Sometime between 20 and 26 May 1776 George Mason penned the following words:
That the legislative and executive Powers of the State shoud [sic] be seperate [sic] and distinct from the judicative; and that the Members of the two first may be restraind [sic] from Oppression, by feeling and participating the Burthens [sic] they may lay upon the People; they should, at fixed Periods be reduced to a private Station, and returned, by frequent, certain and regular Elections, into that Body from which they were taken.
These words were part of the Virginia Declaration of Rights. The occasion was the separation of the colony of Virginia from the mother county—England. The origin of the "separation of powers principle" lies in the shared experience of Mason and his peers. That principle is built into the United States Constitution. It is what makes the American government unique. Yet Mason opposed the Constitution, refused to sign it, fought against its ratification in Virginia and resigned public office rather than take an oath to uphold it. Why?
There are those among us that believe democracy could not exist without such a separation of powers. And there are some who believe, for better or worse, that the division of power among three separate branches makes for a government that can too easily be put in deadlock—a government that can only function slowly, or barely function at all, unless faced by a unifying crises. President Woodrow Wilson, another Virginian, believed the English parliamentary system—a democratic arrangement that lacks the checks and balances of separating the executive from the legislature from the judicial—was more efficient and more responsive to the popular will.
It is my thesis that we could have it no other way-- not because our system of government is more rational in its design, better thought out, or more democratic. We could have it no other way because we were bound by our colonial experience to institutions that evolved in the 150 years of colonial government that preceded the Revolution. Separation of powers was a fact long before it became a principle. The phrase "the government that governs least, govern best," popularized by the 19th century New England author and recluse Henry David Thoreau (and often wrongly attributed to Thomas Jefferson) expresses an idealization of that experience
English settlers in the New World carried with them in their cultural baggage English institutions of government that they tried to recreate. But space and distance from England required they modify those institutions. While each colony had a somewhat different founding experience they all evolved governing institutions similar to those found in Virginia after Virginia became a Royal Colony in 1624. Typically they would have a bicameral (two house) legislature—just like the English Parliament—but not quite. The upper house in Parliament, the House of Lords, consisted of aristocrats with inherited titles. But few titled English aristocrats settled in America—Lord Fairfax, being something of a recluse, was the exception. The upper house that evolved here was the Council—12 well-to-do large landowners appointed at the pleasure of the crown upon recommendation of the governor, none holding a title, however. Their function was to: (1) advise the governor, (2) review legislation passed by the lower house, and (3) sit as the highest court in the colony.
The lower house, known as the House of Burgesses, also consisted of large land owners from local counties elected by other freeholders in the county. This evolved to be two representatives from each county—usually men who also sat on the County Court, as did George Washington and George Mason. Because of distances involved, each Burgess had to live in or own property in the county he represented. This is called direct representation. It did not exist in England and does not to this day. A member of the House of Commons does not have to live in the district he represents, but members of the American House of Representatives do. The English system became known as "virtual representation," and the difference between the two customs became a bone of contention between England and her colonies just prior to the Revolution. The slogan initiated to reflect the American point of view—"no taxation without [direct] representation"—still resonates to this day (see Washington D.C. license plates). The function of the House of Burgesses was to pass laws, fund activities of the colonial government, such as providing protection, and paying ministers of the church through taxation and to extend that power of taxation to the local courts.
Unlike the chief executive officer that evolved in the English parliamentary system, known as the Prime Minister, colonial governors did not sit in the lower house. If governors had been drawn from either house of the legislature, manned by locals, the crown would have had no direct control over its Royal Colonies. Therefore, the crown appointed governors, frequently titled English aristocrats, many of whom never left England—indicative of a very loose control indeed. Thus, we see a separation of powers between the executive and the legislative branches of colonial government that affected attitudes and allegiances—a separation that did not (and does not) exist in England. Consequently, no Royal Colony ever had a directly elected governor. The first directly elected governor of Virginia was Joseph Johnson in 1852—seventy-six years and three state constitutions after independence, and we do not have a directly elected President of the United States yet. Behavior patterns, long established, do not change easily.
Finally, there is the court system. It certainly was not separate from the executive or the legislature in the Royal Colonies. Local courts were appointed by the governor upon recommendations from the local courts themselves. In time the local courts became virtually self-perpetuating. These courts, in addition to deciding on cases involving colonial and church law, were the local government with the power to tax. Their decisions were subject to review by the Council. But the Council was not the highest court of appeal. Any decision made by the governor or the legislature, including the Council acting as a court of appeal, could be "disallowed" by the Crown, usually with the advice of the Privy Council—experts appointed by the Crown to advise him. Thus the court of highest appeal—the Crown—was separate from the colonial executive and legislature with the power to review acts of either. Within the English courts to this day the court of highest appeal is a committee composed of Law Lords in the House of Lords, not the Crown—a domestic judicial system the colonies never had access to. The Law Lords do not have the power to declare an act of Parliament "unconstitutional," first because there is no written constitution in England; and, secondly, because it would not make sense for a committee in one house to be able to declare an act of both legislative houses null and void. Such an arrangement would be a case of the tail wagging the dog.
The separated powers made for a weak governing arrangement and contributed to a sense of colonial autonomy. In Virginia, the authority of the county courts and the church vestry—often the same planter gentry—went unchallenged and became the basis of resentment when Parliament attempted to assert its authority following the French and Indian War. In fact, the independence demonstrated by Virginia's Anglican congregations made them appear more and more like the Congregational Church of Massachusetts. Neither the English church nor state challenged the will of the planter-gentry in Virginia—a class that prospered under a policy of "benign neglect."
It would appear that the United States Constitution was written by men with a shared colonial experience who attempted to codify that experience. Perhaps it was not even apparent to the founding fathers that they were duplicating the arrangement they had before the Revolution. I suspect that they would have created a two-house legislature even if the issue of states with large populations versus those with small populations never came up. The matter did come up, of course, and the delegates found a convenient way to draw creatively upon their experience to break the deadlock by recommending a bicameral legislature with states represented equally in the upper house while the lower house would reflect population—often called the "Great Compromise."
This was the Age of Enlightenment and there were plenty of ways to rationalize separation of powers with built in checks and balances drawn from the "Enlightened" view of the universe. Didn't Isaac Newton's work establish that the universe was a rational ordered place held together by gravity? Doesn't his Third Law of Motion claim that for every action there is an equal and opposite reaction? If the universe is of rational design so too should be the affairs of men. That made it possible for John Locke to identify the right to "life, liberty and property," as a "natural right" equivalent to the laws of nature--used by both Mason and Jefferson to justify separating from a government that did not protect those rights—just as Locke had used it to rationalize the overthrow of James II in the "Glorious Revolution" of 1688.
Further, every educated man who studied the classic civilizations of Greece and Rome, the creators of democracy and republican government, knew how "symmetry, order, and balance" governed their world from the design of their homes to the layout of their towns. Didn't colonial Americans follow classical examples in designing their great homes, gardens and towns? Shouldn't the design of our new government reflect those same principles?
Certainly, George Mason, who designed his plantation to express such an ordered world-view, should have thought so. But oddly, he did not think the United States Constitution did that. He refused to sign the document in Philadelphia, compiled a list of sixteen reasons why he could not support it, worked against ratification in Virginia and ultimately resigned his position on the Fairfax Court rather take an oath of allegiance to it. And this brought him into direct conflict with his neighbor—George Washington.
It is fashionable to explain Mason's actions as an effort to protest the lack of a Bill of Rights in the Constitution. That was one of the reasons he cited, and it resonated well among Antifederalists and still does with modern pundits embracing very different agendas. However, that explanation standing alone intentionally distorts the picture. Here are some other reasons Mason listed for rejecting the new constitution.
He felt that the Senate was given too much power; it did not represent the people, and sat too long. "The Judiciary of the United States is so constructed and extended, as to absorb and destroy the judiciaries of the several States." The Vice President sits as president of the Senate thus "blending the executive and legislative powers." There was no Constitutional Council to advise (read inhibit) the President. Commercial and navigation laws only required a majority vote rather than two-thirds majority to protect the commercial interests of the five Southern States against the power of the eight Northern and Eastern states to grant monopolies or demand exorbitant freight rates. "The general legislature is restrained from prohibiting the further importation of slaves for twenty odd years; though such importations render the United States weaker, more vulnerable, and less capable of defence [sic]."
Incidentally, this last reason was not an argument against slavery. It was an argument against the slave trade, which imported a potential threat that could be exploited by our enemies—such as when the Earl of Dunmore, the recent Royal Governor, called for a slave uprising and freedom for all who would join the English cause. Mason's complaint was directed against Georgia and South Carolina—both states having supported New England's opposition to Mason's super majority requirement for the passage of navigation and trade laws in exchange for New England's support of continued importation of slaves.
These are a selection of some of Mason's objections to the Constitution, but I do not believe they constitute the fundamental motivation for his opposition. I think Mason's view of events was determined by his parochial experience. Seven years older than Washington, his life was devoted to his plantation, commerce in tobacco, passing wealth on to his family as it was passed on to him—and, when time would permit, attending to local government primarily to protect his own interests. He was always suspicious of power in the hands of other people—especially the power to tax. He resented efforts by the Alexandria contingent of County Justices to tax landholders to build a public dock in Alexandria or repair the dilapidated courthouse. He even attempted in 1789 to convince the County Court, to which he was the rarely seen Chief Judge, that it did not have the power to tax anybody for any reason. Later, the court had second thoughts about that when it came time to pay the sheriff.
Mason became more and more involved in organizing local resistance when the English Parliament began taxing the American colonies to support one-third the cost of their own defense without seeking the funds from the colonial legislatures. Colonial defiance led to military conflict in New England and hostile actions between the legislature and the governor here in Virginia. In May 1776, as a delegate to the Virginia Convention, Mason earned his reputation by calling upon the words of John Locke to justify separating from England; and by being one of the principal authors of the first Virginia state constitution.
Mason's political experiences never rose above the state level. In fact, the only time he ever left the tidewater area was to go to Philadelphia in 1787 as part of the Virginia delegation to the Constitutional convention. It was there he discovered other states had their own agendas that were not always in harmony with Virginia's (read Mason's) interests. Mason lost the argument on requiring a two-thirds vote for any trade and navigation laws. Perhaps he could visualize the northern states with their majority in both houses establishing a monopoly requiring goods be carried only on American (read New England) bottoms. After all, had not Parliament done just that in their Navigation Acts of the 1650's? As the convention moved to a close Mason's early support of the new government changed. It had too much power and not enough checks. The patterns of his early life, when governing institutions were weak and a young planter was free from the institutional inhibitions of church and state, made him particularly sensitive to potential authority in the hands of other people. Further, he appeared to be a perfectionist growing more rigid with age.
But his neighbor whom he held in high regard, George Washington, did not share Mason's views. As chairman of the convention he wanted to see a strong union of states established. He was willing to accept "good enough" rather than court failure by demanding the perfection Mason sought in calling for another convention. Why did these two men, both products of the planter class, both involved in the public affairs of the same county and state, have such strong differences of opinion about the new central government?
I believe the answer lies in the fact that their experiences in the formative years of their lives differed. While Mason was probably the better read and the more learned of the two, his reluctantly given public service was limited to Fairfax County and the colony of Virginia. On the other hand, Washington, seven years younger and filled with energy and ambition, traveled widely outside the colony. He took on a military combat command in the French and Indian War. He was Commander of the American Revolutionary army. His career was built upon national public service. His life's work was invested in the creation of a strong central government—a government that would command the respect of foreign powers. The obligations undertaken by both the new United States and her adversary, England, under the Treaty of Paris had to be enforced by a strong effective central government or the new nation would be exploited by friend and foe alike to suite their own ends. The personalities, age differences and the timing of the careers of these two men, Washington and Mason, are what shaped and explain their behavior, their perspective, their individual values and finally their choices.
But each man has taken on symbolic significance for later generations. Washington has become a marble statue, placed on a pedestal and drained of life—"father of his country." Mason's symbolic significance, interestingly, appeals to two diametrically opposite ideologies. From the perspective of the modern political left he is seen as a great humanitarian—a Socratic figure, a gadfly, not afraid to say "no" to hypocrisy or perceived threats to universal individual rights by any tyranny, be it of a minority or a majority. This group, especially influenced by the post World War II civil rights movement, tends to see Mason’s natural rights of Englishmen, having been incorporated into the Constitution as the Bill of Rights, as universal rights for all mankind to be protected by a strong active government. To the political right he represents the struggle to limit the power of a large bureaucratic oppressive government in favor of small local governments and thus, in theory, individual freedom. He was an early "libertarian."
A bronzed seated figure representing Mason has recently been placed on the Mall in Washington D.C. in an obvious effort to increase his stature. It was funded by the National Society of the Colonial Dames of America, the group that administers Gunston Hall—George Mason’s home. This is a good example of how the present re-casts the past. It tells us more about us than it tells us about him.
If the life experiences of George Washington and George Mason shed light on the origin of their choices, the collective experiences of the Founding Fathers explain, to a large degree, how they were able to codify the institutional foundation of a unique government. That foundation was laid, and a pattern struck as clear as the English bonding supporting a Georgian structure. That structure has been buffeted by the hurricane winds of change: territorial expansion, a Civil War, Reconstruction, racial segregation, two World Wars, the industrial revolution, the influx of new and varied cultures, various civil rights movements, the Great Depression, urbanization, racial integration, the Cold War, world leadership and now the terror of foreign religious fanaticism. The response to each challenge has resulted in strengthening the structure. But with those changes a new meaning of democracy emerged with emphasis on individual equality as distinct from individual freedom. Creative tension continues to exist between the advocates of equality and collective security and the advocates of individual freedom defined by limiting government power. And that tension shapes the relationships between political parties and among the three branches of government.
Separation of powers into legislative, executive, and judicial branches, all checking and balancing each other is not a universal guarantee of democracy or equality. Understanding who we are and how we got here cannot be found in the agendas of ideologically driven rationalizations or romantic myths. The tendency to fix the past in heroic form lends itself to rigid indoctrination, which serves those who think of history as catechism. History can also provide rich insight on human behavior—especially our infinite capacity to rationalize behavior that attempts to preserve the status quo in the face of change. Understanding history is understanding ourselves—knowing that we too are shaped by experiences that influence our behavior, our values and our perspective on the past. If we cannot escape our past, and our past cannot escape the present, we should at least be able to distinguish between them when we use one to explain the other. Teaching students to do that is what education should be about.
Jack Lewis Hiller, lives in West Springfield and has been a member of the Fairfax County History Commission since 1981. Hiller holds a bachelor's degree in history from the College of William and Mary ('53), a master's in education from the University of Virginia ('66), and a master's in history from Carnegie-Mellon University ('69). He taught history for 30 years at Groveton High School and West Potomac High School. He was the co-founder of the Fairfax County Public School's summer archaeology program that operated between 1973 and 1988. He writes and speaks on topics about the Springfield area and is a volunteer archaeologist with the county Park Authority. He is also a volunteer docent at Gunston Hall.
This article was derived from a lecture delivered to the Brotherhood of St. Andrew, Pohick Church, 16 February 2004.