1. Separation of Powers & The American Revolution
About This Text
John Adams wrote Thought on Government in 1776, while serving in the Continental Congress. Like Paine, Adams was a strong advocate for independence. Unlike Paine, Adams found much to admire in the British constitution, including the kind of “complexity” derided by Paine. This difference is on display in the excerpts below, as Adams adamantly rejects a single legislative assembly as dangerous to liberty and virtue. Adams isn’t just making a theoretical point here. He wrote Thoughts on Government as part of his response requests from multiple colonies for his advice about constitution writing. Independence, after all, meant more than breaking away from Britain. It also meant forming new governments for what would become the American states. Adams–and many of his colleagues–considered this work every bit as important as writing the Declaration. In Thoughts on Government, Adams begins by asserting that only a republican form of government will do, then argues that in a proper republican government, power must be divided among different institutions or else the people “cannot be long free.”
excerpts from Thoughts on Government (source)
As good government, is an empire of laws, how shall your laws be made? In a large society, inhabiting an extensive country, it is impossible that the whole should assemble, to make laws: The first necessary step then, is, to depute power from the many, to a few of the most wise and good. But by what rules shall you chuse your Representatives? Agree upon the number and qualifications of persons, who shall have the benefit of choosing, or annex this priviledge to the inhabitants of a certain extent of ground.
The principal difficulty lies, and the greatest care should be employed in constituting this Representative Assembly. It should be in miniature, an exact portrait of the people at large. It should think, feel, reason, and act like them. That it may be the interest of this Assembly to do strict justice at all times, it should be an equal representation, or in other words equal interest among the people should have equal interest in it. Great care should be taken to effect this, and to prevent unfair, partial, and corrupt elections. Such regulations, however, may be better made in times of greater tranquility than the present, and they will spring up of themselves naturally, when all the powers of government come to be in the hands of the people’s friends. At present it will be safest to proceed in all established modes to which the people have been familiarised by habit.
A representation of the people in one assembly being obtained, a question arises whether all the powers of government, legislative, executive, and judicial, shall be left in this body? I think a people cannot be long free, nor ever happy, whose government is in one Assembly. “I think a people cannot be long free, nor ever happy, whose government is in one Assembly.” My reasons for this opinion are as follow.
1. A single Assembly is liable to all the vices, follies and frailties of an individual. Subject to fits of humour, starts of passion, flights of enthusiasm, partialities of prejudice, and consequently productive of hasty results and absurd judgments: And all these errors ought to be corrected and defects supplied by some controuling power.
2. A single Assembly is apt to be avaricious, and in time will not scruple to exempt itself from burthens which it will lay, without compunction, on its constituents.
3. A single Assembly is apt to grow ambitious, and after a time will not hesitate to vote itself perpetual. This was one fault of the long parliament, but more remarkably of Holland, whose Assembly first voted themselves from annual to septennial, then for life, and after a course of years, that all vacancies happening by death, or otherwise, should be filled by themselves, without any application to constituents at all.
4. A Representative Assembly, altho’ extremely well qualified, and absolutely necessary as a branch of the legislature, is unfit to exercise the executive power, for want of two essential properties, secrecy and dispatch.
5. A Representative Assembly is still less qualified for the judicial power; because it is too numerous, too slow, and too little skilled in the laws.
6. Because a single Assembly, possessed of all the powers of government, would make arbitrary laws for their own interest, execute all laws arbitrarily for their own interest, and adjudge all controversies in their own favour.
But shall the whole power of legislation rest in one Assembly? Most of the foregoing reasons apply equally to prove that “the legislative power ought to be more complex” the legislative power ought to be more complex–to which we may add, that if the legislative power is wholly in one Assembly, and the executive in another, or in a single person, these two powers 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.
Stop & Think
Notice that in the preceding paragraph Adams explicitly embraces greater complexity. How do you think Paine, with this professed love of simplicity, might respond to the particular points Adams makes against a simple single assembly?
The judicial power, in such case, could not mediate, or hold the balance between the two contending powers, because the legislative would undermine it. And this shews the necessity too, of giving the executive power a negative upon the legislative, otherwise this will be continually encroaching upon that.
To avoid these dangers let a [distinct] Assembly be constituted, as a mediator between the two extreme branches of the legislature, that which represents the people and that which is vested with the executive power.
Let the Representative Assembly then elect by ballot, from among themselves or their constituents, or both, a distinct Assembly, which for the sake of perspicuity we will call a Council. It may consist of any number you please, say twenty or thirty, and should have a free and independent exercise of its judgment, and consequently a negative voice in the legislature.
These two bodies thus constituted, and made integral parts of the legislature, let them unite, and by joint ballot choose a Governor, who, after being stripped of most of those badges of domination called prerogatives, should have a free and independent exercise of his judgment, and be made also an integral part of the legislature. This I know is liable to objections, and if you please you may make him only President of the Council, as in Connecticut: But as the Governor is to be invested with the executive power, with consent of Council, I think he ought to have a negative upon the legislative. If he is annually elective, as he ought to be, he will always have so much reverence and affection for the People, their Representatives and Councillors, that although you give him an independent exercise of his judgment, he will seldom use it in opposition to the two Houses, except in cases the public utility of which would be conspicuous, and some such cases would happen.
In the present exigency of American affairs, when by an act of Parliament we are put out of the royal protection, and consequently discharged from our allegiance; and it has become necessary to assume government for our immediate security, the Governor, Lieutenant-Governor, Secretary, Treasurer, Commissary, Attorney-General, should be chosen by joint Ballot, of both Houses. And these and all other elections, especially of Representatives, and Councillors, should be annual, there not being in the whole circle of the sciences, a maxim more infallible than this, “Where annual elections end, there slavery begins.”
These great men, in this respect, should be, once a year
“Like bubbles on the sea of matter borne, They rise, they break, and to that sea return.”
This will teach them the great political virtues of humility, patience, and moderation, without which every man in power becomes a ravenous beast of prey.
This mode of constituting the great offices of state will answer very well for the present, but if, by experiment, it should be found inconvenient, the legislature may at its leisure devise other methods of creating them, by elections of the people at large, as in Connecticut, or it may enlarge the term for which they shall be chosen to seven years, or three years, or for life, or make any other alterations which the society shall find productive of its ease, its safety, its freedom, or in one word, its happiness.
A rotation of all offices, as well as of Representatives and Councillors, has many advocates, and is contended for with many plausible arguments. “A rotation of all offices, as well as of Representatives and Councillors, has many advocates, and is contended for with many plausible arguments.” It would be attended no doubt with many advantages, and if the society has a sufficient number of suitable characters to supply the great number of vacancies which would be made by such a rotation, I can see no objection to it. These persons may be allowed to serve for three years, and then excluded three years, or for any longer or shorter term.
Stop & Think
Adams here calls for a “rotation in offices,” to be produced by annual elections and a kind of term limits. How do these proposed institutional arrangements for electing government officials relate to the general idea of separation of powers? If power is sufficiently separated inside the government, why would we need to worry so much about how officials are chosen to serve in that government?
Any seven or nine of the legislative Council may be made a Quorum, for doing business as a Privy Council, to advise the Governor in the exercise of the executive branch of power, and in all acts of state.
The Governor should have the command of the militia, and of all your armies. The power of pardons should be with the Governor and Council.
Judges, Justices and all other officers, civil and military, should be nominated and appointed by the Governor, with the advice and consent of Council, unless you choose to have a government more popular; if you do, all officers, civil and military, may be chosen by joint ballot of both Houses, or in order to preserve the independence and importance of each House, by ballot of one House, concurred by the other. Sheriffs should be chosen by the freeholders of counties–so should Registers of Deeds and Clerks of Counties.
All officers should have commissions, under the hand of the Governor and seal of the Colony.
The dignity and stability of government in all its branches, the morals of the people and every blessing of society, depends so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that. The Judges therefore should always be men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness and attention. Their minds should not be distracted with jarring interests; they should not be dependant upon any man or body of men. To these ends they should hold estates for life in their offices, or in other words their commissions should be during good behaviour, and their salaries ascertained and established by law. For misbehaviour the grand inquest of the Colony, the House of Representatives, should impeach them before the Governor and Council, where they should have time and opportunity to make their defence, but if convicted should be removed from their offices, and subjected to such other punishment as shall be thought proper.