1. Separation of Powers & The American Revolution

1.1 Thomas Paine, Common Sense


About this Text

We tend to think of the separation of powers as a quintessentially American idea.  In fact, though, not everyone embraced the idea a the time of the American Revolution.  In this excerpt from Common Sense, Thomas Paine praises the virtue of simplicity in all things, including government.  He argues accordingly for a simple government consisting of one legislative assembly that chooses a very limited number of what we might think of as executive officials.  To this basic simplicity, Paine contrasts the complexity of the British constitution, which divides and separates power.  The British may claim that this complexity protects liberty checking any tendency towards accumulating too much power in any one place, but Paine thinks otherwise.

Common Sense was published anonymously in January 1776.  By then, open hostilities had been underway between colonists and the British army and Navy for nine months, since the battles of Lexington and Concord and the ‘shot heard round the world’ in April 1775.  Many if not most colonists, though, had yet to embrace the idea of independence, with the Continental Congress still appealing to King George III to check what they described as an abusive Parliament.  In Common Sense, Paine has plenty of criticism for Parliament, but he attacks George III as well.  Indeed, he rejects the entire British Constitutional system.

Thomas Paine

excerpts from Common Sense (source)


Some writers have so confounded society with government, as to leave
little or no distinction between them; whereas they are not only
different, but have different origins. Society is produced by our
wants, and government by our wickedness; the former promotes our
happiness positively by uniting our affections, the latter
negatively by restraining our vices. The one encourages intercourse,
the other creates distinctions. The first a patron, the last a

“Society in every state is a blessing, but government even in its best state is but a necessary evil.”  Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one; for when we suffer, or are exposed to the same
miseries by a government, which we might expect in a country without
government, our calamity is heightened by reflecting that we furnish
the means by which we suffer. Government, like dress, is the badge
of lost innocence; the palaces of kings are built on the ruins of
the bowers of paradise. For were the impulses of conscience clear,
uniform, and irresistibly obeyed, man would need no other lawgiver;
but that not being the case, he finds it necessary to surrender up a
part of his property to furnish means for the protection of the rest;
and this he is induced to do by the same prudence which in every
other case advises him out of two evils to choose the least.
Wherefore, security being the true design and end of government, it
unanswerably follows that whatever form thereof appears most likely
to ensure it to us, with the least expence and greatest benefit, is
preferable to all others.

Stop & Think

Paine makes a great deal of the distinction between society and government, praising the former and calling the later a “necessary evil.”  Does this distinction make sense today?  

In order to gain a clear and just idea of the design and end of
government, let us suppose a small number of persons settled in some
sequestered part of the earth, unconnected with the rest, they will
then represent the first peopling of any country, or of the world.
In this state of natural liberty, society will be their first
thought. A thousand motives will excite them thereto, the strength
of one man is so unequal to his wants, and his mind so unfitted for
perpetual solitude, that he is soon obliged to seek assistance and
relief of another, who in his turn requires the same. Four or five
united would be able to raise a tolerable dwelling in the midst of a
wilderness, but one man might labour out of the common period of
life without accomplishing any thing; when he had felled his timber
he could not remove it, nor erect it after it was removed; hunger in
the mean time would urge him from his work, and every different want
call him a different way. Disease, nay even misfortune would be
death, for though neither might be mortal, yet either would disable
him from living, and reduce him to a state in which he might rather
be said to perish than to die.

Thus necessity, like a gravitating power, would soon form our newly
arrived emigrants into society, the reciprocal blessings of which,
would supersede, and render the obligations of law and government
unnecessary while they remained perfectly just to each other; but as
nothing but heaven is impregnable to vice, it will unavoidably
happen, that in proportion as they surmount the first difficulties
of emigration, which bound them together in a common cause, they
will begin to relax in their duty and attachment to each other; and
this remissness, will point out the necessity, of establishing some
form of government to supply the defect of moral virtue.

Some convenient tree will afford them a State-House, under the
branches of which, the whole colony may assemble to deliberate on
public matters. It is more than probable that their first laws will
have the title only of Regulations, and be enforced by no other
penalty than public disesteem. In this first parliament every man,
by natural right, will have a seat.

But as the colony increases, the public concerns will increase
likewise, and the distance at which the members may be separated,
will render it too inconvenient for all of them to meet on every
occasion as at first, when their number was small, their habitations
near, and the public concerns few and trifling. This will point out
the convenience of their consenting to leave the legislative part to
be managed by a select number chosen from the whole body, who are
supposed to have the same concerns at stake which those who
appointed them, and who will act in the same manner as the whole
body would act were they present. If the colony continue increasing,
it will become necessary to augment the number of the
representatives, and that the interest of every part of the colony
may be attended to, it will be found best to divide the whole into
convenient parts, each part sending its proper number; and that the
elected might never form to themselves an interest separate from the
electors, prudence will point out the propriety of having elections
often; because as the elected might by that means return and mix
again with the general body of the electors in a few months, their
fidelity to the public will be secured by the prudent reflexion of
not making a rod for themselves. And as this frequent interchange
will establish a common interest with every part of the community,
they will mutually and naturally support each other, and on this
(not on the unmeaning name of king) depends the strength of
government, and the happiness of the governed.

Here then is the origin and rise of government; namely, a mode
rendered necessary by the inability of moral virtue to govern the
world; here too is the design and end of government, viz. freedom
and security. And however our eyes may be dazzled with show, or our
ears deceived by sound; however prejudice may warp our wills, or
interest darken our understanding, the simple voice of nature and of
reason will say, it is right.

I draw my idea of the form of government from a principle in nature,
which no art can overturn, viz. that the more simple any thing is,
the less liable it is to be disordered; “the more simple any thing is, the less liable it is to be disordered” and the easier repaired when
disordered; and with this maxim in view, I offer a few remarks on
the so much boasted constitution of England. That it was noble for the dark and slavish times in which it was erected, is granted. When the world was over run with tyranny the least remove therefrom was a glorious rescue. But that it is imperfect, subject to convulsions, and incapable of producing what it seems to promise, is easily demonstrated.

Absolute governments (tho’ the disgrace of human nature) have this
advantage with them, that they are simple; if the people suffer,
they know the head from which their suffering springs, know likewise
the remedy, and are not bewildered by a variety of causes and cures.
But the constitution of England is so exceedingly complex, that the
nation may suffer for years together without being able to discover
in which part the fault lies, some will say in one and some in
another, and every political physician will advise a different

Stop & Think

Notice that pain praises simplicity in general while acknowledging that absolute governments are themselves simple.   Do you think he would prefer the the simplicity of an absolute government  to the complexity of the English government?  Why or why not?

I know it is difficult to get over local or long standing prejudices,
yet if we will suffer ourselves to examine the component parts of
the English constitution, we shall find them to be the base remains
of two ancient tyrannies, compounded with some new republican

First.–The remains of monarchical tyranny in the person of the king.

Secondly.–The remains of aristocratical tyranny in the persons of
the peers.

Thirdly.–The new republican materials, in the persons of the
commons, on whose virtue depends the freedom of England.

The two first, by being hereditary, are independent of the people;
wherefore in a constitutional sense they contribute nothing towards
the freedom of the state.

To say that the constitution of England is a union of three powers
reciprocally checking each other, is farcical, either the words have
no meaning, or they are flat contradictions.

To say that the commons is a check upon the king, presupposes two

First.–That the king is not to be trusted without being looked
after, or in other words, that a thirst for absolute power is the
natural disease of monarchy.

Secondly.–That the commons, by being appointed for that purpose,
are either wiser or more worthy of confidence than the crown.

But as the same constitution which gives the commons a power to
check the king by withholding the supplies, gives afterwards the
king a power to check the commons, by empowering him to reject their
other bills; it again supposes that the king is wiser than those
whom it has already supposed to be wiser than him. A mere absurdity!

There is something exceedingly ridiculous in the composition of
monarchy; it first excludes a man from the means of information, yet
empowers him to act in cases where the highest judgment is required.
The state of a king shuts him from the world, yet the business of a
king requires him to know it thoroughly; wherefore the different
parts, by unnaturally opposing and destroying each other, prove the
whole character to be absurd and useless.

Some writers have explained the English constitution thus; the king,
say they, is one, the people another; the peers are an house in
behalf of the king; the commons in behalf of the people; but this
hath all the distinctions of a house divided against itself; and
though the expressions be pleasantly arranged, yet when examined
they appear idle and ambiguous; and it will always happen, that the
nicest construction that words are capable of, when applied to the
description of some thing which either cannot exist, or is too
incomprehensible to be within the compass of description, will be
words of sound only, and though they may amuse the ear, they cannot
inform the mind, for this explanation includes a previous question,
viz. How came the king by a power which the people are afraid to
trust, and always obliged to check? Such a power could not be the
gift of a wise people, neither can any power, which needs checking,
be from God; yet the provision, which the constitution makes,
supposes such a power to exist.

But the provision is unequal to the task; the means either cannot or
will not accomplish the end, and the whole affair is a felo de se;
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 by time.

That the crown is this overbearing part in the English constitution
needs not be mentioned, and that it derives its whole consequence
merely from being the giver of places and pensions is self-evident,
wherefore, though we have been wise enough to shut and lock a door
against absolute monarchy, we at the same time have been foolish
enough to put the crown in possession of the key.

The prejudice of Englishmen, in favour of their own government by
king, lords and commons, arises as much or more from national pride
than reason. Individuals are undoubtedly safer in England than in
some other countries, but the will of the king is as much the law of
the land in Britain as in France, with this difference, that instead
of proceeding directly from his mouth, it is handed to the people
under the more formidable shape of an act of parliament. For the
fate of Charles the first, hath only made kings more subtle–not
more just.

Wherefore, laying aside all national pride and prejudice in favour
of modes and forms, the plain truth is, that it is wholly owing to
the constitution of the people, and not to the constitution of the
government that the crown is not as oppressive in England as in

“… it is wholly owing to the constitution of the people, and not to the constitution of the government that the crown is not as oppressive in England as in Turkey.”

An inquiry into the constitutional errors in the English form of
government is at this time highly necessary, for as we are never in
a proper condition of doing justice to others, while we continue
under the influence of some leading partiality, so neither are we
capable of doing it to ourselves while we remain fettered by any
obstinate prejudice. And as a man, who is attached to a prostitute,
is unfitted to choose or judge of a wife, so any prepossession in
favour of a rotten constitution of government will disable us from
discerning a good one.

Stop & Think

Paine argues that the “constitution of the people” of England saves them from the oppression that the “Constitutional errors in the English form of government” would allow or at least not prevent.  What do you think he means by the ‘constitution of the people?’  Does the constitution of the people exist prior to and separate from the form of government?  Does this distinction between the constitution of the people and the constitution of the form of government make sense in the United States today?



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