Friends Divided

by Gordon S. Wood

  Jefferson was coming to realize that his friend Adams could be cantankerous, difficult, and “careless of appearances.” He admitted to Madison, who had first suggested Adams’s quirkiness, that Adams was indeed “vain, irritable and a bad calculator of the force and probable effect of the motives which govern men.” During the time he had spent in Congress with Adams, Jefferson had not seen the vanity of the man, but the months together in Europe had opened his eyes. Still, he told Madison in 1787, that vanity is “all the ill” that could be said of Adams. He was a man “of rigorous honesty” and as “disinterested as the being which made him: he is profound in his views and accurate in his judgment except where knowledge of the world is necessary to form a judgment. He is so amiable, that I pronounce you will love him if ever you become acquainted with him.”89

  Although separated by the English Channel, the two families could scarcely have been closer. They not only exchanged gifts, portraits, and letters, and even joked about exchanging children, but the two ministers also collaborated in a number of matters. Jefferson and Adams, for example, shared in the expense of commissioning the French sculptor Jean-Antoine Houdon to do a bust of General Washington. In March 1786 Jefferson went to London to participate in the signing of a commercial treaty with Portugal and stayed six weeks, visiting often with the Adamses. He and Adams also hoped to negotiate a commercial treaty with Great Britain, but they were ignored by the British government and soon realized that such a treaty was impossible. Britain, said Jefferson, was now more hostile to America than it had been during the war.90 The two ministers were presented at court, and, according to Adams family lore, George III turned his back on them.91

  The two men spent a week touring England, visiting Birmingham, Oxford, Worcester, and Stratford-upon-Avon, among other places, as well as a number of the notable English country houses and gardens. Adams was taken with the sites of battles that had occurred in the English Civil War, where, he noted, “Freemen had fought for their Rights.” He also described Shakespeare’s birthplace and pondered the source of “this great Genius.”92

  For his part, Jefferson does not seem to have been much impressed by the battle sites or Stratford-upon-Avon; he was mainly interested in the gardens of the aristocratic country houses. Unlike Adams, he saw himself as one of these landed aristocrats, and he aimed to make Monticello the equal of any of their great houses. He walked through their gardens with a standard gardening book in hand, taking notes on “such practical things as might enable me to estimate the expense of making and maintaining a garden in that style.”93

  Adams admitted that the country houses and gardens and all of their embellishments of statuary and paintings were elegant and beautiful, but at what cost! The British national debt of “274 millions sterling” accumulated over “the Course of a Century might easily produce all this Magnificence.” In his opinion all the obelisks and temples to Roman gods scattered about the grounds of the country houses were both “artificial” and “unnecessary” amusements. He hoped that it would be a long time before America would find such gardens and ornamental pleasure grounds fashionable. In America, he said, “nature has done greater Things and furnished nobler Materials there.” Like many other Americans, Adams found that the sublime grandeur of America’s rough landscape more than compensated for the nation’s lack of great art. “The Oceans, Islands, Rivers, Mountains, Valleys,” he said, “are all laid out upon a larger Scale.”94

  In Adams’s opinion, the only artificial things in America worth noting were its state constitutions, and he had been responsible for the creation of most of them.

  SIX

  CONSTITUTIONS

  ALTHOUGH BOTH JEFFERSON and Adams were abroad in 1787 and thus missed attending the Philadelphia convention that drafted the new federal Constitution, they had been deeply involved in constitution-making from the very beginning of the revolutionary era. Jefferson had left the Continental Congress in 1776 and returned to Virginia in order to participate in creating Virginia’s new republican constitution. For his part, Adams had written his Thoughts on Government, which became the most important pamphlet affecting the drafting of the state constitutions in 1776.

  Although Virginia had drafted a constitution in 1776, Massachusetts had not. When royal authority in Massachusetts collapsed in 1775, the provincial congress had simply resumed the old charter of 1691, with the understanding that a more permanent constitution would be formed later. In 1778 the legislature finally got around to drafting a constitution for the state, which it submitted to the towns for approval. Because this constitution lacked a bill of rights and had problems with representation, the upper house, and the militia, the people in the towns turned it down. Some had criticized the constitution because it had not adequately protected property and the rights of creditors; others criticized it because it had been drafted by the legislature instead of by a body specially called for that purpose. How could a constitution be fundamental if it was created and alterable by the existing legislature?

  Having a constitution that was different from ordinary statutes was a problem from the outset. To draft their constitutions, nearly all the states in 1776 had relied on congresses or conventions that were usually just their legislatures meeting without their royal governors. Because the constitutions were created by the legislatures, they presumably could also be changed or amended by the legislatures. Some of the constitution-makers in 1776 realized that their constitutions were supposed to be a kind of fundamental law, different from ordinary statutes, and they sought anxiously and confusedly to deal with the distinction. Delaware provided for a supermajority, five-sevenths of the legislature, for changing the constitution. Maryland said that its constitution could be amended only by a two-thirds vote of two successive legislatures. Most states, however, simply enacted their constitutions as if they were regular statutes. Everyone believed that the constitutions were special kinds of law, but no one knew quite how to make them so.

  No one struggled with this problem of distinguishing fundamental from statutory law more persistently than Jefferson. His most detailed thinking on the subject appeared in his Notes on the State of Virginia. Jefferson wrote that book, the only one he ever authored, in response to the Marquis de Barbé-Mabois, the secretary to the French Legation, who in 1780 sought information about the American states for his government.

  In the section Query XIII, entitled “Constitution,” Jefferson began with a lengthy description of the seventeenth-century charter granted by the Crown to the planters and adventurers of the Virginia Company. Not only did the seventeenth-century charters granted to several colonies outline a structure of government for each colony, including a governor, council, and general assembly, but they also secured all the rights of Englishmen. Even when the king abrogated the charter in 1624 and made Virginia a crown colony, the structure of government and the rights of the people remained intact. When Parliament in the brief Commonwealth period during the English Civil War reinforced these articles and rights in 1651, the people of Virginia, said Jefferson, assumed that they had secured their autonomy and their “exemption from taxation but by their own assembly.” This laid the constitutional basis for the colonists’ opposition to British policies a century or so later.1

  By his extensive description of all the written documents in seventeenth-century Virginian history, Jefferson demonstrated the importance of the early colonial charters as models for the constitution-making of 1776. Adams agreed. The charters, he said, were a kind of contract between the king and his subjects in which the king stipulated that his subjects “should enjoy all the rights and liberties of Englishmen forever.”2 Although the charters had been initially grants of the Crown to commercial companies to carry out certain public ends, by the eve of the Revolution they had been turned into defensive documents or, as Adams called them, contracts between the king and the people of each colony in which protection and allegiance were the considerations. These charters both prescribed
forms of government and protected the rights of the people from encroaching power.

  Consequently, by 1776 Americans were primed to think of a constitution as a written document set apart from the government and that somehow both ordered and delimited it. This was a very different understanding of a constitution from the way the English understood a constitution.

  Englishmen tended to think of their constitution as including the operations of the government; it was the way in which the government was constituted or put together. It was, as the Tory Charles Inglis declared in 1776, “that assemblage of laws, customs, and institutions which form the general system; according to which the several powers of the state are distributed, and their respective rights are secured to the different members of the community.”3 The English constitution was not a single written document set apart from the government and ordinary lawmaking. For Englishmen, as William Blackstone declared, there could be no distinction between the “constitution” and the “system of laws.” In other words, every act of Parliament was a part of the constitution, and all law, both customary and statutory, was thus constitutional. “Therefore,” said William Paley, that acute summarizer of common eighteenth-century British thought, “the terms constitutional and unconstitutional mean legal and illegal.”4

  That was not at all what Adams thought in 1773. He realized that “many people had different ideas from the words legally and constitutionally.” The king and Parliament, he said, could do many things that were considered legal but were in fact unconstitutional. The problem was how to distinguish one from the other.5

  • • •

  MORE SO THAN ADAMS, Jefferson from the outset was eager to separate these two words—“legal” and “constitutional”—keen to ensure that the fundamental law of the constitution would be different from statutes that were legal. In 1776, in the first draft of his proposed constitution for Virginia, he proposed that the constitution could not be repealed except “by the unanimous consent of both legislative houses,” a crude and impractical suggestion. By his second and third drafts, he had refined his thinking and now proposed that the constitution or “bill” be referred “to the people to be assembled in their respective counties and that the suffrages of two thirds of the counties shall be required to establish it,” the constitution then being unalterable “but by the personal consent of the people on summons to meet in their respective counties.” In 1776 he was the only one of his Virginia colleagues to object to the authority of the existing convention to frame a constitution without a new election.6

  By 1779 Jefferson had become even more preoccupied with the problem of separating fundamental principles from statutory law. He knew from experience that no legislature “elected by the people for the ordinary purposes of legislation only” could restrain the acts of succeeding legislatures. Thus he realized that to declare his great Act for Establishing Religious Freedom in Virginia to be “irrevocable would be of no effect in law; yet we are free,” he wrote into his 1779 bill in frustration, “to declare, and do declare, that . . . if any act shall be hereafter passed to repeal the present [act] or to narrow its operation, such act will be an infringement of natural right.” All he could do, in other words, was place a curse on any future legislators who might violate his act.7

  Jefferson realized that such a paper declaration was not enough and that something more was needed to protect natural rights and the fundamental laws of constitutions from legislative tampering. He was eager “to form a real constitution” for Virginia; the existing one, he said, was merely an “ordinance” with “no higher authority than the other ordinances of the same session.” He wanted a constitution that would be “perpetual” and “unalterable by other legislatures.” The only way that could be done was to have the constitution created, as he put it, “by a power superior to that of the legislature.” By the early 1780s, the answer had become clear. “To render a form of government unalterable by ordinary acts of assembly,” wrote Jefferson, “the people must delegate persons with special powers. They have accordingly chosen special conventions or congresses to form and fix their governments.”8 Moreover, the constitution had to be sent to the people for ratification.

  • • •

  MASSACHUSETTS HAD SHOWN THE WAY. It had demonstrated to the country the procedure by which a constitution could be created that was unalterable by ordinary statutory law. In 1779 the General Court authorized the election of a special convention to draft a new constitution. In order to further distinguish this constitution-making body from the regular legislature, for the election to this convention every male inhabitant over twenty-one years of age was allowed to vote—a broader suffrage than that for the legislature. Then the constitution had to be ratified by two-thirds of the state’s free males twenty-one years and older.

  The convention began meeting in September 1779, a month following Adams’s return from Europe. A drafting committee of thirty named a subcommittee composed of James Bowdoin, president of the convention, Samuel Adams, and John Adams to draw up a constitution. This subcommittee turned over the writing of a draft to John Adams. Although it is clear that Adams was the principal framer of the constitution, he could not have done it alone. He returned to Europe in November 1779, and the convention continued to meet and revise the document until March 1780.

  Although Adams drew on the other state constitutions drafted in 1776 and 1777—“so many fine Examples have been so recently set [before] Us”—the most important influences on him were the discussions he had with his Massachusetts colleagues—“this society of Worthies,” he called them—just after he had arrived back in the state.9 The Massachusetts leaders had been increasingly alarmed by the dissident thinking and behavior in the western part of the state, and had been pondering the nature of a new constitution for Massachusetts for several years. So Adams was joining a conversation about constitutionalism that had been going on all the while he had been away in Europe.

  Despite saying that he was drawing on the examples of the state constitutions framed in 1776, Adams and his colleagues created a constitution that was very different from those. The Massachusetts leaders had come to realize that the constitutions of 1776 had granted too little authority to the executives and too much authority to the popular assemblies.

  By 1780 it had become increasingly clear to many gentry-elites that all the state legislatures were abusing their power and creating democratic excesses in the states that few Whigs in 1776 had anticipated. The “democratic despotism” that Adams in 1775 had declared to be “a contradiction in terms” had become all too real. State legislatures were assuming the powers of the executive and the judiciary to themselves. And they were passing multiple and mutable laws that were also unjust, including various kinds of debtor relief legislation and paper money issues that were hurting creditors. These vices, as Jefferson’s friend James Madison put it, were bringing “into question the fundamental principle of republican Government, that the majority who rule in such governments are the safest Guardians both of public Good and private Rights.”10

  Although by 1780 gentry-elites in most of the states were contemplating reform of their original state constitutions, only Massachusetts was able to draft a constitution that was in accord with the revised thinking; this was made possible by the fact that the state had delayed the constitution-making process and learned from the mistakes of the other states. Consequently, the Massachusetts constitution not only influenced the revisions of the other state constitutions in the late 1780s and early 1790s, but decisively affected the nature of the national Constitution of 1787.

  There exists no manuscript copy of Adams’s draft of the Massachusetts constitution, so the printed Report of a Constitution that went to the convention is all we have. It was probably largely but certainly not entirely the work of Adams. This Report presented a constitution that was by far the longest and most detailed of the revolutionary constitutions.

  At the beginning the
draft report adopted the term “Commonwealth” instead of “State,” something that Virginia and Pennsylvania had done.11 It also set forth a declaration of rights, largely borrowed from those of other state constitutions, and incorporated it in the constitution itself as chapter I. The opening phrase, taken from the declarations of rights in the Virginia and Pennsylvania constitutions of 1776, stated that “all men are born equally free and independent, and have certain natural, essential, and unalienable rights.” Although Adams was willing to borrow various passages from the 1776 Pennsylvania declaration of rights, he knew he would never borrow anything from the structure of that state’s government, especially its unicameral legislature and plural executive. In October 1779, while Adams was in the midst of writing the draft, Benjamin Rush, his friend from Pennsylvania, reminded him of his immediate response upon seeing a copy of the radical Pennsylvania constitution in 1776. “Good God! (said you) the people of Pensylvania in two years will be glad to petition the crown of Britain for reconciliation in order to be delivered from the tyranny of their constitution.”12

  Consequently, Adams’s constitution created a structure of government that was very different from that of Pennsylvania. It provided for a bicameral legislature with a strong senate, and an independent judiciary whose members served during good behavior. The property qualifications for voting and holding office were considerably higher than those in the other states. Adams’s constitution also created a much more powerful and independent governor than existed in the other states. The governor, who was required to have an estate worth at least a thousand pounds, was to be annually elected by the people at large rather than by the legislature, as was the case in most of the other state constitutions. The constitution created a council of nine members to advise the governor in his executive duties; although this council was to be drawn from the forty annually elected senators, it, unlike the old colonial Council, had no legislative authority whatsoever. Eager to enhance executive authority, Adams granted the governor some of the prerogative powers that had been stripped from the executives in the state constitutions drafted in 1776. His draft gave the governor not only the authority, along with the governor’s council, to appoint judges, sheriffs, and militia officers, but, more important, the sole power to veto all laws passed by the legislature.13