Liberty, Metaphor, and
Mechanism: "checks and balances" and the origins of modern
Professor of Intellectual History at Queen Mary, University of London
"So famous is the political theory of checks and balances, so well
known to Americans, that he is a bold man who tries to say new things about
it." Stanley Pargellis (1938)
1. Mechanical Systems. My subject is a topic which has been
almost invisible to historians of political theory, the history of the concept
of "checks and balances". The phrase is
widely used in contemporary discussions of power and its regulation, and it is
precisely because it has become so commonplace that historians and theorists
have found it entirely unproblematic, treating it as if it was not a technical
language (with all that that implies in the way of intellectual preconditions
and hidden presuppositions) but a mere manner of expression. For Garry Wills,
for example, it is, when used by the founding fathers, simply "an old concept
borrowed from mixed government theory". There
is a marked contrast here with the idea of the separation of powers, whose
history has been carefully and intelligently studied.
To study the phrase, one must make some straightforward distinctions.
First, there is the history of the phrase itself, first used by John Adams
(1735-1826, the second President of the United States) in his Defense of the
Constitutions of the United States in 1787 (but "check and balance", as we
shall see, had been used by the radical Whig John Toland as early as 1701, and
"balance or check" by the Civil War republican Marchamont Nedham in 1654). Then there are the histories of the words out
of which it is composed, for, I will argue, "check" and "balance" have separate
histories in political theory. But the history of words and phrases is an empty
thing if it is not a way of studying the history of concepts, and any study of
the concept of checks and balances needs to include a wider family of words
(such as "control", "clog", "counterpoise", and "equilibrium") which were often
used to discuss the same or similar ideas. What all these words take for
granted, I will maintain, is the idea that a political system can be usefully
compared to a machine. Indeed the language I am concerned with here is entirely
metaphorical. Nietzsche said that truth is "a mobile army of metaphors,
metonyms, and anthropomorphisms," and the scientific revolution serves as a
useful illustration of his claim: it is impossible to imagine what has been
called the mechanization of the world picture without the metaphors of clock,
machine, and automaton, without the metonymic (or perhaps rather synecdochic)
distinction between primary and secondary qualities which lies at the heart of
the mechanists' enterprise, and without the anthropomorphic conception of God
as a clockmaker. And this new mechanical
world picture provided in its turn a series of metaphors for talking about
This paper will thus demonstrate the need for a more careful attention
to language in the history of political theory. Despite the fact that the
Cambridge School have always stressed the importance of linguistic change, only
a rather narrow range of terms, such as "state" and "liberty", have been
studied historically; part of my purpose here is to show that words that
apparently have nothing to do with politics, words such as "system" and
"machine", can be central to the history of political theorizing. Indeed a study of the history of a phrase like
"checks and balances" may give us a different understanding of its range of
possible meanings. The Cambridge School have often claimed that the history of
ideas can contribute something to normative moral and political philosophy. The conclusion of my argument is that
contemporary references to "checks and balances" miss the most interesting of
the ideas that have been embodied in the phrase.
I began with a complaint about the history of political theory, so my
first obligation is to show that historians of political theory have failed to
think about checks and balances. One example can stand for many. Few texts in
the history of political thought have been more widely influential than John
Pocock's 1977 introduction to James Harrington's Political Works. There he
argues that classical republican theory (a term of art including Ancient Romans
such as Cicero, Renaissance theorists such as Machiavelli, and English Civil
War republicans such as Harrington) had, since Polybius in the second century
BCE, been preoccupied with the idea of how to achieve political stability
through balancing monarchy, aristocracy, and democracy. This problem became
central to English-language political theory a few weeks before the start of
the Civil War, when Charles I issued His Majesty's Answer to the Nineteen
Propositions of Parliament, which stated that "There being three kinds of
government among men, absolute monarchy, aristocracy and democracy, and all
these having their particular conveniences and inconveniences, the experience
and wisdom of your ancestors hath so molded this out of a mixture of these as
to give to this kingdom (as far as human prudence can provide) the conveniences
of all three, without the inconveniences of any one, as long as the balance
hangs even between the three estates…"
 With these words Charles abandoned any claim to absolute rule
and provoked what Pocock calls "a true revision of paradigms", a revision
embodied in Philip Hunton's A Treatise of Monarchy (1643): "Hunton
assumed that England was a mixed government, a balance of the independently
subsisting forces of monarchy, aristocracy and democracy, just as described in
the Answer to the Nineteen Propositions; and he further pointed out that
in a true balance, each power checked, but none controlled, the other two, with
the consequence that no human authority was above the balance or was competent
to command once it had broken down." Hunton, we are told, "had employed the
republican vocabulary" and it would seem natural to assume that that vocabulary
was one of balances, checks, controls. It
comes as something of a surprise to turn to Hunton and discover that Hunton
uses none of these words, either in the Treatise or in its subsequent
Vindication (1651). I think it is reasonable to complain that Pocock has
read the concept of checks and balances back into the Treatise, where it
is not (or is barely) to be found.
It is true that Hunton once addresses the idea of the balanced
constitution, though in his own language:
in such a composed state [i.e. a monarchy mixed with aristocratic and
democratic elements], if the monarch invade the power of the other two, or run
in any course tending to the dissolving of the constituted frame, they ought to
employ their power in this case to preserve the state from ruin; yea that is
the very end and fundamental aim in constituting all mixed policies: not that
they by crossing and jarring should hinder the public good; but that, if one
exorbitate, the power of restraint and providing for the public safety should
be in the rest: and the power is put into divers hands, that one should
counterpoise and keep even the other: so that for such other estates, it is not
only lawful to deny obedience and submission to illegal proceedings, as private
men may, but it is their duty, and by the foundations of the government they
are bound to prevent dissolution of the established frame.
Restraint and counterpoise, one might argue, are terms strictly
analogous to checks and balances. But restraint is a virtue as well as being a
metaphor about limitations on freedom of action. Hunton's own summary of this
passage, in the Vindication, is "My third argument for mixture was from
its end, which was restraint from excess."
"Excess" is clearly a normative concept - indeed, in an Aristotelian world,
where virtue is defined as a mean, "excess" is by definition a vice. Hunton has
no interest in pursuing the concept of a balance beyond this passing remark
because he is interested in authority and right, public good and private duty.
To think seriously about checks and balances one has to start thinking about
political systems in value-free terms, and to see them, indeed, as
systems which can usefully be compared with mechanical systems.
It would be surprising indeed if Hunton was interested in doing this
because the vocabulary he would have needed would have been as much mechanical
as republican. In 1648 we find the first reference to the science of
mechanics; it is followed in 1662 by mechanism; and in 1673 the
word machine is first used to mean an apparatus for applying mechanical
power - engine had been the English translation for the Latin
machina until then. Thomas Hobbes, for example, described a watch as a
small engine. John Evelyn, the diarist, is credited with being the first to
introduce into English another word with a related meaning, but with a Greek
origin, automaton (1645). In all the
early usages the standard example of a machine or automaton was a clock, and
like clocks before them, machines and automata soon became powerful metaphors
for thinking of God, thinking of God as a clockmaker and the universe as a
giant clock: as early as 1587, in a translation of the leading French
Protestant, Philippe de Mornay, we find the heart described as a divinely
The idea of a system of checks and balances implies an idea of a
constitution as a mechanical system, and that implies an interest in mechanism.
The earliest reference to a "political machine" that I have been able to find
is in John Dryden's edition of Plutarch's Lives (1683), in the life of
when he perceived that his laws had taken deep root in the minds of
his countrymen, that custom had rendered them familiar and easy, that his
commonwealth grew apace daily, and was able to go alone, he had such a calm joy
and contentation of mind, as Plato somewhere tells us the Maker of the World
had, when he had finished and set this great machine a moving, and found
everything very good and exactly to answer his great Idea; so Lycurgus, taking
an unspeakable pleasure in the contemplation of the greatness and beauty of his
work, seeing every spring and particular of his new establishment in its due
order and course, at last he conceived a vast thought to make it immortal too,
and, as far as human forecast could reach, to deliver it down unchangeable to
Here machine translates the Greek word cosmos.
Within a few years such usages of the word were common. Here the key
figures are John Trenchard, his friend Walter Moyle, and their associate John
Toland, the three of whom played the central role in refashioning the
republican intellectual tradition to justify opposition to William III's
efforts to build a strong state, capable of withstanding attack by the France
of Louis XIV. These radicals insisted that a professional army (particularly if
kept up during peace time) was (as republicans had often claimed) a dangerous
threat to political liberty. In An Argument Showing That A Standing Army Is
Inconsistent With A Free Government (1697) Trenchard and Moyle say that
their objective is "to put in motion this machine of our government, and to
make the springs and wheels of it act naturally and perform their function." Soon afterwards, Trenchard, in his
"incomparable preface" to his Short History of Standing Armies
(1698), argues that "a government is a mere piece of clockwork, and
having such springs and wheels, must act after such a manner: and there the art
is to constitute it so that it must move to the public advantage." The secret
is "to make the interest of the governors and the governed the same", "and then
our government will act mechanically, and a rogue will as naturally be hanged
as a clock strike twelve when the hour has come."
 Moyle, writing An Essay on the Lacedaemonian Government
in the same year, maintained that the best constitution provided "a proper
distribution of power into several branches, in the whole composing as it were
one great machine, and each grand branch was a check upon the other; so that
not one of them could exceed its just bounds."
 It is not a coincidence that Toland, who may even have
collaborated with Trenchard and Moyle in writing the Argument, uses the
phrase "check and balance" soon after. One
of their critics was dismayed by the effectiveness of this new language: "Can
you bear smiling at the simplicity of mankind, to find how many swallow your
notions, because you talk so finely for liberty, a militia to defend it, and
engineering in your studies?" (This, by the
way, is more than twenty years earlier than the OED's first recorded use of
"engineering" as a noun.)
In the light of my earlier reading of Hunton, you will expect me now to
argue that this new mechanical language was linked to a rejection of moral
categories in political analysis. And this is indeed the case. Trenchard,
Moyle, and Toland, former Whigs, found themselves in alliance with former
Tories, such as Harley, in attacking the new party of big government, the court
Whigs. They were well aware that those in
power shared (at least in theory) many of their principles. And they repeatedly
acknowledged that William, as king, was both a legitimate ruler and a man to be
trusted - it was essential that their attacks on his policies should have no
hint of Jacobitism. But their claim was that good men would eventually be
replaced by bad men (it was only a short step, but one they hesitated to take,
to claim that power tends to corrupt, and turns good men into bad), and that in
the long run what counts is not the quality of the men or the rectitude of
their intentions, but the nature of the political system within which they
operate. As Trenchard and Moyle put it, "let us flatter our selves as much as
we please, what happened yesterday will come to pass again, and the same causes
will produce the like effects in all ages."
 Moyle, writing to a friend, adopted a more learned language:
"Thus you see, as a good author expresses it, eadem fabula semper in mundo
agitur, mutatis duntaxat personis; which agrees with what Thucydides says
in his third book, eadem accidere, donec eadem hominum natura." The casuistical terms in which Hunton and his
contemporaries had conducted their debates could thus be dismissed as
irrelevant. Trenchard, writing years later as Cato, still dismissed the
conventional preoccupation with virtue: "The experience of every age convinces
us, that we must not judge of men by what they ought to do, but by what they
will do." The task of the political analyst
was not to judge moral right and wrong, but to follow the chain of causes at
work within a political system.
I find it easiest, as you will have noticed, to describe the new
political theory by employing the word "system". Harrington had written of "the
system of the government" and "a system of politics", but he seems to have had
no immediate successors. Samuel Butler, in
1729, was giving the word (which had previously meant little more than an
aggregation or grouping) a tightened definition when he wrote "The body is a
system or constitution: so is a tree: so is every machine."
 Once the word was readily available in this new sense it
was quickly re-employed in political theory: it appears a year later in the
first definition of the modern idea of a constitutionconstitutionconstitution/a> --> of Sparta,
understood the perils of a simple constitution, and therefore:
Combined together all the excellencies and distinctive features of the
best constitutions, that no part should become unduly predominate, and be
perverted into its kindred vice; and that each power being checked by the
others, no one part should turn the scale or decisively outbalance the others;
but that by being accurately adjusted in exact equilibrium, the whole might
remain long steady like a ship sailing close to the wind.
There are two things that are disconcerting about this translation. In
the first place, it brings together into the same sentence the words check and
[out]balance. Here, though, it simply reflects the magnetic attraction of the
modern phrase "checks and balances" - the early translations of Polybius that I
have been able to consult do not use the word "check", but rather phrases such
as "mutually acted upon by opposite powers" or "each separate power being still
counteracted by the rest". Even more alarming is the phrase "like a ship
sailing close to the wind." In the first place, Greek ships could not sail
close to the wind, so this must be a mistranslation; in the second place a ship
sailing close to the wind implies a complex balance of a number of different
forces - wind, sails, ballast, rudder - so if Polybius thought in such terms
his notion of equilibrium would imply some sort of complex machine, not the
simplest form of a balance, that of two weights in a scale - the sort of
balance that has been familiar for millennia.
In fact, Polybius thought only in terms of the simple balance. The
passage about a ship remaining in equilibrium while in movement, which might
seem to suggest otherwise, has provoked much debate and continues to puzzle
scholars because it contains a word found nowhere else.
 The best interpretation as far as the sense is concerned (I am
not competent to comment on the technical problems presented by the Greek) is
in a French translation of 1792, which assumes, quite properly, that Polybius
is thinking of a galley: if only the rowers on the port side row the ship turns
clockwise; if only those on the starboard side row it turns anti-clockwise; if
both row together an equilibrium is established and it proceeds in a straight
line. In other words Polybius is still
thinking of a simple balance between two equal forces, not of some complex
balance between multiple forces - not of what we would call a "system", which
needs to have several interacting parts. The standard modern translation takes
Polybius to be talking about loading the cargo in a ship so it remains in trim
as it travels along - again a balance of two equal forces.
 Moreover Polybius assumed that the balancing of forces
would be the result of deliberate action, not the unintended consequence of an
interactive process. Theorists such as Trenchard and Moyle were interested in
the idea that a political system might be constructed so that it would generate
outcomes (such as the public good) that none of the participants had intended
Thus to describe Polybius as having the idea of a political system is to
read systems analysis (itself an aspect of mechanistic thinking) back into a
pre-technological culture. When he was first taken up in English the balance
was only one, and not necessarily the preferred, metaphor for the imposition of
due limits. Here is His Majesty's Answer again: "… as long as the
balance hangs even between the three states, and they run jointly on in their
proper channel (begetting verdure and fertility in the meadows on both sides),
and the overflowing of either on either side raise no deluge or inundation." The mixing of metaphors here is testimony to
just how little work the idea of the balance was capable of doing before the
rise of mechanistic philosophy.
I have chosen a plainly anachronistic translation of Polybius because I
want to stress that Polybius is not a fixed quantity, but was bound to be read
differently at different times. What has become for modern commentators the key
passage of Polybius's Histories was not always read - it survives only
in a fragment, and was omitted from those editions which reproduced only the
complete books. The middle of the
eighteenth century saw what has been called the "rediscovery" of Polybius, and
I want to suggest that this was a rediscovery of this particular passage, and
was linked to the intellectual revolution I am discussing.
 Even when the passage was translated, its meaning was
sometimes far from apparent - a translation of 1634 renders the passage
incomprehensible by changing one letter, for instead of saying "Royalty should
be restrained from arrogancy by fear of the people" it says, perhaps under the
pressure of censorship, perhaps simply through carelessness, "Loyalty should be
Our own preoccupation with Polybius as the source of the idea of the
mixed constitution and of checks and balances is, in any case, somewhat
misleading. Adams, in his Defense of the Constitutions of the United
States, placed great emphasis on Polybius, and the author of His
Majesty's Answer also appears to have had Polybius in mind, but for
generations of politicians the idea of the balanced constitution would have
been familiar, not from an obscure passage in Polybius, but from a far more
widely read passage in Plutarch's life of Lycurgus.
 The significance of this passage has been overlooked, perhaps
because modern translations do not use the word balance. Here is the
sixteenth-century translation of North:
In this change of the state, many things were altered by Lycurgus, but
this chiefest alteration was, his law of the erection of a senate, which he
made to have a regal power and equal authority with the kings in matters of
weight and importance, and was (as Plato saith) to be the healthful
counterpoise of the whole body of the Commonweal. The other state before was
ever wavering, sometime inclining to tyranny, when the kings were too mighty;
and sometime to confusion, when the people would usurp authority. Lycurgus
therefore placed between the Kings and the people, a Council of Senators, which
was as a strong beam, that held both these extremes in an even balance, and
gave sure footing and ground to either part to make strong the state of the
Commonweal. For the 28 Senators (which made the whole body of the Senate) took
sometime the King's part, when it was needful to pull down the fury of the
people: and contrariwise, they held sometimes with the people against the
Kings, to bridle their tyrannical government.
There is still only one balance here, not a series of checks and
balances, but it is worth noting that there are close analogues here to
Hunton's language of counterpoise, restraint, and foundation, so we can
reasonably suspect that it is Plutarch not Polybius that Hunton had in mind.
I have paused over Plutarch's life of Lycurgus partly because Moyle,
writing in his Essay on the Lacedaemonian Government about Harrington's
scheme of government, said "How nearly this is drawn from Lycurgus's
institution you may read with pleasure in his Life writ by Plutarch." This is true to a far greater extent than
modern commentators on Harrington have acknowledged. The agrarian; the ballot;
rotation of office; the separation between proposing and resolving; the mixture
of monarchy, aristocracy and democracy; the idea of a government so constituted
that it is capable of surviving for ever: all were described by Plutarch and
taken up by Harrington. It was ostensibly on the basis of Plutarch and
Harrington (and perhaps also on the basis of a reading of Nedham) that Moyle
developed an account of what we now call the separation of powers, an account
which surely influenced both Bolingbroke, whose essays in The Craftsman
(1730) followed soon after the first publication of Moyle's work (though
written in 1698 it did not appear in print until 1727), and Montesquieu (who,
like Moyle, writes of the distribution, not the distinction - Nedham's term -
or separation of power(s) and who, like Moyle, uses a selective account of an
existing constitution to describe the maximum amount of liberty possible within
civil society). For our purposes Moyle's
essay of 1698, not Hunton's Treatise of 1643, represents the birth of a
new language and a new paradigm: he writes of checks, of controls, of the
balance of power (although perhaps not in its modern meaning), of machinery.
That new paradigm owed a great deal to Harrington's conceptions of political
architecture and political anatomy, but its vocabulary was only in part
Harrington's. Harrington had written of checks (in the context of providing
political supervision of military commanders), and of the law controlling the
Lucchese (in the context of a refutation of Hobbes's views on liberty), but he
had made no mention of machines, and when Harrington had written of "the
balance" he meant the stable state created by an overbalance, not an
equilibrium. The traditional idea of a balanced constitution he dismissed as a
mere wrestling match between kings, lords, and commons, and in order to avoid
the hated term "balance" when talking of constitutional provisions he adapted
the term "libration" to a novel use.
Harrington, as his description of the constitution of Oceana draws to a
close, quotes Plutarch's account of how Lycurgus had admired his own work and
aspired to make it permanent. For readers of Moyle's generation this passage
evoked images of machines driven by springs; but Harrington still read it as
North had read it, as an account of man imitating God in the construction of an
order comparable to that of the heavens: "he conceived such a delight within
him, as God is described by Plato to have done when he had finished the
creation of the world, and saw his own orbs move below him: for in the art of
man (being the imitation of nature, which is the art of God) there is nothing
so like the first call of beautiful order out of chaos and confusion as the
architecture of a well-ordered commonwealth."
 It is this step from the classical art of political architecture
to the modern science of political engineering - which Trenchard called "the
art of political mechanism" - that is marked by the new language of checks and
balances. It is true that both Nedham and
Harrington saw the frequent election of representatives as a key process in
politics, which Nedham described as "revolution" and Harrington as "rotation",
but the whole point of this movement, like the movement of the heavens was that
it kept bringing the political system back to its original starting point, a
conformity of interests between government and governed: which is why
Harrington can mix astronomical and architectural metaphors in a single
sentence. The new emphasis on mechanism, by contrast, made it possible for the
first time to think about the political process in non-cyclical terms. For
later theorists of constitutional machinery the importance of Polybius and
Plutarch, of Nedham and Harrington was that they provided apparent precedents
for what was in fact a new way of thinking.
Moyle, tracing the idea of the distribution of power back to Lycurgus,
was effectively denying the modernity of the new political theory and the
institutions it described. A much more subtle view is implicit in Montesquieu's
Spirit of the Laws (1748). There Montesquieu writes of moderate
governments as requiring the balancing of powers one against another. But mere moderation provides no guarantee of
constitutional liberty, which exists only where there is a proper separation of
powers. Only in England had the separation of legislature, executive, and
judiciary (in the English case the "judge" in criminal cases being the jury)
come properly into existence, and thus a constitution in which the separate
powers provided adequate checks upon each other, and political liberty is
consequently guaranteed, was evidently a modern invention.
 However Montesquieu's account of the English constitution
was theoretical rather than historical. Nowhere does he give any indication
that he grasped that both the division of powers he so admired and the
mechanical language he employed to describe their relationship to each other
was scarcely older than he was. (He was born in 1689.)
2. Checks and Balances. "Checks and balances" is a phrase now
widely employed to describe due process in decision making, and has a more
precise meaning in descriptions of political constitutions where power is used
to check power, of which the American constitution is the paradigmatic example.
Nedham had written of a "balance or check" in 1654; Toland had used the phrase
"check and balance" in 1701; and Gouverneur Morris had implied a plural form in
1776, writing of "every check and balance", but the phrase we now use was first
used early in 1787 by John Adams in the opening pages of his Defense of the
Constitutions of the United States, a work which defended the constitutions
of the states and of the continental congress, for it was published a few
months before the Convention proposed a new constitution for the federal
republic. In that same year Noah Webster
used the phrase "checks and balance"; and "balances and checks" was to appear
in The Federalist that winter. Others quickly took up Adams's
terminology: Jonathan Smith, for example, addressing the Massachusetts
ratification convention, represented himself as "a plain man and get my living
by the plough. I am not used to speaking in public, but I beg you[r] leave to
say a few words to my brother ploughjoggers in this house." His few words were
about "checks and balances."
It is time now to ask some straightforward, even obvious, questions.
What are checks? What are balances? What exactly is being checked or balanced?
And why do we need both checks and balances? At first, when I began to puzzle
over the history of this phrase, my assumption was that the balance was the
balance-wheel of a clock, that a check might be an escapement mechanism, and
that "checks and balances" was a metaphor drawn from clockwork. But this is not the case, and the pre-history
of the phrase proves peculiarly complex; my own efforts here are bound to
require correction and modification.
Of the two terms, checks and balances, balance is the older, the one
used (if I may so put it, for on this all the translators agree) by Polybius. According to seventeenth-century mechanics,
the balance was the first of the six simple forces - the others being the
lever, the wedge, the screw, the wheel and the pulley. (Of these, the most
commonly used as a political metaphor, after the balance, was the screw, as in
the following quotation from "A Maryland Farmer", "The aristocracy, who move by
system and design, and always under the colorable pretext of securing property,
act, as has been frequently said, like the screw in mechanics, always gaining,
holding fast what it gains, and never losing."
 Harrington had compared his principle of rotation to the working
of a screw or a vice.) Whatever advances
may have been made in the theory of the balance in the seventeenth century,
there was nothing new about balances as such.
It is the idea of a balance between two forces that interested those who
read Polybius and Plutarch before the eighteenth century. Thus Contarini
(1543), as presented in a translation of 1599, praises Venice as embodying the
Polybian ideal: "This only city retaineth a princely sovereignty, a government
of the nobility, and a popular authority, so that the forms of all seem to be
equally balanced, as it were with a pair of weights."
 After The King's Answer the idea of the balance seems to
have ceased to be of any significance in English political debate until it was
reintroduced by Trenchard and Moyle in An Argument Showing that a Standing
Army is Inconsistent with a Free Government (October 1697). The term then
runs throughout the political debates of the next few years. Of the texts of
this period the one that was best known in later years was Jonathan Swift's
A Discourse of the Contests and Dissentions between the Nobles and Commons
in Athens and Rome (1701), if only because Swift was so frequently
reprinted (he was quoted at length by John Adams in 1787, and had been
paraphrased by Benjamin Lincoln in 1785).
Swift, who is writing a satire on contemporary politics under the guise of
ancient history, opens with a discussion of the "balance of power", a phrase
which first appears in English in 1579, in a translation of Guicciardini, and
whose usage is said to have become common after the Treaty of Utrecht in
1713. In fact it had already become
commonplace during the standing army debate of 1697-1701, being used sometimes
in the Harringtonian sense of an overbalance (as in Moyle's "from modern
politics we have been taught the name of the balance of power, but it was
ancient prudence taught us the thing"), but sometimes also in the modern sense
of an equilibrium or near-equilibrium, as when an anonymous critic of Trenchard
and Moyle writes of "keeping the balance of power in a due libration, turning
it sometimes one way, and sometimes another, according to present
emergencies". The same idea of an
equilibrium was commonplace during these years in discussions of "the balance
of Europe". Here is Swift:
The true meaning of a balance of power, either without or within a
state, is best conceived by considering what the nature of balance is. It
supposes three things. First the part which is held, together with the hand
that holds; and then the two scales, with whatever is weighed therein. Now
consider several states in a neighborhood. In order to preserve peace between
these states, it is necessary they should be formed into a balance, whereof one
or more are to be directors, who are to divide the rest into equal scales, and
upon occasions remove from one into the other, or else fall with their own
weight upon the lightest. So in a state within itself, the balance must be held
by a third hand, who is to deal the remaining power with utmost exactness into
the several scales. Now it is not necessary that the power should be equally
divided between these three; for the balance may be held by the weakest, who by
his address and conduct, removing from either scale and adding of his own, may
keep the scales duly poised.
Two things are very noticeable about this passage - the first is the
assumption that a balance must always be a balance between two forces, so that
if there are three powers they must re-divide themselves into two; the second
is the conviction that maintaining a balance requires skill, a conscious
analysis of the forces at work. One thinks of Halifax's Character of a
Trimmer (1682) - the art of politics consists in knowing when to change
sides, to trim the ship of state in order to restore the balance. This way of
thinking implicitly likens the constitutional tension between three different
institutions (king, lords, commons) to the task of building a coalition of
parties within a single chamber. As Montesquieu put it (sliding, as
eighteenth-century commentators could not help but do, between the static
notion of constitutional equilibrium, and the dynamic notion of coalition
formation), the three powers of King, Lords, and Commons "should form an
equilibrium or a stasis. But since, in the necessary course of events, they are
obliged to act, they will be obliged to act in concert."
 It was natural for John Adams, in his influential "Thoughts on
Government" of 1776, to assume that to "hold the balance" was synonymous with
to "mediate." But it was also obvious that
the struggle between two parties might easily degenerate into what Harrington
had called a wrestling match. Usbek, in Montesquieu's Persian Letters
(1721), maintains that "Monarchy is a state of tension, which always
degenerates into despotism or republicanism. Power can never be divided equally
between prince and people: it is too difficult to keep the balance. The power
must necessarily decrease on one side and increase on the other, but usually
the ruler is at an advantage, being in control of the armed forces."
How to escape from this bipolar model, with its associated stress on
compromise, craft, and cunning, and its evident risk of instability?
Bolingbroke in The Craftsman (in a passage, published in 1730, which is
sometimes said to be a source for Montesquieu's doctrine of the separation of
powers) distinguished sharply between the dependency of different parts of the
government and their independency. In doing so he is discussing checks and the
balance, but he uses the word balance coupled with the verb "control": Moyle
had followed Nedham in employing the noun "control" in a political context,
using it as synonymous with checks.
The constitutional dependency, as I have called it for distinction's
sake, consists in this, that the proceedings of each part of the government,
when they come forth into action and affect the whole, are liable to be
examined and controlled by the other parts. The independency pleaded for
consists in this, that the resolutions of each part, which direct these
proceedings, be taken independently and without any influence, direct or
indirect, on the others. Without the first, each part would be at liberty to
attempt destroying the balance by usurping or abusing power; but without the
last there can be no balance at all.
What was new about this was that it replaced the idea that there must in the
end be only two forces in balance with the claim that the three forces must
remain independent. A similar view is expressed by Blackstone in his Commentaries
(1765), only he avoids the word "balance", with its suggestion of stasis. Like
Bolingbroke, he starts with a mutual power of veto, and then moves on to the
interaction of forces, which he deftly reinterprets as a dynamic process:
In the legislature, the people are a check upon the nobility, and the
nobility a check upon the people… while the king is a check upon both. And
this very executive power is again checked and kept within due bounds by the
two houses… Thus every branch of our civil polity supports and is
supported, regulates and is regulated, by the rest; for the two houses
naturally drawing in two directions of opposite interest, and the prerogative
in another still different from them both, they mutually keep each other from
exceeding their proper limits… Like three distinct powers in mechanics,
they [people, nobility, executive] jointly impel the machine of government in a
direction different from what either, acting by itself, would have done; but at
the same time, in a direction partaking of each, and formed out of all: a
direction which constitutes the true line of the liberty and happiness of the
– it is appropriate to think, here, if not when reading Polybius,
of a ship sailing close to the wind, or (to take the hypothesis of Edward
Spelman, in a note to his 1743 translation of Polybius), of a ship which is
being rowed and at the same time carried by both the wind and the tide, for we
really do have more than two independent forces at work.
Anyone who compares these two passages with the passage I earlier quoted
from Swift must recognize that they are talking about different processes.
Swift expects the resolutions of one part to influence at least one of the
others, for otherwise it will be impossible to bring the scales into balance.
Bolingbroke believes that if the different parts pay attention to each other
they will necessarily become unbalanced, and Blackstone writes as if each could
act independently of the others. A similar argument is made by John Adams in
1787. He maintains that any balance of two weights will be unstable (the whole
point of a pair of scales is that the slightest alteration in the weights tips
the balance) or tippy, and that three equal and independent weights are needed
All this would be incomprehensible if the only notion of equilibrium
that existed in the eighteenth century was that of a scale in balance. In fact
eighteenth-century textbooks on mechanics dealt carefully with the idea of an
equilibrium between three independent weights, and we have, for example,
Adams's notes on lectures he attended which dealt with this topic. Adams seems to have thought that a three-way
balance was inherently more stable than a two-way balance: a mistake perhaps
derived from the fact that the experimental apparatus employed in the
schoolrooms to illustrate such a system was much less sensitive than a fulcrum
balance, for it involved a pulley for each weight, so that movement would only
take place when the friction of all the pulleys had been overcome.
There is a second issue here: need the weights be not only independent
but also equal? Bernard Manin, who is one of the few people to have discussed
political theories of balance with any care, believes that eighteenth-century
theorists always believed that a balance required equal weights, and both Adams
and his critics, when talking about the tripartite balance, write as if this
were the case. But it would be very strange
if everyone made this mistake. We have already seen Swift insisting that "it is
not necessary that the power should be equally divided" between the three
forces, and the three-way balance would scarcely have been an improvement on
the bipolar balance if it had involved the introduction of a new principle of
equality. In fact eighteenth-century textbooks showed how to balance three
unequal weights in an equal-arm three-way balance by adjusting the angles
between the arms.
It is easy to show that not all theorists of multiple balances presumed
that the weights must be equal in balances involving three or more forces. This
is apparent in Jean Louis de Lolme's Constitution of England (first
published in French in 1771, and in English in 1775).
 De Lolme argues that the legislature naturally outweighs the
executive, with the resulting requirement that the weight of the legislature
must be divided and dispersed, and the weight of the executive concentrated if
a balance is to be achieved. Thus according to de Lolme one of the
peculiarities of the English constitution is "its having thrown into one place
the whole mass, if I may use the expression, of the executive power", which
enables the royal authority to act as a counterpoise to the power of the
people. Even so, the two powers are not as a result equal, for it is right that
the power of the executive should be, in actuality if not appearance, the
lesser of the two. But the legislative power, if it is not to be excessive,
must be limited, and this can only be achieved by dividing it: "the same kind
of impossibility is found to fix the legislative power when it is one, which
Archimedes objected against his moving the earth" - a rare appeal, one might
add, to the principle, if not of the lever, then at least of the fulcrum.
Meanwhile, the people as a whole, as a body outside the constitutional system
of powers, "at every instant have it in their power to strike the decisive blow
which is to level everything", although they are only truly free when they have
no need toconstitutionis unrestrained power. Thus for de Lolme the English
constitution consists of a number of independent, separate, and unequal powers
(including a judicial power consisting not only of an independent judiconstitutionalso of juries who are judge of law as well as fact) whose "reciprocal actions
and reactions produce the freedom of the constitution, which is no more than an
equilibrium between the ruling powers of the state."
 The key to establishing this equilibrium is weakening the
legislature and strengthening the executive - the exact opposite of the
policies advocated by Trenchard and Moyle.
So, too, for James Madison (who was to become President in 1809 and who
had played the key role in the constitutional convention of 1787) and Alexander
Hamilton (the leading advocate for the construction of a strong American
state), the authors (with John Jay) of The Federalist (1787-8). Madison
and Hamilton believed that since 1776 America had had plenty of experience of
overpowerful legislatures). "It is against the enterprising ambition of [the
legislature] that the people ought to indulge all their jealousy and exhaust
all their precautions." "As the weight of the legislative authority requires
that it should be thus divided, the weakness of the executive may require, on
the other hand, that it should be fortified." The result of this division and
fortification is not a balance of equal powers, for the executive is still the
"weaker department", and the legislative authority contains within itself a
"weaker branch" and a "stronger branch." It
is these theorists of politics as the balancing of unequal forces who pioneered
what is, I think, the most important and least recognized aspect of the theory
of checks and balances, and we will return to them shortly, adducing further
evidence that there is a close parallel between their arguments. So far we have
seen that by the mid-eighteenth century there were two conflicting ways of
thinking about a balance of powers, one (Swift's notion) which stressed the
formation of alliances between two powers in order to balance a third, and the
other (Bolingbroke's notion, derived in all probability from Moyle) which
stressed the independency of the powers.
We turn now to the word check. No one seems to have asked when
the word "check" is first used in a political context. It makes a couple of
appearances in Nedham's A True State of the Case of the Commonwealth in
1654. It is probably as a result of Cromwell's reading of Nedham that we find
him reported as saying to the army officers on 27 February 1657 that Parliament
was in "need of a check or balancing power (meaning the House of Lords or a
House so constituted)" to protect the rights of individuals, particularly in
matters of religion. But I have not noticed
the word "check" anywhere else until the upsurge in radical publication which
followed the lapse of the Licensing Act in 1695: we have already seen it used
by Moyle in 1698 - indeed he uses it repeatedly - and it was used in the same
year by Trenchard, by Moyle's friend Hammond, and by Shaftesbury and Toland,
the likely authors of The Danger of Mercenary Parliaments, who write of
"a check and curb". In this last example we
see it linked to what was presumably an earlier vocabulary, in which power was
to be bridled (a word we have encountered in North's translation of Plutarch)
and curbed. One of the attractions of the
word "check" was that it could be used both in a mechanical context and in the
context of a human action of surveillance or supervision. We often find it
paired with control, which is similarly ambiguous, as in the following passage
of Moyle's: "You may observe in every government that when the executive power
is transferred to the legislative, there is no control, nor can there be any
check upon them; the people in such a case must suffer without redress, they
have no resource; because they are oppressed by their own
representatives." But there are
various types of check or control, and it is worth distinguishing them.
The obvious meaning of "check" was that of preventing an action, or
exercising a veto: this was its original meaning in Nedham. In 1730, for
example, we find James Pitt claiming that the three powers of the government
"have a negative on each other" - the Commons being able to exercise a veto
over the executive by refusing supply, or in Madison's phrase, employing "the
engine of a money bill." Montesquieu,
writing in French, talks about each power being able to empêche,
arrête, or veto the other, and from him there derived a lengthy
tradition which assumed that the executive must be able to exercise a veto over
the legislature (although in eighteenth-century English constitutional practice
this veto had in fact virtually ceased to exist: Jean Louis de Lolme could find
no case of the king exercising his veto after 1692).
But to check might also mean, in Bolingbroke's language, to examine and
control. According to the OED, the first use of the word responsibility
is in Hamilton and Madison's Federalist (1787).
 In fact the word can be traced back to 1766, and was in frequent
use in late eighteenth-century English in the context of discussions of
ministerial responsibility. (It is one of
the more remarkable examples of the power of metaphor that the
nineteenth-century notion of moral responsibility has its origin in this notion
of ministerial responsibility.)  But the
idea, if not the word, goes back before then. The first example the OED gives
for the use of responsible to mean "accountable" is in Prynne's
Sovereign Power of Parliaments of 1643, where it is asserted that kings
are responsible to their kingdoms or parliaments; and this was later extended
into a clear doctrine of ministerial responsibility under another name. Thus Trenchard writes in 1698, "The law has
always been very tender of the person of the king, and therefore has disposed
the executive part of the government in such proper channels, that whatsoever
lesser excesses are committed, they are not imputed to him, but his ministers
are accountable for them" (although he goes on to complain that in practice
this principle of accountability is easily evaded).
 I am not sure when accountability was first described as a
check, but it may well have been during the debates on impeachment of 1697/8.
Certainly it is in this sense that the philosopher and historian David Hume
wrote (in 1752) of the "particular checks and controls provided by the
constitution", checks which make it in the interest of bad men to act for the
public good: he is discussing the problem of how a government is to control its
administration. For Blackstone too it is
impeachment which serves as a check on the executive. So important might this
idea of accountability seem that it was capable of swallowing up any other
concept of checks and balances. According to the OED the first use of the word
accountability was in The History of Vermont in 1794, in a
reference to "mutual checks and balances, accountability and responsibility."
In the eighteenth century, freedom of the press created a new method of
holding those in power to account, by summoning them to the bar of public
opinion, or, to use Bolingbroke's term, "the tribunal of public fame". In general Anglophone political theory was
very slow to recognize the significance of freedom of the press for British
liberty. Number 15 of Cato's Letters, "Of Freedom of Speech", is perhaps
the first sustained defense of free speech, describing it as "the great bulwark
of liberty", but I know of no sophisticated analysis of its effects earlier
than the one to be found in the Francophone de Lolme. De Lolme, a
citizen of Geneva, was impressed by the way a free press can make three
kingdoms into one small town. Indeed he maintains public debate in the press
has all the advantages and none of the disadvantages of a popular assembly; de
Lolme, a former disciple of Rousseau's, was eager to stress the ease with which
direct democracy degenerates into -->tyrannyy. He is clear, however, that no
tyranny can withstand a free press - and the original purpose of his book,
first published in Holland for sale in France, was to undermine French
absolutism by exploiting this very freedom. De Lolme fully recognized the power
of the press as a "mighty political engine," capable of being a check in its
Then there is a third meaning of check, meaning to interrupt or delay.
Here check is paired not with "control" but with "clog", a word which
originally meant a hobble, and had come to mean any obstacle or brake. In
1698/9 there are repeated references to the opposition's desire to "clog the
wheels of government." In 1752 we find
Thomas Pownall attacking the contemporary working of checks and balances in the
British Constitution: "Thus it becomes the interest of the democratic part to
be a constant clog and check upon the measures of the administering power, and
to oppose themselves to every new exertion of its influence."
 Paine, in Common Sense, chose to understand the
theory of constitutional checks in this sense: "for as the greater weight will
always carry up the less, and as all the wheels of a machine are put in motion
by one, it only remains to know which power in the constitution has the most
weight, for that will govern; and though the others, or a part of them, may
clog, or as the phrase is, check the rapidity of its motion, yet so long as
they cannot stop it, their endeavors will be ineffectual, the first moving
power will at last have its way, and what it wants in speed is supplied in
time." Speed, of course, might be required
for good government, and in Massachusetts those who agreed with Paine that
there should only be a single legislative chamber complained that senates "have
formerly been a check or clog to business of consequence, requiring
American advocates of bicameralism replied that it was important for one
legislative chamber to check another, and since, if both chambers represented
the people, the purpose of such a check could not be to balance competing
interests, it must be to delay hasty decisions. (Although one did not need to
be an American to reach such conclusions - de Lolme had already defended
bicameralism in similar terms.) In South
Carolina in 1784, for example, it was maintained that the case for two
representative bodies was that "the division in the legislative power seems
necessary to furnish a proper check to our too hasty proceedings." Benjamin Franklin was arguing in this
tradition when he defended the idea of two assemblies, saying it was "like a
practice he had somewhere seen, of certain wagoners, who, when about to descend
a steep hill with a heavy load, if they had four cattle, took off one pair from
before, and chaining them to the hinder part of the wagon drove them up hill,
while the pair before and the weight of the load, overbalancing the strength of
those behind, drew them slowly and moderately down the hill."
 There was indeed general agreement that some mechanism to
ensure delay was needed so that, in Madison's phrase, it was the "cool and
deliberate sense of the community" which prevailed.
Both checks and balances thus prove to be much more complex notions that
one might at first suspect; nor should we be surprised that the linking of the
two together presents its own complexities. In Moyle's essay on the
constitution of Sparta the word check is frequently used, but "balance" is
never used in its Polybian or Plutarchan sense. In Montesquieu the two ideas
are kept radically separateconstitution invoked in the context of a discussion
of the mixed constitution of the Roman republic as described by Polybius;
checks in the context of a discussion of the separation of powers as
exemplified by England. Indeed this, I
believe, was the general pattern, and modern commentators have been led astray
by the fact that it is Adams who first uses the phrase. Manin, for example,
concludes that the idea of "checks and balances" develops out of the idea of a
mixed or balanced constitution (advocated by Adams) and allows for the active
influence of one branch of government on another; while the alternative is the
idea of the separation of powers, which provides only for passive or negative
"checks". The fact that the idea of a
check is here recognized as peculiarly belonging to one tradition, while
"checks and balances" is supposed to derive from the other suggests confusion
in the argument. In fact the idea of checks and balances implies the bringing
together of two analytically and historically distinct traditions, that of the
mixed or balanced constitution (a tradition in which the word "check" plays no
part) and that of the separation of powers (a tradition which makes no mention
This argument is supported by the first occasion (as far as I know) on
which "check" is used as a political term, in Nedham's True State of the
Case of the Commonwealth (1654), when it is immediately counterposed to
"balance". Nedham is formulating the first uncompromising argument for a
separation of powers (made possible by the existence of an actual separation in
the Cromwellian written constitution, the Instrument of Government), and
complaining that the Rump Parliament's proposal for biennial Parliaments would
have placed "the legislative and executive powers in the same persons… by
which means in effect they become unaccountable for abuses in government…
And how easily abuses might have been justified in a parliamentary way, is
apparent enough; seeing an opportunity was given in that bill, to the next or
any succeeding Parliament (no manner of balance or check being reserved upon
them) by claiming an absolute authority to be in themselves, for ever to have
continued the power (if they pleased) in their own hands…" At first sight
it might seem as if the words "balance" and "check" are here being used as
equivalent terms: and indeed when Cromwell linked the terms together in 1657
they seem to have been assumed to be equivalents. But they may equally have
been meant as alternatives. By the word "balance" it may be that Nedham meanconstitutione the powers of the monarch and Lords within the mixed constitution
(which included the monarch's power to dissolve Parliament); by the word
"check" he may have meant to invoke the power of the Protector under the
Instrument of Governmentconstitutiononstitutional legislation. If so the word
"check" was being put to use to explain how power would be limited within a
constitution where powers were separated.
Nevertheless, it was tempting to see the English constitution as
embodying both a separation and a balancing of powers, and it was easy to slip
into using "check" and "balance" as synonyms. As Toland put it, "All the world
knows that England is under a free government, whose supreme legislative power
is lodged in the King, Lords, and Commons, each of which have their peculiar
privileges and prerogatives; no law can pass without their common authority or
consent; and they are a mutual check and balance on one another's oversights or
encroachments." (This led directly to an
appeal to the authority of Polybius.) We have seen Bolingbroke also trying to
bring together the ideas (but not the language) of both traditions by stressing
the constitutional dependency and independency of both branches of government:
first published in The Craftsman in 1730, his argument was republished
in 1743 in Remarks on the History of England. In the same year, in
Spelman's preface to his translation of Polybius's fragment on the balanced
constitution, check and balance once again occur in close proximity, as if
But why did Toland's phrase not catch on, as Adams's did? In 1752 Thomas
Pownall attacked those "that talk of balance and counter-balance, of one power
being constitutionally a check upon another; and that it is constitutionally
the duty of these to pull different ways, even when there is no real matter of
difference, yet to preserve the equilibrium of power."
 Now this is not the old doctrine of the balanced constitution
which is under attack, for that had always insisted that the precondition for
equilibrium was coalition-making and trimming; what is being attacked here is
the new Bolingbrokean doctrine, later to be Adams's doctrine, that the three
powers can pull in separate, independent directions and yet establish an
equilibrium, aconstitutions new doctrine which brings the idea of the balanced
constitution close enough to the idea of the separation of powers for checks to
be routinely identified with balances. Blackstone, we have seen, moves
seamlessly from a discussion of checks (first the independent capacity of
Commons, Lords, and King to veto legislation; and then the capacity of
Parliament to hold the king's agents to account) to a discussion of a triangle
of forces. But in Blackstone's account the three forces result in movement not
equilibrium. This way of thinking did not lead naturally to a language of
checks and balances, or even of "checks and balance," the phrase Noah Webster
uses in 1787. In order to understand the power of the phrase we will need to
look more closely at Adams's Defense.
We can now see that Adams's phrase involves a further puzzle, beyond the
bringing together of two words that belong to very different intellectual
traditions: the use of balances in the plural. For most previous writers there
had been one balance of forces (as in Polybius and Swift), which trims the ship
of state and sustains the mixed constitution, and several checks. What (other
than syntactic parallelism) invited the reference to balances in the plural? It
seems clear the shift was thought to be particularly appropriate in the context
of limits on the power of the legislature: The Federalist refers
specifically to "legislative balances and checks," in a list of a series of
principles to be adopted in any well-constructed constitution, and an exactly
equivalent phrase had been used by Gouverneur Morris in 1776: "The authority of
magistrates is taken from that mass of power which in rude societies and
unbalanced democracies is wielded by the majority. Every separation of the
executive and judicial authority from the legislature is a diminution of
political and increase of civil liberty. Every check and balance of that
legislature has a like effect."
Later Adams was to identify eight balances in the constitution of 1787:
between the states and the federal government; between the House of
Representatives and the Senate; between the executive and the legislature;
between the judiciary and all the other powers; between the senate and the
president in appointments to offices and treaties; between the people and their
representatives; between the legislatures of the states and the senators
selected by them; between the people and the electoral college which selected a
President. Here some of these balances are clearly what would once have been
called checks (between executive, legislature,constitutionry). The result (for
Adams was no admirer of the new constitution) was "all this complication of
machinery, all these wheels within wheels, these imperia within
imperiis." I have reproduced these
eight in an order of my own, because the first five seem to me a logical
consequence of a mixed constitution and a separation of powers within a federal
system. But the last three are all cases of a balance between electors and
elected, and this involves an idea of balance unknown to Polybius, Swift, and
Montesquieu. It is to this idea of balance, central to any account of
legislative balances and checks (including that which appears in The
Federalist), that I now turn.
There is a simple sense in which at every election the electorate hold
their representatives to account, and replace those who have failed to give
satisfaction. This fundamental check is, we might say, the essence of the
liberty to be found in representative government. Peers, Bolingbroke said, are
accountable to God, but MPs to their constituents.
 According to the anti-Federalist author who called himself
Centinel, in England "the only operative and efficient check upon the conduct
of administration, is the sense of the people at large."
 But the relationship between the electorate and their
representatives is a complex one, and I want to pause over two texts that made
a serious effort to analyze it. The first is Edward Spelman's short but
incisive introduction to his translation of Polybius on balanced government.
Spelman's text was twice reprinted in English (the last edition being known to
John Adams, who quotes at length from Spelman's translation in the
Defense), and later translated into French for publication during the
Revolution. I have already suggested that
it was one of the few works that linked check and balance together as
equivalents, and it may have played an important part in developing a
convenient language for the notion that liberty is primarily established by
power restraining power. It is also the first unambiguous defense of party in
English, the consensus until then having been that, since there was a single
common interest, parties are in principle unnecessary, and that where there are
two parties there must be at least one faction.
 Spelman, by contrast, argues that "in all free governments
there ever were and ever will be parties," and that party conflict is not an
effect but a precondition of liberty. The cities of ancient Greece were divided
into supporters of aristocracy and democracy, but "it was not the existence of
the two parties I have mentioned that destroyed the liberties of any of those
cities, but the occasional extinction of one of them by the superiority the
other had gained over it. And if ever we should be so unhappy as to have the
balance between the three orders destroyed; and that any one of the three
should utterly extinguish the other two, the name of a party would, from that
moment, be unknown in England, and we should unanimously agree in being slaves
to the conqueror."
Party thus becomes a crucial mechanism for checking the power of
government: "whatever may be the success of the opposer, the public reaps great
benefit from the opposition; since this keeps ministers upon their guard, and,
often, prevents them from pursuing bold measures which an uncontrolled power
might, otherwise, tempt them to engage in. They must act with caution, as well
as fidelity, when they consider the whole nation is attentive to every step
they take, and that the errors they may commit will not only be exposed but
aggravated." But Spelman also provides a subtle account of party,
distinguishing sharply between the motives of a party's supporters, who want to
see certain policies adopted, and its leaders, who want power. The thirst for
power provides the leaders with a stronger incentive than any disinterested
concern for the public good, and opposition provides a training ground for
future rulers. There thus exists an inherent tension between a party's leaders
and its followers, for the leaders have an incentive to sacrifice their
principles to attain power, while the followers, who will never be rulers, have
an interest in seeing the powers of government restrained. A simple
confirmation of this theory, in Spelman's view, is the complete failure of the
political elite to repeal the Septennial Act and institute annual elections:
although the whole nation would benefit from such a measure, politicians as a
class have an interest in limiting the electorate's ability to control their
actions. A similar account
appears in de Lolme's Constitution of England, for de Lolme argues that
politicians rely on popular support to give them access to power, but as they
acquire power and status, as they are promoted, for example, from the Commons
to the Lords, the people cease to trust them, and become convinced that their
interests are no longer at one with those of their rank-and-file supporters.
In 1787 the proposed federal constitution for the United States
necessarily multiplied both checks and balances, for it established a new
constitutional tension, that between federal and state powers. Adams's new
phrase immediately became the language of the hour. But well before then a new
notion of balance had come into existence to supplement the Polybian and
Plutarchan balance between monarchical, aristocratic, and democratic
institutions. This was the notion of a natural balancing mechanism at work
first of all between parties, and then between the governing elite and those
they represent. This new conception of representative government made it easy
to recognize that there were several balances at work, as well as several
checks. Neither Spelman nor de Lolme coined the phrase "checks and balances",
but this is a mere accident of history, for the phrase accords well with what
they wanted to say, and their notion of a balance between electors and elected
is central tconstitutionst of the different balances at work in the American
3. Automatic Machinery. So far I have argued that there is a
radical discontinuity between the Polybian or Plutarchan notion of the balance
and the new mechanical language of controls, clogs, checks, and of
counterpoise, balance, equilibrium that establishes itself after 1697. Second,
I have argued that there are several types of check and more than one type of
balance, and that it is important to distinguish between them. Thirdly, I have
argued that where checks were plural from the beginning, the balance was
singular and only became plural with a new account of the role of parties and
political leaders in representative government and with the birth of
federalism. At this point you might think the idea of checks and balances has
been pretty thoroughly explored; this then is the time to turn to that aspect
of the new mechanical thinking which seems to me to be missing from modern
usages of the language of checks and balances.
Let us start with the translation of Plutarch on the balance which we
find in the Dryden edition: "For the state, which before had no firm basis to
stand upon, but leaned one while towards an absolute monarchy (when the Kings
had the upper hand) and another while towards a pure democracy (when the people
had the better of it), found in this establishment of the Senate a
counterpoise, which always kept things in a just equilibrium. For the Twenty
Eight always adhered to the weaker side, and put themselves like a weight into
the lighter scale, until they had reduced the other to a balance." If we take Dryden's translator to be
describing, not the decisions of politicians, but the working of a machine,
then what we have here is an automatic mechanism, where a feedback loop enables
the machine to regulate itself. What is involved here is not a static but a
dynamic equilibrium: first the balance tips slightly one way, then the other,
but each time it is brought back towards the horizontal. Where, before the
establishment of the Senate, it see-sawed wildly, after its establishment it
oscillates gently, always close to the horizontal.
Perhaps I am reading too much into this brief passage, for the idea of a
self-stabilizing system was not a familiar one in the late-seventeenth century.
In 1721 Thomas Gordon could see that the precondition for "control and
counterpoise" was "a perpetual struggle: But by this struggle liberty is
preserved, as water is kept sweet by motion."
 The mixing of metaphors here, as in The King's Answer,
shows mechanical thinking pressing at its limits. Gordon, after all, could not
use the example of a self-stabilizing system with which we are most familiar,
the market, where there is constant movement and change, but where competition
works to match supply to demand and to bring profits towards an average rate.
Nor would he have been familiar with any self-stabilizing machines. He did not,
for example, have the benefit of central heating. Here the temperature in the
house oscillates around a norm established by a thermostat: when it falls
significantly the furnace is switched on; when it rises the furnace is switched
In the second half of the eighteenth century there was, for the first
time, considerable interest in self-stabilizing systems, and it was soon
claimed that under certain conditions - a separation between legislature,
executive, and judiciary; a bicameral legislature; a unified executive; juries
judge of law as well as fact; regular elections and a free press -
representative government had a self-stabilizing character, where excess in any
direction would tend to correct itself automatically. Societies with
representative government appear to be in a constant state of agitation, yet we
believe them to be peculiarly resilient. Like a tree in a storm, the political
fabric bends, but it does not break. We
all unthinkingly rely on this idea that certain mechanisms enable the political
system to correct its own mistakes when we maintain that an independent
judiciary and jury trials are guarantees of liberty, or when we say that it is
essential to the democratic process that there should be effective opposition,
or when we take it for granted that we are unlikely to live through a violent
revolution in England or America. This self-stabilizing system was first
identified as functioning within English politics, and then deliberately
constructed in the American constitution.
This revolution is of fundamental importance, for if we feel secure in
the enjoyment of our liberties it is because we believe that the political
system is in some way or other self-stabilizing, that given time the
consequences of bad decisions will be mitigated not exacerbated. There are a
number of reasons why this revolution has remained invisible. It was not
formulated in a "classic" text of political theory. Indeed the ideas involved
still remain somewhat unfamiliar and inchoate, so that we have little idea of
under what circumstances and to what extent they are true - could one, for
example, imagine a Nazi party coming to power within a well-designed
constitution, and if not why not? Moreover, to discuss them in an
eighteenth-century context it is necessary to talk about ideas of equilibrium
in mechanics, a subject of little interest except to historians of science.
Above all, the new theory of politics as self-stabilizing was masked by its
superficial similarity to the far older theory of Polybius and Plutarch. The
classical formulations of the idea of a self-stabilizing system, however, were
designed to describe political systems which had the capacity to evolve into
either monarchy, aristocracy, or democracy, but in fact stabilized in an
in-between condition. What made this equilibrium possible was not just an
arrangement of political institutions, but also a set of extra-institutional
powers, or what one eighteenth-century commentator called "weight in the
community" - even if Polybius did not
make this explicit, any eighteenth-century theorist familiar with Harrington's
Oceana (1656) would have read this back into the text.
 Thus Trenchard and Moyle wrote that "this balance [the
constitution of England] can never be preserved but by a union of the natural
and artificial strength of the kingdom… or otherwise the government is
violent and against nature." The new
theory, by contrast, assumed that an overwhelming preponderance of power lay
with a relatively undifferentiated "people", but that, despite there being no
equilibrium in the social distribution of power, a self-stabilizing political
system could exist.
Precisely because it involved a rejection of the traditional idea of a
mixed government, the only system for which the claim that it was
self-stabilizing had previously been made, many contemporaries found the new
theory incomprehensible, implausible, or paradoxical. It relied, they
recognized, on the idea of checks on power, it claimed that the checks involved
were not simply "parchment barriers," but as far as they could see the checks
were after all only "checks on paper," that is to say they relied purely on
institutional mechanisms. Their
puzzlement and incomprehension continues to interfere with our ability to
understand the intellectual revolution that had taken place.
Let us go back to the mechanical metaphor. The power of this depends
partly on the quality of the clockwork mechanism one has in mind. The heart,
which de Mornay likened to a clock constructed by God, does not beat steadily,
but sometimes races, and for John Donne in the early seventeenth century
clockwork was a symbol of unreliability, to be compared unfavorably with the
genuinely regular movement of the sun through the heavens. René
Descartes (1596-1650) obviously represents a key moment of transition, for in
arguing that animals were mere machines he not only deprived animals of
intelligence; he also attributed remarkable capacities to mere machines. It
took time for men to construct in their minds the idea of a perfect mechanism,
of what Trenchard, at the end of an essay on the mechanical philosophy,
described as "a watch which will go for a thousand years" without winding or
mending. First Arnold Geulincx
(1624-1669) and then Gottfried Leibniz (1646-1716) took the idea of mechanical
perfection even further when they claimed that the mental world and the
physical world correspond only because both are automata which have been
perfectly synchronized, two clocks beating as one, unfailingly keeping time.
This theoretical concept of the perfect mechanism takes form at roughly
the same time as a quite different metaphor which contributed equally to the
scientific revolution, that of the law of nature. The idea of a law as the
expression of uniformity and regularity also involved the mental construction
of a new species of perfection. Robert Boyle is an important pioneer in the use
of both metaphors for regularity, that of the machine and that of the law, in a
world where neither machines nor laws actually performed predictably. It is
worth remembering that regular itself is a dead metaphor, derived from
the term for a monastic rule; de Quincey in 1722 appears to have been the first
to have used it to mean constant and uniform, in opposition to irregular - to
use it in the sense we now take for granted.
In order to be accurate, clocks have to be designed to continue marking
regular intervals of time even as the arc of the pendulum diminishes, or the
spring unwinds. All good clocks are in that sense self-regulating, and the
history of clockwork is a history of regulatory mechanisms such as the
verge-and-foliot escapement and the fusee. But a clock cannot tell when it has
gone wrong and correct itself. Clocks lack feedback mechanisms, and to think of
the universe as clockwork is to invite the notion that God may make occasional
adjustments, as Newton believed He did to the orbits of the planets. Harrington
insisted that a constitution, if constructed according to the right principles,
could continue for ever, a self-regenerating system, but the claim explicitly
involved a comparison between the political and the divine architects.
However a century after what we might call the mechanical revolution, a
second, much less well-understood revolution took place, a revolution which saw
the invention of self-regulating or self-governing or self-stabilizing
machines. A simple example is the fan-tail windmill, where the fan-tail points
the windmill into the wind, and constantly adjusts the direction in which the
windmill points as the wind changes direction. The fantail is an
eighteenth-century English invention - one apparently never adopted in France,
where millers preferred to steer their windmills into the wind, not leave them
to their own devices. It is on the basis of contemporary windmill technology
that James Watt invented in 1788 the most famous self-regulating mechanism of
the industrial revolution, the centrifugal speed governor for steam engines.
Around the same time self-regulating mechanisms that had long been known were
finding new uses - the thermostat, for example, and the ball-cock valve. All
such machines involve - though the term itself is a twentieth-century one -
some sort of feedback mechanism.
At the same time, and almost ahead of the technological revolution, what
we might call mind machines (remember Adam Smith describes theoretical systems
as "imaginary machines" ) are being invented (again in the English-speaking
world) which have self-regulating qualities: Hume invents the modern theory of
the balance of trade in 1750, and Smith formulates what we now call the market
mechanism (he does not use the term "mechanism" himself, but he would have
acknowledged that the market was an imaginary machine) in The Wealth of
Nations (1776). The whole point of the market mechanism is not that it is a
machine, but that it is self-regulating or self-stabilizing, that it is a
feedback system. Modern economics, as much as modern natural science, is thus
dependent on a new understanding of the possibilities of mechanical systems,
for even imaginary machines, if they are to be seen to work, must abide by
recognizable mechanical principles. Even natural science needed the concept of
self-regulation: Shaftesbury, as early as 1709, describes the mechanical
philosophy as relying on "some exquisite system of self-governed matter," and I
take it self-governed here means in effect self-regulating.
It is worth noting that the process described by Spelman and de Lolme,
the new balance between politicians and the public, is one of constant
fluctuation around an equilibrium: government provokes opposition, opposition
moves into government, and government provokes opposition. The process is never
at rest, but is constantly self-stabilizing, just like the market or the
fan-tail windmill. It implies, in fact, the idea of dynamic rather than static
equilibrium, for what is at work is a feedback mechanism. Indeed any careful
formulation of the claim that the people control their representatives through
elections involves an appeal to a feedback mechanism. It is also worth
stressing that Nedham and Harrington, who seem in so many respects to be the
founders of the modern republican tradition, are systematically opposed to
feedback mechanisms. They want a wholesale rotation or revolution in elected
representatives at every election, rather than seeing elections as an
opportunity to assess the performance of the people's representatives. And they want political discussions to take
place in secret, as in Venice, not in public.
 Their assumption is that any passage of time represents an
opportunity for corruption, while for later theorists time provides scope for
correcting mistakes and adjusting to developments.
We can see the new, contrasting conception best in a passage from de
As the representatives of the people will naturally be selected from
among those citizens who are most favored by fortune, and will consequently
have much to preserve, they will, even in the midst of quiet times, keep a
watchful eye on the motions of power. As the advantages they possess will
naturally create a kind of rivalship between them and those who govern, the
jealousy which they will conceive against the latter will give them an
exquisite degree of sensibility on every increase of their authority. Like
those delicate instruments which discover the operations of nature while they
are yet imperceptible to our senses, they will warn the people of those things
which of themselves they never see but when it is too late; and their greater
proportional share, whether of real riches or of those which lie in the
opinions of men, will make them, if I may so express myself, the barometers
that will discover, in its first beginning, every tendency to a change in the
The representatives thus serve as a thermostat, enflaming or damping
down public opinion depending on the presence or absence of a threat to liberty
and property. Again, the process involves constant movement, as representatives
compete simultaneously for power and public support, but as long as the circuit
of election, representation, sensitivity, publicity, and new elections is
unbroken, the mechanism to check power will continue to function. De Lolme, we
have seen, likens the representatives to barometers not thermostats, for like
barometers they act on men's minds. But while a barometer changes one's
behavior, encouraging one to set to sea or carry an umbrella, one's resulting
behavior does not in itself affect the weather. In politics, by contrast, the
acute sensitivity of the elected representatives actually serves to change the
political situation, as a result of the information being fed back to the
public, in the same way that a thermostat serves to change the temperature in
the room by supplying information to the furnace. What de Lolme is describing
is a self-regulating system, and it is because his understanding of politics
reaches this level of sophistication that we find him in later editions of his
book criticizing Adam Smith's view that a standing army is not a threat to
liberty if the sovereign is the supreme commander and the social elite supply
the officer caste: "The author we are quoting has deemed a government to be a
simpler machine, and an army a simpler instrument, that they in reality are."
It is only when we see that de Lolme's understands England's constitutional
machinery to be self-stabilizing that we can understand just how far from
simple he thinks it is. We can also recognize why he was in a good position to
identify and admire Smith's "great abilities."
It was the need to find checks and balances with which to control
representative democracy which most concerned the framers of the American
Constitution. When Adams was asked by the state of Massachusetts to preside
over a state constituent convention in 1820 (a convention called to revise the
constitution of 1780, which Adams had drafted single-handed), he was praised
for "demonstrating to the world, in his defense of the constitutions of the
several United States, the contested principle, since admitted as an axiom,
that checks and balances in legislative power are essential to true liberty." But the great political work which sought
to clarify and formulate the new understanding of politics which came to be
embodied in the phrase "checks and balances," and draw from it a new design for
the machinery of politics, was not Adams's Defense but Hamilton and
Madison's Federalist, and it is only by putting that work in the sort of
context I have constructed here that we can hope to measure its originality and
its success. Outside America The Federalist remains largely unread -
Isaiah Berlin, for example, who sometimes gave the impression of having read
everything worth reading, never bothered to read it.
 But unread too are the key texts in the development of the new
theories of checks and balances, the texts of Nedham, Moyle, Trenchard, Gordon,
Bolingbroke, Blackstone, Spelman, and de Lolme; instead The Federalist
is read in the context of Hume (who had, it is true, been the first to
recognize that an increase in scale could itself serve as a check upon the
democratic element in the constitution). Hume pioneered the idea of
self-regulating systems in economics but not in politics.
 Indeed he felt sure that in the long run the British
constitution would fail to correct its own faults and would dissolve into
tyranny or democracy.
In Federalist 50 Madison (for those unfamiliar with the text I
should explain that we know who wrote each of the essays which appeared under
the by-line of Publius) rejects the idea that the working of the constitution
can be supervised by some external body. He then begins no. 51 with this
To what expedient, then, shall we finally resort, for maintaining in
practice the necessary partition of power among the several departments as laid
down by the Constitution? The only answer that can be given is that as all
these exterior provisions are found to be inadequate the defect must be
supplied by so contriving the interior structure of the government as that its
several constituent parts may, by their mutual relations, be the means of
keeping each other in their proper places. Without presuming to undertake a
full development of this important idea I will hazard a few general
observations… the great security against a gradual concentration of the
several powers in the same department consists in giving to those who
administer each department the necessary constitutional means and personal
motives to resist encroachments of the others. The provision for defense must
in this, as in all other cases, be made commensurate to the danger of attack.
Ambition must be made to counteract ambition. The interest of the man must be
connected with the constitutional rights of the place. It may be a reflection
on human nature that such devices should be necessary to control the abuses of
government. But what is government itself but the greatest of all reflections
on human nature? If men were angels, no government would be necessary. If
angels were to govern men, neither external nor internal controls on government
would be necessary. In framing a government which is administered by men over
men, the great difficulty lies in this: you must first enable the government to
control the governed; and in the next place oblige it to control itself. A
dependence on the people is, no doubt, the primary control on the government;
but experience has taught mankind the necessity of auxiliary
Here the conviction, so clearly formulated in Cato's Letters,
that "whilst men are men, ambition, avarice, and vanity… will govern their
actions" has been turned from a psychological principle into the fundamental
principle of the constitution.
Indeed in Cato's Letters, a work that Madison must certainly have
known, Trenchard had momentarily formulated this general constitutional
principle himself. Taking as his premise that "there has always been such a
constant and certain fund of corruption and malignity in human nature, that it
has been rare to find that man, whose views and happiness did not center in the
gratification of his appetites", Trenchard concluded that experience had shown
there was only one type of free government that could survive: one where
the power and sovereignty of magistrates in free countries was so
qualified, and so divided into different channels, and committed to the
discretion of so many different men, with different interests and views, that
the majority of them could seldom or never find their account in betraying
their trust in fundamental instances. Their emulation, envy, fear, or interest,
always made them spies and checks upon one another… The only secret
therefore in forming a free government is to make the interests of the
governors and the governed the same, as far as human policy can contrive.
Liberty cannot be preserved any other way.
But Trenchard expected the conflict between political leaders and the
institutions with which they identified to be far more ruthless, far less
successfully channeled into a harmless jockeying for position, than Madison
did. "Disgrace, torture, and death", he tells us, should be "the punishment of
treachery and corruption." For hanging,
drawing, and quartering, Madison substituted ambition and place-seeking.
Bernard Manin has correctly said that the system of internal controls
which Madison is describing can properly be termed a self-enforcing
equilibrium. One might then say - for it
is the same idea expressed in different language - that the constitution is
intended to be a self-regulating machine. We have seen that this was already de
Lolme's idea, and that he had elaborated this idea most clearly in his account
of "the primary control," the relationship between the government and the
We do not know for sure that Madison had read de Lolme. It seems highly
unlikely that he had not read an author whom Hamilton admired and whose book
Adams (who shared de Lolme's preoccupation with the British constitution) had
described as "the best defense of the political balance of three powers that
ever was written". Adams's enthusiasm
rather blinded him to the fact that de Lolme was not interested in a balance of
monarchy, aristocracy, and democracy (Adams's primary concern), but rather in a
balance of executive, legislative, and judiciary and, in order to achieve this,
in legislative balances and checks. In Federalist 70 Hamilton, who
wanted a strong and unified executive, stated that he and de Lolme thought as
one on the question of executive power, and made his own the judgement of
Junius, that de Lolme was "deep, solid, and ingenious."
 I rather suspect that Madison had read de Lolme and read him
with care, for every step of Madison's argument in No. 51 is foreshadowed in de
No quotation from Madison is more famous than the statement that "If men
were angels, no government would be necessary. If angels were to govern men,
neither external nor internal controls on government would be necessary." De
Lolme had made a similar argument: in a world where men "had neither any
ambition, nor any other private passions," then direct democracy would be
practical, but "in such a society, and among such beings, there would be no
occasion for any government." And indeed
this whole chapter (book 2, chapter 5) on the evils of direct democracy might
be said to illustrate Madison's astonishing claim - the decisive attack on the
notion that it is executives not legislatures that need to be checked - that
"Had every Athenian citizen been a Socrates, every Athenian citizen would still
have been a mob." We have seen Madison
arguing that every attack must be met with an equivalent defense, that ambition
must counteract ambition. De Lolme's response to the excessive concentration of
power is the same: the people must employ "for their defense the same means by
which their adversaries carry on their attack… using the same weapons as
they do, the same order, the same kind of discipline… the arts and
ambitious activity of those who govern will now be encountered by the vivacity
and perseverance of opponents actuated by the love of glory."
 Underlying the principle of ambition counteracting
ambition is the conviction that there can be no disinterested exercise of
power, and that mere rules and regulations can never be effective checks. As de
Lolme says, "those who are in a condition to control it [power] from that very
circumstance become its defenders." Thus "the people are necessarily betrayed
by those in whom they trust." The only
remedy to an excess of power is therefore to turn power against power, ambition
against ambition. De Lolme was in fact the first theorist of legislative
balances and checks, of the measures required to control an overwhelmingly
powerful legislature. No reading could
have been more apposite for the authors of the Federalist, particularly
as de Lolme had no interest in what one might term the antiquated elements of
the British constitution, such as an hereditary aristocracy, a limited
franchise, or an executive veto, but was interested only in those elements
which could be shown to be superior to the democracy of Rousseau's Social
Contract, which, along with classical republicanism, is as much de Lolme's
subject as is the English political system.
Perhaps Madison had also read or reread Spelman just before writing
Federalist 51, for we catch an echo of Spelman's argument that "it was
not the existence of the two parties I have mentioned, that destroyed the
liberties of any of those cities, but the occasional extinction of one of them,
by the superiority the other had gained over it. And if ever we should be so
unhappy as to have the balance between the three orders destroyed, and that any
one of the three should utterly extinguish the other two, the name of a party
would, from that moment, be unknown in England, and we should unanimously agree
in being slaves to the conqueror" in Madison's statement, towards the end of
Federalist 50, that "an extinction of parties necessarily implies either
a universal alarm for the public safety, or an absolute extinction of
liberty." But, whether or not Madison was
consciously aware of his predecessors he shared with them a common purpose: the
construction of a mental machine, a political system in which threats to
liberty would be automatically counterbalanced, in which "a kind of rivalship"
would pit ambition against ambition, with the unintended consequence that
liberty would be secured.
4. Elective Despotism. In this paper I have traced the origins of
the idea of checks and balances. I hope I have shown that, far from being an
idea so straightforward that it has no history, it in fact has a double origin.
On the one hand, as Noah Webster's "checks and balance," it is a complex
amalgam of two theories which, until the middle years of the eighteenth
century, were assumed to be incompatible, the theory of mixed government and
the theory of the separation of powers. Here what made it possible to bring
checks and balances together was a new understanding of the possibility of an
equilibrium of independent (and also unequal) forces, so that the powers within
a mixed government could be thought of as always separate rather than as being
obliged eventually to act in concert. The importance of this theory (born of
opposition to Walpole) was that it legitimized opposition to the government,
and rejected the traditional quest for consensus. On the other, as Gouverneur
Morris's "every legislative check and balance," it derives from the view that
in a representative democracy the greatest danger is that the legislature will
acquire the defects of a popular assembly, and that if it does the executive
and the judiciary may prove incapable of checking its actions. The legislature
had therefore to be balanced as well as checked: by elections, by political
opposition or factional division, by public opinion, by a second chamber, by a
strengthened executive. The importance of this theory (born both of a
recognition that power was now concentrated in the House of Commons, and of a
critique of Rousseau and ancient republicanism) was that it identified and
addressed the possibility of a "tyranny of the majority".
Thus checks and balances came to be linked by two quite different
routes. In addition the checks or balances (for once the two were coupled
together the distinction between them became increasingly difficult to sustain)
that were understood to be at work changed radically over time, as the veto was
supplemented by the idea of accountability, and as the electorate, the
political party, and the press came to be recognized as having a crucial part
to play in preventing the abuse of power. By coining the phrase "checks and
balances" Adams thus made it possible to link together three distinct
traditions - mixed government (Polybius), separation of powers (Montesquieu),
the need for precautions against the tyranny of the majority (de Lolme) -
within a single catch phrase. This was a rhetorical, not an intellectual,
achievement, for Adams did not grasp the full significance of the new
legislative balances and checks identified by Spelmaconstitutionme. Although he
had some sense that the English constitution was self-regulating, he did not go
constitution Polybius and Montesquieu in his understanding of why this was so.
Nevertheless he was convinced that "the English constitution is, in theory,
both for the adjustment of the balance and the prevention of its vibrations
[my italics], the most stupendous fabric of human invention."
So the history of the idea of checks and balances is much more
complicated than has previously been recognized, and that history can only be
understood in relation to the idea of a constitution as a machine, sometimes a
self-regulating machine. Without mechanical thinking, the first form of systems
analysis, there could have been no "modern" (as opposed to ancient or medieval)
form of liberty. The idea of limited
government,constitutionnd balances, originally depends on the metaphor of a
constitution as a machine in a state of equilibrium, and in its sophisticated
form depends on some practical acquaintance with feedback mechanisms. For
Madison, representation was "this great mechanical power… by the simple
agency of which the will of the largest political body may be concentered and
its force directed;" hence the need to check and balance it with care. In this sentence the phrase "mechanical
power" is to be taken seriously as a tool with which to think. I started with
Nietzsche's statement that truths are really metaphors. If Nietzsche is right,
the first task of the historian of ideas must be to bring back to life all the
long dead metaphors. I have tried to make a start here by showing that the
metaphor of "constitutional machinery" was once vigorous and capable of doing
real work; indeed it is to this metaphor that we owe all but the most
elementary components of the idea of limited government.
For it should now be apparent that the whole modern tradition of
constitutional theory, from Trenchard and Moyle onwards, is concerned to limit
the power of government. Initially the emphasis was on limiting the executive,
but over time checks-and-balances theorists became increasingly concerned to
limit government in general, and eventually they came to see the chief danger
as coming from the legislature in particular. Trenchard and Moyle were supposed
to have said (and Fletcher of Saltoun certainly did say in 1698) "For not only
that government is tyrannical which is tyrannically exercised, but all
governments are tyrannical which have not in their constitution sufficient
security against the arbitrary power of their prince."
 For Fletcher and his associates the executive was the problem.
Bolingbroke made a similar point in much more general terms: "tyranny and
slavery do not so properly consist in the stripes that are given and received,
as in the power of giving them at pleasure, and the necessity of receiving
them, whenever and for whatever they are inflicted."
 And we have seen Gouverneur Morris writing in 1776 of the need
to diminish political liberty, the freedom of action of our rulers, in order to
increase civil liberty: it was checks on the legislature that he had
particularly in mind.
These last two quotations from Fletcher and Bolingbroke are examples of
what Quentin Skinner has termed the neo-Roman republican theory: the theory
that for liberty to exist it is not sufficient that there is no tyranny; rather
it is necessary that no one has the power to act tyrannically. As we have seen, checks-and-balances
theorists maintained that where someone has the power to act tyrannically,
tyranny is the inevitable outcome. On Skinner's account neo-Roman theoristyrannyre committed to a particular type of guarantee against tyranny: they held
that a state was free if was governed by its citizens, either assembled or
through their representatives. Any claim to a prerogative power which could be
exercised against the wishes of the representatives of the political community
was (as in the quotation from Fletcher) a claim to a tyrannical power. Thus if,
after the Restoration, neo-Roman theorists claimed to be able to accept the
idea of monarchy, they could do so only because they intended to make the
monarch a merely symbolic figurehead without any real power, a Venetian doge.
Rousseau and Paine, one might comment, would have understood this argument for
autonomy or self-government: a political community must be its own master if it
is to be no one's slave.
But the argument for popular sovereignty is not the only way of
responding to the problem of the potential for tyranny, and it is the
alternative to it which I have been exploring here. This response is based, in
the first place, on the recognition that representative government can never be
the same as self-government: it acknowledges the problem of corruption and of
the emergence of elites. This was a problem which preoccupied the true Whigs in
their opposition to the court Whigs. Second, it faces up to the fact that the
majority may wish to tyrannize the minority. "It is a mistaken notion in
government," writes Gordon in 1721, "that the interest of the majority is only
to be consulted, since in society every man has a right to every man's
assistance in the enjoyment and defense of his private property; otherwise the
greater number may sell the lesser, and divide their estates among themselves;
and so, instead of a society, where all peaceable men are protected, become a
conspiracy of the many against the minority."
 Here the key issue was not so much property but, as Gordon
immediately went on to emphasize, religion, for the House of Commons had
repeatedly shown itself hostile to the rights of religious minorities. In order
to recognize this problem of majority tyranny a conceptual shift was necessary,
for it is not until 1691 that the word "majority" is used in the sense of "the
greater number or part" (rather than, for example, to refer to the age of
majority), the assumption until then being that the decisions of an assembly
properly reflected a consensus. And the
passage from Gordon I have just quoted may be the first occasion on which
"minority" is used to mean the smaller number - the earliest example given by
the OED is from 1736.
This shift involved rejecting the view, which Skinner says lay at the
heart of neo-Roman political theory, that one could think in terms of "the
body" of the political community, and attribute a single will to the nation;
and it thus prepared the ground for an eventual recognition that
party-political divisions might be essential to the preservation of liberty.
Advocates of checked and balanced government held that the power of the state
must be limited so that it is incapable of summoning the strength to act
tyrannically. "Only the checks put upon magistrates make nations free; and only
the want of such checks makes them slaves," writes Trenchard in 1722 in an
essay on "The encroaching nature of power, ever to be watched and checked", but
as he goes on to develop this argument it becomes clear that he is not simply
concerned to check the power of the executive and make it subordinate to the
legislature, but rather to make the more general claim that all power tends to
corrupt and must be confined within limits: hence the reluctance of Parliaments
to vote for annual elections. "The Romans, who knew this evil [the divergence
between the interests of the rulers and the ruled], having suffered by it,
provided wise remedies against it; and when one ordinary power grew too great,
checked it with another. Thus the office and power of the tribunes was set up
to balance that of the consuls… And when the authority of the tribunes
grew too formidable, a good expedient was found out to restrain it" by
requiring that the tribunes always act unanimously.
 Even the representatives of the people needed to be restrained
in the cause of liberty. John Adams regarded it as a fundamental axiom that
"A single assembly is liable to all the vices, follies, and frailties of an
individual." "An elective
despotism was not the government we fought for," wrote Jefferson in 1784,
"but one which should not only be founded on free principles, but in which the
powers of government should be so divided and balanced among several bodies of
magistracy, as that no one could transcend their legal limits, without being
effectually checked and restrained by the others."
The argument that power tends to corrupt was not new: it had been
clearly formulated by Nedham in The Excellencie of a Free State. Earlier
theorists would surely have accepted that power has, as Nedham explained, its
own peculiar temptations:
The reason is, because (as the Proverb saith) honores mutant
mores; "Honours change men's manners;" accessions, and continuation of
power and greatness, expose the mind to temptations: they are sails too big for
any bulk [i.e hull - cf OED s.v. bulk] of mortality to steer an even
The kingdoms of the world, and the glories of them, are baits that
seldom fail when the Tempter goes a-fishing, and none but He that was more than
man, could have refused them.
But Nedham was able to place a whole new emphasis on the tendency of
power to corrupt because he had a new theory, the separation of powers, of how
it was possible for a people "so to regulate their affairs, that all
temptations and opportunities of ambition, may be removed out of the way."
Thus the same neo-Roman definition of individual liberty as the
antithesis of slavery could be used for a variety of political purposes.
Skinner, in arguing for the coherence of the neo-Roman conception of liberty,
appears to think that a doctrine of popular sovereignty always follows from it
- and indeed Trenchard ends his essay with the claim that the Roman mechanism
of "an appeal to the people" is the best of all protections for liberty. But
even for Trenchard (who acknowledges that the people may sometimes, if rarely,
abuse their sovereign power), and for Gordon (who fears a conspiracy of the
many against the minority), and even more clearly for Nedham (who had been
reprinted in 1767), for de Lolme and for the founding fathers, what also
followed from the neo-Roman account of liberty was an argument for the
separation of powers and for checks on the power of the legislature as well as
the executive, for any concentration of power (even in the hands of the
majority) was now held to be dangerous. Even now this is not - in Great Britain
at least - simply an academic issue, for a debate between those who insist on
the need to maintain a unified Parliamentary sovereignty (which, it is claimed,
is the only reliable guarantee against tyranny) and those who are willing to
see sovereignty distributed through the organs of a federal Europe (which, it
is claimed, is the best way of taming the nation state, and of preventing the
emergence of a new Hitler or Mussolini) has been central to British political
debate over the last half century.
The new argument for limited government did not simply displace existing
discourses. Historians of political
thought have tended to write as if there were a number of alternative languages
- ancient constitutional or Cokean; natural rights or Lockean; republican or
neo-Harringtonian - available in the eighteenth century for discussing
politics. To stress the importance of one language, it has been assumed,
implies a reduction in the significance of the others, so that John Pocock's
work has been read (and is intended to be read) as implying that republican
discourse was much more important than the argument from natural rights. But
this way of thinking does not do justice to the texts we have been considering.
No one had a higher opinion of Locke than Moyle (who quotes with approval the
view that the Two Treatises are "the ABC of politics")
 yet Moyle is one of the founders of the new mechanical
language and an admirer of classical republics. So too in Cato's Letters
Trenchard and Gordon seem to oscillate from one moment to the next between
a Lockean and a republican language. For these thinkers, however, these were
not several alternative languages for discussing politics; they were rather
several languages, each of which was appropriate for a different aspect of
politics. Locke established natural rights and the principle of government by
consent, thereby providing a theoretical foundation for liberty (including
religious liberty). The neo-Roman republican theory defined liberty as the
absence of the capacity to tyrannize. And the language of checks and balances
explained how a constitution could be constructed so that liberty was
maximized. Just as one would expect an architect to be familiar with issues of
the aesthetics of form, structural engineering, and quantity surveying, so the
language of politics had a normative discourse of rights, a theory of liberty
grounded in an account of human psychology, and a value-free account of
constitutional engineering. These were not seen as alternative languages: each
was taken (one can see the process at work in Cato's letters 60 to 62, for
example) to imply the next. They were mutually supporting. Similarly in The
Federalist Lockean and Humean arguments are taken to be complementary, not
(as a modern reader might naturally assume) at odds with each other.
I promised that my history of "checks and balances" could help us
rethink our own political commitments, and it will if it makes us take
constitutional machinery seriously. This should be evident from the way in
which my account of the implications of neo-Roman arguments diverges from
Skinner's. But one must recognize that to seek to limit government so that it
cannot act tyrannically, to check and balance, to internally divide it so that
power is set against power, may well be to weaken its capacity to do good as
well as ill. In the United Kingdom we have a strong and powerful government:
there is no effective division between legislature and executive; the powers of
the second chamber are weak (it cannot, for example, oppose legislation to
implement manifesto commitments made by the governing party, nor can it
initiate budgetary measures); the judiciary is not fully independent; the
legislature has a limited and diminishing capacity to hold the executive to
account; the first past the post system tends to ensure one party government;
the government can call elections whenever it chooses; the independence of the
civil service (a check new in the nineteenth century) is under threat; and so
on. Proper checks and balances would mean a far weaker government, a government
which would find it much harder to "deliver", to use the word which is
currently the most popular in government speeches. A weaker government might
have to recognize that it had no option but to hand over the task of managing
schools, universities, hospitals to genuinely independent management,
management released from the checks and balances that are entirely appropriate
in a political context. This is an old argument, and I hardly need to rehearse
it at any length here, but it is worth noting that it is different from, even
if it often points in the same direction as, arguments against government
monopolies and in favor of competition. The standard "Thatcherite" arguments
for privatization of public services derive from Smith, while this argument
derives from Madison.
But I have a new argument to make as well. Harrington believed that his
constitution could remain unchanged and unchanging because the ballot and
rotation would prevent corruption, and so would constantly return the political
system to its original starting point. He mocked Machiavelli for thinking that
political reform required the irregular intervention of bold politicians who
would bring the political system back to its founding principles; his system
was constantly self-reforming. We can still see something of this way of
thinking in the arguments of Spelman and de Lolme. Their balance may be
dynamic, but its oscillations or vibrations do not alter the system. Madison,
it seems to me, takes a cautious step away from this way of thinking. When he
discusses the conflict between factions he assumes that factions can simply
cancel each other out. But when he talks about the parts of government keeping
each other in their proper places, he envisages them as being in a constant
struggle for power, an unending series of attacks and counterattacks. Out of
this struggle will come political decisions and political action. In such a
world there will be (as in the international struggle for power which
constantly recreates a balance of power) long-term winners and losers. As the
decades pass the system may begin to be quite different from what it was at its
first foundation. In rejecting external controlconstitution rejecting the
possibility of restoring the American constitution, as Machiavelli believed all
constitutions needed periodically to be restored, by recalling it tconstitutionding principles; but in his description of internal control he was also
rejecting the Harringtonian conviction that the constitution could be prevented
from ever changing. He was, it seems to me, proposing to let the system run, on
the presumption that as long as power was divided against power, as long as
there were adequate barriers to a monopoly of power, the system could be
allowed to evolve over time. In other words, what Madison had in mind was
something much more like a market (he was an early reader of Smith), which is
self-stabilizing but never repeats itself, than like a fan-tail windmill, which
comes back again and again to the same starting point.
Two surprising consequences follow. The first affects our idea of a
written constitution -->constitutiona> -->, for although Madison was defending a written
constitution, he was thinking in terms of a flexible and developing system,
despite the fact that the two are normally thought to be, if not incompatible,
then certainly in a dynamic tension. The second affects our idea of checks and
balances, for if Madison had the idea, not just of a dynamic equilibrium, but
of a dynamic evolution, of what one might call a political ecology, in which
equilibria are constantly being established and reestablished, but change
radically over time, then the idea of checks and balances is not necessarily as
static, as fixed, as negative as is usually assumed. Unlike Montesquieu,
Madison did not imagine that the various organs of government could be required
to act in concert; rather he envisaged a system where the conflict between the
organs of government would have unintended consequences that were beneficial to
the public. A political system in which there are numerous checks and balances
could also be one which is flexible, adaptable, resilient. It is precisely
because the idea of checks and balances can be used to think about dynamic
interactions, not just restrictions on freedom of action or static equilibria,
that it contains a largely untapped potential to help us think about political
change, and about a central political problem: how a political system can be
engineered to be both limited in its power to do evil, and at the same time
quick to adapt to changing circumstances. Trenchard and Moyle were concerned
that "the very excellence of our government betrays it to some inconveniences,
thconstitution motions of it being so curious and delicate that it is often out
of order," and this was because they conceived of the constitution as a complex
mechanism incapable of self-regulation.
Madison, by contrast, imagined a constitution so curious and delicate that it
need never go out of order, and this not because it would never go wrong, but
because it would have the capacity to right itself when it did go wrong. If
Trenchard and Moyle were the first of the political engineers, he was the
founder of a new discipline which we may term (despite the obvious anachronism)
What makes adaptation possible is that checks and balances not only
serve to secure our liberty, they also entrench disagreement into the political
system, and thus protect out collective capacity for critical reflection; we
need them not only as a bulwark against tyranny, but also to preserve our
capacity for innovation. Only where conflict is institutionalized within
government will debate and disagreement flourish, in the process encouraging
novelty without (the claim is a remarkable one) endangering stability.
1 I have modernized spelling and
punctuation of quotations and titles in the text, but not the footnotes. An
earlier version of this paper was given as the keynote address to the annual
meeting of the British Society for Eighteenth Century Studies, 2002. I am
grateful for many helpful suggestions, particularly from Blair Worden and Paul
Rahe (who both told me to read Nedham, amongst much else), Harold Cook (who
told me to read Mayr), Iain Hampsher-Monk (who told me to read Blackstone), and
Claude Rawson (who told me to read Ellis).
2 Stanley Pargellis, "The Theory of
Balanced Government," in Conyers Read ed., The Constitution Reconsidered
(New York: Columbia University Press, 1938), 37-49, p. 37.
3 Invisible is a slight, but only a
slight, overstatement. In addition to Manin's chapter (on which see below, p.
** [and add reference to his article in The Critical Dictionary of the
French Revolution, 1989]) there is Pargellis, "Theory of Balanced
Government", and E.P. Panagopoulos, Essays on the History and Meaning of
Checks and Balances (Lanham Md.: University Press of America, 1985). Also
relevant to the subject of this paper is [Anon.], "Organic and Mechanical
Metaphors in Late Eighteenth-Century American Political Thought", Harvard
Law Review 110 (1997), 1832-49. But the work which most closely touches on
the topics I address here is chapter two of A.O. Lovejoy, Reflections on
Human Nature (Baltimore: John Hopkins University Press, 1961), "The Theory
of Human Nature in the American Constitution and the Method of Counterpoise"
(pp. 37-65). Lovejoy there offers a reading of Federalist 10 with which I
agree: I think this "static" reading (which takes Madison's argument on
factions to be the equivalent of Locke's on religious sects in the Letter
Concerning Toleration - cf. John Locke, Political Writings, ed. D.
Wootton [Harmondsworth: Penguin Books, 1993], p. 429) is compatible with, but
distinct from, the "dynamic" reading of Federalist 51 which I offer at the end
of this essay. It is important to note a difference between the logic of
Federalists 10 and 51: 10 is about ensuring that no faction has a majority in
the legislature while 51 is about ensuring there is a balance of power between
the various institutions and officers established by the constitution. 10 is
consequently about overbalance; 51 about equilibrium.
Overbalances are static; equilibria, because they have to be constantly
re-established, are dynamic.
4 Garry Wills, Explaining America: The
Federalist (Garden City: Doubleday, 1981), 117. Others err in the opposite
direction, e.g. Roger Scruton, A Dictionary of Political Thought
(London: Pan Books, 1985), s.v. "checks and balances", which suggests the
phrase derives from Jefferson's Notes on the State of Virginia (written
1784, first American edition 1787), on which see below.
5 See M.J.C. Vile, Constitutionalism
and the Separation of Powers (2nd ed., Indianapolis: Liberty
Fund, 1998) and W. B. Gwyn, The Meaning of the Separation of Powers (New
Orleans: Tulane Studies in Political Science, No. 9, 1965).
6 OED CD-Rom, s.v. check.
7Nietzsche, "On truth and lie in an
extra-moral sense", in The Portable Nietzsche, trans. Walter Kaufman
(London: Chatto and Windus, 1971), p. 46.
8 The term "Cambridge School" has become a
conventional way of referring to the work of John Dunn, John Pocock, Quentin
Skinner and their pupils. On linguistic change see for example Q. Skinner,
"Language and Social Change" , in James Tully ed., Meaning and
Context (Princeton: Princeton University Press, 1988), pp. 119-132. I
should stress that my own efforts here are rather primitive in that I have made
little use of electronic texts. A pioneering example of what can be done with
modern technology is provided by Nicholson Baker, "Lumber", in The Size of
Thoughts: Essays and Other Lumber (London: Chatto and Windus, 1996),
9 e.g. R. Tuck, Natural Rights
Theories (Cambridge: Cambridge University Press, 1979), p. 1; Q. Skinner,
Liberty Before Liberalism (Cambridge: Cambridge University Press, 1998),
pp. 107-20 (on which see the review by Blair Worden, London Review of
10 J.P. Kenyon ed., The Stuart
Constitution, 1603-1688 (Cambridge: Cambridge University Press, 1966), p.
21, unreliably quoted in James Harrington, Political Works, ed. J.G.A.
Pocock (Cambridge: Cambridge University Press, 1977), p. 19.
11 Harrington, Political Works,
ed. Pocock, pp. 20, 22 (referring to Philip Hunton, A Treatise of
Monarchy (1643), pp. 69, 23.
12 Hunton, Treatise, p. 28.
13 Hunton, Vindication (1651), p.
14 OED CD-Rom, s.v. mechanics,
mechanism, machine, engine, automaton.
15 Otto Mayr, Authority, Liberty and
Automatic Machinery in Early Modern Europe (Baltimore: Johns Hopkins
University Press, 1986), pp. 47-8. Mayr's excellent book fails to note the
republican use of mechanical imagery.
16 John Trenchard and Thomas Gordon,
Cato's Letters (1720-3), ed. Ronald Hamowy (2 vols. [continuous
pagination], Indianapolis: Liberty Fund, 1995), No. 69, p. 497.
17 Plutarch, Lives, intro. by John
Dryden (5 vols., 1683), I, 195-6.
18 [Trenchard and Moyle], An Argument
Shewing That A Standing Army Is Inconsistent With A Free Government (1697),
reprinted in State Tracts (3 vols., 1714), III, p. 566.
19 Reprinted in Gwyn, Meaning of the
Separation of Powers, p. 138. Trenchard used both clog and check: p.
20 Moyle, The Whole Works (1727),
59. See Gwyn, Meaning, p. 88. On Moyle see Caroline Robbins, Two
English Republican Tracts (Cambridge: Cambridge University Press,
21 Blair Worden, "Whig history and
Puritan politics: the Memoirs of Edmund Ludlow revisited," Bulletin
of the Institute of Historical Research 75 (2002), 209-37, at p. 222.
22 [Anon.], A Letter to A, B, C, D, E,
F, etc. Concerning their Argument (1698), p. 13.
23 OED CD-Rom s.v.
24 The best discussion of the debates of
1697-1701 is the introduction to Jonathan Swift, A Discourse of the Contests
and Dissentions between the Nobles and Commons in Athens and Rome (1701),
ed. F.H. Ellis (Oxford: Clarendon Press, 1967); more recently Blair Worden has
published a number of studies which transform our understanding of the politics
of Toland and his associates, the most recent being "Whig history and Puritan
politics: the Memoirs of Edmund Ludlow revisited".
25 [Trenchard and Moyle],
Argument, ed. cit., 566.
26 Moyle, Whole Works, p. 53.
27Cato's Letters, p. 461. In
citing Cato's Letters and The Federalist I refer to the
individual authors who we now know wrote individual sections, rather than to
"Cato" (or Trenchard-and-Gordon) or "Publius" (or
28 Harrington, Political Works,
29 OED CD-Rom, s.v. system.
30 OED CD-Rom, s.v. constitution.
J.H. Burns, "Bolingbroke and the Concept of Constitutional Government,"
Political Studies X (1962), 264-76. Dissertation, Letter X:
Works (5 vols., London, 1744), vol. II, 130.
31Dissertation, Letter XI:
Works II, 157; Letter IX: Works II, 125.
32 Adam Smith, Essays on Philosophical
Subjects, ed. I. S. Ross (Indianapolis: Liberty Fund, 1982), p. 66. See OED
CD-Rom s.v. system, solar, Copernican.
33 David Hume, Essays, Moral,
Political, and Literary, ed. E.F. Miller (Indianapolis: Liberty Classics,
rev. ed. 1987), p. 273.
34The Political Writings of John
Adams, ed. George W. Carey (Washington, D.C.: Regnery, 2000), 647.
35 Sir James Steuart, An Inquiry into
the Principles of Political Oeconomy, ed. A.S. Skinner (4 vols., Chicago:
University of Chicago Press, 1998), vol. 2, p. 217; see also 278-9.
36 Kurt von Fritz, The Theory of the
Mixed Constitution in Antiquity (New York: Columbia University Press,
1954), p. 365. (Quoted without demur in James M. Blythe, Ideal Government
and the Mixed Constitution in the Middle Ages
[Princeton: Princeton University Press, 1992], p. 27.)
37 F. W. Walbank, A Historical
Commentary on Polybius (2 vols., Oxford: Clarendon Press, 1957), I, pp.
38Fragment de Polybe; et quelques
extraits de Spelman sur la meilleure forme de Gouvernment possible (1789?),
39 Polybius, The Histories, trans.
W. R. Paton (6 vols., London: Heineman, 1923), III, p. 291.
40 Kenyon ed., Stuart
Constitution, p. 21.
41 It is missing, for example, from the
edition introduced by Dryden (1693), and translated by Sir Henry Shears, but
does appear in the 1698 reprint, where the additions are described as
translated by "another hand" (pace ESTC). Its relatively late date means, I
think, that this translation of Polybius was not an important factor in the
emergence of the new mechanical language. Ellis thinks that this translation
was used by Swift (who quotes Polybius), on the grounds that Swift may have
known Sir Henry Shears, who he mistakenly thinks is the translator of the whole
text, but I see no reason to assume that Shears would have brought this second
edition, in which he seems to have had no part, to Swift's attention, and
Swift's own quotation suggests he was translating Polybius himself from either
Latin or Greek.
42 Pargellis, "The Theory of Balanced
Government," p. 45
43The History of Polybious,
trans. Edward Grimeston (1634), p. 287.
44 On Polybius, and classical learning in
general, but with no mention of Plutarch, see Gilbert Chinard, "Polybius and
the American Constitution," Journal of the History of Ideas 1 (1940),
38-58. I don't deny that Polybius was known - he is referred to by Milton,
Moyle, Toland, and Swift - but his relative importance as compared to Plutarch
45 I quote from the 1676 edition, p.
46 Moyle, Whole Works, p. 56.
47 On Moyle and the separation of powers
see Gwyn, Separation, 87-8; Vile, Constitutionalism, while
discussing Nedham, Bolingbroke, and Montesquieu, unfortunately contains no
discussion of Moyle.
48 Harrington, Political Works,
196; OED CD-Rom, s.v. libration; Harrington, Political Works, 178
(an earlier use). The word occurs twice in Oceana, and from there it
enters the debates of 1697-1701.
49 Harrington, Political Works, p.
50Cato's Letters, No. 61: ed.
cit. p. 421.
51 Montesquieu, The Spirit of the
Laws, trans. Anne M. Cohler et al (Cambridge: Cambridge University Press,
1989), p. 63.
52 Montesquieu, Spirit of the
Laws, pp. 155-66.
53 Adams was the author of the
Massachusetts constitution of 1780 (Political Writings, 498-551), which
is often thought to provide the model for the "checks and balances" in the
American constitution, and which perhaps best exemplifies what he was defending
in 1787: see A. Hamilton, J. Jay, J. Madison, The Federalist, ed. G.W.
Carey and J. McClellan (Indianapolis: Liberty Fund, 2001), xxx. There is no
occurrence of the phrase "checks and balances" (or any equivalent) in Madison's
notes on the Proceedings of the Federal Convention, although there are frequent
references to checks, and occasional references to balances.
54 OED CD-Rom, s.v. check; Adams,
Political Writings, p. 110; Friends of the Constitution: Writings of
the "Other" Federalists, ed. C. A. Sheehan and G. L. McDowell
(Indianapolis: Liberty Fund, 1998), p. 378; The Federalist, no. 9, p.
119; Isaac Kramnick's introduction to The Federalist (Harmondsworth:
Penguin Books, 1987), pp. 64-5 - the edition I cite.
55 I was, at least, in the best company:
see Bernard Bailyn, The Ideological Origins of the American Revolution
(Cambridge, Mass.: Harvard University Press, 1967), p. 274.
56 The idea of an equilibrium was of
central importance for Greek science: it is a key concept, for example, in
57 Quoted in Kramnick's introduction,
The Federalist, p. 63.
58 Harrington, Political Works,
59 Quoted in Mayr, Authority,
Liberty, p. 143.
60 Adams, Defence, ch. 4
(Political Writings, pp. 132-8); Gordon S. Wood, The Creation of the
American Republic, 1776-1787 (Chapel Hill: University of North Carolina
Press, 1969), p. 577 (which fails to identify the borrowing from Swift).
61 See Mayr, Authority, Liberty,
62 Moyle, Whole Works, 51; A
Letter to A, B, C, D, E, F, etc. Concerning their Argument (1698), p.
63 Swift, Discourse, ed. Ellis,
pp. 84-5. Quoted in Mayr, Authority, Liberty, p. 160; see Adams,
Political Writings, p. 135.
64 Montesquieu, Esprit des lois (2
vols, Paris: Garnier, 1961), vol. 1, p. 172 (my translation: compare Cohler
translation, p. 164).
65American Political Writing During
the Founding Era, ed. C. S. Hyneman and D. S. Lutz (2 vols., Indianapolis:
Liberty Fund, 1983), p. 405 (and Adams, Political Writings, p. 486).
66 Montesquieu, Persian Letters,
trans. C. J. Betts (Harmondsworth: Penguin Books, 1973), p. 187.
67 Bolingbroke, in The Craftsman,
published separately in 1743 in Remarks on the History of England;
Letter VII, Works I, p. 341. Quoted in Gwyn, Meaning, p. 95.
68 Quoted in Mayr, Authority,
Liberty, p. 163; [Edward Spelman], A Fragment out of the Sixth Book of
Polybius (London, 1743), note to p. 49.
69 I. Bernard Cohen, Science and the
Founding Fathers (New York: W.W. Norton, 1995), p. 210.
70 Cohen, Science, pp. 204-10,
71 Bernard Manin, "Checks, balances, and
boundaries: the separation of powers in the constitutional debate of 1787," in
B.-M. Fontana ed., The Invention of the Modern Republic (Cambridge:
Cambridge University Press, 1994), 27-62, p. 59; Centinel in The
Anti-Federalist, ed. Herbert J. Storing (Chicago: University of Chicago
Press, 1985), p. 15; Adams (writing to Sherman in 1789), Political
72 I leave aside a form of the balance
which would have been familiar to anyone in the eighteenth century, the
steelyard, on the grounds that it employs the principle of the lever to turn
unequal weights into equal forces.
73 The literature on de Lolme is thin,
but see Jean-Pierre Machelon, Les Idées Politiques de J.L. de
Lolme (Paris: Presses Universitaires de France, 1969) and Mark Francis with
John Morrow, "After the ancient constitution: Political theory and English
constitutional writings, 1765-1832," History of Political Thought 9
74 De Lolme, Constitution, pp.
196, 203-4, 220, 322, 195
75Federalist, no. 48, p. 309; no.
51, p. 320. See also Jefferson in 1789: "The tyranny of the legislatures is the
most formidable dread at present, and will be for long years." (The Portable
Thomas Jefferson, ed. Merrill D. Peterson (New York: Viking Penguin, 1975),
76The Writings and Speeches of Oliver
Cromwell, ed. W.C. Abbott (4 vols., Cambridge, Mass.: Harvard University
Press, 1937-47), vol. iv, p. 417. This is Burton's report of the speech;
Morgan's version (p. 418) has "You are offended at a House of Lords. I tell you
that unless you have some such thing as a balance you cannot be safe." For
Cromwell's endorsement of Nedham's defence of the Instrument of Government see
vol. Iii, p. 587. I owe these references to Blair Worden.
77 Moyle, Whole Works, 49, etc.
The passage on p. 49-50 ('This wise lawgiver [Lycurgus] made such checks in the
executive part of the government that in the administration they reciprocally
controlled each other.') is a mystery. It appears, since it is in italics, to
be a quotation, but comes, as far as I can see, neither from Herodotus nor
Fletcher of Saltoun. If it is a quotation it would be good to know from what;
but its appearance of being a quotation may well be (since the work was
published posthumously) a misinterpretation of Moyle's manuscript. Trenchard,
Short History of Standing Armies, 1698, p. vi; Gwyn, Meaning, p.
140. State Tracts, III, 638, 652. Justin Champion tells me Toland
reprinted The Danger of Mercenary Parliaments in 1721/2 with a new
preface for Molesworth's election campaign.
78 e.g. M. Nedham, The Excellencie of
a Free State  (repr. London, 1767), pp. 5, 126-7 ('curb'), 65
('bridle'). The 1767 reprint of Nedham's Excellencie of a Free State was
widely known in America before the Revolution - more difficult, and more
interesting, is the extent of Nedham's influence on the radical Whig tradition
in the late seventeenth and early eighteenth centuries: see Worden, "Whig
History", n. 58.
79 Moyle, Whole Works, 56-7; Gwyn,
Meaning, p. 88.
80 Gwyn, Meaning, p. 98;
Federalist, no. 58, p. 350.
81 Montesquieu, Esprit des lois
(ed. cit.) vol. 1, pp. 169-72; De Lolme, Constitution, p. 405.
82 OED CD-Rom, s.v.
responsibility. The word occurs frequently: Federalist, 370,
405-7, 435-6, 444.
83 Gunnar von Proschwitz,
"Responsabilité: L'idée et le mot dans le débat politique
du XVIIIe siècle," in Actes du Xe
Congrès internationale de linguistique et philologie romane (1965),
84 Unpublished paper by Vittoria Franco,
"Individuo moderno, responsabilità, frantumazione delle gerarchie
85 OED CD-Rom, s.v. responsible.
The need to make rulers accountable is a recurring theme of Nedham's, e.g. A
True State of the Case of the Commonwealth  (repr. Exeter: The Rota,
1978), p. 38; Excellencie of a Free State, pp. 72-3.
86 Gwyn, Meaning, p. 141.
87 See quotation in Mayr, Authority,
Liberty, p. 162.
88 OED CD-Rom, s.v.
89Dissertation, Letter XVII:
Works, II, 224.
90 De Lolme, Constitution,
291-305, 319-20, 427-8, 439. One may compare de Lolme with Hume, "Of the
Liberty of the Press" (1741), particularly in its earlier version: David Hume,
Essays Moral, Political and Literary, ed. Eugene F. Miller (rev. ed.,
Indianapolis: Liberty Fund, 1987), 9-13, 604-5.
91A Letter to A, B, C, D, E, F, etc.
Concerning their Argument (1698), 2; A true account of land forces in
England (1699), 1-2; A Letter to His Most Excellent Majesty (1698),
92 OED CD-Rom, s.v. clog; Mayr,
Authority, Liberty, p. 161 (NB Mayr's inconsistency on the date of this
text); "clog" already appears in close proximity to "check" in Trenchard: Gwyn,
Meaning, p. 140.
93 Thomas Paine, Rights of Man, Common
Sense and Other Political Writings, ed. Mark Philp (Oxford: Oxford
University Press, 1995), pp. 9-10. On the importance of this passage, see
Bailyn, Ideological Origins, pp. 285-6.
94 Wood, Creation, p. 224.
95 De Lolme, Constitution, pp.
218-228. The Instrument of Government provided a delay of twenty days between
the passage of legislation and its taking effect, a provision defended by
Nedham (A True State of the Case of the Commonwealth, p. 35) as
providing time for reflection, while in
96 Wood, Creation, p. 239.
97 Adams, Works (**), IV, p. 390.
[cross refs to Works in refs to Political Writings **]
98Federalist, No. 63, p. 371; see
Manin, "Checks," pp. 60-62.
99 Compare Spirit of the Laws, pp.
100 Manin, "Checks," pp. 30-31.
101 Nedham, A True State of the Case
of the Commonwealth, pp. 10, 33; the word check also occurs on p. 22, in
the context of a discussion of the danger of an executive power "without check
102 [Toland], Art of Governing by
Partys (1701), 31. It is possible that Toland is the source of later usages
of "checks and balances": this work was twice reprinted (c. 1757, c. 1760). For
an example of Trenchard using check and balance in close proximity and as
synonyms, see below, p. ** .
103 Spelman, Fragment, p. iv.
104 Quoted in Pargellis, "Theory," pp.
105 Quoted in Paul Rahe, Republics
Ancient and Modern (Chapel Hill: University of North Carolina Press, 1992),
106 Cohen, Science, 225-6.
107Dissertation, Letter XVII:
Works, II, 224.
108Anti-Federalist, ed. Storing,
109 There was an unauthorised reprint of
Spelman's Fragment in 1747 under the title Polybius's Glorious
Discourse, and an authorised reprint in an appendix to vol. 1 of Spelman's
4 vol. edition of Dionysius of Halicarnassus (1758). Adams reproduces lengthy
passages from Spelman's translation of Polybius in the Defence,
Works, IV, pp. 435-9; he also reproduces passages from Spelman's
translation of Dionysius. Spelman's preface, but not his translation, were
reproduced in the French Revolutionary text Fragment de Polybe.
Selections from Spelman are reproduced in J.A.W. Gunn ed., Factions No
More (London: Frank Cass, 1972), 151-3 and in Peter Campbell, "An Early
Defence of Party", Political Studies, III, 166-7. On Spelman see A.
Momigliano, "Polybius Between the English and the Turks" (1974), in Momigliano,
Sesto contributo alla storia degli studi classici e del mondo antico (2
vols., Rome: Edizione di storia e letteratura, 1980), 125-41; Caroline Robbins,
"'Discordant Parties', a study of the acceptance of party by Englishmen",
Political Science Quarterly 73 (1958), 505-29: 527.
110 See, for example, Nedham,
Excellencie, p. 160: "Now that you may know what faction is, and which
is the factious party in any state of kingdom, afflicted with that infirmity;
the only way is first to find out the true and declared interest of state; and
then if you observe any designs, counsels, actings, or persons, moving in
opposition to that which is the true public interest, it may be infallibly
concluded that there lies the faction, and the factious party."
111 Spelman, Fragment,
112 De Lolme, Constitution, pp.
206-13; see also pp. 271-80.
113 Plutarch, Lives, introd.
Dryden (1683), I, 141-2.
114Cato's Letters, No. 70, p.
504. Compare Nedham, in A True State of the Case of the Commonwealth, p.
36, arguing the need for frequent elections: "And how unapt men are of their
own accord to part with such power, when they have got it once into their
hands, how apt they are to corrupt like standing Pools, and contract an
arbitrary distemper in execution of Law, and what miserable inconveniences must
follow thereupon, we, and all the people of the Land can tell be too sad
115 Jean Louis de Lolme, The
Constitution of England (rev. ed., London: Robinson and Murray, 1789), pp.
116Anti-Federalist, ed. Storing,
117 In other words, they would have read
Polybius as if corrected along the lines proposed by Moyle: see his An Essay
Upon the Constitution of the Roman Government in Robbins, Two Republican
Tracts, p. 231.
118An Argument, in State
Tracts, III, 565.
119The Federalist Papers, no.
48, pp. 309, 312; no. 73, p. 418; Storing, Anti-Federalist, p. 319.
120Cato's Letters, No. 116, p.
814. There are certainly connections to be made between systems analysis, the
mechanical philosophy, and materialism: a valuable starting point is provided
by Harold J. Cook, "Body and Passions: Materialism and the Early Modern State",
in Osiris 17 (2002), 25-48, but it is worth remembering that one could
be a mechanist and materialist without wanting a complex state system - one
need think only of Helvétius.
121 Arnold Geulincx, Ethics, tr.
1, ch. 2 (**trans. J. Cottingham, p. 211). (? in John Cottingham ed.,
Western Philosophy: An Anthology (Oxford: Blackwell, 1996)**)
122 OED CD-Rom, s.v. regular.
123 See Mayr, Authority, Liberty,
and also Mayr, The Origins of Feedback Control (Cambridge, Mass.: MIT
124 OED CD-Rom, s.v.
125 Thus Nedham is careful to insist
that frequent elections are not enough, but must be accompanied by term limits:
Excellencie, 42-3, 60-1, 76-7, 107-9.
126 Thus Nedham insists that all
citizens should know the principles of liberty, and attacks the Venetian
constitution as tyrannical; nevertheless he recommends that all debates of the
senate should be held in secret: Excellencie, pp. xvi, 31-2, 103-5,
127 De Lolme, Constitution, p.
128 De Lolme, Constitution, pp.
448-50. The earliest direct comparison between a constitutional mechanism (in
this case a form of bicameralism) and a self-regulating machine that I know is
in Sieyès. "Sur l'organisation du pouvoir législatif et la
sanction royale" (7 Sept. 1789), in Orateurs de la Révolution
française, vol. 1, Les Constituants, ed. F. Furet and R.
Halévi (Paris: Gallimard, 1989), p. 1033: "Je ne vois pas, en effet,
pourquoi, si l'exercice d'un veto suspensif est bon et utile, on le
sortirait de la place que la nature des choses lui a destinée dans la
législature elle-même. Le premier qui, en mécanique, fit
usage du régulateur, se garda bien de la placer hors de la
machine don't il voulait modérer le mouvement trop
129 "Life of John Adams" (in Works
**), p. 625
130 See interview with Ignatief **.
131 Bolingbroke's influence in America
is stressed in Bailyn, Ideological Origins; for Hume and The
Federalist see Wills, Explaining America and Douglass Adair, Fame
and the Founding Fathers (Indianapolis: Liberty Fund, 1998).
132Cato's Letters, no. 70, p.
504 (Gordon's words).
133Cato's Letters, no. 60, p.
416-7. See also Adam Ferguson, An Essay on the History of Civil Society
[1767, rev. ed. of 1773] (Farnborough, Hants.: Gregg International, 1969), pp.
214 ("Liberty is maintained by the continued differences and oppositions of
numbers, not by their concurring zeal in behalf of equitable government") and
268 ("to prevent the practice of crimes, by balancing against each other the
selfish and partial dispositions of men").
134 Manin, "Checks," pp. 57-8.
135 Adams, Works, IV, p. 358.
136Federalist, no. 70, p. 407.
Hamilton's No. 9, p. 119, which includes the phrase "legislative balances and
checks" reads to me like a summary of De Lolme.
137 De Lolme, Constitution, p.
138Federalist, no. 55, p.
139 De Lolme, Constitution, pp.
140 De Lolme, Constitution, pp.
141 Hume, like de Lolme, thought the
representative assembly needed to be weakened and the executive strengthened;
but he was happy to see both objectives attained through corruption.
142Federalist, no. 49, p. 318.
The extensive discussion of party in Wills's Explaining America contains
no hint that Madison ever wrote a sentence comparable to this one.
143 This phrase originates with de
Tocqueville's Democracy in America, translated into English in 1835,
though the first usage given by the OED is from Mill's On Liberty
(1859). Classical and Renaissance views that are similar but not identical to
the concept of majority tyranny are collected by Nedham in his attack on the
Levellers: Marchamont Nedham, The Case of the Commonwealth of England
Stated , ed. Philip A. Knachel (Charlottesville: University of Press
of Virginia, 1969), 99-101. Nedham's Excellencie of a Free State, with
the self-perpetuating Rump Parliament in mind, insists that a representative
assembly can easily become tyrannical, particularly when it is not held to
account through frequent elections (pp. 96-101).
144 Adams, Works, IV, p. 358.
Vibration had been used as a technical term by Sir James Steuart for the
process by which a market moves about an equilibrium position: e.g.
Inquiry, II, p. 146.
145 ref. Constant **. In making this
claim I part company, I think, with Paul Rahe's indispensable Republics
Ancient and Modern, which sees modern republicanism as largely complete
146Federalist, no. 14, p.
147 The passage appears to be a
quotation from Trenchard's and Moyle's Argument in An argument
shewing that a standing army with consent of parliament is not inconsistent
with a free government (1698), p. 14, but I cannot find it there. It is to
be found in a contemporary work by an author linked to them, Fletcher of
Saltoun's Discourse of Government with Relation to Militias (1698): see
his Political Works (1732), p. 9.
148 Bolingbroke, Dissertation
Letter XIII: Works, II, 177.
149 Skinner, Liberty Before
150Cato's Letters, No. 62, p.
151 OED CD-Rom s.v. majority.
152 OED CD-Rom s.v. minority. The
classic text on consensus politics is Mark Kishlansky, "The emergence of
adversary politics," Journal of Modern History 49 (1977), 617-40..
153Cato's Letters, No. 115, pp.
154 Adams, Political Writings,
494 (Letter to John Penn, 1776).
155Notes on the State of
Virginia, in The Portable Thomas Jefferson, p. 164.
156 Nedham, Excellencie, p.
134-5; see also pp. 18-19 on "the lust of mankind after dominion" and pp.
147-53 on the separation of powers. For a classical text which comes near to
expressing the view that power corrupts, see Plutarch, "Sallust", in Fall of
the Roman Republic, trans. Rex Warner (rev. ed., Harmondsworth: Penguin,
1972), p. 104.
157 D. Wootton, "From Commonwealth to
Common Sense", in Wootton ed., Republicanism, Liberty, and Commercial
Society (Stanford: Stanford University Press, 1994), 1-41, p. 18, entirely
misses the point which now seems to me crucial.
158 Moyle, Whole Works, p.
159 See Morton While, Philosophy,
"The Federalist", and the Constitution (New York: Oxford University Press,
1987), part 2: "The different legacies of Locke and Hume".
160Argument, p. 566.