therefore, offended against that maxim which the author stated explicitly: “The legislative and executive power in every province, ought to be kept as distinct as possible.” The same injunction was contained in a broadside put out by the revolutionary Committee of Privates of Philadelphia. Signed, among others, by James Cannon, who is credited with a large share in the authorship of the Constitution of 1776, the broadside developed again the ideas of the direct delegation of power from the people, and the keeping of the legislative and executive authority “for ever separate.”48

The Constitution of Pennsylvania of 1776 showed clearly this extreme rejection of checks and balances, allied with the separation of powers. It established a unicameral legislature, and a plural executive, the Supreme Executive Council, directly elected by the people. No member of the Assembly could be chosen for the Council, although a joint ballot of Assembly and Council was used to select the President and Vice-President from among the twelve members of the Council. In line with the seventeenth-century inspiration of the Constitution, the judicial power was not elevated to the same level, nor given the same independence, as the “supreme” legislative and “supreme” executive powers. A Council of Censors was established to review the working of the Constitution every seven years, and to enquire “whether the legislative and executive branches of government have performed their duty as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are intitled to by the constitution.” If any doubt remains that this Constitution was intended to embody a thoroughgoing separation of powers, it is dispersed by the defence which was offered by its radical proponents eight years later, when its operation was being investigated by the Council of Censors. An extremely precise statement of its principles was given by “A.B.” in the Pennsylvania Gazette of 28 April 1784. This philosophy of government, which looks back to that strain of constitutional thought to which Marchamont Nedham had given expression in 1654, and which contains the elements of the strict constructionist view of the Federal Constitution of later years, is stated with such felicity and economy that it cannot be bettered:

Two centuries of a major strand of English and American thought are summarized in these words from a Pennsylvania newspaper of 1784. This same theory was endorsed by the Radical-dominated Committee of the Council of Censors, which found the Constitution of Pennsylvania to be “clear in its principles, accurate in its form, consistent in its separate parts.”49 It was a theory that accepted no concessions to the monarchic-aristocratic idea of checks and balances. It relied for the safeguards of constitutional government upon the allocation of abstractly defined functions of government to distinct branches of government, and upon the vigilance of the people to maintain this division in practice.

The attachment to the extreme version of the doctrine of the separation of powers in revolutionary democratic situations can be seen also in the case of Vermont.50 This area, known until 1777 as the New Hampshire Grants, was in revolt against the authority of New York as well as Great Britain, using the same arguments against domination by that State as the United States were using against British tyranny. The inhabitants of the Grants, opposing the land-holding oligarchy of New York, took up attitudes of extreme democracy, and when they adopted a Constitution for the State of Vermont in 1777 they based it upon that of Pennsylvania, embracing unicameralism, universal manhood suffrage, a popularly elected Council, an elected Governor (contrary to the Pennsylvania pattern), and a Council of Censors. This Constitution was in part a reaction against the recently adopted Constitution of New York, which had embodied, in the view of the Vermont democrats, an aristocratic system of government.51 Thus we find the seventeenth-century view of the separation of powers and the delegation of power by the people expressed in the views of the proponents of the Vermont Constitution in opposition to the eighteenth-century ideas of balanced government. Thomas Young, who proposed the model of the Constitution of Pennsylvania to the people of Vermont, wrote of the people as “the supreme constituent power” and of their representatives as the “supreme delegate power,”52 and Ira Allen, the “Founder of Vermont,” succinctly expressed the principle of a twofold separation of delegated powers.53 Their antipathy towards the rival constitutional theory was well expressed at a later date by Samuel Williams, historian of Vermont, who in describing the “American system of government” argued that “the security of the people is derived not from the nice ideal application of checks, ballances, and mechanical powers, among the different parts of the government, but from the responsibility, and dependence of each part of the government, upon the people.”54

The other American States, not involved as were Pennsylvania and Vermont in such violent internal upheavals in their politics, did not go to the extremes represented by the Radical constitutions of those States. Nevertheless, demands for a more democratic system of government were associated with strong assertions of the doctrine of the separation of powers and an antipathy towards checks and balances. In North Carolina the instructions of Mecklenburg and Orange to their representatives in 1776 portray much the same constitutional theory as that of the Pennsylvania Radicals, although they had little chance of acceptance.55 Indeed the instructions of Mecklenburg to its delegates is perhaps the clearest and most effective statement of the pure doctrine of the separation of delegated powers of government to be found anywhere. Although the original draft of the instructions advocated bicameralism, it is noted that the people of Mecklenburg rejected this proposal, so leaving a statement of the doctrine in its purest form. A similar argument was developed in The People the Best Governors, which opposed bicameralism, and suggested a “first executive officer, without any concern in the legislature.”56 The author of this pamphlet, however, proposed the adoption of an exception to that “darling principle of freedom” that those who make the laws should not execute them: he suggested that the legislature should act as a court of appeal “in some important matters,” on the grounds that interpretation of the law by a court was tantamount to a legislative act.57

However, most of the States retained some of the old ways, in particular bicameralism, and the separation of powers was not adopted in a stark or “pure” form. Nevertheless, in 1776, the doctrine of the separation of powers remained the only coherent principle of constitutional government upon which to build a constitution which rejected monarchy and aristocracy. The rationale of an American system of checks and balances had yet to be formulated.

The attempt to see government, in John Adams’s formulation, as a system in which the whole is comprehended by a legislature, an executive, and a judiciary, exercising their proper functions, provided critical difficulties for the Americans, faced with the problem of implementing this view. Nothing in the traditional theories of government could provide simple answers to certain difficult problems. The first of these was the method of appointing the executive. The fear of executive tyranny led most of the States to provide for the election of governor, or president, by the legislature, in most cases for a term of only one year. This is perhaps the first occasion in modern history that this problem had been faced; and its relation to the separation of powers is not immediately apparent. The choice of a Protector in 1654 was hardly a matter for discussion, and the British Constitution had solved its problems of choosing an “executive” by leaving it to the chances of heredity. Yet if the executive was to be more than an errand boy he must have some independence of the legislature, and it soon became obvious that the authority of this executive official depended in large part on his method of appointment. The apparent need for independence on the part of the executive suggested, moreover, that there was more to his function than the automatic application of law, so that at once the attention of the Americans was drawn to the question of the nature of the “executive office” and of its attributes. A most important power of the royal governor had been his veto, and inevitably discussion revolved around the extent to which a legislative veto was proper to one whose function was simply to carry out the laws. The other side of the coin was the power of impeachment, which had once been a significant weapon in the hands of the British parliament, and which Montesquieu and other theorists of the balanced constitution had considered an essential check to royal power; but was this any longer necessary if, instead of a king, there was now merely an executive officer? Almost the only concession to the balanced constitution in these early State constitutions was the provision in some that the governor could be impeached, although in Virginia and Delaware only when he was no longer holding the office.58

The other remnants of the prerogative provided similar difficulties. Who should exercise the appointing power? The usual revolutionary solution was to give this task as far as possible to the legislature, so further diminishing the authority of the governor. But what was the justification for seeing this as a part of the legislative power? On the other hand, to place this power in the hands of the governor would be to give him the opportunity, through patronage and influence, to make himself more than a mere executive official, and to aspire perhaps to the power which the Crown exercised in England through such dubious means. At a later stage, in the Federal Convention, the power to make treaties, and to declare war and peace, were the subject of similar uncertainty. On the treaty power it was variously argued that it was exclusively legislative, exclusively executive, or that it formed “a distinct department” of its own.59 These were the tasks of government which an earlier theory of the constitution had comprehended but which did not fit easily into the over-simple categories of the new approach. The history of constitutional doctrine in the decade between the Constitution of Georgia and the Federal Constitution is, in part at least, the history of the search for a rationale for dealing with the former prerogatives of the Crown.

The structure of these State constitutions of 1776 and of Georgia in 1777 certainly reflects more than a mere “verbal” acceptance of the separation of powers. Most of them, however, modified the impact of the doctrine in other ways, principally by adopting bicameral legislatures and by restricting the franchise, so that the full potentialities of a system of sharply divided powers were never realized; and by making the election of the governor dependent upon the legislature they went a long way towards ameliorating the worst dangers of an extreme separation of powers. However, the abstract division of the functions of government into “legislative,” “executive,” and “judicial,” and their attribution to three separate agencies, does not solve the problem of the control of government power, and in particular it fails to solve the problem of restricting the legislature to the mere announcement of general rules. As Corwin has pointed out, the State legislatures soon meddled in every type of government business, including that normally reserved to the judiciary.60 Contemporaries also criticized this aspect of the operation of the State governments, noting the tendency for all power to gravitate to the legislature.61 This fact, important as it is, does not allow us to conclude, however, that the doctrine of the separation of powers meant little or nothing in this period. On the contrary it is here that we reach the very core of the problem raised by an acceptance of a version of the pure doctrine, almost unalloyed with any checks or balances. It was in the realization of the shortcomings of the doctrine, standing on its own as a theory of government, that the Americans retreated from it to find a new and surer foundation for a constitutional theory. For it was the problem of placing limits on the legislative power that made this extreme doctrine unworkable. In this period the nature of the legislative power was in considerable dispute. Unrestrained legislative supremacy was clearly not intended by those who drew up constitutions in order to put an end to government by convention, or who in Pennsylvania, and later in Vermont, established constitutional councils for supervision of legislative acts. But the exact nature of the limits upon legislative power, and how to enforce them, was not clear. It is often stated that the revolutionary State constitutions embodied unrestrained legislative supremacy, but this is too simple a statement to cover such a complex situation. The view that Locke held of this matter, discussed earlier, may be seen also as the basis of the American view at this time. That is to say that the legislature must be “supreme,” in the sense that its decisions cannot be gainsaid, but the power of the legislature is not unlimited. Certainly those who saw the separation of powers as a central principle of government did not accept the view that the legislature was omnipotent. Only the people were able to exercise an unlimited power, whereas the legislature was, in the words of the instructions of Mecklenburg County, North Carolina, to its representatives in 1776, “a derived inferior power,” which was to be “restrained in all future time from making any alteration in the form of government.”62 Equally certainly there were those who asserted that the legislature had unlimited power even to change the constitution, but they rarely, if ever, believed that the legislature had the power to undertake all the tasks of government, for it was, by definition, the legislative branch and not the embodiment of all power. As late as 1814 John Adams could write of “the summa potestatis, the supreme power, the legislative power, the power from which there is no appeal but, to Heaven. . . .”63 But this view was associated, of course, with the idea of the legislative supremacy of the King-in-Parliament in Britain, and with Adams’s scheme of checks and balances. Such a view, however, was not acceptable to most Americans, who saw in the people a constituent power, and in the legislature only a delegated power. Thus, for example, we find the two elements of the idea of legislative power, its “supremacy” in law-making together with its limited status under a constitution, expressed by the author of the Observations on Government of 1787. Like Locke’s language, this author’s terms seem to be contradictory. He writes that “All government necessarily requires a supreme authority lodged somewhere to superintend and direct the operations of every other part: now this office belongs exclusively to the legislature.”64 Later, however, he writes that a constitution is that original compact “whereby a certain form of government is chalked out and established unalterably, except by the people themselves.”65 Writing of the difficulties of the government of Rome he argues that “had the boundaries of the powers lodged in different parts of the government, been chalked out with precision” these difficulties would hardly have arisen. These statements were, for eighteenth-century Americans, as for seventeenth-century Englishmen, perfectly compatible, and any expression of “legislative supremacy” must be seen in this light.

Furthermore the distance between the expressed intention of the Constitutions and the actual practice of State legislatures must be seen not as a conscious rejection of the doctrine by “Americans,” but as the result of the differing pressures upon politicians called upon to act both as constitution-makers and as members of a legislature. There was an inevitable conflict between the ideas of a member of a constitutional convention, even when this was also acting as a legislature, thinking in the abstract about “the best constitution” and subject to certain pressures in his work, and the ideas of the same person as a legislator under that constitution, concerned in the heat of the political battle with the gaining of a tactical advantage and subject to much more immediate and concrete considerations.

The experience of Pennsylvania illustrates this point very well. The Constitution of 1776, which embodied the separation of powers, represented the political theory of the Radicals who controlled the government for much of the time up to the election of the Council of Censors in 1783. When in control of the legislature the Radicals undoubtedly used its power to interfere in matters which, in the spirit of the separation of powers, were more appropriate for executive or judicial action. In 1783 and early 1784 the Republicans, who opposed the Constitution, were in a majority on the Council of Censors, and they used their position to attempt to put forward proposals for the amendment of the Constitution, proposals which would have restored some of the old elements of the balanced constitution and so effectively limited the power of the legislature.66 When the Radicals gained control of the Council of Censors in June 1784, however, they too used their position to point out the abuses of power by the legislature, but only those abuses which had been committed by the Republicans when they were in control. After providing innumerable examples of the ease with which the constitutional division of power could be violated, the Radicals nevertheless concluded that there was no need to alter the Constitution, which was perfectly sound; the fault lay in the behaviour of those men who had wrongfully used their public office. Put the right men in power and all will be well!67 The duplicity of the politician who will acknowledge certain constitutional principles and then act in violation of them is the very situation which constitutional structures set out to contain; and the separation of powers, like the theory of mixed government, was intended to show the way; but the pure doctrine of the separation of powers failed to do this because, unlike the theory of mixed government, which opposed power with power, the pure separation of powers depended upon an intellectual distinction between the functions of government for its safeguard and upon elections for its sanction. Once this fact was clearly grasped, the constitutionalists of America turned to their experience of the balanced constitution for the solution to their problems.

Early objections to the form of these State governments were often couched in terms of the separation of powers, arguing that the legislative, executive, and judicial powers were not properly separated. In 1777, in his Observations on the Present Government of Pennsylvania, Benjamin Rush used this argument.68 He acknowledged that the Constitution of Pennsylvania “seems” to have divided up the powers of government, but in fact the executive and judicial branches, he wrote, have not been given the necessary independence of the legislature that could ensure them “the free exercise of their own judgments.”69 He strongly urged a bicameral legislature and would clearly have liked to see the governor with a veto, but his argument for the latter is confused and difficult, because he did not relate it in any obvious way to his own criticism of the Constitution. Nevertheless, he did have a basic understanding of the conflicting conceptions of government at issue. “It is one thing to understand the principles, and another to understand the forms of government,” he said, and added, “Mr. Locke is an oracle as to the principles, Harrington and Montesquieu are oracles as to the forms of government.”70 The difference between Locke’s seventeenth-century formulation of legislative and executive power, on the one hand, and Montesquieu’s complex eighteenth-century constitution of checks and balances, on the other, was the focal point of the problems of American government in this period.

The separation of powers had emerged in 1776 as the only viable basis for a constitutional system of limited government, finding its most extreme expression in Pennsylvania, but from the very beginning of the period of American constitution-building there were those who saw it, standing alone, as an inadequate safeguard against the abuse of power, particularly by the legislature. The author of A Frame of Government for Pennsylvania71 had in 1776 urged the desirability of “vesting the supreme legislative power in three different bodies.” The proponents of the pure doctrine of the separation of powers were met with strong opposition in Pennsylvania by those who “severely reprobated” the Constitution of that State because it did not contain the checks and balances necessary to a legitimate distribution of the powers of government.72 This division of opinion formed the intellectual basis of the severe party battle between Radicals and Republicans in the early years of Pennsylvanian statehood. In other States, where the doctrine of the separation of powers had not been so fiercely adopted, there were many who wished to retain some of the checks and balances of the British Constitution. John Adams had proposed that the governor should be given a legislative veto, and Carter Braxton had proposed to Virginia a plan of government which was closely modelled after the British pattern. In 1776, however, the revolutionary situation precluded proposals that seemed designed to reintroduce monarchic or aristocratic elements into American political life. The only authority to which they could appeal was the one that was being so bitterly opposed. Nevertheless the excesses of the radicals in Pennsylvania, and the tendency of State legislatures generally to accumulate power, and to exercise it in an arbitrary way, soon effected a change of heart. In New York in 1777 the new Constitution showed a definite movement away from the extreme position of the earlier State constitutions towards some recognition of the need for checks and balances. It was in the Massachusetts Constitution of 1780, however, that the new philosophy of a system of separated powers which depends upon checks and balances for its effective operation was first implemented. This Constitution embodied the results of the ideas of John Adams, and, more important perhaps, of the Essex Result.

In 1774 John Adams had condemned the royal government of Massachusetts as a tyranny founded upon the concentration of legislative, executive, and judicial power in the hands of the royal officials, Bernard, Hutchinson, and Oliver,73 and in 1775 he placed considerable emphasis upon the separation of powers in his projected form of government. However, Adams was really interested in mixed government, as became evident in his Defence of the Constitutions of Government of the United States, of 1787–8. Whether or not Adams deserved Paine’s later gibe that “his head was as full of kings, queens and knaves as a pack of cards,” his Defence was certainly a long, impassioned plea for a mixture of monarchy, aristocracy, and democracy. He even went so far as to say that the need for a hereditary monarchy and aristocracy might some day have to be acknowledged in America,74 although elsewhere he denied ever having supported the idea of hereditary power.75 However much Adams may have leaned towards mixed government in 1776 or in 1780, there was, of course, no chance of such views being accepted, otherwise than in the watered-down form of a bicameral legislature and a veto power for an elected governor. In 1776 even the latter was wholly unacceptable to his contemporaries, and although the Convention in Virginia had before it his plan, among others, it followed the lead of George Mason and adopted a scheme which showed very little concession indeed to mixed government or checks and balances. By 1779–80, however, the reaction against the earlier pattern had gone so far that a directly elected governor could be entrusted with a qualified veto as a check to the legislature. Adams drafted the Constitution of Massachusetts of 1780, and the tendency towards the reapplication of the ideas of the balanced constitution is clear, but the Convention was not prepared to go as far as Adams wished, and its amendments placed greater emphasis upon the separation of powers. The famous Article XXX of the Declaration of Rights did not come from his pen. It reads: “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them, to the end it may be a government of laws and not of men.”76

John Adams, by his consistent adherence to the theory of the balanced constitution, must be credited with having played an important part in giving direction to the retreat from the pure doctrine of the separation of powers in America. In his early plans for State governments he developed the outline of a system of separation of powers and checks and balances which was in fact later largely adopted as the solution to American problems of government.77 But he was unable to develop a clear rationale for an American theory of constitutionalism. In his later work he proved far too enamoured of the outdated and irrelevant theory of mixed government to be the author of a truly American political theory. He pointed the way, but no more. The task of developing this theory was undertaken in Massachusetts before the Constitution of 1780 by the authors of the Essex Result, by Thomas Jefferson in his Notes on the State of Virginia in 1781, and in the discussions concerning the Federal Constitution by James Wilson and James Madison.

In 1775 Massachusetts had reverted to a form of government based upon the royal charter of 1691, in which the House of Representatives elected a council of twenty-eight members that became the executive, as well as forming the Upper House of the legislature and the supreme judicial tribunal. This system of concentrated power was even further developed by the practice of appointing members of the legislature to offices of profit, until one member held six offices at one time.78 This so offended the current notions of constitutional government that there was continuous pressure for a new constitution. As a result a constitution was drafted in 1778 and submitted to the freemen, but rejected.79 This project exhibited the same trend towards a more independent executive as was shown in New York the year before. The Governor and Lieutenant-Governor were to be directly elected, and the former was granted a limited power of prorogation, but he had no veto power, and both he and the Lieutenant-Governor were members of the Senate, each with a vote. The replies from the towns of Massachusetts to this proposal show a wide variation in opinion, one of them, Greenwich, even demanding a system of convention government by a single-chamber legislature without a separate executive.80 The return from Essex County, however, was a most remarkable document, the precursor of the Massachusetts Constitution of 1780, and the first clear formulation of the theory which was to become the basis of the Federal Constitution. It was the work of Theophilus Parsons, then only twenty-eight years old, and later to become Chief Justice of Massachusetts.81 With great clarity and precision the Essex Result formulated the problem of governmental organization and indicated the lines along which it must be solved in America. It proclaimed the freedom and equality of all men as the starting point of all political discussion, rejecting at the outset any system based upon the English pattern of mixed government. However, the author of the Result was a conservative who wished to restrain the exercise of government power and certainly did not wish to set up an unlimited democracy. The pattern of the old system of thought was followed, therefore, to this extent: the three qualities requisite to an effective system of government were enumerated—a concern for the interest of the whole, wisdom, and dispatch—and these were related to the need to combine democratic and aristocratic elements in the legislature with an efficient executive power. In Massachusetts at this time the aristocracy was defined as “the gentlemen of education, fortune and leisure,” and although, therefore, class divisions were acknowledged, indeed welcomed, they were not the hereditary class divisions of the rejected European theories of government. This changed emphasis upon class was an essential element in the transformation of the theory of mixed and balanced government into the American theory of checks and balances. It was the inapplicability of the British pattern of thought in this respect which was repeatedly emphasized in the Federal Convention.82

The Essex Result then turned to deal with the nature of the powers of government and their distribution. The proposed constitution of 1778 was systematically analysed. All those provisions were sought out and rejected which placed powers in the wrong branch, or allowed one person to exercise authority in more than one department. A rigorous separation of the powers of government was insisted upon. However, the rigid separation of functions in different hands was not itself seen as a sufficient safeguard, and the Result then applied the vocabulary of the balanced constitution to this system of separated powers: “Each branch is to be independent, and further, to be so balanced, and be able to exert such checks upon the others, as will preserve it from a dependance on, or a union with them.”83 In practice this meant the direct election of an executive with effective means of checking the legislature, and with the power to appoint his subordinates, and a judiciary quite independent of the other two branches. Thus was the whole emphasis of the mid-eighteenth-century theory of the balanced constitution transformed. The ideas and vocabulary that had formerly been applied to monarchy, aristocracy, and democracy were firmly transferred to the legislative, executive, and judicial branches of government. Whereas in contemporary England the separation of powers was a necessary, but subordinate, element of a system in which three classes check and balance each other, in America the checks and balances became a necessary, but subordinate, element of a system in which the functionally divided branches of government can maintain their mutual independence. The ideas of Bolingbroke and Montesquieu emerged in another guise, all hereditary elements stripped away, and applied unequivocably to a democratic system of government.

The Essex Result is an indication of one trend of thought, in Massachusetts. In 1781 Jefferson published his Notes on the State of Virginia, which contain substantially the same analysis of the institutional problem. The purpose of the patriots in Virginia, he said, had been to create a new system of government in which the powers should be so divided and balanced “as that no one could transcend their legal limits, without being checked and restrained by the others.”84 The Convention, therefore, had established separate and distinct departments of government, so that no person might be allowed to exercise the powers of more than one department at the same time. The Convention, however, failed in its purpose because “no barrier was provided between the several powers.” As a result the executive and judicial officers were dependent upon the legislature, which could, merely by casting its decisions in legislative form, bind the other branches, even though dealing with “rights which should have been left to judicial controversy” or with “the direction of the executive.”85 Thus “all the powers of government, legislative, executive, and judiciary, result to the legislative body.” Jefferson evidently saw with great clarity that the application of the principle of the separation of powers could not, in itself, achieve its object; it must, to be effective, be supplemented by “barriers” between the powers of government, and the erection of these barriers, although in a sense itself a breach of the doctrine, was necessary to its application.

The same lesson that had been learnt in Massachusetts and Virginia was driven home by the political battles in Pennsylvania which led to the dilemma of the Radicals on the Council of Censors in 1784. Whilst defending the extreme example of a constitution without “barriers,” they went to considerable lengths to provide the detailed proof of its dangers. Their Republican opponents replied that without checks and balances the legislature would inevitably encroach upon the executive and judicial powers.86 Other State legislatures, in pursuit of political advantage, continued to exercise their power in a way which clearly showed that mere exhortation to remain within their proper function was not enough. It was against the background of this experience with the separation of powers that the Federal Convention met in Philadelphia in 1787.

Thus in revolutionary America there were those who adhered to the pure doctrine of the separation of powers, accepting no compromises with the old constitutional theory of checks and balances. But these were relatively few. At the other extreme there were those who wished to make the absolute minimum of change in the old constitution to bring it into line with new conditions. They accepted the ideas of the separation of powers, but only if that doctrine were combined with a thoroughgoing set of checks and balances comparable to those of the British system. John Adams exemplifies this latter group. The vast majority of Americans, however, fell somewhere between these extremes. For many, bicameralism was a sufficient check added to the basic separation of powers, but the various combinations of the two conceptions of government were very numerous. As the Revolution progressed, however, the extreme view of the pure separation of powers found fewer adherents, and by the time of the Federal Constitutional Convention in Philadelphia some form of a constitution of checks and balances was inevitable. The question was exactly how far it was necessary to go.

By the time that the Convention met, important sections of opinion among its members had already accepted the two central positions of modern American constitutional thought. The separation of powers was by this time, in the words of a contemporary pamphleteer, “a hackneyed principle,” or a “trite maxim.”87 Now, however, the idea of checks and balances, rejected at the height of revolutionary fervour, was considered an essential constitutional weapon to keep all branches of government, and especially the legislature, within bounds. In the Convention Madison clearly stated the relationship between these two ideas. “If a constitutional discrimination of the departments on paper were a sufficient security to each against encroachments of the others, all further provisions would indeed be superfluous. But experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of powers and interests, as will guarantee the provisions on paper.”88 In giving a defensive power to each department of government they were not blending them together; on the contrary, effective barriers were thus erected in order to keep them separate. The two doctrines, drawn from different sources, and as a result of the very conflict with each other, were now to become interdependent, combined into a single, essentially American doctrine, which still provides the framework of political life in the United States.

Although these two principles undoubtedly gained wide acceptance, there were many difficult problems to be solved by the Convention. Just how strong were the checks to be, and what form should they take? If the branches of the government were to be independent of each other what method of selection did this entail for the executive and judicial branches? The possibility of a hereditary executive or one appointed during good behaviour was barely mentioned.89 The States offered two examples—election by the legislature in most of the earlier constitutions, and direct popular election in the later ones. Election by the people offered the greatest hope of an independent, though responsible, executive. However, the possibility of a real check to the exercise of power, where popular election was the ultimate source of authority in both branches, was doubted by Alexander Hamilton. “Gentlemen say we need to be rescued from the democracy. But what are the means proposed? A democratic assembly is to be checked by a democratic senate, and both these by a democratic chief magistrate.”90 Hamilton’s incredulity might well have been justified had the Federal Constitution been applied to a tightly-knit homogeneous community, but in a country of such diversity the differing modes of election, and the different constituencies of the three elected branches of the government, have provided the basis for internal checks to the exercise of power of considerable strength and durability.

The reaction from the doctrine of the separation of powers, standing on its own as a theory of government, might have led the Convention towards some form of the parliamentary system which was then evolving in Britain, but the Founders were not prepared to move so far away from what had now become the basis of their constitutional doctrine.

It has indeed been argued that the Founding Fathers did not “reject” parliamentary government, because in 1787 it was, after all, still very immature in England itself, and the influence of Montesquieu and Blackstone was so great that their view of the British Constitution, in which Ministers apparently played no significant role, was wholly accepted by the Americans. “As the idea never presented itself,” says Lord Bryce, “we cannot say that it was rejected, nor cite the course they took as an expression of their judgment against the system under which England and her colonies have so far prospered.”91 However, as has been pointed out above, in England the understanding of the role of the cabinet was far greater than the works of Blackstone, de Lolme, and Paley would suggest, and for the best informed men in the Federal Convention there is no reason to suppose a greater degree of ignorance. George Mason in his objections to the projected constitution complained that no council of state, or constitutional body like a privy council, was provided for the President. The result might be, said Mason, that a council of state would grow out of the principal officers of the great departments, “the worst and most dangerous of all ingredients for such a council in a free country.”92 In reply, James Iredell remarked of England that “everybody knows that the whole movement of their government, where a Council is consulted at all, are directed by their Cabinet Council, composed entirely of the principal officers of the great departments.”93 The best evidence, however, comes in the remarkable speech made in the Convention by Gouverneur Morris. Opposing the selection of the executive by the legislature Morris showed a remarkable familiarity with the real constitutional issues in England at the time. Much has been made, he said, of the intrigues which might be practised by the executive to get into office, but what of the intrigues in the legislature to get him out of office? “Some leader of party will always covet his seat, will perplex his administration, will cabal with the Legislature, till he succeeds in supplanting him.” This is the way in which the King of England is “got out,” for the real King, said Morris, is the Minister. This was the way Chatham achieved office, and Fox was for pushing the matter further still. The passage of the India Bill would almost have made the Minister King in form as well as in substance. “Our President will be the British Minister, yet we are about to make him appointable by the Legislature.”94 A clearer analysis of the situation and of the choice before the Convention could hardly be looked for. It is an interesting comment on the doctrine of the separation of powers that at the same time that it was being used in America to attack the idea of a cabinet (because the result, it was feared, would be the dominance of the legislature) it was being attacked in England as a system designed for the domination of the legislature by the executive. The use of the doctrine in these ways was quite consistent, for the crucial difference in the two situations lay in the extent of the franchise, and in the use of influence, and, therefore, in the composition of the groups which might be expected to control the legislature.

Their hatred of the corruption and influence in the British legislature, on which the Americans blamed much of the conflict between Parliament and the colonies, led the members of the Convention to accept almost automatically a complete separation of the personnel of legislative and executive branches. A few voices were raised arguing that the power to appoint legislators to office would be an important weapon in the hands of the executive, who might otherwise become a “mere phantom” of authority,95 but the motion to make members of the legislature incapable of holding office was accepted, Madison noted, without opposition.96 Yet the fear of legislative tyranny and the need for executive independence loomed so large in the minds of the delegates that they were prepared to move towards the partial restoration of some of the former prerogatives of the Crown, which the early State constitutions had ruthlessly stripped away. Still, they were hesitant about this, and adopted a half-way position on almost all issues. The veto power was restored, but only a qualified veto; the appointing power was given to the President, but subject to the power of the Senate to confirm appointments unless otherwise provided for by Congress; the power to negotiate treaties was placed in the President’s hands, but confirmation was required by the Senate; and the power to declare war remained with the Congress. These were the aspects of government business that did not fit neatly into the theory of the separation of powers, and the Convention’s treatment of them can be seen, in part as the application of the idea of checks and balances, and in part as compromises evolved from the uncertainty about whether these were really executive or legislative functions. The allocation of these powers was strongly criticized by those who favoured a more thoroughgoing separation. The President’s veto power made him too much like the English King to pass unchallenged, and the role of the Senate in making appointments and ratifying treaties was reminiscent of the old colonial governor’s council with all its overtones of aristocratic power. Thus Samuel Bryan attacked the proposed Constitution, the idea of checks and balances, and John Adams, all in the same breath, quoting Montesquieu in support of the revolutionary theory of the separation of powers as exemplified by the Constitution of Pennsylvania.97 But the Anti-Federalist attack upon the Constitution lacked coherence and a clear alternative set of principles to oppose to the combination of separation of powers and checks and balances proposed by the Convention. The pure doctrine of the separation of powers was no longer a viable alternative, as it had seemed to be in 1776. The experience of it in operation had been a major factor in making checks and balances acceptable again. Furthermore, the opponents of the Constitution could not simply propose a pure separation of powers for the Federal Government, even if they did so for State governments, for it was by now clear that such a system of government would probably lead to an extremely powerful central legislature, and this they did not want. The suggestions of monarchic or aristocratic tendencies in the Constitution had to be refuted by its proponents by emphasizing that it did in fact embody the separation of powers, and that the checks and balances were not in conflict with, but necessary to, the effective maintenance of a separation of the powers of government.

One of the most important consequences for American government of the development of constitutional ideas between 1776 and 1787 lay in the judicial sphere. The American doctrine of judicial review bears a complex relationship to the separation of powers. Clearly some form of separation of powers is a necessary prerequisite of judicial review. The long evolution of judicial independence in England, the development of Montesquieu’s theory through the medium of Blackstone’s interpretation, and the importance attached to judicial independence in the colonial period in America, are all essential steps in the development of the power of the American courts. However, the separation of powers, in itself, is not a sufficient basis for the establishment of a doctrine of judicial review: indeed, taken to its logical extreme, as in France after 1789, or by the Jeffersonian Republicans in the United States, the separation of powers is incompatible with the idea that one branch can interfere with the functions of another to the extent of invalidating its acts. Like the veto power, the establishment of judicial review depended upon the acceptance of the idea of checks and balances as essential barriers to the improper exercise of power. The idea of judicial review flows in part, of course, from the argument that the mere existence of a constitution lays a duty upon the judiciary not to enforce laws in conflict with it, but this is a view which has not been accepted in all countries with written constitutions. It was not accepted in France, and even Switzerland, with its federal constitution, has not adopted the American attitude towards judicial power. Thus although we can find indications in colonial history of the evolution of judicial review, as well as in the Council of Revision in the New York Constitution of 1777 and in the decisions of early State courts, it is in the Federal Convention, with its highly developed conception of the relation between the separation of powers and checks and balances, that we find the evidence of the belief that judges must have the power to check the legislature by limiting it to its proper functions. Here is the solution to the problem of the use by the legislature of “the forms of legislation” to achieve improper ends which had puzzled the early constitutionalists. Should the executive veto be insufficient to restrain the legislature then the courts would be able to declare unconstitutional acts void. The evidence of the blossoming of this view of judicial power in the Convention and in the Federalist is most impressive.98

The newly-forged American constitutional theory had now reached its practical realization, and there remained only the problem of developing that theory for the purpose of obtaining the ratification of the Constitution. The two most skilful exponents of the new doctrine were James Wilson of Pennsylvania, and Madison. Wilson, a delegate in the Convention and later to become one of the first Justices of the Supreme Court of the United States, conducted a herculean defence of the new Constitution in the ratifying Convention in Pennsylvania. His starting point was, as indeed it had to be, the sovereignty of the people. He rejected Blackstone’s doctrine of parliamentary sovereignty as outmoded. The British do not understand the idea of a constitution which limits and superintends the operations of the legislature. This was an improvement in the science of government reserved to the Americans.99 Wilson made it abundantly clear that no mere copy of the British pattern of government was intended. Mixed government as practised in Britain was inappropriate to the United States, for it was a system of government “suited to an establishment of different orders of men.”100 The Federal Convention had created a government which in principle was “purely democratical,” but which applied that principle in different forms, thus obtaining all the advantages of the simple forms of government without their disadvantages.

Wilson believed that the legislature must be restrained, as must the other parts of government. However, a simple separation of powers was not enough. There must be an active power over the legislature, not merely a passive one.101 The legislature would, therefore, be kept within its bounds both by the internal check of bicameralism, and by the “interference” of the executive and judicial departments. The executive veto and the power of the courts to invalidate legislation would ensure that the legislature heeded the authority of the people.102 It remained for Madison to complete the theoretical statement of the proposed Constitution in the Federalist. Madison, like Wilson, was concerned to refute the charges that the Constitution blended the powers of government too much. It would be a misunderstanding of Montesquieu, he wrote, to assert that the principle of the separation of powers did not allow of the blending of the powers of government at all.103 Montesquieu “did not mean that these departments ought to have no partial agency in, or no control over the acts of each other.” He meant no more than this, “that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.”104 The experience of Virginia and Pennsylvania proved that it was not enough to define precisely the boundaries of the power of each of the departments of government. Such “parchment barriers” are not enough. “Unless these departments be so far connected and blended, as to give to each a constitutional control over the others, the degree of separation which the maxim requires, as essential to a free government, can never in practice be duly maintained.”105

The Americans, after a period of hes