Friends Divided

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Friends Divided Page 21

by Gordon S. Wood


  Adams was especially proud of his section of the constitution that provided for the government’s positive role in encouraging education, the principles of humanity and general benevolence, literature, science, and the arts in both public and private institutions—all premised on the belief that “wisdom and knowledge, as well as virtue, diffused generally among the body of the people [were] necessary for the preservation of their rights and liberties.”14

  • • •

  ALTHOUGH MUCH OF THIS Report of a Constitution was the work of Adams, the full committee and the convention made some substantial changes in his draft. Not only did the convention formally divide the constitution into two parts, separating the declaration of rights from the frame of government, but it altered the opening phrase of the declaration of rights and transformed its meaning. Stating, as Adams had, that “all men are born equally free and independent” did not have quite the emphasis on equality that was in the Declaration of Independence or, for that matter, in Adams’s earlier statement of 1766, that “all men are born equal.”15

  By 1779 Adams had lost much of his earlier enthusiasm for the enlightened view that all men were created equal; indeed, he was coming to believe the opposite—that all men were created unequal. That was too much for the convention, however, and so it changed his phrase to read that “all men are born free and equal”—a statement more in line with the Declaration of Independence.

  Much more important to Adams was the change the convention made to the governor’s role in lawmaking. The convention balked at Adams’s desire to give the governor an absolute veto power over all legislation; instead, it granted the governor only a qualified veto power, which allowed two-thirds of each house of the legislature to override the governor’s veto. This denial of the absolute veto that Adams wanted, as Theophilus Parsons, an eminent lawyer from Essex County, privately explained, was a concession made “to please the People.”16

  The convention also rejected Adams’s proposal that the governor could be annually reelected no more than five times over a period of seven years, and his suggestion that all officeholders be Christians. Instead the convention limited this second restriction to the governor and lieutenant governor, but at the same time inconsistently required all councilors and legislators to swear or affirm a belief in the truth of Christianity upon assuming their offices. The convention eliminated Adams’s reference to the right of free speech in the declaration of rights and did away with the right of the governor to appoint militia officers. The convention added some obvious things that Adams had overlooked, including the right of the house of representatives to judge the qualifications of its members, compensation for property taken for public uses, stipulating a quorum for the senate, and providing for amending the constitution.

  These sorts of omissions came from the haste with which Adams worked. Also it is clear that he did not write certain sections of the Report. The most controversial part of the Report was article III, which stated that the government had the authority to provide at public expense for the public worship of God and for the support of teachers of religion. Although Adams claimed that he had nothing to do with this article, Isaac Backus, the celebrated leader of the Baptists in New England, later claimed that on the floor of the convention Adams had cited an incident from 1774 in which Backus and the Baptists had embarrassed the Massachusetts delegation at the Continental Congress, in order to inflame the convention and get it to vote for article III.17

  • • •

  OTHER ARTICLES IN THE DECLARATION of rights were lifted almost verbatim from other state constitutions, perhaps in some cases without much reflection. If Adams was the one who copied article V of the declaration of rights from the Pennsylvania and Virginia constitutions of 1776, for example, it appears that he hadn’t given much thought to its implications. The article read that “all power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive or judicial, are their substitutes and agents, and are at all times accountable to them.” But as Adams set forth his thinking about mixed government, making all parts of the government substitutes and agents of the people was not what he believed at all—as his later exchanges with Samuel Adams, Roger Sherman of Connecticut, and John Taylor of Virginia demonstrated. It was Taylor who most fully drew out the implications of having all members of the government considered as agents of the people, implications that were far more in accord with the sentiments of the American people than Adams’s fidelity to the English theory of mixed government.

  The convention, anticipating Taylor, had none of Adams’s devotion to the traditional theory of mixed government, and in its Address, which it sent to the people in March 1780, it made very explicit the significance of conceiving of all the officers of government, executive as well as legislative, as substitutes and agents of the people. This Address appeared five months after Adams had gone back to France and was not his work at all.

  Although Adams certainly would have agreed with the Address’s conventional emphasis on separating the executive, legislative, and judicial powers, he would probably not have labeled them, as the Address did, “the three capital powers of Government.” For Adams, the three capital powers of government remained the house of representatives, the senate, and the governor—embodying the three orders or powers of the society. Nor would he have agreed with the Address’s statement that “the Governor is emphatically the Representative of the whole People, being chosen not by one Town or County, but by the People at large.” For Adams, continuing to think in traditional terms of mixed or balanced government, the people were represented solely in the house of representatives. Adams believed that the governor embodied the one, the monarchical order in the society, and had to be independent of the people, not their representative.

  It was precisely because Adams thought the governor stood for an order or an estate in the society that he had wanted an absolute veto given to him. “I am clear for Three Branches, in the Legislature,” he told Elbridge Gerry. “I am persuaded, We never shall have any Stability, Dignity, Decision, or Liberty without it.” The executive “ought to be the Reservoir of Wisdom, as the Legislature is of Liberty.” Without the weapon of a full voice in legislation, that is, an absolute veto, the executive “will be run down like a Hare before the Hunters.”18

  The reason Adams wanted the executive to be a full-fledged member of the legislature was that the king of Great Britain was a full-fledged member of Parliament, and the English constitution was his model for the Massachusetts constitution. The English constitution with the king-in-Parliament was, he believed, “both for the adjustment of the balance and the prevention of its vibrations, the most stupendous fabric of human invention.” “Americans,” he continued, “ought to be applauded instead of censured, for imitating it as far as they have done.” Even back in 1775 he had written in his Novanglus essays that if a republic was “a government of laws not of men,” as great thinkers like Aristotle and Harrington had contended, then “the British constitution is nothing more or less than a republic, in which the king is first magistrate.”19

  Of course, conceiving of the English constitution as a republic made it easier for Adams to adopt it as a model. Of all the revolutionary state constitutions, the Massachusetts constitution came closest to the English constitution. Even the judiciary was modeled on it. Although Adams had granted judges tenure during good behavior, he had also provided that they, like the English judges, could be removed by the governor and council “upon the address of both Houses of the legislature.” This was something less than the judicial independence touted by the constitution-makers in the other states.20

  • • •

  THE ENGLISH CONSTITUTION that Adams admired in 1779 was the one interpreted by the Swiss jurist Jean Louis De Lolme in his La Constitution de l’Angleterre, first published in French at Amsterdam in 1771. Although Adams
never mentioned De Lolme in drafting the Massachusetts constitution, he obviously had read his work and had been influenced by it.

  De Lolme fundamentally revised Montesquieu’s earlier understanding of the English constitution and helped to change the thinking of Adams and others on the nature of mixed or balanced government. Although Montesquieu in his Spirit of the Laws had spent a good deal of time extolling the English constitution, De Lolme’s work was the first by a continental European devoted entirely to the subject. The first English translation of De Lolme’s book, The Constitution of England; or, An Account of the English Government, appeared in 1775, and the work went on to have multiple printings over the succeeding decades.21

  In his 1748 Spirit of the Laws, Montesquieu had accepted the conventional understanding of the English constitution as a struggle between the king and the people, between the prerogative powers of an encroaching Crown and the rights of the people defended by their representatives in the House of Commons. This ancient conflict between monarchy and democracy had been mediated by the aristocracy in the House of Lords, acting as the holder of the scales in the marvelously balanced English constitution.22

  Adams in his Thoughts on Government had likewise accepted this traditional view of the balance in the English constitution and had urged his countrymen to draft their state constitutions with this historic contest between the executive and the popular assembly in mind. “If the legislative power is wholly in one Assembly and the executive in another, or in a single person, these two powers,” he had written in this 1776 pamphlet, “will oppose and enervate upon each other, until the contest shall end in war, and the whole power, legislative and executive, be usurped by the strongest.” An upper house embodying the aristocracy of the society, he concluded, would mediate this contest and bring about a proper balance.23

  Contrary to Montesquieu, De Lolme in his work emphasized that the basic struggle in English history was not between the monarch and the people, but was actually between the House of Commons, or the democracy, on the one hand and the House of Lords, or the aristocracy, on the other, with the crucial role in maintaining the proper balance being played by the king. This was a major innovation in thinking about the English constitution. A strong executive, De Lolme wrote, was the best check against the ambitions of the aristocracy, which always posed the greater threat to the stability of the constitution. Too much democracy did not lead to anarchy but to oligarchy or aristocracy. Without a powerful executive, the freedom and stability of the English constitution and presumably any other balanced constitution, De Lolme concluded, could not be maintained.24

  With good reason did Adams call De Lolme’s book “the best defense of the political balance of three powers that was ever written.”25 He had closely followed De Lolme’s argument and in the process had fundamentally altered his thinking about the nature of the proper balance in a constitution. Adams now claimed that the principal conflict in society was between the people and the aristocracy, a conflict, according to reports he had received from his colleagues in the late 1770s, that was much more in accord with the realities of Massachusetts society and politics. That is why he was so insistent on a strong executive for the Massachusetts constitution, one who was a full and equal participant in the legislative process with an absolute negative over all legislation and one who could balance the aristocracy and the democracy embodied in the other branches of the legislature. But to Adams’s chagrin, the final constitution in chapter I, section I, article I, declared that “the department of legislation shall be formed by two branches,” which meant that the governor possessed only a limited veto power.26 Still, the executive in the Massachusetts constitution emerged as the strongest governor of any of the states.

  • • •

  WHEN IT CAME TO CREATING the senate or upper house, Adams was much more indebted to his colleagues who had been wrestling with the problem for months. During the debate over the proposed constitution of 1778 in Massachusetts, Theophilus Parsons in the Essex Result, the publication of the Essex County convention, had spent a great deal of time discussing the difficulty of constructing an upper house. The proposed constitution of 1778 was defective, Parsons wrote, because it provided for the selection of the senate by all the freemen: “a trust is reposed in the people which they are unequal to.” If Massachusetts wanted a proper senate containing “the greatest wisdom, firmness, consistency, and perseverance,” it had to look beyond the common people. “These qualities,” said Parsons, who later became chief justice of the Massachusetts Supreme Court, “will most probably be found amongst men of education and fortune,” especially fortune. On behalf of the Essex convention, Parsons admitted that all men of property were not at present men of learning and wisdom, but surely, he said, it was among the wealthy that the largest number of men of education and character could be found. Hence the senate, declared the Essex convention, should represent the property of the state.27

  Since the weakness of the senate was one of the reasons the proposed constitution of 1778 had been turned down, the convention of 1779–1780 was determined to remedy this defect. Adams had proposed that the senators had to own a freehold worth at least three hundred pounds. The convention doubled this amount to six hundred pounds and included personal property in the sum, thus opening up the office to wealthy individuals who may not have owned sufficient land. The Address of the convention went on to spell out the difference between the two houses in no uncertain terms: “The House of Representatives is intended as the Representatives of the Persons, and the Senate of the property of the Commonwealth.”28

  Making the senate the overt representative of property severely distorted the meaning of mixed government that the state constitution-makers of 1776 had applied. The framers of the revolutionary state constitutions had hoped that their upper houses would embody the wisdom and learning of the society, not just property and wealth. In 1776 William Hooper of North Carolina had suggested that senators should be “selected for their Wisdom, remarkable Integrity, or that Weight which arises from property and gives Independence and Impartiality to the human mind.” 29 Although wisdom and integrity were difficult to measure, property was not. Out of frustration with the people’s inability to perceive the wise and truly talented, the states fell back on property as the best practical source of distinction for their state senates. Some of the states required members of their upper houses to have more property than members of the lower houses, while other states required the senatorial electors to have more property than those electing the houses of representatives. Thus many American leaders found in property a criterion by which the “senatorial part” of their society could be distinguished from ordinary people. By stating that the upper house represented property, the Massachusetts constitution made glaringly explicit what was only implicit in the other states.

  Making property the measure of wisdom was not what most framers of the revolutionary state constitutions had expected. In his experience, Jefferson had noted in 1776, “Integrity” was not “the characteristic of wealth.”30 Adams agreed. He never said that his idea of a senate was simply to represent property; the explicit statement to that effect made in the convention’s Address to the people in 1780 was the view of his colleagues, not his view. Instead, for Adams the upper house embodied the aristocratic estate of the society, which, as he came to explain in his Defence of the Constitutions of Government of the United States of America, included much more than mere property.

  • • •

  EVEN THOUGH BOTH Adams and Jefferson in the early 1780s were working for the Confederation Congress, their focus was still on their individual states. Indeed, with the end of the war in 1783, Jefferson thought the Congress had lost most of its usefulness. “The constant session of Congress,” he said, “can not be necessary in time of peace.” After clearing up the most urgent business, the delegates should “separate and return to our respective states, leaving only a Committee of the states,” and thus “d
estroy the strange idea of their being a permanent body, which has unaccountably taken possession of the heads of their constituents, and occasions jealousies injurious to the public good.”31

  Certainly Jefferson’s mind was still on his own state of Virginia. At the very time Massachusetts was putting its new constitution into effect, he was thinking about reforming the Virginia constitution that had been adopted in 1776. Since “we were new and inexperienced in the science of government” in 1776, it was not surprising, he explained, “that time and trial have discovered very capital defects in it.” The most important defect lay in the nature and behavior of the legislature. It had concentrated within itself all the legislative, executive, and judicial powers, which, said Jefferson, was “precisely the definition of despotism.” The fact that the legislature was composed of many hands did not mitigate the problem: “173 despots would surely be as oppressive as one,” he observed.32

  Adams and many of the other leaders in Massachusetts and elsewhere would have agreed with this assessment. That was why they favored a stronger executive and a stronger senate. But their reforms came from a growing mistrust of the people at large. The assemblies were behaving tyrannically because they were only too representative of the people and their partial and narrow interests.

 

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