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The Separation of Powers in the Eighteenth Century

Published online by Cambridge University Press:  01 August 2014

William Seal Carpenter
William Seal Carpenter*
Affiliation:
Princeton University
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Extract

“Justice is the end of government. It is the end of civil society.” Thus the authors of The Federalist defined the purposes of the government created by the Federal Convention. But they reached this definition as the conclusion to a discussion of the factious nature of mankind. Madison had already remarked that the causes of faction could not be removed without abolishing the liberty which is essential to political life. He believed, however, that the control of its effects was within human power. To the mind of the Virginian the vital political forces in the state should be tied up in a nice poise through the clauses of a written constitution. A government so contrived would, as Madison believed, “secure the permanent interests of the country against innovation.”

The ideal which Madison envisaged was one of dynamic equilibrium. He thought that by deriving the various branches of the government from different sources all positive action to the detriment of established order and guaranteed rights would be checked from the outset. Every safeguard against “the mutability of public councils” was to be embodied in the interior structure of the government itself. It was not enough that government should have a dependence upon the people; “experience has taught mankind the necessity of auxiliary precautions.”

The political experience to which Madison referred was fresh in the minds of all the men who assembled at Philadelphia in the summer of 1787. It was afforded by the thirteen states, in none of which did political practice square with the expressed provisions of its constitution.

Type
Research Article
Information
American Political Science Review , Volume 22 , Issue 1 , February 1928 , pp. 32 - 44
Copyright
Copyright © American Political Science Association 1928

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References

1 The Federalist, No. 51.

2 Carpenter, W. S., Democracy and Representation (1925), p. 22Google Scholar.

3 The Federalist, No. 51.

4 The Federalist, No. 47.

5 Ibid., No. 48.

6 Farrand, M., Records of the Federal Convention (1911), I, pp. 133–134Google Scholar.

7 Webster, W. C., “A Comparative Study of the State Constitutions of the American Revolution,” Annals of the American Academy of Political and Social Science, IX, p. 385Google Scholar.

8 Corwin, E. S., “Progress of Constitutional Theory between the Declaration of Independence and the Meeting of the Philadelphia Convention,” American Historical Review, XXX, p. 513Google Scholar.

9 See the writings of Jefferson and Adams, and Rowland, K. M., The Life of George Mason (1892)Google Scholar.

10 Leviathan, Chap. 19.

11 Vindication of the Honour and Privileges of the Commons of Great Britain (1740).

12 The Political Conduct of the Earl of Chatham (1769). Chatham MSS, No. 82.

13 An Address to the Electors (1739); A Letter to a Member of Parliament from a Friend in the Country (1739); Directions and Advice for the Choice of Members of Parliament (1741). See also The Danger of Mercenary Parliaments (1722); A Complete History of the Late Septennial Parliament (1722); and Benefits Gained by the Late Septennial Parliament (1722).

14 An Impartial Enquiry into the Reasonableness and Necessity of a Bill for Reducing and Limiting the Number of Places in the House of Commons (1739).

15 Blauvelt, M. T., The Development of Cabinet Government in England (1902), p. 177Google Scholar.

16 Ford, H. J., Rise and Growth of American Politics (1898), p. 176Google Scholar.

17 Farrand, op. cit., I, p. 71.

18 The Federalist, No. 47.

19 The doctrine of the separation of powers was expounded by at least one eighteenth-century writer before Montesquieu, i.e., de Rapin-Thoyras, P., in his The History of England (1732–1723)Google Scholar. This book was known in the American colonies and was quoted by a number of the revolutionary pamphleteers. See Bland, Richard, Enquiry into the Rights of the British Colonies (1769)Google Scholar.

20 C.O. 5 No. 753.

21 Collection of the Proceedings of the Great and General Court …. (1729), pp. 13–112Google Scholar; Wood, G. A., William Shirley (1920), pp. 110–114Google Scholar.

22 C.O. 5 No. 752; C.O. 324 No. 35; British Museum Add. MSS. 35, 908.

23 The discontent was not confined to Massachusetts, but spread to other colonies as far south as the Carolinas. See the complaints of the governors in Greene, E. B., The Provincial Governor (1898), pp. 178–179Google Scholar.

24 Memorial of Governor Samuel Shute to the King (1723). Reprinted in Perry, W. S., Historical Collections Relating to the American Colonial Church (1876), III, pp. 121–126Google Scholar.

25 Collection of Proceedings, etc., p. 90.

26 Franklin, B., Works (ed. Bigelow, ), I, p. 428Google Scholar.

27 Acts and Resolves of the Province of Massachusetts Bay, III, p. 69Google Scholar.

28 The charter of 1691 is reprinted in MacDonald, W., Select Charters (1899), pp. 205–212Google Scholar.

29 Collection of Proceedings, etc., p. 104.

30 Adams, J. T., Revolutionary New England (1923), p. 135Google Scholar.

31 Corwin, , The Doctrine of Judicial Review (1914), p. 35Google Scholar.

32 Farrand, I, p. 288.

33 Ibid., p. 337.

34 Ibid., pp. 82, 99, 254, 376, 381, 450.

35 Farrand, I., p. 376.

36 Ibid., p. 86.

37 Ibid., p. 311.

38 Ibid., pp. 512–513.

39 Ibid., p. 58

40 Carpenter, op. cit., pp. 76 ff.

41 Corwin, , The Doctrine of Judicial Review, pp. 41–42Google Scholar. The debates will be found in Farrand, op. cit., II, pp. 73–80.

42 Ibid., pp. 284–285, 329.

43 The Federalist, No. 51. See the debate in the House of Representatives on June 16, 1789, on the establishment of a department of foreign affairs. On this occasion Madison advanced the theory of departmental construction of the Constitution, which was denied by Gerry and others. Annals of the First Congress, I, pp. 479 ff.Google Scholar

44 The Federalist, No. 78.

45 The Federalist, No. 81

46 Ibid., No. 78.

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