The Online Library of Liberty

A project of Liberty Fund, Inc.

• Works On Government.
• A Defence of the Constitutions of Government of the United States of America.
• Chapter First.: Marchamont Nedham. the Right Constitution of a Commonwealth Examined.
• Chapter Second.: Marchamont Nedham. Objections Answered.
• Chapter Third.: Marchamont Nedham. Errors of Government and Rules of Policy.
• Chapter Fourth.
• Conclusion.
• Discourses On Davila.
• Four Letters: Being an Interesting Correspondence Between Those Eminently Distinguished Characters, John Adams, Late President of the United States; and Samuel Adams, Late Governor of Massachusetts, On the Important Subject of Government.
• Editor’s Preface.
• Advertisement.
• Letters.
• Three Letters to Roger Sherman, On the Constitution of the United States
• Roger Sherman to John Adams.
• Letters to John Taylor, of Caroline, Virginia, In Reply to His Strictures On Some Parts of the Defence of the American Constitutions.
• Review of the Propositions For Amending the Constitution Submitted By Mr. Hillhouse to the Senate of the United States, In 1808.

THREE LETTERS TO ROGER SHERMAN, ON THE CONSTITUTION OF THE UNITED STATES

I.

Richmond Hill, (New York), 17 July, 1789.

Dear Sir,—

I read over, with pleasure, your observations on the new federal constitution, and am glad to find an opportunity to communicate to you my opinion of some parts of them. It is by a free and amicable intercourse of sentiments, that the friends of our country may hope for such a unanimity of opinion and such a concert of exertions, as may sooner or later produce the blessings of good government.

You say, “it is by some objected that the executive is blended with the legislature, and that those powers ought to be entirely distinct and unconnected. But is not that a gross error in politics? The united wisdom and various interests of a nation should be combined in framing the laws by which all are to be governed and protected, though it should not be convenient to have them executed by the whole legislature. The supreme executive in Great Britain is one branch of the legislature, and has a negative on all the laws; perhaps that is an extreme not to be imitated by a republic; but the negative vested in the president by the new constitution on the acts of congress, and the consequent revision, may be very useful to prevent laws being passed without mature deliberation, and to preserve stability in the administration of government; and the concurrence of the senate in the appointment to office will strengthen the hands of the executive, and secure the confidence of the people much better than a select council, and will be less expensive.”

Is it, then, “an extreme not to be imitated by a republic,” to make the supreme executive a branch of the legislature, and give it a negative on all the laws? If you please, we will examine this position, and see whether it is well founded. In the first place, what is your definition of a republic? Mine is this: A government whose sovereignty is vested in more than one person. Governments are divided into despotisms, monarchies, and republics. A despotism is a government in which the three divisions of power, the legislative, executive and judicial, are all vested in one man. A monarchy is a government where the legislative and executive are vested in one man, but the judicial in other men. In all governments the sovereignty is vested in that man or body of men who have the legislative power. In despotisms and monarchies, therefore, the legislative authority being in one man, the sovereignty is in one man. In republics, as the sovereignty, that is, the legislative, is always vested in more than one, it may be vested in as many more as you please. In the United States it might be vested in two persons, or in three millions, or in any other intermediate number; and in every such supposable case the government would be a republic. In conformity to these ideas, republics have been divided into three species, monarchical, aristocratical, and democratical republics. England is a republic, a monarchical republic it is true, but a republic still; because the sovereignty, which is the legislative power, is vested in more than one man; it is equally divided, indeed, between the one, the few, and the many, or in other words, between the natural division of mankind in society,—the monarchical, the aristocratical, and democratical. It is essential to a monarchical republic, that the supreme executive should be a branch of the legislature, and have a negative on all the laws. I say essential, because if monarchy were not an essential part of the sovereignty, the government would not be a monarchical republic. Your position is therefore clearly and certainly an error, because the practice of Great Britain in making the supreme executive a branch of the legislature, and giving it a negative on all the laws, must be imitated by every monarchical republic.

I will pause here, if you please; but if you will give me leave, I will write another letter or two upon this subject. Meantime I am, with unalterable friendship, yours.

II.

Dear Sir,—

In my letter of yesterday I think it was demonstrated that the English government is a republic, and that the regal negative upon the laws is essential to that republic. Because, without it, that government would not be what it is, a monarchical republic; and, consequently, could not preserve the balance of power between the executive and legislative powers, nor that other balance which is in the legislature,—between the one, the few, and the many; in which two balances the excellence of that form of government must consist.

Let us now inquire, whether the new constitution of the United States is or is not a monarchical republic, like that of Great Britain. The monarchical and the aristocratical power in our constitution, it is true, are not hereditary; but this makes no difference in the nature of the power, in the nature of the balance, or in the name of the species of government. It would make no difference in the power of a judge or justice, or general or admiral, whether his commission were for life or years. His authority during the time it lasted, would be the same whether it were for one year or twenty, or for life, or descendible to his eldest son. The people, the nation, in whom all power resides originally, may delegate their power for one year or for ten years; for years, or for life; or may delegate it in fee simple or fee tail, if I may so express myself; or during good behavior, or at will, or till further orders.

A nation might unanimously create a dictator or a despot, for one year or more, or for life, or for perpetuity with hereditary descent. In such a case, the dictator for one year would as really be a dictator for the time his power lasted, as the other would be whose power was perpetual and descendible. A nation in the same manner might create a simple monarchy for years, life, or perpetuity, and in either case the creature would be equally a simple monarch during the continuance of his power. So the people of England might create king, lords, and commons, for a year, or for several years, or for life, and in any of these cases, their government would be a monarchical republic, or, if you will, a limited monarchy, during its continuance, as much as it is now, when the king and nobles are hereditary. They might make their house of commons hereditary too. What the consequence of this would be it is easy to foresee; but it would not in the first moment make any change in the legal power, nor in the name of the government.

Let us now consider what our constitution is, and see whether any other name can with propriety be given it, than that of a monarchical republic, or if you will, a limited monarchy. The duration of our president is neither perpetual nor for life; it is only for four years; but his power during those four years is much greater than that of an avoyer, a consul, a podestà, a doge, a stadtholder; nay, than a king of Poland; nay, than a king of Sparta. I know of no first magistrate in any republican government, excepting England and Neuchatel, who possesses a constitutional dignity, authority, and power comparable to his. The power of sending and receiving ambassadors, of raising and commanding armies and navies, of nominating and appointing and commissioning all officers, of managing the treasures, the internal and external affairs of the nation; nay, the whole executive power, coextensive with the legislative power, is vested in him, and he has the right, and his is the duty, to take care that the laws be faithfully executed. These rights and duties, these prerogatives and dignities, are so transcendent that they must naturally and necessarily excite in the nation all the jealousy, envy, fears, apprehensions, and opposition, that are so constantly observed in England against the crown.1

That these powers are necessary, I readily admit. That the laws cannot be executed without them; that the lives, liberties, properties and characters of the citizens cannot be secure without their protection, is most clear. But it is equally certain, I think, that they ought to have been still greater, or much less. The limitations upon them in the cases of war, treaties, and appointments to office, and especially the limitation on the president’s independence as a branch of the legislative, will be the destruction of this constitution, and involve us in anarchy, if not amended. I shall pass over all particulars for the present, except the last; because that is now the point in dispute between you and me. Longitude, and the philosopher’s stone, have not been sought with more earnestness by philosophers than a guardian of the laws has been studied by legislators from Plato to Montesquieu; but every project has been found to be no better than committing the lamb to the custody of the wolf, except that one which is called a balance of power. A simple sovereignty in one, a few, or many, has no balance, and therefore no laws. A divided sovereignty without a balance, or in other words, where the division is unequal, is always at war, and consequently has no laws. In our constitution the sovereignty,—that is, the legislative power,—is divided into three branches. The house and senate are equal, but the third branch, though essential, is not equal. The president must pass judgment upon every law; but in some cases his judgment may be overruled. These cases will be such as attack his constitutional power; it is, therefore, certain he has not equal power to defend himself, or the constitution, or the judicial power, as the senate and house have.

Power naturally grows. Why? Because human passions are insatiable. But that power alone can grow which already is too great; that which is unchecked; that which has no equal power to control it. The legislative power, in our constitution, is greater than the executive; it will, therefore, encroach, because both aristocratical and democratical passions are insatiable. The legislative power will increase, the executive will diminish. In the legislature, the monarchical power is not equal either to the aristocratical or democratical; it will, therefore, decrease, while the other will increase. Indeed, I think the aristocratical power is greater than either the monarchical or democratical. That will, therefore, swallow up the other two.

In my letter of yesterday, I think it was proved, that a republic might make the supreme executive an integral part of the legislature. In this, it is equally demonstrated, as I think, that our constitution ought to be amended by a decisive adoption of that expedient. If you do not forbid me, I shall write to you again.

III.

Dear Sir,—

There is a sense and degree in which the executive, in our constitution, is blended with the legislature. The president has the power of suspending a law; of giving the two houses an opportunity to pause, to think, to collect themselves, to reconsider a rash step of a majority. He has a right to urge all his reasons against it, by speech or message; which, becoming public, is an appeal to the nation. But the rational objection here is, not that the executive is blended with the legislature, but that it is not enough blended; that it is not incorporated with it, and made an essential part of it. If it were an integral part of it, it might negative a law without much noise, speculation, or confusion among the people. But as it now stands, I beg you to consider it is almost impossible, that a president should ever have the courage to make use of his partial negative. What a situation would a president be in to maintain a controversy against a majority of both houses before a tribunal of the public? To put a stop to a law that more than half the senate and house, and consequently, we may suppose more than half the nation, have set their hearts upon?1 It is, moreover, possible, that more than two thirds of the nation, the senate, and house, may, in times of calamity, distress, misfortune, and ill success of the measures of government, from the momentary passion and enthusiasm, demand a law which will wholly subvert the constitution. The constitution of Athens was overturned in such a manner by Aristides himself. The constitution should guard against a possibility of its subversion; but we may take stronger ground, and assert that it is probable such cases will happen, and that the constitution will, in fact, be subverted in this way. Nay, I go further, and say, that from the constitution of human nature, and the constant course of human affairs, it is certain that our constitution will be subverted, if not amended, and that in a very short time, merely for want of a decisive negative in the executive.

There is another sense and another degree in which the executive is blended with the legislature, which is liable to great and just objection; which excites alarms, jealousies, and apprehensions, in a very great degree. I mean, 1st, the negative of the senate upon appointments to office; 2d. the negative of the senate upon treaties; and 3d. the negative of the two houses upon war. I shall confine myself, at present, to the first. The negative of the senate upon appointments is liable to the following objections:—

1. It takes away, or, at least, it lessens the responsibility of the executive. Our constitution obliges me to say, that it lessens the responsibility of the president. The blame of an injudicious, weak, or wicked appointment, is shared so much between him and the senate, that his part of it will be too small. Who can censure him, without censuring the senate, and the legislatures who appoint them? All their friends will be interested to vindicate the president, in order to screen them from censure. Besides, if an impeachment against an officer is brought before them, are they not interested to acquit him, lest some part of the odium of his guilt should fall upon them, who advised to his appointment?

2. It turns the minds and attention of the people to the senate, a branch of the legislature, in executive matters. It interests another branch of the legislature in the management of the executive. It divides the people between the executive and the senate; whereas, all the people ought to be united to watch the executive, to oppose its encroachments, and resist its ambition. Senators and representatives, and their constituents, in short, the aristocratical and democratical divisions of society ought to be united on all occasions to oppose the executive or the monarchical branch, when it attempts to overleap its limits. But how can this union be effected, when the aristocratical branch has pledged its reputation to the executive, by consenting to an appointment?

3. It has a natural tendency to excite ambition in the senate. An active, ardent spirit, who is rich and able, and has a great reputation and influence, will be solicited by candidates for office. Not to introduce the idea of bribery, because, though it certainly would force itself in, in other countries, and will probably here, when we grow populous and rich, it is not yet to be dreaded, I hope, ambition must come in already. A senator of great influence will be naturally ambitious and desirous of increasing his influence. Will he not be under a temptation to use his influence with the president as well as his brother senators, to appoint persons to office in the several states, who will exert themselves in elections, to get out his enemies or opposers, both in senate and house of representatives, and to get in his friends, perhaps his instruments? Suppose a senator to aim at the treasury office for himself, his brother, father, or son. Suppose him to aim at the president’s chair, or vice-president’s, at the next election, or at the office of war, foreign, or domestic affairs. Will he not naturally be tempted to make use of his whole patronage, his whole influence, in advising to appointments, both with president and senators, to get such persons nominated as will exert themselves in elections of president, vice-president, senators, and house of representatives, to increase his interest and promote his views? In this point of view, I am very apprehensive that this defect in our constitution will have an unhappy tendency to introduce corruption of the grossest kinds, both of ambition and avarice, into all our elections, and this will be the worst of poisons to our constitution. It will not only destroy the present form of government, but render it almost impossible to substitute in its place any free government, even a better limited-monarchy, or any other than a despotism or a simple monarchy.

4. To avoid the evil under the last head, it will be in danger of dividing the continent into two or three nations, a case that presents no prospect but of perpetual war.

5. This negative on appointments is in danger of involving the senate in reproach, censure, obloquy, and suspicion, without doing any good. Will the senate use their negative or not? If not, why should they have it? Many will censure them for not using it; many will ridicule them, and call them servile, &c. If they do use it, the very first instance of it will expose the senators to the resentment of not only the disappointed candidate and all his friends, but of the president and all his friends, and these will be most of the officers of government, through the nation.

6. We shall very soon have parties formed; a court and country party, and these parties will have names given them. One party in the house of representatives will support the president and his measures and ministers; the other will oppose them. A similar party will be in the senate; these parties will study with all their arts, perhaps with intrigue, perhaps with corruption, at every election to increase their own friends and diminish their opposers. Suppose such parties formed in the senate, and then consider what factious divisions we shall have there upon every nomination.

7. The senate have not time. The convention and Indian treaties.1

You are of opinion “that the concurrence of the senate in the appointments to office, will strengthen the hands of the executive, and secure the confidence of the people, much better than a select council, and will be less expensive.”

But in every one of these ideas, I have the misfortune to differ from you.

It will weaken the hands of the executive, by lessening the obligation, gratitude, and attachment of the candidate to the president, by dividing his attachment between the executive and legislative, which are natural enemies. Officers of government, instead of having a single eye and undivided attachment to the executive branch, as they ought to have, consistent with law and the constitution, will be constantly tempted to be factious with their factious patrons in the senate. The president’s own officers, in a thousand instances, will oppose his just and constitutional exertions, and screen themselves under the wings of their patrons and party in the legislature.2 Nor will it secure the confidence of the people. The people will have more confidence in the executive, in executive matters, than in the senate. The people will be constantly jealous of factious schemes in the senators to unduly influence the executive, to serve each other’s private views. The people will also be jealous that the influence of the senate will be employed to conceal, connive at, and defend guilt in executive officers, instead of being a guard and watch upon them, and a terror to them. A council, selected by the president himself, at his pleasure, from among the senators, representatives, and nation at large, would be purely responsible. In that case, the senate would be a terror to privy counsellors; its honor would never be pledged to support any measure or instrument of the executive beyond justice, law, and the constitution. Nor would a privy council be more expensive. The whole senate must now deliberate on every appointment, and if they ever find time for it, you will find that a great deal of time will be required and consumed in this service. Then, the president might have a constant executive council; now, he has none.

I said, under the seventh head, that the senate would not have time. You will find that the whole business of this government will be infinitely delayed by this negative of the senate on treaties and appointments. Indian treaties and consular conventions have been already waiting for months, and the senate have not been able to find a moment of time to attend to them; and this evil must constantly increase. So that the senate must be constantly sitting, and must be paid as long as they sit. . .

But I have tired your patience. Is there any truth in these broken hints and crude surmises, or not? To me they appear well founded and very important.

I am, with usual affection, yours,

John Adams.

[1 ]M. de Tocqueville has taken a similar view of the President’s powers:—

“Le président des États-Unis possède des prérogatives presque royales, dont il n’a pas l’occasion de se servir; et les droits dont jusqu’à présent il peut user sont très circonscrits; les lois lui permettent d’être fort, les circonstances le maintiennent foible.” De la Démocratie en Amérique, vol. i. chap. 8.

[1 ]Thus far, this has not been found so difficult as was here predicted. But it must be admitted that the occasions in which the negative has been exercised, were not of a kind in which the popular passions are greatly excited.

[1 ]This seems to be an imperfect sentence. The sense is explained at the close of the letter.

[2 ]A singular prediction of what actually happened, afterwards, to himself.