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Browsing: Papers of John Adams, Volume 8


Docno: ADMS-06-08-02-0161-0001

Editorial Note

Of the eleven states that adopted constitutions during the Revolutionary period, Massachusetts, ratifying its document in 1780, was the last. { 229 } (Connecticut and Rhode Island, both with corporate charters that granted broad autonomous powers, did not revise their organic law until the nineteenth century.) The General Court had drafted a constitution which it presented to the towns in 1778, but they overwhelmingly rejected it for a variety of reasons, ranging from its lack of a bill of rights to its being written and presented for approval in dangerous times when many voters were away on military service. A few towns asserted that a constitution ought to be drafted by a convention specially chosen for that sole purpose, on the grounds that constitutional law should be superior to mere acts of legislation. Nearly everyone was agreed, even in 1778, that any constitution must have the approval of the people. Responding to these objections, Massachusetts perfected the modern constitutional convention and ratification procedure that has since been used almost exclusively in framing organic law in the United States. In taking this final step, Massachusetts built on the constitutional traditions of Pennsylvania and Delaware, whose 1776 constitutions were drawn up by special conventions that were distinct from the established legislatures of those states, but whose work was not submitted to the voters for approval (J. Paul Selsam, The Pennsylvania Constitution of 1776, A Study in Revolutionary Democracy, Phila., 1936, p. 162–164, 211–212; John A. Monroe, Colonial Delaware, A History, N.Y., 1978, p. 253).
Massachusetts not only refined the American system of constitution-making, but produced the longest and most detailed constitution of the Revolutionary era. This document contributed several important principles that were adopted by other states as they revised their constitutions as well as by the framers of the United States Constitution. Most of these principles were espoused and articulated by John Adams, who played the key role in drafting a constitution that has lasted to the present day, although it has acquired more than one hundred amendments. The Massachusetts Constitution, with its provision for a strong, independent executive, instituted a true check-and-balance system. The other early state constitutions concentrated power in the hands of legislatures, which in most instances elected their chief executives. Pennsylvania provided for no governor at all, and New York's independently elected governor had to share his limited veto power with others and exercised more restricted appointive powers than were provided in Massachusetts. Nearly all of the states had sought to create an independent judiciary in their 1776–1777 constitutions by prescribing tenure during good behavior, but John Adams had already played a crucial role in establishing this principle through his Thoughts on Government (1776), which strongly influenced the drafting of several of those early constitutions (vol. 4:65–93).
The Massachusetts Constitutional Convention met in Cambridge on 1 September 1779. Each town had been authorized to choose as many delegates as it was entitled by law to send to the General Court, but the franchise was opened without regard to property holdings to “every { 230 } Freeman, Inhabitant of [a] town, who is twenty one years of age” (Journal of the Convention, p. 6). According to the official journal, over three hundred delegates were chosen. Comparison of the delegate list with the roster of representatives to the General Court reveals that towns generally sent far more men to the convention than they sent to the House, a sign perhaps that the task ahead was viewed as serious indeed. The main business during the week-long first session was to name a drafting committee made up of representatives from each county, totaling twenty-seven men, plus four members chosen at large. The actual number selected, however, was only thirty because the two island counties, Dukes and Nantucket, together entitled to one committeeman, sent no delegates to Cambridge. After organizing this committee, the convention adjourned to 28 October, when a full draft constitution was to be presented for consideration.
The drafting committee, meeting in Boston on 13 September, named a subcommittee, comprised of James Bowdoin, the convention's president, Samuel Adams, and John Adams, to do the preliminary work. The subcommittee turned the writing of a draft over to John Adams. According to an account he wrote in 1812, Adams' fellow subcommittee members took exception to only “one Line of no consequence” in his completed draft, and this he deleted. The full drafting committee, again according to Adams, substituted a qualified executive veto for the absolute veto that Adams favored and struck out the governor's power to appoint militia officers (JA to William D. Williamson, 25 Feb. 1812, MeHi). Adams' memory was faulty for both these changes were made by the full convention. The committee's printed Report of a Constitution (the document that follows) includes neither of these alterations.
The only contemporary clue we have to changes made by the full committee is furnished in two letters, both written by Adams while the convention was meeting in its second session. In answer to Elbridge Gerry's plea that an executive veto be limited to any attempt by the legislature to “affect the powers of the Executive” (to JA, 12 Oct., above), Adams replied, “I am clear for Three Branches, in the Legislature, and the Committee have reported as much, tho aukwardly expressed” (4 Nov., below). On the same day he wrote to Benjamin Rush: “If the Committee had boldly made the Legislature consist of three Branches, I should have been better pleased” (also below). What Adams meant was that the unqualified veto of the governor made him in effect a third branch, giving him the critical checking power that a “Reservoir of Wisdom” should have over the legislators, who comprised a reservoir of liberty (to Gerry, 4 Nov.). Despite the absolute veto that the Report of a Constitution gives to the governor, it specifically declares, in Chapter II, Section I, Article I, that “The department of legislation shall be formed by two branches.”
John Adams' remarks to Gerry and Rush are the only evidence known to the editors which suggests that his draft was significantly altered by { 231 } the committee before it was printed and offered to the convention. He did disclaim authorship of Article III of the Declaration of Rights, which provided tax support for religion, and we know from other sources that Chapter VI, Section I, which protected the interests of Harvard College, was largely drafted by a committee appointed by that institution (JA to William D. Williamson; JA, Works, 4:258, note 2). But until contrary evidence appears, we can only assume that Adams' draft, with the exceptions noted, was largely that of the printed Report.
In stating that the committee's draft was virtually Adams' own, it should be understood that it was not all original. John Adams was pleased to have a role in designing a new constitution, which he had long urged his political colleagues in Massachusetts to do, but he recognized that it was “impossible for Us to acquire any Honour, as so many fine Examples have been so recently set Us” (JA to Benjamin Rush, 10 Sept., above). Adams borrowed liberally from these examples. Formal bills of rights had been written for the constitutions of five of the original states in 1776—Virginia, Pennsylvania, Delaware, Maryland, and North Carolina—and for Vermont in 1777, and several states without such formal bills included similar rights in their descriptions of governmental agents and their powers (Thorpe, ed., Federal and State Constitutions; Max Farrand, “The Delaware Bill of Rights of 1776,” AHR, 3:641–649 [July 1898]). In drafting Massachusetts' Declaration of Rights, Adams was greatly influenced by the order of listing and some of the language found in Pennsylvania's declaration. Virginia, Maryland, and Delaware also offered several ideas. All of the states had before them the great state papers of English history—Magna Charta and its revision, the Great Charter of 1225, the Petition of Right (1628), the Bill of Rights (1689), and the Act of Settlement (1701). In drafting the Frame of Government, Adams drew upon the Massachusetts Charter of 1691, his own Thoughts on Government, and even the rejected Constitution of 1778 for some of his language.
If Adams borrowed, he also made significant contributions of his own. The true check-and-balance system, originally described by him in Thoughts on Government, with its independent executive and independent judiciary, has already been mentioned. Less often noticed by historians has been Adams' organization of the Frame of Government into chapters, sections, and articles, which makes the Massachusetts Constitution much easier to read and refer to than the simple consecutive listing of articles or sections that characterizes every other early state constitution. This major innovation was incorporated into the New Hampshire constitution (1784) and the United States Constitution. Adams also changed the basis of representation in the House from the number of voters to the number of ratable polls, which included, with some exceptions, all free males sixteen years of age and above. This change would allow counting for representation purposes those who were too young or who had too little property to vote, but who had to
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pay a tax or have their father or master pay it for them. Thereby apprentices and grown sons still living on the family farm would become part of the population that Adams thought the representative body should reflect.
Adams himself was pleased with the convention's acceptance without change of his second section under Chapter VI, “The Encouragement of Literature, &c.,” which spelled out in broad terms a positive role for government in promoting education, science, and the arts in both public and private institutions. One immediate object that he had in mind as he drafted this section was an academy of men interested in the arts and the natural sciences, and especially the natural history of America, that would be based in Massachusetts and would rival the American Philosophical Society in Philadelphia and emulate the great academies of England and France. He had suggested founding such an academy to Samuel Cooper in August 1779, shortly after his return to America, and the hint was soon taken up (JA to Benjamin Waterhouse, 7 Aug. 1805, MHi). In 1780 the Commonwealth of Massachusetts chartered the American Academy of Arts and Sciences.
Three less conspicuous innovations deserve mention. Taking language from the 1691 charter, Adams detailed the powers of the legislature far more specifically than was done in other early state constitutions. He also called for limits on the legislative power to suspend habeas corpus. Only Georgia among the other states had even mentioned this important right, and Georgia did not address the problem of suspension. The power of the General Court in this area became one of the most hotly debated issues in the convention; a twelve-month time limit for suspension was added to Adams' article, but some delegates were greatly disappointed that the convention did not further limit this suspensive power. Finally, Adams gave the governor and Council and the Senate power to request a judicial opinion upon important questions of law. The convention extended this power to the House as well, while confining the right to give such an opinion to the Supreme Judicial Court. This legislative power was not found in the other state constitutions.
The number and significance of the alterations that the convention made in Adams' draft are greater than usually realized and need passing mention if only to place his authorship in proper perspective. As noted above, Adams himself singled out as particularly important, if unfortunate, two revisions: the two-thirds legislative vote that could override a governor's veto, which New York had employed in 1777 and which was adopted in the United States Constitution; and the election of officers by members of the militia in preference to appointment by the governor. The convention also rejected Adams' proposed rotation in the office of governor, a feature common to nearly all of the 1776 constitutions. This clause would have prevented a man from serving more than five one-year terms out of seven. The explicit requirement that major { 234 } officeholders be Christians was limited by the convention to the governor and his lieutenant, but the oath of office for councilors and legislators required swearing or affirming a belief in the truth of the Christian religion. In addition, the convention broadened Adams' proposed property qualifications for legislators to include personal property as well as freeholds of stated value. And in the Declaration of Rights the convention dropped the reference to the right of free speech which Adams had copied from the Pennsylvania declaration, although the delegates retained liberty of the press. They also provided for compensation when private property was taken for public purposes.
Some of the convention's additions corrected Adams' oversights. For example, he neglected to provide for the House the right to judge the qualifications of its members, and for the Senate, a quorum. He made no provision for amendments, although he was quite aware that any constitution would require them. One of the convention's more significant additions was the inclusion of a definition of town inhabitancy that was in line with traditional practices, which were designed to keep indigent and disorderly outsiders from claiming to be inhabitants of a town. And the convention was far more specific than Adams in guarding against plural officeholding, an abuse much complained about in the provincial period.
Finally, the convention rejected Adams' scheme of allowing towns with too few ratable polls for representation in the House to associate with larger towns in jointly choosing a representative, a device Adams had adapted from the Constitution of 1778. Small towns themselves felt that in associating, their influence would be lost; they wanted every town to have at least one representative, regardless of size. The convention, however, would yield no more than making provision for travel pay out of the public treasury to encourage small and poor towns already enjoying a right to representation to continue to send a member to the House.
The Massachusetts Constitution of 1780 occupies a central position both in America's constitutional tradition and in John Adams' thought. The long months of drafting, revision, and ratification greatly refined America's constitution-making procedure, and prepared the way for the United States Constitution. In its principles and its structure, Massachusetts' document was the culmination of that process of turning away from legislative-centered government to embrace a system of checks and balances, strong, popularly elected executives, and independent judiciaries. This tradition, advanced so effectively by Adams himself in Thoughts on Government, had gradually gained momentum, particularly with the adoption of New York's constitution of 1777. After 1780, Americans faced a clear choice between Pennsylvania's legislative-centered form of government and the tripartite Massachusetts model, a choice resolved in Massachusetts' favor with the ratification of the United States Constitution in 1787–1788.
For John Adams, too, Massachusetts' new constitution marked both a { 235 } culmination and a turning point. As political thought and organic law, Adams' Report of a Constitution summarized nearly two decades of reading, thinking, and writing about balanced constitutions and just, durable governments. Its sources were varied, ranging from Greek, Roman, and British political thinkers whom Adams had long admired, especially James Harrington, to his own published writings and a wide range of American constitutions. These last-named included documents that Adams revered, like the Massachusetts Charter of 1691, and those he thought serviceable, like the Virginia and Maryland constitutions of 1776 and Massachusetts' own rejected Constitution of 1778, but also those of which he was highly critical, notably Pennsylvania's Constitution of 1776. John Adams left no doubt in his correspondence that he thought the American constitutional tradition was vigorous and healthy, and he believed that America's best constitutions were far superior to those in operation in Europe, as he would argue at great length in his Defence of the Constitutions of the United States (1787–1788).
At the same time, however, Adams was disappointed that the convention proved unreceptive to his absolute executive veto. Writing to Elbridge Gerry, he declared that without this power the executive, a sound government's “Reservoir of Wisdom,” would be run down by an aggressive legislature “like a Hare before the Hunters” (4 Nov., below). This disappointment seems to foreshadow the decline of John Adams' political optimism and of his receptivity to further constitutional innovation, as well as his growing concern that aristocracies in all forms threatened the vitality of balanced republican government. And his mounting anxiety over this concern would soon color his political thought so strongly that by the late 1780s he had moved out of the mainstream of America's still evolving constitutional tradition, a tradition to which he had contributed so much. What he left behind was America's most carefully balanced state constitution, the last great practical statement of the classical British commonwealth tradition and, not incidentally, the oldest functioning written constitution in the English-speaking world.
John Adams wrote the substance of the Report of a Constitution between 13 September and mid-October 1779, largely in Braintree, and presented it for revision to his subcommittee colleagues, and then to the full drafting committee, in mid- and late October. He presumably attended the full drafting committee sessions in October, and probably the full convention sessions of 28–30 October and 1–3 November as well. His attendance in the week after 4 November, when his correspondence resumes and he was preparing to sail again for Europe, seems less likely. No manuscript notes, rough drafts, or finished copies of Adams' text, or any detailed references to the committee sessions, are known to the editors.
The Report of a Constitution was distributed to the convention delegates in two parts. The first fifteen pages, through the end of the Declaration of Rights, were passed out to the members on order of the convention on Friday morning, 29 October. The entire pamphlet of fifty { 236 } pages, upon which the text below is based, was distributed on Monday, 1 November. Only the Library of Congress is known to have a copy of the fifteen-page first section, lacking the portion of the Frame of Government which begins on the bottom half of page fifteen. Copies of the complete pamphlet survive in several libraries and archives, often with annotations made by the delegates who first received them. When Adams departed for Europe on 15 November, he took with him several copies of the Report, which he gave to various acquaintances and officials in France and Holland, and even to some in England. He arranged for the Report to be printed in London and Paris in the spring of 1780, and later that year he had the adopted constitution printed in England, France, and the Netherlands (JA to Edmé Jacques Genet, 26 Feb., below; Thomas Digges to JA, 14 April 1780, Adams Papers; JA, Diary and Autobiography, 2:413; Adams Family Correspondence, 3:228 , 349; 4:267). His preliminary version of the Massachusetts Constitution provoked much interest and admiration abroad.
The annotation below indicates specific sources that Adams drew upon, as well as all major alterations to the Report made by the convention. Most minor changes of phrasing are not noted. And since the focus is on John Adams, only occasional account is taken of the debates in the convention, of the proposals that failed, or of the sharpness of division in the votes on some provisions. For a fuller description of the convention's work, see Robert J. Taylor, “Construction of the Massachusetts Constitution,” Amer. Antiq. Soc., Procs., 90 (1980):317–346. The Massachusetts Charter of 1691 and the Revolutionary-era constitutions of all the states can be found in Thorpe, ed., Federal and State Constitutions; volume three gives the Massachusetts texts. For the rejected Constitution of 1778, see Robert J. Taylor, ed., Massachusetts, Colony to Commonwealth, Chapel Hill, N.C., 1961, p. 51–58.
Cite web page as: Founding Families: Digital Editions of the Papers of the Winthrops and the Adamses, ed.C. James Taylor. Boston: Massachusetts Historical Society, 2014.
http://www.masshist.org/apde2/